The Jere Beasley Report July 2024

CAPITOL OBSERVATIONS

Ben Baker: 2024 Alabama Association For Justice President

At this year’s Alabama Association for Justice (ALAJ) Annual Convention, Ben Baker was elected President. ALAJ, a prestigious organization, is committed to representing those seeking justice in the civil courts. The role of ALAJ today is more important than ever.  The courts, justices and juries are under constant attack. The future of our country depends on our system of justice and the Rule of Law being protected and preserved. 

A Career Dedicated to Advocacy

Ben’s career has been marked by a steadfast dedication to advocacy and the pursuit of justice. As a principal with Beasley Allen, his focus on product liability and crashworthiness cases has established him as a formidable presence in the courtroom. Ben’s expertise is not only recognized by his peers, but also reflected in the numerous accolades he has received, including consistent inclusion in Super Lawyers since 2010 and Best Lawyers since 2013.

In December 2008 and 2010, Ben was selected as Beasley Allen’s Lawyer of the Year in the Personal Injury & Products Liability Section. In 2012 and 2014, Ben was selected as the firm’s Litigator of the Year. The Litigator of the Year Award is presented to the lawyer who demonstrates exceptional professional skill throughout the year and best represents the firm’s ideal of “helping those who need it most.”

A Vision for the ALAJ

As President-Elect, Ben has already demonstrated a clear vision for the ALAJ. His commitment to the organization’s mission is evident in his active participation as a Sustaining and Executive Committee member. With his leadership role as President, ALAJ is poised to continue its vital role in advocating for fair treatment and just compensation for all Alabamians. Protecting and upholding the Rule of Law and the constitutional right to trial by jury is a necessary function of ALAJ and Ben is well aware of that great reality and responsibility. 

An Inclusive Approach to Leadership

Ben’s approach to leadership is inclusive and collaborative. His involvement in various legal associations, including the American Association for Justice and the Southern Trial Lawyers Association, showcases his belief in the power of collective effort. His presidency is expected to further this ethos, fostering an environment where diverse voices are heard and respected.

Looking Ahead

All of us at Beasley Allen are extremely proud of Ben. We look forward to seeing all he accomplishes as he leads ALAJ in his new role. Personally, I am confident Ben will be an outstanding President and that he will do an outstanding job. 

Ben’s role as President of ALAJ affects the well-being of all Alabamians, lawyers and non-lawyers alike. In fact, ordinary folks will actually be the real beneficiaries. As I stated above, trial lawyers have a duty to protect and uphold the Rule of Law, the judicial system, and the right to trial by jury. In doing so, the public is benefited and protected beyond measure. Ben Baker is perfect to serve in the awesome role of President of ALAJ. 

TALC LITIGATION

Talc Litigation Update

Johnson & Johnson (J&J) is carrying on its revengeful attack on our firm. That attack has taken several forms, the latest being a court filing. On May 20, J&J filed a “Notice of Intent to Serve Subpoena” to Beasley Allen. The subpoena seeks irrelevant, overly burdensome, and privileged documents, including non-existent third-party litigation funding and purported communications exchanged between Beasley Allen and the press. The subpoena also seeks privileged settlement communications between Beasley Allen and the firm’s clients. 

Andy Birchfield, who has led the talc litigation for Beasley Allen, has previously testified in the talc litigation that there has been no litigation funding received by Beasley Allen in any manner relevant to talc.  Thomson Reuters, a third-party funding company, has provided an affidavit refuting the claims made by J&J.I can say without reservation that Beasley Allen has never received any litigation funding from any source relating to the talc litigation. 

J&J has not demonstrated to any degree why the discovery sought from Beasley Allen and Thomson Reuters is relevant. For example, the subpoena seeks “all” communications and documents with Thomson Reuters concerning J&J’s proposed reorganization plan and solicitation of “personal injury plaintiffs.” Communications with Thomson Reuters bear no relevance to the talc litigation whatsoever. Whether our firm has communicated with news organizations is not reasonably calculated to lead to the discovery of admissible evidence.  

The subpoena should be quashed by the court because J&J seeks Beasley Allen’s attorney-client privileged communications, including “All Documents, Communications, or Agreements” that concern the “authority to settle or otherwise resolve” the asbestos-talc litigation. Documents and communications related to settlement legal strategy between lawyer and client are privileged. Similarly, J&J is not entitled to Beasley Allen’s attorney work product.

J&J must be put on notice that its repeated abuses of the federal courts – including their unwarranted attacks on our firm – cannot continue. This company has exhibited conduct that is contrary to law and applicable rules of evidence. It’s evident that J&J is desperate and that they will do anything to avoid being held accountable for their massive wrongdoing. Their goal is to block justice in the courts for the talc victims.  It’s our responsibility to make sure that doesn’t happen. We are in this battle to the end. 

An opinion from the U.S. Supreme Court on June 27 in the Opioid Litigation involving the bankruptcy court is extremely important for the talc litigation. We will discuss it more fully in the Opioid Section. Without any doubt this opinion is very bad news for J&J.

The $700 Million Settlement By J&J To Resolve State Attorney Generals’ Talc Marketing Lawsuits 

In May, J&J proposed a $6.5 billion settlement by way of a reorganization plan for its subsidiary, LLT Management LLC, formerly LTL Management LLC, to address ovarian cancer claims linked to its talc-based baby powder. The plan requires the approval of at least 75% of claimants and aims to resolve nearly all pending U.S. lawsuits. This is another attempt by J&J to use the bankruptcy court to avoid its legal and moral responsibilities to the hundreds of thousands of innocent persons who trusted J&J. We will address that aspect of the talc litigation below. 

On June 11, a coalition of attorneys general from 43 states, including Alabama, announced a $700 million settlement with Johnson & Johnson, concluding claims that the company misrepresented the safety of its talcum products. The settlement, which had been announced in July, awaits a judge’s approval in Suffolk Superior Court. Once approved, the settlement will result in J&J stopping the sale and production of talc products in the U.S. 

It should be noted that there are a tremendous number of individual lawsuits alleging asbestos contamination and cancer risk pending around the country. This settlement doesn’t include those cases which number in the thousands. 

Massachusetts Attorney General Andrea Joy Campbell, in a joint statement with her counterparts, stated:

For years, Johnson & Johnson placed its profits over the health and safety of consumers, misleading them about the purity of its products. This settlement halts the company’s detrimental actions and safeguards consumers in Massachusetts and beyond.

An Oregon jury recently determined that J&J must pay $260 million to a woman who developed mesothelioma, from inhaling asbestos in its talcum powder. The verdict, delivered in Multnomah County, assigned 99.9% liability to J&J and 0.01% to LTL, awarding $200 million in punitive and $60 million in compensatory damages.

Source: Law360

J&J’s Third Bankruptcy Plan In Talc Litigation Compromises Women’s Rights 

Andy Birchfield and Mike Papantonio, representing individuals in the talc cancer litigation, are opposing Johnson & Johnson’s (J&J) third bankruptcy filing. They label it as a blatant attempt by J&J to limit its liability for talc-related cancer claims. They correctly state that accepting J&J’s “prepackaged” Chapter 11 plan without thorough review of the evidence and science undermines the multi-million-dollar verdicts previously awarded to talc claimants. J&J is undermining plaintiffs’ rights by pushing for a settlement that would significantly undervalue their individual claims.

The Supreme Court opinion in the Opioid Litigation mentioned above applies to and virtually destroys any hope J&J has for its bankruptcy ploy to shield J&J from liability to be successful. That opinion should end the fraudulent efforts by J&J to cheat the system and thousands of J&J victims.  The message from the Supreme Court opinion is loud and clear!

J&J’s strategy involves soliciting law firms to settle ovarian cancer lawsuits for much less than their potential worth, requiring a 75% approval rate from claimants. Andy and Mike rightfully warned of J&J’s “ballot-stuffing” tactics to achieve this supermajority. That warning was before the Supreme Court opinion was issued. 

J&J is now spending huge sums on TV ads to support their third bankruptcy attempt. Recent research published in the Journal of Clinical Oncology supports the link between genital talc use and ovarian cancer, particularly among frequent and long-term users. That has solidified the claims against J&J. Despite J&J’s knowledge of the cancer risks, recent verdicts, such as a $260 million award to an Oregon woman and a $45 million award in Chicago, reflect the substantial value of these claims.

Plaintiffs have filed a class action lawsuit accusing J&J of fraudulent conveyance and manipulation of the bankruptcy code to delay trials and resolutions. We are calling for an end to J&J’s tactics. The Supreme Court opinion shuts the door on this matter.

I totally agree with Andy, who has said forcefully: “It’s time J&J’s tactics were brought to a halt.” The highest court in the land agrees!

Beasley Allen Talc Litigation Team

The Talc litigation continues to progress, with both ovarian cancer and mesothelioma trials scheduled in various state and federal courts throughout the country for the remainder of 2024 and into 2025. But, the third fraudulent attempt by J&J to use the bankruptcy court has, to some degree, diverted Beasley Allen’s efforts.  However, let’s make it clear– Beasley Allen is totally committed to this battle and will continue to fight the good fight in the right way to the end. 

Beasley Allen lawyers Leigh O’Dell and Ted Meadows head our Talc Ovarian Cancer Litigation Team. They have been directly involved in all phases of the talc litigation from the beginning. It has been a tough battle but a critically important and necessary one. The team handles claims of ovarian cancer linked to talcum powder cases. Several key team members continue to focus on Johnson & Johnson’s blatant abuse of the bankruptcy system. As stated above, that battle is not over. The team continues to fight for our clients in an effort to see that they obtain justice.

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

The Opioid Litigation

Supreme Court Rejects Third-Party Liability Shields in Purdue Bankruptcy Plan

The U.S. Supreme Court has ruled against the use of nonconsensual third-party releases in bankruptcy cases, a decision impacting the Purdue Pharma LP case. In a 5-4 vote, Justice Neil Gorsuch stated that the Bankruptcy Code does not permit discharging claims against nondebtors without the claimants’ consent. This ruling overturns a previous decision by the Second Circuit and sends the case back for further proceedings.

The court said that the bankruptcy court lacked the authority to grant the Sacklers immunity from future lawsuits. The Sacklers had agreed to pay up to $6 billion toward settlements if granted legal immunity, a condition now invalidated. Justice Gorsuch criticized the Sacklers for not seeking personal bankruptcy and not offering enough of their assets. The proposed $6 billion settlement amount was grossly inadequate to meet the value of the pending claims. 

The case at issue highlights Purdue’s role in the opioid crisis and the Sacklers’ past management of the company. Despite Purdue’s bankruptcy filing, the Sacklers did not personally file for bankruptcy but attempted to use it to shield them from liability. 

The ruling will certainly have significant implications for the Sackler family, owners of Purdue Pharma, potentially exposing them to personal liability in the opioid crisis. The Sacklers had offered up to $6 billion for a release from claims, but the U.S. Trustee’s Office has consistently opposed this, arguing it’s not covered under the Bankruptcy Code. The Supreme Court’s decision supports this view, indicating that such releases are not authorized, especially without the consent of the affected creditors.

Previously, Purdue Pharma filed for bankruptcy and reached a settlement with several states over its role in the opioid crisis, with the Sacklers agreeing to contribute billions to a trust fund. However, the legality of third-party releases has been contested, leading to a series of appeals and the recent Supreme Court review. The high court’s decision to reject the liability shield provision now leaves the door open for further legal actions against the Sackler family.

The official committee of unsecured creditors is represented by Mitchell P. Hurley, Arik Y. Preis, Sara L. Brauner, Pratik A. Shah, Z.W. Julius Chen and Lide E. Paterno of Akin Gump Strauss Hauer & Feld LLP.

William K. Harrington, the U.S. trustee for the Second Circuit, is represented by Solicitor General Elizabeth B. Prelogar, Brian M. Boynton, Curtis E. Gannon, Masha G. Hansford, Michael S. Raab, Michael Shih, Sean R. Janda, Lawrence H. Fogelman, Peter Aronoff and Benjamin H. Torrance of the U.S. Department of Justice, and Ramona D. Elliott, Nan Roberts Eitel, P. Matthew Sutko, Beth A. Levene and Sumi K. Sakata of the Executive Office of the U.S. Trustee.

The case is William K. Harrington v. Purdue Pharma LP et al., case number 23-124, in the Supreme Court of the United States.

Sources: Law360 and MSNBC

Baltimore Secures $45 Million Settlement With Allergan In Landmark Opioid Case

The City of Baltimore has settled its lawsuit against Allergan, agreeing to a $45 million settlement—an amount the city has described as “unprecedented.” This settlement with Allergan Finance LLC, a subsidiary of AbbVie, follows Baltimore’s decision to reject broader national settlements previously made by Allergan. By not participating in those agreements, Baltimore avoided a smaller settlement of approximately $7 million over seven years. Instead, the city will now receive the entire $45 million sum at once.

The settlement amount surpasses those obtained by many states in their individual settlement agreements with Allergan. For example, Maryland reached a $38 million settlement with the company in February, to be paid out over seven years. Compare that to Baltimore’s $45 Million paid immediately. 

Baltimore officials have hailed the settlement as a landmark victory in the nationwide opioid litigation, validating the city’s choice to opt out of the collective settlements that were accepted by most other states, counties, and cities in recent years.

A minimum of $10 million from the settlement will be allocated to community initiatives targeting Baltimore’s opioid crisis. Additionally, Mayor Brandon Scott intends to establish a committee to monitor the expenditure of the settlement funds.

The lawsuit focused on two specific Allergan medications, Kadian and Norco, which accounted for less than 0.5% of the opioids distributed to Baltimore’s pharmacies.

Baltimore continues to pursue claims against other pharmaceutical entities, including Johnson & Johnson, McKesson, Cardinal Health, AmerisourceBergen, Walgreens, CVS, Teva, and former Insys CEO John Kapoor. These defendants are linked to over 80% of the opioids supplied to pharmacies in Baltimore.

Baltimore is represented by Sara Gross and Thomas Webb of the Baltimore City Department of Law and Bill Carmody, Seth Ard and Sy Polky of Susman Godfrey LLP.

The case is Mayor & City Council of Baltimore v. Purdue Pharma LP et al., case number 24-C-18-000515, in the Circuit Court of Maryland for Baltimore City.

Source: Law360

Arkansas Attorney General Files Suit Against Pharmacy Benefit Managers

Arkansas’ Attorney General Tim Griffin has filed a lawsuit against Optum Inc. and Express Scripts Inc., accusing them of exacerbating the opioid crisis for profit. The suit alleges that these pharmacy benefit managers (PBMs) negotiated favorable deals with opioid manufacturers and failed to regulate opioid prescriptions adequately. 

It’s alleged that the PBMs’ actions have significantly contributed to the state’s opioid epidemic, citing Arkansas’ high rate of opioid dispensation. The lawsuit also accuses the PBMs of creating a public nuisance by allowing the abuse and over-prescription of opioids to persist. 

This legal action follows similar claims in other states, where PBMs are increasingly becoming the focus after opioid producers and distributors have settled previous lawsuits. Optum has denied the allegations, in the lawsuit addressing the opioid crisis. 

Arkansas is represented by Tim Griffin of the Arkansas Attorney General’s Office, Gary Rogers of Hilburn & Harper Ltd., John L. Davidson of Davidson Bowie PLLC, and James L. Ward of McGowan Hood Felder & Phillips LLC.

The case is the State of Arkansas vs. Optum Inc. et al., case number G0CV-24-5073, in the Pulaski County Circuit Court.

Source: Law360

CAMP LEJEUNE LITIGATION

Camp Lejeune Update

There has been a great deal of activity in the Camp Lejeune MDL Litigation. The parties are selecting cases for trial. Plaintiffs’ have their picks for bellwether trials in the Camp Lejeune Litigation, submitting three cases each for bladder and kidney cancer, leukemia, Non-Hodgkin’s Lymphoma, and Parkinson’s disease. 

The magistrate judge overseeing discovery ruled for the plaintiffs on June 11, finding that Dr. Christopher Portier’s testimony will go forward. The judge found Dr. Portier’s testimony relevant and that the government’s claim of undue burden and expenses of attending Dr. Portier’s deposition in Italy were ill-founded. The court highlighted that travel costs alone are insufficient grounds to prevent the deposition, especially given the significant potential impact of Dr. Portier’s testimony on all claimants. Dr. Portier was the Agency for Toxic Substances and Disease (ATSDR) Director who oversaw and was involved in water modeling and health studies for Camp Lejeune. 

The National Academy of Sciences (NAS) is a private, nonprofit institution established to provide expert advice on scientific issues. The NAS conducted a study sponsored by the Navy in 2009 to investigate the links between adverse health effects and contaminated water at Camp Lejeune. The plaintiffs served a subpoena to the NAS, asking for the report and related documents. Curiously, the NAS refused to produce these documents. 

On June 5, the court determined that individuals bringing Camp Lejeune lawsuits bear the burden of demonstrating that their harm was caused by exposure to the water at Camp Lejeune, requiring them to establish general and specific causation. Plaintiffs had argued that the CLJA’s causation standard departs from common-law tort requirements, asserting that claimants need not prove specific causation if they meet the statutory 30-day exposure requirement. They claimed that the CLJA establishes a distinct causation framework, similar to the VA’s presumption-based system for benefits.

Beasley Allen lawyers on our Camp Lejeune Litigation Team are hard at work as the August 10, 2024, deadline to submit administrative claims approaches. The firm is currently handling thousands of cases, with more clients coming in weekly.  Numerous Beasley Allen Camp Lejeune webinars addressing the various issues in this litigation are available at BeasleyAllen.com.  

Our firm has a number of lawyers and staff personnel working on this litigation. Toxic Torts Section Head Rhon Jones is heavily involved in aspects of the litigation. Other lawyers working on Camp Lejeune include Tucker Osborne, Wesley Merillat, Saima Khan, Ryan Kral, Travis Chin, Jeff Price, Elliot Bienenfeld, Matt Griffith, David Diab, Gavin King, and Elizabeth Weyerman. You can contact any of the lawyers on our litigation team if you need help with a claim or have questions about the litigation.

Court Says Camp Lejeune Victims Need Concrete Evidence Linking Water Contamination To Illnesses 

In a recent ruling, the Eastern District of North Carolina (the federal court in North Carolina overseeing the Camp Lejeune water contamination case) stated that claimants must provide evidence that their health issues were directly linked to the polluted water at the Marine base.

The court rejected the plaintiffs’ plea for a more lenient causation criterion. Instead, the court emphasized that the Camp Lejeune Justice Act of 2022 (CLJA) necessitates claimants to prove that their conditions resulted specifically from water exposure at the base.

It was noted by the court that while Congress had the option to draft the CLJA to only require a general link between the type of harm and water exposure; instead, it chose a more stringent standard of proof.

To date, approximately 227,300 claims have been filed with the U.S. Department of the Navy, and over 1,700 cases have been brought before the North Carolina federal court.

The plaintiffs argued for a relaxed standard, citing the long passage of time since the initial exposure and the government’s delay in presenting evidence. They contended that due to these delays, much of the evidence needed to establish a direct link between the water contamination and their illnesses is now outdated or inaccessible.

The CLJA was designed to remove obstacles for veterans and their families seeking compensation for the water contamination that occurred between August 1, 1953, and December 31, 1987.

The act allows individuals who resided near the U.S. Marine Corps base during that period more leeway to sue the government. However, the veterans argue that the government delayed releasing test results showing water contamination until after the statute of limitations had expired.

The legal claims aim to associate 40 different diseases, including bladder and kidney cancer, with the contaminated water at Camp Lejeune, known to contain high levels of chlorinated solvents and other pollutants.

The government’s position is that veterans must demonstrate that their illnesses were specifically caused by the exposure, not merely based on a 30-day stay at the base and a diagnosis of a related illness.

Highlighting the complexity of the litigation, U.S. District Judge James C. Dever III remarked that resolving each case at the standard pace would exceed the duration of the Roman Empire. The veterans argue that a streamlined trial process focused on general causation, statutory exposure, and damages would facilitate a more efficient and consistent resolution.

The veterans and families are represented by J. Edward Bell of the Bell Legal Group PLLC, Zina Bash of Keller Postman LLC, Elizabeth J. Cabraser of Lieff Cabraser Heimann & Bernstein LLP, W. Michael Dowling of The Dowling Firm PLLC, Robin L. Greenwald of Weitz & Luxenberg PC, James A. Roberts III of Lewis & Roberts PLLC, and Mona Lisa Wallace of Wallace & Graham PA.

The case is Camp Lejeune Water Litigation v. U.S., case number 7:23-cv-00897, in the U.S. District Court for the Eastern District of North Carolina.

Source: Law360

Camp Lejeune Litigation Team 

Beasley Allen lawyers on our Camp Lejeune Litigation Team are hard at work and are still taking on new cases. Currently, the firm is handling thousands of cases with more clients coming in weekly.  There are numerous Beasley Allen Camp Lejeune webinars addressing the various issues in this litigation that are available at BeasleyAllen.com. 

Our firm has a number of lawyers and staff personnel working on this litigation. Toxic Torts Section Head Rhon Jones is heavily involved in aspects of the litigation. You can contact any of the lawyers on our litigation team if you need help with a claim or have questions about the litigation.

SOCIAL MEDIA LITIGATION

Meta Litigation update

Beasley Allen represents individuals suing the entities responsible for the creation and dissemination to the public of the Facebook, Instagram, Snapchat, TikTok, and YouTube products, without adequate protections or warnings, which have caused hundreds, if not thousands, of adolescents to commit suicide, experience frequent periods of suicidal ideation, engage in various forms of self-harm, develop eating disorders, suffer from severe depression and anxiety, among other harms, which can cause or contribute to additional diseases.          

Plaintiffs have overcome defendants’ efforts in federal court to dismiss litigation in the Social Media Addiction/Personal Injury Product Liability Multidistrict Litigation (MDL) before the United States District Court for the Northern District of California. Unfortunately, Judge Carolyn Kuhl in the Social Media Judicial Council Coordination Proceeding (JCCP) in Los Angeles County dismissed the school districts claims in June. 

This ruling in the state court litigation does not affect the federal court litigation. Discovery against defendants is still well underway in the MDL in the form of written discovery and multiple depositions, with much more to follow. Jury selection is scheduled to begin for a trial in California federal court in October 2025.        

Supreme Court Will Review Meta Investor Lawsuit Concerning Risk Disclosure Practices 

The U.S. Supreme Court has agreed to consider Meta Platforms’ challenge to a ruling that revived a lawsuit over the Cambridge Analytica scandal. Meta argues that the Ninth Circuit court took an unusual stance by allowing the case to proceed, which could create a precedent for what companies must reveal about potential risks.

That case revolves around a significant drop in Facebook’s share price after it was disclosed that Cambridge Analytica misused the data of millions of users. This led to a large fine and Facebook (now Meta) establishing a privacy oversight committee.

The Supreme Court will examine whether companies must disclose when a risk mentioned in their statements has already occurred, even if it doesn’t pose a current or future threat. The other question Meta raised relating to the standard for proving loss causation in fraud cases was not taken up by the high court.

Leading up to the appeal, the Ninth Circuit court has found that Meta’s risk statements were potentially misleading because they suggested the risk of data misuse was only hypothetical, despite past incidents. The district court rejected this argument, stating that the misuse was already known when the statements were made.

Meta’s petition to the Supreme Court highlighted a discrepancy in how courts interpret the need to disclose past events that don’t affect a company’s business. Meta argued that the Ninth Circuit’s decision is an outlier and could encourage meritless lawsuits.

Shareholders countered that Meta’s interpretation of the Ninth Circuit’s decision is incorrect, as courts generally don’t require disclosure of events that don’t harm a business. It’s their position that the Ninth Circuit ruling is neither strange nor impractical.

Supporting Meta’s position, the U.S. Chamber of Commerce and the Securities Industry and Financial Markets Association submitted a brief arguing that risk disclosures are meant for future potential risks, not past events.

Collin Walke, an expert in cybersecurity and data privacy, criticized Facebook’s stance, suggesting that it implies tech companies could ignore privacy violations without consequence if their stock prices aren’t affected. Walke, who is with the Hall Estill law firm, insists that shareholders deserve transparency about their company’s adherence to privacy regulations. That is quite obvious, and hopefully, the Supreme Court will agree. 

The shareholders are represented by Kevin K. Russell of Goldstein Russell & Woofter LLC and lawyers from Bernstein Litowitz Berger & Grossmann LLP and Robbins Geller Rudman & Dowd LLP.

The case is Facebook Inc. et al. v. Amalgamated Bank et al., case number 23-980, in the Supreme Court of the United States.

Source: Law360

Ninth Circuit Denies Meta Section 230 Shield From Scam Ads 

The Ninth Circuit has determined that Section 230 of the Communications Decency Act does not provide unlimited immunity for Meta, particularly in relation to breach of contract claims linked to deceptive ads from Chinese vendors on Facebook and Instagram. The court’s decision, which reverses a lower court’s ruling, emphasizes that Section 230 does not protect Meta as a publisher or speaker against contract-related claims. This ruling is part of a broader discussion on the scope of Section 230, with some judges suggesting a need to reevaluate its broad interpretation.

The case in question involves a class action lawsuit initiated by consumers who were deceived by scam ads on Meta’s platforms. They argue that Meta’s terms of service include enforceable promises to combat such ads, and thus, the company should be held accountable for breach of contract. While the court upheld the dismissal of other related claims, it found that the contract claims should not be dismissed under Section 230.

This decision could have significant implications for how internet companies are held responsible for content on their platforms and may lead to a more nuanced understanding of Section 230’s immunity provisions.

Plaintiffs Christopher Calise and Anastasia Groschen are represented by Mark S. Reich and Adam M. Apton of Levi & Korsinsky LLP.

The case is Christopher Calise et al. v. Meta Platforms Inc., case number 22-15910, in the U.S. Court of Appeals for the Ninth Circuit.

Source: Law360

Judge Approves Parents’ Lawsuit Against Google Over Child Tracking Concerns

A federal judge in California has allowed a child tracking lawsuit against Google to move forward. The suit alleges that Google tracked the web activities of children to target them with ads without parental consent. 

U.S. District Judge P. Casey Pitts dismissed Google’s claim that the case was filed too late, noting that the alleged illegal conduct may have continued within the statute of limitations. The plaintiffs argue that Google’s AdMob software and Tiny Labs apps, which were banned in 2018, remained problematic until at least 2021. 

The plaintiffs claim Google had actual knowledge of the data collection, which violated the Children’s Online Privacy Protection Act and other state laws. The lawsuit seeks damages and also an injunction requiring Google to delete the collected data. 

Google’s defense that it resolved the issue in a 2021 settlement was rejected by the judge, who ruled that the plaintiffs have standing to seek injunctive relief since the alleged harm continues.

The plaintiffs are represented by Patrick R. Carey and Mark N. Todzo of Lexington Law Group, and David S. Golub, Steven L. Bloch, Ian W. Sloss, Jennifer Sclar and Jonathan Seredynski of Silver Golub & Teitell LLP.

The case is A.B., a minor, by and through his guardian Jen Turner et al. v. Google LLC et al., case number 5:23-cv-03101, in the U.S. District Court for the Northern District of California.

Source: Law360

FTC Escalates Probe Into TikTok’s Privacy Measures For Kids

On June 18, the Federal Trade Commission (FTC) openly shared its decision to forward a complaint regarding TikTok and its parent company, ByteDance Ltd., to the U.S. Department of Justice. This is described as an uncommon action for the FTC. The complaint concerns potential non-compliance with a privacy agreement from 2019, specifically the commitment to safeguard children’s privacy on the platform.

The FTC, in this unusual move, made public its intensified investigation into TikTok’s handling of children’s data. The agency emphasized that such disclosures are not standard practice but were deemed necessary for the public good. I agree with that assessment. 

The FTC expressed its anticipation for ongoing collaboration with the Department of Justice to protect U.S. citizens and uphold the law impartially.

The inquiry originated from a review of TikTok and ByteDance’s adherence to a 2019 FTC order. This order required the companies to pay a $5.7 million fine for purportedly allowing children to use Musical.ly, TikTok’s precursor, without parental consent, breaching the Children’s Online Privacy Protection Act.

At that time, the settlement was the largest fine for a violation of children’s privacy. But the settlement also mandated corrective actions. These included removing all videos uploaded by users under 13 in the U.S. and establishing a separate, age-gated experience for younger users.

The FTC’s recent statement disclosed that its investigation, which probed additional potential breaches of COPPA and the FTC Act, found probable cause to believe the defendants might be breaking the law. Consequently, the Commission voted to refer the matter to the DOJ pursuant to FTC Act guidelines.

Source: Law360

The Beasley Allen Social Media Litigation Teams

Joseph VanZandt, who leads our firm’s Social Media Personal Injury Litigation Team, is co-lead counsel for the Judicial Council Coordination Proceeding (JCCP) for the plaintiffs in California State Court. Joseph is also a member of the Plaintiffs Steering Committee in the MDL, helping lead the federal social media multidistrict litigation. The two Beasley Allen litigation teams handling the social media personal injury cases are set out below.

Social Media Personal Injury Team

If you need more information on the personal injury segment of our social media litigation, or need help on a case, contact a lawyer on the firm’s Social Medial Personal Injury Litigation Team.

Joseph (who heads the team) Jennifer Emmel, Suzanne Clark, Clinton Richardson, Sydney Everett, Davis and Seth Harding. Andy Birchfield, who heads our Mass Torts Section, also works with the team.

Social Media Non-Personal Injury Litigation Team

The representation of the clients in non-personal injury cases involving the Social Media Litigation are handled at Beasley Allen by lawyers in our Consumer Fraud & Commercial Litigation Section. Litigation representing State Attorneys General is also handled by those lawyers. Ali Hawthorne, Rebecca Gilliland and Zina Nour make up that team at this juncture. Members from the personal injury team will also assist the class action lawyers as needed.

MOTOR VEHICLE & TRUCKING LITIGATION

Triumph In Tragedy: $162 Million Settlement In 15-Passenger Van Rollover Case 

Beasley Allen and Shiver Hamilton Campbell secured a total of $162 million from various defendants in a vehicle rollover case. Seven women were killed, and several others were injured in the rollover.  The settlement is believed to be Georgia’s largest arising out of a single automobile accident.

The tragic accident took place in 2021 and involved a van carrying 16 women from an addiction recovery community to a meeting in Georgia. The driver changed lanes, causing a loss of control. The van then overturned and slid across two lanes of traffic on an interstate in Georgia. The van caught fire in the incident. 

Seven of the passengers died and another nine were badly injured. This settlement is not just a testament to the two firms’ legal prowess and dedication to these clients, but also a light at the end of the tunnel for the families affected.

The lawsuits focused on various factors contributed by the defendants that came together to make the van more likely to roll over.  The firms’ strategic approach—meticulously selecting the order and timing of settlements—allowed pressure to be put on the defendants in a strategic order while also preventing the defendants from deflecting blame onto each other.  Like many cases, this case transformed a great deal from when it originally started.  Piecing together the various puzzle pieces that led to this incident and determining how they contributed to this horrific loss was part of the challenge to the two firms.

Beasley Allen’s Chris Glover, Managing Attorney of our Atlanta Office, had this to say: 

This case again shows me how well this team works. It isn’t the first time. It won’t be the last. Things work out well when you have your priorities in order.  At work, that’s putting those seven women who died and eight who were injured first. We did that, and it shows. You won’t hear me say I’m proud too often. I may be wrong for doing so now, but I’m proud as heck to be a part of this team.

Co-lead counsel Alan Hamilton of Shiver Hamilton Campbell added:

This is among the most tragic cases I have ever handled.  Our two firms collaborated closely, daily, for years to get justice for these survivors and family members of those who died.  This case was extremely complex, both legally and factually.  Every single person on the team had to do their part to achieve this outcome.

This case was more than a legal challenge; it was a journey that profoundly transformed the litigation team’s professional lives and reinforced their commitment to justice.  Beasley Allen represented five of the wrongful death claims and four injury claimants.  Shiver Hamilton Campbell represented two wrongful death claims and another four injury claimants. Commenting on the collaboration, Chris stated: 

It was an honor to work together on this case to achieve what we believe is justice for these deserving women.  They did nothing to contribute to this horrific incident, yet their lives were either lost or derailed. This is why I’m a lawyer.

Alan  Hamilton added: 

The work we did together for our clients will be one of the most memorable and meaningful experiences of my career.

The Beasley Allen team was led by Chris Glover, who worked alongside Greg Allen, Alyssa Baskam, and Stephen Mulherin.  Alan Hamilton led the Shiver Hamilton Campbell team with attorneys Kyle Wallace and Sarah Adle.

A Look At Automatic Breaking In Commercial Vehicles

Automatic emergency braking systems use forward-looking sensors, typically radars and/or cameras, to detect objects ahead of a vehicle.  These systems generally include some combination of: 

• forward collision warning, 
• crash imminent braking, and 
• dynamic brake support. 

Forward collision warning takes information from the radar and/or camera to assess the likelihood of a crash and then warn the driver.  Crash imminent braking automatically applies the brakes when a crash is likely, and the driver has not made a manual attempt to avoid the crash.  Dynamic brake support automatically assists the driver in braking when a crash is likely, and the driver has applied insufficient brake pressure to avoid the crash. 

This month (July 8) a new rule will go into place requiring automatic braking systems to be placed on light vehicles, but that rule does not yet apply to commercial trucks. The rule, FMVSS 127, will require automatic emergency braking to be standard on all passenger cars and light trucks (meaning cars and trucks with a gross vehicle weight of 10,000 pounds or less) by September 2029, a rule which is expected to greatly reduce rear-end and pedestrian crashes across the country. The National Highway Traffic Safety Administration (NHTSA) projects this standard will save at least 360 lives and prevent at least 24,000 injuries per year.

NHTSA is in the process of setting out a standard for when “heavy” vehicles, like tractor-trailers and other vehicles with a gross vehicle weight of more than 10,000 pounds, must implement automatic emergency brake systems.  Opponents of the standard claim it could cost the trucking industry millions of dollars to equip trucks

But NHTSA is undeterred due to the significant safety benefits it expects from implementation.  According to NHTSA, automatic braking systems could prevent nearly 20,000 rear-end accidents where a truck is the striking vehicle, preventing almost 9,000 injuries and 155 lives.  

It should be noted there is currently no deadline by which commercial trucks have to implement automatic braking systems. 

Government agencies and other special interest groups have been evaluating the effect of forward collision avoidance systems for many years.  In 2015, the National Transportation Safety Board (NTSB) issued a Special Investigation Report called “The Use of Forward Collision Avoidance Systems to Prevent and Mitigate Rear-End Crashes.” 

The NTSB report found that rear-end crashes resulted in many fatalities and represented almost half of all two-vehicle crashes, and concluded that “collision warning systems, particularly when paired with active braking, could significantly reduce the frequency and severity of rear-end crashes.” 

The report also issued recommendations to NHTSA as well as vehicle manufacturers concerning the implementation of automatic braking systems.  Since that report, commercial trucking stakeholders and agencies have worked together to find a way to implement automatic braking in commercial vehicles in an economically feasible manner. 

In 2020, the Federal Motor Carrier Safety Administration (FMCSA) published research and testing concerning the implementation of automatic emergency braking systems in commercial vehicles.  That paper identified barriers to truck fleets’ voluntary adoption of automatic emergency braking and actions to mitigate or eliminate those barriers, as well as a core strategy for reaching 90% adoption of automatic braking in new heavy-duty vehicles. 

Proponents say there is no doubt that automatic braking will save lives. Research by the Insurance Institute for Highway Safety found that implementing automatic emergency braking reduces rear-end crashes by 39% compared with similar vehicles lacking the option. 

The University of Michigan Transportation Research Institute concluded that collision prevention systems would reduce truck fatalities by approximately 44% to 47%.  

That is why the Truck Safety Coalition, the Center for Auto Safety, Advocates for Highway and Auto Safety, and Road Safe America have all petitioned the NHTSA to make it mandatory. 

Beasley Allen’s Mobile Office Files Trucking Case

Wyatt Montgomery, a Beasley Allen lawyer in the firm’s Mobile office, has recently filed a lawsuit against the driver of a commercial log truck and the timber company that owned the log truck and also employed the driver.

The lawsuit alleges the log truck ran a red light on Highway 43 in Clarke County, Alabama, resulting in a collision with our client who sustained permanent injuries to his neck as a result of the negligent or wanton conduct of the driver and his employer.  

When an 18-wheeler, like the log truck involved, causes a wreck, the injuries that are sustained by the individuals in the other vehicles involved are typically more severe or catastrophic injuries than individuals involved in wrecks involving only non-commercial passenger vehicles.  One reason for this difference is because of the weight of 18-wheelers. 

Because the risk of catastrophic injury or death to those involved in 18-wheeler wrecks is greater, special care must be taken by the owners of those heavy trucks, including log trucks, to ensure their drivers are operating these vehicles safely.  One method of operating a fleet safely is by training and re-training drivers on a routine basis. 

Significant discovery should be done to uncover what, if anything, trucking companies do to train and re-train their drivers to combat driver complacency while operating these dangerous vehicles on the highway.  The lawyers at Beasley Allen in our Personal Injury & Products Liability Section have extensive knowledge and experience in conducting discovery in cases involving big trucks. The information obtained adds value to the cases and helps to maximize recovery by trial or settlement.  

Class-Action Lawsuit Claims Defect In Select Kia And Hyundai Models  

Since 2010 over 3,100 vehicles from Hyundai and Kia have been involved in fires, resulting in injuries to 103 individuals and one fatality. A class action lawsuit is now underway to seek accountability from the manufacturers.

Automotive specialists say these incidents stem from flawed engine designs. The Center for Auto Safety emphasizes the importance of maintaining these widely used vehicles properly.

In the class-action lawsuit against Hyundai and Kia, it’s claimed that certain models produced between 2010 and 2020 are defective, leading to engine problems and fires. The deadline for submitting a claim for potential compensation is July 8.

Michael Brooks, the Executive Director of the Center for Auto Safety, had this to say about the settlement: 

As part of the settlements, Kia and Hyundai are offering an extended warranty of 15 years or 150,000 miles. To be eligible, owners must have their vehicles inspected and updated with a knock sensor detection system at a dealership.

Brooks advises keeping all maintenance records and receipts. On that subject, he states further: 

Owners must provide extensive maintenance documentation to qualify for the warranty. Many consumers feel shortchanged by Kia and Hyundai regarding their warranties.

Relating to issues with Kia and Hyundai Vehicles, Tim Dietz, a mechanical engineer, points out that the absence of an oil level sensor in these vehicles, which only have a pressure sensor, leads to unnoticed oil depletion due to the engine’s design. Regular oil checks are essential for safety. Dietz made this observation: 

Lawsuits began in 2017, and the issues persist in 2024, suggesting the companies find lawsuit settlements more cost-effective than redesigning the engines.

Owners awaiting engine replacements and unable to use their vehicles must have submitted their claim within 90 days of the incident if it occurred within the last year.

The following are some important Dates relating to the Hyundai and Kia Lawsuits. 

For Hyundai:

• Settlement Fairness Hearing: July 15, 2024; and
• Claim Submission Deadline: January 11, 2025

For Kia:

• Settlement Fairness Hearing: July 15, 2024, and
• Claim Submission Deadline: January 11, 2025

Source: CBS News

PRODUCT LIABILITY

Seat Back Failures

When people think about the safety systems in their vehicles, seat belts and airbags typically come to mind. Have you ever considered your seat back as a safety feature? In rear-end collisions, the seat back is actually the primary form of restraint and protection. 

When the seat back fails, however, it can have devastating consequences for the occupant. If a seat back fails, it typically collapses rearward, or sometimes, the seat back actually breaks, which then results in it collapsing rearward. When this occurs, the occupant typically moves towards the rear of the vehicle and out from the seat belt, thus becoming totally unrestrained. 

Often, an occupant will sustain a severe injury by contacting structures behind them or flexing over the seat back or headrest resulting in catastrophic injuries, including, but not limited to, spinal cord injuries, traumatic brain injuries, head injuries, and death due to the severity of the injuries. 

The fact that your seat back is your primary form of restraint in a rear-end collision is another reason why you should not excessively recline your seat, for instance, to nap as a passenger in a vehicle. In doing so, you are exposing yourself to being unrestrained in a crash by negating the ability of the seat back and seat belt to restrain you. 

FMVSS 207 is the government standard for seat back strength. This test, however, is a static test that pulls on the seat back to test its strength. There is no dynamic crash test required to test a vehicle’s seat back strength. As such, many vehicles are sold without their seat backs being evaluated for proper occupant protection in rear impact scenarios.

A vehicle whose seat back has collapsed or deformed significantly rearward should be apparent due to the recline position following the crash. Also, occupants are often found at rest following the crash towards the rear of the vehicle. Lawyers at Beasley Allen have successfully litigated and resolved cases in Georgia, Alabama, and other states against manufacturers involving defective seat backs that have collapsed or deformed significantly rearward in a crash, resulting in catastrophic injuries. 

There Are Hazards Associated With Utility Terrain Vehicles (UTVs)

Utility Terrain Vehicles (UTVs), sometimes referred to as side-by-sides, have grown in popularity. According to one source, more than 6 billion UTVs are currently in operation in the United States. These four-wheel vehicles are designed for both on-road and off-road uses. UTVs are frequently used in farming operations, as leisure vehicles, for off-road enjoyment, and for a wide array of other purposes.

As UTVs have grown in popularity, so have the vehicles functions, speed, and uses.  Multiple organizations are currently working on making these vehicles safer for consumers.  One such organization is the Consumer Federal of America (CFA).  

The CFA is dedicated to pushing for changes by manufacturers and others to reduce the risks of death and injuries in these and other vehicles commonly used in off-road settings. While the data is sketchy, the CFA was able to identify 498 fatalities that resulted from the use of off-highway vehicles, including UTVs.  

According to a report by the Consumer Product Safety Commission (CPSC), dated November 2021, for the calendar year 2018, over 2,200 deaths resulted from off-highway vehicles, a category that includes All Terrain Vehicles (ATVs), Recreational Off-Highway Vehicles (ROVs), and Utility Terrain Vehicles (UTVs).  

While the fewest of the deaths in these categories occurred in UTVs, the CPSC highlighted the danger of these vehicles.  From 2016 to 2020, for example, it was believed that more than 526,900 emergency room visits resulted from injuries arising from using and operating off-highway vehicles.

The greatest safety risk with UTVs is associated with the vehicles overturning, frequently resulting in passenger ejection.  All UTVs should be equipped with seatbelts.  The safer UTVs are equipped with harness belts.  

Other safety features that should be included with UTVs are doors and side netting to help hold occupants in the vehicle. The safer UTVs will also include appropriate suspension and brakes for all terrain and an electronic collision avoidance system, which will warn the operator and occupants if hazards exist in the operation.   

Safety organizations caution against operating UTVs while under the influence of alcohol or drugs. The same organizations also encourage the use of all available safety equipment, including helmets, for drivers and passengers alike.  

Beasley Allen lawyers in our Personal Injury & Products Liability Section frequently investigate crashes involving off-road vehicles. Ben Locklar, a lawyer in our Personal Injury & Products Liability Section, is currently investigating a claim involving a Honda Pioneer that resulted in the death of the passenger.  The crash occurred when the operator of the UTV veered off the side of the road.  The vehicle crashed into a ditch and overturned.  The passenger was thrown from the vehicle, which then landed on him.  The passenger tragically died from crush injuries and asphyxiation.  

Sources: Consumer Product Safety Commission, UTV Covers, Global Market Insights and Safety Skills

Recall Alert: 117,000 Mattresses-In-A-Box Recalled Due To Fire Risk

Nap Queen is issuing a recall for approximately 117,200 of its mattresses due to a potential fire risk. The affected products are the Nap Queen Sleep Victoria Cooling Gel and Pocket Coil Hybrid Mattresses, which were available for purchase prior to October 2023. The Consumer Product Safety Commission has found that these models do not comply with the federal flammability standards.

The recall encompasses a variety of sizes and thicknesses for mattresses produced before October 2023, specifically including model numbers NQ691011, NQ691015, NQ691021, NQ691031, NQ691041, NQ691211, NQ691215, NQ691221, NQ691231, NQ691241, NQ69811, NQ69815, NQ69821, NQ69831, and NQ69841.

These single-sided mattresses feature a distinctive design with a white knit top panel patterned with wavy diamonds and a black woven side panel. The design is completed with black and yellow stitched edges. Each mattress, which was sold in a compressed box, has a label that includes the brand name “Nap Queen Sleep,” the “Victoria Hybrid” model, along with the model number and the date of manufacture.

To address the issue, Nap Queen is providing a complimentary cover to all customers who have purchased the affected mattresses. These mattresses were retailed through various outlets, including Amazon, Walmart, Target, and Home Depot, with prices ranging from $160 to $375.

For more information or to receive the free cover, customers can contact Nap Queen Sleep at their toll-free number, 866-387-6239, between 9 a.m. and 5 p.m., or visit their website.

Source: WRAL News

567,000 Portable Chargers Recalled Following Fire Incidents

The Consumer Safety Protection Commission has issued a recall for certain portable charger models that are exclusively available at Costco due to a risk of overheating during charging, which could lead to potential fire and burn hazards.

The recall, announced on June 20, affects over 567,000 units of the myCharge POWER HUB All-In-One 10,000mAh portable chargers, specifically those with the model numbers AO10FK-A, AO10FK-B, and AO10FK-C.

These black portable chargers feature two built-in cables and foldable wall prongs for recharging the device. The brand name “myCharge” is prominently displayed on the front side along the longer edge, while the model number can be found on the rear of the charger.

Source: AL.com

AVIATION LITIGATION

FAA Commits To Enhanced Boeing Supervision After Senate Testimony 

FAA chief Mike Whitaker reported in testimony before a Senate committee that since the significant incident involving a 737 Max 9 jet in January, the FAA has increased its oversight of Boeing’s manufacturing processes. He said that the response includes keeping a limit on the production of 737 Max jets while Boeing works on improving its safety culture according to an FAA-enforced action plan. 

Boeing submitted this plan as a solution to the identified safety and quality-control problems within its operations. The FAA has also enhanced its supervisory practices by integrating more aviation safety inspectors and adopting a more engaged oversight strategy. This shift moves away from a previously criticized passive, audit-focused approach towards a more proactive, inspection-inclusive method. 

These changes come in the wake of safety concerns raised by the door plug incident on an Alaska Airlines flight, prompting greater scrutiny of Boeing’s production and safety standards. Both FAA’s Whitaker and members of the Senate have called for assurances that Boeing is genuinely implementing the necessary safety measures, stressing the importance of a robust safety culture. 

The FAA’s actions, including grounding certain jets and mandating Boeing to pause increased production of new 737 Max jets, reflect a commitment to ensuring aircraft safety and rectifying previous oversights in Boeing’s manufacturing processes.

Senator Richard Blumenthal, D-Conn., the chair of the Senate Permanent Subcommittee on Investigations, said recently that Boeing had lost its way. He made this observation:

In the wake of those tragedies, Boeing promised to turn itself around, planes were grounded, executives were dismissed and promises were made. What we’ve seen since – from whistleblowers – is that, in fact, the manufacturing issues, the retaliation against whistleblowers, nonconforming parts, quality inspections skilled, issues concealed from the FAA (and) evidence hidden, all have continued.

Blumenthal added: 

But after the January incident, the façade literally blew off the hollow shell that had been Boeing’s promises to the world.

Ahead of the hearing, Senator Blumenthal revealed that a new Boeing whistleblower has come forth with allegations that Boeing has improperly documented, tracked, and stored parts that were damaged or otherwise “out of specification,” and that those parts are likely being installed on airplanes. The subcommittee heard from more than a dozen whistleblowers.  

Boeing’s CEO, David Calhoun, also appeared before the Senate panel. He attempted to make the company’s case to Congress. His message stressed Boeing’s dedication to safety while admitting to shortcomings in management’s response to whistleblowers who raised alarms about past dubious design and manufacturing practices. Calhoun faced a lengthy session of intense questioning by Senators.

Calhoun assumed the role of Boeing’s CEO in January 2020, succeeding Dennis Muilenburg, who was dismissed following the 737 Max 8 crisis that began with the Lion Air Flight 610 crash in October 2018, which claimed 189 lives, and continued with the Ethiopian Airlines Flight 302 crash in March 2019, which resulted in 157 fatalities. Calhoun is set to leave Boeing at the year’s end. 

The FAA will maintain restrictions on Boeing’s production of 737 Max jets as the company continues to revamp its safety culture. Hopefully, the company will be successful. But the public will be watching, as will the FAA and Congress, to make sure Boeing improves its safety culture and corrects all its problems. 

Source: Law360

WORKPLACE LITIGATION

Georgia Trends In Workplace Safety

Every year, Georgia workers are injured and killed in job-related incidents. It is important to document these incidents to understand why they occur and to take steps to improve workplace safety.  The Bureau of Labor Statistics (BLS) is the source of information regarding reportable workplace injuries and deaths. In February of this year, the BLS released the 2022 statistics for fatal occupational injuries in the state of Georgia. The raw data provided in the release provides insight into whether the laws and systems in place to protect workers are serving their purpose.  

According to the BLS, Georgia saw 209 workplace fatalities in 2022, with 5,486 workplace fatalities nationwide. Of those Georgia workers killed on the job in 2022, 44 were self-employed while 165 were wage and salary employees. The BLS explained that the transportation sector saw the most fatal events statewide across all categories of workers, whether their employment was self-generated, salaried, or wage-based. Unfortunately, transportation incidents accounted for 42% of the 209 workplace fatalities in Georgia in 2022. Notably, BLS acknowledged that none of the 209 workplace deaths could be attributed to overexertion and/or bodily reaction. Contact with objects and equipment caused 28, or 13%, of all Georgia workplace deaths in 2022. 

When a worker dies in an on-the-job injury, the loss extends beyond the workplace to the family that lost a loved one and a provider.  Because many of the deaths are caused by interactions with some form of industrial machinery, it is important for manufacturers to ensure that robots and other machines are designed with adequate safety devices in place.  In turn, the employer has a responsibility to properly train employees and ensure that manufacturer provided safety devices are installed and properly maintained.  Safer industrial machines will result in a reduction of workplace deaths.  

Source: U.S. Bureau of Labor Statistics 

Lawsuits Filed Involving Fatal Incident At University Of Chicago Medical Center Construction Site

Litigation has commenced relating to a workplace incident on a construction site at the University of Chicago Medical Center. Two men fell 100 feet from scaffolding during high winds at the site. 

The first lawsuit was filed on behalf of Jeffrey A. Spyrka, who was severely injured in the fall. A wrongful death lawsuit on behalf of the family of David O’Donnell, who died in the fall will soon be filed.

The first lawsuit alleges that two construction companies, Turner Construction Company and Adjustable Forms Inc., failed to take appropriate safety measures to ensure the scaffolding was properly secured. According to the lawsuit, the companies: 

• “failed to make reasonable inspections,” and “failed to warn the workmen on the site of the risk of severe winds that were imminent.”
• “failed to provide a safe and properly constructed scaffolding or alternate suitable means of working on the exterior of the building at significant heights.”

The second lawsuit will be filed when a special administrator is appointed by the court to handle the estate.

The Occupational Safety and Health Administration (OSHA) is investigating the companies named in the lawsuit and the employers of the workers involved. OSHA said it will release its findings within six months.

Both lawsuits seek monetary damages. The plaintiffs are represented by Louis Cairo of GWC Law, a very good Chicago firm. 

Source: NBC Chicago

INSURANCE LITIGATION

A Look At Wrongful Conduct Activity Relating To An Insurance Policy

We will take a look at a case in Florida involving the wrongful conduct by an insurance company that resulted in coverage under an existing policy of insurance being severely affected. The case, Silverman v. Sun Life & Health Ins. Co., 1:22-cv-22339-GAYLES (S.D. Fla. Jan. 24, 2024), dealt with a disability insurance policy and certain activity by the company.

Cheryl Silverman, a lawyer, had secured her future with two separate insurance policies—one private and the other group long-term disability insurance policy. Neither of these policies had offsets, a feature that reduces benefits if other disability payments are received. This dual coverage ensured the policyholder was fully protected without any reduction in benefits.

However, in 1998, the group insurance provider surreptitiously replaced Silverman’s policy with one that introduced offsets for other disability benefits and significantly lowered the minimum monthly benefit from 11% of her earnings to only $100. This change was masked under the guise of maintaining the same plan features, such as deductibles and benefit maximums. Despite careful review requests and a bill implying consent upon payment, Silverman says she was preoccupied with her legal practice and unwittingly agreed to the new terms of the policy.

Silverman, now disabled, discovered in 2020 a stark reality. Her individual policy honored its commitment, but the group policy from Sun Life & Health Insurance Company (Sun Life) defaulted to the $100 minimum. Silverman pursued resolution through appeals. When that failed, she filed a civil lawsuit. In her lawsuit, she accused Sun Life of fraudulent inducement and misrepresentation, invoking state consumer protection laws.

Sun Life sought to dismiss the case, citing ERISA preemption, which could nullify state law claims. However, the court, drawing on precedent from Cotton v. Mass. Mutual Life Ins. Co., 402 F.3d 1267, 1281 (11th Cir. 2005), denied the motion. This allows Silverman’s claims to continue. The suit did not seek benefits under the policy but rather was based on fraudulent practices by the company.

Source: Martin Law Group

EMPLOYMENT LITIGATION

Pregnant Worker’s Fairness Act

Introduction

The Pregnant Workers Fairness Act (PWFA) went into effect on June 18, 2024. The role of this Act is to ensure that pregnant and postpartum employees are able to receive necessary accommodations without experiencing retaliation and/or discrimination in the workplace. The Act is tailored to accommodations only and does not replace already existing laws that make it illegal for employers to discriminate based on pregnancy and related conditions. 

The PWFA requires employers with 15 or more employees to provide reasonable accommodations where a “qualified employee” has known limitations related to pregnancy, childbirth, postpartum, and related medical conditions. Employees who face discrimination or retaliation based on the provisions covered in the PWFA can file a claim with the Equal Employment Opportunity Commission (EEOC) within 180 days of the date of the violation. Keep in mind that there may be exceptions for employers who face an “undue hardship” for providing a reasonable accommodation under the PWFA. 

What is a “Qualified Employee?”

To be a qualified employee for the protections provided by the PWFA, the employee must be able to perform the “essential functions” of the job either while having accommodations or without. According to the EEOC, this will not be a difficult burden for the employee to meet because most positions can be modified with reasonable accommodation for the pregnant worker. Even in situations where an employee can’t do the essential function of the job, they may still be qualified so long as (1) the inability to do the essential function is temporary, (2) the function can be performed in the “near future,” and, (3) the inability can be reasonably accommodated. 

What is a “Known Limitation?”

The PWFA defines limitation as either a physical or mental condition that is related to pregnancy, childbirth, postpartum, or related condition.  A limitation is considered known when it has been communicated to the employer by either the employee or the employee’s representative. Additionally, a limitation can even be episodic (meaning that, like morning sickness, the condition is not continuous). 

What Constitutes Undue Hardship?

If the employer will experience “significant difficulty or expense” in granting accommodations, it is considered an undue hardship, and the employer will not have to provide the accommodation. 

How can Workers Request Accommodations?

There is no specific language needed to be granted accommodation under the PWFA. Simply notifying the employer of the limitation and that an accommodation is needed will suffice for a request for accommodations. The EEOC expects that this process will be interactive with the employer and employee having conversations (either verbal or written) about the needs and available accommodations for those needs.  Additionally, the EEOC expects that employers will know that the need for accommodations will possibly change throughout the pregnancy and postpartum period.

Can the Employer Require a Doctor’s Note?

Maybe. Most circumstances should not require the employee’s healthcare information to be provided to the employer for accommodation. The request for healthcare information must be reasonable. 

Reasonable Request for Health Information 

• A statement of the mental or physical condition;
• A statement confirming that the condition is related to pregnancy, childbirth, etc.; or, 
• A statement that explains the work adjustment needed when the change is not obvious.  

Unreasonable Request for Health Information

• A statement when the employer already is aware of the condition (like when a statement was provided at the beginning of the pregnancy, but additional accommodations are needed at a later time); 
• A limitation is obvious;
• The employee needs additional breaks to eat, drink, or use the restroom or where an employee has a standing position but needs an accommodation to allow sitting; 
• Lactation needs; or, 
• When the employer otherwise wouldn’t ask for documentation in other situations.  

Beasley Allen lawyers consistently monitor new laws, regulations, and rules that impact employees, and they are ready to review these claims as the final rule becomes effective. If you have a client with an employment-related case, contact our Employment Litigation Team consisting of Larry Golston, Leon Hampton, Lauren Miles, and Jessi Haynes.

Source: U.S. Equal Employment Opportunity Commission

The Beasley Allen Employment Litigation Team

Lawyers in our Consumer Fraud & Commercial Litigation Section handle employment litigation for the firm. These lawyers also handle the firm’s Qui Tam Litigation (Whistleblower) cases. Many of the whistleblowers also have a retaliation claim related to their False Claims Act (FCA) claim. Quite often, an employee as a whistleblower is the “original source” of an FCA claim.

Our Employment Litigation Team has had some tremendous success in both employment cases and qui tam cases. Currently, the team is pursuing some high-profile cases in courts around the country.

The team includes Lance Gould, Larry Golston, Leon Hampton, Lauren Miles, Tyner Helms Jessi Haynes. Dee Miles, who heads our Consumer Fraud & Commercial Litigation Section, also works with the litigation team. 

Whistleblower Litigation

Cape Cod Hospital Reaches $24.3 Million FCA Settlement

Massachusetts-based Cape Cod Hospital will pay $24.3 million to settle claims under the False Claims Act (FCA). It was alleged that the hospital knowingly submitted claims to Medicare for heart valve procedures that did not comply with Medicare rules specifying the way in which hospitals were required to evaluate patient suitability for the procedures.

In 2015, the hospital began offering transcatheter aortic valve replacement (TAVR) procedures for patients suffering from aortic stenosis, a serious heart condition that restricts blood flow from the heart to the rest of the body.  A TAVR procedure involves replacing a patient’s damaged heart valve with an artificial one.  

At the time, Medicare rules required that hospitals engage specified clinical personnel to conduct an independent examination of prospective patients to evaluate their suitability for TAVR before the procedure.  Hospitals were also required to document the rationale for their clinical judgment and then make that rationale available to the medical team performing the TAVR procedure.

The $24.3 million settlement resolves allegations that between November 2015 and December 2022, the hospital knowingly submitted hundreds of claims to Medicare for TAVR procedures that did not comply with the applicable Medicare requirements. Sometimes, there were not enough physicians to examine a patient’s suitability for the procedure, while in other instances, physicians did not document and share their clinical judgment with the medical team responsible for the TAVR procedure.  

The settlement comes from a whistleblower complaint filed by Richard Zelman, a physician formerly employed by Cape Cod Hospital, pursuant to the qui tam provisions of the FCA.  As part of this settlement, Dr. Zelman will receive approximately $4.36 million.

If you are aware of fraud being committed against the federal or state governments, your reporting is confidential and protected by the FCA. Under that same statute, you could be rewarded for reporting the fraud you have witnessed. If you have any questions about whether you qualify as a whistleblower, or need help with a case, contact Lance Gould, a lawyer in our Consumer Fraud & Commercial Litigation Section.

Source: Department of Justice 

A $150 Million Verdict Against Janssen In HIV Drug False Claims Suit

A New Jersey federal jury has found Janssen, a Johnson & Johnson subsidiary, guilty of violating the False Claims Act (FCA) regarding the marketing of its HIV medications, Prezista and Intelence. The jury awarded $150 million in damages. 

The jury concluded that Janssen unlawfully promoted these drugs for off-label uses not approved by the FDA, resulting in over 150,000 false claims. The jury found Janssen accountable for $120 million in federal violations and $30 million in state violations but did not hold them liable under anti-kickback statutes. 

The lawsuit was filed by former Janssen sales representatives Jessica Penelow and Christine Brancaccio in 2012, exposing the company’s deceptive marketing strategies that compromised patient safety for profit. 

Despite the U.S. Department of Justice choosing not to join the lawsuit and a court’s decision that Johnson & Johnson could not be held directly liable, the case, which highlighted significant concerns over Janssen’s promotional practices, proceeded to trial. 

Janssen plans to appeal the decision, contending that their marketing was in line with FDA approvals. The relators’ counsel hailed the verdict as a victory for patient safety and taxpayer protection, anticipating that the government will recover hundreds of millions due to Janssen’s marketing practices.

Relators Jessica Penelow and Christine Brancaccio are represented by William H. Ellerbe, Michael T. Fantini, Sherrie Savett and Joy P. Clairmont of Berger & Montague PC and Peter D. Marketos, Josh Ross, Andrew Wirmani, Adam Sanderson and Whitney Wendel of Reese Marketos LLP.

The case is U.S. et al., ex rel. Jessica Penelow et al. v. Johnson & Johnson et al., case number 3: 12-cv-07758, in the U.S. District Court for the District of New Jersey.

Source: Law360

The Beasley Allen Whistleblower Litigation Team 

Beasley Allen lawyers continue to represent whistleblowers across the country in claims against multiple bad or corporate actors. The whistleblower litigation is widespread and increasing at a rapid pace.

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 Beasley Allen lawyer for a free and confidential evaluation of your claim. Members are Lance Gould, Larry Golston, Lauren Miles, Leon Hampton, Jessi Haynes and Tyner Helms. 

Premises Liability Litigation

Nightclub Nightmare: Beasley Allen Files Lawsuit After Deadly Buckhead Shooting

Beasley Allen lawyersParker Miller and Key Lamberth, along with Michael Sterling, a lawyer with The Cochran Firm, have filed a lawsuit on behalf of the parents of 21-year-old Mariam “Mari” Creighton. The case involves their daughter’s tragic shooting death at the Elleven45 Lounge in Buckhead.

The Mother’s Day shooting shocked the City of Atlanta and the Buckhead community. On May 12, while Elleven45 entertained numerous patrons young and old, the location allowed a violent patron to enter the Lounge with a loaded firearm. The armed patron was allowed to remain on the property, get into an altercation, and escalate to the point where he drew a firearm and fired numerous shots into the crowd. Amidst the chaos, six people were shot, and two died – including Mari Creighton. 

Mari was a beloved young woman with a life full of happiness still in front of her. At the time of her tragic death, she was an Albany State University student and volleyball player for the Golden Rams. She was only one semester away from graduating with a degree in biology. Parker Miller, who heads the premises liability team for the firm, says: 

It is incomprehensible how they allowed this armed person to enter, remain, and cause the type of devastating harm that he did given their knowledge of what previously took place there. Mari was everything you could hope for in a daughter, a student, a teammate, and a friend. She and her family paid the ultimate price for this location’s choices, and we are honored to seek justice for them.

Reports following the shooting noted that of the 911 calls to the property dating back to June 2020, Atlanta police were called to the site for two other shootings, 35 fights, and 38 noise concerns. Key Lamberth added: 

This case is the poster child for why upholding Georgia’s laws is so important in keeping our community safe. When establishments like this do not act as they should, then you can have devastating consequences like this. Those involved must be held accountable.

Given the nightclub’s history, the City of Atlanta is pursuing an immediate court-ordered injunction against Elleven45 Lounge, its proprietors, and the property’s landlord. The city is requesting that the establishment be legally recognized as a public nuisance and that the sale of alcohol be prohibited on the premises to safeguard the community’s health, safety, and well-being.

Regardless of what happens in the City’s injunction, the case over Mari’s death will move forward. Michael Sterling says:

Today’s filing is a significant step forward in ensuring that those responsible for this unconscionable tragedy are held accountable for their negligence. I look forward to continuing the path to justice for Mariam Creighton and her family.

As city officials seek to close the Elleven45 Lounge, we are left to grapple with the underlying issues that turn nightlife into a nightmare. It’s time to shine a light on the bigger problem and seek solutions that ensure safety for all.

Reasonable Safety, Human Dignity, And Premises Liability

Every parent wants their family to live in a safe neighborhood. Children want to wait for the bus stop without fear of being kidnapped, mothers want to unload the groceries without fear of drive-bys, and fathers want gang activity to be far away from their doorsteps. The lawyers who read this article, and their families may not live under such daily fears. But most Americans in today’s would do.

The laws in many states are mixed. Some are virtually silent on the matter. We will take a look at Georgia law on the subject. One of the requisite duties of a premises owner is to offer reasonable security measures that protect those who live there from foreseeable crimes committed by third parties. Such premises owners include, but are not limited to, complex landlords and apartment managers.

What those “reasonable” security measures are is a fact-specific inquiry. In some instances, a jury may find a breach of duty when an apartment manager turns the other way as gang activity and violence threaten residents in resident common areas. In other cases, a jury may see fault in the failure of security personnel to take corrective measures to ensure that gated community trespassers are kept out of a complex. These inquiries can be fortified by expert testimony, and they turn on a comprehensive investigation of the specific complex and the surrounding community.

At Beasley Allen, our lawyers and investigators are prepared to take the “deep dive” on case preparation so as to ensure that clients obtain the full measure of justice when injury or death happens because premises owners fail to afford the safety that basic human dignity and the law requires.

Widow Sues Resort After Husband’s Hot Tub Electrocution

A lawsuit has been filed involving the electrocution of a guest at a resort in Mexico. An American couple was on vacation in a Mexican seaside town when the husband was fatally electrocuted in a hot tub. The lawsuit against the resort was for wrongful death based on negligent conduct. Lizette Zambrano, the 35-year-old survivor, is seeking damages from the resort’s U.S.-based operators, headquartered in her El Paso, Texas, hometown. 

The lawsuit was filed against the Puerto Peñasco resort. The Arizona-based defendants are Casago International and High Desert Travel. It was alleged that improper electrical wiring in the jacuzzi caused the electrocution of 43-year-old Jorge Guillen, the plaintiff’s husband.

The lawsuit contends that resort management did not adequately warn guests of the hot tub’s dangers and was slow in responding to the emergency situation. Zambrano, Guillen, and their family members were vacationing at the Sonoran Sea Resort. The incident occurred while the couple was enjoying the sunset from the jacuzzi, unaware of the electrical hazard.

The tragedy began when Guillen stepped into the jacuzzi and was struck by an electric shock. He was pulled underwater into an electrified trap. Zambrano attempted to rescue her husband, but she, too, was shocked and was able to get out. Other guests tried to assist but were unable to do so because of the water’s peril. Despite efforts to save the couple, staff intervention was delayed. Guillen could not be saved. 

Zambrano was airlifted to Phoenix, Arizona, for treatment. She has since been released from the hospital.

Authorities in Sonora, Mexico, are investigating the cause of the electrical malfunction and reportedly plan to inspect the site. While such incidents are infrequent, experts emphasize the importance of diligent maintenance to prevent electrocution from faulty hot tub equipment.

The U.S. Consumer Products Safety Commission has recorded 47 related injuries or fatalities in hot tubs, pools, and spas from 2002 to 2018, highlighting the need for safety vigilance.

Source: Claims Journal

Class Action Litigation

Beasley Allen Files Nationwide Rent Price-Fixing Antitrust Case

Beasley Allen lawyers recently filed a proposed nationwide class action complaint against Yardi Systems, Inc. (Yardi) and over thirty landlords for federal antitrust violations relating to rent prices for apartments.  Yardi is a property management and real estate software company that licenses and supplies a software called RENTmaximizer (now Revenue IQ) to managers and landlords of rental properties.  

The property managers and owners utilize RENTmaximizer’s algorithm for determining the price of rental leases for apartments and other properties.  RENTmaximizer is used to determine rental prices for tens of millions of properties across the United States. 

Traditionally, in a competitive rental market, landlords and property managers acted and priced units independently to compete for renters and fill occupancy of their units.  They would seek to beat out their competitors’ rental prices and would not coordinate their pricing with their competitors.  

However, by using Yardi’s RENTmaximizer, landlords entered a collusive pricing strategy where they collectively agreed to provide Yardi with sensitive competitive pricing and occupancy data in exchange forthe software’s algorithms to generate rental pricing for apartments.  Essentially, this is a “give to get” scheme where the landlords share confidential data with Yardi, which uses that data to determine the “maximized” rent for their units as well as their competitors’ units. 

TheU.S. Federal Trade Commission (FTC) recently posted a blog warning, “Price fixing by algorithm is still price fixing.”  The blog was co-authored by Hannah Garden-Monheit (Director of the FTC’s Office of Policy Planning) and Ken Merber (Deputy Assistant Director of the FTC’s Anticompetitive Practices II Division). The FTC stated that an agreement among competitors to use a computer algorithm to determine pricing is no different than competitors sharing a human agent to fix prices.  

This price-fixing scheme is to the detriment of renters at a time when the number of Americans living in rental apartments is increasing.  Indeed, over 35% of Americans live in rented property, 64% of which live in apartments.  Yet, rent has increased by nearly 20% since 2020, and almost half of renters pay more than 30% of their income on housing. 

 In their Complaint, filed in federal court in the Middle District of Georgia, renters from one of the landlord defendants that engaged in the price-fixing conspiracy by utilizing Yardi’s RENTmaximizer, alleged violations of the Sherman Antitrust Act on behalf of a proposed class of apartment renters such as themselves.  

The plaintiffs and proposed class are represented by Dee Miles, Ali Hawthorne, Paul Evans, Jessi Haynes, Lauren Miles, and Rebecca Gilliland of Beasley Allen, along with Mike Slocumb and Charley Beene of the Slocumb Law Firm. These lawyers are committed to obtaining justice for the folks harmed by this conduct and to ending this illegal price-fixing scheme.  

The case is Shewmaker, et al. v. Yardi Systems, Inc., et al., case number 4:24-cv-00085-CDL, in the U.S. District Court for the Middle District of Georgia.

Source: Federal Trade Commission

Subaru And Mazda Fuel Pump Class Action Update

Beasley Allen, along with three other firms, filed a lawsuit representing owners and lessees of certain Mazda and Subaru vehicles equipped with defective fuel pumps manufactured by Denso International of America, Inc. Plaintiffs alleged in their lawsuit that the low-density impeller in the Denso fuel pumps may deform and interfere with the body of the fuel pump, causing it to become inoperative which can result in engine stalls, other symptoms, and increase the risk of crash.

Plaintiffs have now reached an agreement with Mazda, Subaru, and Denso to settle the cases. A motion was filed for preliminary approval of those settlements, which is pending.  The settlements are subject to the Courts’ approval. If approval is granted, the settlements provide:

• a Customer Support Program that covers repairs to the Denso fuel pumps in non-recalled vehicles, at no cost to the owner, 
• extended warranty coverage for Denso fuel pumps replaced on the recalled vehicles, 
• a complimentary loaner or rental vehicle while repairs are performed, and 
• reimbursement for certain out-of-pocket expenses. 

The proposed settlements provide these valuable benefits to the current, former, and future owners and lessees of more than $230 million in value to 1.3 million Subaru vehicles and $78 million in value to 603,000 Mazda vehicles.  

These settlement agreements are preliminary, and the parties are currently awaiting approval from the Courts in the Central District of California and the District of New Jersey, respectively. Once approved, the parties will begin to provide notice to the consumers covered under the settlement agreements. We will keep our readers informed on this important litigation. 

The Beasley Allen lawyers working on these cases are Dee Miles, Demet Basar, Clay Barnett, Mitch Williams, Dylan Martin, and Trent Mann, along with James Cecchi and Caroline Bartlett lawyers from Carella, Byrne, Cecchi, Brody & Agnello; Chris Seeger and Chris Ayers lawyers from Seeger Wiess; and Tim Blood, a lawyer from Blood Hurst & O’Reardon.  

The cases are Vance v. Mazda Motor of America, Inc. et al Case No. 8:21-cv-01890-CJC-KES, pending in the Central District of California and Cohen v. Subaru of America Inc., et al, Case No. 1:20-cv-08442-JHR-AMD, pending in the District of New Jersey. 

GM Oil Consumption Case Set For December Trial 

Beasley Allen lawyers Clay Barnett, Mitch Williams, and Dylan Martin, along with our co-counsel from Dicello Levitt, represent Colorado residents who own or lease a 2011-2014 GM truck or SUV equipped with a Generation IV 5.3L LC9 engine in a class action lawsuit against General Motors, LLC. It’s alleged in the lawsuit that the trucks and SUVs suffer from excessive oil consumption due to defective piston rings. 

This class action lawsuit is like the one in which Beasley Allen received a $102.6 million verdict last October, which we have previously written about. It involved California, Idaho and North Carolina consumers. 

Due to personal jurisdiction reasons in light of Bristol-Myers Squibb v. Superior Court of California, 582 U.S. 255 (2017), this action was filed in the District of Colorado and is presided over by U.S. District Judge Regina M. Rodriguez. We have similar consumer class actions filed in New York, Oklahoma, Ohio, and Missouri.  

On July 7, 2022, Judge Rodriguez denied in part and granted in part GM’s motion to dismiss, and a short discovery window followed. Plaintiff moved for class certification on October 5, 2022, and, after several months of briefing, on May 5, 2023, Judge Rodriguez certified an implied warranty class for purchasers and lessees of 2011-2014 GM trucks and SUVs equipped with Generation IV 5.3L LC9 engine in the State of Colorado. 

In certifying the class, Judge Rodriguez held there was common evidence that predominates over individualized issues related to “whether the piston rings in the Class Vehicles’ Generation IV engines were defective at the time of sale or lease” and whether the defective piston rings render the Class Vehicles unmerchantable. 

On February 16, 2024, United States District Judge Charlotte N. Sweeney issued a Final Pretrial Order controlling the subsequent course of this action and the trial regarding whether GM breached its Implied Warranty of Merchantability by selling the Class Vehicles that suffer from excessive oil consumption due to defective piston rings. 

The trial is scheduled to begin on December 2, 2024, and we will keep our readers informed on this important litigation.

The Beasley Allen lawyers working on this case are Dee Miles, Demet Basar, Clay Barnett, Mitch Williams, Dylan Martin, and Trent Mann, along with Adam J. Levitt, John Tangren, Daniel Ferri, and Blake Stubbs, lawyers from the Dicello Levitt Firm. The case is White v. General Motors LLC, Case No. 1:21-CV-00410-MEH, pending in the District of Colorado. 

Live Nation Faces Antitrust Class Action And DOJ Lawsuit

Ticket sales for Taylor Swift’s Eras Tour were difficult to come by and priced beyond what “Swifties” anticipated. Prices were so high that a number of fans, according to some social media accounts, found it more cost-effective to fly to foreign cities, like Paris, to attend a concert rather than purchase tickets in the United States. The high ticket prices highlighted an oft-maligned but 14-year-old merger agreement between Live Nation and Ticketmaster. 

Now, both a class of purchasers and the United States Department of Justice (DOJ) (in combination with multiple state Attorneys General) are suing, alleging violations of federal and state antitrust laws. 

According to the DOJ’s New York-filed complaint, Live Nation is a monopolist that “serves as the gatekeeper for the delivery of nearly all live music in America today.” Part of the relief sought by the DOJ and state Attorney General suit is to break up the Live Nation and Ticketmaster merger, according to U.S. Attorney General Merrick Garland. 

The class claims, also filed in New York, allege similar though slightly different violations and focus on the “excessively high fees” associated with ticket purchases from resale sites. In some sense, the class is the second step in the process of ticket sales from what the DOJ/AG complaint alleges.  

The DOJ is focusing on the primary market—sales made through Live Nation and Ticketmaster, along with other monopolistic behavior—while the class action focuses on the impacts those anticompetitive behaviors have on the secondary market—resale prices and fees are driven up because of the increase to primary ticket sales. 

The “Flywheel” mechanism, which is a particular type of anticompetitive behavior used by Live Nation and Ticketmaster, is a “self-reinforcing business model that captures fees and revenue from concert fans and sponsorship, uses that revenue to lock up artists to exclusive promotion deals, and then uses its powerful cache of live content to sign venues into long-term exclusive ticketing deals, thereby starting the cycle all over again.” This term, flywheel, describes a combination of anti-competitive behavior that is self-perpetuating.  

As Assistant Attorney General Jonathan Kanter described it in his Keynote speech at Fordham Competition Law Institute’s 49^th Annual Conference in September of 2022: 

You must view the system as a whole because If we isolate individual practices without considering the flywheel of anticompetitive effects then we overlook the dimension of meaningful competition. . . Enforcers [assessing the flywheel effect] must examine all of the conduct that keeps the wheel spinning, not just individual flicks of the wrist.

Sources: Forbes, Law360, U.S. Department of Public Affairs

Lipitor Purchasers Secure Approval For $93 Million Settlement In Antitrust Case

A New Jersey federal judge recently approved a $93 million settlement between Pfizer and a class of Lipitor buyers, resolving antitrust claims of conspiracy to delay a generic version of Lipitor. 

The lawsuit, originating in 2012, focused on an agreement between Pfizer and Ranbaxy Laboratories Ltd., accused of anticompetitively delaying the market entry of a generic Lipitor.  Under the settlement agreement, Pfizer has denied all allegations without admitting liability. 

The direct purchaser plaintiffs are represented by Cohn Lifland Pearlman Herrmann & Knopf LLP, Carella Byrne Cecchi Olstein Brody & Agnello PC, Berger Montague PC, Garwin Gerstein & Fisher LLP, Hagens Berman Sobol Shapiro LLP, Odom & Des Roches LLC, Smith Segura Raphael & Leger LLP, Faruqi & Faruqi LLP, and Heim Payne & Chorush LLP.

The case is In re: Lipitor Antitrust Litigation, case number 3:12-cv-02389, in the U.S. District Court for the District of New Jersey.

Source: Law360

Delaware Justices Will Determine How To Calculate Attorney Fees For Large Class Action Settlements 

The Delaware Supreme Court is deliberating on how to calculate attorney fees for large class action settlements. This comes after a hedge fund, Pentwater Capital Management LP, appealed a $266.7 million fee awarded to stockholder lawyers in a $1 billion settlementagainst Dell Technologies Inc., calling it excessive. The fund argues that the Chancery Court should have applied a “declining percentage principle” often used in federal securities litigation for large settlements, which reduces the percentage of the award as the settlement amount increases.

The Chancery Court had previously refused to apply this principle, citing the Delaware Supreme Court’s decision in Americas Mining Corp. v. Theriault, which upheld a 15% fee on a $2 billion judgment. The lawyers in the Dell case received a larger percentage than in Americas Mining, and the Vice Chancellor reduced the requested fee from $285 million to $266.7 million after objections.

The current debate centers around whether large judgments should result in proportionally smaller attorney fees to avoid windfalls, and whether Delaware’s method of calculating fees aligns with the federal declining percentage method. The federal method assumes that a standard percentage could lead to disproportionately large fees for the work done, especially in cases with high settlement amounts.

Class lawyers argue that the current fee is reasonable and within the range endorsed by Delaware courts. They say the framework established by the Delaware Supreme Court in Sugarland Industries, Inc. v. Thomas, which considers various factors without creating perverse incentives, is sufficient.

The Delaware Supreme Court is considering the arguments and will make a decision on this issue. The outcome could impact how attorney fees are calculated in future large class action settlements in Delaware. Whether it will have an effect in other jurisdictions is another question. We will see. 

The class is represented by Ned Weinberger, Domenico Minerva, Joseph Cotilletta and Mark Richardson of Labaton Keller Sucharow LLP, David M. Cooper, William R. Sears, George T. Phillips and Dominic J. Pody of Quinn Emanuel Urquhart & Sullivan LLP, Peter B. Andrews, Craig J. Springer, and David M. Sborz of Andrews & Springer LLC, Chad Johnson, Noam Mandel, Desiree Cummings, Robert Gerson and Jonathan Zweig of Robbins Geller Rudman & Dowd LLP and Jeremy S. Friedman, David F.E. Tejtel, Christopher M. Windover and Lindsay La Marca of Friedman Oster & Tejtel PLLC.

The law professors are represented by Joel Friedlander and Jeffrey M. Gorris of Friedlander & Gorris PA.

The case is In re Dell Technologies Inc. Class V Stockholders Litigation, case number 349, 2023, in the Supreme Court of the State of Delaware.

Source: Law360

Class Action Lawyers At Beasley Allen

Beasley Allen lawyers remain heavily involved in class action litigation in all parts of the country. Dee Miles, who heads the Consumer Fraud & Commercial Litigation Section, leads the effort. Other lawyers in the section who handle class action cases and are on the Class Action Litigation Team include:

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

If you need help on a case that would qualify as a class action, you can contact one of the lawyers on the team. You can also contact Dee Miles, Head of our Consumer Fraud & Commercial Litigation Section, or Michelle Fulmer, Section Director, and they will have one of the lawyers on the team respond to you.

INVESTOR LITIGATION

Under Armour Agrees To $434 Million Settlement In Securities Fraud Lawsuit 

Under Armour Inc. has reached a $434 million settlement to resolve allegations of artificially inflating its stock prices by concealing a drop in product demand. The agreement, pending court approval, could become the second-largest securities class action settlement in the Fourth Circuit. 

The lawsuit, ongoing since 2017, accused the company of misleading investors with “unnatural” business practices to simulate higher demand. Under Armour, while denying wrongdoing, will compensate affected stock purchasers from September 2015 to November 2019 and maintain separate roles for its chair and CEO for three years. 

The case highlighted discrepancies between Under Armour’s public financial statements and internal communications, with claims of a pressured corporate culture under CEO Kevin Plank. 

The settlement follows the company’s unsuccessful attempt to obtain a summary judgment and the court’s decision not to exclude expert witnesses from the trial. Under Armour says it anticipates spending $434 million on litigation costs by early 2025.

The investors are represented by Michael J. Dowd, Mark Solomon, X. Jay Alvarez, Robert R. Henssler Jr., Matthew I. Alpert, Christopher R. Kinnon, T. Alex B. Folkerth, Stephen R. Astley, Elizabeth A. Shonson and Andrew T. Rees of Robbins Geller Rudman & Dowd LLP, Joshua C. Littlejohn and Christopher F. Moriarty of Motley Rice LLC, Thomas Michaud of VanOverbeke Michaud & Timmony PC and Andrew C. White, William N. Sinclair and Pierce C. Murphy of Silverman Thompson Slutkin & White LLC.

The case is In re: Under Armour Securities Litigation, case number 1:17-cv-00388, in the U.S. District Court for the District of Maryland.

Source: Law360

MASS TORTS LITIGATION

What Effect Does The Zantac Ruling In Delaware Have On Mass Torts Litigation?

There was a significant development in the Zantac litigation recently and it has gotten lots of attention in legal circles. A Delaware judge allowed 75,000 cancer claims to proceed, challenging the stance of pharmaceutical companies like GSK, Pfizer, Sanofi, and Boehringer Ingelheim. Despite the companies’ objections to the plaintiffs’ expert testimonies, Judge Vivian Medinilla determined that such disputes are for juries to resolve, not judges. This contrasts with a federal judge’s decision in Florida, which dismissed 50,000 similar lawsuits due to what was labeled insufficient evidence from plaintiffs’ experts.

The differing rulings highlight a growing divide between federal and state courts on the admissibility of expert evidence in mass torts. Brent Wisner, co-lead counsel in the Delaware case, emphasizes the importance of jury discretion when evidence is contested. The pharmaceutical companies plan to appeal, citing a Supreme Court decision on expert testimony standards.

Meanwhile, settlements have been reached in thousands of cases, and the strategic choice of court – state versus federal – has become a crucial consideration for plaintiffs’ lawyers. In any event, any firm handling mass torts litigation will consider all of the ramifications. 

It’s being said by some observers that the outcome of the Delaware ruling could significantly impact where mass tort claims are filed. That’s because many U.S. companies are based in Delaware. For that reason, it’s likely that more cases could be filed in Delaware. Lawyers in our firm’s Mass Torts Section are not so sure this will become a reality. But they are assessing the situation. 

Source: Reuters

TOXIC TORT LITIGATION

California Lawmakers Seek To Ban The Deadly Weed Killer Paraquat

Paraquat is one of the most acutely toxic herbicides to be marketed over the last 60 years.  Despite its toxicity, however, it’s one of the most widely used herbicides.  Citing serious health issues associated with its use, including Parkinson’s disease, the weed killer paraquat is facing a potential ban in California. Lawmakers have introduced legislation (Assembly Bill 1963) to phase out and ban the use of paraquat across all applications, including agriculture, by the end of 2025. This move follows a history of scientific documentation highlighting the pesticide’s hazards.

The Hazards of Paraquat

• Health Impact:  Paraquat enters the body through ingestion, inhalation, or dermal exposure. It is easily absorbed by skin.  As little as a teaspoon of concentrated paraquat can result in immediate death.   There is no antidote. 
• Parkinson’s Disease: Parkinson’s disease (PD) is a degenerative neurological condition and the leading cause of global mortality arising from exposure to harmful environmental toxins. There is considerable evidence that paraquat may cause, trigger, or accelerate the development of Parkinson’s.  
• Global Bans:  Over 90 countries, including the European Union, have banned or partially banned its use, production, and/or sale. China (where paraquat was first developed) has banned the use of the paraquat but remains the world’s largest manufacturer/exporter of the toxic chemical.

New Study Highlights Link

• A new study reviewed a wide array of studies from around the world and found that exposure to neurotoxic chemicals, like paraquat, plays a significant role in the pathogenesis of Parkinson’s.
• Other research has shown that the incidence rate of Parkinson’s in farmworkers exposed to paraquat was more than twice that of those who had no such exposure. 
• The link between paraquat and Parkinson’s is not new. Its manufacturers have long known of the correlation.

Prevalence of Paraquat

• Annually, it is estimated that as much as 18 million pounds of paraquat is sprayed in the U.S.
• It is reported that more than 1 million pounds of paraquat is sprayed annually in California.
• Once applied, paraquat can remain in the soil for years.  

The California Bill is authored by Assemblymember Laura Friedman. Friedman said: 

Paraquat’s dangers to health and the environment are undeniable. With many countries already banning it, California must act to safeguard its residents, particularly those in rural areas, from this toxic weedkiller. The mounting evidence linking paraquat to serious diseases like Parkinson’s, non-Hodgkin lymphoma and childhood leukemia cannot be ignored.

Dolores Huerta, a renowned labor leader and civil rights activist, stated, in support of the Bill:

Farmworkers, their families, and nearby communities in California face serious risks from toxic pesticides like paraquat. This dangerous weedkiller has been used since the 1960s, endangering millions of essential agricultural workers, their families and local residents. It’s time for action. California must ban paraquat now to protect future generations from harm.

Beasley Allen Paraquat Litigation Team

Beasley Allen lawyers remain hard at work in the paraquat litigation. They are actively litigating paraquat cases in both the California JCCP and the federal MDL, which is centralized in the Southern District of Illinois.  Our Paraquat Litigation Team is working with numerous firms to offer advice on screening and litigating these cases.  Our team continues to receive cases from referral lawyers. 

If you have questions or need help with a claim, you can contact any of the lawyers on our litigation team. The lawyers include Khadiga Carr, Elizabeth Weyerman, and Wesley Merillat. Toxic Torts Section Head Rhon Jones also works with the team. 

Direct Filing Order Issued In Toxic Baby Food MDL 

After the Court’s second case management conference on June 20^th, Northern District of California Judge Jacqueline Scott Corley issued a Direct Filing Order on the next day.  The Order permits plaintiffs whose cases would be subject to transfer into the Multidistrict Litigation (MDL) to file their case directly in the MDL.  The purpose of the Direct Filing Order is to “eliminate delays” and “promote judicial efficiency.”  

The toxic baby food litigation, known as In re: Baby Food Products Liability Litigation (MDL No. 3101), was consolidated to the MDL by the Judicial Panel on Multidistrict Litigation in April 2024.  These cases allege that baby food companies knowingly sold – and continue to sell – products tainted with heavy metals that can cause brain damage, ultimately manifesting as diagnoses of autism or ADHD.  The litigation comes after two different Congressional Reports were released in 2021 with shocking findings that manufacturers knowingly sold these toxic foods and that the industry’s claimed self-regulation failed to protect consumers.

Beasley Allen’s Mary Cam Raybon was appointed to the Plaintiff’s Steering Committee for this litigation in May 2024.  Mary Cam is working closely with the other lead lawyers in this litigation to pursue justice on behalf of thousands of children harmed by toxic baby foods manufactured by some of the most popular baby food brands, such as Gerber, Plum, Earth’s Best, and Parent’s Choice.  

Source: In re: Baby Food Prods. Liab. Litig., 24-md-03101-JSC (N.D. Cal.), Doc. 189

Hair Relaxers Update

Discovery remains ongoing in the Hair Relaxer MDL.  Northern District of Illinois Judge Mary M. Rowland, presiding over the MDL, entered Case Management Order (CMO) 11 on May 14, 2024.  The Order directed all plaintiffs to serve their Short Form Complaints (SFC) by uploading to the database maintained by a third-party vendor, Brown Greer, by June 28, 2024. 

Brown Greer’s MDL Centrality system is an electronic platform that will provide centralized hosting and management of the Plaintiff Fact Sheets (PFS) and Short Form Complaints while assisting the court and parties with gathering, organizing, accessing, and analyzing various categories of information in connection within the Hair Relaxer Litigation. The complete administration of the PFS process, including deficiencies, is handled through MDL Centrality as well. 

The Hair Relaxer MDL was formed in February 2023 due to an increase in lawsuits alleging that various hair relaxer products caused a myriad of injuries to women’s reproductive health.  The filings come after an increase in studies and medical literature linking the use of hair relaxer products to multiple issues, including uterine, endometrial, or ovarian cancers.  

Beasley Allen lawyers are investigating and handling these cases. Navan Ward is on the MDL’s Plaintiffs’ Executive Committee.  Aigner Kolom is also working on these cases.

Ozempic/GLP-1 MDL Assigns New Judge After Unexpected Passing Of Judge Pratter

Ozempic has gained widespread attention as an anti-obesity medication. However, it’s also under scrutiny due to potentially dangerous side effects, including gallbladder disease and gastroparesis (a weakening of the stomach leading to pain and vomiting).  These side effects have resulted in a number of lawsuits involving not only Ozempic, but also similar drugs like Wegovy, Rybelsus, Mounjaro, Trulicity, and Saxenda.  

In February 2024, the U.S. Judicial Panel on Multidistrict Litigation (JPML) centralized all current Ozempic lawsuits in the Eastern District of Pennsylvania before Judge Gene E.K. Pratter.  The Ozempic MDL had been quickly progressing before Judge Pratter until she unexpectedly passed away in May. This was a blow to all lawyers who have been involved in litigation under Judge Pratter. She was well liked and well respected by all. Judge Pratter will be missed. 

The JPML consulted with the U.S. District Court for the Eastern District of Pennsylvania and recently reassigned the MDL to Judge Karen S. Marston.  Judge Marston became a District Judge in the Eastern District of Pennsylvania in 2019.  She previously practiced in the Eastern District as a federal prosecutor and played a major role in investigating Novartis Pharmaceutical Corporation regarding whistleblower cases that ended in settlements of nearly $425 million.

The litigants in the Ozempic MDL had their first hearing before Judge Marston on June 10, in Philadelphia.  The parties discussed several aspects of case management and rescheduling Science Day, which will provide a primer to Judge Marston on the available science surrounding the GLP-1 RAs at issue in the litigation.    

PFAS/AFFF Litigation Update

The Aqueous Film–Forming Foam (AFFF) litigation is pending before U.S. District Judge Richard Gergel in the United States District Court of South Carolina. On April 9, 2024, the court signed amended Case Management Order No. 28, ordering plaintiffs asserting or seeking to assert “Unlisted Claims” (injuries other than kidney cancer, testicular cancer, hypothyroidism/thyroid disease, ulcerative colitis, liver cancer, and thyroid cancer, or not pregnancy-induced hypertension or high cholesterol) to dismiss their claims without prejudice within 90 days of April 24, 2024 (see paragraph 6(a)). 

Normally, statutes of limitations can be a serious problem. However, defendants named in these actions are deemed to have agreed that the statute of limitations is tolled from the date of plaintiffs’ original filing (see paragraph 6(b)). 

Newly filed lawsuits initiated in or transferred to this MDL alleging the Unlisted Claims are also subject to this order but are not entitled to any tolling as provided in paragraph 6(b). 

Firefighting foam contains per-and poly-fluroalkyl substances (PFAS), which are referred to as “forever chemicals.” These forever chemicals break down very slowly over time and are found, even at low levels, in various food products and in the environment. Researchers and scientists are still finetuning the processes to determine answers to various questions, including but not limited to, how much PFAS are people exposed to, how to detect the amount of PFAS exposure, how harmful exposure to PFAS is, how to remove PFAS from drinking water, and alternatives to the use of PFAS, especially as in this litigation, in firefighting protective gear.

Initial Approval Granted For Tyco’s $750 Million Settlement In Foam Company PFAS Litigation 

U.S. District Judge Richard M. Gergel has preliminarily approved a $750 million settlement involving Tyco Fire Products, a subsidiary of Johnson Controls. The settlement involved claims that Tyco firefighting foam contaminated public water supplies with PFAS (forever chemicals). The settlement, resulting from extensive negotiations, was deemed fair and reasonable. 

This settlement agreement follows other significant settlements in the multidistrict litigation, including a $12.5 billion settlement with 3M Co. and a $1.2 billion settlement with DuPont, Chemours, and Corteva. BASF Corp. also agreed to a $316.5 million settlement for related drinking water claims.

The settlement class includes public water systems that found PFAS in their water as of May 15, excluding certain cases. It does not impact other ongoing AFFF litigation categories, such as personal injury or property damage. Johnson Controls disclosed that insurance would cover a substantial part of the settlement, although the exact amount is said to be uncertain.

The multidistrict litigation (MDL) encompasses over 10,000 cases involving PFAS damages, categorized into claims for drinking water testing and remediation, personal harm, medical monitoring, property remediation, and environmental damage. Additionally, the EPA has set regulatory limits on PFAS in drinking water, supported by nearly $1 billion for implementation.

The lead class counsel for the MDL is Michael A. London of Douglas & London PC, Scott Summy of Baron & Budd PC, Paul J. Napoli of Napoli Shkolnik PLLC and Joe Rice of Motley Rice LLC.

The case is In re: Aqueous Film-Forming Foams Products Liability Litigation, case number 2:18-mn-02873, in the U.S. District Court for the District of South Carolina.

Source: Law360

PFAS Water Settlements: What Are They And What Do you need to do?

Forever chemicals (PFAS) have plagued communities across the country with contaminated water.  Used in a variety of industrial and consumer products, PFAS are now in huge Multi District Litigation (MDL).  In the AFFF MDL, defendants 3M and DuPont have settled with a class of all public water systems with PFAS contamination. 

As we mentioned above, other defendants, such as Tyco and BASF, announced similar settlements. 

Public water systems must either opt out of these settlements or be bound by the terms of the settlements.  For the 3M and DuPont settlements, the deadline to opt out was extended to March 2024.  For the proposed Tyco and BASF settlements, the opt out deadline is proposed to be 90 days from when public water utilities are given notice of the settlement.

Water providers who opt out retain their right to pursue independent legal claims separate from the sprawling and time-consuming MDL.  Beasley Allen represents a number of water systems which have opted out to litigate their own claims.

Water providers that do not opt-out have the option to apply for funds from the settlements.  There are a number of requirements and deadlines that must be met in order for water systems to meet the eligibility requirements for each settlement.  Beasley Allen lawyers aid and advise our water systems clients through the process of applying for settlement funds.

There are many important things that a public water system should consider.  First, whether to opt-out or remain in the settlements.  This important step should consider the cost of removing PFAS compared to the estimated amount available to a water system under each individual class settlement.  Second, making sure the opt out procedures are followed correctly and the opt out submissions have been accepted as valid before the deadlines.  Third, whether a water system should file an independent lawsuit to recover the cost of PFAS removal.

Beasley Allen handles all phases of navigating PFAS settlements for public water systems.  From opting out to litigating to trial, Beasley Allen lawyers stand ready to help the public water systems facing this national crisis.

4th Circuit Court Dismisses North Carolina ‘Forever Chemicals’ Lawsuit 

The Fourth Circuit has ruled that environmental groups cannot challenge the EPA’s decision to test certain PFAS chemicals in district court. The EPA agreed to test seven of the 54 chemicals requested by the groups, which was deemed sufficient under the Toxic Substances Control Act. The court’s majority stated that the EPA’s approach of testing by category rather than individually was within its rights and that the selected seven PFAS represented a majority of the chemicals in question. Additionally, the EPA may test nine more, covering 39 of the 54 requested. The remaining 15 were considered already well-researched.

The court also noted that the EPA wasn’t required to follow the groups’ proposed testing strategy. Because the petition was ultimately granted, there can’t be a district court challenge. However, a dissenting judge argued that not testing 15 chemicals effectively denied part of the petition, allowing for judicial review.

The case arose from a request by environmental groups in 2020 for the EPA to mandate Chemours to test the effects of 54 PFAS, which had contaminated the Cape Fear River. The EPA’s decision in late 2021 to test only seven led to the groups’ legal challenge. On appeal, the environmentalists claimed that the EPA’s decision was more of a denial than a grant, while the EPA maintained that its testing strategy was valid and would yield quicker results. A majority of the court sided with the EPA, stating that the petition had been granted and the testing agreed upon could not be contested.

U.S. Circuit Judges G. Steven Agee and James Andrew Wynn and U.S. District Judge John A. Gibney Jr., by designation, sat on the panel for the Fourth Circuit.

The environmental groups are represented by Robert Matthew Sussman of Sussman & Associates, Thomas J. Lamb of the Law Offices of Thomas J. Lamb PA and Michael Connett of Waters Kraus Paul & Siegel.

The case is Center for Environmental Health et al. v. Michael S. Regan et al., case number 23-1476, in the U.S. Court of Appeals for the Fourth Circuit.

Source: Law360

11th Circuit Rejects J&J Sunscreen Benzene Class Action Settlement

The Eleventh Circuit Court of Appeals has overturned a previous approval of a settlement regarding Johnson & Johnson’s sale of benzene-containing sunscreens. The decision follows recent court rulings that necessitate a reevaluation of the settlement terms.

In 2021, Johnson & Johnson recalled several Neutrogena and Aveeno sunscreen products after benzene, a known carcinogen, was detected. The recall was initiated after Valisure, a testing lab, reported high benzene levels in these sunscreens.

Theodore Frank, who opposed the settlement, appealed, leading to a consensus that the case should be reconsidered due to the Drazen v. Pinto decision. That decision clarified that settlements involving vouchers are subject to the Class Action Fairness Act’s coupon settlement provisions, which affects this case since it includes vouchers.

The settlement, initially approved in 2023 despite Frank’s objections, offered consumers product vouchers and refunds for the affected sunscreens. Additionally, Johnson & Johnson committed to implementing new testing protocols.

However, the recent order also requires the district court to determine if the plaintiffs have the standing to seek the injunctive relief proposed in the settlement, in light of the Williams v. Reckitt Benckiser LLC decision, which ruled that a “conditional” future desire to purchase a product does not justify an injunction.

Frank expressed his view to Law360, stating that the settlement favored lawyers over the class and that he is prepared to continue pursuing a fair resolution or appeal again if necessary.

Frank is represented by John M. Andren of the Hamilton Lincoln Law Institute’s Center for Class Action Fairness. The other plaintiffs are represented by Ashley Keller of Keller Postman LLC.

The case is In re: Johnson & Johnson Aerosol Sunscreen Marketing, Sales Practices and Products Liability Litigation, case numbers 23-11319 and 23-11541, in the U.S. Court of Appeals for the Eleventh Circuit.

Source: Law360

Honolulu Seeking To Hold Fuel Companies Accountable 

The U.S. Supreme Court has taken a case where Honolulu is seeking to hold fossil fuel companies accountable for climate change damages. Previously avoiding such cases, the Court has now asked for input on whether to end Honolulu’s suit. 

The companies, including ExxonMobil and Chevron, argue that state laws cannot govern global emissions and that the claims should be considered as federal matters. Honolulu insists its claims are based on state law, focusing on deceptive practices. The Hawaii Supreme Court has supported Honolulu’s stance, despite attempts by the companies to dismiss the case, claiming federal law preemption. 

The U.S. Supreme Court’s involvement is backed by several Republican states and industry groups, which see climate litigation as a federal issue that could affect state rights to set energy policies. Chevron’s lawyer emphasized the importance of the Supreme Court addressing the conflict between state and federal rulings in climate change litigation.

It will be interesting to see what the Supreme Court does in this case. The result will be significant and affect the climate change litigation. All too many politicians—especially in the GOP ranks—are not taking climate change seriously. That could be our country’s biggest problem in the very near future. 

Honolulu is represented by its Department of the Corporation Counsel and Sher Edling LLP.

The case is Sunoco LP et al. v. City and County of Honolulu et al., case number 23-947, in the Supreme Court of the United States.

Source: Law360

$38 Million Verdict For Victims In Chiquita Case 

There have been some significant happenings in the Chiquita litigation. A federal court jury in Florida has handed down a verdict in the multi-district lawsuit against Chiquita, finding the company responsible for financially supporting right-wing paramilitary groups in Colombia. The jury awarded $38.3 million in damages to the majority of the plaintiffs, who are family members of individuals killed by these paramilitaries.

Chiquita says it will challenge the verdict, maintaining that despite the tragic events in Colombia, the claims lack a legal foundation.

The trial, which lasted over six weeks in West Palm Beach, resulted in significant compensation for 16 plaintiffs, relatives of eight out of nine victims linked to the Autodefensas Unidas de Colombia (AUC). The jury, however, did not hold Chiquita accountable for one of the deaths due to insufficient evidence of AUC involvement.

EarthRights International, representing the plaintiffs along with other legal teams, highlighted the verdict as unprecedented, marking the first time a U.S. corporation has been found liable by an American jury for involvement in severe human rights violations in foreign countries.

This case marks the first trial in an ongoing series of lawsuits initiated in 2008 by families of AUC victims against Chiquita, accusing the company of complicity in the deaths of their loved ones.

The plaintiffs allege that Chiquita paid nearly $2 million to the AUC to safeguard its interests amidst the conflict, exploiting the situation to acquire inexpensive farmland and expand its operations from solely purchasing bananas to producing them. Chiquita consolidated these farms under its subsidiary Banadex, which was used to facilitate payments to the AUC.

During the trial, Chiquita executives acknowledged that extortion demands began in 1988 from the FARC and later from the AUC in 1998. Chiquita admitted guilt in 2007 to federal charges related to these payments and settled with a $25 million fine.

In the trial’s closing arguments, Chiquita’s counsel argued that the company was navigating a complex situation during a violent civil war and that the payments were necessary for the safety of its operations and employees. The defense suggested that the victims would have faced danger regardless of Chiquita’s actions, as the payments constituted a negligible portion of the AUC’s revenue.

Conversely, the plaintiffs’ lawyers rejected the notion of extortion, pointing out that the U.S. government did not accept this defense when it prosecuted Chiquita. They contended that Chiquita’s involvement went beyond financial payments, extending to providing arms and ammunition, potentially to deter unionization efforts among employees.

Since the jury verdict, there has been a settlement involving Chiquita that our lawyers haven’t been able to review. We will write about that settlement in the August issue. 

The plaintiffs in the verdict case are represented by John Scarola, Victoria Mesa-Estrada and Mariano Garcia of Searcy Denney Scarola Barnhart & Shipley PA, James K. Green of James K. Green PA, Rick Herz, Maryum Jordan, Marissa Vahlsing and Marco Simons of EarthRights International, William J. Wichmann of the Law Offices of William J. Wichmann PA, William R. Scherer of Conrad & Scherer LLP, Agnieszka Fryszman and Leslie M. Kroeger of Cohen Milstein Sellers & Toll PLLC, Jonathan C. Reiter of the Jonathan C. Reiter Law Firm PLLC, Terry Collingsworth of International Rights Advocates, and Gabriela Paola Valentin Diaz.

The case is In re: Chiquita Brands International Inc., Alien Tort Statute and Shareholders Derivative Litigation, case number 0:08-md-01916, in the U.S. District Court for the Southern District of Florida.

Source: Law360

CONSUMER CORNER

NFL Faces $4.7 Billion Verdict in Sunday Ticket Antitrust Lawsuit

A California federal jury awarded approximately $4.7 billion in damages to two classes of DirecTV Sunday Ticket subscribers, finding the NFL and its teams guilty of violating the Sherman Act. This verdict, which may triple under federal law, challenges the NFL’s exclusive marketing and bundling of Sunday games not freely broadcast on network TV.

The decision affects millions of subscribers who accused the NFL, its 32 teams, and DirecTV of forming an illegal monopoly and restraining trade. The plaintiffs celebrated the verdict as a victory for consumers, despite the NFL’s star power.

Testimonies from NFL Commissioner Rodger Goodell, team owners, and executives were contrasted with internal communications presented by the plaintiffs, suggesting collusion to inflate Sunday Ticket prices. The NFL dismissed these as out of context, denying any price-fixing conspiracy. It’s a complicated case.  At press time, I had not read the opinion, and for that reason, I won’t write further on this case. 

The subscribers are represented by Ian B. Crosby, Marc M. Seltzer, Kalpana Srinivasan, Amanda Bonn, William C. Carmody, Seth Ard, Tyler Finn and Ian M. Gore of Susman Godfrey LLP, Scott Martin, Sathya S. Gosselin, Christopher L. Lebsock, Samuel Maida and Farhad Mirzadeh of Hausfeld LLP and Howard Langer, Edward Diver, Peter Leckman and Kevin Trainer of Langer Grogan & Diver PC.

The case is In re: National Football League’s Sunday Ticket Antitrust Litigation, case number 2:15-ml-02668, in the U.S. District Court for the Central District of California.

Source: Law360

Change Healthcare’s Data Breach Leaves Healthcare Providers Without Payment

Change Healthcare, a subsidiary of UnitedHealth, was the target of a significant cyber-attack in February 2024 by a Russian ransomware group called BlackCat. Change Healthcare is a clearinghouse for almost 40% of all medical claims each year, totaling 15 billion claims. The damage from this cyber-attack is twofold, affecting both patients and healthcare providers. One in three Americans is estimated to have had personal health information (PHI) leaked because of the cyber-attack and subsequent data breach. 

 Healthcare providers, including physicians, hospitals, and pharmacies, have been unable to receive payment for medical claims to be processed by Change Healthcare. After the initial cyber-attack, Change Healthcare’s digital system was compromised, and the company decided to use workarounds and manual processes to continue business operations. 

However, reverting the systems did not stop the backlog of unpaid claims, which has left many doctor offices, hospitals, and pharmacy groups without the financial ability to run their facilities, directly impacting patient care. 

According to a survey done by the American Medical Association, 80% of physicians who took the survey reported lost revenue from unpaid claims because of Change Healthcare’s failure to follow industry standards to protect its systems, including its failure to use multifactor authentication.  

Change Healthcare previously had multifactor authentication. But, it lapsed prior to United Healthcare acquiring the company in 2022. United Healthcare never updated the system. 

Beasley Allen lawyers are investigating potential claims that healthcare providers may have against Change Healthcare, United Healthcare, and others for the damages those providers have experienced because of Change and United’s failures to meet industry standards to guard against cyber-attacks. 

Sources: Law360, Energy & Commerce, American Medical Association, Congressional Research Service

ATF Rule Banning Bump Stocks Overturned By Justices

The U.S. Supreme Court has ruled that bump stocks, devices that increase the firing rate of semiautomatic rifles, cannot be classified as machine guns and, therefore, fall outside the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) authority to ban. The 6-3 decision supports a previous ruling by the Fifth Circuit Court, which agreed with firearms instructor Michael Cargill that bump stocks do not convert semiautomatic rifles into machine guns. 

Justice Clarence Thomas, writing for the majority, stated that a bump stock requires manual input to operate and does not make a rifle fire automatically. A most interesting distinction when you consider that the firepower involved in each weapon is quite similar. 

The ruling comes after the ATF’s 2019 ban on bump stocks following the 2017 Las Vegas shooting. In her dissenting, Justice Sonia Sotomayor argued that the decision effectively puts machine guns back into civilian hands. But Justice Samuel Alito suggested that it is Congress’s role to regulate bump stocks. 

President Joe Biden has expressed readiness to sign a bill banning bump stocks, urging Congress to act. The Giffords Law Center criticized the Supreme Court ruling as dangerous and urged legislative action to classify bump stocks and similar devices as illegal.

The case is Garland et al. v. Cargill, case number 22-976, in the Supreme Court of the United States.

Source: Law360

THE STRUCTURE OF BEASLEY ALLEN AND CASES HANDLED

The Structure Of Beasley Allen Is Designed To Work For Clients

Beasley Allen operates in five separate sections: four litigation sections and one administrative section. The separate litigation sections concept has worked very well. It has definitely benefited Beasley Allen clients and allowed our lawyers to bring about national changes in product and workplace safety. 

 Beasley Allen lawyers have handled all sorts of civil litigation for plaintiffs. The Administrative Section supports the four litigation sections that could be described as “mini-firms” within Beasley Allen. Those four litigation sections are the Mass Torts Section, the Toxic Torts Section, the Consumer Fraud & Commercial Litigation Section, and the Personal Injury & Products Liability Section. 

Each section has a team of lawyers and support staff working closely together, creating efficiency and case expertise within each section. The lawyers and staff develop expertise in the area of law handled by the section. Successful section performance leads to better firm performance overall, allowing us to expand our resources and enabling firm growth. Year after year, we believe our approach has allowed us to help more of those who need it most. 

The Mass Torts Section

Andy Birchfield heads our Mass Torts Section. Melissa Prickett serves as the Section’s Director. With over 50 years of combined legal experience, Andy and Melissa lead the firm’s largest section in medical devices, medication and other practice areas. The section currently handles cases involving acetaminophen, hair relaxers, kratom, NEC baby formula, Ozempic, social media and talcum powder.

The Toxic Torts Section

Rhon Jones leads our firm’s Toxic Torts Section with Section Director Tracie Harrison’s assistance. The section focuses on toxic exposure cases. Recent cases involve Camp Lejeune water contamination, paraquat and firefighting foam. 

The Consumer Fraud & Commercial Litigation Section

Dee Miles is the Section Head of our Consumer Fraud & Commercial Litigation Section. Michelle Fulmer is the Director of the Section. She also assists with Business Litigation, Class Action, Consumer Protection, Securities cases, Employment Law and Whistleblower cases.

The Personal Injury & Products Liability Section

Cole Portis heads our Personal Injury & Products Liability Section with Sloan Downes serving as the Director of the Section. The section handles auto accidents, aviation accidents, defective tires, negligent security, on-the-job injuries and truck accident cases. 

The Administrative Section

Finally, the Administrative Section includes Accounting, Operations, Human Resources (HR), Information Technology (IT) and Marketing. Michelle Parks is the Director of Accounting, Michelle Fulmer is the Director of Operations, and Kimberly Youngblood serves as the Director of HR, IT and Marketing.

Since we reorganized the firm’s structure, in 1998, the firm’s record speaks for itself. The structure has contributed greatly to our firm’s success. Section Heads and Directors have been able to concentrate on the cases in their section, and they quickly recognize when additional resources are needed. Lawyers in each Section have been able to focus on clients within their specialty and on achieving favorable client results. The efficiency and teamwork generated by the sections concept has resulted in our firm being recognized as one of the best litigation firms in the country. This has been for the benefit of the folks we represented. 

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 (BeasleyAllen.com/Practices/). The following are the current case activity listings for the Beasley Allen Sections. 

Practices

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

Cases 

The cases in the categories listed below are handled by lawyers in the appropriate Litigation Section at Beasley Allen. The list can be found on our homepage, on the top navigation, or on the Cases page of our website. 

• Acetaminophen
• Auto Accidents
• Aviation Accidents
• Camp Lejeune 
• Defective Tires
• Firefighting Foam
• Hair Relaxers
• Kratom
• NEC Baby Formula
• Negligent Security 
• On-the-Job-Injuries
• Ozempic
• Paraquat
• Social Media 
• Talcum Powder
• Truck Accidents 

We will give a brief explanation for each category below:

• Acetaminophen
  Beasley Allen lawyers handle cases of mothers who took acetaminophen while pregnant and gave birth to a child later diagnosed with autism or ADHD. Cases also include children treated with the drug during the first 18 months of life who developed autism or ADHD. 
• Auto Accidents
  Our lawyers handle life-altering and deadly automobile accident cases caused by defective products and driver negligence. Crashes may involve single vehicles, multiple vehicles, motorcycles, recreational vehicles, transit vehicles or trucks. 
• Aviation Accidents
  Lawyers investigate aviation accidents resulting from mechanical failures, human error and other causes. Crashes injure hundreds, sometimes thousands, of victims onboard aircraft and on the ground every year.
• Camp Lejeune 
  Our firm handles cases of victims exposed to contaminated water supplies at U.S. Marine Corps Base Camp Lejeune between 1953 and 1987. Exposure to toxic water caused serious injuries, including cancer, adult leukemia, Parkinson’s disease, major cardiac birth defects and others.
• Defective Tires
  Defective tires can lead to automobile accidents resulting in injury or even death. Beasley Allen lawyers investigate these accidents caused by blowouts, tread separation and other tire failures. 
• Firefighting Foam
  Beasley Allen investigates cases of Aqueous Film Forming Foam exposure. This firefighting foam contains highly toxic PFAS chemicals that can lead to cancer, liver damage, decreased fertility and other health risks.
• Hair Relaxers
  Our lawyers handle cases for women injured by toxic chemicals in hair relaxers. Women who frequently use hair relaxers may develop uterine cancer, endometriosis, uterine fibroids or breast cancer.
• Kratom
  Beasley Allen is investigating cases of serious adverse effects experienced by individuals who have consumed products containing Kratom.
• NEC Baby Formula
  Our firm investigates cases of premature babies who developed necrotizing enterocolitis after consuming infant formulas manufactured by brands like Enfamil and Similac. Necrotizing enterocolitis is an intestinal disease that can lead to long-term complications and even death.
• Negligent Security 
  Establishment owners and managers are responsible for maintaining safe premises. When someone is injured or killed as a result of negligent security, Beasley Allen lawyers hold owners and managers accountable.
• On-the-Job-Injuries
  We investigate workers’ compensation cases, often finding that defective industrial products are to blame for workers’ injuries or deaths. Quite often, the incident results in a product liability case. Industrial products include manufacturing, farming, construction or other types of equipment.
• Ozempic
  We investigate cases of gastroparesis, intestinal obstruction, deep vein thrombosis and pulmonary embolism related to the use of diabetes and weight loss drugs like Ozempic, Wegovy and Mounjaro.
• Paraquat
  Our firm handles cases for victims injured by paraquat, a popular herbicide linked to Parkinson’s Disease that has been banned or partially banned in at least 92 countries. Paraquat remains legal in the U.S., risking the health and safety of workers on over 2 million U.S. farms.
• Social Media 
  Our youth are facing a mental health crisis caused by social media addiction. Beasley Allen advocates for these youth who have suffered harms, including anxiety, depression, eating disorders, body dysmorphia, ADD/ADHD, self-harm and suicide.
• Talcum Powder
  Beasley Allen handles cases for women diagnosed with ovarian cancer after regular use of talcum powder. For decades, companies like Johnson & Johnson knew that talcum powder might cause cancer but failed to warn consumers. 
• Truck Accidents 
  Our firm handles accident cases involving tractor-trailers, commercial vehicles and other large trucks. These cases often involve multiple, well-funded defendants and complex insurance issues.

Resources to Help Your Law Practice

From the firm’s beginning in 1979, Beasley Allen has been a civil litigation firm representing only plaintiffs. By choice, the firm only represents individuals, companies and governmental entities that have been wronged and have suffered damages due to the wrongdoing of another. Our lawyers do not handle any defense work, neither civil nor criminal. There are no exceptions. The only time we represent companies in Corporate America is when they are victims of wrongdoing and are plaintiffs in civil litigation. This has been our policy since the firm’s establishment in 1979, and it will never change.

We are honored and humbled that our firm has been consistently recognized as one of the leading law firms in the country representing only claimants involved in civil litigation, much of it being complex and complicated. Being trial lawyers representing only victims of wrongdoing is a privilege for us. Our firm has been truly blessed.

We understand the importance of sharing resources and collaborating with our peers in the legal profession. We are committed to investing in resources that can help our fellow trial lawyers in their work. We have compiled a list of our most popular resources for those seeking to work with us or seeking information to help their law firm with a case.

Co-Counsel E-Newsletter 

Beasley Allen sends out a Co-Counsel E-Newsletter specifically tailored with lawyers in mind. It features case updates, highlights key victories achieved for our clients, and informs readers about the firm’s latest resources. You can get it online by visiting our website, BeasleyAllen.com and clicking the Articles link.

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 presentations. To register for upcoming events or access past webinars on-demand, visit the website and click on the Events and Webinar page.

Recalls Update

We try our best to stay current on the latest significant consumer recalls. Contact our JLB Report Team at [email protected] if you have any questions or believe we may need to include a recall.

The Jere Beasley Report

We also consider The Jere Beasley Report a service to lawyers and the general public. We provide the Report at no cost monthly, both in print and digitally. Visit our website, BeasleyAllen.com and click the Articles link.

TRIAL TIPS FOR LAWYERS

Trial Tips: A Refresher On Depositions 

Gavin King, a tremendously talented lawyer in our Toxic Torts Section, has some good advice for all lawyers who handle litigation. He has some practical practice tips relating to case preparation involving the taking of depositions. Let’s see what Gavin has for us. 

As a newer lawyer, I learned that taking depositions—sometimes on short notice—would be a common piece of my practice. Today, taking a deposition is one of the more enjoyable parts of my practice. When seeking advice prior to taking a deposition, I sought advice from some of my mentors. One mentor, a seasoned plaintiff lawyer, gave me a simple, but valuable piece of information: “read the applicable rules.” So that’s what I did. I read every rule relating to the taking and defending of depositions that I could find. I digested all the jurisprudence I could on those rules in preparation for those depositions.

As you can imagine, I showed up to my first deposition heavily armed with this freshly obtained information. I expected the far more experienced lawyers to have a superior level of knowledge of these rules. I was disappointed. I have noticed over the last couple years of my practice that so many seasoned litigators (certainly no one reading this article) seem to neglect the applicable rules. For example, I have been shocked by how often lawyers will agree to the “usual stipulations,” and then proceed to lodge dozens of speaking objections.

In my short time of practice, I have seen lawyers instruct deponents not to answer a question that was not protected by privilege, create arbitrary time constraints, and make impermissible or untimely objections. If I were not familiar with the rules, I would not be able to intelligently respond to these lawyers. Because I followed the advice of my mentor, I am able to stand my ground and avoid being bullied by an opposing lawyer.

My admonition to anyone who may be reading this: consider re-reading the rules if you have not recently, you just might be shocked at what you’ve forgotten.

SPECIAL RECOGNITIONS

Lawyer And Employee Spotlights

Scott Barton

Scott Barton has been an integral part of the Beasley Allen team for an impressive 29 years. As an IT Specialist IV, Scott’s responsibilities extend to various behind-the-scenes aspects, ensuring the day-to-day operations run smoothly. Whether managing servers, troubleshooting network issues, or implementing certain technology protocols, Scott’s vast expertise and work record help keep Beasley Allen’s technology functioning seamlessly.

Outside of work, Scott’s focus is his family. He has been happily married to his wife, Emily, for 16 years. They have four children: Brianna, Benjamin, Victoria, and Caitlyn, each with unique personalities and interests, Scott shares. From the energetic 14-year-old to the independent 26-year-old, Scott says he and Emily cherish the moments spent with their family.  In his spare time, Scott’s hobbies include watching movies and TV shows, playing games, and socializing with family and friends. Whether it’s a “cozy movie night or a lively game session,” Scott says he finds joy in these simple pleasures.

Scott says his favorite aspect of working at Beasley Allen is the camaraderie within his team. He says, “The collaborative spirit and shared dedication to excellence create a positive work environment. I appreciate the opportunity to collaborate with colleagues who share my passion for technology and innovation.”

Scott has an extremely important role at Beasley Allen and is a definite asset. He does his work effectively and in a professional manner. We are blessed to have him with us. 

David Dearing

David Dearing joined Beasley Allen in 2012 after a 20-year law practice in Northeast Florida. His legal career began with a four-year stint as a state criminal prosecutor before moving to a personal injury firm in Jacksonville, which would later be known as Rahaim, Watson, Dearing, and Moore. After dedicating 15 years to Rahaim Watson, David experienced a significant career shift that brought him to Montgomery to join Beasley Allen. 

As a lawyer in the firm’s Mass Torts Section, David currently focuses on litigation related to talcum powder cases associated with ovarian cancer, hair relaxer cases linked to uterine cancer, and infant formula cases that lead to necrotizing enterocolitis in premature infants.

David attributes his success in the legal field to God and the support of his wife, Vicki. Their paths crossed at the Cumberland School of Law, eventually leading them to marriage a year post-graduation. Vicki, who has invested most of her career in academia as a law professor, holds a special place in David’s life as his foremost supporter. 

Driven by a deep-seated connection to Vicki’s hometown of Montgomery and a sense of divine guidance, the couple decided to relocate there in 2011. They felt led to be closer to Vicki’s family and to provide care for her aging parents. “Initially, we lacked a concrete plan. Our collective instinct was to move to Montgomery, with faith that the details would be revealed in due time,” David remarked. 

An invitation to lunch by Ted Meadows, a Beasley Allen lawyer and law school friend to both David and Vicki, marked a turning point in David’s career. This casual gathering led to introductions to Andy Birchfield and Leigh O’Dell, propelling David into a role at Beasley Allen. He is now a valued principal in the firm. 

Looking back, David says he is awe-struck by how a seemingly ordinary catch-up could evolve into a critical juncture, guided by divine hands to frame a larger divine scheme, providing clarity during moments of uncertainty. David deeply appreciates the unexpected career path and the enduring and new friendships that emerged from this pivotal encounter, highlighting the divine planning evident in this journey.

We are blessed to have David, a tremendously talented lawyer, at Beasley Allen. He is totally dedicated to the cause of obtaining justice for his clients. David has an impressive record of successful outcomes for clients. 

Lance Gould

Lance Gould, a lawyer in the Consumer Fraud & Commercial Litigation Section, began his career with Beasley Allen in 1994 and is now a principal. His legal practice focuses on whistleblower litigation, wage and hour disputes, and class action lawsuits in the employment field. Lance has successfully represented thousands of clients throughout his career, securing multi-million-dollar settlements and influencing corporations to amend improper practices.

Lance explains that his choice to enter the legal field was fueled by an awareness of how the profession can meaningfully help those who have been wronged or exploited and who might struggle to obtain justice on their own. He says what he finds most rewarding about being a lawyer is the ability to right wrongs and create significant changes, offering personal satisfaction and a profound sense of purpose. 

Lance treasures his life with his family and personal passions outside of work. He and his wife, Connie, are the delighted parents of three children—Madison, Jake, and Caroline. They relish spending time on various hobbies and activities, enriching their family life.

Lance highlights Beasley Allen’s unique qualities, emphasizing its leadership, organizational structure, and prioritization of faith and family. The firm’s leaders mentor and support younger lawyers, while the structure allows for specialization, leveraging the firm’s collective expertise.

Lance is a tremendously talented lawyer who works hard and is totally dedicated to his clients. We are most fortunate to have Lance at Beasley Allen.

Abretta (Bre) McGhee

Abbretta (Bre) McGhee joined the Beasley Allen team in 2021 as a staff assistant in the firm’s Mass Torts Section. In her role, Bre is primarily the client contact for file-related matters. Additionally, she actively contributes to her team by assisting with various tasks and projects. Bre finds fulfillment in supporting clients and creating an environment where they feel comfortable sharing their journeys with Beasley Allen.

Outside of work, Bre describes herself as a family-oriented individual. She is the middle child among her three siblings. Hailing from West Alabama, she and her family love outdoor activities such as fishing and hunting. Bre’s personal time is often spent traveling and bonding with her newly adopted one-month-old Rottweiler. She humorously admits that the energetic pup keeps her on her toes! 

Bre says her favorite aspect of working at Beasley Allen is hearing clients share powerful stories. She feels honored that they trust her enough to confide in her. She adds, “Working at Beasley Allen has taught me so much, and I feel honored to be a part of such great work in helping people!”

Bre is a very good employee, who does excellent work, and is an asset to the firm. Her role in the litigation process is very important. We are fortunate to have Bre at Beasley Allen.

Keith Scott

Keith Scott has dedicated an impressive 28 years to Beasley Allen. As an Investigator, he plays a crucial role in the success of our firm’s Personal Injury and Products Liability Section. Keith’s work involves collaborating closely with lawyers on follow-up investigations related to serious motor vehicle crashes, often caused by product failure or poor design, resulting in significant injuries or fatalities.

The work of a highly trained and experienced investigator is critically important for success in the field of litigation involving motor vehicles and vehicle crashes. 

  Keith and his wife, Marion, have been happily married for 42 years. They have two children who have brought them immense joy, Keith says. They are also proud grandparents to two grandchildren, whom they “love to spoil daily.” Keith enjoys almost anything outdoors in his spare time, but shooting, hunting, and fishing are at the top of his list!

Keith says his favorite thing about working at Beasley Allen involves the people at the firm. He says:

There is no doubt—the people are what make Beasley Allen the most favorite part about working at this firm, and the collaborative spirit and dedication to clients make it the most rewarding environment.

Keith has a very important role at the firm, and he is a definite asset. The work of an investigator in the Personal Injury & Products Liability Section is difficult and it requires good, effective training and experience. It requires a special sort of person to be an excellent investigator. Keith fits that description. We are blessed to have him with us. 

FAVORITE BIBLE VERSES

This month two of our lawyers and one of our staff employees, each being featured in this issue, share their favorite Bible verses.

David Dearing

David shares three of his favorite bible verses below:

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

He has shown you, O mortal, what is good. And what does the Lord require of you? To act justly and to love mercy and to walk humbly[a] with your God. Micah 6:8

Finally, brothers and sisters, whatever is true, whatever is noble, whatever is right, whatever is pure, whatever is lovely, whatever is admirable—if anything is excellent or praiseworthy—think about such things. 9 Whatever you have learned or received or heard from me, or seen in me—put it into practice. And the God of peace will be with you. Philippians 4:8-9

Bre McGhee

Bre offers one of her favorite verses. 

35 Who shall separate us from the love of Christ? Shall trouble or hardship or persecution or famine or nakedness or danger or sword? 36 As it is written:

For your sake we face death all day long; we are considered as sheep to be slaughtered.

37 No, in all these things we are more than conquerors through him who loved us. 38 For I am convinced that neither death nor life, neither angels nor demons,[b] neither the present nor the future, nor any powers, 39 neither height nor depth, nor anything else in all creation, will be able to separate us from the love of God that is in Christ Jesus our Lord. Romans 8:35-39

Lance Gould

Lance offers several of his favorite verses.

Be strong and courageous. Do not be afraid or terrified because of them, for the Lord your God goes with you; he will never leave you nor forsake you. Deuteronomy 31:6

Trust in the Lord with all your heart and lean not on your own understanding;

6 in all your ways submit to him, and he will make your paths straight. Proverbs 3:5-6

CLOSING OBSERVATIONS

Norfolk Southern Under Fire In NTSB’s Report On Train Derailment

The National Transportation Safety Board (NTSB) has strongly criticized Norfolk Southern for its handling of the East Palestine, Ohio train derailment investigation. The company was accused of obstructing the inquiry and conducting an unnecessary controlled release and combustion of vinyl chloride, a highly flammable substance, during the incident’s aftermath. This conduct, according to the NTSB, led to errors in the combined federal, state, and local response to the February 2023 disaster, which resulted in significant environmental contamination, fires, and the evacuation of nearly 2,000 people.

At a public meeting, the NTSB examined various aspects of the incident, including equipment used to detect overheated wheel bearings, the structural integrity of the tank cars, and the preparedness of emergency personnel. The board unanimously agreed on the final report, which identified the cause of the derailment and issued safety recommendations to Norfolk Southern and other industry stakeholders.

NTSB Chair Jennifer Homendy severely condemned Norfolk Southern’s actions during the investigation, stating the company withheld vital information and attempted to influence the investigation’s outcome. In contrast, Norfolk Southern claimed it cooperated fully with the investigation.

The NTSB highlighted issues with the wayside defect detectors that failed to identify a critical overheating issue in a wheel bearing, leading to the derailment. The board also criticized the decision to vent and burn vinyl chloride, stating it was based on incomplete information provided by Norfolk Southern, which contradicted advice from the chemical’s manufacturer, Oxy Vinyls LP.

Norfolk Southern has defended its decision, citing concerns for community and responder safety. That was despite the NTSB’s findings. Oxy Vinyls acknowledged the derailment’s impact and thanked the NTSB for its work.

The incident has resulted in calls for regulatory changes, particularly concerning the phase-out of older DOT-111 tank cars in favor of newer, safer DOT-117 models. The NTSB has long advocated for this change, emphasizing the risk posed by the continued use of outdated tank cars. The Pipeline and Hazardous Materials Safety Administration (PHMSA) has since mandated that railroads provide more detailed information on hazardous material shipments to first responders.

Source: Law360

MONTHLY REMINDERS

The following are reminders this month for all of us at Beasley Allen. These reminders are put in the Report for a purpose, and that purpose is for them to be applied both in the workplace and at home. The reminders are for all at Beasley Allen. But we also send them to our readers who are outside Beasley Allen. I mentioned last month that our political leaders needed these reminders. Any person in a leadership role should read the quotes and apply the lessons learned from them in their daily lives. It appears some of those in the “leadership” category don’t read this report. 

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 Chronicles 7:14

All that is necessary for the triumph of evil is that good men do nothing.

Edmund Burke

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. 

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

The opposite of poverty is not wealth; the opposite of poverty is justice.

Bryan Stevenson, 2019

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 

PARTING WORDS

Cole Portis, who heads our Personal Injury and Products Liability Section, sent me a copy of an article I had written in 2007. The title was “I’m a Trial Lawyer and Proud of it.” As I read back through the article, I realized how important the message was then and how it still applies today. I will share the article with you on our webpage. What we experienced in 2007 has actually been magnified. The battle rages on!

I stand proudly in support of those individuals harmed by corporate misconduct. I urge other trial lawyers to do the same. It’s unacceptable when huge corporations prioritize profits at the expense of safety, causing harm to the innocent, or when predatory lenders exploit the financially vulnerable. In such cases, the courts serve as the sole sanctuary for the aggrieved. The courts must remain a bastion of solace for victims and their loved ones. It’s the duty of trial lawyers to help ensure that the judicial system remains independent, unobstructed, and accessible to all. 

Moreover, it’s imperative that we choose political leaders who recognize the importance and significance of our nation’s jury system and the need to protect it. These leaders must possess the courage to confront powerful entities when justice demands it. The future of our nation relies in large part on the active participation and impact of trial lawyers. We cannot neglect our moral and ethical duties. The well-being of countless individuals rests on our total dedication and commitment to the cause of justice. The Constitution, the Rule of Law, and the right to trial by jury must be honored and protected. 

To read the full article referred to above, click here.