The Jere Beasley Report June 2022

CAPITOL OBSERVATIONS

The Rule Of Law In The U.S.

At our nation’s founding, Alexander Hamilton, James Madison, and John Jay published a series of essays called the Federalist Papers. These papers promoted the ratification of the U.S. Constitution, laying out the concepts and framework for a new nation and new government. In Federalist Paper #78, Alexander Hamilton argued for an independent judiciary, saying that the federal courts “were designed to be an intermediate body between the people and their legislature.”

Over the years, the courts have served as an independent governing body to safeguard citizens by ensuring that all laws function within the limits set by the U.S. Constitution. The judiciary is charged with enforcing the laws equally for all people, institutions and entities, blocking attempts by public officers to abuse their power. Hamilton’s point was that a civilized society chooses to be governed by facts and reason, not by force or the unpredictable whims of self-serving people in positions of authority. This concept is the rule of law.

This relationship between the courts and American citizens has yielded some critical guidance on laws and produced well-reasoned decisions on highly controversial issues. Even in the face of loud and raucous criticism and charges that the Court “is legislating from the bench,” the justices on the supreme court have in most instances maintained their independence and impartiality, allowing the law and the original intent of the country’s founders to shape their decisions. However, there have been exceptions involving cases that were politically sensitive.

Maintaining a strong and independent judicial system is critically important. That part of the system involving jury trials has been under constant attack, and unjustly so, over the past many years. We must make sure that the judicial system at every level, both federal and state, remains strong, fair and independent. That includes being free of political influence to the extent possible. Maintaining the rule of law is an absolute necessity. It is critically important to the saving of our Republic. I will write more on this subject next month.

Sources: US Courts, Ashlandsource.com, and The Hill

AN UPDATE ON MOTOR VEHICLE LITIGATION

Settlement Reached In Defective School Bus Crash

Beasley Allen’s Greg Allen, Kendall Dunson and Stephanie Monplaisir, and David Greene of the Greene and Phillips Law Firm secured a settlement for the family of Kimberly Welch, who died in a school bus rollover. Ms. Welch suffocated beneath the weight of the roof of the defective school bus she was driving at the time of the incident in Mobile County. The amount of the settlement is confidential.

On Oct. 10, 2019, Mrs. Welch, a school bus driver for the Mobile County Public School System, was traveling south on I-65. Brandon Barner was driving a 2017 Nissan Altima in the left lane adjacent to the school bus when he moved right, causing the bus to veer off the exit ramp and tip over. The roof of the bus collapsed onto Mrs. Welch, suffocating her.

Greg Allen, Beasley Allen’s lead products liability lawyer, had this to say about this tragic case:

While the individual drivers’ negligence initiated the crash, IC Bus and Navistar were ultimately responsible for Mrs. Welch’s death. IC Bus and Navistar’s decision to use inadequate and ineffective roof supports were the primary contributors to this needless tragedy.

David Greene, with Phillips & Greene in Mobile, was on the trial team. He added these comments relating to the dangerous condition of school buses that have the defect that caused this tragic death:

This settlement will have resounding implications and will hopefully lead to safer bus designs for our children. Mobile tax dollars are currently being spent on buses that have a safety-related defect.

The defectively designed and manufactured school bus caused the death of Kim Welch. IC Bus and Navistar placed a defective, unsafe bus on the market without adequate roof and body structure. This bus slid to a point where the rollover of the school bus occurred at only 12 miles per hour. Mrs. Welch had minor physical injuries and would have survived the crash and rollover had the bus not been defectively designed and manufactured. The corporate defendants created an unreasonable risk of harm by failing to use adequate designs that were available at the time the bus was designed, manufactured and sold. This design continues placing at risk the lives of school children and school bus drivers every day when children board the defendants’ defectively designed and manufactured school buses.

Hopefully, as a result of this case, the manufacturers of school buses, including IC Bus and Navistar, will now make safety a top priority. The federal government should get involved and do all that is necessary to make school buses safe.

The case was filed in the Circuit Court of Mobile County, Alabama, case number 02-CV-2019-903280.00. Greg says that presiding judge Micheal Youngpeter was instrumental in getting the case resolved for this deserving family.

If you need more information concerning this case, contact Greg Allen. The pretrial discovery and investigation by the lawyer trial team and the Beasley Allen investigators discovered and uncovered a great deal of information that was extremely damaging to the corporate defendants in this case.

$7 Million Verdict Reached In Vehicle Fire Death Case Against Ford

A Kanawha County, West Virginia jury ruled last month in favor of a Beasley Allen client, Angel Ellen Tyler, whose daughter, Breanna Kristen Bumgarner, was killed in a fiery crash while driving a defective 2014 Ford Mustang. Mrs. Tyler was represented by Beasley Allen lawyers Graham Esdale, Mike Andrews and Preston Moore, along with Danny Cline and Brian Bigelow from Farmer, Cline, and Campbell, PLLC, a very good West Virginia firm.

On March 22, 2016, Ms. Bumgarner was driving the 2014 Ford Mustang on U.S. Highway 33 when her vehicle was struck by a vehicle driven by Anna Morgan Errickson, who was driving her vehicle in the opposite direction. Ms. Errickson inadvertently drove off the highway, overcorrected, and crossed the centerline, striking the Mustang. The impact ruptured the brake fluid reservoir of the Mustang. Shortly after impact, the brake fluid ignited, and a fire started in the engine compartment of the Mustang.

Ms. Bumgarner was trapped in the vehicle by the collapse of the safety cage. Despite the efforts of numerous good Samaritans, she could not be extricated. The engine compartment fire moved rapidly into the occupant compartment, and that’s because the Mustang had no firewall. The fire consumed Ms. Bumgarner as bystanders stood by helplessly. Despite suffering only minor injuries in the crash, Ms. Bumgarner tragically died due to the fire. Graham Esdale had this to say:

Ford knowingly concealed vital information about the fire hazard of the vehicle they manufactured. They failed to address the defect or provide adequate safety measures to protect the driver compartment in the event of a fire. It was an honor to represent this family and ensure that Ford was held accountable for this needless and tragic loss of an innocent young life.

While the driver of the other car was negligent, which led to the crash. Ms. Bumgarner died due to injuries sustained from the post-crash fire caused by Ford’s defective vehicle. The plaintiff’s claims against Ford included product liability, breach of implied warranty, negligence, and willful, wanton and reckless misconduct regarding vehicle safety. The lawsuit included a negligence claim against the defendant driver Anna Errickson, for her part in the tragic event. The jury apportioned fault at 99% to Ford and 1% to Anna Errickson.  Brian Bigelow, a member of the personal injury trial team, made these comments after the verdict:

We are happy to provide the victim’s family with the closure they deserve and hold Ford accountable for their actions to prevent this from happening to other families.

The trial team for the plaintiff, in this case, did a tremendous job. The case is Angel Ellen Tyler vs. Ford Motor Company et al., case number 18-C-182, filed in Kanawha County, West Virginia.

Crashworthiness Claims: Airbags

Airbag technology has come a long way since they were first introduced in certain passenger vehicles in the late 1970s.  In 1984, NHTSA required all passenger vehicles to be equipped with driver-side frontal airbags by 1989.  By 1998, NHTSA required all passenger vehicles to have driver and passenger frontal airbags.  Today, all passenger vehicles are required to have side airbags as well.  Despite the advancements in safety technology and airbags, the industry has had many hurdles along the way.

Passenger vehicles are far safer today because of airbags and other restraint advancements, but no manufacturer or airbag system is perfect.  One common issue we see involves the complex sensor systems and the algorithms which control airbag deployment.  Injuries can occur if the airbag sensors fail to deploy the airbag in severe crashes, deploy the airbags in minor collisions, or if the airbag deploys late in the crash sequence after the occupant is out of position.

Because each crash is unique, it is critically important to understand the forces and directions of each hit in the crash sequence.  With today’s data recorders, a crash sequence can be mapped to pinpoint these forces and airbag deployment or non-deployment.  This allows for an analysis of restraint performance given the forces experienced in the crash sequence.

Another common issue with airbag performance is overpowered airbags.  Airbags are intended to cushion the blow for occupants.  However, airbags must deploy mid-crash, which necessitates them to deploy at excessively high rates of speed.  Many airbag systems are overpowered, resulting in injuries to occupants, especially smaller statured adults and children.

Evan Allen, a lawyer in the Beasley Allen Mobile office, is currently working on an airbag case involving an Infiniti QX4.  In that case, a minor front seat passenger was severely injured when the overpowered airbag deployed late in the crash sequence.  The airbag violently struck the minor in the face, causing facial bone fractures and the loss of an eye.  The case is currently pending in the Circuit Court of Mobile County, Alabama.

If you need more information on airbag litigation, you can contact Evan Allen.

Beasley Allen Reaches $4.25 Million Settlement In Auto Auction Lot Incident

Beasley Allen lawyer Warner Hornsby successfully negotiated a $4.25 million settlement for a client injured by a vehicle driven recklessly on an auto auction lot by an employee of ABC Birmingham, LLC. The client was attending an auto auction in Moody, Ala., at the time. Warner, a lawyer in our firm’s Personal Injury & Products Liability Section, had this to say about the case:

Our client has suffered and will continue to suffer greatly because of the reckless behavior of the operator of the auction. The auto auction company failed to take reasonable steps to hire qualified and adequate drivers; it never monitored its drivers and consistently allowed speed of sales to override customers’ safety. The corporate defendant needed to be held accountable for its actions, which resulted in our client’s considerable injuries and his pain and suffering.

In July 2015, Warner’s client attended the defendant’s auto auction. As he walked through the auction lot inspecting vehicles, an auction company employee driving a vehicle through the lot ran into him. The driver, a 76-year-old employee of the company, had never before driven in a professional capacity. Despite the auction company claiming there was a 10-mile-per-hour speed limit in force on the lot, the driver of their vehicle admitted to exceeding the limit. The driver said he had never heard of any speed limit at the auction.

This was not the first time a pedestrian had been hit on the lot. A former employee was prepared to testify at trial that the auction lot operators consistently urged their drivers to move through the lot quicker to get cars through the auction faster. Warner summarized the end result of these failures:

With 600 – 800 pedestrians walking around the lot on a sale day, we would have shown at trial that it was simply a matter of when not if, someone would be injured. The lack of any system to ensure safe driving made this terrible result an inevitability.

Warner’s client suffered injuries requiring multiple surgeries and future medical treatment. The injuries also left him unable to work as he had before the incident. Warner says:

As in every case, this was an extraordinary team effort to resolve a case that the defense contested in every aspect. Our client is a great person, and I am proud to have been able to work on his case. We are in the business of helping people, and it’s always a joy when we get to help good people who have had their lives upended.

If you need more information, contact Warner Hornsby.

Tire Rating Systems: How To Use Them To Get The Most Out Of Your New Tires

Did you know that the National Highway Traffic Safety Administration (NHTSA) provides a great deal of information to folks relating to vehicles they ride in or own? In addition to providing information about safety recalls, crash data, and other important safety tips, the National Highway Traffic Safety Administration (NHTSA) resources also provide potential tire purchasers with the information they need to make an informed decision when choosing the right set of tires.

Understanding the treadwear, traction, and temperature ratings that go along with your tires or tires that you are looking at purchasing can go a long way to ensure your safety on the road. Many do not know that keeping these ratings in mind when they purchase a new set of tires can often be a game-changer when it comes to avoiding accidents down the road because dealers and manufacturers rarely review this information with consumers.

The rating system for treadwear gives every tire a rating when it comes to that tire’s susceptibility to wearing out. The number 100 serves as a baseline. For example, a tire with a treadwear grade of 200 or 300 should be able to wear twice and three times as long, respectively, when compared to a control tire. While most tires on the market have a treadwear grade between 200 and 400, only 8% of tires have received a grade of 500 or more. Purchasers should be aware of the treadwear rating that comes with the tires they are purchasing because a high treadwear rating ensures a maximum amount of usage and life. In other words, the higher the rating, the longer the tire should last when compared to the control tire.

Traction grading is also essential for picking out the right tires. Tire traction is graded on a letter basis: tires with the highest level of traction are given grades of AA or A, while those with less traction are given B or C grades. While the vast majority of tires produced today are given A grades or above, it is still for the consumer to know the traction grade that goes with the tire they are looking to buy. The changing seasons and possibility of inclement weather mean that consumers should ensure they have tires that provide the most traction possible for their vehicles. Consumers should be able to rely on dealers to provide the appropriate tire for a consumer’s needs.

Tires are also graded on their ability to withstand high temperatures. Tires that cannot withstand the high heat levels that come with operating on the road are more susceptible to blowouts and tread separations — occurrences that can lead to serious injury. While approximately 60% of tires have been given the grade of “A” — the highest grade rating for temperature — a sizeable percentage of tires still provide a comparably lower grade for withstanding high heat. This can be particularly important if you live in the southern portion of the country.

Where can the consumer find out about this information? Treadwear, traction, and temperature ratings for tires can be found both on the tire’s sidewall and on the NHTSA website. However, your local dealer should also be knowledgeable on these topics.

Finally, if the right size tire is not purchased for the consumer’s vehicle, the positive effects of purchasing tires with favorable treadwear, traction, and temperature ratings could potentially be negated. When selecting the correct tire size, owners should consult the vehicle’s owner’s manual and the Loading Information Label located on the driver’s side door edge to find the correct size tire for their vehicle. The tire size should be denoted with a code such as “P195/70R14” or something similar. Tire salespeople or other wholesalers should be able to take this information and provide the right size tires for purchase. An auto manufacturer may have designed more than one size tire for a given vehicle in some cases.

The decision to buy tires is important in light of how often we use our vehicles and the precious cargo that we often use them to haul around. Keeping the above information in mind will help consumers pick out the right tires for their vehicle. As stated above, NHTSA provides a voluminous amount of information regarding vehicle safety. For tire specific information, the following reports can be consulted to inform and empower tire consumers:

• “Consumer Guide to Uniform Tire Quality Grading”:
  https://www.nhtsa.gov/sites/nhtsa.gov/files/documents/812325_2016-uniformtirequalitygrading.pdf
• “Tire Buyer’s FAQ – What You Should Know and Ask”:
  https://www.nhtsa.gov/sites/nhtsa.gov/files/documents/tire-buyers-faq.pdf
• “Congratulations on Your New Tire Purchase”:
  https://www.nhtsa.gov/sites/nhtsa.gov/files/documents/new-tire-purchase-letter.pdf

Beasley Allen lawyers have successfully handled cases involving fatal and non-fatal vehicle accidents involving faulty tires. You can contact Ben Baker, a lawyer in our Personal Injury & Products Liability Section, who has successfully handled tire litigation for a number of years for more information.

Source: NHTSA

Ford Agrees To $19.2 Million Settlement To End States’ False Ad Claims

A group of states reached a deal with Ford Motor Co. for $19.2 million over claims that it misrepresented the fuel efficiency of the 2013 and 2014 C-Max Hybrid vehicles and the hauling capacity of its 2011–2014 Super Duty pickup line to consumers, Law360 reported. The agreement between 39 states, the District of Columbia and Ford

Under the terms of the settlement agreement, an executive committee made up of the attorneys general of Arizona, Illinois, Maryland, Oregon, Texas and Vermont was tasked with deciding how the $19.2 million will be divided among the states.

According to the settlement agreement, states in the group include California, Texas, Connecticut, Florida, Georgia, Massachusetts, New Jersey, New York, and Pennsylvania. The attorney general in each state has discretion over how best to use their share of the funds, whether for consumer protection enforcement, consumer education or other uses permitted by state law.

The state attorneys general accused Ford of violating state consumer protection statutes by running ads that misrepresented the real-world fuel economy of the hybrid vehicle, including by claiming the C-Max’s fuel economy and driving performance surpassed that of a Toyota Prius. The state attorneys general said those claims were false and wrongfully affected consumers purchasing choices.

Ford was also accused of misleading about the payload capacity of several models in its Super Duty pickup line. The attorneys general said Ford made it seem as if the trucks could haul more weight than they actually could by subtracting the weight of items that would typically be present in or on the vehicle, including a spare tire and jack and the car’s radio. The subtractions were said to have increased the payload capacity of the trucks by roughly 40 pounds.

Source: Law360.com

BIG TRUCK ACCIDENT LITIGATION

Beasley Allen Secures $4 Million For Client Permanently Disabled By Negligent Commercial Driver

Warner Hornsby had another victory last month for another of his clients. He obtained a $4 million settlement for a woman who was seriously injured in an accident involving a commercial vehicle.

On July 17, 2015, Warner’s client was a passenger in a car being driven on a public highway. At about 8 p.m., the car she was in suffered a tire blow-out. The driver pulled off on the side of the road to change the tire. Soon thereafter, a commercial vehicle struck the disabled car, causing it to hit Warner’s client, injuring her severely.

Warner’s client suffered a very large disc herniation in her lower back. She has endured multiple surgeries and will require additional surgeries and treatment in the future, all caused by the negligence of the commercial vehicle driver and his employer.

Among other injuries, the client’s main problem was a severe injury to her lower back, which was first noticed on MRI as a 7.5 mm herniation. She had no health insurance, little to no treatment options, and would be unable to work, even with her employer providing her with limited duties. Warner says:

She has lived with debilitating pain in her back for years, and her road to recovery will likely last the rest of her life, but this settlement will get her back on her feet and allow her to take control of her life. I am proud to have been able to represent her and help provide some measure of justice. I am extremely happy that we were able to get this result for a very deserving client. The defendant’s lack of concern for the safety of other people left my client disabled, without health insurance, and unable to care for herself. This settlement will ensure she can live and get the proper treatment she needs to heal.

The lawsuit had three counts of wrongdoing, including negligence and wantonness. There was also a claim for negligent hiring, training and supervision of employees against the driver’s employees. Warner did an outstanding job for a deserving client in this case.

Negligent Maintenance Can Lead To Commercial Truck Crashes

In many traffic accidents involving tractor-trailers or other “heavy truck” commercial carriers, the tractor-trailer driver is often at fault.  However, the actual cause of the wreck may not always be in the way one would think, such as a driver running a red light, making an improper lane change, or driving too fast.  Sometimes the wrongful conduct that caused a vehicle crash occurs before the tractor-trailer involved even gets on the roadway.

Many wrecks are attributable to mechanical failures that result from negligent or wanton inspection, repair, or maintenance of a commercial motor vehicle.  Federal regulations require motor carriers to systematically inspect, maintain, and repair all motor vehicles subject to their control.  These regulations also require that the truck and its component parts be in safe operating condition at all times.  A motor carrier can be held responsible for any injury caused by its failure to properly inspect, maintain, or repair any equipment in its control.

But an investigation of a crash cannot stop with only the tractor-trailer driver’s conduct and their employer’s conduct.  The investigator must also investigate who else has been involved in maintaining the subject tractor-trailer.  For instance, our firm’s Mobile, Alabama office has recently filed a case where the tire and axle assembly of a tractor-trailer unit detached from the trailer, crossed the center line of the highway and collided with our client’s vehicle resulting in severe injuries.

During our investigation, we discovered the tractor-trailer unit was actually owned by a separate entity and was leased to the truck driver and his employer.  Additionally, the lease agreement between the truck driver’s employer and the tractor-trailer owner provided that the owner retained responsibility for the maintenance, repair, and general upkeep of the tractor-trailer unit.

The wrongful conduct of the tractor-trailer unit owner does not necessarily absolve the driver and the driver’s employer of liability, as they are still responsible for the pre- and post-trip inspections required by the Federal Motor Safety Regulations.  However, this information details how multiple individuals and entities can bear responsibility in commercial motor vehicle cases.  Locating additional parties who bear responsibility for causing an injury is vital, and doing so can increase your client’s recovery and ensure they are adequately compensated for their loss.

When any wreck occurs that involves a commercial motor vehicle, particularly a tractor-trailer or other “heavy truck,” you must begin your investigation immediately to discover all parties whose conduct may have contributed to the wreck.

The lawyers and investigators at Beasley Allen have extensive experience investigating and handling these crashes. If you need more information or if you have a client who has been injured in a wreck involving a tractor-trailer or other commercial motor vehicle, contact us.  We would welcome the opportunity to work with you.

The Beasley Allen Truck Accident Litigation Team

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

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

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

PRODUCT LIABILITY UPDATE

Deaths From Faulty Car Jacks Are Not Freak Accidents

Last summer, a 27-year-old man from New York died tragically when a car jack failed and trapped him underneath his car.  The man was pronounced dead on the scene from mechanical asphyxia.  While some people may write this off as just a freak accident, defective car jack incidents are quite common.  According to the National Highway Traffic Safety Administration (NHTSA):

Approximately three-fourths (74%) of the persons injured in motor vehicle jack failures were injured as a result of being struck by the vehicle as it fell from the jack. Eighteen percent of those injured sustained injuries as a result of the jack collapsing or losing pressure while in use.

Over 4,000 people are injured in car jack failures every year. The injuries tend to be quite severe, ranging from fractures to amputations and deaths. Car jack manufacturers can be held accountable for deaths and injuries under Alabama’s products liability law and similar laws in other states.  Manufacturers are responsible for making reasonably safe products, and if the manufacturer knows its car jack is dangerous, it must warn Alabama consumers.

In May 2020, Harbor Freight recalled 1.7 million of its three- and six-ton jack stands due to a heightened risk of them collapsing while under load.

Beasley Allen lawyers have successfully investigated and handled various defective product cases, including those involving motor vehicles. Those included cases involving faulty car jacks. Our lawyers in the Personal Injury & Products Liability Section can examine any set of unique facts.  If you need further information, contact us.

Sources: NHTSA Research Note, Injuries Associated with Hazards Involving Motor Vehicle “Jack Failures” (September 1998); caranddriver.com; www.lawyertime.com/; https://www.denenapoints.com/u-s-data-incidence-jack-failure-injury-accidents-nationwide/

$3.3 Million Jury Verdict Against Genie Industries In Defective Boom Lift Suit

Mark Bowden received a $3.35 million verdict for injuries sustained while operating a 2013 Genie S-45 self-propelled man lift boom that his employer, Vigor Industrial LLC, rented to assist with repairing a ship. A federal jury in Oregon found that the vehicle was in a dangerously defective condition, determining Genie Industries was 52% at fault and Bowden 48% at fault. It awarded him “$942,000 in past and future lost wages and $2.4 million in past and future economic damages,” according to Law360.

On Sept. 20, 2015, the vehicle was parked with the boom over the steerable wheels. Its normal parking position has the boom over the non-steerable wheels. There was minimal room for Bowden to move the vehicle because it was “parked up against a solid barrier and next to another lift, with its wheels turned. As Bowden attempted to move the vehicle, it changed without warning, operating in “fast mode.” The movement created in fast mode threw Bowden back and forth inside the boom’s cage. Bowden alleged that he suffered spinal fractures and knee and shoulder injuries due to the event.

The jury agreed with Bowden that Genie designed and distributed a defectively designed lift and failed to give proper warnings regarding its operation. Specifically, Bowden explained that the fast mode should not engage unless the operator intentionally switches to that mode.

The plaintiff is represented by J. Randolph Pickett, Kimberly O. Weingart and Shangar S. Meman of Pickett Dummigan McCall LLP. The case is Bowden v. Genie Industries (A Terex Brand) Inc., case number 3:17-cv-01411, in the U.S. District Court for the District of Oregon.

Source: Law360.com

$77.5 Million Verdict In Final Bellwether Earplug Trial

Plaintiff, James Beal, was awarded $5 million in compensatory damages and $72.5 million in punitive damages. Last month, a Florida federal jury agreed with Beal that defective CAEv2 combat arms earplugs made by 3M he wore throughout his service in the U.S. Army resulted in bilateral tinnitus and noise-induced hearing loss. This was in the 16th bellwether trial in multidistrict litigation against the manufacturing giant.

The plaintiff had been exposed to noise from various weapons while in active service from 2005 and 2009 and then as a reservist until 2011. He alleged negligence and fraudulent misrepresentation, among other claims, due to design defects in the CAEv2 earplugs he used during his service.

This was the final bellwether trial from an initial set of cases pulled from the multidistrict litigation. There have been 10 wins for the plaintiffs and nearly $300 million in total damages, according to the lead plaintiffs’ counsel on the MDL, Bryan Aylstock of Aylstock Witkin Kreis & Overholtz PLLC, Shelley Hutson of Clark Love & Hutson GP and Christopher Seeger of Seeger Weiss LLP. The lawyers said in a statement: “It is clear 3M’s defenses — whether in the courts, to investors, or the public — are unconvincing and without merit.”

In January, a Florida federal jury awarded U.S. Army veterans William Wayman and Ronald Sloan $15 million each in compensatory damages and $40 million in punitive damages. Jurors found that the two men had suffered tinnitus and hearing loss stemming from their use of 3M’s Combat Arms Earplugs. However, Wayman’s claims are addressed under Colorado law, which caps certain tort damages. Judge M. Casey Rodgers of the U.S. District Court for the Northern District of Florida lowered Wayman’s award to $21.7 million last month, determining that this was the most he could receive under those caps and in addition to prejudgment interest.

The Beal verdict is now the largest single award made to a plaintiff. In the most recent previous bellwether trial, a jury had awarded former serviceman Jonathan Vaughn $2.2 million in compensatory damages but no punitive damages.

3M says it will appeal the recent jury verdicts, and the company continues to defend the CAEv2 product claiming it is safe and effective.

The MDL was formed in 2019, with more than 280,000 plaintiffs alleging hearing damage due to using CAEv2 earplugs. That had followed 3M agreeing to pay $9.1 million in 2018 to settle, without admitting liability, False Claims Act allegations that it knowingly sold defective earplugs to the military that could loosen imperceptibly and lose their seal.

On May 6, Judge Rodgers had dismissed roughly 20,000 claims from the MDL for failure to submit proof of military service, giving those plaintiffs until June 6 to seek to reopen their cases.

Judge Rodgers has also ordered the parties to prepare nearly 1,000 cases to go to trial across the rest of 2022. The Plaintiffs’ lead lawyers say they “look forward to trying them across the country to fully hold 3M accountable for the damage they have caused to those who served our nation.”

Plaintiff Beal is represented by Bryan F. Aylstock, Bobby J. Bradford, Caitlyn P. Miller, Daniel J. Thornburgh and E. Samuel Geisler of Aylstock Witkin Kreis & Overholtz PLLC and Michael A. Sacchet, Megan L. Odom and Leslie W. O’Leary of Ciresi Conlin LLP.

The case is Beal v. 3M Co. et al., case number 7:20-cv-00006, and the MDL is In re: 3M Combat Arms Earplug Products Liability Litigation, case number 3:19-md-02885, both in the U.S. District Court for the Northern District of Florida.

The other case mentioned is Jonathan Vaughn v. 3M Company et al., case number 7:20-cv-00134, in the U.S. District Court for the Northern District of Florida.

The MDL case is In re: 3M Combat Arms Earplug Products Liability Litigation (case number 3:19-md-02885) in the U.S. District Court for the Northern District of Florida.

Source: Law360

WORKPLACE LITIGATION

On The Job Injuries

On-the-job injuries happen all too frequently, and when Beasley Allen lawyers investigate such injuries, there are many factors to consider. When industrial machinery is involved in the incident, a thorough investigation is necessary to determine if more than a worker’s compensation claim is available and should be pursued.  While pursuing a worker’s compensation claim, our lawyers quite often will discover that faulty industrial machinery actually caused or contributed to the injury or death.  When the injury is serious and disabling, a defective product claim should be considered.

Another consideration involves the working conditions in which the client was injured.  Many of these injuries take place in factories and plants, and it is important to ascertain whether these facilities were compliant with OSHA regulations, as well as if a supervisor was on-site at the time of the injury and responded properly to the situation.

Lawyers in Beasley Allen’s Atlanta office are currently investigating one such case in which a female employee suffered an on-the-job injury at a chicken processing plant.  The client worked above two conveyor belts and was trained to retrieve items that fell onto those belts.  While doing so, her hand was pulled into where the two conveyor belts meet.  As a result, the client suffered bone fractures and other injuries requiring surgery.

It was later discovered that the supervisor on duty at the time of the incident had no knowledge of where the kill switch for the conveyor belts was located and thus was unable to turn off the machine to extract the employee’s hand.  To add insult to injury, instead of immediately calling an ambulance, our client’s supervisor made her wait for twenty minutes and eventually drove her to the hospital in his own vehicle.

Faulty industrial machines are always a possible factor in on-the-job injuries. Still, it is also important to consider the procedures and protocols that should be followed by supervisors and other employees when the incident occurs.  Supervisors should have the knowledge and training to handle these critical situations to ensure the injured employee is removed from further danger and cared for immediately.  A lack of such knowledge places fault not only on the machine but also on the supervisor.

Kendall Dunson and Evan Allen are two lawyers in our firm’s Personal Injury & Products Liability Section who specialize in on-the-job injury litigation.  If you or someone you know has suffered an injury at the workplace, you can contact Kendall or Evan.

6th Circuit Says Government Contractor Can’t Escape $3 Billion Coal Ash Suit

A $3 billion punitive damages verdict will stand against Jacobs Engineering Group Inc. A three-judge panel of the Sixth Circuit Court of Appeals upheld a Tennessee federal court’s ruling in favor of more than 60 workers exposed to toxic coal ash. The federal contractor was hired by the Tennessee Valley Authority (TVA) to help clean up a coal ash spill. The workers claim that their exposure caused them to endure illnesses including heart disease, lung cancer, leukemia and skin cancer and are seeking $50 million in compensatory damages and $3 billion in punitive damages.

In November 2018, the Tennessee federal court held the first phase of a bifurcated trial. It found that Jacobs Engineering “failed to meet TVA’s contractual requirements relating to site safety, failed to exercise reasonable care and breached its duty of care to the workers,” Law360 reported. The contractor filed an interlocutory appeal before the second phase of the trial began. The court would determine causation and damages for each plaintiff worker during the second phase.

On appeal, Jacobs Engineering argued that it should receive derivative governmental immunity because the TVA was a quasi-governmental agency that selected the contractor for the project. The Sixth Circuit rejected Jacobs Engineering’s claim. The court considered the “discretionary function” exception of the Federal Tort Claims Act (FTCA). This exception can give sovereign immunity to the federal government when a question about its judgment arises.

However, the Sixth Circuit panel found that TVA would not qualify for government immunity if it has been sued, and so, by extension, the contractor would not be eligible either. The court based its ruling on the U.S. Supreme Court’s April 2019 ruling in Thacker v. Tennessee Valley Authority. It concluded that TVA was not a traditional government agency but a federally owned entity that could “sue and be sued” and was expressly excluded from the FTCA by Congress when the law was enacted in 1946.

Jacobs Engineering also argued that the lawsuit would interfere with TVA’s environmental site remediation, governed by the Comprehensive Environmental Response Compensation and Liability Act (CERCLA). The contractor claimed that CERCLA preempted the lawsuit. The panel also rejected this argument explaining that the plaintiffs “aren’t challenging the adequacy of the TVA and Jacobs Engineering’s site safety plan, but rather the claim is for the failure to adhere to the plan’s requirements.” The opinion states:

We conclude that pursuing the suit under this theory would not have been preempted by CERCLA because the theory does not challenge the adequacy of the terms of the site wide health and safety plan.

Law360 also reports that the panel denied the contractor’s assertion that the lawsuit would hinder TVA’s “governmental function by allowing state court claims to apply to cleanups authorized by the federal government.” Referencing Thacker, the panel said:

The sue-and-be-sued clause in the TVA’s enabling statute demonstrates that these state-law claims can apply to the TVA ‘given Congress’ enactment of so broad an immunity waiver — which demands … a ‘liberal construction.’”

The workers are represented by Mark E. Silvey, Louis W. Ringger III and William A. Ladnier of Milberg Coleman Bryson Phillips Grossman PLLC.

The case is Greg Adkisson et al. v. Jacobs Engineering Group Inc., case number 21-5801, in the U.S. Court of Appeals for the Sixth Circuit.

Source: Law360.com

AVIATION LITIGATION

Southwest Pressured Boeing To Mislead The FAA On The 737 MAX

A class action lawsuit has been filed against Southwest Airlines, alleging that the commercial carrier attempted to pressure Boeing into deceiving the Federal Aviation Administration (FAA) in an effort to skip out on pilot training for the 737 MAX aircraft.

It’s claimed in the Texas case that Southwest delivered the odd and potentially criminal proposal to the FAA in April 2016, a year before the FAA certified the 737 MAX. The aircraft was in test flights at the time.

According to a filing in the case, Southwest manager Bill Lusk used the carrier’s position as the MAX’s most influential customer to pressure Boeing into installing a new flight-control safety alert on one of its older 737s. Those familiar with the case say that the only reason Lusk made such a request was so that Boeing and Southwest could tell the FAA that the safety alert was not a new feature on the 737 MAX.

The class action lawsuit, filed in March, alleges that Southwest was determined to avoid costs in any new pilot training, even if it meant misleading federal regulators. Documents show Southwest management was determined to keep pilots who flew the older 737 NG out of flight simulators and even classroom instruction for handling the new 737 MAX.

Documents also show that Southwest demanded a clause in its MAX 737 sales contract stipulating a penalty of $1 million per airplane delivered if Boeing failed to meet the carrier’s insistence on avoiding everything but the absolute minimal pilot instruction.

Mike Andrews, a lawyer in the firm’s Personal Injury & Products Liability Section, is our lead aviation lawyer. He heads the Beasley Allen Aviation Litigation Team in all of our aviation litigation. Mike has represented some of the families of 737 MAX crash victims. He has this to say about the latest lawsuit in this tragic saga:

The lawsuit’s allegations further underscore the perils of allowing aircraft manufacturers to call the shots when it comes to aircraft design, certification, training, and safety. This cozy relationship contributed to the safety lapses that led to the crashes of Boeing 737 Max aircraft in Indonesia and Ethiopia, which killed 346 people.

Tragically, Southwest’s petition to deceive federal aviation regulators paid off. While the MZX 737 safety alerts were not retrofitted on an older Southwest aircraft, the carrier’s involvement prompted Boeing to remove any mention of the Maneuvering Characteristics Augmentation System (MCAS) from 737 MAX pilot training materials. Moreover, 737 NG pilots with all carriers could become certified to fly the new 737 MAX by taking a three-hour iPad course.

Investigations later determined that the MCAS and pilot’s unfamiliarity with it due to not being informed about the system were the primary causes of the crash of Lion Air Flight 610 in October 2018 and Ethiopian Airline Flight 302 in March 2019. Mike said:

Boeing’s willingness to accommodate the airline industry’s demands and influence federal safety regulations directly led to human suffering on an immense scale. The 737 MAX crashes would not have happened had Boeing prioritized safety instead of profits when it designed its new aircraft, and many people, including our clients, would be alive today.

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

Source: Seattle Times

THE TALC LITIGATION

J&J Stockholders Reject Proposal To Stop Sale Of Talc Outside North America

Despite facing mountains of litigation over its talc products causing ovarian cancer, Johnson & Johnson (J&J) remains steadfast in its commitment to harm as many consumers as possible. While J&J pulled its talc products from the shelves in North America two years ago, it will continue to sell them in many markets around the world. This decision was put to the vote of stockholders in J&J’s annual meeting and failed to receive the majority needed to discontinue sales of the products.

Plaintiffs have brought over 40,000 lawsuits against the company, contending that the company’s talc products cause cancer. Currently, more than 25,000 of those cases remain outstanding. So far, the litigation has cost the company nearly $1 billion in legal fees and $3.5 billion from verdicts and settlements.

As the litigation gained ground, J&J went to shameful extremes to avoid financial responsibility and accountability. It is doing this by employing a strategy by which the company set up a unit under a business-friendly Texas law and then put that entity into bankruptcy, which brought a temporary halt to the baby powder suits. J&J itself didn’t file bankruptcy but has nevertheless benefitted from a rule that halts all litigation against a bankrupt company.

The FDA discovered traces of asbestos in samples of the company’s baby powder in 2019, which prompted a recall. Less than a year later, the company halted the sale of baby powder and other products in North America. At the time, J&J said the move was to allow manufacturing facilities to produce high-demand medicines and allow its workers to socially distance themselves.

One shareholder proposal that was passed was a racial justice audit. The proposal cited J&J’s marketing of baby powder to minority and overweight women.

J&J has refused to accept responsibility for its wrongdoing over a long period of time, but eventually, justice will be done, and a huge corporate offender will be forced by the judicial system to do the right thing.

J&J Chapter 11 Talc Claimants Get Approval For Appeal To Third Circuit

The Third Circuit Court of Appeals cleared the way for the committee of talc claimants and some individual plaintiffs fighting Johnson & Johnson’s (J&J) bankruptcy to seek dismissal of the Chapter 11 case directly to the circuit court. On May 11, Judge David J. Porter granted the motion for direct appeal, recognizing the urgency of the talc plaintiffs’ claims. His order allows the claimants to skip an intervening appellate level, according to Law360. The Chapter 11 case involves J&J’s newly created subsidiary LTL Management LLC.

The talc claimants committee received permission from the bankruptcy court to file the appeal with the Third Circuit. The committee explained in its appeal that the outcome of determining whether LTL filed for bankruptcy “in good faith” for a legitimate bankruptcy reason would have profound effects, underscoring the need for a quick decision. The petition said:

The impact of any ruling here will reach into corporate boardroom strategy sessions, affect (if not create) bankruptcy jurisprudence and law, and dictate how current and future tort victims may pursue relief.

The bankruptcy court’s refusal to dismiss LTL’s bankruptcy filing in February is at the heart of the claimants’ motion to dismiss. Judge Michael B. Kaplan determined that using Chapter 11 to address mass tort liability is a valid reason to file the claim. He further noted that bankruptcy might be the most efficient way to provide recovery for the more than 38,000 talc claimants.

The talc claimants argued that the J&J used a legal maneuver, the “Texas Two-Step,” to perform a divisive merger. It split existing J&J subsidiary Johnson & Johnson Consumer Inc. (JJCI) into two new entities, New JJCI  and LTL Management. It then offloaded billions of dollars of potential tort liability due to mesothelioma and ovarian cancer claims linked to J&J’s talc products containing the known carcinogen asbestos. In October, LTL filed for Chapter 11 protection, two days after it was split off from the old JJCI. Claimants allege that this shows the bankruptcy was filed in bad faith to shield JJCI’s assets.

The bankruptcy case was filed in North Carolina but was transferred to New Jersey, home to J&J and where multidistrict litigation involving more than 35,000 talc injury claims is pending. Following the transfer, the U.S. Trustee’s Office expanded the representation of the talc claimants committee formed initially in North Carolina. It added more members and divided the committee in two, with one committee representing the interests of mesothelioma claimants and the other representing ovarian cancer claimants.

Law360 explains “that expansion was later undone, but the two committees remain in existence solely to pursue the appeals process.”

While Judge Kaplan denied the claimants’ motion to dismiss and approved LTL’s request for an injunction that halted the talc claims against it and other companies, he agreed that it would be best for all parties to resolve the case quickly. He then approved the claimants’ opposition for direct appeal to the Third Circuit, believing that the district court, usually the next step in appealing a bankruptcy, would have little to contribute to the record.

The lead appellate case is In re: LTL Management LLC, case number 22-8015, in the U.S. Court of Appeals for the Third Circuit. The underlying bankruptcy case is In re: LTL Management LLC, case number 3:21-bk-30589, in the U.S. Bankruptcy Court for the District of New Jersey.

Source: Law360.com

Beasley Allen Talc Litigation Team

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

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

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

OPIOID LITIGATION

An Update On The Alabama Opioid Litigation

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

The tireless efforts of the Alabama Opioid Litigation Team, with lawyers from Beasley Allen, Prince Glover Hayes, and the attorney general’s office, led to this tremendous result.

The state sued Endo, McKesson, and Purdue in June of 2019.  In less than two and a half years, the team was ready and set for trial, which was set for November 2021.  Over 100 depositions were taken in the case, and millions of documents were produced by all sides in the litigation.

On the eve of trial, the state was able to reach a settlement with Endo and agreed to mediate with McKesson.  Purdue, the third primary defendant in the case, filed for bankruptcy early on, and a bankruptcy-based settlement is expected soon with that company.

Alabama was one of four states that declined to join the $26 billion nationwide opioid settlement against four opioid companies, opting instead to take on the drug companies on its own. The gamble has already paid off. Under the settlement terms, Endo will pay $25 million to the state, Johnson & Johnson will pay $70.3 million, and McKesson will pay $141 million.  Payments from Johnson & Johnson and McKesson will occur on an accelerated schedule relative to the nationwide deal.

The State of Alabama was represented by Beasley Allen lawyers Rhon Jones, Matt Griffith, Jeff Price, Rick Stratton, Gavin King, Tucker Osborne, David Diab, Will Sutton and Elliott Bienenfeld, along with Robert Prince and Josh Hayes of the Tuscaloosa firm Prince Glover and Hayes and Clay Crenshaw and Michael Dean of the Attorney General’s Office. Beasley Allen staff Tracie Harrison and Katie Edwards provided valuable assistance in preparing the litigation for trial and provided tremendous staff support throughout the litigation.

Attorney General Steve Marshall, who has consistently protected Alabama’s interest in the opioid litigation, said that our state received significantly more in those settlements than it would have gotten in the nationwide proposed settlement. Clearly, the Attorney General did the right thing in refusing to join in the national settlement. For a state of its population size, Alabama did extremely well in the settlements described above. The attorney general’s office said, for example, that two similarly populated states settled with Endo for 26% and 35% of the total that Alabama secured.

The case is State of Alabama v. Endo Health Solutions Inc, in the Montgomery County Circuit Court, Alabama, case No. CV-2019-901174.

Teva And Allergan Agree To $161 Million Settlement In West Virginia Opioid Case

West Virginia has reached a settlement worth $161.5 million to settle opioid-crisis claims against drugmakers Teva and Allergan. The settlement was announced on May 25 before closing arguments in a weeks-long trial. The parties agreed to end the case for approximately $134.5 million in cash and $27 million worth of opioid overdose medication Narcan to be provided by Teva.

Allergan will pay up to $51.2 million over a five-year period to address opioid-related issues, as well as reimburse attorneys’ fees and costs. The trial was stayed while the parties executed a final agreement.

In the event Teva or Allergan reaches an unexpectedly large nationwide settlement in the future, a “most favored nation” status applies in the West Virginia settlement. The state would receive 2.25% of the total of that theoretical blockbuster resolution.

The decision to go to trial in opioid litigation was earlier vindicated when it was announced in mid-April that former co-defendant Johnson & Johnson would pay up to $99 million to settle and get out of the case. West Virginia would have received $48 million under J&J’s national settlement.

The state is represented by the West Virginia Attorney General’s Office and Motley Rice LLC. Teva is represented by Morgan Lewis & Bockius LLP and Jones Law Group PLLC. The cases are State of West Virginia ex rel. Morrisey v. Teva Pharmaceutical Industries, case number 19-C-104, and State of West Virginia ex rel. Morrisey v. Janssen Pharmaceuticals Inc. et al., case number 19-C-105, in the 13th Circuit Court of West Virginia, Kanawha County.

Source: Law360.com

Washington State Reaches $518 Million Settlement Ending Opioid Trial

The nation’s three largest drug distributors — AmerisourceBergen, Cardinal Health and McKesson — agreed to a $518 million settlement last month with Washington State. Washington was one of a handful of states that refused to go along with the $21 billion nationwide settlement with the distributors, and it was the first of the holdout states to go to trial.

Washington would have received only $418 million from the distributors under the nationwide settlement. Thus, the state’s individual settlement is almost 25% larger. Washington’s bench trial started in November and has been watched closely.

Washington is represented by the Washington State Attorney General’s Office and Motley Rice LLC. The case is State of Washington v. McKesson Corp. et al., case number 19-2-06975-9, in the Superior Court of the State of Washington, King County.

Source: Law360.com

Florida And Walgreens Reach $683 Million Settlement

Florida settled with the twelfth and final defendant in its case against major opioid distributors, manufacturers and pharmaceutical companies for their role in the state’s opioid crisis. The Florida Attorney General announced the $683 million settlement with Walgreens on May 4, ending a trial in Pasco County. The state accused Walgreens of “exacerbating the opioid crisis by failing to do due diligence on prescriptions for addictive painkillers,” according to Law360.

A portion of the money from the settlement will be sent directly to Florida cities and counties for opioid abatement, including prevention efforts, treatment or recovery services. More than 240 cities and counties in the state have already agreed to allocation settlements, according to the Florida Attorney General’s office.

The settlement with Walgreens brings the amount recovered by the state for the opioid crisis to more than $3 billion. In the days before the Walgreens trial, the state had reached more than $878 million in settlements with three drugmakers and pharmacy chain CVS to end similar claims over the opioid epidemic. CVS paid $484 million to the state, while Teva Pharmaceuticals and Allergan paid $195 million and $135 million, respectively. Teva also agreed to provide $84 million worth of its generic overdose medication Narcan to the state, while pharmaceutical company Endo International PLC paid $65 million to the state.

Florida is represented by Ashley Moody and John Guard of the Florida Attorney General’s Office, Drake Martin of the Drake Martin Law Firm LLC, and David C. Frederick and Jim Webster of Kellogg Hansen Todd Figel & Frederick PLLC. The case is State of Florida v. Purdue Pharma LP et al., case number 2018-CA-001438, in the Sixth Judicial Circuit Court of the State of Florida.

Source: Law360.com

The Beasley Allen Opioid Litigation Team

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

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

If you need more information on any phase of the opioid litigation, contact one of the lawyers on the team listed above.

THE WHISTLEBLOWER LITIGATION

High Court Likely To Resolve FCA Circuit Split

The U.S. Supreme Court has recently shown interest in resolving a circuit split in False Claims Act (FCA) law. There have been a number of briefs presenting options to the justices to fix the divide. The interest stems from three separate petitions filed since January of this year involving Rule 9(b) of the Federal Rules of Civil Procedure, which requires complaints under the FCA to allege fraud with “particularity.”

The most recent feedback came in an opposition brief filed in April from whistleblower Thomas Prose encouraging the Court to deny a petition from Medicaid contractor Molina Healthcare, arguing that review isn’t warranted because his lawsuit fails to “meet any reasonable standard for applying Rule 9(b).”

Circuit courts have been split for over a decade regarding whether Rule 9(b) requires FCA suits to identify specific examples of fraudulent billing claims. Prose asserted that “the details of the claims are not essential to the alleged fraud,” so the rule does not require pleading them.

The Supreme Court has now invited the solicitor general’s opinion on the issue for the third time. In the previous two invitations, the solicitor general advised against the high court getting involved, and the justices followed that advice.

In the meantime, prominent law and lobbying firms have submitted amicus briefs supporting Molina and contending that “the split on this question is acknowledged and deep” and that failing to reverse a Seventh Circuit decision could cause great damage to Medicare and Medicaid.

Hopefully, the Supreme Court will resolve the issue under Rule 9(b). Clarity on this specific issue is needed by all concerned.

Source: Law360.com

The Aerojet Case Paves Way For Cybersecurity FCA Lawsuits

There are many types of qui tam actions. In those cases, the plaintiff is a relator who has firsthand knowledge of violations of the False Claims Act (FCA). Most recently, cybersecurity violations have been in the spotlight. This comes after an April 2022 settlement of a qui tam action related to a Department of Defense (DOD) and National Aeronautics and Space Administration (NASA) contractor’s misrepresentations related to the contractor’s compliance with cybersecurity requirements which enabled the company to win federal government contracts.

Specifically, Brian Markus, a former senior director of cybersecurity, compliance, and controls at Aerojet, claimed that Aerojet was not in compliance with the minimum cybersecurity requirements laid out by the DOD and NASA. Aerojet certified their compliance with the cybersecurity requirements to the government. Before bringing the qui tam action, relator Markus refused to sign the cybersecurity compliance documents, raised the issue with the company’s internal ethics hotline, and filed an internal report about his concerns. Shortly after, Markus was fired by Aerojet.

The government did not intervene in the case but did investigate the claim for three years. Markus continued with the claim, set before Judge William B. Shubb in the U.S. District Court for the Eastern District of California. Judge Shubb dismissed a conspiracy claim and sent other claims to arbitration, but he denied Aerojet’s Motion to Dismiss the claims related to FCA fraud.

Aerojet attempted to defend against the allegations that they did not disclose their lack of cybersecurity compliance by arguing that the government was aware of their lack of compliance and that the government was even working with the company to waive the cybersecurity requirements. However, partial disclosure by Aerojet was not enough to negate the company’s requirement to disclose its cybersecurity shortcomings to the government.

By omitting the “full scale” of the issues that Aerojet had, the judge found there was enough to show that Aerojet made a materially false claim to the government. After one day of jury trial, Aerojet agreed to settle the case for an estimated $9 million. Observers believed that the verdict would have been against Aerojet.

The U.S. Department of Justice recently announced that cybersecurity cases are a top priority. Many believe the Aerojet case has created the path for pursuing FCA cases involving false claims made about cybersecurity.

The Beasley Allen Whistleblower Litigation Team is ready to review these complex matters to determine whether a viable claim can be made on behalf of the government. If you believe you have a case that falls into this category, contact one of the lawyers on our Whistleblower Litigation Team, who are listed below.

Source: Law360.com

Full Fourth Circuit Will Hear FCA Case Against Allergan

A majority of the Fourth Circuit Court of Appeals has agreed to rehear en banc a False Claims Act (FCA) case the court ended earlier this year in a split ruling, Law360 reported. A panel of the three Fourth Circuit judges first heard the case and “were split on the question of whether, if true, this actually violated the law.”

The case was filed in 2014 by a now-deceased former employee of an Allergan subsidiary, Troy Sheldon. Sheldon claimed “the company fraudulently reported drug prices to Medicaid to cheat the federal government out of least $680 million.” The request for the court to rehear the case was made by lawyers representing Sheldon’s widow.

Sheldon was a sales director at a New York pharmaceutical company Forest Laboratories, acquired in 2014 by Actavis. Actavis then bought Allergan a year later and rebranded under Actavis. That year, Sheldon filed a whistleblower lawsuit alleging that his bosses violated the Medicaid Drug Rebate Statute. He claimed that his superiors only reported one of the discount rates that Forest used when selling drugs through the Medicaid program, resulting in the government paying “at least $680 million more than it would have if Forest had accurately reported the best price.”

U.S. District Judge Ellen L. Hollander of the District of Maryland ruled that “the Rebate Statute’s ‘plain and natural reading’ did not require aggregating discounts.” Two of the Fourth Circuit judges on the panel agreed with this ruling. Circuit Judge J. Harvie Wilkinson III wrote for the majority: “Because [the company] was not warned away from that reading by authoritative guidance, it did not act ‘knowingly’ under the False Claims Act.“

However, the dissent, authored by Circuit Judge James A. Wynn Jr., argued that this ruling “would ‘effectively neuter’ the law, using the FCA’s requirement of “fraudulent intent” to allow government contractors to claim to have acted on poor legal advice every time they are caught defrauding the state,” according to Law360.

It isn’t the first time courts have addressed this contentious issue, and the issue has made lawyers’ jobs more difficult when representing whistleblowers (relators) in FCA lawsuits. Another appellate court last year issued a split ruling, holding that extraordinary overcharges by SuperValu (supermarket chain) submitted to Medicaid demonstrated an “objectively reasonable” interpretation of regulations. This was despite SuperValu not believing that the interpretation was correct. Two whistleblowers involved in the case had been pharmacists and petitioned the U.S. Supreme Court to reverse the ruling.

Taxpayers Against Fraud Education Fund, a tax fraud advocacy group, filed an amicus brief in the Allergen case. Its brief stated:

If interpreted broadly, the panel decision may be used to escape liability by crafting post hoc interpretations of statutes or contract provisions that a defendant never contemporaneously held.

Allergan lawyers have tried to downplay the ruling’s significance. In response to Sheldon’s widow’s petition, Allergen said, “The panel’s opinion reflects the unique context of pharmaceutical price reporting. The panel decision does not have the sweeping effect relator claims.”

Sheldon is represented by Gregory M. Utter, Joseph M. Callow Jr., Paul R. Kerridge and Collin L. Ryan of Keating Muething & Klekamp PLL and Joel D. Hesch of the Hesch Firm LLC.

The case is United States ex rel. Deborah Sheldon v. Allergan Sales LLC, case number 20-2330, in the U.S. Court of Appeals for the Fourth Circuit.

Source: Law360.com

The Beasley Allen Whistleblower Litigation Team

Fraud continues to be a huge problem in many industries in this country. Our firm has increased its healthcare whistleblower practice for this very reason, with lawyers Lance Gould, Larry Golston, Tyner Helms, Paul Evans, Leon Hampton and Lauren Miles working in this area known as “qui tam” cases. Our firm recently obtained a $14 million verdict in Birmingham Federal Court dealing with a healthcare whistleblower issue and continues pursuing other cases throughout the country involving fraud on the government.

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

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

A person who has first-hand knowledge of fraud or other wrongdoing may have a whistleblower case. Before you report suspected fraud or other misconduct – before you “blow the whistle” – it is essential to make sure you have a valid claim and prepare for what lies ahead. The experienced group of lawyers on our team is dedicated to handling whistleblower cases.

The Beasley Allen lawyers listed below are on the Whistleblower Litigation Team: Larry Golston, Lance Gould, James Eubank, Paul Evans, Leon Hampton, Tyner Helms, Lauren Miles and Jessi Haynes. Dee Miles heads our Consumer Fraud & Commercial Litigation Section and works with the litigation group. The lawyers can be reached by phone at 800-898-2034 or email.

SECURITIES LITIGATION

Netflix Hit With Investor Suit Over Plummeting Subscriptions

A Netflix investor, Fiyyaz Pirani, filed a class action lawsuit in California federal court last month on behalf of a class of investors against the company over claims that it made false and misleading statements about its growth and customer retention, Law360 reported. Pirani claims the defendants violated the Securities Exchange Act of 1934 and filed on behalf of those who purchased or acquired Netflix common stock or call options or sold put options between October 19, 2021, and April 19, 2022.

In April, the streaming service reported that its subscribers declined by more than 200,000 in the first quarter of this year. It then experienced a significant stock price drop, leaving investors in shock as it had previously been predicted that Netflix would add 2.5 million net subscribers.

Pirani is also suing three Netflix executives, Co-CEO and President Reed Hastings, Co-CEO and Chief Content Creator Ted Sarandos and Chief Financial Officer Spencer Neumann. He claims that the company and individual defendants made false and misleading statements about the company’s business and operations throughout the class period.  Pirani’s specific claims include:

• The company and its executives failed to disclose to shareholders that there was slower acquisition growth due to customer account sharing and increased competition from other streaming platforms.
• Netflix disclosed an estimated account sharing with 100 million households.
• Netflix failed to disclose its difficulty in retaining customers and its effect on the company’s financial results.
• The individual defendants signed off on reports and made statements touting the company’s growth despite knowing the truth.
• Because of their positions and access to material non-public information available to them, the individual defendants knew that the adverse facts specified herein had not been disclosed to, and were being concealed from, the public and that the positive representations which were being made were then materially false and / or misleading.
• Netflix reported seeing positive financial trends and healthy customer retention. However, a few months later, in January 2022, Netflix reported “slightly over forecasted paid net adds in Q4” and had only added 8.3 million subscribers instead of the forecasted 8.5 million.
• The company also stated that, despite ‘healthy’ retention and engagement, it only expected to add 2.5 million net subscribers during the first quarter of 2022, below the 4.0 million net adds in the prior-year period.
• In a conference call with shareholders, Neumann stated, “Overall, the business was healthy. Retention was strong.  Churn was down.”
• Neumann also said that “acquisition was growing, just not growing quite as fast as we were perhaps hoping or forecasting,” which was “probably a bit of just overall COVID overhang that’s still happening [and] some macroeconomic strain in some parts of the world.”
• On this news, Netflix’s stock dropped 21.7% or $110.75, closing at $397.50 per share on Jan. 21.
• The share price endured a second drop in April when Netflix released the Q1 2022 numbers, revealing the significant loss of 200,000 customers missing the forecasted addition of 2.5 million subscribers by over -1,200%. Following this disclosure, Netflix’s share price fell over 35%, or $122.42, closing at $226.19 per share on April 20.

According to Law360, the class period begins on Oct.19, 2021, when the streaming service announced its third-quarter financial results for the year in a letter to shareholders.  The complaint states:

As a result of defendants’ wrongful acts and omissions, and the precipitous decline in the market value of the company’s securities, plaintiff and other class members have suffered significant losses and damages.

The plaintiff argues that the defendants’ statements do not fall under the safe harbor provision and cannot be classified as protected forward-looking statements because all statements in question “relate to then-existing facts and conditions.” Further, Pirani contents that the defendants knew the statements were false when they made or authorized them.

Source: Law360

Beasley Allen Securities Litigation Team

Our firm is actively involved in securities cases, and we continue to grow this area of our practice. We welcome the opportunity to discuss these types of claims with our readers.

Lawyers in our Consumer Fraud & Commercial Litigation Section welcome any opportunity to investigate suspected practices and are excited to engage with both new and established colleagues in federal securities law and state securities litigation. You can contact Dee Miles, James Eubank, or Demet Basar in our Consumer Fraud & Commercial Litigation Section concerning any securities issues and / or questions.

Our Beasley Allen Securities Team consists of James Eubank, Demet Basar, Rebecca Gilliland and Paul Evans. Dee Miles, who heads the Section, also works with the team.

THE JUUL LITIGATION

The Frist Trial In The JUUL MDL

A Beasley Allen client from Tennessee will be the plaintiff in the first personal injury bellwether trial in the sprawling JUUL multidistrict litigation (MDL). The trial was set to begin on June 21 in the Northern District of California in San Francisco, with U.S. District Judge William Orrick presiding. However, Judge Orrick recently continued the trial until September due to concerns about the allotted time for trial given his recent ruling bifurcating compensatory and punitive damage phases. The September 2022 trial setting will assure the parties and the court have sufficient time to complete all phases of this significant trial. Our client is a 16-year-old girl who became severely addicted to nicotine through JUUL e-cigarettes at just 12 years old. Joseph VanZandt is leading the firm’s efforts to seek justice on behalf of this deserving client and will be trying this case with an excellent team of lawyers from the JUUL Plaintiff Steering Committee (PSC).

JUUL Labs, Inc. and Altria are the defendants in this landmark trial, which will be the first time they have been forced to answer for their conduct in front of a jury. The plaintiff asserts that JUUL Labs defectively designed JUUL e-cigarettes, failed to warn of JUUL’s dangers, was negligent in its design and marketing of JUUL, and committed misrepresentation by concealment. Plaintiff alleges negligence against Altria stemming from its conduct leading up to Altria’s 2018 $12.8 billion investment in JUUL Labs. The court thwarted the defendants’ attempts to avoid trial through motions to dismiss and motions for summary judgment, overwhelmingly denying the defendants’ motions and ruling that the plaintiff’s claims must be heard by a jury.

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

You can contact Joseph VanZandt or Beau Darley to discuss potential cases or learn more about the JUUL litigation.

The Beasley Allen JUUL Litigation Team

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

If you have a potential claim or need more information on JUUL, contact any of the lawyers on the JUUL Litigation Team. Members are Joseph VanZandt, Sydney Everett, Beau Darley, Davis Vaughn, Seth Harding or Soo Seok Yang. Andy Birchfield heads the firm’s Mass Torts Section and works closely with the team on the JUUL litigation.

THE ASBESTOS LITIGATION

Fake Science: The Defense’s Theory Of “Spontaneous” Or “Idiopathic” Mesothelioma

One of the most asserted defenses in modern-day mesothelioma litigation is the notion of “spontaneous” and / or “idiopathic” mesotheliomas.  The defense is simple.  They argue that mesothelioma just happens – out of nowhere – and there is no way to explain why, how, or what caused it.  Of course, this argument is belied by decades of science and what is generally accepted in the medical community – that the overwhelming majority of mesotheliomas are caused by prior asbestos exposure.

However, after 30 years of advancing this theory via corporate-funded scientists and studies, defense experts can often testify about this in courtrooms across the country.  The basis for this argument can be boiled down to four things:

• female mesothelioma rates have stayed steady since the 1970s, while rates for men have dropped relative to the decrease in asbestos usage;
• animal studies showing “spontaneous” tumors;
• lack of elevated asbestos fiber count identified in lung tissue for some people with mesothelioma; and
• children getting mesothelioma prior to the required time period post-exposure, called the “latency period,” has elapsed.

Upon closer examination of these supposed pieces of support, they do not hold up.  With that said, one must be intimately familiar with the underlying data and science to refute this argument.

Most courts do not see many mesothelioma cases. Those cases, often, are matters of first impression for the presiding judge.  So, a judge will not be able to sniff out deceptive arguments and misrepresentative data unless plaintiff lawyers identify it for them.  Beasley Allen lawyers do that in every single case.  Our team of mesothelioma lawyers ensures that defendants cannot make these deceptive arguments, which provides maximum recovery for our clients.

Bottom line, the connection between asbestos and mesothelioma is so strong and accepted in the medical community that diagnosing physicians can attribute mesothelioma to asbestos exposure simply by taking a patient’s work history and identifying prior elevated asbestos exposures.  But in cases with low-level exposures, the defendants will argue that the mesothelioma was spontaneous. Without the proper understanding of the medical and scientific literature, defendants can successfully make these arguments.  At Beasley Allen, it’s our responsibility to ensure that that is not the case.

If you need more information, contact Charlie Stern, who handles asbestos cases for the firm.

The Beasley Allen Asbestos Litigation Team

Asbestos litigation continues to be extensive nationwide. Beasley Allen’s Asbestos Litigation Team is headed by Charlie Stern. Other team members are Will Sutton and Cindy Lopez. Rhon Jones, who heads our Toxic Torts Section, works with the team. Charlie has years of experience in asbestos litigation, and that’s why he was selected to lead the Beasley Allen team. If you need assistance with cases involving asbestos products, contact one of the team members.

MASS TORTS LITIGATION

Belviq: Litigation Update

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

Beasley Allen lawyers have filed 14 cases against the manufacturers of Belviq, and most are filed in New Jersey state court, where one of the manufacturers, Eisai, Inc., is located. The cases allege multiple cancer types, including pancreatic, breast, colorectal, kidney, thyroid, esophageal, and brain. Our lawyers successfully overcame motions to dismiss and recently consolidated their cases filed in New Jersey state court.

Beasley Allen continues to investigate and handle cases on behalf of individuals prescribed Belviq and diagnosed with cancer.  For more information, please contact Roger Smith or Melissa Prickett.

Philips CPAP Litigation

Cases filed due to Philips’ recall of millions of sleep and respiratory care devices have been consolidated before Judge Joy Flowers Conti in the U.S. District Court for the Western District of Pennsylvania. The cases are part of multidistrict litigation (MDL) ordered by the Judicial Panel on Multidistrict Litigation.  For those who may not know, an MDL is a consolidation of civil cases transferred from different jurisdictions around the country to a single U.S. district court to achieve certain pre-trial efficiencies. This consolidation aims to preserve judicial resources, eliminate duplicities in the fact-finding process, and prevent inconsistencies in pre-trial rulings.

As of late April 2022, 274 lawsuits were pending in the Philips MDL.  The lawsuits include both class action cases and individual personal injury cases.  While the consumer class action cases seek economic damages incurred by the individuals who have purchased Philips’ recalled devices, the personal injury cases seek damages incurred by individuals who have experienced injuries as a result of Philips’ recalled devices which include but are not limited to, respiratory injuries and cancer.

In addition to the cases pending in the MDL, a number of individual personal injury cases have been filed in state court in Middlesex County, Massachusetts. Philips North America LLC, which manages the operations of Philips’ various lines of business in North America, maintains its principal place of business in Cambridge, Massachusetts.  Thousands of potential plaintiffs have also entered into a Tolling Agreement to toll, or pause, the statute of limitations in their cases rather than filing suit.

In addition to the cases filed against Philips by individual users and consumers, Philips now faces a class action lawsuit from a different type of plaintiff – medical device suppliers. In March 2022, Baird Respiratory Therapy, Inc. filed a putative class action lawsuit against Philips, seeking to represent a nationwide class of durable medical equipment suppliers that had purchased Philips’ recalled devices. Baird has alleged that Philips breached its express warranty and misrepresented the risks inherent in the polyester-based polyurethane (PE-PUR) foam found in the recalled devices.

In the complaint, Baird contends that Philips “unreasonably delayed its recall” by waiting to notify Baird and other suppliers of reports indicating that the PE-PUR foam could break down and put users in harm’s way.  Baird further alleges that Philips knowingly allowed its packaging, labels, ads, promotional materials, and websites to mislead Baird and other suppliers about the recalled devices intentionally.  As a result, Baird and other suppliers have lost money by being unable to resell the recalled devices.

On June 14, 2021, Philips issued a voluntary recall notification for certain sleep and respiratory care devices. The recall was to address identified potential health risks related to the sound abatement foam in these devices. Philips has utilized PE-PUR sound abatement foam to dampen device vibration and sound during routine operation.

In the recall, Philips identified two issues with the foam: one being the potential of the foam to degrade, and the second is the potential for chemicals to be emitted from the foam. From user reports and lab testing, Philips has determined that the foam may degrade and produce particulates that can enter the device’s air pathway and be inhaled by the user. Philips’ own lab testing of degraded foam particles has revealed the presence of multiple potentially harmful chemicals, including toluene diamine, toluene diisocyanate, and diethylene glycol. Philips also reported that lab testing identified volatile organic compounds (VOCs) that can be emitted from the foam. Testing identified two compounds of concern that may be emitted from the foam and that are outside of safety thresholds.  The compounds identified are Dimethyl Diazine and Phenol, 2,6-bis (1,1-dimethyllethyl)-4-(10methylpropyl)-.

Beasley Allen lawyers are investigating claims related to the devices recalled by Philips where users have developed asthma, chronic respiratory injuries, lung injury, kidney disease, lung cancer, kidney cancer, and nasal and throat cancers.  For more information, contact Beau Darley, Alexa Wallace or Melissa Prickett, lawyers in our Mass Torts Section.

Sources:  Philips Recall Notification for Sleep and Respiratory Care Devices – June 14, 2021; Philips Sleep and Respiratory Care Update, Clinical Information for Physicians – June 14, 2021, Pretrial Order No. 7, In re: Philips Recalled CPAP, Bi-Level PAP, and Mechanical Ventilator Prods. Liab. Litig., MDL No. 3014 (W.D. Pa. Feb. 8, 2022). Baird Respiratory Therapy, Inc. v. Philips, et al., Case No. 2:22-cv-00886 (E.D. Pa.) (filed March 9, 2022).

Infant Formula Warnings And Emerging Litigation

In prior issues, we reported on emerging litigation surrounding the development of Necrotizing Enterocolitis (NEC), a serious medical condition linked to adverse health conditions in premature infants. NEC causes gastrointestinal inflammation and tissue damage and can result in death. Recent litigation has exposed a link between this condition in premature infants and consumption of certain milk-based infant formula products. The Judicial Panel on Multidistrict Litigation (JPML) is evaluating the consolidation of infant formula cases filed in federal court into a multidistrict litigation (MDL). Judge Rebecca R. Pallmeyer in the Northern District of Illinois is currently presiding over the consolidated claims.

Several state-level infant formula cases are also pending across the country. Individual state cases are also facing consolidation motions. For example, Abbott Laboratories, a defendant in infant formula litigation, seeks consolidation of Illinois state court cases for pretrial proceedings. If approved, this consolidation would apply to cases filed throughout Illinois and could have broader implications for the litigation at large.

Should Abbott Laboratories be successful in the consolidation motion, all state court cases in Illinois would be pending before a single judge, and pre-trial decisions would remain uniform among all cases.  As of this update, the Illinois Supreme Court has not ruled on Abbott Laboratories’ motion to consolidate, and we will continue to monitor the decision.

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

An Update On The Litigation Involving Benzene In Sunscreens And Deodorant Sprays

In May 2021, the independent laboratory, Valisure, announced that it had detected benzene in 78 of the 294 sunscreen and after-sun care products it tested (26.5%). Fourteen of the tested product lots had benzene concentrations that exceeded the Food and Drug Administration (FDA) provisional limit of 2 parts per million (2ppm). Six months later, Valisure made headlines again when it revealed that its laboratory detected high levels of benzene in several brands and batches of antiperspirant body sprays, which are considered drug products by the FDA, and in deodorant body spray products, which the FDA generally regulates as cosmetics.  All total, 54% of the deodorant spray samples that Valisure tested contained benzene, and some batches contained up to nine times the FDA’s 2ppm limit.

In July 2021, J&J subsidiary Johnson & Johnson Consumer Inc. (JJCI) recalled five of its Neutrogena and Aveeno sunscreen spray product lines. Thereafter, Beasley Allen lawyers filed two nationwide class action lawsuits consolidated for pretrial proceedings in the U.S. District Court for the Southern District of Florida as part of the Johnson & Johnson Aerosol Sunscreen Multidistrict Litigation Proceeding (MDL No. 3015). On Feb. 9, 2022, U.S. District Judge Anuraag Singhal (the MDL judge) appointed Beasley Allen, P.C. and four other firms as class counsel in the Johnson & Johnson Sunscreen MDL.

On March 28, 2022, Judge Singhal entered an order preliminarily approving our Class Action settlement agreement – which means that we have been cleared to send out nationwide notice of the class settlement and its terms.  Among other things, the settlement will allow class members to be reimbursed for their qualifying purchases of Neutrogena and Aveeno aerosol sunscreen products and also impose testing restrictions on Johnson & Johnson that will help prevent future benzene-contamination problems.  Of course, the class settlement agreement only addresses consumer purchase claims and does not impact the claims of individuals who have suffered personal physical injuries due to benzene-sunscreen exposures.  For this reason, our firm is actively investigating potential benzene-sunscreen personal injury claims.

Regarding benzene-contaminated deodorant sprays, the highest average benzene concentrations (2 ppm to 16 ppm) were in 16 products from Secret, Tag, Old Spice, Equate, Sure, Suave, Brut, and Right Guard. In November 2021, Procter & Gamble (P&G), the maker of Old Spice and Secret deodorant sprays, issued a voluntary recall of those products.  On May 3, 2022, P&G announced that it had reached a tentative settlement to end multiple consolidated class action lawsuits. Much like the J&J sunscreen settlement, the proposed P&G deodorant spray settlement will not impact the claims of personal injury victims.

If you or someone you know has experienced harm from using benzene-contaminated sunscreen or deodorant spray products, contact Melissa Prickett or David Byrne for more information. David is the lead lawyer for Beasley Allen in this litigation.

THE PARAQUAT LITIGATION

International Service Of Process In The Paraquat MDL

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

Defendant Syngenta AG is one of three defendants in the MDL, which manufactured, distributed, and sold paraquat. Syngenta AG is a Swiss corporation with its principal place of business in Basel, Switzerland. Because both the U.S. and Switzerland are signatories of the Hague Convention, service through the Hague is a proper method of service. However, this form of international service can take a minimum of four months to perfect and is very expensive. Service through the Hague also requires translation of each complaint.

Late last year, plaintiffs moved the court to allow for alternative methods of service for Syngenta AG under Federal Rule of Civil Procedure 4(f)(3). On Oct. 13, 2021, Judge Rosenstengel entered an order allowing alternate service on defendant Syngenta AG. The court’s order can be found on the court’s web page regarding the paraquat litigation: http://www.ilsd.uscourts.gov/mdl/mdl3004.aspx.  To expedite service and minimize costs, the Court authorized Plaintiffs to serve Defendant Syngenta AG via email, its domestic subsidiary, and / or via its U.S.-based counsel.

If you have specific questions about perfecting service on defendant Syngenta AG, you can contact our paraquat team. Beasley Allen lawyer Julia A. Merritt is a member of the Plaintiffs’ Executive Committee on the Paraquat MDL. Lawyers on our Paraquat Litigation Team will be happy to answer any questions about the status of this litigation or the intricacies of the intake process, including the Plaintiff’s Assessment Questionnaire. Beasley Allen is continuing to accept cases where clients applied paraquat and have Parkinson’s Disease or Parkinson’s-like symptoms. Please contact us if we can be of assistance to you in your paraquat applicator cases.

The Paraquat Litigation Team

The Paraquat Litigation Team at Beasley Allen, consisting of lawyers in our Toxic Torts Section, handles the paraquat applicator cases. The lawyers on the team are Julia Merritt, who heads the team, Trisha Green, and Matt Pettit Rhon Jones heads our Toxic Torts Section and works with the team on this important litigation. You can contact these lawyers by phone at 800-898-2034 or email for more information on the litigation, including the MDL.

EMPLOYMENT AND FLSA LITIGATION

President Biden Signs Federal Law Prohibiting Forced Arbitration In Sexual Harassment Cases

Arbitration agreements have long prevented sexual assault victims from holding their perpetrators accountable in court through a lawsuit. Some employers require their employees to sign agreements requiring any dispute with the employer be resolved through arbitration, including disputes involving sexual assault and harassment. This common practice has shielded repeat perpetrators from public scrutiny and true accountability.

In February 2022, Congress passed the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 (HR 4445) with extensive bi-partisan support. Under the new law, plaintiffs get to choose to litigate their case in court or through arbitration – even if the plaintiff signed the agreement prior to the enactment of the law.  Additionally, Plaintiffs can choose to bring class actions against their perpetrators even if they signed a collective action waiver.

While HR 4445 will greatly affect plaintiffs in the employer / employee context, it has broader implications. In addition to protecting employees, the law will protect clients, patients, and consumers. This will affect contracts touching a wide array of services, including rideshare apps, leasing agreements, and much more.  As a result of the #MeToo Movement, HR 4445 will require greater accountability from perpetrators and companies who seek to shield them.

This law is a refreshing and needed change in the battle for consumer rights. While we have much more dismantling to do on forced mandatory arbitration in consumer contracts, we have a good start in HR 4445 in at least the employment arena. Should anyone have questions about this new law or employment matters in general, contact our team of employment lawyers.

The Beasley Allen Employment Litigation Team

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

PREMISES LIABILITY LITIGATION

Property Owner Responsibility In Premises Litigation In Georgia

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

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

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

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

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

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

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

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

If you need more information on premises liability or negligent security in Georgia, contact Parker Miller or Houston Kessler, lawyers in our Atlanta office. You can also contact Ben Locklar, a lawyer in our Montgomery office.

Arby’s Failures To Supervise Its Employees Causes Problems

Lawyers in our firm’s Montgomery, Atlanta and Mobile offices have handled a large number of premises liability cases over the years. These include cases in which a patron is injured on a retailer’s premises or a restaurant by the intentional acts of the retailer employee. For example, last month, an employee at an Arby’s in Hueytown, Alabama, threw grease on a customer in the drive-thru, causing the customer to suffer secondary burns to a large portion of her body. And while that case is currently under investigation, unfortunately, that was not the first time an employee has violently attacked a customer at one of Arby’s restaurants. In 2018, a young woman was brutally attacked and beaten by an employee at an Arby’s restaurant in Conyers, Georgia, causing her to suffer catastrophic and permanent injuries. Beasley Allen was retained to represent the unfortunate victim in that case.

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

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

Source: KKTV

TOXIC TORT LITIGATION

American Water Works Associations And Others Make Plea To Congress Over Liability For PFAS

Ten water associations have authored a letter to Congress making a plea for an exemption under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) for water utilities. The CERCLA, familiar to some as the “Superfund Act,” allows the EPA to clean up hazardous waste sites and hold responsible parties liable.  PFAS or Per- and polyfluoroalkyl substances are a group of artificial chemicals with widespread environmental contamination. As widely reported, PFAS have been linked to a number of adverse health effects in humans. PFAS cannot be removed by traditional water treatment techniques and do not biodegrade.  This is the main reason the water associations have made their urgent plea to Congress.

The EPA has been undergoing several steps to study and understand PFAS so that they may be addressed through regulation.  Under CERCLA, if the EPA designates PFAS as a hazardous substance, water utilities could be held responsible for the cleanup of the PFAS present in the filter media used to remove PFAS from drinking water that industrial sources have contaminated.  Because PFAS can only be destroyed by high-temperature incineration and do not biodegrade, treating water that contains PFAS will lead to solid waste that contains PFAS. The water associations have requested that Congress provide water utilities with a specific exemption from liability under CERCLA under that scenario.  The associations have also suggested that Congress push to rely on the Clean Water Act and Safe Drinking Water Act to regulate PFAS, which could set limits on how much industrial users are allowed to discharge and how much water utilities would be responsible for removing.

Sources: WWDmag.com and EPA.gov

CLASS ACTION LITIGATION

Court Certifies Ford F150 Brake Defect Class Action And Ford Issues A Third Recall For The Defect & Adding SUVs

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

On April 8, 2022, U.S. District Court Judge Gershwin A. Drain found that the plaintiffs’ defect claims were proper for a consolidated jury trial by certifying a Rule 23(c)(4) issues class for all persons who purchased or leased in Alabama, California, Florida, Georgia, and Texas a 2013-2018 Ford F-150 truck equipped with a Hitachi made step-bore master cylinder not included in Safety Recall 20S31.

On March 11, 2022, about one month before Judge Drain’s class certification order, Ford issued its third safety recall for the brake defect, recalling another large batch of F-150 trucks that the company previously claimed were unaffected and safe to drive.  There, Ford recalled Ecoboost-powered F-150 trucks built between August 2, 2016, and January 31, 2017.  This third safety recall by Ford is an extension of two prior brake defect safety recalls that covered Ecoboost-powered F-150s built between August 1, 2013, and August 1, 2016.  It’s important to note that from the moment we filed this brake defect class action in 2018, Ford claimed its F-150s had healthy brake systems.  Since then, the company has issued two sets of safety recalls for the exact brake defect we’re pursuing through this class action.

A notable aspect of Ford’s 2022 safety recall is the inclusion, for the first time, of its Expedition and Lincoln Navigator models.  Ford’s part catalogs show that those two SUVs use the same master cylinder and brake booster recalled in the affected F-150 trucks. Also, it appears that Ford is using the F-150 playbook to piecemeal recall Expeditions and Navigators as the company excluded large batches of SUVs built before and after the recall population. These excluded SUVs will be the focus of new litigation, and we welcome contact from owners and lessees of 2015 through 2019 Expeditions and Lincoln Navigators that have suffered brake malfunction or failure. Ford contends that these serious safety hazards are best resolved with underinclusive serial recalls or routine trips to the dealership for service.  Ford is wrong and putting people in danger.

Our lawyers are pleased the federal court certified this class action, and they look forward to completing the case and returning safety to these popular vehicles, a feature that was lacking before this class action forced Ford to make these safety changes.  Should you have any questions about this new class action, please contact our lawyers who are handling this case. They are Dee Miles, Clay Barnett, Mitch Williams, Dylan Martin or Rebecca Gilliland.

The Ninth Circuit Issues An Important Ruling On Class Certification Standards

On April 8, 2022, the Ninth Circuit Court of Appeals issued an en banc decision clarifying the standard for establishing class certification, particularly as it relates to the predominance requirement of Federal Rule of Civil Procedure 23(b)(3). To certify a class under the rule, plaintiffs are required to show there are questions of law or fact common to the class and that those common questions of law or fact predominate over any questions affecting only individual members of the class.

While the en banc ruling originated from an appeal from the grant of class certification in a multidistrict litigation (MDL) alleging an antitrust price-fixing conspiracy in the canned tuna industry, the Ninth Circuit’s ruling will affect courts’ consideration of class certification in other types of class actions in the Ninth Circuit and beyond because it provides clear guidelines for establishing that the requirements of Rule 23(b)(3) are satisfied.

In the case, the district court certified three subclasses of tuna purchasers after carefully weighing conflicting expert opinions regarding the antitrust impact of the alleged price-fixing conspiracy. The district court rejected the defendants’ argument that evidence that some class members were not injured was sufficient in itself to hold individual issues prevailed and held there were sufficient facts common to the class that could show class-wide antitrust impact and injury at trial.

The defendants filed a Rule 23(f) petition in the Ninth Circuit seeking an interlocutory appeal from the district court’s order, which was granted.

On appeal, the defendants challenged the district court’s finding that the predominance requirement was met by plaintiffs’ expert evidence showing class-wide impact based on statistical analysis using averaging assumptions and pooled transaction data. Using this methodology, the plaintiffs’ expert concluded that about 5.5% of the class might not have been injured. The defendants’ expert disputed the plaintiffs’ expert’s methodology and findings and concluded that more than 28% of the class was not injured.

A split panel of the Ninth Circuit vacated the district court’s order. The panel held that when a class contains more than a de minimis number of uninjured persons, predominance cannot be established, and a class cannot be certified under Rule 23(b)(3). The Ninth Circuit remanded the case to the district court to determine the number of uninjured members of the proposed classes.

The Ninth Circuit en banc disagreed with the panel’s ruling on this point and others.

First, the en banc court ruled on the burden of proof on class certification, which had been an open question in the Ninth Circuit. Joining its sister circuits, the Ninth Circuit held that plaintiffs must prove the facts necessary for class certification by a predominance of the evidence, not clear and convincing evidence. The court also effectively overruled a prior Ninth Circuit precedent by holding that plaintiffs must meet their burden with admissible evidence.

Second, the Ninth Circuit held that the defendants’ expert evidence concluding nearly a third of the class was not injured was not a bar to finding the predominance requirement was met. The court held that the district court need not resolve conflicting expert opinions because the relevant inquiry is whether the plaintiffs’ expert presented a method that can show class-wide impact. The court need not resolve the issue on class certification because that is a merits inquiry.

Third, the court rejected the argument that a class cannot be certified if it potentially includes more than a de minimis number of uninjured class members. The court ruled that would be inconsistent with Rule 23(b)(3), which requires only those common questions predominate over individual questions, and noted the rule itself did not say common questions must apply to every member of the class. By rejecting a per se rule prohibiting the certification of classes that include more than a de minimis number of uninjured class members, the Ninth Circuit broke ranks with the First and D.C. Circuits, which have adopted that rule. Now that there is a circuit split in the works, it will be interesting to see if and when this issue will be before the Supreme Court.

Our firm’s class action practice continues to grow, and staying on top of these types of developments in the law is critical to a successful class action practice. We welcome the opportunity to work with clients and lawyers on class action matters. Contact one of these lawyers in our Consumer Fraud & Corporate Litigation Section: Dee Miles, Demet Basar, Clay Barnett, Rachel Minder, Paul Evans, Mitch Williams or Dylan Martin with any questions.

The case is Olean Wholesale Grocery Cooperative et al. v. Bumble Bee Foods LLC et al., case number 19-56514, U.S. Court of Appeals for the Ninth Circuit.

Nissan Escapes Shattering Sunroof Lawsuit

Nissan North America won its bid to permanently dismiss a proposed class action six years after it was filed over claims that the carmaker knowingly sold vehicles with panoramic sunroofs that spontaneously shatter, according to Law360. In Washington, a federal district judge, Ricardo S. Martinez, granted Nissan’s summary judgment motion to dismiss the suit on May 9, ruling that the plaintiffs failed to show how they suffered or how Nissan knew of the alleged defect.

The proposed class was represented by plaintiffs Tamara Lohr and Ravikiran Sindogi. In dismissing the lawsuit, Judge Martinez ruled that Lohr and Ravikiran failed to show that Nissan knew of the alleged sunroof defects before the plaintiffs received their vehicles in 2013 and 2015. They also failed to establish how Nissan’s actions injured them under Washington’s Consumer Protection Act.  Judge Martinez wrote in his order:

Plaintiffs intend to show injury ‘at the point of sale.’ But Plaintiffs present no evidence of this injury. It is for the plaintiffs to demonstrate at this stage in the litigation that they suffered some damages — it is circular logic to say they suffered injury because they overpaid for their vehicles where the cost failed to include this risk of the injury — that injury being the risk of overpaying.

The case is Lohr v. Nissan North America, case number 2:16-cv-01023, and was filed in May 2016 in the U.S. District Court for the Western District of Washington.

Source: Law360.com

Class Action Settlements

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

Toyota’s $20 Million In Prius Stalling Defect Case Gets Early Approval

U.S. District Judge Josephine Stanton tentatively approved a proposed $20 million settlement to close out class allegations against Toyota over a defect that made Toyota Prius vehicles prone to stalling, Law360 reported. However, Judge Stanton rejected the parties’ request to bar other litigants from pursuing parallel defect claims against Toyota.

More than a million vehicles have a defective intelligent power module or IPM. This critical component is housed in the vehicle’s hybrid inverter assemblies and was the subject of several safety recalls Toyota issued to address the problem.

The settlement agreement required Toyota to establish a $20 million fund to reimburse consumers for repairing or replacing defective parts. The fund will also provide for towing and rental car costs associated with those repairs. The settlement agreement does not cap the fund, so Toyota must replenish the fund to cover all valid reimbursement claims. Suppose all reimbursement claims are paid out before, and money remains in the fund. In that case, the remaining balance will be distributed pro rata to all class members who have had an IPM or inverter repaired or replaced in a subject vehicle, even if they did not pay out-of-pocket for the repair or replacement.

Class members are “all persons, entities or organizations who own or lease a 2010 to 2015 model year Prius hatchback and / or a 2012 to 2017 model year Prius V wagon that was the subject of Safety Recall E0E, F0R, J0V, and/or 20TA10 as of the date of the entry of the preliminary approval order, or who, at any time before the entry of the preliminary approval order, owned or leased a subject vehicle.”

Additionally, Toyota will extend warranty coverage for 20 years for current owners and subsequent buyers of the affected Priuses from the date the vehicles were first used. The carmaker will also create a program to provide towing and loaner cars to provide class members with free towing if their car’s IPM or inverter requires repair and replacement. Class members will receive a complimentary rental car if that repair or replacement takes longer than four hours to complete.

Toyota also agreed to cover the class counsel’s $19.6 million in attorney’s fees and litigation expenses and $5,000 service awards for each class representative. This agreement is separate from the settlement agreement.

Judge Stanton refused the parties’ request for a preliminary injunction “to enjoin class members and their representatives from pursuing claims similar to those alleged in the amended consolidated master complaint” at least until the court grants final approval of the settlement. The judge explained:

The court finds the parties’ request, at this stage, premature, and it declines to use its discretion to issue a preliminary injunction. However, the request is denied without prejudice to the filing of a motion for preliminary injunction should the need for one arise.

Class members assert that 700,000 Toyota Prius vehicles from model years 2010-2014 have the stalling defect and that Toyota hid the problem. The plaintiffs point to Toyota’s safety recalls in 2014 and 2015 as proof that the manufacturer knew about the issue. The vehicles were recalled those years to install a software fix to the electronic control unit. Yet, consumers argue that those recalls did not fix the stalling problem.

In 2018, the first of the consolidated suits were filed, and Toyota refuted the claims calling them baseless. However, the company issued another safety recall for more than 800,000 Priuses. The vehicles were recalled so that Toyota could install updated versions of the ECU software. Toyota issued the fourth recall in June 2020, covering the newer generation of the vehicles not covered in previous recalls.

A final fairness hearing on the settlement has been scheduled for January 2023.

The consumers are represented by Jeffrey L. Fazio and Dina E. Micheletti of Fazio Micheletti LLP; Amnon Z. Siegel and Casey B. Sypek of Miller Barondess LLP; Paul R. Kiesel, Jeffrey A. Koncius and Nicole Ramirez of Kiesel Law LLP; Charles J. LaDuca of Cuneo Gilbert & LaDuca LLP; Donald R. Pepperman and Emily R. Stierwalt of Waymaker LLP; and William M. Audet, Clint Woods and David Kuang of Audet & Partners LLP.

The case is Ryan-Blaufuss et al. v. Toyota Motor Corp. et al., case number 8:18-cv-00201, in the U.S. District Court for the Central District of California.

Source: Law360.com

Australian Forex Rigging Suit

Six financial institutions, including Credit Suisse, have reached agreements to settle investor claims over conspiring to manipulate the derivatives market using an Australian foreign exchange benchmark, Law360 reported. The deal resolves allegations against all the remaining defendants in the case and brings the settlement total for the action to nearly $186 million. Credit Suisse agreed to pay $8.88 million, and a group of five other banks, comprising BNP Paribas, Deutsche Bank, the Royal Bank of Canada, the Royal Bank of Scotland and UBS, agreed to pay a total of $40 million to end the claims against them in the matter. A group of investors, including several related investment funds, filed the litigation in August 2016.

The eight proposed settlements provide for non-reversionary cash payments totaling $185,875,000, plus cooperation from each settling defendant. The settlement includes $137 million in settlements reached earlier in the litigation. In December, Australia and New Zealand Banking and Commonwealth Bank of Australia agreed to pay $35 million each, National Australia Bank agreed to pay $27 million, and Morgan Stanley agreed to pay $7 million.

Additionally, in March 2021, Westpac Banking Corp. agreed to pay $25 million, while JPMorgan reached a $7 million settlement in November 2018.

The investors accused the banks of orchestrating a “horizontal conspiracy to manipulate prices in favor of the defendants’ derivatives trading positions” after investigations by Australia’s securities regulator uncovered communications showing that certain banks had been working in concert to fix prices for derivative contracts based on the Bank Bill Swap Reference Rate, an interest rate used as a benchmark to represent the cost of borrowing money in Australia.

The investors are represented by Vincent Briganti and Geoffrey M. Horn of Lowey Dannenberg PC and Christopher Lovell and Christopher McGrath of Lovell Stewart Halebian Jacobson LLP. The case is Richard Dennis et al. v. JPMorgan Chase & Co. et al., case number 1:16-cv-06496, in the U.S. District Court for the Southern District of New York.

Source: Law360.com

Early Approval Given To $500 Million Tribal Lending Settlement

Judge David J. Novak of the U.S. District Court for the Eastern District of Virginia initially approved a $500 million settlement over online lending companies charging “usurious interest rates on loans,” Law360 reported. The companies were established by a federally recognized Native American Tribe, the Habematolel Pomo of Upper Lake.

The preliminary approval motion was filed by a class of consumers — estimated to number 550,000 — who reside within the U.S. and executed loan agreements with four tribal lending entities. During the litigation, the U.S. Court of Appeals for the Fourth Circuit affirmed a lower court’s decision to deny the defendant’s dismissal motion, and the U.S. Supreme Court rejected the defendant’s request to stay the case pending their petitions for writs of certiorari.

The consumer class action settlement will create a $39 million common fund  that will be paid out to class members “who previously repaid unlawful amounts on their loans.” It also includes $450 million in debt cancellation. The tribe will wipe out the balance on any outstanding loans,  stop collecting on loans “and not sell, transfer, or assign any outstanding loans for collection.” The tribe’s officers will request the removal of any negative tradelines for loans that have been in the name of the tribe’s officials or tribal companies. Those officers will pay the costs of notice and administration for the settlement, which will be almost $1 million and is separate from the settlement fund.

Tribal officials will also contribute $75,000 to pay any service awards handed down by the court. The remaining $39 million of the proposed settlement will be paid by defendants Joshua Landy, Scott Asner and two other individual defendants and distributed to the class members.

Payments to class members will be allocated using a tiered formula and a pro rata calculation. Class counsel will also request up to $13 million in attorney fees, and the lead plaintiffs will each apply for a $10,000 service award.

The plaintiffs initially sued in April 2019, claiming that four online lending companies — Golden Valley Lending Inc., Silver Cloud Financial Inc., Majestic Lake Financial Inc. and Mountain Summit Financial Inc. — all formed by the Habematolel Pomo of Upper Lake were making and collecting high-interest loans.

Landy, Asner and two other individuals were also sued as the tribal entities’ nontribal business partners.

The class is represented by Kristi Cahoon Kelly, Andrew J. Guzzo, Casey S. Nash and J. Patrick McNichol of Kelly Guzzo PLC, Leonard A. Bennett, Craig C. Marchiando and Kevin Dillon of Consumer Litigation Associates PC and James Wilson Speer of the Virginia Poverty Law Center.

The case is George Hengle et al. v. Scott Asner et al., case number 3:19-cv-00250, in the U.S. District Court for the Eastern District of Virginia.

Source: Law360.com

Court Approves $98 Million Investor Settlement In Mattel And PwC Litigation

At a May 2 settlement approval hearing, U.S. District Judge Mark C. Scarsi of the Central District of California announced that he will grant final approval of a $98 million settlement resolving investors’ claims that Mattel and PwC misled them by understating an income tax expense. The judge reserved judgment on the class counsel’s $24.2 million attorney fee request.

In January 2022, Judge Scarsi preliminarily approved the settlement in the class action brought by Mattel investors against the toy company and PwC, alleging the two companies orchestrated a cover-up of a $109 million tax misstatement for the third quarter of 2017.

Investors alleged Mattel later overstated its losses by the same amount to hide the error and maintained that exposure of the misconduct led to plummeting stock prices and losses for investors.  Judge Scarsi certified the class of investors in October 2021 and granted PwC’s request to restrict claims against it to a subclass of Mattel investors who bought stock from February 2018 — when they claimed the firm made a misstatement about the company’s finances — through August 2019.

The primary class of investors covers those who bought stakes in Mattel from August 2017 through August 2019.  Investors, Mattel and PwC, reached a settlement in November 2021.

On May 18, Judge Scarsi issued a formal order granting final approval of the settlement, granting $8,615 to the class representatives for costs and expenses relating to their representation of the class, granting nearly $1.4 million in litigation expenses to class counsel, but reducing class counsels’ fee request from $24.2 million to $13.6 million.

On fees, the class counsel’s fee request of $24.2 million represented 25% of the settlement fund, which the judge acknowledged is the benchmark in the Ninth Circuit. The judge nonetheless cut the fees to approximately $13.6 million, representing about 14% of the $98 million settlement, holding that a 25% award would provide an “unreasonable windfall” to class counsel.

The investors are represented by John Rizio-Hamilton, Jonathan D. Uslaner, Richard D. Gluck and Lauren M. Cruz of Bernstein Litowitz Berger & Grossman LLP and Jacob A. Walker of Block & Leviton LLP.

The case is In re: Mattel Inc. Securities Litigation, case number 2:19-cv-10860, in the U.S. District Court for the Central District of California.

Source: Law360

Settlements Worth $86 Million Approved In Drug Price-Fixing MDL

On May 11, U.S. District Judge Cynthia M. Rufe in Philadelphia granted class certification and preliminarily approved an $86 million settlement between direct purchasers and three generic-drug companies. Sun Pharmaceutical Industries Inc. and Taro Pharmaceuticals USA Inc. agreed to pay $85 million to direct buyers, and Breckenridge Pharmaceutical Inc. will pay $1 million to indirect resellers. The companies were the first to settle with consumers in the multidistrict litigation (MDL).

Several groups, including direct buyers, resellers, consumers and state attorneys general filed a lawsuit in 2016 alleging that numerous generic-drug manufacturers had “colluded to fix prices of many medications,” Law360 reported. These drug makers also include Mylan NV, Actavis PLC, Sandoz Inc. and Teva Pharmaceuticals USA Inc. The plaintiffs argue that the drugmakers’ anti-competitive behavior drove up drug prices tenfold in some instances.

The settlement orders stipulate that if enough buyers opt out, the fund from Sun Pharma and Taro could be adjusted down to $75 million or increased to $105 million. The motion for preliminary approval filed in March noted that, at a minimum, Taro will pay approximately$67.6 million into the settlement fund, and Sun will pay just under $17.4 million.

Lawyers from NastLaw LLC, Kaplan Fox & Kilsheimer LLP, Nussbaum Law Group PC, Roberts Law Firm PA, Hagens Berman Sobol Shapiro LLP and Berger Montague were approved as class counsel, representing a class of an estimated 500 direct purchasers, such as large pharmacy chains, that bought one of the affected generic drugs from the defendants between May 2009 and the end of December 2019.

In approving the $1 million settlement between Breckenridge and “indirect resellers,” Law360 explained that the settlement defined the class “as dispensers of drugs, including hospitals and pharmacies, that purchased the contested generics from the distributor defendants or other intermediaries since 2010.”

The $1 million Breckenridge agreed to pay will be divided among 24,000 to 29,000 potential class members. However, the pharmaceutical company also agreed to cooperate with plaintiffs against other defendants. Jonathan W. Cuneo and Peter Gil-Montllor of Cuneo Gilbert & LaDuca LLP were appointed the lead counsel for the indirect reseller plaintiffs.

Direct purchaser class members will have a final fairness hearing on Dec. 13, and once the resellers file a motion to send notice to class members, the court will set a fairness hearing date for those members.

The direct purchasers are represented by NastLawLLC, Kaplan Fox & Kilsheimer LLP, Nussbaum Law Group, Roberts Law Firm PA, Hagens Berman Sobol Shapiro LLP and Berger Montague.

The indirect resellers are represented by Cuneo Gilbert & LaDuca LLP.

The MDL is In re: Generic Pharmaceuticals Pricing Antitrust Litigation, case number 2:16-md-02724, in the U.S. District Court for the Eastern District of Pennsylvania.

Source: Law360

Judge Approves $75 Million Settlements In Contact Lens Price-Fixing Suit

U.S. District Judge Harvey E. Schlesinger, a Florida federal judge, gave his initial approval on May 9 to two settlements that would require Alcon Vision LLC and Johnson & Johnson Vision Care Inc. to pay a combined $75 million to resolve price-fixing litigation over disposable contact lenses. The judge granted preliminary approval to a $20 million settlement with Alcon and a $55 million settlement with Johnson & Johnson that ended the class litigation. The two settlements were announced in late March, just days before a trial that was scheduled to begin on March 28.

The two contact lens makers were among several large companies in the optical industry brought into the multidistrict litigation (MDL) consolidated in the Middle District of Florida in 2015. In the beginning, more than 100 cases comprised the MDL. Cases from Kansas and California were consolidated with those in Florida.

Optometrists and ophthalmologists had raised concerns about discount lenses, accusing four companies — distributor ABB Optical Group and vision care manufacturers Bausch & Lomb, Johnson & Johnson and Alcon — of engaging in a conspiracy to coordinate their pricing.

A horizontal class of U.S. residents was created in December 2018 by Judge Schlesinger. The class includes those who purchased disposable lenses made by Alcon, Johnson & Johnson or Bausch & Lomb from retail stores between June 1, 2013, and Dec. 4, 2018, for their own use and not resale. Judge Schlesinger created vertical manufacturer-based subclasses for consumers who purchased lenses made by any of the three companies from June 1, 2013, to the date of class certification.

Two of the companies included in the lawsuit were previously settled. Bausch & Lomb agreed to pay $10 million in 2019. The following year, ABB agreed to a $30.2 million settlement, which Judge Schlesinger approved, and he approved $9.3 million in attorneys fees and $1 million for future anticipated claims costs.

The consumers are represented by Bedell Dittmar Devault Pillans & Coxe PA, Scott + Scott Attorneys at Law LLP, Hausfeld LLP, Kopelowitz Ostrow Ferguson Weiselberg Gilbert, Robins Kaplan LLP, Podhurst Orseck LLP, Gustafson Gluek PLLC and Sampson Dunlap LLP.

The case is In Re: Disposable Contact Lens Antitrust Litigation, case number 3:15-md-02626, in the U.S. District Court for the Middle District of Florida.

Source: Law360.com

The Apple Warranty Settlement

U.S. District Judge William H. Orrick, a California federal judge, has approved a $95 million settlement with Apple Inc. resolving claims the tech giant failed to honor warranties for iPhones and iPads.

Judge Orrick has granted the motion for preliminary approval in November. Judge Orrick awarded the plaintiffs’ firm $26.9 million in attorney fees and its requested $1.4 million in expenses. The judge also awarded named plaintiffs Vicky Maldonado and Justin Carter $15,000 and $12,500, respectively, as incentive awards for leading the suit.

The consumers, whose claims date back to 2016, said Apple failed to fulfill its obligations set out under the AppleCare and AppleCare+ warranties’ terms and conditions. The company promised “new or equivalent to new” devices and parts replacements.

In the suit, the consumers claimed the replacements were neither new nor equivalent to new in performance and reliability, and throughout discovery provided experts who opined that the remanufactured devices were far more likely to fail and had between 18 and 24 fewer weeks of life than new ones. In 2019, Judge Orrick granted class certification to consumers who purchased Apple’s AppleCare or AppleCare+ extended warranties on July 20, 2012, or later, and received a remanufactured replacement device.

The customers are represented by Steve W. Berman, Robert B. Carey and Michella A. Kras of Hagens Berman Sobol Shapiro LLP.

The case is Vicky Maldonado et al. v. Apple Inc. et al., case number 3:16-cv-04067, in the U.S. District Court for the Northern District of California.

Source: Law360.com

US Steel And Investors Reach $40 Million Settlement

U.S. Steel, a Pittsburgh-based steel producer, has reached a tentative settlement with its investors, according to Law360. The investors asked U.S. District Judge Cathy Bissoon to preliminarily approve the $40 million cash deal to end the proposed class action. The investors told the court that “extensive” negotiations led to “an excellent result for the settlement class, particularly when viewed in light of the risks of further litigation and trial.”

Investors claim the company hurt them by concealing lost production capacity after a “transformational process” led the plant to adopt a “don’t buy, get by” plant operational approach. The company agreed to the new course at the behest of the management consulting firm McKinsey & Co. McKinsey advised the defendant to delay repairs until necessary. Plaintiffs assert that plant managers “were only allowed to purchase parts when absolutely necessary and were required to ‘jury-rig’ machines to keep them operating, rather than making the necessary repairs.”

The new strategy was to enable U.S. Steel to become profitable again after several difficult years. The management company is not part of the lawsuit. Instead, investors argue that the strategy contributed to “severe unplanned outages (e.g., downtime resulting in lost production), production delays and at least a 20% decline in production output due to U.S. Steel’s equipment breaking down and becoming inoperable” at the plant.

In April 2017, the defendant reported its quarterly earnings and admitted the impact of the outages on the company’s bottom line. Investors say the steel manufacturer’s shares dropped by 27% during this time.

Investors also sued three of the company’s executives as defendants in addition to the company.

The proposed class is represented by Vincent A. Coppola of Pribanic & Pribanic and Shannon L. Hopkins, Gregory M. Potrepka, David Jaynes and Michael J. Keating of Levi & Korsinsky LLP. The case is In re: U.S. Steel Consolidated Cases, case number 2:17-cv-00579, in the U.S. District Court for the Western District of Pennsylvania.

Source: Law360.com

Class Action Lawyers At Beasley Allen

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

THE CONSUMER CORNER

Arbitration Win In The U.S. Supreme Court

The U.S. Supreme Court issued a unanimous decision in Morgan v. Sundance, a case brought to the Court on behalf of Robyn Morgan, a Taco Bell franchise worker. Ms. Morgan had filed a nationwide collective action when she learned she and other workers weren’t being paid overtime. The employer litigated the case in court for eight months, unsuccessfully trying to get the case dismissed or combined with a similar case in Michigan, before invoking the arbitration provision it had included in the plaintiff’s job application. Ms. Morgan argued that this mid-course change in strategy by the employer constituted a waiver, and the district court agreed. But the Eighth Circuit reversed, saying the employer couldn’t prove that the employer’s conduct had caused her prejudice.

The Supreme Court took this case to determine whether the Eighth Circuit, along with eight other circuits and many state supreme courts, erred by including a prejudice requirement in its test for arbitration waiver even though prejudice doesn’t have to be shown to establish waiver of other contractual rights. The court’s unanimous opinion, written by Justice Kagan, answers that question with an emphatic “yes!”

The opinion, in this case, appears to be a game-changer, given that prejudice has been part of the arbitration waiver inquiry in most federal courts and about half the states for decades.

Lawyers in our firm’s Personal Injury & Products Liability Section will study this important opinion carefully. It appears to be a huge win for consumers and may well be a true game-changer. Stay tuned!

 PBM Caselaw And Regulatory Update

American consumers pay more for prescription drugs than any country in the world, causing the issue of drug pricing to come to the forefront of U.S. health policy. As a result, states have become active in seeking to control drug prices and pharmacy reimbursement. One major way the various states have been trying to reduce the costs of prescription drugs is through regulating Pharmacy Benefit Managers (PBMs), which has had a positive effect on rulings from judges across the country.

Recently, the Eighth Circuit was reconsidering arguments in Pharmaceutical Care Management Association (PCMA) v. Wehbi. In the case, PCMA questioned whether two North Dakota laws regulating PBM activities were preempted by two federal laws, ERISA and the Medicare statute. The state argued that its “laws do not have any bearing on ERISA plans or their administration and therefore allowable,” the National Law Review reported. The Wehbi decision was expected to clearly define the legal standard other courts could apply when determining ERISA preemption challenges.

The Eighth Circuit issued two holdings as it reconsidered Wehbi last November. It found that  ERISA did not preempt any of the challenged North Dakota laws because they do not have an Impermissible “connection with or reference to an ERISA plan.” The court also found that certain provisions were preempted by Medicare but only as they apply to Medicare Part D plans. Further, the challenged provisions constitute “a noncentral ‘matter of plan administration’ with de minimis economic effects and impact on the uniformity of plan administration across states.”

The Eighth Circuit decision in Wehbi was expected to either accelerate states’ legislative efforts to regulate PBMs and other health plan service providers or safeguard PBMs against such state measures now and in the future. With the Eighth Circuit’s findings in November, it appears that Wehbi will support states in their efforts to regulate PBM practices.

PBMs have come under attack for capitalizing on the lack of transparency with drug pricing, rebates, recoupments, drug formularies, and other issues to pocket hidden profits. Such deceptive practices can cost consumers and the government millions of dollars in prescription drug costs. Therefore, as states move forward with their 2022 legislative sessions, there has been an increase in proposed and passed PBM legislation aimed at protecting patients against some of the worst practices by PBMs.

In 2022, at least 20 states have taken initial steps to implement or modify state laws to increase PBM regulation. The laws that these state legislators are passing are quite varied. However, many states have enacted statutes that require transparency in prescription drug prices, regulate the amount PBMs reimburse pharmacies and set parameters for contracts between PBMs and plans or pharmacies.

Over the years, Beasley Allen has joined the fight to lower prescription drug costs through our representation of states and municipalities against drug manufacturers and PBMs. Our firm welcomes the opportunity to investigate potential drug manufacturer and PBM misconduct. If you have any questions about PBMs and their unlawful practices, contact Dee Miles, Ali Hawthorne, James Eubank, or Rebecca Gilliland, lawyers in our Consumer Fraud & Commercial Litigation Section.

Source: The National Law Review

Who Is Eligible For TurboTax $141 Million Settlement Payments?

Attorneys general from all 50 states reached a $141 million settlement with Intuit over the company’s deceiving consumers into paying for its commercial tax services like Turbo Tax despite being eligible for federally supported free tax services, the Associated Press reported. Those eligible under the settlement terms are more than 4.4 million taxpayers.

A ProPublica investigation revealed in 2019 that Intuit, a California-based company, used deceptive business and marketing tactics to drive low-income consumers towards its paid tax services. Intuit participated in an IRS Free file program designed for taxpayers earning approximately $34,000 and members of the military; however, it withdrew from the program in 2021.

Intuit has agreed to suspend its TurboTax’s “free, free, free” ad campaign in addition to paying restitution. Approximately $2.5 million of the settlement will cover administrative costs, and the rest will go to consumers who started using TurboTax’s Free Edition for tax years 2016 through 2018. Those consumers were misled to believe they had to pay to file taxes even though they were eligible to file for free through the IRS Free File program the company offered.

The Associated Press reports that “consumers are expected to receive a direct payment of about $30 for each year they were deceived into paying for filing services.” Those eligible will automatically be notified and receive a check by mail.

Source: Associated Press

Supreme Court: No Emotional Harm Awards In Some Discrimination Suits

The U.S. Supreme Court dismissed a discrimination lawsuit against a physical therapy provider brought by Jane Cummings, a deaf and legally blind woman seeking to recover emotional distress damages, because the provider refused to make an American Sign Language (ASL) interpreter available for the woman’s therapy sessions. According to the Washington Post, the Court split 6 to 3 on the decision and was divided along ideological lines.

In 2016, Ms. Cummings sought physical therapy services from Premier Rehab Keller, a Dallas-Fort Worth area small business. She asked the provider to make an ASL interpreter available during her appointments. The company declined, saying that Ms. Cummings could write notes, lip-read or gesture to communicate with her therapist. Ms. Cummings rejected those alternatives, sought care from another provider and sued Premier Rehab. The company receives Medicare and Medicaid reimbursement for some of its services, making it subject to federal discrimination laws.

Before reaching the Supreme Court, the case was dismissed by a district judge, who found that Ms. Cummings could not seek damages for emotional harm. The decision was upheld by a panel of judges for the Fifth Circuit Court of Appeals. U.S. Supreme Court Chief Justice John Roberts agreed in writing for the majority. He explained that emotional distress damages are generally available only in “highly unusual” contracts. The majority determined that Ms. Cummings circumstances did not fall into this category simply because the provider receives some federal funding. Chief Justice Roberts said further:

The organizations would need to be told clearly before accepting the money if it faced such liability. After all, when considering whether to accept federal funds, a prospective recipient would surely wonder not only what rules it must follow, but also what sort of penalties might be on the table.

The Chief Justice was joined by Justices Clarence Thomas, Samuel A. Alito Jr., Neil M. Gorsuch, Brett M. Kavanaugh and Amy Coney Barrett.

Justice Stephen G. Breyer dissented, and Justices Sonia Sotomayor and Elena Kagan. MSN.com reported that in the dissent, Justice Breyer said funding recipients should have known their liability because “the statutes before us prohibit intentional invidious discrimination. That kind of discrimination is particularly likely to cause serious emotional disturbance.”

Justin Breyer wrote that the majority’s narrow view of the damages available will have consequences. He said further:

The Court’s decision today allows victims of discrimination to recover damages only if they can prove that they have suffered economic harm, even though the primary harm inflicted by discrimination is rarely economic. Indeed, victims of intentional discrimination may sometimes suffer profound emotional injury without any attendant pecuniary harms. The Court’s decision today will leave those victims with no remedy at all.

The case is Cummings v. Premier Rehab Keller.

Sources: Washington Post and MSN.com

CURRENT CASE ACTIVITY AT BEASLEY ALLEN

The Latest Look At Case Activity At Beasley Allen

Our BeasleyAllen.com website provides the latest information on the current case activity at Beasley Allen. The list can be found on our homepage, on 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
• Retirement Plans
• Toxic Exposure
• Whistleblower

Cases

The cases in the categories listed below are handled by lawyers in the appropriate section at Beasley Allen. The list can be found on our homepage, on the top navigation, or on the Cases page of our website (BeasleyAllen.com/Recent-Cases/).

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

RESOURCES TO HELP YOUR LAW PRACTICE

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

Co-Counsel E-Newsletter

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

Aviation Litigation & Accident Investigation

Beasley Allen lawyer Mike Andrews discusses the complexities of aviation crash investigation and litigation. The veteran litigator offers an overview to the practitioner of the more glaring and important issues to be aware of early in the litigation based on years of handling aviation cases. He provides basic instruction on investigating an accident, preserving evidence, and insight into legal issues associated with aviation claims while weaving in anecdotal instances of military and civilian crashes.

Webinars

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

The Jere Beasley Report

We also consider The Jere Beasley Report to be a service to lawyers and the general public. We provide the Report at no cost monthly, in print and online. You can get it online by going to https://www.beasleyallen.com/the-jere-beasley-report/.

You can reach Beasley Allen lawyers in the four litigation sections of our firm by phone toll-free at 800-898-2034 to discuss any cases of interest or to get more information about the resources available to help lawyers in their law practice. To obtain copies of any of our publications, visit our website at BeasleyAllen.com/Publications.

PRACTICAL TIPS FOR TRIAL

Ben Baker, a lawyer in our firm’s Personal Injury & Products Liability Section, has successfully tried numerous complex cases, many of them involving defective products. Based on his experiences, Ben is supplying some suggestions this month to help other lawyers. Ben says:

There are any number of books, articles, or CLE courses dedicated to the do’s and don’ts relating to the trial of a lawsuit. However, in my experience, anyone who routinely tries cases typically develops their own style of case preparation.  The purpose of this presentation is to provide a few tips for preparing for trial in a way to help with organization and reduction of the stress associated with going to trial.

1. To-Do List or Task List – Any case you have should have a to-do list or task list. As a trial lawyer, you should be looking to prepare your case for trial from the very beginning, and your to-do list should be updated throughout discovery and reviewed constantly.  It is a living document that should be used all the way to trial.  However, I typically prepare a special to-do list about thirty days from trial that is more trial-focused so that the tasks required for trial are outlined and can be adjusted as last-minute preparation continues.
2. Support Staff – Trying a case and preparing for trial are difficult tasks. To increase the chances of success and reduce as much stress as possible, it is imperative to have a very organized and hardworking staff that is well-informed of the goals for the specific trial so that they can assist you in completing your tasks.
3. Scheduling Order – a Scheduling Order gives everyone in the case the ability to plan for a trial date and complete discovery in a reasonable manner. A Scheduling Order can prevent delay in case preparation so the case can be timely resolved.  The idea is to be organized in case and trial preparation, so you are not trying to complete discovery or other trial preparation at the last minute.  Organized case preparation through a good Scheduling Order is a key part of being ready for trial.
4. Order of Witness (Order of Proof) – This list consists of all witnesses you expect to call in your case-in-chief and those you anticipate the defense will call.  This list is important because it reinforces the theme of your case and how you would like to present your evidence to the jury.  This list is also important in that it designates who is responsible for each witness on direct and cross-examination. Like the to-do list, this list is a living document and can change as you get closer to trial and during trial.  However, it is important that everyone involved in the case is aware of their role and the witnesses that they will be responsible for presenting at trial.  The earlier you can assign these tasks, the sooner specific case preparations can be made to avoid last-minute efforts to complete tasks before beginning trial.  Start ahead and stay ahead.
5. Audio/Video – Trying complex cases today typically involves using some form of audio/visual aids, mostly run by computers.  This can include playing videos of witness depositions, showing exhibits or demonstrative aids, and running other videos that assist you in trying your case.  However, if you do not have a qualified person running this system or up-to-date hardware/software, you can end up delaying the trial, wasting time, and generally having the judge and jury lose patience with you.  Therefore, it is critical that the person running the audio-visual technology is very experienced in operating the equipment and can make changes on the fly.
6. Visit the Courthouse and Know Your Judge – This point goes hand-in-hand with the previous one regarding the audio/visual equipment.  Every courthouse is different, and each has a different level of technology available to allow you to use your equipment.  Therefore, it is essential to visit the courthouse well in advance of trial to understand how much equipment you will have to bring to make sure that you are able to make your presentation as you intend. To this end, it is also important to know what the judge expects of you in terms of using technology and when and how you will have access to the courthouse to set up equipment.  It is much better to work out arrangements to have your equipment set up and tested before the first day of trial.
7. War Room – If you are trying a case out of town, it is imperative to have a “war room” for day-to-day trial preparation.  Inevitably, changes will need to be made to the audio-visual part of the trial, exhibits, or demonstratives. Therefore, you will need a room where equipment can be brought every evening and accessed by you and your staff before each day of trial.
8. Scheduling Witnesses – Trial is a dynamic event and can change day-to-day and sometimes hour-to-hour. In conjunction with the Order of Proof list, it is important that you have good contact information for all of your anticipated witnesses and reach out to them well in advance of their expected time of testimony. In the event that you have to move witnesses around, it is good to know who is more flexible and who can be at the courthouse at a moment’s notice.  This is also extremely important as it relates to expert witnesses because most of the time, these witnesses have to come in from out of town. Sometimes due to the changing situation in the courtroom, you may have to have two or three experts available at any one time to give testimony so that you have some flexibility in presenting your case as needed.
9. Key Legal Issues – In any trial, there are a number of legal / evidentiary issues that you can anticipate being brought up by you or the other side.  I have found it helpful to have a file prepared on each of these issues that sometimes includes a short trial brief and / or copies of key cases that relate to the issue.  Having the ability to present this information quickly and provide it to the judge at the appropriate time can increase the likelihood of your success when making or responding to an objection or attempting to get particular evidence into the record.
10. Pretrial – It is important to have the court schedule a pretrial for your case one to two weeks before trial.  Having a pretrial conference before your actual trial date will allow you to help bring the court up to speed on the particular facts of your case and any potential issues that may arise during trial.  This process will also help you learn about any issues you may have overlooked that the other side feels are important. It allows you to be prepared for those issues that may come up for trial and to have the judge in a position to understand the facts and issues that may be raised during trial so that the court is also prepared. Failure to have a pretrial could cause delay in the trial, which at the end of the day, will wear on the patience of both the judge and the jury.

While these ten tips do not cover every aspect of trial preparation for every case, they provide a basis for a systematic and organized approach to trial preparation that will help a lawyer be ready for trial in any case.

RECALLS UPDATE

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

FIRM ACTIVITIES

Employee Spotlights

Phyllis Cothron

Phyllis Cothron has been with the firm for over 11 years and is currently a Staff Assistant, where she works predominately with Navan Ward, a lawyer in the firm’s Mass Torts Section. Her responsibilities include assisting lawyers with cases, client calls, bate stamping, reviewing plaintiff fact sheets with clients, requesting medical records, and ensuring client files are accurate and up-to-date. Phyllis also assists with other projects as needed. Navan says: We are thankful to have her part of the team!

Phyllis and her husband recently celebrated their 40^th anniversary! The Cothrons have two sons, two “beautiful” daughters-in-law, and four “precious” grandchildren. Phyllis added that they are blessed and owe it all to God! Phyllis and her husband love to camp as much as possible in their spare time. Phyllis loves to read books or magazines and browse vintage shops wherever she goes. Her favorite hobby is making painted wood crosses with bible verses and giving them to people.

Phyllis says that her favorite thing about working at Beasley Allen is being to talk, listen, and help clients. She added, “so many of them have no one to tell their story. You become not just a person on the other end of the line but a friend. I work with a lot of wonderful people, and it is a great privilege to work for a firm that gives the glory to God.”

Phyllis is a hard-working woman who is dedicated to helping clients in the Mass Torts Section. We are fortunate to have her at Beasley Allen.

Amber Fee

Amber Fee began her career with Beasley Allen initially as a temporary employee in 2019 in the firm’s Mass Torts Section. In March 2020, she was hired as a full-time Staff Assistant in the same section where she currently works. As a Staff Assistant, Amber works on the Talcum Powder Litigation reviewing claims to determine if they meet specific criteria to file a lawsuit.

Amber is a mother of two sets of fraternal twins who are eight and ten years old. Amber says she loves her children dearly and that they are “her biggest blessings!” Amber is a courageous cancer survivor of Hodgkins Lymphoma and is a tremendous blessing and example of bravery and resilience to so many. She enjoys spending as much time with her family as possible. She also enjoys going to the beach, which she says is her favorite thing.

Amber says that her favorite thing about working at Beasley Allen is the people she works with and the opportunity to help others. Amber has a vital role in the firm, and we are thankful for all of her hard work and dedication to the firm!

Gavin King

Gavin King, who joined the firm in 2020, works in the Toxic Torts Section. He represents a variety of plaintiffs, primarily in environmental litigation but in other areas as well. In 2021, Gavin served as lead trial counsel on behalf of the family of a Wilcox County man who died due to nursing home negligence. Gavin and a team from Beasley Allen were able to secure a six-figure verdict in the case.

Pursuing a career in law was a natural progression for Gavin. He says:

I found, during my undergraduate studies, that my God-given gifts and propensities would likely lend themselves to the practice of law. I became a trial lawyer because I have a passion for speaking on behalf of people who otherwise would not be able to speak for themselves.

It’s not uncommon to find Gavin in the office running ideas off fellow lawyers or staff to gauge their reaction. He says:

I enjoy the opportunity to create new and creative arguments. Each day presents a new intellectual challenge, and each of those challenges is an opportunity to help our clients. I enjoy that.

A native of Opelika, Alabama, Gavin attended Mississippi State University before obtaining a law degree from Samford University Cumberland School of Law in 2020. While in law school, Gavin worked as a law clerk at other plaintiffs’ law firms, a private practice attorney, and the Equal Employment Opportunity Commission (EEOC)-Birmingham Office under Chief Judge Mason Barrett.

Gavin says he feels right at home at Beasley Allen, adding:

I cannot imagine another firm our size that feels as communal and collegial as this place. From our firm’s leadership to the staff, all the way down to young associates like me, I have found everyone to be kind, willing to answer my questions and always encouraging.

Gavin is a member of the Alabama State Bar and the State Bar of Georgia. He was selected to serve on the Alabama State Bar Young Lawyers’ Section Executive Committee. He is also a member of the Montgomery County Bar Association, where he serves on the board for the Young Lawyer’s Section. He also holds memberships with the Alabama Lawyers’ Association and the Alabama Association for Justice, where he is a member of Emerging Leaders.

Anchored by his strong faith, Gavin, his wife Erica, and their daughter are active members of Strong Tower Church in Montgomery. When he isn’t spending time with his family, Gavin follows Mississippi State athletics and hunts with his bird dog, Judge.

Gavin is a tremendously talented lawyer who diligently represents his clients in their pursuit of justice. We are blessed to have Gavin in the firm.

Parker Miller

Parker Miller is a nationally recognized lawyer who has focused much of his career on catastrophic injury cases. Now working out of Beasley Allen’s Atlanta office, Parker has played a leading role in several landmark cases, including serving as lead counsel for the State of Alabama in the Deepwater Horizon oil spill litigation against BP and Transocean and in the State of Georgia’s Opioid litigation. Described by his peers as a fierce litigator with a true passion for practicing law, Parker has helped resolve cases nationwide valued at more than $3.5 billion.

Growing up on a cattle farm in the middle of West Alabama, Parker says his dream was to one day work in business and run a business in a larger city. There were no lawyers in his family, and he had no significant exposure to the practice of law until his junior year of college at Auburn University, where he was pursuing a Bachelor of Science in Business Administration.

Parker decided to clerk for a judge while at Auburn on the advice of a friend who had finished a similar internship. He says that experience was a life-changing one. During that internship, Parker discovered that the legal profession was where he could put his natural strengths of speaking, writing, and debating to use while satisfying deeply personal ambitions. Parker says:

I realized many of the skills that lawyers use daily came very naturally to me, and, most importantly, I would get to use those skills to help people and make the world a better place. To top it all off, I quickly learned that law firms are businesses, so my business degree would be put to good use. I was hooked, and I never looked back as I entered my senior year of college.

After Auburn, Parker went to law school at Thomas Goode Jones School of Law and enrolled with Tulane on an international law concentration in Europe. While in law school, the American College of Trial Lawyers awarded Parker the Lewis F. Powell Jr. Medal for Excellence in Advocacy, which recognizes the top student advocates in the nation. Parker graduated law school and joined Beasley Allen as an associate in 2008. He initially practiced in the Toxic Torts Section. While in that section, Parker was named Toxic Torts Lawyer of the Year in 2012 and 2014.

Parker now litigates high-stakes personal injury cases, particularly cases involving product liability, trucking litigaiotn, premises liability and negligent security. Parker says this area of the law has been profoundly satisfying. He explains:

To me, there is no higher calling than to be given the responsibility to help someone when they need it most. There is nothing quite like having someone trust you in their darkest, most sensitive moments. My job is to take the weight and stress of the legal system off my clients’ shoulders and put that weight on my shoulders so they will not have to carry it anymore. I take that part of the job and the trust that comes with it very seriously.

Parker says he also loves going up against his adversaries and competing for his clients and all that entails. Crafting the case, developing it through litigation, and defending it against a strong adversary are rewarding to Parker. His exceptional skill and talent in the courtroom have earned him the respect of even his most well-funded and powerful adversaries.

Parker acknowledges that practicing law is difficult and often full of adversity, but overcoming the challenges and hardships makes such a physically and emotionally demanding occupation worthwhile. He says:

I love working with my team and encouraging them along the way where I can. This is a very, very difficult profession, and I have certainly endured my share of adversity throughout my career. The beauty of adversity, though, is there is great opportunity to grow and become stronger through perseverance. Seeing our people go through that adversity and then come through it stronger is something I really enjoy being a part of.

Parker says he is proud to be a part of Beasley Allen because the firm is “dedicated to helping those who need it most.” The firm’s motto and guiding principle are values that he shares and sees in action every day.

Our people are absolutely 100% dedicated to achieving justice for their clients because we know it is not just about the client but also about the type of world we want our children and grandchildren to grow up in. This is the reason our lawyers and staff work so hard. It is why our firm will not hesitate to create a mold where none exists or take on a difficult project where others have walked away. This dedication, coupled with integrity, is the bedrock of who we are and why we achieve the results we do.

Martindale-Hubbell has rated Parker an AV Preeminent® attorney – the highest possible Martindale-Hubbell rating a lawyer can achieve in legal knowledge, analytical capabilities, judgment, communication ability and legal experience. He has also been designated as a Super Lawyer by the Super Lawyer’s publication, as well as Rising Star on multiple occasions by Law360, one of the nation’s preeminent legal news publications. These and many additional accolades and awards have ranked Parker among the top trial lawyers in the United States.

Angie Taylor

Angie Taylor is a Legal Secretary in the firm’s Mass Torts Section. In her role, she is responsible for correspondence to clients, including letters, complaint packets, and other special projects as needed. Angie has been a dedicated employee of the firm for over eighteen years. We are blessed to have Angie with us!

Angie is a single mother of a 28-year-old special needs son. Angie says that he is learning how to farm and that he is such a blessing and an inspiration to her daily. Angie’s family lives close by, and she enjoys spending time with them. Angie and her son’s hobby is their farm, where they raise chickens and goats and sell eggs. They recently purchased a young donkey and enjoy watching and working with it and all of their animals. This year, Angie planted a large garden and has plans to raise vegetables and process them.

When asked what her favorite thing about working at Beasley Allen was, Angie replied, “I enjoy serving our clients and helping others.” Her co-workers say that Angie is a joy to be around.” We are thankful for all of Angie’s hard work and dedication to the firm and the clients she serves.

SPECIAL RECOGNITIONS

Chris Glover Named Georgia Legal Awards Attorney Of The Year Finalist

Chris Glover, Managing Attorney of Beasley Allen’s Atlanta office, was named one of three finalists for the Daily Report’s Georgia Legal Awards 2022 Attorney of the Year. The award is given to a Georgia lawyer who had the biggest impact on the law or the Georgia legal community or did the most to advance the cause of justice. The winner will be announced at an awards gala on June 23 in Atlanta.

Chris has dedicated his practice to protecting the rights of and achieving the best outcomes for survivors of catastrophic personal injury and victims of wrongful death. Since joining Beasley Allen in 2008, he has secured more than $100 million in verdicts and settlements for injured individuals and their families in a wide range of serious injury and death claims.

One of the highlights of Chris’ career was playing a pivotal role in helping create the nationwide Honda and Takata claims fund for victims of recalled Takata airbags. He is proud that the fund is still benefiting clients whose lives were adversely impacted by the defective airbags some 10 years after the recall was announced. Chris’ priority is and has always been to ensure his clients have the financial and emotional means to adapt to life after a tragedy.

Chris is a recognized leader among his peers, having served in leadership roles with numerous professional legal associations. In 2019, he was selected as a Distinguished Leader in the Georgia Legal Awards for demonstrating clear leadership skills that helped achieve impressive results for his clients.

Gavin King Chairs Black College World Series Advisory Board

When Beasley Allen lawyer Gavin King was chosen to serve as Chairperson of the Montgomery Advisory Committee for the Black College World Series, he knew it would be an exciting opportunity to help organize and advance Black college baseball.  Gavin observed:

The Black College World Series elevates the experiences of student-athletes at historically Black colleges and universities (HBCUs) and provides a platform to exhibit talent within Black college baseball. I’m just excited for the opportunity to help these kids and these coaches showcase Black college baseball.

The Black College World Series (BCWS) is a postseason event to determine the HBCU baseball national champion on the field. Eight HBCU baseball teams compete in the playoffs. The top team from the National Collegiate Athletic Association (NCAA) Division II bracket in the tournament faces off against the top team from the National Association of Intercollegiate Athletics (NAIA) bracket to determine the champion.

After four days and 13 games, this year’s BCWS at Montgomery’s Riverwalk Stadium ended with a victory for Edward Waters University. The Jacksonville, Florida HBCU defeated Kentucky State University 3-2 on Saturday, May 14.

Gavin said that while the event puts a spotlight on HBCU baseball talent, it also draws national attention to the city he now calls home. He says:

Hosting the Black College World Series is a stellar opportunity to show off our city to a watching world.  Montgomery is full of history. It’s a place that I love deeply.

A native of Opelika, Alabama, Gavin graduated from Mississippi State University before earning a law degree from Samford University’s Cumberland School of Law. He practices law in Beasley Allen’s Toxic Torts Section, focusing on environmental litigation. He holds law licenses in Alabama and Georgia.

Gavin is an avid follower of college baseball. He and his family spend several weekends each spring traveling to watch Mississippi State baseball or walking the short distance from their home to sit in right field and support the Alabama State University Hornets.

FAVORITE BIBLE VERSES

The scriptures for this issue are again being furnished by those lawyers and staff who are featured this month. They supply their favorite Bible verses.

Gavin King

Gavin King shared the following verses.

And the King will answer them, ‘Truly, I say to you, as you did it to one of the least of these my brothers, you did it to me.

Matthew 25:40-45

Gavin says: “Much of the work we do serves the interests of common everyday people who have often been harmed, or taken advantage of, by the interests of powerful corporations. I look at my work as serving the ‘least of these’ among us. I endeavor to serve my clients as I would serve Jesus Christ himself. I do not always succeed in this endeavor, but that is my goal every day.”

But thanks be to God, who gives us the victory through our Lord Jesus Christ. Therefore, my beloved brothers, be steadfast, immovable, always abounding in the work of the Lord, knowing that in the Lord your labor is not in vain.

1 Corinthians 15:57-58

Gavin says further: “Often, our work on this side of eternity seems futile. Whether it is our work in the church, in our homes, or our offices, sometimes it all seems fraught. Paul reminds us that because of the person and work of Jesus Christ, our labors are not in vain. We work, not for work’s sake, but instead, for the sake of Christ.”

Open your mouth for the mute, for the rights of all who are destitute. Open your mouth, judge righteously, defend the rights of the poor and needy.

Proverbs 31:8-9

Gavin adds, “I keep these words from King Lemuel in my heart. This is exactly what we do as advocates. We speak for the mute; we defend the destitute; we defend the rights of the poor and the needy against the rich. This verse is, for many reasons, why I do what I do. Speaking for those who cannot adequately speak for themselves is honoring to the Lord.”

Parker Miller

Parker Miller shared the following verses for this issue.

Teach me Your way, O Lord, And lead me in a smooth path, because of my enemies. Do not deliver me to the will of my adversaries; For false witnesses have risen against me, And such as breathe out violence. I would have lost heart, unless I had believed That I would see the goodness of the Lord in the land of the living. Wait on the Lord; Be of good courage, And He shall strengthen your heart; Wait, I say, on the Lord!

Psalms 27:11-14

Parker says this is one of his favorite verses, and in particular, he adds: “I would have lost heart unless I believed…,” because it shows the power of faith at a time when you cannot see around the corner.

Now, my son, the Lord be with you, and may you have success and build the house of the Lord your God, as he said you would. May be Lord give you the discretion and understanding when he puts you in command over Israel, so that you may keep the law of the Lord your God. Then you will have success if you are careful to observe the decrees of the laws that the Lord gave Moses for Israel. Be strong and courageous. Do not be afraid or discouraged.

1 Chronicles 22:11-13

Parker says he is particularly fond of the instructions and dialogue between King David and his son, Solomon, as King David saw his years drawing to an end. David was a great king beloved by God. David’s son Solomon was set to take over the kingdom and would have a great responsibility, so David saw to it to share his words of encouragement and his wisdom with his son so that Solomon could fulfill God’s destiny for him.

Parker shares more of this passage, explaining that as David’s time to die drew near, he charged Solomon, his son, saying,

I am going the way of all the earth. Be strong, therefore, and show yourself a man. Keep the charge of the Lord your God, to walk in His ways, to keep His statutes, His commands, His ordinances, His testimonials, according to what is written in the Law of Moses, that you may succeed in all that you do and wherever you turn, so that the Lord may carry out His promise which He spoke concerning me, saying, ‘If your sons are careful of their way, to walk before Me in truth in all of their heart and with all their soul, you shall not lack a man on the throne of Israel.

1 Kings 2:1-4

Parker says he relies on the following verses for strength and guidance.

Consider it pure joy, my brothers and sisters, [a] whenever you face trials of many kinds, because you know that the testing of your faith produces perseverance. Let perseverance finish its work so that you may be mature and complete, not lacking anything.

James 1:2-4

Beloved, do not think it strange concerning the fiery trial which is to try you, as though some strange thing happened to you; but rejoice to the extent that you partake of Christ’s sufferings, that when His glory is revealed, you may also be glad with exceeding joy.

1 Peter 4:12, 13

Though I walk in the midst of trouble, You will revive me; You will stretch out your hand against the wrath of my enemies, and your right hand will save me.

Psalm 138:7

My goal is that they may be encouraged in heart and united in love, so that they may have the full riches of complete understanding, in order that they may know the mystery of God, namely, Christ, in whom are hidden all of the treasures of wisdom and knowledge.

Colossians 2:2-3

Angie Taylor

Angie Taylor furnishes these verses.

Be Still and know that I am God.

Psalm 46:10

She says this verse reminds her that she is not in control of anything. Angie adds: “All I have to do is trust and obey God in everything.”

For God so loved the world, that He gave His only begotten Son, that whosoever believes in Him should not perish, but have everlasting life.

John 3:16

Angie says this verse reminds her of just how much God loves us.

Phyllis Cothron

Phyllis Cothron gave us these verses for this issue.

Rejoice always, pray  continually, give thanks in all circumstances, for this is God’s will in Christ Jesus.

1 Thessalonians 5: 16-18

Phyllis says this verse is one of her favorite verses because no matter what she is faced with in life, it’s God’s will, and she knows “it’s going to be ok.”

Trust in the Lord with all your heart.

Proverbs 3:5

She says she knows whatever the situation is, if she has faith that “it’s going to be alright.”

Let all that you do be done with love.

1 Corinthians 16:14

Phyllis explains: “if you do everything (actions, thoughts and words) with love, it will shine on to others.”

Amber Fee

Amber Fee supplied a verse that reminds her that she is “not in control.” She reminds us that “God has everything handled, and she does not need to worry.”

The Lord will fight for you; you need only to be still.

Exodus 14:14

CLOSING OBSERVATIONS

EPA And States Tackle Climate Change With Focus On Environmental Justice

Last year, President Biden signed a funding bill into law that delivered on his administration’s commitment to addressing the climate crisis. The $1.2 trillion Infrastructure Investment and Jobs Act dedicated a “record-setting level of infrastructure funding,” as Law360 described the $43 billion dedicated to state water infrastructure projects. The Environmental Protection Agency (EPA) is working with state leaders to manage the funding, which will be distributed through the Clean Water and Drinking Water State Revolving Funds (DWSRF).

In March, EPA Office of Water Assistant Administrator Radhika Fox provided guidance to the agency’s regional water division directors and those managing the states’ revolving fund programs. Ms. Fox outlined how the grants will be awarded and the requirements for states to access all available funding. One of the administration’s critical goals accompanying the funding is improving environmental justice. The funding law requires that 49% of funds flowing through the DWSRF and its Lead Service Line Replacement Funding “be provided as grants and forgivable loans to disadvantaged communities,” Law360 explained. It aligns with the Biden Administration’s Justice 40 Initiative, created “to deliver 40% of the overall benefits from federal investments in climate and clean energy to disadvantaged communities.”

Local governments are tasked with defining which communities have the greatest need to access all the available funding. As one state leader explained, each state will have different challenges and must determine how best to prioritize the needs and how much flexibility they will allow.

States like California and Colorado have signed memorandums of agreement with the EPA “to increase coordination of environmental justice initiatives.” Other states like Utah don’t have a formal agreement but have been working closely with the agency to establish a plan for the funding and meet the most significant needs first. States are also collaborating with the agency to help improve screening tools used to assess the impact of proposed projects and investments and track and measure the effect those projects will have on reducing pollution in target communities.

The funding has also allocated $5 billion to reduce people’s exposure to PFAS (pre- and polyfluoroalkyl substances) and other contaminants. Again, an essential aspect of the funding and initiatives is prioritizing the communities with the greatest needs and the fewest available resources to combat the pollutants and their risk to human safety. This includes expanding wastewater treatment services and creating new jobs for local residents. One example is a $7 million wastewater treatment plant that will expand services to a rural Wisconsin community and create 2,220 jobs.

Another resource the U.S. government has equipped states with is new state-level data on greenhouse gas emissions and sinks. It is updating a computer tool that will allow states to monitor their emissions and sink estimates so that they can work to reduce their greenhouse gas emissions. These collaborative efforts are necessary to achieve the administration’s goal of reducing greenhouse gas emissions by 50% below 2005 levels by 2030 to avert more severe climate changes.

Climate change is a subject all too many of our political leaders fail to address in a serious and dedicated manner. Some even ignore the issue because of the political power and influence of those who lobby against climate change efforts to combat climate change. Fortunately, there are some who are actively engaged in the climate change battle.

Source: Law360.com

OUR MONTHLY REMINDERS

If my people, who are called by my name, will humble themselves and pray and seek my face and turn from their wicked ways, then will I hear from heaven and will forgive their sin and will heal their land.

2 Chron 7:14

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

Edmund Burke

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

Isaiah 10:1-2

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

Martha Washington (1732 – 1802)

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

Louis Brandeis, 1937
U.S. Supreme Court Justice

Injustice anywhere is a threat to justice everywhere.

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

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

Martin Luther King, Jr.

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

Vincent Lombardi

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

Mark Twain (1835-1910)

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

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

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

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

Theodore Roosevelt Sr., December 16, 1877

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

Bryan Stevenson, 2019

Get in good trouble, necessary trouble, and help redeem the soul of America.

Rep. John Lewis speaking on the Edmund Pettus Bridge in Selma, Alabama, on March 1, 2020

Ours is not the struggle of one day, one week, or one year. Ours is not the struggle of one judicial appointment or presidential term. Ours is the struggle of a lifetime, or maybe even many lifetimes, and each one of us in every generation must do our part.

Rep. John Lewis on movement building in Across That Bridge: A Vision for Change and the Future of America

PARTING WORDS

My brother Billy Beasley was reelected to the Alabama State Senate on May 24. I am very proud of what Billy has accomplished as a member of the Legislature. He has faithfully served since 1998, first as a member of the House of Representatives and then in the Senate. During his recent race, I endorsed my brother by way of a letter. The letter tells lots about Billy. I include it below.

I have a personal interest in the outcome of the State Senate race in District 28.  Not only does it include my home county of Barbour, but my brother Billy is running for reelection.  I must admit that I am for Billy because he is my brother.  But even if we weren’t blood-kin, I would still be 100% for him and would support him in any way that I can.

Billy has been a most effective member of the Senate, having served two terms with a number of significant accomplishments, and most importantly, without a single mishap.  Billy has done a tremendous job for all parts of the Senate district and for all people in the district.

Billy is an extremely hard worker and he truly likes people.  He has been an effective member of the Senate and has represented all people in the counties making up the district.  There is one thing that I can guarantee and that is my brother will never embarrass the people in Senate District 28.  He is as solid and trustworthy as they come and I know that from having been his brother for lots of years.  I hope you and your family will join with me in this effort.

The counties in the district are all or parts of Macon, Barbour, Bullock, Henry, Houston and Russell.

Please support and vote for Billy on Tuesday.

God blessed me with Billy as my brother. I love and respect Billy. He has been a blessing to me and to lots of folks both in his drug store in Clayton and as a member of the Alabama Legislature. I hope nobody is offended by my including this personal matter in the Report. However, I wanted everybody to know about a representative who really cares for the people he serves. Billy Beasley is a “representative of the people” without question.  He is my brother and my “Hero!”