The Jere Beasley Report July 2022

CAPITOL OBSERVATIONS

Navan Ward Looks Back On His Year as AAJ President

When Beasley Allen lawyer Navan Ward became the American Association of Justice 76th President in July 2021, he knew it was a tremendous opportunity for the organization to make positive changes in the laws that impact everyday Americans.

Now, nearly a year later, as his term nears its end, Navan says the AAJ has facilitated several major changes in helping victims of wrongdoing and bad conduct nationwide. The organization, usually on the defense, has had a unique window of opportunity to go on the offense – to quell the ever-rising tide of anti-justice laws and federal rulings that bar access to the courts and make it difficult or sometimes virtually impossible for people to seek and get a fair trial.

“There’s a saying that the success of a rain dance has to do with the timing,” Navan said, reflecting on his year as AAJ President, not without a charge of humility. He attributes the organization’s impressive accomplishments to the foundations built by his AAJ predecessors, staff colleagues, and God.

Repealing forced arbitration laws and restoring the rights of consumers, employees, and patients was one of the AAJ’s key victories under Navan’s leadership. The efforts of the organization culminated in a law signed by President Biden on March 3, 2022, returning the rights of sexual assault and sexual harassment survivors by ending mandatory arbitration clauses in contracts. The AAJ was also instrumental in advocating for the passage of the Forced Arbitration Injustice Repeal (FAIR) Act, part of the ongoing efforts to forever end forced arbitration in all aspects of the American civil justice system.

Navan also understood that the U.S. judiciary needs to reflect the country’s diversity to better serve all Americans. Under his leadership, the AAJ and its allies worked tirelessly to advocate for a more demographically and professionally diverse federal bench. Navan, the second African American to serve as AAJ president in the organization’s history, said these ongoing efforts are remaking the U.S. judiciary and the legal profession in general. The efforts have resulted in the appointments of 42 district and appellate judges in President Biden’s first year alone, with a record 61% of those coming from professionally diverse backgrounds, including public defenders, civil rights lawyers, and plaintiffs lawyers. This push for professional diversity also led to the historical confirmation of U.S. Supreme Court Justice Ketanji Brown Jackson.

Additionally, Navan implemented AAJ’s “Law Firm Pledge to Act,” a diversity initiative that seeks to have plaintiffs’ law firms implement practices that will help the legal community better reflect the clients, jurors, and courts that oversee lawsuits. More than 200 plaintiffs’ law firms have made this pledge, and Beasley Allen was one of the first signatories of the pledge.

Navan said the AAJ also helped mobilize trial lawyer organizations in all 50 states and two districts to oppose changes to the Daubert Standard, which governs federal procedure for the admissibility of expert witness testimony. Navan’s role included testifying before the Congressional Advisory Committee to reject changes proposed by the chambers of commerce and other anti-justice lobbyists that would further block access to fair trials.

Building on past achievements and seizing new opportunities have been key to the AAJ’s success under Navan’s leadership. Guidance from his faith and the hard work of all the AAJ’s members, staff colleagues and allies, and a little bit of luck have steered the organization to its best financial strength in nearly two decades, despite the challenges of the Covid pandemic and the rights of ordinary Americans remaining under constant siege. Navan says:

We will never acquiesce, so I know we can win. Our resolve to preserve justice matters more than our opponents’ will to dismantle it. Our greatest strength is our commitment to justice coupled with our defiance. That is why AAJ and its members can achieve the better world we envision.

All of us at Beasley Allen are proud of Navan’s excellent and highly productive work. He is a tremendous leader, a very good lawyer, and a “good man.” AAJ was blessed to have Navan as its president.

THE FACEBOOK LITIGATION

Facebook Faces Federal Lawsuits Over Youth Mental Health Crisis

Beasley Allen lawyers have filed lawsuits on behalf of eight plaintiffs across the country against Meta Platforms Inc., the parent company of Facebook and Instagram. The lawsuits claim the defendant exploits young people for profit, employs addictive psychological tactics to increase the use of their product, and fails to protect young, vulnerable, and at-risk users. Beasley Allen lawyer and Mass Torts Section Head Andy Birchfield had this to say:

The defendants knew that their products and related services were dangerous to young and impressionable children and teens, yet they completely disregarded their own information. They implemented sophisticated algorithms designed to encourage frequent access to the platforms and prolonged exposure to harmful content.

Prolonged exposure to the platforms has led to actual or attempted suicides, self-harm, eating disorders, severe anxiety, depression, and a reduced inclination or ability to sleep, among other reported injuries.

The lawsuits were filed in Colorado, Delaware, Florida, Georgia, Illinois, Missouri, Tennessee, and Texas. Facebook and Instagram deliberately designed their products to be manipulative and addictive, regardless of their extensive insider knowledge of the damaging psychological effects of prolonged exposure to these applications.

These cases address the harms detailed during a hearing on Oct. 5, 2021, before the U.S. Senate, entitled “Protecting Kids Online: Testimony from a Facebook Whistleblower.” The hearing occurred on the heels of thousands of leaked research documents from inside Facebook. The documents revealed that the company knew for years its platforms cause adverse psychological effects and physical health problems in young people, especially young girls.

Social media use among young people should be viewed as a significant contributor to the mental health crisis we face in the country. These applications could have been designed to minimize potential harm, but instead, a decision was made to aggressively addict adolescents in the name of corporate profits. It’s time for this company to acknowledge the growing concerns around the impact of social media on the mental health and well-being of this most vulnerable portion of our society and alter the algorithms and business objectives that have caused so much damage.

Claims set out in the lawsuits include defective design, negligence, and failure to warn, among other claims.

Beasley Allen lawyers representing the plaintiffs are Birchfield, Joseph VanZandt, Clinton Richardson, Jennifer Emmel, and Seth Harding, all lawyers in our Mass Torts Section.

AN UPDATE ON MOTOR VEHICLE LITIGATION

Summer Tire Safety

As we begin the summer season, it is important to ensure that your tires are ready for summer travel.  Most folks think that as long as their tires have sufficient tread depth, they will be safe.  However, this is not exactly true.  Tire aging is a significant factor when considering tire safety. Unfortunately, most consumers are unaware of the significance of tire aging when purchasing tires.

Tire aging occurs when the material properties of a tire degrade over time, which diminishes the structural integrity and creates a situation where catastrophic failure can occur. Tires age and experience this degradation in structural integrity whether the tires are regularly used or stored.  A great example of this is a spare tire that does not receive regular use but may have all of its tread depth and, from all appearances, seems to be a new and safe tire to use.  However, through significant research, the National Highway Traffic Safety Administration (NHTSA) has determined that tire aging can be a considerable safety factor.

Most tire and auto manufacturers have determined that tires should be replaced after six years.  This recommendation includes tires that are routinely used and spare tires.  For maximum tire performance, tire manufacturers recommend rotating the tires at least every 6,000 miles and checking the tire pressure every thirty days.  Checking tire pressure has been easier for vehicles manufactured since 2007 with the requirement that each vehicle includes a Tire Pressure Monitoring System (TPMS), which provides consumers with an alert when a tire is underinflated.

Tire aging occurs when the ability of the tire to resist oxygen penetration that causes the rubber to break down on a molecular level decreases over time.  A tire’s inability to resist cracking over time allows the rubber to harden and become brittle, thereby losing its strength and increasing the likelihood of a catastrophic failure.  For this reason, it is important to check the DOT code stamped on the side of the tire, which provides the date on which the tire was manufactured.  The stamped date code is a four-digit number that includes the week of the year the tire was manufactured and the last two digits of the year it was manufactured.  For example, if the DOT code was “4920,” the tire was manufactured in week 49 of 2020.

NHTSA has also determined that warmer parts of the U.S. are more susceptible to the effects of tire aging.  The hotter the climate, the more likely a tire will experience premature aging, which breaks down the protective ingredients in the rubber faster than in cooler climates.  For this reason, it is essential to check the status of your tires as the summer begins so that you can ensure safe travel to summer destinations during the hot weather.  It is also good practice to start the summer season by visually inspecting your tires and having a tire service center check the air pressure and age of the tires.

If you need more information, contact Ben Baker, a lawyer in our Personal Injury & Products Liability Section.

Sources: “Tire Aging: A Summary of NHTSA’s Work,” March 2014, Discounttire.com/learn/tire-safety

NHTSA Reports Hundreds Of Crashes Linked To Self-Driving And Driver-Assist Technology

The National Highway Traffic Safety Administration (NHTSA) said on June 15 that in 10 months, nearly 400 car crashes in the nation involved advanced driver-assistance technologies, The New York Times reported. This was the agency’s first release of large-scale data about these systems. In 392 incidents cataloged by the NHTSA from July 1, 2021, through May 15, six people died, and five were seriously injured.

Teslas operating with Autopilot were in 273 crashes. Five of those Tesla crashes were fatal. About 830,000 Tesla cars in the country are equipped with Autopilot or the company’s other driver-assistance technologies. Nearly 70% of the reported crashes involved Tesla vehicles.

The NHTSA data noted other automakers’ vehicles were involved in self-driving incidents, including Honda (90 incidents) and Subaru (10 incidents). There were five or few for each of the following: Ford, G.M., BMS, Volkswagen, Toyota, Hyundai and Porsche.

Last year, NHTSA ordered automakers to report crashes of cars with advanced driver-assist systems (ADAS), or Level-2 automated driving systems. The NHTSA data released last month is considered helpful and could prompt further action to better protect consumers.

Source: New York Times

AAA Study Finds AEB Systems Are Rushed To Market

The American Automobile Association (AAA) – a nonprofit organization that advocates for safer vehicles and roads – has studied the effectiveness of automatic emergency braking (AEB), an advanced driver assistance system intended to prevent or mitigate vehicle collisions.

AAA studied how AEB systems performed during certain road conditions, such as a slow-moving lead vehicle, an oncoming vehicle, or pedestrians crossing in front of the vehicle’s path. All vehicles passed the first test, but all failed the second one, colliding with an oncoming vehicle fifteen out of fifteen times. Likewise, a collision occurred five out of fifteen times a pedestrian crossed in front of the test vehicle’s path.

AAA’s study concludes that the AEB systems studied need further improvement and were rushed to market. Namely, the study finds the need for additional improvement in the vehicles’ ability to detect and steer around certain obstacles. Without further refinement, the study concludes that the AEB systems pose a significant safety concern.

Last year, a AAA study found that automakers needed to improve their driver education programs, finding that most consumers don’t understand how the systems work or their limitations.

Beasley Allen lawyers Dee Miles, Clay Barnett, Mitch Williams, and Dylan Martin represent owners and lessees of 2017 or newer Nissan vehicles with defective AEB systems. These systems falsely detect obstacles and apply the brakes, often on public roads with little to no warning. That case has progressed through discovery, and class certification briefing will be completed by the end of the year. We will keep our readers up to date on further developments in this case and AEB technology. Stay tuned!

Source: carcomplaints.com

Hyundai Recall: 239,000 Cars Have Seat Belts That Could Explode

Hyundai is recalling 239,000 vehicles due to seatbelts that have the potential to explode and injure passengers. Three injuries have been reported as a result, with two in the United States and one in Singapore, according to CBS News.

The National Highway Transportation Safety Administration told the Korean automaker that the driver’s and front passenger seat pretensioners, which tighten seatbelts before a crash, can explode while in use. Such an explosion will send shrapnel flying throughout the vehicle.

According to a recall notice from NHTSA, approximately 61,000 2019-2022 Accents, 12,000 2021-2022 Elantra HEVs, or hybrid electric vehicles and 166,000 2021-2023 Elantras are affected under the recall.

Source: NJ.com

Federal Investigation, Multiple Deaths Prompts Goodyear RV Tires Recall

A National Highway Traffic Safety Administration (NHTSA) investigation citing multiple deaths has prompted Goodyear Tire & Rubber Company to recall tires it made between 1996 and 2003, according to The Washington Post. The tires were used on recreational vehicles.

The investigation, launched in 2017, shows the tires failed more frequently than other tires and that Goodyear knew about the defective tire even during production. In February, the agency issued a letter to the company explaining that “[i]t appears that Goodyear was aware of a safety defect in the … tires as early 2002 while the tires were in production but did not file a recall.”

NHTSA said the defect is “a clear, identified failure that leads to a loss of vehicle control, causing crashes and potentially catastrophic consequences such as death and serious injury.” Goodyear responded to the agency in March, saying there is “no evidence of an actual defect in the tire” and noted that the tire “has likely been out of the market for years.” Goodyear attempted to blame RV Makers declaring that they had been charged with recalling tires used on their vehicles.

At first, Goodyear refused to recall the tires, but its regulatory filing in May reflected that it conceded to regulators. The filing noted that 173,237 tires were potentially involved. Goodyear said it will recall the tires “to address concerns that some of these tires may still be in the marketplace or in use.” It attempted to downplay its liability for the defective tires explaining that “tread separations” occurred because of motor home makers’ specifications and “overloading and underinflation common” among motor home drivers.

Goodyear agreed to replace the tires on RVs or pay $500 for uninstalled tires. The Washington Post reported that “he recalled tires are part of Goodyear’s G159 tire line. The affected size is 275/70R22.5, according to the company.” NHTSA urges those who own, rent, or use an RV or truck with 22.5-inch rims to ensure these tires “are not in use on their vehicle.”

Source: Washington Post

2.9 Million Ford Vehicles Recalled Over Gear Shifting Defect

A defect in 2.9 million Ford vehicles can prevent the vehicles from shifting into the correct gear, resulting in movement in an unexpected direction, such as rolling even when the driver puts the vehicle into park. The defect is at the center of a new Ford Escape and Fusion recall.

According to NBC News, the recall affects Escape models from 2013 to 2019; C-Max from 2013 to 2018; Fusion from 2013 to 2016; Transit Connect from 2013 to 2021; and the Edge from 2015-2018, according to safety regulators.

The problem involves a bushing that attaches the shift cable to the transmission, which may degrade or detach, according to a recall notice posted by the National Highway Traffic Safety Administration (NHTSA). The vehicle may also roll after the driver selects the “Park position,” according to the notice. NHTSA says in the notice that either scenario can cause a crash.

Ford was scheduled to send letters to consumers on June 27 warning of the defect. The company intends to address the issue in affected vehicles for free by replacing the bushing and adding a protective cap. Ford provided information to NHTSA showing that it knows about four reports of alleged injuries and six reports of property damage possibly associated with the defect. The Ford Escape has the largest number of affected vehicles (1.7 million), and the Edge falls in second place for the number of affected vehicles (509,400).

Source: NBC News

Ford Halts Mustang Mach E Deliveries By Dealers

Ford Motor Co. has temporarily halted deliveries of the Mustang Mach-E over a potential safety defect. It is working with the National Highway Traffic Safety Administration (NHTSA) to recall the vehicle. This is seen as a setback for the carmaker as it tries to fortify its position as a leader in electric vehicles. Ford is recalling 48,924 Mach-Es from the 2021 and 2022 model years made at its plant in Cuautitlan, Mexico. Ford said dealers can still sell the car but cannot deliver it to buyers until the defect is fixed.

The Mach-E, a battery-powered crossover SUV, landed Ford in second place behind Tesla last year for electric vehicle sales. The company sold 27,140 models last year, and sales in 2022 are up 50% to 15,718 units. May was its best month for sales so far.

Ford claims there are no open NHTSA investigations due to the problem, which could be linked to the possible overheating of high-voltage battery main contactors. This defect can cause vehicles to lose power while in motion or fail to start. It’s quite evident that Ford is attempting to be a real leader in the “EV Marker.” But safety must be a top priority for the automaker in this venture.

Source: CNBC

A Recap Of The $7 Million Verdict Against Ford

When the average American hears the term “car safety,” they think about driver and passenger conduct: using turn signals, obeying speed limits, and avoiding cell phone use. Many people, if not most, assume that government standards ensure protection against defective automobiles. They believe that if their car is defective, someone, especially somebody from the automaker or the federal government, will tell them about the defect.

That view is incorrect. In the U.S., compliance with the Federal Motor Vehicle Safety Standards does not constitute a defense in a product liability lawsuit. Along with the public-interest groups that promote automobile passenger safety in Washington, the plaintiff bar plays a vital, quasi-regulatory role in the American automobile safety network. Unfortunately, that enforcement mechanism is only available following physical injury or death. The recent trial in West Virginia that we wrote about last month is a prime example of that reality.

That case involved the death of 19-year-old Breanna (“Bre”) Bumgarner. On March 22, 2016, Bre died while trapped in a 2014 Ford Mustang. She was conscious, healthy, and did not have so much as a broken bone following the collision. Bre died when flames engulfed the Mustang passenger compartment and, in turn, the occupant.

Ford was aware that the 2014 Ford Mustang had a safety issue that left occupants susceptible to entrapment and death by fire. Ford opted for a slick body design and a legacy design rather than maximizing occupant safety by incorporating the appropriate safety design features in the vehicles. Ford’s failure ultimately resulted in Bre Bumgarner dying a horrible death. It was an honor for our firm to obtain a verdict that will change the lives of her surviving family members.

Hopefully, Ford learned a needed lesson on safety and corporate responsibility as a result of this trial and verdict. Additional news on the subject will be shared in the future. If you need more information on the case, contact Preston Moore.

BIG TRUCK ACCIDENT LITIGATION

Log Truck Driver And Trucking Company’s Negligence Led To Fatal Accident

Chris Glover of Beasley Allen’s Atlanta office recently filed a trucking lawsuit stemming from an accident in Gwinnett County, Georgia.  He represents the family of Keith Tumlin. Keith was driving home from the airport after dropping his mother off for an early morning flight.  At the time, it was still dark, and the weather conditions were foggy.  Keith was traveling in a 2017 Kia Sportage in the righthand lane.  A commercial motor vehicle carrying a load of logs had been pulled off the roadway for the driver to check on some equipment.  The logging truck re-entered the road and was in the process of gaining roadway speeds when Keith ran into the rear of the truck.

The logging truck was retrofitted with a several-feet-long steel extension off the trailer.  This extension impaled Keith’s vehicle and dragged it over 300 feet to its final resting position.  Keith was severely injured and was pronounced dead at the scene.  The driver of the 18-wheeler was uninjured.

This motor vehicle accident implicates not only the driver of the truck but also the trucking company that employed him.  The truck driver failed to consider the poor visibility conditions when re-entering the roadway.  Trucking companies have a duty to hire, train, and supervise their drivers to ensure that large commercial vehicles like the one involved in this accident are operated in a manner that follows Georgia law and prioritizes the safety of those with whom they share the road. The defendant trucking company failed at this duty, and as a result, Keith lost his life.

If you have questions about this or any trucking case, contact Chris Glover.

The Beasley Allen Truck Accident Litigation Team

There have been a record-breaking number of people killed in recent years by big trucks in the U.S. More than 5,600 people were killed in 2021 in crashes involving large trucks – a 13% increase over 2020 – the largest number in almost four decades. Records for deaths are being set, and that’s bad news for the American people.

Beasley Allen has been successfully handling major big truck litigation for years. The cases are handled by lawyers in the firm’s Personal Injury & Products Liability Section, headed by Cole Portis. Many truck cases involve complicated products liability issues that are quite often overlooked and missed by lawyers who don’t regularly handle product liability litigation. Most truck cases involve speed, inattention, fatigue, and other driver issues. But there will be accidents where a products liability issue will also be involved in causing the accident.

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

AN IMPORTANT COURT RULING IN GEORGIA

Georgia Supreme Court Orders Deposition Of GM CEO To Proceed

The Georgia Supreme Court ruled against General Motors, LLC (GM) on June 1, 2022, declining to adopt the “apex doctrine” as Georgia law.  GM’s appeal stemmed from a discovery dispute as to whether the plaintiff in a product liability and wrongful death case could take the deposition of GM’s CEO, Mary Barra.  The trial court denied GM’s motion for protective order, and GM appealed.  The Georgia Court of Appeals affirmed the trial court’s denial.

GM urged each court to adopt the “apex” doctrine, or some variation thereof, for determining whether good cause exists for granting the protective order.  The apex doctrine, where it exists, is applied when considering protective orders against the depositions of high-level corporate officers or government officials.

There are four general factors applied by the apex doctrine, including (1) whether the deponent is a sufficiently high-ranking executive considering her role and responsibilities in the organization; (2) the extent to which the facts sought to be discovered in the deposition are properly discoverable; (3) whether the executive has unique personal knowledge of relevant facts; and (4) whether there are alternative means, including written discovery or depositions of other witnesses such as a 30(b)(6) witness by which the same facts could be discovered.

One concern for those opposing the standardization of the apex doctrine is that many courts applying it shift the burden of proof to the party requesting discovery, away from the party opposing it.

In considering (and rejecting) GM’s arguments for the apex doctrine, both the Court of Appeals and Georgia Supreme Court recognized that Georgia’s discovery rule has a broader reach than the corresponding federal rule.  The Georgia Supreme Court ultimately declined to adopt the apex doctrine, finding that “[a]dopting the apex doctrine would necessarily restrict the trial court’s discretion by placing a thumb on the scale so as to suggest a special rule for high-ranking executives of large companies that exists nowhere in the Civil Practice Act, and would contravene the principle of broadly available discovery under Georgia law.”

The Supreme Court concluded that, instead, trial courts should consider on a case-by-case basis whether the evidence demonstrates good cause for the protective order.  An official’s high rank alone does not warrant consideration for good cause.  Instead, the Georgia Supreme Court concluded that trial courts may consider, among other factors, whether the executive’s high rank, lack of unique personal knowledge of relevant facts, and the availability of information from other sources demonstrate good cause for a protective order under OCGA § 9-11-26.

The Court declined to hold that a trial court must find that good cause is presumptively or conclusively established in each instance that a movant has demonstrated that an executive is “sufficiently high-ranking” and lacks unique personal knowledge of discoverable information through other means.  Instead, even a trial court may deny a motion for protective order on a finding of no good cause shown.

The Supreme Court nevertheless vacated the Court of Appeals’ judgment, finding that the trial court failed to indicate what it considered in denying the motion for protective order and remanded for reconsideration consistent with its opinion.

Source: Law360.com

PRODUCT LIABILITY UPDATE

There Have Been Over 750 complaints Of Tesla’s Braking For No Reason

The National Highway Traffic Safety Administration (NHTSA) is taking action on complaints lodged by U.S. Tesla owners against the company over its partially automated driving systems. The agency posted a letter last month on its website that it sent to Tesla requesting information and noting that over 750 complaints have been lodged with federal regulators against the automaker, according to the Associated Press.

NHTSA said: “Complainants report that the rapid deceleration can occur without warning, and often repeatedly during a single drive cycle.”

The agency began investigating phantom braking in February 2021. It has been focusing its probe on Tesla’s Models 3 and Y and covers approximately 416,000 2021 and 2022 model year vehicles. NHTSA is specifically concentrating on vehicles equipped with automated driver-assist features, including adaptive cruise control and “Autopilot.” Those features allow the vehicles to brake and steer within their lanes automatically. One year after NHTSA launched the investigation, it reported that it had not received any reports of crashes or injuries.

In the letter, NHTSA asks for a great deal of information about the automated systems and phantom braking. The agency has requested all consumer and field reports about false braking and reports of certain events such as crashes, injuries, deaths and property damage claims. NHTSA is also seeking information showing whether the “Full Self-Driving” and automatic emergency braking systems were active at the time of any incident.

Further, NHTSA asked for a detailed assessment of the “alleged defect” causing failed breaking events, including what failed and how the problem impacts safety. The letter also asks Tesla “what warnings, if any, the operator and the other persons inside and outside the vehicle would have that the alleged defect was occurring, or the subject component was malfunctioning.”

NHTSA gave Tesla until June 20 to respond to the information request. However, the company was able to ask for an extension, and it appears it did so.

Source: Associated Press

WORKPLACE LITIGATION

On the Job Injuries: Chemical Exposure

Chemicals on job sites pose a wide range of health hazards to employees working in proximity to them.  These hazards include flammability, irritation, and carcinogenicity, to name a few.  To help reduce these risks to workers, the Occupational Safety and Health Administration (OSHA) has enacted regulations to help employers recognize and address hazards associated with dangerous chemicals.  These regulations are broken down by both types of industry and specific best practices depending on the given hazardous chemical.

The first step OSHA requires employers to do is educate employees on the chemicals at a given site.  OSHA refers to this as the Hazard Communication Standard or HCS.  Every employer utilizing hazardous chemicals is required to educate and train employees to ensure that information and associated protective measures are disseminated to workers.  The types of chemicals present must be identified and maintained through a safety data sheet.  From there, the HCS requires employers to train employees on proper measures to protect themselves.

OSHA further directs employers on the proper method for controlling exposure.  Much like proper machine design and guarding, chemical exposure prevention follows a hierarchy.  The first step an employer must take is either eliminating or substituting the hazardous chemical for a safer alternative.  If this can not be done, the employer must implement engineering controls to reduce exposure risk.  This can be accomplished by physical guarding, isolating the chemical, or dilution to safe levels.  The next step in the hierarchy is implementing administrative and work practice controls.  This may require employers to rotate job assignments to prevent workers from overexposure to a hazardous chemical.  Finally, employers must supply and require employees to use personal protective equipment (PPE).  PPE, as it relates to exposure, is typically chemical protective clothing, including gloves, eye protection and respirators.

Beasley Allen lawyers are working on a chemical exposure case resulting in severe chemical burns to a contractor working at a paper mill.  The contractor was on-site for maintenance outside of the facility when he slipped and fell on a wet surface.  The liquid, which our client believed to be rainwater, was a highly dangerous chemical.  Due to a lack of proper containment, the hazardous chemical was released in a high foot traffic area and caused our client to suffer greatly.

If you need additional information or would like to discuss a potential case, contact Evan Allen, a lawyer in our Mobile office.

Automated And Robotic Machine Injuries

As technology advances and issues with labor shortages and an aging workforce grow, many businesses are turning to automation to increase productivity.  Many jobs that workers once manned are completed by robots and sophisticated automated processes.  Although this technology decreases the total number of workers on the plant floor and can reduce grueling manual labor, those remaining workers have a new set of occupational hazards for which to account.

Automated and robotic machinery runs on what is known as programmable logic controls (PLC).  PLCs are essentially the set of commands that the designer or programmer of the equipment instructs the automated machinery to follow.  When operating properly, the machine works without real-time human control or intervention.  However, issues often arise when the workforce is required to interact or intervene in some way with the automated equipment running on the PLC.  According to the Occupational Safety and Health Administration (OSHA), there are four primary categories of hazards involving robotics and automated machinery.  Those are:

• Impact or collision accidents: Automated machinery controlled only by programable logic often move or starts with little or no warning.  Unlike machines of old that were operated by a human who may have a watchful eye, automated equipment only starts and stops as it is programmed to do.  Robotic arms or conveyors can strike workers without warning.
• Crushing and trapping accidents: Similar to impact collisions, workers can be pinned or crushed by PLC-controlled automated robotic equipment and other machinery without warning.
• Mechanical part accidents: As with all machines, automated machinery and robotics break down and malfunction.  Many on-the-job injuries occur when repairing equipment or after a working automated machine drops products or goods.
• Other accidents: OSHA recognizes burns, shocks, the release of pressurized fluids and other hazards associated with automated equipment as a significant cause of injuries.

Beasley Allen lawyers have handled countless on-the-job injury cases involving defective automated robotics and machinery.  Recently, an employee at a manufacturing facility suffered catastrophic injuries to his arm when a PLC-controlled saw malfunctioned.  As anyone who has used a computer knows, computer software and programs glitch.  Unfortunately for our client, this program malfunction cost him far more than the typical computer user’s frustration and aggravation.  As the need for productivity and efficiency increases, automated equipment and the injuries they cause will only become more commonplace.

If you need additional information or would like to discuss a potential case, contact Evan Allen, a lawyer in our Mobile office.

AVIATION LITIGATION

Recent Osprey Crash Shows Similarity To Firm’s Previous Cases

A dangerous and defective military aircraft has claimed five more U.S. Marines. The Marines were on board an MV-22 Osprey that crashed near the Glamis community in California on June 9, The Washington Post reported. The area is in the desert east of San Diego and north of the Mexican border. The aircraft was part of the 3rd Marine Aircraft Wing based in California and was conducting a training mission. The incident is under investigation, and the cause has not been disclosed. Yet, a string of accidents involving the aircraft underscores its questionable safety record.

The Washington Post reports that “more than 40 people have died while flying on Ospreys since 1991.” The media outlet notes that the most recent Osprey crash before the one last month was in March during NATO exercises in Norway. The crash killed four American service members, and the cause also remains under investigation. The deadliest Osprey crash occurred in April 2000, killing 19 Marines. The cause of that crash was vortex ring state.

With its tilt-rotor technology, the Osprey is designed to function as both an airplane and a helicopter. Yet, the Osprey’s design is a compromise between two incompatible mechanical designs. The rotor blades are twisted more than a typical helicopter’s blades so they can function better when flying like an airplane. Additionally, the blades are shorter than optimal, so the Osprey can land on ships at sea. These design defects can increase the risk of a phenomenon known as the vortex ring state. This phenomenon creates significant downwash, and because the Osprey doesn’t have the power it needs to overcome the downwash, it loses altitude too quickly, preventing it from landing safely.

Another persistent problem with Ospreys is “turbine blade glassification.” This occurs during a brownout situation in a dusty setting such as a desert or beach area. The aircraft’s design requires it to hover as it attempts to land. The Osprey pulls in large amounts of reactive sand that melts at high temperatures. This caused a crash that killed two Marines in 2015.

In May 2015, the two Marines died in an Osprey crash at Marine Corps Training Area Bellows, Hawaii. While attempting to land during a training mission, the aircraft “hovered twice for brief periods of time in severe brownout conditions.” One of the two Marines who was killed was Lance Cpl. Matthew Determan. Mike Andrews, a lawyer in the firm’s Personal Injury & Product Liability Section who heads up our firm’s aviation litigation, represented Determan’s family. Mike has handled several cases involving the Osprey. Mike said:

It’s hard to watch this happen time and again and know the defective aircraft remains in use, putting more of our service members at risk.

If you would like to have more information on the above or any aspect of aviation litigation or you need help on an aviation case, contact Mike Andrews.

Sources: USA Today

THE TALC LITIGATION

Third Circuit To Hear Appeals In Johnson & Johnson Subsidiary Bankruptcy Case

The appeals process in relation to the bankruptcy of Johnson & Johnson’s (J&J)’s LTL Management subsidiary is continuing to advance after a federal appellate court agreed to hear appeals brought by talc claimants. Rather than proceed to the district court, the appeals of the Official Talc Claimants Committee and other talc claimants will proceed directly to the U.S. Court of Appeals for the Third Circuit after U.S. Circuit Court Judge David J. Porter granted talc claimants’ request for a direct appeal. Judge Porter, in his order, recognized the need to address the issues involved in this case with haste since the court’s decision could have wide-reaching effects on many other current and future litigations.

The appeals seek reversal of U.S. Bankruptcy Judge Michael B. Kaplan’s decision allowing J&J’s subsidiary, LTL Management LLC, to proceed in bankruptcy and his decision enjoining all talc-related litigation against non-debtor defendants, including the parent company, J&J. The Talc Claimants’ Committee sought to dismiss the bankruptcy, arguing it was a bad faith filing made to gain a litigation advantage and avoid liability. While Judge Kaplan ruled that LTL’s spinoff and ensuing bankruptcy were proper, he also recognized that the issues surrounding this bankruptcy were important enough to certify the appeal directly to the circuit court.

LTL Management LLC was created in October 2021 through a controversial legal liability maneuver widely known as the “Texas-Two Step.” This involves spinning off a unit or units of a company and then transferring all of the legal and tort liability the company faces for a specific product or line of products to that entity, leaving the parent company unaffected by the ensuing bankruptcy. Lawmakers, plaintiffs, and lawyers throughout the country have criticized the procedure as an abuse of the bankruptcy system and have pushed for change. It should be noted that J&J has a market capitalization of some $465 billion. So far, J&J has successfully shielded the vast majority of its assets from exposure by transferring its talc liabilities into the LTL subsidiary and leaving only a fraction of the company’s assets available for settlement purposes.

J&J is currently facing a tremendous amount of litigation as victims have initiated over 38,000 talcum powder claims against the company to date. The majority of these cases are still pending, and countless additional claims will be filed in the future. The science supports it, and plaintiffs are able to prove at trial that talcum powder products can cause ovarian cancer and mesothelioma. Not only does talc itself have a carcinogenic effect, but talcum powder is also contaminated with asbestos, a fact that J&J has hidden for decades. Thus far, the litigation has cost J&J over $1 billion in legal fees and $3.5 billion in settlements and verdicts. Mediation between the parties is ongoing while the bankruptcy case and appeals continue.

Talc Claimants Move To Lift Bankruptcy Stay

Plaintiffs’ lawyers have moved to lift the bankruptcy stay on lawsuits over Johnson & Johnson’s (J&J) baby powder. This came after U.S. Bankruptcy Chief Judge Michael Kaplan mentioned the settling of trials, which might get the parties closer to a settlement, and that is seen by Beasley Allen lawyers as a good thing.

Judge Kaplan of the District of New Jersey oversees the Chapter 11 filing of J&J subsidiary LTL Management in New Jersey. The judge told lawyers at a May 24 status hearing that, after speaking to one of the mediators, “We are, it’s fair to say, not as far along as he would have liked.” Judge Kaplan continued, underscoring the need for progress in the litigation, “I don’t want to abandon the mediation efforts.”

He plans to confer with the judge overseeing the talc multidistrict litigation in New Jersey, U.S. District Judge Freda Wolfson. Judge Kaplan explained that he wants “to see where we left off in bellwether cases, if that’s a possibility, or if there is a small segment of cases that should go forward, or whether nothing should go forward.”

Subsequently, after those remarks, lawyers for the Official Committee of Talc Claimants (TCC) suggested lifting his Feb. 25 order granting a preliminary injunction on all 38,000 talcum powder cases, including those against third parties like Walmart, Target, Safeway and other retailers. Judge Kaplan was due to reexamine that order by June 29. Daniel Stolz, a partner in a June 10 filing for the TCC, wrote:

The TCC and its professionals have been hard at work attempting to identify an appropriate ‘segment’ of the pending talc cases, which would be appropriate and suitable for the court to terminate application of the automatic stay and the application of the preliminary injunction so as to allow trials of these cases to proceed forthwith.

Andy Birchfield, the Beasley Allen lawyer who heads the firm’s Mass Torts Section and who has a client on the TCC, had this assessment:

There are a mix of clients who are dying, and those who are ready for trial, who would be considered should Judge Kaplan lift the bankruptcy’s automatic stay. We’re hoping that he is going to allow cases to proceed to trial and he will just open up that opportunity to claimants. We anticipate there will be 150-200 cases that would be in that category. We’re still in the process of reaching out to law firms that have cases and which are being worked up for trial.

You will recall that as part of the LTL Management bankruptcy, Johnson & Johnson offered to compensate cancer victims with a $2 billion trust fund. Plaintiffs’ lawyers fought to dismiss the Chapter 11 filing, which Judge Kaplan denied on Feb. 25. The judge then granted a preliminary injunction. Both orders are before the U.S. Court of Appeals for the Third Circuit. In a June 10 status report, LTL Management suggested an alternative plan to reach a mediation: an estimation hearing that would come up with an aggregate value of the talc claims.

The TCC, in its filing, called an estimation hearing “legal quicksand” and unnecessary, given that LTL Management has access to a $61 billion funding agreement. Andy Birchfield, commenting on the proposal, had this to say:

LTL Management’s proposal is designed to “re-litigate the science and the medical issues. One of the things that I think became really clear with LTL’s filing on Friday, and that is what we had suspected all along, is that J&J and LTL they are pursuing a course of delay. And their plan is they want all the talc claimant lawsuits, all these trials, put on hold for a long, long time. And while talc claimants are dying there will just be stuck there in bankruptcy court.

There are also motions on the status conference agenda involving mesothelioma clients. They are attempting to lift the stay for two mesothelioma claims.

Source: National Law Journal

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 are focused on J&J’s abuse of the bankruptcy system. The following Beasley Allen lawyers are members of the Talc Litigation Team:

Leigh O’Dell, Ted Meadows, Kelli Alfreds, Ryan Beattie, Beau Darley, David Dearing, Liz Eiland, Jennifer Emmel, Jenna Fulk, Lauren James, James Lampkin, Caty O’Quinn,  Cristina Rodriguez, Brittany Scott, Charlie Stern, Will Sutton and Matt Teague.

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

Opioid Litigation Update

A bellwether case in the Federal Opioid MDL continues to proceed against opioid manufacturers Allergan and Teva in San Francisco. Despite a guilty plea between Teva subsidiary Cephalon and the U.S. Department of Justice in 2008, testimony in the case reveals that Teva and Cephalon continued to market its fentanyl lollipop, Actiq, and lozenge Fentora off-label.

Off-label marketing is promoting a product for uses not indicated in the label approved by the Food and Drug Administration (FDA) for a prescription product.  It is unlawful for a manufacturer to market its product for off-label use.  It is especially unethical to do so in the context of extended-release or long-acting opioid products such as Actiq and Fentora, approved only for treatment of breakthrough pain caused by cancer where the patient has already become tolerant to other less potent drugs.

Because fentanyl is so potent and much more powerful than morphine, it creates a greater risk of addiction and death in an opioid-naïve patient, hence limiting the reasons for prescribing the medication.

Allergan, Teva’s codefendant, faces claims it misbranded its opioid product Kadian, for which it received a warning letter from the FDA. The FDA accused Allergan’s 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 represents the State of Georgia against these two defendants in its opioid litigation.  The trial is scheduled for April 2023.

JPML Rejects Opioid MDL Expansion

The Judicial Panel on Multidistrict Litigation (JPML) has rejected requests from CVS Pharmacy, Walgreens and Walmart to rethink its decision capping the multidistrict opioid litigation. Predictions by the drugstores that opioid cases will spread chaotically in courts across the country were rejected by the JPML. Law360 explained that in a ruling on June 2, “the panel refused to reverse its April order shutting the MDL’s doors to future opioid cases, explaining that the pharmacies ‘have not demonstrated any significant change in circumstances to justify reconsideration.’”

In 2017, the JPML consolidated more than 3,000 opioid cases in the Cleveland federal court. In stopping the transfer of additional opioid cases to the Cleveland court, the panel explained that it recognized the retail pharmacies’ concerns, for example, an expansion of claims outside of the MDL. JPML members wrote: “At the time of our decision, we were aware of the points stressed by the advocates of reconsideration here.” The panel also refused to create an entirely new MDL for opioid cases against the three companies.

When the panel announced in early April that no additional opioid cases would be sent to the Cleveland court, it found that there had been sufficient progress toward key MDL goals involving discovery, bellwether proceedings and comprehensive settlements with some drug companies. CVS, Walgreens and Walmart subsequently sought reconsideration, arguing that the MDL’s framework “prevents a flood of cases from being scattered across the courts in an uncontrolled fashion that may overwhelm parties, witnesses and judges alike.”

Some opioid cases have already reached advanced stages outside the MDL, but states have typically brought them. The MDL is primarily focused on suits filed by cities and counties.

U.S. District Judge Dan Aaron Polster, who supervises the MDL, has written separately this year that centralization facilitates the resolution of opioid cases, telling the Sixth Circuit that “to allow [drug companies] to secure a global settlement, it was imperative that I control their exposure to litigation in all courts.”

The panel said that “substantial efficiencies remain attainable” in the MDL and that its order “does not impede litigation or settlement activity” in the 3,000-plus transferred cases.

Four companies — Johnson & Johnson, AmerisourceBergen Corp., Cardinal Health Inc. and McKesson Corp. — have publicly reached global settlements, and others, including Endo and Teva, have been seeking such settlements. CVS, Walgreens and Walmart have publicly said nothing about the prospect of national settlements.

A plaintiffs’ committee in the opioid MDL told the panel in May that it “wholeheartedly agrees with the pharmacy defendants that much work remains,” adding that “partly due to defendants’ intransigence, national discovery remains incomplete.” The committee took no position on reconsideration but said it “strenuously objects” to the idea of a “two-MDL multiverse.”

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

The Beasley Allen Opioid Litigation Team

Beasley Allen’s Opioid Litigation Team continues to work on a large number of existing cases. There has been no slowdown 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

U.S. Supreme Court Will Review DOJ Authority To Dismiss FCA Suits

A whistleblower asked the U.S. Supreme Court to provide guidance on the U.S. Department of Justice’s (DOJ)’s authority to intervene in a False Claims Act (FCA) case when it originally refused to do so, Law360 reported. Jesse Polansky also asked the Court to clarify the standard courts should use for considering motions from the government to dismiss whistleblower cases, noting a circuit split on the issues.

Polansky was a consultant for UnitedHealth unit Executive Health Resources Inc., now known as Optum, a health care billing certification company. In 2012, he filed suit, accusing his former employer of working with hospitals to overbill federal health care programs. The scheme involved certifying inpatient care when the services could have been provided as outpatient services for a lower cost.

In 2014, the DOJ declined to intervene, allowing the case to be unsealed. However, five years later, the agency reversed itself and moved to dismiss Polansky’s case. The DOJ has broad authority to seek dismissal of whistleblower FCA cases, for example, when it believes the case lacks merit or could create unfavorable case law.

The Third Circuit affirmed a lower court’s dismissal of the lawsuit in October 2021, determining that the DOJ can intervene at any time in an FCA case and seek its dismissal. By initially refusing to intervene in the case, Polansky argued that the government had abandoned its right to intervene, allowing him, giving the whistleblower the lone discretion to continue the case. The Third Circuit rejected Polansky’s argument. It ruled that the government must intervene in an FCA claim before dismissing it, but it can seek dismissal of such a claim anytime during the case “upon a showing of good cause.”

The government and EHR submitted briefs to the Court in May, fighting Polansky’s request that the Court review the case. Their briefs contend that the issues in question were “minor” or “modest.” The opposing parties’ arguments did not sway the Court.

Polansky is represented by Daniel L. Geyser of Haynes and Boone LLP, Stephen Shackelford Jr., Mark Musico and Nicholas C. Carullo of Susman Godfrey LLP and William T. Jacks of Fish & Richardson PC.

The case is U.S. ex rel. Polansky v. Executive Health Resources Inc. et al., case number 21-1052, in the Supreme Court of the United States.

Source: Law360.com

FCA Pleading Split Is Before High Court

There is another important matter before the U.S. Supreme Court relating to False Claims Act (FCA) litigation. Currently, three cases are before the court asking the justices to weigh in on the long-standing circuit split to determine the correct pleading standard for whistleblowers related to the particularity requirement of the FCA.

Those cases, Johnson v. Bethany Hospice, Molina Healthcare v. Prose, and Owsley v. Fazzi Associates, highlight the split between the circuits in their filings to the high court. Previously, the court has shown interest in weighing in on the circuit split but considered taking a position “premature” as recently as 2010 and 2014. The litigants and the justices now seem interested in determining the correct standard, once and for all.

The Department of Justice (DOJ) claims that the “courts of appeal have largely converged to a more flexible standard” and that the “disagreement has now subsided.” The DOJ blames the differences in the outcomes of FCA cases on the fact-intensive issues at play in FCA cases for an apparent circuit split. The DOJ wrote an amicus brief for the Supreme Court to discuss its position on the alleged split. While DOJ’s opinion on the split likely carries weight with the Court, the ability to overcome the evidence of a split remains unclear.

As this situation develops, Beasley Allen’s Whistleblower Litigation Team will monitor the status of the Supreme Court’s decision over whether it will assess the appropriate pleading standard for fraudulent billing in an FCA case. Stay tuned!

Source: Law360.com

Two FCA Settlements Highlight The DOJ’s Cyber Liability Focus

Two recent False Claims Act (FCA) settlements involving cybersecurity point to a new front of potential cyber liability for companies doing business with the government. This comes amid a number of high-profile cyber incidents and government warnings about cyber threats to critical infrastructure. The settlements are summarized below:

The first settlement was on March 8, in which “the U.S. Department of Justice reached a $930,000 settlement with Comprehensive Health Services LLC for falsely attesting that it properly secured medical records relating to U.S. Department of State and U.S. Department of Defense contracts.”

Second, Aerojet Rocketdyne Holdings Inc. settled on April 27 with FCA relator Brian Markus to resolve allegations that Aerojet misrepresented its protections for sensitive information to the Department of Defense and NASA.

Observers say these two cases will likely be the initial wave of FCA litigation involving cybersecurity representations. The FCA is the federal government’s primary vehicle for combatting government contracting fraud, and the scope of potential defendants is broad: Any entity doing business with the federal government, directly or indirectly, can be subject to liability for “submitting or causing the submission of a false or fraudulent claim for payment, or a false certification of compliance with a material legal requirement.”

The government has recovered almost $38 billion under the FCA in the last decade, and about $32 billion has come from litigation against healthcare and life sciences defendants. The DOJ recently set a new priority for FCA enforcement through the Civil Cyber-Fraud Initiative announced in October 2021. The Initiative seeks to penalize companies that jeopardize U.S. information or systems 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.”

The cybersecurity environment is rapidly changing. Companies must comply with new incident reporting regulations and make appropriate time and resource investments to ensure they are meeting their contractual cybersecurity duties. A failure to do so will not only be exposed by a security breach; the government and relators will hold these companies accountable by imposing massive financial penalties.

Source: Law360.com

The Beasley Allen Whistleblower Litigation Team

Fraudulent conduct continues to cause huge problems in many industries in this country. Our firm had increased its healthcare whistleblower practice, for this reason, a good ways back. 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. Our firm obtained a $14 million verdict in Birmingham 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 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). There hasn’t been any slowdown in the whistleblower litigation. In fact, it’s on the increase. 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.

INSURANCE LITIGATION

Ninth Circuit’s Recent Opinion Supports Per Se Antitrust Analysis In The BCBS MDL, According To Providers

Health care providers, plaintiffs in the multidistrict litigation (MDL) alleging antitrust violations against Blue Cross Blue Shield insurers, recently informed the court handling the case that a Ninth Circuit ruling supports providers’ claim (and the court’s prior ruling) that the per se standard of review applies in the case.

The providers said in their notice that the appellate court’s holding in The PLS.com, LLC v. The National Association of Realtors et al. undercuts the BCBS insurers’ contention that the boycott claim in the MDL cannot be judged under the per se standard of review because there is a dispute about the proper definition of the relevant market.

The providers also pointed out that the PLS case further undermines the BCBS insurers’ arguments that the court must decide between the per se and rule of reason standard immediately.

Under the per se antitrust standard, certain conduct is automatically illegal, and the plaintiff need only prove the conduct occurred to win damages. The alternative is the rule of reason test, which allows a defendant to present business reasons for the conduct.

In the ongoing MDL in Alabama, the providers’ motion for partial summary judgment said the per se rule should be used to test the boycott allegations: that the BCBS plans agreed to divide the market among themselves and not compete with one another through a series of trademark licensing agreements and other arrangements.

The BCBS defendants, obviously, disagree with the interpretation of PLS’s impact on the standard of review but do so by reminding the Alabama court that PLS is “an out-of-circuit decision” that is “not binding” on the court and, therefore, “does not affect the standard of review motions pending before” the MDL court.

Of course, providers did not claim the Ninth Circuit decision was binding, but only that it supports their position.  The MDL court had previously decided the per se analysis applied – and reiterated this standard in February of this year – when it comes to pre-subscriber settlement claims.

As part of the subscriber settlement, the National Best Efforts pact was eliminated, which could impact providers damages.  Because that change happened after the close of discovery, the impact has not been the subject of any discovery that could be needed.

This long-running MDL is sure to have a major impact on nearly every (if not every) provider in the United States. And the standard of review decision discussed in this article will impact the course of litigation and trial.

If you have any questions about any part of the above, contact Dee Miles, Rebecca Gilliland or Jessi Haynes, lawyers in our Consumer Fraud & Commercial Litigation Section.

Source: Law360.com

Third-Party Bad Faith Claims Against Insurer

The relationship between an insurance carrier (insurer) and its insured during litigation is often fraught with a delicate balance of interests.  Generally, policy provisions give the insurer the power and discretion to control the defense of any lawsuit against the insured and decide whether a claim will be settled within policy limits.  Alabama law imposes a duty on the insurer to use ordinary care in the exercise of its exclusive right to settle a third-party claim against its insured.  Alabama law also recognizes tort actions for negligence and bad faith arising from an insurer’s wrongful failure to settle a claim against its insured.  A cause of action potentially arises on behalf of an insured when a jury verdict in an amount that exceeds the insured’s available policy limits is entered against the insured.

Negligence occurs when the insurer neglects to exercise ordinary diligence in ascertaining the facts and, as a proximate result of such neglect, fails to make a settlement that is available when such knowledge would have caused a reasonably prudent person to do so, and an excess judgment is rendered against the insured.  Bad faith is the intentional failure to settle a claim.  When an insurer intentionally, or in bad faith, fails to settle a third-party claim within the policy limits, the insurer may be liable to its insured for punitive damages.  A third-party bad faith case is proven when a simple inference can be drawn from all the facts and circumstances that the insurer acted for its own interest alone and intentionally failed to settle a claim within its insured’s policy limits.

If you obtain an excess verdict against an insured, be wary of accepting an assignment of the insured’s negligence and bad faith claims against the insurer as the law does not appear to support such assignment.  Alabama law permits the assignment of contractual obligations and rights; however, negligence and bad faith actions are tortious rather than contractual.  The insured is the proper party to bring an action for negligence and bad faith against the insurer for wrongful failure to settle a claim.

Insurers often place their interest ahead of those of their insured, which results in the insured facing the risk of personal loss due to an excess verdict.  If you have any questions about whether you have a potential third-party bad faith claim, contact a lawyer at Beasley Allen for a free and confidential evaluation of your claim.  You may contact the lawyers on our Bad Faith Litigation Team, Lance Gould, Paul Evans, Rachel Minder or Tyner Helms.

SECURITIES LITIGATION

Cardinal Investors Reach $124 Million Settlement In Opioid Suit

Cardinal Health Inc. investors filed a derivative lawsuit against the company, alleging that it failed to protect itself from liability in the opioid crisis. Law360 reported that the investors asked an Ohio federal court to preliminarily approve a settlement they reached with Cardinal Health Inc. directors. The $124 million settlement is said to be “one of the largest cash recoveries in a derivative settlement ever on behalf of an Ohio corporation.” Court documents show that the directors’ insurers will pay the settlement amount.

Four investors’ complaints were consolidated in March 2020 in an amended complaint, less than a year after Melissa Cohen filed the first complaint. The complaints alleged that “the company breached its fiduciary duties by failing to comply with laws governing the distribution of controlled substances, incurring legal costs when counties, states and the DEA sued the embattled company,” according to Law360.

The investors claimed that the 14 named individual defendants who were current or former board members of Cardinal Health failed to act in Cardinal’s best interest. They allege that the company was allowed “to distribute prescription opioids without fully adhering to the laws governing the distribution of controlled substances, including the Controlled Substances Act (CSA). The investors claim that Cardinal’s directors disregarded “red-flag laws of non-compliance with the CSA and caused the company harm through financial exposure and subsequent federal, state and local government investigations,” Law360 reported.

In 2021, Cardinal and two drug distributors, McKesson Corp. and AmerisourceBergen Corp. were part of a multidistrict litigation over their role in the opioid crisis. The companies settled, and as part of the settlement agreement, Cardinal “implemented comprehensive governance reforms to ensure future compliance with the CSA.”

As part of the investors’ lawsuit, Cardinal will pay attorney fees of 25% of the settlement fund and plaintiff service awards not to exceed $2,500. The court must give final approval to both fee awards.

More than 1,000 other lawsuits name the company of “knowingly participating in the largest drug crisis in United States history by distributing opioid pain medications to the wrong hands.” Cardinal Health has noted the risk to the company’s finances posed by its legal problems in U.S. Securities and Exchange Commission filings.

The investors are represented by Lee Rudy, Eric L. Zagar and Justin O. Reliford of Kessler Topaz Meltzer & Check LLP, by James S. Notis, Jennifer Sarnelli and Meagan Farmer of Gardy & Notis LLP, by Mark H. Troutman and Shawn K. Judge of Gibbs Law Group LLP and by Richard S. Wayne, William K. Flynn and Robert R. Sparks of Strauss Troy Co. LPA.

The case is In Re: Cardinal Health Inc. Derivative Litigation, case number 2:19-cv-02491, in the U.S. District Court for the Southern District of Ohio.

Source: Law360.com

$165 Million Settlement In Investors’ Sales Data Suit Against BlackBerry

Investors in litigation nearly a decade old have reached a settlement with Blackberry Ltd. They have asked U.S. District Judge Colleen McMahon to give preliminary approval to the $165 million deal, according to Law360.

The investors, Todd Cox and Mary Dinzik claim that Blackberry concealed the dismal sales of its Z10 smartphone. They told the judge that a mediator’s proposal helped carve out the settlement the day before jury selection was to begin. If Judge McMahon approves the settlement preliminarily, Blackberry will put $1 million into escrow.

The litigation began in October 2013 but was tossed out in 2015, along with two other claims consolidated with Cox and Dinzik’s. U.S. District Judge Thomas P. Griesa ruled that the plaintiff investors failed to prove their case. The investors renewed their lawsuit in 2017, incorporating information from a criminal trial involving the former executive of a company operating hundreds of Verizon Wireless outlets, James Dunham Jr. He pled guilty to wire fraud in 2015.

Dunham’s guilty plea was over his role in Blackberry’s declining trading prices for the company’s shares. Dunham shared sales data about the Z10 with a financial analyst. The analyst used the information when reporting on BlackBerry, allegedly contributing to the downturn in their trading prices.

In their 2017 complaint, the investors cited the company’s “vigorous denial of the veracity of the [analyst] report.” They also refuted Blackberry’s positive statements about the Z10, referencing records from the Dunham case that “show that defendants’ [positive statements about the Z10] had no reasonable basis — even if they were subjectively believed, which they were not.”

In 2018, Judge McMahon considered the evidence in the Dunham case and found that “it is plausible that defendants had knowledge of facts that contradicted their public statements, or alternatively, defendants failed to monitor the relevant information.”

The investors are represented by Kim E. Miller and J. Ryan Lopatka of Kahn Swick & Foti LLC and David A.P. Brower of Brower Piven PC.

The case is Pearlstein v. BlackBerry Limited et al., case number 1:13-cv-07060, in the U.S. District Court for the Southern District of New York.

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 excited 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

FDA Orders Juul E-Cigs Off Shelves

JUUL’s insufficient and conflicting data about its e-cigarettes and vaping products led the U.S. Food and Drug Administration (FDA) to end its investigation into the company’s products before completion and order it to pull its products from the U.S. market last month. Law360 reported this after a two-year review of JUUL’s tobacco and menthol-flavored vaping products. The agency increased its authority in 2016 to regulate e-cigarettes.

With 40% of a $15 billion e-cigarette market, JUUL has been one of the leaders in the market. Last year, the FDA refused to allow almost 950,000 flavored vaping products after determining there wasn’t enough evidence to show their benefit to the adult market outweighed the public health risk to teens. The agency’s data showed that in 2020, 8 out of 10 juvenile vapers use flavored products and 3.6 million middle and high schoolers used e-cigarettes. The data supported the FDA’s concerns that candy-like and fruity flavors were too appealing to young consumers.

JUUL pulled its mango, fruit, crème and cucumber flavors off the market in 2018 and ended its social media campaigns in response to public pressure and the FDA’s request for information about the company’s marketing tactics. Regulators and advocates were concerned about how JUUL was marketing its products and how they appealed to younger consumers. Those concerns have become the basis of lawsuits, including some the firm is handling.

However, the agency delayed its final decision about the rest of JUUL’s products until last month. The FDA’s decision was based on its concerns over the company’s own incomplete and conflicting data regarding the toxicology of its products and whether marketing the products was appropriate for protecting public health. The agency was specifically concerned about potentially harmful chemicals leaching from JUUL e-liquid pods, Law360 reported. JUUL’s e-cigarette devices and its four types of pods are comprised of tobacco and menthol concentrations at 3% and 5%.

The FDA’s Center for Tobacco Products acting director, Michele Mital, said in a statement:

The FDA is tasked with ensuring that tobacco products sold in this country meet the standard set by the law, but the responsibility to demonstrate that a product meets those standards ultimately falls on the shoulders of the company. As with all manufacturers, Juul had the opportunity to provide evidence demonstrating that the marketing of their products meets these standards.  However, the company did not provide that evidence and instead left us with significant questions. Without the data needed to determine relevant health risks, the FDA is issuing these marketing denial orders.

In a late development, the D.C. Circuit on June 24 granted Juul Labs Inc. an administrative stay on the FDA’s decision. The court noted its ruling was to give it more time to consider the FDA’s decision to pull JUUL products from the market and not on the petition’s merits. This is seen by Beasley Allen lawyers as pretty much routine, and they expect a permanent ruling to come by August.

JUUL is now seeing a longer stay of the FDA’s marketing denial order until the appeal process has concluded. The FDA has until July 7 to respond to JUUL’s motion, and JUUL has until July 12 to reply.

The case is JUUL Labs Inc. v. Food and Drug Administration, case number 22-1123, in the U.S. Court of Appeals for the District of Columbia Circuit.

Beasley Allen lawyers handling the JUUL Litigation are closely monitoring the proceedings and any impact on the litigation. Stay tuned!

Sources: Law360.com and Wall Street Journal

Update On JUUL Litigation

As for the JUUL MDL, the first trial was recently continued until September 2022 and remains on schedule. It will feature a Beasley Allen client, a 16-year-old girl from Tennessee. The teenager became severely addicted to nicotine through JUUL e-cigarettes at just 12 years old. Joseph VanZandt from our firm is leading our efforts to seek justice on behalf of this deserving client. Joseph will be trying this case with an excellent team of lawyers from Beasley Allen and the JUUL Plaintiff Steering Committee.

In separate news, Pediatrics has published a study highlighting the usage and surge of JUUL sales among youth from 2017–2019.  The study used “longitudinal data from the nationally representative Population Assessment of Tobacco and Health (PATH) Study to estimate the incidence of experimentation and daily use of tobacco products, including e-cigarettes.”  The study focuses on participants aged 12 to 34 who were surveyed in 2017 and reinterviewed in 2019.  The purpose of the study was to “test the hypothesis that the surge in e-cigarette use would result in more daily vapers, particularly in the youngest age groups, and that they would have dependence scores similar to older-adult new e-cigarette vapers and daily cigarette smokers.”

Ultimately, the study found that “[t]he surge in sales of JUUL e-cigarettes from 2017 to 2019 was accompanied by increased daily e-cigarette use that was most marked among adolescents aged 14 to 17 years at baseline.”

Sources: Pediatrics and The Wall Street Journal

The Beasley Allen JUUL Litigation Team

Beasley Allen lawyers, led by Joseph VanZandt, are heavily involved in the JUUL litigation. Beasley Allen lawyers represent individuals suing JUUL, the top U.S. vape maker, for the negative impact its products have had on their lives. 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 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

Pathogenesis Of Mesothelioma

While mesothelioma is the most well-known major disease caused by inhalation of asbestos fibers, asbestosis, pleural plaques (lung fibrosis) and lung cancer are also caused by inhaling asbestos fibers.  For all these diseases, the asbestos fibers breathed in are toxic to cell membranes and generate oxygen radicals that can cause genetic damage.

When asbestos fibers are inhaled, the fibers can settle in various places within the respiratory tract, including the nose, pharynx, airways and the alveolar or gas-exchanging regions of the lung.  Thankfully, fibers that land in some of these areas are cleared rapidly from the lung via a system called the mucociliary escalator.  This process moves inhaled fibers up to the mouth, where they can be swallowed and are less harmful.

As for mesothelioma, some fibers can be inhaled through the alveolar ducts and reach the pleura (lining of the lungs) directly, but most fibers that eventually gain access to the pleura do so through pulmonary lymphatic flow.  No matter what kind of asbestos fibers, whether chrysotile or amphibole fibers, they have been shown to cause genetic errors.  When enough genetic errors have occurred and accumulated in the cells, one of these mesothelial cells can transform and grow into a deadly tumor known as mesothelioma.  It typically takes many decades for enough mutations to occur in a single mesothelial cell because of the many effective defense mechanisms that the human body has that destroy genetically defective cells.  This is the reason for the long latency period associated with mesothelioma.

In the end, though, mesothelioma can occur.  At that time, most people have anywhere from 12-18 months to live.  The disease is insidious and highly invasive.  In asbestos litigation, lawyers must understand the science behind what causes mesothelioma because defendants often hire experts to dispute the client’s diagnosis.  At Beasley Allen, our mesothelioma lawyers have and utilize this expertise to ensure client recovery is maximized.

If you have any questions or would like to discuss a potential case, contact Charlie Stern, a lawyer in our Dallas, Texas office.

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 Permanently Banned In Taiwan Due To Increased Cancer Risk

In July 2020, Taiwanese health authorities announced that Belviq, also known as lorcaserin hydrochloride, would be permanently banned from the Taiwanese market after American researchers identified increased cancer risks in patients prescribed the medication.  Specifically, the Taiwan Food & Drug Administration noted concerns over a “numerical imbalance” with instances of cancer, which continued to increase with a longer duration of Belviq use.  This occurred only a few months after the U.S. Food & Drug Administration requested Belviq’s manufacturer and distributor, Eisai, Inc., and Arena Pharmaceuticals, Inc., voluntarily recall their drug due to the same findings.

Belviq was FDA-approved in the U.S. in 2012 for weight management in adults with a BMI of 30 or greater or a BMI of 27 or greater in patients with at least one weight-related condition, such as high blood pressure, type 2 diabetes, or high cholesterol.  An extended-release of the drug, Belviq XR, was later approved in 2016.  After its initial approval, manufacturers Eisai, Inc. and Arena Pharmaceuticals, Inc. conducted a 4-year clinical trial, which ultimately showed an increased risk of certain cancers, the most prevalent of which were pancreatic, colorectal, and lung cancer.  Belviq was later recalled in January 2020 due to these findings, and at least 30 lawsuits have been filed among various state and federal courts since then.

Beasley Allen lawyers have filed multiple cases against the manufacturers of Belviq.  The cases allege multiple cancer types, including pancreatic, breast, colorectal, kidney, thyroid, esophageal, and brain cancer.  Our lawyers handle cases on behalf of individuals prescribed Belviq and subsequently diagnosed with cancer.  For more information, you can contact Roger Smith or Melissa Prickett.

Source: https://www.taiwannews.com.tw/en/news/3968107

Benzene In Deodorant And Safety Concerns

The concern over benzene-contaminated sunscreen has been extended to deodorant.  Aerosol antiperspirants made by Procter & Gamble, Unilever, and other companies were contaminated with benzene, a known carcinogen. Numerous regulatory agencies identify benzene as a cancer-causing agent linked to an increased risk of leukemia and other blood disorders.

In November 2021, Valisure LLC, an independent laboratory, announced that more than half of the 108 batches of body spray products the company tested from 30 different brands contained benzene, a known human carcinogen. Several of the aerosol products tested had levels of benzene at or above two parts per million (ppm)—the limit the Food and Drug Administration (FDA) advises manufacturers not to exceed in consumer drugs or products due to health concerns.

Valisure filed a Citizen Petition with the FDA alerting the agency to its test results and calling for a recall of all the body sprays containing benzene to limit consumers’ exposure to benzene. A complete list of aerosol spray antiperspirant products can be found on the company’s Citizen Petition, beginning on page 12.

Lawyers in our firm have the resources to represent clients throughout the country while never losing sight of the individual in their case. If you or a loved one have regularly used one of the deodorants, antiperspirants or body sprays recalled due to benzene and been diagnosed with cancer such as leukemia, our lawyers will be happy to investigate and handle the claim.

Baby Formula & Necrotizing Enterocolitis

Cow’s milk-based infant formula has been shown to dramatically increase the risk of necrotizing enterocolitis (NEC) in premature, underweight infants.  NEC is a dangerous and often fatal condition that causes necrosis of the underdeveloped intestines of newborns, causing a myriad of immediate and long-term health problems.

Virtually every child health agency and advocacy group recommends human breast milk (either mother’s or donor’s) over cow’s milk infant formula, particularly for premature babies.  Studies going back decades evidence a clear and consistent increased risk of NEC from formula, some showing risks as high as 200% to 300% compared with human breast milk.

Despite the known risks of cow’s milk formulas, neither of the two major formula manufacturers, Mead Johnson (Enfamil) or Abbot Laboratories (Similac), offer any warning on their products.

Beasley Allen lawyers represent many parents and children for claims against these two formula companies.  Most of our cases are filed in Illinois state court, where at least one of the manufacturers is headquartered.  Also, a multidistrict litigation (MDL) court was recently created in the U.S. District Court for the Northern District of Illinois – Eastern Division (Chicago). U.S. District Judge Rebecca R. Pallmeyer is presiding.  An MDL status conference was scheduled for June 30 to implement pretrial protocols and hopefully devise an expedited discovery process and a master complaint.

David Dearing, Brittany Scott, and Suzanne Clark, lawyers in our Mass Torts Section, are heading up the baby formula litigation for the firm and are aggressively investigating new cases.

EPA Sets New Screening Levels For PFAS

Per- and polyfluoroalkyl substances (PFAS) are widely used, long-lasting chemicals, components of which break down very slowly over time.  Because of their widespread use and persistence in the environment, many PFAS are found in the blood of people and animals worldwide and are present at low levels in various food products and the environment.  PFAS are found in water, air, fish, and soil locations across the nation and the globe.

The U.S. Environmental Protection Agency (EPA) added five PFAS chemicals for a total of six PFAS chemicals to a list of risk-based values. EPA uses these values to determine if response or remediation activities are needed.  RSLs are used to identify contaminated media (i.e., air, tap water, and soil) at a site that may need further investigation.

Typically, no further action or investigation is needed if a contaminant concentration is below the screening level. If the concentration is above the screening level, further investigation may be necessary to determine if some action is required.

EPA selected levels using what it contends is the most updated final peer-reviewed information. EPA’s action provides the agency with critical tools needed for Superfund and other agency programs to investigate contamination and protect people from these PFAS chemicals using the latest peer-reviewed science.

Screening and removal management levels are not cleanup standards. Risk-based values help EPA determine if further investigation or actions are needed to protect public health, such as sampling, assessing risks, and taking further action, which could include providing alternative drinking water.

If you have questions about the PFAS litigation, contact David Diab.

Source: EPA.gov

Philips Knew CPAP Foam Was Problematic In 2015

In October 2021, a multidistrict litigation (MDL) was created in Pittsburgh federal court, consolidating more than 100 lawsuits filed nationwide against Philips Respironics (Philips). Last month, the plaintiffs filed a complaint in the MDL, Law360 reported. They claim that Philips ignored defects in the foam used in its breathing machines since 2015.

Law360 reported that tens of thousands of customers complained of “black debris” they found in the airpath of their Philips machines. A Food and Drug Administration (FDA) report shows that from 2008 until 2017, the medical equipment company received 20,000 complaints about one of the company’s 17 now recalled machines – making up the “core claims in the complaint,” Law360 noted.

The plaintiffs claim that Philips was on notice as early as 2015 and from a “variety of sources” that the debris was from defective foam known as PE-PUR used in its CPAP and Bi-Level PAP breathing machines. The foam degrades, leaving behind debris that can cause several negative health effects, including headaches, nausea and cancer. The MDL complaint explained:

Based on its investigation, the FDA concluded that Philips’ upper management was aware of the foam degradation issues, discussed it at numerous management review meetings, and yet delayed doing anything about it.

In email exchanges between Philips and its foam supplier PolyTech and reviewed by the FDA, PolyTech confirmed that the PE-PUR foam could degrade “in as short a time as a year” when exposed to “high humidity” – specifically at “40 C,” or 104 F. According to one email exchange in 2016 a PolyTech employee told Philips he would advise the company of his conclusion. However, the MDL complaint asserts:

Philips did not initiate a formal investigation to identify and correct issues with a medical device until 2019. Philips notified its shareholders about the defect in the recalled devices in late April 2021. Philips did not initiate the recall of the dangerously defective machines until June 14, 2021.

The plaintiffs are represented by Sandra Duggan of Levin Sedran & Berman, Christopher A. Seeger of Seeger Weiss LLP, Kelly K. Iverson of Lynch Carpenter LLP, Steven A. Schwartz of Chimicles Schwartz Kriner & Donaldson-Smith LLP, D. Aaron Rihn of Robert Peirce & Associates PC and Peter S. Wolff of Pietragallo Gordon Alfano Bosick & Raspanti LLP.

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

Source: Law360.com

Two Multidistrict Litigations Plan To Host Joint Science Day In September

The Judicial Panel on Multidistrict Litigation (JPML) recently centralized In Re: SoClean, Inc., Marketing, Sales Practices & Products Liability Litigation (the “SoClean MDL”) and In Re: Philips Recalled CPAP, Bi-Level Pap, and Mechanical Ventilator Products Litigation (the “CPAP MDL”) before the same judge in the U.S. District Court for the Western District of Pennsylvania.  The JPML did so because of the overlap between the two litigations.  While the CPAP MDL focuses on defects in continuous positive airway pressure (CPAP) machines, the SoClean litigation involves ozone devices used to clean CPAP machines.

U.S. District Judge Joy Flowers Conti of the Western District of Pennsylvania recently held a status conference to discuss several topics involving scheduling and case management.  One of those topics involved scheduling a joint “Science Day” with the CPAP MDL and the SoClean MDL.

Science days are becoming increasingly common in multidistrict litigations involving pharmaceuticals or medical devices.  They educate the court on medical information regarding the products’ potential side effects.  Each side gets an opportunity to present to the court.  The presentations are supposed to be objective and non-adversarial.  Most MDL orders involving science days will note that the presentations are not admissible because they are only meant to educate the court.

Judge Conti has set a joint Science Day for the CPAP MDL and SoClean MDL for September 1, 2022.  While science days are typical in MDLs, “joint” science days are unique.  This is the first time that two MDLs have held their Science Day together on the same day.  The similarities here between the CPAP machines and the devices used to clean those machines create a special circumstance to present the science together.

If you have questions, contact Ryan Duplechin.

THE PARAQUAT LITIGATION

Various Brands Of Paraquat

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.

Paraquat is a restricted-use herbicide that has been on the market in the U.S. since 1964.  It has been marketed under numerous brand names.  Many agricultural workers know that they used a total kill herbicide but do not know whether the active ingredient was paraquat.  Paraquat is a highly toxic chemical linked to Parkinson’s Disease.  The following is a list of brand names with paraquat as an active ingredient that may refresh your client’s recollection of whether they used this toxic chemical:

• Action
• Agroquat
• Agroxone
• Almoxone
• Cap Pelanduk
• Capayam
• Cekuquat
• Crisquat
• Cropoquat
• Cyclone
• Crysquat
• Delta-Quat
• Dextrone X
• Dexuron
• Dragocson
• Efoxon
• Esgram
• Erazone
• Express
• Esgram
• Firestorm
• Galokson
• Goldquat
• Gramex
• Gramix
• Gramixel
• Halexone
• Herbatop
• Herboxon
• Herbikill
• Inferno
• Kapid
• Katalon
• Kemozone
• Kendo
• Ken-Tec
• Kingxone
• Marman Herbiquat
• Methyl Viologen Dichloride
• Methyl Viologen
• Multiquat
• NuquatOsaquat
• Paquat
• Para
• Parable
• Paraco
• Para-Col
• Parakill
• Parakwat
• Paranox
• Paraquato
• Paratone
• Paratroop
• Parawin
• Parazone
• Pillarquat
• Pillarxone
• Plusquat
• Priquat
• Prelude
• R-Bix
• Revolver
• Scythe
• Secaquat
• Shirquat
• Sparkle
• Speeder
• Speedway
• Sweep
• Sunaquat
• Total
• Toxer
• Uniquat
• Weedless

If you have specific questions about whether your client used a chemical with paraquat as the active ingredient, you can reach out to our Paraquat Litigation Team. Beasley Allen lawyer Julia A. Merritt is a member of the Plaintiffs’ Executive Committee on the Paraquat MDL.  The lawyers on our Paraquat Litigation Team would be happy to answer questions about the status of this litigation or the intricacies of the intake process, including the Plaintiff’s Assessment Questionnaire used at Beasley Allen. Our firm continues accepting cases where clients applied paraquat and have Parkinson’s Disease or Parkinson’s-like symptoms. Contact Beasley Allen if we can assist you in your paraquat applicator cases.

The Paraquat Litigation Team

The Paraquat Litigation Team at Beasley Allen, consisting of lawyers in our Toxic Torts Section, handles the paraquat applicator cases. The lawyers on the team are:

Julia Merritt, who heads the team, Trisha Green, and Matt Pettit. Rhon Jones heads our Toxic Torts Section, and he works with the team on this important litigation.

PREMISES LIABILITY LITIGATION

Property Owner Responsibility In Premises Litigation In Georgia

In Georgia, property owners are required to keep their property reasonably safe.  O.C.G.A. § 51-3-1. This duty extends to the requirement to provide security where dangers exist.

Businesses such as apartments, hotels, bars, and restaurants can be required to provide security to protect their tenants, guests, and customers. Under appropriate circumstances, this duty can also be extended to businesses that provide care to patients and vulnerable children and adults, such as nursing homes, daycares, drug rehabilitation centers, and hospitals.

A business may not simply ignore security risks on its property.  A responsible business will hire a person or business trained in safety assessment to evaluate the company to determine the risks to customers and what measures the business should take to protect its customers.

Responsible business owners also should monitor the national scene and the volume of crime on and near their property. The owners should request additional information from the local law enforcement authorities in their area.  Many law enforcement agencies now provide monthly updates of crimes in their jurisdiction and note the areas where those crimes occur.

Lastly, a responsible business should collect information from those who frequent its property, including employees, customers, delivery personnel and the like to monitor the goings-on, including any criminal activity. One good tool to accomplish this initial monitoring stage is to place adequate security measures, such as video cameras, alarms, adequate lighting, gates, and other protective barriers to prevent negligent security.  Hiring security personnel may also be required in many situations.  Of course, having initial security measures that are not monitored is of no value, so the business owner must have people who watch and observe this data and report to the individuals who decide what level of protection may be required.

Once a business becomes aware of a threat, the owner or organizer must immediately respond to that threat in a manner that may be appropriate under the circumstances. The company either needs to provide adequate protection and caution visitors to its property of the risk or close the business until the safety measures are completed.

Hotels present a perfect example of the need to provide sufficient security measures. For example, suppose crime information shows that rapes, robberies, shootings, and the like have occurred in the area of a hotel. In that case, the hotel should provide additional safety measures to its guests. These measures can be as simple as additional locks on the doors or peepholes for the guests to see who may be at the door.  It is also a good idea to post signs on the property to remind guests not to open their doors to persons they do not know or to be aware and not to be alone when they travel outside of the hotel or business to their vehicles or neighboring businesses.

Safety must be a priority. Businesses simply cannot put the risk that the volume of their business may be affected by taking these measures over the safety of guests.  Safety must be at the forefront of all companies that cater to the public and must be a top priority.

If you need more information on premises liability or negligent security 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.

Beasley Allen Reaches Confidential Settlement In Mass Shooting Case

Recently, Parker Miller, a lawyer in our Atlanta office, reached a confidential settlement with Masquerade, Inc., a large venue in downtown Atlanta, for wrongful death claims stemming from a mass shooting event at a concert. The shooting occurred in November 2017. The hail of gunfire took the lives of 22-year-old Giovan Diaz and 21-year-old Ewell Ynoa. In addition, two other concert-goers were shot, although they were expected to make a recovery from their wounds.

Masquerade is a multi-room performance venue in Underground Atlanta, and the shooting took place just as the main act was beginning in the “Hell” venue. The settlement amount is confidential and serves to resolve all claims against Masquerade, with Sony remaining as the lone defendant in the pending case. Parker had this to say:

This case was so sad. Ewell and Giovan had their entire lives in front of them. Giovan was a new father, and Ewell was an aspiring talent in the music industry. They were everything to their family, but all of that came crashing to an end in November 2017. It is a miracle that many others were not killed, as there were a lot of people in a confined area where the shooting happened.

Beasley Allen lawyers are investigating or litigating numerous cases involving catastrophic injuries where our clients were criminally victimized due to a property owner or an occupier of the premises.

Failures By Arby’s To Supervise Employees Causes Problems

Beasley Allen lawyers in the firm’s Montgomery, Atlanta, and Mobile offices have handled a large number of premises liability cases over the years. Some of these cases involved a patron being injured on the premise of a restaurant by the intentional acts of a restaurant employee. For example, last month, an employee at an Arby’s in Hueytown, Alabama, threw grease on a customer in the drive-thru, causing the customer to suffer secondary burns to a large portion of her body. That case is under investigation.

Unfortunately, that was not the first time an employee violently attacked a customer at one of Arby’s restaurants. In 2018, a young woman was brutally attacked and beaten by an employee at an Arby’s restaurant in Conyers, Georgia, causing her to suffer catastrophic and permanent injuries. Beasley Allen lawyers were retained to represent the unfortunate victim in that case.

These horrific incidents highlight the absolute necessity of restaurants to practice reasonable and safe hiring and employment practices – and always ensure that their premises and employees are properly monitored and supervised to ensure customers’ safety, without whom a proprietor’s business would be unable to stay afloat.

Parker Miller and Houston Kessler, lawyers in our Atlanta office, handle the types of cases mentioned above and numerous other premises liability cases across the State of Georgia and other states.

The Abuse Of Children At The Hands Of Nonprofit Employees Or Volunteers

Georgia courts have long held that a person who undertakes the control and supervision of a child has the duty to use reasonable care to protect that child from injury. Courts have further clarified that these same principles can apply to volunteers of non-profit organizations, such as churches.

Unfortunately, there are circumstances in which such organizations breach that duty when undertaking the supervision of a child – including cases in which a child is abused or injured at the hands of the very individuals entrusted with the child’s supervision in the first place.

In one such case, a child attending a Bible Camp run by the West End Seventh-day Adventist Church in the summer of 2018 was sexually assaulted and raped by the counselor entrusted with the child’s supervision. The child was only nine years old at the time. Beasley Allen lawyer Parker Miller was retained to represent the unfortunate victim.

While nothing can undo such abhorrent abuse, it is vitally important that organizations be held responsible for their failures to ensure that children do not fall prey to abuse by the organization’s very own employees, volunteers or agents. Doing so will incentivize these organizations to take reasonable steps to ensure the safety of the children attending their camps or events.

Parker Miller and Houston Kessler, lawyers in our Atlanta office, handle these cases and numerous other premises liability and negligent security cases across Georgia and other states.

TOXIC TORT LITIGATION

Congress Gives Camp Lejeune Water Contamination Victims Relief For Limited Time

The Camp Lejeune Justice Act applies to anyone who lived, worked, or served at Marine Corps Base Camp Lejeune between 1953 and 1987, including military personnel, guardsmen, reservists, military family members, and civilian employees who worked on the base. The Act, which is under review in the U.S. Senate, is designed to help anyone who suffered injuries or death from exposure to contaminated water at Camp Lejeune to bring a claim within two years from when the Act becomes effective. President Biden is expected to sign the Act in the coming weeks.

Beasley Allen lawyers are working with clients eligible for relief under this Act and are pursuing litigation against the federal government on their behalf.  Beasley Allen lawyer Julia Merritt observed:

Our clients and others dedicated their lives to serving our country; in return, they were poisoned with hazardous chemicals and left to suffer life-threatening injuries.

From 1953 to 1987, more than one million military service personnel and their families were exposed to contaminated water at Marine Corps Base Camp Lejeune and Marine Corps Air Station (MCAS) New River in North Carolina. The water was contaminated with volatile organic compounds, degreasers, chemicals used on heavy machinery, and more than 70 other highly toxic substances. The government knew about this contamination but took no action, ignoring warnings from experts, site inspections and reports, and comments from military service members and their families that the water tasted of chemicals. Beasley Allen lawyer Trisha Green, reflecting on the litigation, said:

68 years after the contamination period started and 34 years after it ended, Congress finally acknowledged the damage the United States caused to its military population at Camp Lejeune and MCAS New River. Once the Act has been signed by President Biden, victims will have only a short time to bring claims. Unfortunately, many of the victims are unaware of this Act.

Any person that resided at Camp Lejeune or MCAS New River for at least 30 days between August 1953 and December 1987 and has a serious illness, miscarriage, or birth defect is potentially eligible for disability, health care, and compensation. Common injuries include:

• Bladder Cancer
• Breast Cancer
• Cervical Cancer
• Esophageal Cancer
• Kidney Cancer
• Liver Cancer
• Lung Cancer
• Ovarian Cancer
• Stomach Cancer
• Birth Defects and Birth Injuries
• Miscarriage
• Multiple Myeloma and other Myelodysplastic Syndromes
• Adult Leukemia
• Aplastic Anemia and other Bone Marrow Conditions
• Parkinson’s Disease
• Renal Toxicity
• Neurobehavioral Effects
• And, sadly, Death

The contaminated water was used for drinking, cooking, and bathing in enlisted family housing, barracks, schools, base hospitals, recreational areas, and administrative offices. Any individual present at Camp Lejeune during these years, including veterans, family members, civilian workers, reservists, and guardsmen, may be eligible for relief under the Camp Lejeune Justice Act.

Beasley Allen lawyers representing the plaintiffs in the litigation are Julia Merritt, Matt Petitt, and Trisha Green. Toxic Torts Section Head Rhon Jones also is involved in the litigation.

Federal Judge Orders 3M Earplug MDL Claimants To Enter Mediation

U.S. District Judge M. Casey Rodgers, the federal judge overseeing the 3M Combat Arms Earplugs multidistrict litigation (MDL), ordered the parties on June 10 to begin mediation in July, according to Law360. Judge Rodgers charged the parties with attempting to reach a good faith settlement to prevent district courts from being “flooded” with cases from the MDL and straining judicial resources nationwide.

Judge Rodgers ordered plaintiffs’ counsel, 3M’s corporate counsel and any insurance representatives necessary to resolve the litigation to begin meeting by July 15. She noted that the MDL, created in April 2019, is at a “critical juncture.” All evidence needed to evaluate the plaintiffs’ claims has been identified, and 16 bellwether cases have allowed the parties to determine the possible outcomes and risks involved with proceeding with the litigation. Judge Rodgers wrote:

At this stage, there can be no reasonable dispute that the litigants in this MDL have more data points about individual claims, and the broader whole, than any other litigants in the country.

The judge’s order underscored the size of the litigation and the coming “massive shift in focus” as cases move to plaintiff-specific discovery, summary judgment motions and trial. She explained that 500 cases would move at a time until the 233,883 plaintiffs’ claims make their way to 94 districts across the country. She said each district could see an average of 2,500 cases, with some seeing more than others. She wrote:

An enormous amount of time and resources will be required to accomplish this endeavor, not just from this court but from the entire federal judiciary.

Judge Rodgers appointed Randi S. Ellis, a dispute resolution attorney, as special master for mediating the settlement. She encouraged the parties to try and resolve as many cases as possible in the litigation, given the magnitude of the judicial resources needed for trials.

The MDL includes cases brought by hundreds of thousands of military veterans and service members. The cases typically involve allegations that 3M and its subsidiary Aearo Technologies LLC supplied defective CAEv2 earplugs to the military. The plaintiffs claim that the design defects with the 3M earplugs left military service members without adequate hearing protection, resulting in permanent hearing loss and tinnitus. 3M argues that the military should bear some responsibility for how the earplugs were designed and delivered.

3M recently asked that a $50 million verdict be reduced. The defendant company contended that the severity of the plaintiff’s injuries does not support the excessive verdict amount. In another bellwether, Judge Rodgers reduced the plaintiff’s verdict due to a Colorado law cap on tort damages from $55 million to just under $21.7 million. James Beal, the plaintiff in the sixteenth and final bellwether selected from the initial set of cases in the MDL, received a jury award in May for $77.5 million in damages.

Plaintiffs in the MDL are represented by Bryan Aylstock of Aylstock Witkin Kreis & Overholtz PLLC, Shelley Hutson of Clark Love & Hutson PLLC and Christopher A. Seeger of Seeger Weiss LLP. The MDL is In re: 3M Combat Arms Earplug Products Liability Litigation, case number 3:19-md-02885, in the U.S. District Court for the Northern District of Florida.

Source: Law360.com

Class Action Litigation

Court Certifies An “Issue Class” In The Fisher-Price Rock ‘n Play Sleeper MDL

On June 2, 2022, Judge Geoffrey W. Crawford of the Western District of New York stated it will certify an “issue class” of New York consumers in the Fisher-Price Rock ‘n Play MDL. Under Federal Rule of Civil Procedure 23(c)(4), a case may be maintained as a class action concerning particular issues, leaving individual issues to be determined after resolution of the common issues.

Judge Crawford will certify a New York class on two liability issues, namely, whether Fisher-Price’s marketing of the Rock ‘n Play Sleeper would have led a reasonable consumer to believe that the Sleeper was safe for infant sleep and whether the marketing would be material to consumers’ decision to purchase the product.

The Sleeper is inherently unsafe because it places infants at a 30-degree incline which puts infants at risk of suffocation and asphyxiation. Mattel and Fisher-Price knew about this safety risk yet designed, manufactured, and misleadingly marketed the product as a safe infant Sleeper, selling 4.7 million to parents who trusted the Fisher-Price brand.

Mattel, the parent of Fisher-Price, admits there are at least 100 known infant deaths in the Sleeper. Hundreds of infants also developed skull and neck deformities from being in the Sleeper, requiring expensive physical therapy and the purchase of corrective infant helmets.

In February 2021, plaintiffs representing a proposed class of consumers who purchased the Sleepers moved to certify 12 statewide classes under Rule 23(b)(3), seeking damages for violation of the relevant state consumer protection statutes, breach of the implied warranty of merchantability, negligence, and unjust enrichment. To certify a class under Rule 23(b)(3), a plaintiff must show that one or more questions of law or fact predominate over individual questions and that a class action is superior to individual adjudication.

In November 2021, the court ruled New York would be the bellwether state for the class certification motion and if a class was certified, for trial.

In its June 2 order, the court did not certify a damages class for violation of New York’s consumer protection statute, General Business Law § 349, holding the predominance requirement was not met. The court also declined to certify a class on the implied warranty claim, finding privity was an individualized issue, and the proposed unjust enrichment class because not all class members were harmed.

Liability attaches under GBL § 349 if a plaintiff can show that a defendant’s acts or practices were deceptive in a material way and that she suffered injury as a result. Materiality is an objective standard measured by what a reasonable person would find important when making a purchase decision. The prevailing rule in New York is that if the plaintiff establishes that there was a materially deceptive act, her injury is the price she paid at the cash register.

In the order, the court held whether defendants’ marketing of the Sleeper as safe was deceptive, whether the marketing was material, and whether it was a proximate cause of the sales in New York State were all common issues. The court held, however, that the issue of whether defendants’ deceptive conduct caused injury – loss causation – could not be resolved class-wide.

The court reasoned loss causation would require individualized inquiry because defendants’ deceptive conduct affected class members in varying ways. The court found some infants were not physically harmed by being in the Sleeper; some parents were happy with the product, had discarded it after their baby outgrew it, or resold it, which the court believed could mean the deceptive statements had no harmful effect on the purchasers. On the other hand, some purchasers may have purchased the product more recently and stopped using it after its danger became widely known and could not resell it, which meant they could be harmed.

Because the court ruled loss causation was not a class-wide issue, it did not reach the issue of class-wide damages. Earlier, the court had denied defendants’ Daubert motion to exclude the opinion of plaintiffs’ damages expert, who concluded that damages could be calculated on a class-wide basis.

The court held that plaintiffs had satisfied the superiority requirement of Rule 23(b)(3), finding it unlikely that consumers would pursue individual lawsuits against defendants.

The court’s ruling on loss causation under GBL § 349 is inconsistent with a substantial majority of cases within and outside the Second Circuit that hold where, as here, there is common evidence of a materially deceptive and pervasive marketing message, loss causation is established at the moment of purchase, and thus class treatment is appropriate.

Plaintiffs’ proposed injunctive relief class under Rule 23(b)(2) seeking improvement of Mattel’s ineffective recall was also denied.

On June 16, 2022, under Rule 23(f), plaintiffs filed a petition in the Second Circuit Court of Appeals for interlocutory review of the district court’s partial denial of class certification. Plaintiffs seek to appeal the court’s failure to certify a GBL § 349 class only.

In its order, the court stated it will issue an order certifying an issue class after receiving submissions from the parties concerning the scope of an issues trial and remaining pre-trial steps and that it anticipates holding a jury trial in Buffalo “as soon as the parties can be ready.” Plaintiffs’ Rule 23(f) petition does not stay the proceedings in the trial court.

Demet Basar, Beasley Allen lawyer and a lawyer for the consumers, told Law360 that she was “looking forward to finally trying the issue of Mattel’s liability for marketing these dangerous products.”

Plaintiffs and the proposed classes are represented by lead counsel Demet Basar, James Eubank, Paul Evans, and Dee Miles of Beasley Allen, along with Terry Connors and Andrew M. Debbins of Connors, LLP, a Buffalo, New York firm.

The case is In re: Rock ‘n Play Sleeper Marketing, Sales Practices, and Products Liability Litigation (Case No. 1:19-md-02903) in the United States District Court for the Western District of New York.

Class Action Lawsuit Filed Against Wells Fargo Over Alleged Zelle Scams

Luk Hartsock of Seattle, Washington, filed a class action lawsuit against Wells Fargo and Early Warning Services LLC, the company that operates the mobile payment app Zelle, in a Washington federal court. Hartsock’s lawsuit is one of many filed recently across the nation against lenders alleging that they failed to protect their customers from scammers who can use Zelle to steal from the customers’ accounts, Law360 reported. Zelle is owned by Wells Fargo, Bank of America and other major banks.

Hartsock’s complaint alleges that the defendants failed to take steps necessary to protect him and other banking customers from thieves who target them. He says that Wells Fargo and Zelle know about the pervasive deceit but don’t warn customers that they could be scammed by thieves impersonating bank employees. Hartsock claims that $7,500 was stolen from his account in two separate scams orchestrated by using Zelle. The thieves got him to send them money by pretending to be Wells Fargo customer service agents.  Hartsock’s complaint states:

Zelle is marketed as a fast, safe, and easy way to send and receive money,” but the companies are aware of the widespread fraud and that Zelle is vulnerable to scammers.

The immediacy of Zelle’s service has made it a favorite primarily among consumers, but that has made it a favorite among criminals who can access bank accounts directly.

Once scammers can scare or trick their victims into sending money via Zelle, they can siphon away thousands of dollars in seconds.

Hartsock disputed the transactions with Wells Fargo, but the bank initially refused to reimburse Hartsock for the unauthorized fund transfers.

Wells Fargo eventually credited $3,500 to his account. But Hartsock said in his complaint that the bank had not credited his account for the additional $4,000.

Other financial institutions face similar suits, including Bank of America. A lawsuit filed against Bank of America in May claims that it did not warn customers they would have a difficult time trying to recover money lost due to scammers using Zelle and Venmo, another mobile payment app.

Members of Congress have spoken out about the fraudulent activities and blasted financial institutions for their failure to protect customers and take responsibility for the use of their app by scammers to defraud the customers. U.S. Senators Elizabeth Warren (D – Massachusettes) and Robert Menendez (D – New Jersey) sent a letter  to Early Warning Services in April, criticizing financial institutions and Zelle, saying they have “abdicated responsibility for fraudulent transactions, leaving consumers with no way to get back their funds.”

Hartsock argues that Wells Fargo and Zelle were negligent and violated the Electronic Fund Transfer Act and the Washington Consumer Protection Act. His complaint proposes a nationwide class of Wells Fargo customers with unresolved disputed withdrawals from their accounts due to using Zelle. Hartsock has also proposed a similar subclass of affected Wells Fargo customers in Washington state. Additionally, Hartsock has asked the court for damages to appoint him class representative in the lawsuit and to have his attorneys appointed class counsel.

Hartsock is represented by Laura R. Gerber and Nathan L. Nanfelt of Keller Rohrback LLP.

The case is Luke Hartsock v. Wells Fargo & Co. et al., case number 2:22-cv-00759 in the U.S. District Court for the Western District of Washington.

Source: Law360.com

Class Action Settlements

There have been a number of significant class action settlements around the U.S. during May. Several of the settlements have received court approval. We include a brief summary of some of these cases below:

VW Agrees to Settle Porsche Emissions Cheat Suit for $80 Million

Volkswagen and its luxury brand Porsche agreed to pay $80 million to resolve a class action lawsuit by consumers who allege the automakers cheated on emissions and fuel-economy testing. The class action alleges these emissions cheats affected nearly 500,000 vehicles, making them appear more environmentally friendly than they were.

A motion seeking approval of the $80 million deal now sits with U.S. District Judge Charles R. Breyer. If approved, the settlement will reimburse a proposed class of consumers who purchased or leased Porsche vehicles affected by the cheat. The suit alleges the cheat encompasses several generations of gas-powered Porsche vehicles spanning model years 2005 to 2020.

The class-action suit accuses Volkswagen AG, Porsche AG and Porsche Cars North America Inc. of devising and implementing “creative engineering” schemes to make the luxury autos appear to emit far less environmental toxins than they actually did. The scheme duped consumers into believing their vehicles met emissions and fuel-economy performance standards.

The settlement agreement proposes dividing class members into three groups, each receiving varying cash payments according to the vehicle model: fuel economy, Sport+, and other class vehicles.

More than 30 named plaintiffs spearheading the consolidated class action, known as the Porsche Gasoline Litigation, alleged the defendants engaged in a two-pronged scheme. According to the suit, the automakers modified the gears connecting their test vehicles’ drive shaft and rear axle so the axles would spin at lower revolutions per minute and achieve higher fuel efficiency, emitting fewer pollutants. The same parts on vehicles sold to consumers, however, spin at higher RPMs than the modified test vehicles, allowing for higher emissions that fail to meet emissions standards, the plaintiffs allege.

The consumer plaintiffs are represented by attorneys from Lieff Cabraser Heimann & Bernstein LLP, Bailey Glasser LLP, Baron & Budd PC, Beasley Allen Law Firm, 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.

Source: Law360.com

J&J, Costco Agree to Settle MDL Over Benzene in Sunscreen

Johnson & Johnson (J&J) and Costco Wholesale Corp. have reached an agreement to settle a multidistrict litigation (MDL) over allegedly tainted sunscreen products. The settlement value is said to be $4.85 million, which includes attorney’s fees and costs. It also includes $1.75 million in vouchers and a full refund for consumers who bought certain Neutrogena and Aveeno aerosol sunscreen products, which allegedly contained the cancer-causing agent benzene. The settlement was filed last month in the Southern District of Florida.

J&J does not oppose the fees request, according to the consumers’ motion. They said the fee bid of $2.5 million is based on nearly 3,000 hours of work performed by their lawyers over the last year. The corporation also agreed to new testing protocols under the settlement’s terms.

Lawsuits began mounting against J&J after testing laboratory Valisure announced on May 25, 2021, that its researchers discovered high levels of benzene in certain sunscreens. The findings prompted Valisure to file a citizen petition with the FDA to get those products removed from store shelves. Valisure’s findings also prompted Johnson & Johnson Consumer Inc., a J&J subsidiary, to open an internal investigation.

On July 14, 2021, J&J launched a voluntary recall of five Neutrogena and Aveeno brand spray-on sunscreen product lines. Consumer classes in California, Florida, New Jersey, and New York alleged that J&J failed to warn them that the sunscreen products contained benzene, a chemical linked to leukemia and other cancers. The consumer classes also sued Costco, the big-box wholesaler that sold the sunscreen products. The lawsuits against J&J and Costco were consolidated in a Fort Lauderdale federal court under Judge Raag Singhal.

J&J agreed to settlement terms that extended the window of time for consumers to receive full refunds for the sunscreen products by six months. The corporation agreed to issue vouchers redeemable for use on any Neutrogena or Aveeno product. J&J also agreed to overhaul its testing measures to safeguard its sunscreen products from benzene contamination in the future.

According to consumers involved in the class action, J&J had received more than 323,000 requests for refunds totaling nearly $9.3 million by the time the parties filed a motion for settlement approval in December 2021. Judge Singhal gave the settlement preliminary approval in February. Lawyers for the class members then filed a request for $2.5 million in attorney fees to be paid separately from the compensation provided to consumers. The fees equal about one-third of the common fund, including the expected value of non-monetary and injunctive relief, as is customary in MDLs. A hearing for final approval of the settlement is set for Aug. 12.

The consumers were represented by R. Jason Richards and Bryan F. Aylstock of Aylstock Witkin Kreis & Overholtz PLLC and Kiley L. Grombacher, Marcus J. Bradley and Robert N. Fisher of Bradley/Grombacher LLP.

The case is In Re: Johnson & Johnson Aerosol Sunscreen Marketing, Sales Practices and Products Liability Litigation, case number 0:21-md-03015, in the U.S. District Court for the Southern District of Florida.

Source: Law360.com

Major Banks, Investors Settle Singapore Price-Fixing Case

Thirteen major banks, including Bank of America, Barclay’s, and some of the world’s other largest financial institutions, have agreed to pay $91 million to resolve part of a proposed class action settlement from investors alleging the banks conspired to manipulate major Singapore interest rate benchmarks.

If approved by U.S. Judge Alvin K. Hellerstein of the Southern District of New York, the settlement agreement will bring the total payouts in the case to $155.5 million, divided among 19 banks. The plaintiffs submitted a motion for preliminary approval in May.

The $91 million settlement agreement comes on top of more than $64 million in settlements investors previously reached with other defendant banks in the 2016 case, including Deutsche Bank, HSBC, ING, Credit Suisse, JPMorgan Chase and Citibank.

As of writing, the banks covered in the most recent settlement agreement had not broken down how much of the $91 million each bank would be responsible for paying. Banks who settled their part in the case previously agreed to pay certain amounts each, ranging roughly between $10 million and $11 million.

If Judge Hellerstein approves the agreements, most of the settlement funds will be paid to a proposed settlement class of investors in derivatives linked to the Singapore Interbank Offered Rate (SIBOR) and Singapore Swap Offered Rate (SOR). The defendant banks were accused of rigging SIBOR and SOR from at least 2007 through 2011. A bid for preliminary approval of the agreements with the six other banks that settled earlier was submitted on May 13. That bid remains pending.

The investors are represented by Lowey Dannenberg PC, a firm located in White Plains, New York.

The case is Fund Liquidation Holdings LLC v. Citibank NA et al., case number 1:16-cv-05263, in the U.S. District Court for the Southern District of New York.

Robinhood Settles Class Action Alleging Harmful Service Outages

Stock trading and investing services firm Robinhood has reached a settlement agreement in principle with a class of customers who sued the company over repeated service outages that allegedly interrupted trading opportunities.

A notice of the settlement agreement filed in California federal court did not include specifics of the deal. Still, Robinhood and the plaintiffs said the final details would be resolved this summer. The parties plan to file a motion for preliminary approval once the remaining pieces are finalized.

Robinhood account holders spearheading the lawsuit sought to certify a class of nearly 7 million customers. At the center of the litigation are claims that a series of outages in 2020 were caused by the company’s “reckless, profit-driven” actions, the class members allege. One of the outages occurred on March 2, 2020, and “took all investors out of the market for the entire day,” the class members said.

The litigation against Robinhood, in this case, began just days after Robinhood’s services went down for almost the entire trading day that saw stock values surge in a dazzling market rally. On that day, the Dow Jones Industrial Average rose more than 1,294 points, the largest point gain in history. The S&P 500 gained 136 points in parallel, and the Nasdaq was up 384 points.

The Robinhood users are represented by Anne Marie Murphy, Mark C. Molumphy, Noorjahan Rahman, Tyson C. Redenbarger and Julia Peng of Cotchett Pitre & McCarthy LLP and Matthew B. George, Kathleen A. Herkenhoff and Laurence D. King of Kaplan Fox & Kilsheimer LLP.

The case is In re Robinhood Outage Litigation, case number 3:20-cv-01626, in the U.S. District Court for the Northern District of California.

Judge Approves $63 Million Settlement for Government Cyberattack Victims

A federal judge has given preliminary approval to a $63 million settlement of multidistrict litigation (MDL) filed in the wake of a 2015 cyberattack that compromised the financial records and other sensitive data of about 21.5 million government workers.

Former, current, and prospective government employees across the U.S. filed the lawsuits against the U.S. Office of Personnel Management (OPM) and contactor Peraton Risk Decision Inc., which conducts background and security checks for federal agencies. The suits were consolidated into the MDL in a Washington D.C. federal court.

The June 2015 cyberattack that prompted the lawsuits exposed the financial records, social security numbers, and other personal information of individuals who underwent a Peraton background screening since 2000. The breach, which cybersecurity experts widely agree was orchestrated by a foreign government, is one of the largest-ever known data thefts targeting the U.S. government and employees.

U.S. District Judge Amy Berman Jackson’s approval of the settlement agreement paves the way for eligible persons to receive between $700 and $10,000 each in compensation. The affected and prospective employees must show they spent time and money responding to the data theft. Under the agreement, the U.S. government will cover the legal fees of the class members separately from the fee award.

 In 2017, Judge Jackson dismissed the case finding that the employees hadn’t alleged an injury beyond the data theft. A three-judge panel reversed that ruling on the D.C. Circuit Court in 2019. The appellate court found the cyber attack left affected individuals exceptionally vulnerable to identity theft and that this exposure provided sufficient grounds for the claims.

The terms of the agreement leave the U.S. government liable for paying most of the award, about $60 million, while Peraton pays $3 million. Judge Jackson will hold a fairness hearing for class members who oppose the agreement terms, giving them an opportunity to state their concerns. That hearing is scheduled for October 14.

The employees are represented by Daniel C. Girard, Jordan Elias and Simon S. Grille of Girard Sharp LLP, Peter A. Patterson and David H. Thompson of Cooper & Kirk PLLC, Tina Wolfson of Ahdoot & Wolfson PC, Gary E. Mason of Mason LLP and Richard B. Rosenthal.

The case is In re: Office of Personnel Management Data Security Breach Litigation, case number 1:15-mc-01394, in the U.S. District Court for the District of Columbia.

Source: Law360.com

Judge Approves Apple’s $100 Million Antitrust Settlement

U.S. District Judge Yvonne Gonzalez Rogers, a California federal judge, said on June 7 that she would approve Apple’s $100 million settlement with a class of small app developers who alleged the company engaged in antitrust activities that restricted the sale of apps.

Judge Rogers, who gave the settlement preliminary approval in November 2021, noted that the settlement came on the tail of a similar case against Apple that she also presided over. That lawsuit, brought by Epic Games Inc., alleged that Apple violated antitrust laws by engaging in similar anti-competitive practices. That lawsuit was tried and resulted in a September 2021 verdict that dealt Apple a significant blow, prohibiting it from forcing developers to accept in-app purchasing only. Apple normally takes a cut of 15%-30% of all in-app purchases.

Speaking to the parties involved in the most recent proposed settlement, Judge Rogers said:

This is a good settlement. You all did a good job, but it’s also pretty quick, relatively speaking, for these types of antitrust cases. And it certainly was in large part quick because we worked really hard to get the Epic v. Apple [trial] done in a short period of time, and as a consequence, you in some ways were the beneficiaries of that. So this isn’t like [other antitrust litigation] where it was an extended period of litigation.

The settlement agreement resolves the claims of about 6,700 software app developers in a class action first brought in 2019 by Donald Cameron. Cameron, a software developer who made a baby-naming app and a basketball training app called Pure Sweat Basketball, alleged Apple took anti-competitive measures to ensure iPhone users could only buy apps through Apple’s in-app store, then skimmed 30% commissions off of those purchases.

The app developers are represented by Steve W. Berman, Robert F. Lopez, and Theodore Wojcik of Hagens Berman Sobol Shapiro LLP. Lawyers from Sperling & Slater PC, Saveri & Saveri Inc. and Freed Kanner London & Millen LLC serve on the executive committee in the case.

The case is Donald R. Cameron et al. v. Apple Inc., case number 4:19-cv-03074, in the U.S. District Court for the Northern District of California.

Source: Law360.com

JPMorgan Must Pay $5.1 Million Legal Fees in Spoofing Case

Lawyers representing a group of futures investors in a JPMorgan Chase & Co. spoofing case that settled last September will receive an award of $5.1 million.

New York U.S. District Judge Paul Engelmayer said counsel for the nine class plaintiffs litigated the case and reached last year’s settlement with JPMorgan with “skill, perseverance and diligent advocacy.”

The $5.1 million award will go to attorneys from Lowey Dannenberg PC and Kirby McInerney LLP, who represented the council members. The award equals about one-third of the $15.7 million settlement the bank agreed to pay to resolve claims that some of its traders manipulated the U.S. Treasury futures market.

 The judge also awarded the group of class plaintiffs $303,508 in litigation reimbursements and a $45,000 incentive award, to be split among them.

Last September’s settlement followed a September 2020 criminal settlement between JPMorgan and the U.S. Department of Justice, in which the bank agreed to pay $920 million. In that agreement, JPMorgan admitted that its precious metals and U.S. Treasuries traders placed and then canceled futures orders between 2008 and 2016 to create a false appearance of demand – an illegal scheme known as spoofing in the banking industry.

Once it receives final approval, a compensation fund established in September’s settlement agreement will be distributed among hundreds of U.S. Treasury futures investors according to their losses. The funds will supplement $312 million in victims’ compensation funds already reserved for Treasury futures investors as part of the bank’s criminal settlement with the DOJ.

The $51.7 million settlement originated in November 2018, after a JPMorgan metals trader pled guilty to spoofing the metals futures for more than six years. The JPMorgan trader’s admission triggered multiple investor lawsuits, which Judge Engelmeyer consolidated in October 2020.

JPMorgan’s spoofing schemes have triggered several other legal actions, including a settlement in July 2021 between the bank and a group of six putative classes who alleged they were harmed by illegal activity among the bank’s metals traders. That case was settled for an undisclosed amount.

In August 2019, another former JPMorgan trader pled guilty to federal spoofing charges. Four other former JPMorgan traders are currently on the defense against criminal racketeering charges in an Illinois federal court. Their cases are slated for trial this summer and fall.

The investors are represented by Karen M. Lerner, David E. Kovel, Anthony F. Fata and Anthony E. Maneiro of Kirby McInerney LLP; Vincent Briganti, Raymond P. Girnys and Johnathan P. Seredynski of Lowey Dannenberg PC; Jennifer Sprengel of Cafferty Clobes Perimeter & Sprengel LLP; Christopher M. Burke, Amanda F. Lawrence, Louis F. Burke and Thomas K. Boardman of Scott + Scott Attorneys at Law LLP; and by Steven A. Kanner, Douglas A. Millen and Brian M. Hogan of Freed Kanner London & Millen LLC.

The case is In re: JPMorgan Treasury Futures Spoofing Litigation, case number 1:20-cv-03515, in U.S. District Court for the Southern District of New York.

Source: Law360.com

Consumers In Predatory Lending Case Seek $8 Million in Legal fees

A class of consumers who reached a $44.5 million settlement with Think Finance, an out-of-business payday loan company, has asked a Virginia federal judge for more than $8 million in attorney fees and costs. The settlement is one of several similar settlements resulting from Think Finance’s lending schemes.

U.S. District Judge M. Hannah Lauck granted preliminary approval to the class action case in April. The plaintiffs allege Think Finance used firms owned by Native American tribes as fronts to skirt state usury laws. The laws keep lenders from charging excessive rates of interest to loan borrowers. Think Finance charged consumers high interest rates on their loans. Final approval would end a case spanning several years of litigation in many areas.

The lead class plaintiff is Darlene Gibbs and a dozen other Think Finance customers. The settlement will largely resolve claims that Think Finance ran a complex and predatory lending system that violated federal and state laws by charging customers triple-digit interest rates on short-term term loans.

Plaintiff Gibbs and other Virginia residents filed their lawsuit against the founders of Think Finance in 2018, leveling allegations that they worked through used Native American tribe-owned lending companies Plain Green LLC, Great Plains Lending LLC and MobiLoans LLC to avoid state usury laws.

The class represented only Virginia residents who borrowed from Think Finance. They noted in court filings that two other class settlements resolving claims against Think Finance have already been approved.

In December 2019, the Eastern District of Virginia ordered Think Finance and other defendants to repay consumers about $53 million in cash and to forgive more than $380 million of debt accrued by borrowers who took out loans with tribe-owned lending companies Plain Green, Great Plains and MobiLoans.

Last year, another settlement in the Eastern District of Virginia resulted in two venture capital firms that had backed Think Finance repaying nearly $57.5 million to class members. That deal also had an associated debt collector cancel $383 million of debt. Think Finance went bankrupt in 2017 and no longer operates.

The consumers are represented by Kristi C. Kelly, Andrew J. Guzzo and Casey S. Nash of Kelly Guzzo PLC, Leonard A. Bennett and Craig C. Marchiando of Consumer Litigation Associates PC, and Anna C. Haac of Tycko & Zavareei LLP.

The consolidated case is Gibbs et al. v. Stinson et al., case no. 3:18-cv-00676, in the U.S. District Court for the Eastern District of Virginia.

Source: Law360.com

Missouri Settles Trinity Guardrail Case for $56 Million

Guardrail manufacturer Trinity Industries has agreed to settle a class action lawsuit resolving claims by several Missouri counties that the company failed to disclose alterations to its ET Plus guardrail systems. The counties argued that those changes made the guardrail systems unsafe and unreasonably dangerous.

Missouri state court judge Kenneth Garrett gave preliminary approval to the proposed deal on June 1. The agreement is estimated to cost Trinity about $56 million and would be the first successful resolution of litigation Trinity has faced over its ET Plus Guardrails spanning nearly a decade.

Jackson County, Missouri, first filed the lawsuit in 2015 on behalf of other Missouri counties with a population of 10,000 or more, the city of St. Louis, and the Missouri Department of Transportation. The plaintiffs and Trinity reached an agreement the day before the case went to trial in April. Patrick Stueve, a lawyer for the plaintiffs at Stueve Siegel Hanson, said in a statement:

When Jackson County filed this lawsuit, the goal was to recover the funds necessary to remove and replace these dangerous devices from Missouri roads. That’s exactly what this settlement provides.

The alleged dangers of the ET Plus guardrails came to light publicly after whistleblower Joshua Harman sued Trinity on behalf of the U.S. government in 2012. The False Claims Act lawsuit went to trial in 2014 and resulted in a jury verdict of $663.4 million. The jury agreed that Trinity altered the design of its ET Plus guardrails without telling the Federal Highway Administration. The undisclosed alterations, Harman alleged, diminished the performance of the guardrails and made them exceedingly dangerous to motorists for their propensity to impale vehicles. A federal appeals court later overturned the verdict, but similar cases proceeded in several states.

Missouri’s transportation authorities removed the ET Plus guardrails from the state’s approved highway safety products list after the claims against Trinity came to light. Thirty other states followed suit. Harman subsequently filed whistleblower lawsuits against Trinity on behalf of several states, but most of those have been dismissed. Harman was not a plaintiff in the Missouri lawsuit.

The Missouri settlement allocates $3.5 million to Missouri counties that removed and replaced the ET Plus guardrails from their highways and roads and an additional $2.5 million to compensate for the costs of locating the guardrails.

 The counties will also receive compensation for new guardrail terminals and end pieces valued at $2,000 plus a flat payment of $1,700 for each of the estimated 10,000 or so ET Plus guardrails, to a total of about $38 million. Trinity also agreed to pay $11.4 million in attorney fees and expenses, and administrative costs.

The case is Jackson County, Missouri v. Trinity Industries Inc, Jackson County Circuit Court, Missouri, No. 1516-CV23684.

The plaintiffs in the case were represented by Patrick Stueve, Bradley Wilders and Alex Ricke of Stueve Siegel Hanson, a firm located in Kansas City, Missouri.

Source: Reuters

Monsanto To Pay Up To $45 Million In Roundup False Advertising Case

A California federal judge on June 21 approved a $45 million settlement in the Monsanto false claims litigation related to the dangers of its Roundup pesticides, stressing that the agreement does not bar class members from suing over Roundup-related illnesses in the future.

In his approval, U.S. District Judge Vince Chhabria emphasized the importance that all consumers understand the settlement does not affect their right to sue Monsanto and its parent company Bayer AG for any Roundup-related illness or injury, now or in the future. The judge said class members can still pursue legal action should they develop cancer or another illness due to exposure to the weedkiller.

“If we’re going to approve a settlement like this, we better make darn sure that the settlement process is not going to confuse anybody into believing that they’ve given up their rights to sue Monsanto if they develop non-Hodgkin lymphoma,” Judge Chhabria said at the approval hearing.

Under the settlement, Monsanto will provide payments to consumers who purchased certain Roundup products through a fund of $23 million to $45 million. The fund will compensate consumers for about 20% of the average price they paid for Roundup products.

The agreement also resolves claims that Monsanto falsely advertised and promoted its Roundup products by not disclosing the risks associated with the active ingredient glyphosate, which has been linked to cancer and other serious health problems.

Additionally, the settlement resolves claims brought by Scott Gilmore and other plaintiffs, as well as other cases filed against Monsanto and retailers of Roundup products in federal and state courts across the U.S.

Millions of consumers purchased Monsanto’s Roundup herbicide during the class period, which varies according to state laws concerning the statute of limitations for false advertising or breach-of-warranty claims, the parties wrote in their motion for preliminary approval.

The Gilmore plaintiffs are represented by Gillian L. Wade, Sara D. Avila and Marc A. Castaneda of Milstein Jackson Fairchild & Wade LLP and Joel Oster of the Law Offices of Howard Rubinstein.

The case is Gilmore et al. v. Monsanto, case number 3:21-cv-08159, and the MDL is In re: Roundup Products Liability Litigation, case number 3:16-md-02741, both in the U.S. District Court for the Northern District of California.

Source: Law360.com

Class Action Lawyers At Beasley Allen

Beasley Allen is heavily involved in class action litigation around the country. Dee Miles, who heads the Consumer Fraud and Commercial Litigation Section, leads the effort. Other lawyers in the section who handle class action cases are:

Demet Basar, Lance Gould, Clay Barnett, James Eubank, Mitch Williams, Rebecca Gilliland, Rachel Minder, Paul Evans and Dylan Martin.

THE CONSUMER CORNER

Florida Regulator Seeks Access To VW Emissions Software

The Environmental Protection Commission of Hillsborough County, Florida (EPC), environmental regulator, has requested that a California federal judge allow it to analyze individual components of software installed by Volkswagen. This comes in a lawsuit filed by the EPC arising from allegations that Volkswagen cheated on fuel emissions and fuel-economy tests for approximately 590,000 Volkswagen, Audi, and Porsche vehicles in the United States, and roughly 11 million vehicles worldwide, to market them as more environmentally friendly than the vehicles actually were.

The EPC told the court in late May that Volkswagen Group of America Inc., Audi of America LLC, Porsche Cars North America Inc. and Robert Bosch LLC had inappropriately and unjustly attempted “to limit the scope of discovery and the litigation by prohibiting discovery into discrete components of software updates that were intended to cure the emissions issues that form the basis of the lawsuit.”

The EPC said VW’s “self-serving” production of documents and reliance on an expert report from a separate lawsuit is inadequate to support Volkswagen’s argument that the software should be analyzed as a whole and weight be given to the software’s overall effectiveness in correcting the issue. The EPC said further:

Nothing in [a county rule] requires the software updates to be considered as a whole, nor does it require the updates to have had any negative effect on emissions for defendants to be liable. The intentional act of adding defeat devices to the subject vehicles — an act to which defendants have admitted numerous times — is sufficient to confer liability over defendants in this action.

Moreover, according to the EPC, the court should reject VW’s attempts to ‘confuse and conflate’ the issue with ‘individual lines of software code.’

The EPC’s suit was added to U.S. District Judge Charles Breyer’s docket in 2016 as part of the multidistrict litigation surrounding Volkswagen’s highly publicized “clean diesel” emissions-cheating scandal. Judge Breyer has presided over the MDL since 2015.

Volkswagen is resisting the EPC’s attempts to analyze its computer code, stating in its April brief:

To avoid the plain fact that the statutory provisions at issue only prohibit conduct that increases emissions, the counties resort to arbitrarily dividing up a single software installation into an assortment of good and bad ‘features.’

The Environmental Protection Commission is represented by Dee Miles, Lance Gould, Clay Barnett and Rachel Minder, lawyers in Beasley Allen’s Consumer Fraud & Commercial Litigation Section, along with Stephen Gardner, Truett Gardner and Richard Lawson with Gardner, Brewer and Hudson, P.A. and Thomas Young of Law Offices of Thomas L. Young, P.A.

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.

Source: Law360.com

$165 Million Settlement Preliminarily Approved To End Chrysler’s Faulty Engine Claims

U.S. District Judge Judith E. Levy preliminarily approved a settlement valued at $165 million to end a class action lawsuit against Fiat Chrysler alleging certain Jeeps, Dodges, and other vehicles manufactured by the automaker have defective engines, Law360 reported. The Michigan federal judge conditionally approved and certified the settlement on June 7.

After final approval of the settlement, FCA US LLC must extend warranties to seven years or 100,000 miles to the nearly 1.7 million class members. Class members will also be entitled to no-cost software upgrades and up to $8 million in reimbursements for repair costs, including towing and renting a car while waiting for their vehicle to be repaired. For drivers who receive a service notification that they need an engine long block replacement, they will receive a cash payment of $340. The defendant is required to pay up to $7.5 million in attorneys fees and expenses, which will be paid separately by FCA US LLC.

Class members include anyone nationwide who bought or leased a vehicle with a 2.4L Tigershark engine in a Chrysler 200, Dodge Dart, Jeep Cherokee, Jeep Renegade, Jeep Compass, Ram Promaster City, or Fiat 500x, covering a variety of model years from 2013 through 2018.

Judge Levy conditionally appointed The Miller Law Firm PC, Hagens Berman Sobol Shapiro LLP, and McGuire Law PC as co-lead class counsel and McCune Wright Arevalo LLP, Sauder Schelkopf, and Berger Montague PC as plaintiffs’ steering committee class counsel. The suits, filed in 2020, allege:

• The 2.4L Tigershark MultiAir II engine in certain Jeep Cherokee, Compass, Renegade and other vehicles contained a design or manufacturing defect that caused them to burn off improperly or consume abnormally high amounts of oil.
• The defect would then result in the vehicles’ engines stalling or abruptly shutting down without warning or indicator lights going off — all while the vehicles are being driven — creating a significant safety hazard for passengers and other cars on the road.
• Sufficient levels of engine oil are needed to keep engines properly lubricated or cooled so they do not prematurely wear down internal parts, which can lead to poor engine performance or catastrophic engine failure.

It should be noted that the defect also creates a serious safety issue.

The consumers are represented by The Miller Law Firm PC, Hagens Berman Sobol Shapiro LLP, McGuire Law PC, McCune Wright Arevalo LLP, Sauder Schelkopf, and Berger Montague PC.

The consolidated case is Wood et al. v. FCA US LLC, case number 5:20-cv-11054, in the U.S. District Court for the Eastern District of Michigan.

Source: Law360.com

Abbot Baby Food Plant Enters Federal Consent Decree Over ‘Egregious’ Conditions

Dr. Rober Califf, appointed as the Food and Drug Administration (FDA) Commissioner in January, testified twice earlier this year before federal lawmakers about the conditions the agency uncovered at the Abbott baby formula plant in Sturgis, Michigan the FDA’s response.

Last September, the agency learned of an infection connected to the nation’s largest baby food plant. A whistleblower report later in the fall provided information that echoed the cause for concern. Yet, the FDA didn’t inspect the plant until January.

Dr. Califf told the House Energy and Commerce Subcommittee on Oversight in May that there was a “lack of coordination for sure” and admitted that the FDA’s response was too slow and agency decisions were “suboptimal.” Still, the commissioner said he hadn’t found evidence that the delay was intentional or misconduct was at issue.

The FDA commissioner told lawmakers that the agency’s investigation showed “shocking” safety lapses at the plant that was closed in February. Bacterial contamination of the food manufactured at the plant sickened babies, prompting the FDA and Centers for Disease Control and Prevention (CDC) to take a closer look at the plant and the powdered infant formula it manufactured.

Three infants became sick after exposure to Cronobacter sakazakii, and a fourth baby became ill due to a salmonella infection. Two of the infants died. The FDA determined that all babies had consumed Abbott’s Similac PM 60/40 formula.

Dr. Califf said the conditions at the Sturgis plant were “egregiously unsanitary.” He noted that cracks in key equipment allowed bacteria to enter. Investigators also discovered a leaking roof and water collecting on the floor. Dr. Califf said:

[There were] many signs of a disappointing lack of attention to the culture of safety. And this product that is so essential to the lives of our most precious people.

As the FDA and CDC continue their investigations, Dr. Califf explained that it was too early to conclude that the plant’s conditions caused the babies’ illnesses but added:

However, we cannot rule it out either. That’s a confluence of events that is highly unusual. There is no dispute that the facility was unacceptable and unsanitary as evidenced by the consent decree. Frankly, the inspection results were shocking.

The same month Dr. Califf testified before two sets of lawmakers, Abbott entered into a consent decree with federal regulators, creating an avenue for it to reopen. The agreement establishes a plan of action to increase safety and ensure compliance with the Federal Food, Drug and Cosmetic Act and the FDA’s Good Manufacturing Practice requirements, according to Law360. A court must approve it.

Testimony provided by Dr. Califf during a separate meeting with lawmakers indicates that the plant is on track to reopen, but it could take six to eight weeks for it to resume full production.

Source: Law360.com

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

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.

• 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

More On The Facebook (Meta) Litigation

We wrote about the highly important litigation filed by Beasley Allen against Facebook and Instagram (now referred to as “Meta”) in this issue.  These cases deal with massive harms, such as those detailed during the Oct. 2, 2021, hearing before a United States Senate Committee entitled Protecting Kids Online: Testimony from a Facebook Whistleblower. Injuries and problem areas involved in the Meta Litigation include:

• Depression
• Anxiety
• Eating disorders
• Body dysmorphia
• Self-harm
• Suicidal ideations
• Attempted suicide

Case criteria include those who were minors at the start of Facebook and / or Instagram use, greater than three hours per day of use of those platforms, with documented counseling and no prior history of mental illness. Beasley Allen lawyers on the Social Media Litigation Team are:

Joseph VanZandt, who heads the team, Jennifer Emmel, Clinton Richardson, and Seth Harding. These lawyers welcome the opportunity to work with you in social media cases.

Resources to Help Your Law Practice

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

Co-Counsel E-Newsletter

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

Aviation Litigation & Accident Investigation

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

Matt Pettit, a lawyer in our firm’s Toxic Torts Section and the Atlanta office, writes this month on a crucial feature involving Mass Torts litigation. Selecting a venue for a mass torts filing is very important. Matt has some practice tips for lawyers who handle mass torts litigation.

Practice Tips: Selecting Venue In Mass Torts Actions

Whether your case is part of a new and developing mass action or ripe for joining an existing mass action, venue is a critical factor that should never be overlooked when evaluating the best location for finding your case a good home favorable for litigation. While a mass action may be consolidated into one particular federal court’s jurisdiction, depending on the defendant’s principal place of business, it can be advantageous to be aware of parallel jurisdiction and its benefits. In such cases, a case could be filed in either the established multidistrict litigation centralized in federal court or the state court of any of the defendants’ principal places of business.

In re: Roundup Products Liability Litigation, 3:16-md-02741 (N.D. Cal. 2016) provides a great illustration. While most of the claims were consolidated in an MDL in the Northern District of California, approximately 25% of the overall cases were filed in Missouri state courts. That is because the defendant was formerly headquartered in Missouri. The two cases developed somewhat independently. However, the cases were coordinated between the two venues to ensure that neither deviated too far from the other. This allowed different leadership to develop between the MDL and the state proceedings.

A key advantage of such a process is that the attorney can review the developments in the MDL and the state court to decide which court is more advantageous for their client. In these situations, leadership from the MDL may not be the same leadership as in the state court. Further, depending on the state, the state court option may or may not have its equivalent of consolidation. For example, California allows civil actions sharing a common question of fact or law to be consolidated before a single court through the Judicial Council of Coordinated Proceedings.

All of these factors will combine to show what level of control an attorney will have over their case. Specifically, for an attorney looking to file cases but may not be interested in personally working up the case, the MDL would be a better home for their cases since the leadership in the MDL will handle the litigation of the case – up to a certain point. For an attorney who may want more control over their case, and specifically, to work up the case, a state court venue would provide more control and ownership of a case. Venue selection is therefore critical to review to ensure the attorney selects the best venue for their client’s case.

RECALLS UPDATE

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

Bailey Davis

Bailey Davis, who recently celebrated one year with Beasley Allen in May, works in our Marketing department as a Marketing Specialist I. She manages the firm’s social media accounts and content creation. Bailey also works with other marketing team members on various projects promoting the firm to help generate leads. She is a tremendous asset to the team and the firm, and we are fortunate to have her with us!

Bailey says her family is super close and has always been into sports! She is the oldest of four younger brothers, who range in age from nine to twenty. Bailey says that almost every weekend is spent at the ballpark, and in the fall, every Saturday is spent cheering on the Crimson Tide! Bailey says she loves spending time with family and friends, traveling, painting, and reading. In the summer, friends say you will find Bailey at Lake Martin every weekend.

When asked what her favorite thing about working at Beasley Allen is, Bailey responded:

The people. I couldn’t ask for better coworkers or a better work environment. It’s truly like a family. I’m thankful to work at a place that has the values Beasley Allen does. God first, family second, and work third.

Bailey is a talented, hard-working employee who has an important role in the firm. She is a definite asset for Beasley Allen.

Sydney Everett

Sydney Everett, a lawyer in Beasley Allen’s Mass Torts Section, previously worked in the Section as a law clerk. She is currently working on cases of injuries related to bone cement, proton pump inhibitors (PPIs), IVC filters, opioids and other pharmaceutical products. Sydney helps represent individuals who have suffered injuries related to the use of JUUL vaping devices and other similar vaping products. She also helps represent school districts and other public and private entities that have been impacted by the national youth vaping epidemic. Before joining Beasley Allen, Sydney worked throughout law school for a Vestavia Hills, Alabama, law firm practicing primarily corporate law and estate planning.

Sydney says her motivation to enter the legal profession was a strong desire to help people. She adds:

One of the biggest reasons I became an attorney is because I wanted to be in a position to help people when they need it. Growing up, I wished I could be a nurse like my mom, but I can’t pass out at my job every day. This was the closest thing to being able to help people who truly need it.

Sydney is a member of the Alabama State Bar and its Women’s Section, Birmingham Bar Association and the organization’s Young Lawyers Section, and Alabama Association for Justice.

Sydney says her favorite parts of practicing law are the people she encounters, especially her clients, and she says that no day is ever the same. She observes:

Not every job affords you the opportunity to truly be able to make a positive difference in someone’s life. The very nature of our work at Beasley Allen is doing just that. I also love that I have never repeated a day’s assignments in my career thus far. Every day is different, and I am constantly learning.

A Samford University Cumberland School of Law graduate, Sydney earned her Juris Doctorate in May 2018. While at Cumberland, she was a Merit Scholarship recipient, a Scholar of Merit for Products Liability, and a member of the Christian Legal Society.

Sydney earned her undergraduate degree from the University of Alabama in May 2015 with a B.A. in communication and information sciences and a minor in Spanish. Sydney was a Presidential Scholarship recipient, active in the Honors College and the Sustained Dialogue Program. Sydney also served in various leadership roles in organizations such as Alpha Chi Omega Sorority, The Alabama Panhellenic Association Executive Board, and the Public Relations Council of Alabama.

The Montgomery native currently resides in Birmingham, Alabama, where she is an active member of Church of the Highlands.

Sydney says the faith-centered approach to life and the practice of law encouraged by Beasley Allen’s leadership and practiced among the lawyers and staff sets the firm apart from others. She says:

Beasley Allen, as a firm, has a big heart. The combination of the people, the environment, and the motivation behind what we do – is unmatched and hard to find. Beasley Allen, as a firm, puts the Lord first, and I believe it makes all the difference.

We are fortunate to have Sydney with us. She is a blessing and an asset to the firm.

Rachel Friend

Rachel Friend works in the Consumer Fraud & Commercial Litigation Section, where she started her career with Beasley Allen just over 12 years ago. She is a Legal Secretary to Beasley Allen lawyers Ali Hawthorne and Tyner Helms. Rachel assists the lawyers in the investigations of potential cases and helps with legal research, client and defendant document review, case planning and preparation. Rachel works very hard and is committed to doing a great job at whatever she does. We are thankful that Rachel is on the Beasley Allen team!

Rachel shares that she is the mother of a wonderful and active nine-year-old son, Stephen, who enjoys most activities except “sitting still and eating vegetables.” Rachel says she is also a mom to a grumpy 13-year-old “princess” puppy who enjoys sleeping and all the treats she can get. Rachel’s hobbies include spending time with family and friends, reading audiobooks, true crime and paranormal podcasts, decorating, planning, the outdoors, and searching for recipes.

Rachel says her favorite thing about working at Beasley Allen is providing clients with the help they need and the family she has gained while working here. She added, “I am very thankful and blessed to work with the Beasley Allen family, who seeks God first, encourages family, and goes the extra mile for our clients.”

Rachel, a hard-working, dedicated employee, does excellent work in her role with the firm. We are blessed to have her with us.

Warner Hornsby

Warner Hornsby joined Beasley Allen Law Firm in 2016. He is a lawyer in the firm’s Personal Injury & Products Liability Section, handling cases involving serious injury and death related to automobile accidents, dangerous machinery, and defective products.

Earlier this year, Warner successfully achieved two settlements for clients severely injured in auto accidents. We wrote about these cases in the June issue. Warner obtained a $4 million settlement for a Jacksonville, Fla., woman seriously injured in an accident involving a commercial vehicle. He also secured a $4.25 million settlement for a client who was permanently injured in an incident that occurred on the premises of an auction of vehicles in 2015.

Warner, a member of the Alabama State Bar, says in some ways, he always knew he was going to be a lawyer. Both his father, Clay Hornsby, and his grandfather, Sonny Hornsby, are lawyers. Sonny was Chief Justice of the Alabama Supreme Court in the 1990s and is a Past President of the Alabama State Bar and the Trial Lawyers Association, now known as the Alabama Association for Justice. His father, Clay, was also a President of the Alabama Association for Justice. Both Sonny and Clay were great trial lawyers.

Warner recalls accompanying his dad to the Jefferson County courthouse when he was 13. He watched as Clay tried a wrongful death case against Buffalo Rock, whose driver ran a red light and t-boned a woman and her mother as they were on their way to a methadone clinic for treatment. The mother was killed in the crash. Warner recounted the impact the case had on his life and the moment after the trial when he knew he wanted to be a lawyer, saying:

Dad ultimately got a good verdict in the case, but the thing that stuck with me is that afterward, this woman’s daughter, in tears, told my dad, ‘I’ve never had anyone fight for me before.’ This had an enormous impact on me; I’ve never quite been able to get over the sadness I felt when I heard those words and understood the hopelessness that a lifetime without help must have felt like to her. I’ve also never been able to get over the pride I felt at that moment that my dad was the one who did fight for her. I don’t think I ever said it out loud growing up, but that was the moment I knew I wanted to be a lawyer.

Warner has been selected to the Midsouth Super Lawyers “Rising Stars” list since 2019, which recognizes the top up-and-coming attorneys – those 40 years old or younger or who have been practicing 10 years or less.

Warner says the desire to help people remains the driving force behind his law practice. He says the challenges presented with each case also keep him “enjoying being a lawyer.” He adds:

There are two things that I enjoy the most about practicing law – the first ties into my motivation for becoming a lawyer in the first place: Helping people. I don’t think you can be a good lawyer and enjoy what you do if you aren’t excited by the prospect of helping others. Lawyers are, at the core, helpers; we solve problems. I am wonderfully blessed to be at a firm where I get to help others every day. The second part I enjoy is the challenge of the work itself. Each case is different, each fact pattern is unique, and each venue requires a different story. I enjoy working to maximize the case on each of those fronts.

Warner graduated from the University of the South: Sewanee in 2013 with a Bachelor of Arts in economics, minoring in business and French. He was a Carey Fellow at Sewanee, a pre-business honors course.

He attended The University of Alabama School of Law, earning his J.D. in 2016. He was a member of the Order of the Barristers, Bench and Bar and was a member of the Trial Advocacy Competition Team. In trial ad, he won the “Elite Advocate” award at a national competition. His trial ad team finished third in the country, including a win over the eventual national champions.

Warner played soccer in college and regularly follows the English Premier League; his favorite team is Arsenal. He is also a proud supporter of the 18-time national champion Crimson Tide football team and other Alabama sports. He also enjoys deer hunting and spending time at Lake Martin, where his family has a cabin.

Warner’s mother is Nancy Hornsby, and his maternal grandparents, Joe Ed and Betty Hastings live in Montgomery. “Papa Joe” is a Methodist minister, like his father before him. Warner’s mother, Nancy, is also a Methodist minister. His one sister, Judith Hornsby, is a speech pathologist in Birmingham.

Warner expands on why he is feels blessed to work at Beasley Allen, saying:

I’ve been working at Beasley Allen now for five-and-a-half years. In all that time, I’ve never been turned away or ignored when I’ve gone to an older, more experienced lawyer for help, advice, or just to think through an issue. The platitudes of ‘team environment’ in all their forms are overused, certainly, but absolutely true. What makes Beasley Allen unique from my perspective, though, is the wealth of talent, knowledge, skill, and dedication that I have available to me from which to ask for that help. Amazingly, everyone at the firm is dedicated and aligned in the way they think about what we do. Representing people who have been horribly injured or even killed isn’t a profession; it’s a calling. From the top-down, lawyers, staff, and everybody buy into that idea, whether they consciously think about it that way or not. It truly is remarkable to see not just the dedication of the team to get the right result but the motivation – getting the right result for the right reason.

Warner is a tremendously talented lawyer who does great work for the clients he represents. We are blessed to have him with us.

Tabitha Sharp

Tabitha Sharp is a paralegal in the firm’s Mass Torts Section, where she has worked for 21 years. She works with Beasley Allen lawyer Chad Cook. She and Chad work closely together to determine whether specific case criteria are met for case filings. Tabitha reviews each case for proper case documentation, assists with legal research, drafts pleadings and correspondence, and helps with discovery. Tabitha is also responsible for filing cases, motions, and other court documents and communicating with clients, lawyers, and judicial staff. She assists with other special projects as needed. Tabitha is a dedicated, hard-working employee of the firm, and we are fortunate to have her with us!

Tabitha’s husband, Fred, works in the Parks and Recreation Department for the City of Prattville. Their son, Trevor, will be starting fifth grade in the fall and loves math and reading. Their daughter, Shundray, is a soldier in the U.S. Air Force. Tabitha says that they are very proud of Shundray and her service! The Sharps also have a five-year-old aquatic turtle named Ralphie. Tabitha and her family enjoy hunting, fishing, and vacations. They also enjoy time spent with friends, gardening, and DIY home projects.

When asked what her favorite thing about working at Beasley Allen is, Tabitha replied, “the people make the work enjoyable. I have always felt like we are one big family.”

SPECIAL RECOGNITIONS

Judge Charles Price Honored For His Distinguished Career

Being part of the special evening last month honoring retired Fifteenth Judicial Circuit Court Judge Charlie Price was a distinct privilege. Charlie was the guest of honor at the Alabama Civil Justice Foundation (ACJF) 30th Anniversary Gala. The event drew a huge crowd.

The organization celebrated and acknowledged Charlie’s many years of legal service and the significant impact he has made in his local community. His deep Montgomery roots and childhood experiences have inspired his career choices and continued community involvement. Throughout his career and personal life, Charlie has worked tirelessly to improve the lives of Alabamians.

Charlie was appointed to fill a vacancy in 1983, becoming the first African American circuit court judge in Alabama. He won reelection in 1984 and would serve on the bench for 31 years before retiring in 2015.

In 1997, Charlie received the John F. Kennedy Profile in Courage Award for his decision a year earlier to address a controversial issue in local courtrooms across the state. Judge Price ruled against then-fellow Circuit Court Judge Roy Moore. Charlie determined that Moore’s placing the Ten Commandments in his courtroom for religious purposes was unconstitutional. Charlie faced significant opposition because of his ruling, including a threat by Alabama Governor Fob James to call out the National Guard and state troopers to prevent the order from being enforced. Political candidates and others claimed Charlie’s decision was an attack on Christianity, despite his active leadership in his church, St. John’s African Methodist Episcopal Church in Montgomery, including serving as a Sunday School teacher.

Upon presenting the prestigious award, Caroline Kennedy, President of the Kennedy Library Foundation, had this to say:

Judge Charles Price demonstrated both integrity and courage in his ruling to support our nation’s historical separation of church and state. Though he has been vilified by many of his constituents as being anti-religion, Judge Price has in fact made a heroic stance to defend our country’s proud history of religious tolerance and diversity.”

After retiring from the bench, Charlie returned to private law practice. He served as Chair of the Montgomery Area Chamber of Commerce, helping lead its efforts to create jobs, opportunities and a better quality of life in Montgomery County and the River Region.

Charlie also served in our country’s armed forces before retiring as a Lieutenant Colonel from the U.S. Army. He attended Virginia Union University and The George Washington University Law School, where he graduated with honors. He worked for the U.S. Department of Justice and returned to Alabama to serve as an Assistant Attorney General.

Beasley Allen helped sponsor the gala, and a number of our lawyers and their guests attended the event. It included an evening reception and formal dinner that served as a fundraiser for ACJF. The event raised over $136,000 to contribute toward its mission of helping those in need. I was honored to be one of the speakers at the event.

Since 1992, ACJF has awarded nearly $15 million to nonprofit organizations that offer essential programs and services to children, families and seniors. It has also helped support organizations that provide civil legal aid and other justice-related initiatives.

It was good to support such a fine organization and to help celebrate a pivotal member of the Alabama Bar. Charlie Price is a great American and my good friend. I have been blessed to know and work with this man who has had a most distinguished and productive career. The good news is that Charlie is still working hard and serving the city, state and county.

LaBarron Boone Elected Chairman Of Montgomery Chamber Of Commerce Board Of Directors

Beasley Allen’s LaBarron Boone has been named Chairman of the Montgomery Area Chamber of Commerce. LaBarron, who joined the Chamber’s Board of Directors in December 2020, was elected as the Chamber’s Vice Chairman in January 2021.

As a member of the Chamber’s Committee of 100, LaBarron was instrumental in helping the Montgomery Area Chamber of Commerce achieve its mission of “driving economic growth to build a better Montgomery for all.” In addition, he co-chaired the Chamber’s Ad Valorem Initiative Committee to improve funding for the Montgomery County Public School System. The committee encouraged voters to support an increase in the local property tax, which was successfully approved in the November 2020 general election.

As LaBarron steps into the role of Chairman, he will continue to serve the Montgomery area community, pressing forward with innovative and creative ways to drive economic growth.

LaBarron joined Beasley Allen in 1995 and soon became the first African American to make partner at a major law firm in Montgomery, Alabama. He is currently leading the National Black Lawyers Top 100 as president. LaBarron has been affiliated with numerous other professional associations and named among the Top 100 Civil Plaintiff National Trial Lawyers and The National Black Lawyers Top 100. He is also the recipient of numerous other accolades, including the Chad Stewart Award, the Marquis Who’s Who in America, and Lawdragon 500 Leading Lawyers in America.

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.

Warner Hornsby

Warner supplied two verses and provided some personal thoughts on the verses.

If anyone says “I love God” and hates his brother, he is a liar; for he who does not love his brother whom he has seen cannot love God whom he has not seen. And this commandment we have for him: whoever loves God must also love his brother.

1 John 4:20-21

When they kept questioning him, he straightened up and said to them, “Let any one of you who is without sin be the first to cast a stone at her.”

John 8:7

Warner says:

My Christianity and my faith stem from my understanding of Jesus’ teachings of compassion and love for others. Too often, especially these days, the Bible is quoted (often out of context and only partially correct) as justification for judgment, oppression, or shaming of others. We know from extensive jury research that we all have a hard time putting ourselves in the same position as someone else – we tend to judge our supposed actions in their circumstance as better or smarter than the person who is actually living through it, ‘I wouldn’t have done that.’ We have all heard, ‘Do unto others as you would have others do unto you,’ but we are not good, it turns out, at actually considering others’ situations and predicaments in relation to our own actions and decisions. I appreciate these verses because they go beyond the “Do unto others as you would have them do unto you” and force us to consider that we have to love others, not judge others.”

Sydney Everett

Sydney says, “I love Zephaniah 3:17 because it reminds me that the Lord delights in me, and he protects me – he is not an angry God but a loving Father.”

The Lord your God is with you, the Mighty Warrior who saves. He will take great delight in you; in His love He will no longer rebuke you, but will rejoice over you with singing.

Zephaniah 3:17

She says, “I also love John 14:27 because it reminds me that the peace that comes from Jesus is greater than anything else and cannot be found in anything else, and it is so readily available.”

Peace I leave with you; My peace I give you. I do not give to you as the world gives. Do not let your hearts be troubled and do not be afraid.

John 14:27

Sydney explains that “Psalm 145:13 reminds me that He is sovereign and loving, and He’s got me even when I get it all wrong.”

Your kingdom is an everlasting kingdom, and your dominion endures through all generations. The Lord is faithful in all His promises and loving toward all He has made. The Lord upholds all those who fall and lifts up all who are bowed down.

Psalm 145:13

Bailey Davis

Bailey shares the following verses.

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

Do not be conformed to this world,[a] but be transformed by the renewal of your mind, that by testing you may discern what is the will of God, what is good and acceptable and perfect.

Romans 12:2

Trust in the Lord with all your heart, and do not lean on your own understanding. In all your ways acknowledge him and he will make straight your paths.

Proverbs 3:5-6

Rachel Friend

Rachel provides Thessalonians 5:25 for us and reminds us of the importance of its message.

Brothers and Sisters, pray for us.”

Thessalonians 5:25

Rachel says, “No matter our situation, we always need someone praying for us, and you should be praying for someone.”

Tabitha Sharp

Tabitha shares two verses with us and tells us what they mean to her. She says: “These verses remind me to give God my insignificant problems as well as great burdens that weigh me down. He will fight my battles and remove my worries.”

“The LORD will fight for you; you need only to be still.”

Exodus 14:14

“Casting all your care upon Him; for He cares for you.”

1 Peter 5:7

CLOSING OBSERVATIONS

Surging Drug Prices Targeted In U.S. Study Of Pharmacy Giants

According to Reuters, a study to be conducted by the U.S. Federal Trade Commission (FTC) could take months to complete but is aimed at making big pharmacy benefit managers’ (PBM)s’ practices more transparent. The agency will look at the business practices of PMBs like CVS Caremark to determine how they impact patients’ access to prescription drugs. Reuters notes that the study is timely as “costs of some medicines, even older ones like insulin, have skyrocketed.” The FTC has demanded information from CVS Health Corp’s Caremark, Humana Inc, Cigna Corp’s Express Scripts, UnitedHealth Group’s OptumRx, and others.

Our firm has been involved in litigation with pharmacy benefit managers (PBMs) for a good while. PBMs negotiate with drugmakers for rebates and lower fees on behalf of employers and other clients and reimburse pharmacies for prescriptions they dispense. I agree with FTC Commissioner Alvaro Bedoya, who said recently that the practices of these intermediaries are “cloaked in secrecy and opacity” and that for most Americans, “pharmacy middlemen control what medicine you get, how you get it when you get it, and how much you pay for it.”

When it announced the study, the FTC said it will ask specifically about “fees charged to independent pharmacies and reimbursements that are then clawed back from them, efforts to steer consumers to PBM-owned pharmacies and about their specialty drug policies.”

At least two PBMs intend to cooperate, according to statements issued by CVS and Prime Therapeutics. Reuters received no response from other PBM companies. The outlet noted that the Pharmaceutical Care Management Association (PCMA), the PBM trade group, defended the industry. PCMA President JC Scott, in a statement:

We are confident that any examination of pharmacy benefit managers will validate that PBMs are reducing prescription drug costs for consumers. Drug manufacturer price-setting is the root cause of high drug costs. The most effective study of issues around drug costs for consumers would examine the entire supply chain.

PBMs must be more closely monitored and controlled by the federal government. When that happens, drug prices won’t be unjustly increased.

Thus far, the judicial system has been the only part of the government to have worked to really expose PBMs and their effect on high drug prices. Hopefully, regulation by the appropriate governmental agencies will get busy and do their part. Congress should also get actively involved. Until that happens, however, litigation will remain the means of battling the PBMs and help to reduce drug prices.

Oil Companies, The Increased Gas Prices, And Inflation

Does it bother you that you and all Americans are paying record prices for gas at the pump?  How about the fact that oil companies are now making record profits?  For example, ExxonMobil doubled its profits in the first quarter of the year to $5.5 billion. But Chevron did even better – it quadrupled company profits to $6.3 billion that quarter.  Why is the media not making this information headline news material? Why hasn’t the federal government gotten involved? President Biden and Congress must make this a priority and get busy. But rest assured that big oil lobbyists have been hard at work. Their efforts have been effective for the big oil companies and disastrous for business owners and ordinary folks. I will write more on this matter in the August issue. In the meantime, do a little homework and check out why gas prices are so high.

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

Greg Allen Celebrates 40 Years with Beasley Allen Law Firm

About three years after I opened my law office in Montgomery, Greg Allen came to work as my first law clerk, working for free to gain experience while he attended law school. Forty years have now passed. Greg is now the firm’s lead products liability lawyer and is recognized as one of the best trial lawyers in the country.  In 1983, Greg took a chance, joined up with me, and the rest is history.

Beasley Allen’s Managing Attorney Tom Methvin had this to say:

We are proud to celebrate all of Greg’s accomplishments. Thank goodness he chose to build his career here!

Greg is passionate about taking on giant corporations for those seriously injured by defective products, and he logs “seven-figure wins like clockwork,” legal media company Lawdragon reported.

Greg has played a key role in a considerable number of product liability cases that have resulted not only in substantial jury verdicts and settlements but also in tremendous safety changes in Corporate America. In one case against Ford Motor Company, Greg and his trial team secured a $151 million verdict on behalf of Travaris “Tre” Smith. Tre was rendered paraplegic after being in a rollover crash involving a defective 1998 Ford Explorer.

Greg was also the lead attorney in a lawsuit against General Motors, helping secure a $122 million jury award for a brain-damaged child. The case later settled for a confidential amount. The National Law Journal featured the case as one of the top ten verdicts for 2002 and Greg as Litigator of the Month.

More recently, Greg helped secure a settlement for the family of a Mobile County Public School System bus driver who suffocated and died under the weight of the roof of the defective school bus she was driving when it veered off the road and overturned. This case exposed a most serious defect in the design of school buses, and the case has put the bus industry on notice.

Greg’s work has not gone unnoticed by his peers. He has received numerous awards and recognitions through the years. In 2019, the Southern Trial Lawyers Association awarded him the War Horse Award, which celebrates the nation’s most outstanding trial lawyers. He has also been selected to the Midsouth Super Lawyers list consistently from 2008 through 2020, a distinction that recognizes lawyers for being among the best in their specialty.

Greg was named the Best Lawyers Personal Injury Litigation – Plaintiffs “Lawyer of the Year” in Montgomery in 2020 and 2022. He was recognized in 2021 by Best Lawyers in the Product Liability Litigation – Plaintiffs category. Greg has also been named to the Lawdragon 500 Leading Plaintiff Consumer Lawyers, including the 500 best attorneys nationwide in this category. In 2021, Greg was honored by being added to the Lawdragon Hall of Fame.

Greg was also named the Best Lawyers’ 2012 Montgomery Product Liability Litigation Plaintiffs Lawyer of the Year. Only a single lawyer in each specialty in each community is honored as the “Lawyer of the Year.”

Tom Methvin has made this observation recently about Greg and the firm:

Through the years, Greg and Jere built what has now become a national powerhouse firm involved in helping victims get compensation in our justice system. Greg gets the best results of any product lawyer in the U.S.A. and he always seems to find the smoking gun!

On a personal note, I will conclude by having this to say about Greg, who I truly believe is the best all-around product liability lawyer in the country:

In my opinion, Greg Allen is the best Products Liability lawyer in this country. If there is a better one, I have never met that person. Greg is highly intelligent, a very hard worker who understands the technical issues involved in Products Liability litigation and is also outstanding in the courtroom. Greg has the ability to obtain information in pretrial discovery that many lawyers would never see. He is always extremely well prepared for trial.  I have learned lots from my law partner and good friend. God blessed me when he put Greg in my life.