The Jere Beasley Report June 2024

CAPITOL OBSERVATIONS

The Legendary Judge Frank M. Johnson, Sr. 

This July will mark 25 years since the death of Judge Frank M. Johnson, Jr. It’s hard to believe that it has been that long. This man left a legacy in the battle for justice, equality, and fair dealing that is as good as it gets. He was a great American in every respect. 

A few years ago—when speaking to a group of college students at a university in Alabama, all of whom were seniors in a class of “exceptional students,” I asked if they knew who Judge Johnson was. I was shocked when only two of the students had even heard his name. Sadly, none of the other students knew who he was, nor what he had done in his role as a federal judge. This made me realize that we haven’t done a very good job of educating Alabamians about our state’s history. 

Judge Johnson’s story is one of courageous commitment to the principle of equal justice under the law. Judge Johnson—who spent his judicial career in Montgomery, Alabama’s federal courthouse—sat on the bench during the height of the Civil Rights movement in our country. 

During his tenure, Judge Johnson considered some of our nation’s most taxing issues. He sought to right some of our country’s most grievous wrongs. Judge Johnson presided over cases and controversies that included figures like Rosa Parks and Dr. Martin Luther King Jr., and lawyers like Fred Gray. Judge Johnson became a seminal figure in the Civil Rights Movement’s legal arena. It’s important for all Americans – especially young people – to know more about Judge Johnson. He was a great American and his story must be told. 

Judge Johnson, a native of Winston County (which famously opposed Alabama’s secession from the Union prior to the Civil War), had a fierce commitment to the rule of law. He detested bending the law for activism’s sake, and he held the law in too high a regard to be persuaded by public pressure to do so. Judge Johnson’s judicial philosophy bound him only to the rule of law. Judge Johnson said of himself, “I wasn’t hired to be a moral judge. I wasn’t hired to be a preacher or an evangelist. I’m hired to apply the law.” That stubborn, independent streak—which many attribute to his rearing in the “Free State of Winston”—made him ideal to sit on the bench in the federal courthouse that now bears his name during the height of the fight for racial equality.

After having served in World War II and working in private practice in Jasper, Judge Johnson was appointed by President Eisenhower to a seat on the United States District Court for the Middle District of Alabama in 1956. That same year, Judge Johnson would rule in favor of a young seamstress named Rosa Parks, ruling that Montgomery’s policy requiring black citizens to sit on the back of public buses was unconstitutional (citing the U.S. Supreme Court’s decision in Brown v. Board of Education which had been decided just two years prior). 

In 1961, Judge Johnson heard arguments by famed civil rights lawyer Fred Gray on behalf of his young client, John Lewis (who would later become a noted member of Congress), which resulted in an order by the Judge desegregating bus depots. That same year, Judge Johnson ordered the Ku Klux Klan and the Montgomery Police Department to cease their obstruction and violence against Freedom Riders who were protesting segregation on interstate buses traveling across the South. Judge Johnson’s rulings would lead to desegregation in public spaces throughout the Jim Crow South.

Perhaps Judge Johnson’s most notable ruling came in 1965 when he overturned an order by his law school classmate, Governor George Wallace, which would have prohibited the Selma to Montgomery March protesting Alabama’s suppression of Black voters. Judge Johnson ruled that those citizens had a legal right to protest. Some 25,000 people, led by Dr. Martin Luther King, made the 54-mile trek from Selma—across the Edmund Pettus Bridge—to the State Capital building in Montgomery.

In 1966, Judge Johnson ruled that the State of Alabama must allow African Americans to serve on juries. That same year he ruled that the state’s poll tax was unconstitutional. Time and ink won’t allow us to recount all the rulings that Judge Johnson made for the cause of racial justice and equity. Let it suffice to say Judge Johnson’s decisions and their affirmations by higher courts laid the legal predicate for the transformation of our state and nation in the area of civil rights. 

It should be noted that while most of us now find Judge Johnson’s rulings needed and virtuous, too many in his day did not. It’s easy to forget just how unpopular integration was at the time of Frank Johnson’s ascension to the federal court. Judge Johnson and his family were isolated from much of Montgomery society during his time in the Capital City. 

The Johnsons were ostracized from their church. Judge Johnson’s mother even had her house bombed in Montgomery by the Ku Klux Klan, who named Judge Johnson “the most hated man in Alabama.” The Johnson’s son was the subject of harassment and ridicule. The Johnsons had a cross burned in the front yard of their home. 

Governor Wallace—who was widely popular at the time—referred to Judge Johnson as an “integrating, scallawagging, carpetbagging liar.” Judge Johnson and his family paid an immense toll because of his commitment to the rule of law.

Judge Johnson would serve in the Middle District until 1979, when he was elevated to the Firth Circuit Court of Appeals and later—upon its creation—the Eleventh Circuit Court of Appeals, where he would remain until his death on July 23, 1999.

Judge Frank Johnson deserves to be remembered because of his unwavering commitment to the rule of law, even when it was unpopular, and even when it threatened his life and the lives of his family. Having known this man, I don’t believe Judge Johnson would want us to remember him as a civil rights icon. Instead, he would want us to remember him as a man who did what he was asked—even if it was very difficult and unpopular during that time – and that he upheld the Rule of Law. 

When contemplating some of his more controversial civil rights decisions, Judge Johnson said in an interview:

“I don’t consider having, quote, ‘stuck my neck out,’ … I value the decisions that I’ve made and the effect of those decisions. I did it not for my benefit… I did it to decide the issues that were presented to me in legal cases that came up routinely through the system. My oath as a United States judge required that I decide cases like I think the law requires it to be decided. So, technically you had no option if you are going to be a good judge. You do what you agreed to do.”

So, as we pause to remember Judge Johnson, join me in being thankful that he was a good man and a good judge, and that he did what he agreed to do as a Judge. Judge Johnson followed and upheld the Rule of Law. He remained committed to doing so throughout his illustrious career. Without any doubt, that took total commitment and courage. Thankfully, Judge Johnson’s life and service benefited all of us. 

TALC LITIGATION

J&J Ordered to Pay $260 Million in Latest Talc Trial

Johnson & Johnson (J&J) has been ordered to pay $260 million to an Oregon woman who developed mesothelioma, a deadly cancer linked to asbestos exposure, from inhaling the company’s talc powder. The verdict was returned by a jury in the 4th Judicial District Circuit Court in Portland. The plaintiff, Kyung Lee, was diagnosed with mesothelioma at age 48 and alleged that she inhaled asbestos-tainted talc for more than 30 years. The award includes $60 million in compensatory damages and $200 million in punitive damages, covering both the plaintiff and her husband.

This is an extremely important development in the overall talc litigation. It will have an effect on both J&J’s weak settlement efforts and its 3^rd fraudulent bankruptcy ploy. The jury found that J&J was directly liable for the Lees’ injuries.  The direct liability of a parent company cannot be released through a bankruptcy of a sham subsidiary, one more reason that any further bad faith bankruptcy filings by J&J are intended not as an effort at settlement but to delay and deny victims their rights.

Currently, J&J faces lawsuits from over 61,000 plaintiffs related to talc, primarily from women with ovarian cancer. It will be interesting to see how J&J reacts to this verdict. There will be more trials this year that J&J will have to face.

Class Action Lawsuit Filed Against Johnson & Johnson Alleging Series of Fraudulent Transfers by Johnson & Johnson in Talc Litigation 

Beasley Allen has joined with other law firms in the filing of a class action lawsuit against Johnson & Johnson (J&J). Plaintiffs are women who had previously filed lawsuits against J&J for damages caused by its defective talc products. The lawsuit, filed in U.S. District Court in New Jersey, was filed prior to the talc verdict in Oregon that is referenced above. That verdict will have a tremendous positive effect on the ongoing litigation.

J&J has engaged in a series of fraudulent maneuvers designed to prevent cancer victims and their families from receiving fair compensation for their health-related claims.   Our lawsuit alleges four specific mileposts in Johnson & Johnson’s fraudulent strategy:

• The creation in 2021 of a subsidiary known as LTL Management through a divisive merger or “Texas Two-Step” to assume all talc-related liabilities. LTL then sought bankruptcy protection. Twice, that legal strategy failed and dismissed by the court.

• The transfer of corporate assets from an existing consumer health division into a new entity known as Kenvue. This spinoff, formed in 2022, sought to create an additional, unlawful shield for J&J assets from litigation liability. In a recent case involving Johnson & Johnson talc- and mesothelioma-related claims, a jury in Chicago held Kenvue liable, among others.

• After the failure of the first LTL bankruptcy attempt, J&J replaced the previous $61.5 billion funding agreement with one capped at $29.9 billion, a transaction done without LTL receiving equivalent value in return.

• The second bankruptcy attempt also failed and was dismissed by the court. 

These fraudulent steps by J&J wrongfully used the bankruptcy courts to limit liability for talc claims. This resulted in delays of scheduled trials to the class for more than two years. The company is now attempting to pursue a “pre-packaged” bankruptcy in a third attempt to reduce liabilities.

Let’s take a look at some of the facts and then consider what J&J is attempting to do. 

• J&J officials previously said that cancer claims other than ovarian cancer and mesothelioma were worthless. Now the company promises minimal payments for these “worthless” claims in exchange for a “yes” vote in the latest bankruptcy ploy. 

• J&J is offering small payments to receive support for a payment plan that would force actual victims to receive far less compensation than they deserve. 

• Medical costs for treating ovarian cancer can total more than $1.5 million per patient, with an average near $220,000. The proposal by J&J would pay pennies on the dollar. 

• Many of the new complaints are about types of cancer that science hasn’t linked to talc, like cancer of the cervix, vagina, uterus, and the lining of the uterus. 

• If J&J gets away with this plan, it could lead other companies to try dodging responsibility and messing with the U.S. bankruptcy system in a similar way. 

So, consider that J&J has tried twice to transfer all its talc-related legal issues to one of its smaller companies and then declare that company bankrupt. Both times, the courts have found that the company acted in bad faith. This will be the third bankruptcy attempt in three years. 

With the strategy they called “pre-pack,” J&J would need to get the okay from at least 75% of the people who have filed claims against them, proving those claims are legitimate. Beasley Allen’s Leigh O’Dell, co-lead counsel for the federal MDL, says: 

It seems unlikely that J&J would pursue this course without some belief even if misplaced, that the 75% threshold can be achieved. The company is afraid of a legitimate vote among those who are truly sick and the families of the deceased who have been battling J&J’s obstruction and bad faith for years and who are supported by numerous scientific studies showing that talc contains asbestos and other known cancer-causing ingredients.

The plaintiffs in the proposed class are represented by our firm along with the law firms of Ashcraft & Gerel LLP, Bailey Glasser LLP, Burns Charest LLP, Golomb Legal, and Levin Papantonio Rafferty. 

We will not stop fighting to get our clients the justice they deserve. Mike Papantonio had this to say: 

Johnson & Johnson is playing a dark game of chess with this country’s financial and judicial systems. With a net worth of nearly $400 billion, this corporation has deliberately manipulated assets to sidestep its obligations to ovarian cancer victims and in so doing has robbed them of true and rightful justice. 

Andy Birchfield from our firm adds: 

The bad faith that the courts found in ruling against J&J in the two previous bankruptcies applies to every action the company has taken during the past three years.  The individuals bringing this class action are shining a bright light on the entire series of dubious, unlawful and hypocritical ploys J&J has been following, and they’re saying enough is enough.

Reliable and consistent scientific studies show that regular exposure to talc increases the risk of ovarian cancer. Despite denials by J&J, it’s been shown that J&J’s talc also contains asbestos. Asbestos causes mesothelioma and ovarian cancer, both of which are often fatal. J&J was aware that its product contained asbestos, but the company continued to sell it for another 50 years. 

Michelle Parfitt, a lawyer with Ashcraft Gerel, who is also co-counsel in the MDL, observes: 

As the scientific record grows even stronger, J&J’s repeated denials of the dangers of genital talc use, attempts to shirk the company’s responsibility to cancer victims and abuse of the bankruptcy system become even more egregious and tragic.

The defendants in the proposed class action include both J&J corporate entities and individual executives, including J&J Chief Executive Officer Joaquin Duato and Kenvue Chief Executive Officer Thibaut Mongon.

The case is Murphy et al. v. LTL Management Inc. et al., Case No. 3:24-cv-06320 filed in the U.S. District Court for the District of New Jersey.

Johnson & Johnson Third Fraudulent Bankruptcy Attempt 

It’s necessary to discuss in more detail Johnson & Johnson’s latest plan to use the bankruptcy courts.  J&J’s plan is to solicit votes for a third bankruptcy. Note that this is a solicitation for a vote in favor of a bankruptcy plan yet to be filed.  

Just like the first two failed bankruptcy attempts, the $6 billion proposed bankruptcy plan is being publicized by J&J as a “settlement.” But it’s far from that– a settlement involves good faith negotiation and agreement from both sides. What J&J is attempting is no settlement. This is yet another attempt to abuse the bankruptcy system and deprive ovarian cancer claimants of their constitutional right to a jury trial.

Just as before, Beasley Allen and other law firms representing J&J victims strongly oppose this plan. J&J’s 3^rd bankruptcy ploy again proposes resolving legitimate cases for pennies on the dollar.  J&J is trying to reach a 75% voting threshold by including cases of cancers not supported by the science or MDL experts. Essentially J&J is offering those claimants a small award in exchange for a “yes” vote. 

It’s clear that Johnson & Johnson is not in financial distress. In fact, it’s an extremely wealthy corporation. The Third Circuit Court of Appeals and the New Jersey bankruptcy court dismissed each of the prior two bankruptcies on that basis, finding that J&J was not entitled to bankruptcy protection, and that the bankruptcies were not filed in good faith. We believe that any bankruptcy based on this solicitation and vote will be found fraudulent and in bad faith under the Bankruptcy Code.  

Beasley Allen will continue to resist J&J’s efforts to undermine these claims. J&J’s constant attempts at coercion and intimidation have not and will not cause Beasley Allen lawyers to lose their resolve and accept far less than fair and reasonable offers for our clients. We are in this battle to the end!

A New Study Destroys J&J’s Claims And Legal Defense 

Recent research from the National Institutes of Health (NIH) shows a link between talc powder use on the genitals and ovarian cancer, particularly with frequent or long-term use. This study reported last month supports the validity of over 50,000 lawsuits against Johnson & Johnson (J&J), alleging that their talc-based baby powder causes ovarian cancer. 

Despite its own knowledge of the association, J&J still claims that their talc products are safe and asbestos-free. This is despite all the evidence in its possession dating back to the 1970s. 

The study’s findings challenge the safety of talc products and suggest that women should reconsider their use, particularly due to the lack of medical necessity and the potential for talc to cause inflammation, which is linked to cancer development. 

The research also touches on societal pressures that have influenced women’s use of talc products for genital hygiene, despite health experts advising against it. J&J will not be able to deny the validity findings of the NIH study. 

Beasley Allen Talc Litigation Team

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

Beasley Allen lawyers Leigh O’Dell and Ted Meadows head our Talc Ovarian Cancer Litigation Team. They have been directly involved in all phases of the talc litigation from the beginning. It has been a tough battle, but a critically important and necessary one. The team handles claims of ovarian cancer linked to talcum powder cases. Several key team members continue to focus on Johnson & Johnson’s blatant abuse of the bankruptcy system. That battle is not over. The team continues to fight for our clients in an effort to see that they obtain justice. 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 Achtemeier, Jennifer Emmel, Lauren James, James Lampkin, Caty O’Quinn,  Cristina Rodriguez, Brittany Scott, Charlie Stern, Will Sutto and Matt Teague.

The Opioid Litigation

Alabama Opioid Litigation Update: A Path Toward Healing and Accountability

In recent years, Alabama has been at the forefront of a nationwide battle against opioid distributors and manufacturers, seeking justice and reparations for the devastation wrought by the opioid crisis. The state’s legal efforts have culminated in several landmark settlements, marking significant progress in the fight against opioid addiction and its consequences.

Historic Settlements

The most recent victory came on March 4, 2024, when Alabama Attorney General Steve Marshall finalized a $220 million settlement with two of the “Big Three” opioid distributors, Cardinal Health and Cencora (formerly AmerisourceBergen). This settlement is a testament to Alabama’s commitment to holding those who have contributed to the opioid epidemic accountable.

The settlement agreement stipulates that Cardinal and Cencora will pay the sum over ten years, with the funds earmarked exclusively for opioid abatement efforts within the state. This ensures that the resources will directly address the harm caused by opioid abuse and support the communities most affected.

A Comprehensive Approach

Previous settlements have laid the groundwork for a comprehensive approach to tackling the opioid crisis. Previous settlement agreements with McKesson, Johnson & Johnson, McKinsey Teva, Allergan, CVS, and Walgreens, will bring $500 million to Alabama’s coffers. These settlements also mandated significant injunctive relief measures, such as prohibiting opioid marketing and enhancing systems to prevent drug misuse and requiring that all settlement money be spent on opioid abatement, such as funding Opioid Use Disorder treatment.

Looking Ahead

As Alabama continues to navigate the aftermath of the opioid crisis, the focus remains on healing and prevention. The Alabama Opioid Overdose and Addiction Council is diligently working to identify the state’s most pressing needs and implement long-term strategies for recovery and abatement.

The settlements represent more than just financial compensation; they signify a broader commitment to rectifying past wrongs and safeguarding the future. With substantial funds now available, Alabama is poised to make meaningful strides in combating opioid addiction and supporting its citizens on the path to recovery.

The Alabama opioid litigation has set a precedent for accountability and provided a blueprint for other states grappling with similar crises. As the state legislature deliberates on the optimal allocation of the settlement funds, there is a collective hope that these efforts will yield a brighter, healthier future for all Alabamians.

Amneal Reaches $270 Million Settlement Involving Opioid Epidemic Claims

Amneal Pharmaceuticals has agreed to a settlement valued at over $270 million to resolve claims it fueled the deadly U.S. opioid epidemic. The drugmaker reached an agreement to pay $92.5 million in cash and provide $180 million worth of naloxone nasal spray, an overdose treatment medication to settle the claims.

If approved, the nationwide settlement would be payable over 10 years, and it would resolve nearly all the 900+ opioid-related lawsuits against Amneal. 

The settlement adds to the more than $51 billion to date that drug companies have agreed to pay to resolve lawsuits and investigations over their roles in the opioid addiction and overdose crisis that has killed nearly 645,000 Americans from 1999 to 2021.

State attorneys general accused Amneal of failing to monitor and report suspicious orders by customers of its generic opioid medications. The company sold nearly 9 billion opioid pills from 2006 to 2019.

New York Attorney General Letitia James said Amneal became a pharmaceutical giant by profiting off illegitimate and dangerous opioid sales. She stated the settlement would provide funding and resources to address the epidemic and help those suffering from addiction.

Source: Reuters

CAMP LEJEUNE LITIGATION

Camp Lejeune Justice Act (CLJA) Deadline is Fast Approaching

The Camp Lejeune Justice Act (CLJA) stands as a critical piece of legislation, providing compensation and support to individuals affected by toxic exposure at Camp Lejeune. As we near the filing deadline, it’s important to highlight some key points/updates for our readers.

Deadline and Eligibility

As most are aware, the CLJA imposes a crucial deadline: claimants must submit their administrative claims by August 10, 2024. However, compliance with proper presentment of the claim is equally crucial. The Department of the Navy will rigorously review each claim to ensure adherence to specific requirements. Even if submitted before the deadline, failure to meet these criteria could result in the rejection of the claim.

We have observed many claims rejected by other firms because the individuals did not have one of the presumptive injuries established by the Department of Veterans Affairs. However, it’s essential to recognize that eligibility extends beyond this ‘presumptive conditions’ list.  While the presumptive list highlights specific conditions the VA presumes to be service-connected to Camp Lejeune toxic water, the CLJA does not maintain an absolute or definitive injury list. Instead, it offers an opportunity for recovery related to any health issues stemming from exposure to Camp Lejeune toxins. Conducting a thorough review of each claim and assessing the individual’s health conditions is crucial to determine whether exposure to any of the toxins at Camp Lejeune is at least as likely a cause of the condition as any other factor – which is the burden of proof under the CLJA.

CLJA Claims Management Portal

In April, the Navy launched the CLJA claims portal. This centralized platform houses all submitted claims, including those migrated from before the portal’s launch. Claimants can access their records, upload substantiation documents, and stay informed about updates. The Navy continues to enhance the portal’s functionality and provide additional guidance on claim management.

Elective Option (EO) Settlements

The Elective Option (EO) has been held out as a settlement program that would streamline and expedite claim review and compensation; however, as of yet, we have not seen this materialize.  Only a handful of offers under the EO have been made, and a majority of those offers have been rejected by claimants.  If you have clients potentially interested in an EO settlement, we encourage you to review the qualifications of the program carefully and fully assess whether it may be advisable for your client or not.

• Qualification: Limited to specific injuries.  Must have a pending administrative claim.  Claimant’s condition must also have been diagnosed or treated within 35 years of their last exposure to Camp Lejeune.

• Payment Structure: The EO provides a settlement grid that offers a range of compensation based on the level of the injury and the actual duration of exposure.  We expect this framework will be built upon for admin claims.

• Important Note: Claimants can only recover for one qualifying condition under this program and must release the government from all related claims.  

Current Status

  The Department of the Navy has received approximately 227,309 administrative claims. Although it has stated that it intends to review all CLJA claims and extend settlement offers to eligible claimants, virtually no administrative claims have been settled. While the Navy claims its current focus lies on EO claims, as of last month, only 36 claims had been resolved through EO settlement offers.  At Beasley Allen, we are not taking a “wait and see” approach to the Navy’s promise to review claims.  Rather, we are actively preparing administrative claims for filing into the E.D. of North Carolina (EDNC).

The EDNC is continuing to coordinate discovery and trials based on different illness “tracks.”  Back in February, the court granted the Department of Justice’s motion to strike plaintiffs’ jury demands – finding the CLJA does not contain a right to a jury trial.  Recently, the court denied plaintiffs’ request to appeal, advising it would be pressing forward with Track I trials later this year and if plaintiffs did not like the outcome, they could then appeal the issue of whether they were entitled to a jury trial.

Next Steps

If you haven’t filed an administrative claim and have questions or need guidance, please feel free to reach out.  We have a very knowledgeable team and are happy to work with you on claim review, substantiation, and filing.

Camp Lejeune Litigation: Court Denies Appeal for Jury Trials

The U.S. District Court for the Eastern District of North Carolina has denied service members’ attempt to appeal an order that struck down their bid for jury trials in the Camp Lejeune water contamination litigation.

In February, the court ruled against the plaintiffs’ bid for a jury trial – finding that the Camp Lejeune Justice Act (CLJA) does not “unequivocally, affirmatively, and unambiguously” provide plaintiffs the right to a jury trial.  This is despite the CLJA expressly providing that nothing in the Act “shall impair the right of any party to a trial by jury.”

The plaintiffs sought to certify the decision for immediate appellate review, arguing that such an appeal is warranted because the court wrongly held that the statute does not authorize jury trials and that the matter involves “a novel and difficult issue of first impression.”

A four-judge panel acknowledged that the issue of jury trials was a new issue of first impression due to the recent enactment of the CLJA. However, they disagreed that it was a novel issue and deemed there to be insufficient grounds for an interlocutory appeal – which they emphasized was discretionary. 

The court advised in its Order that it is prepared to proceed expeditiously with bench trials and that if either party is unhappy with the result, the party can appeal.  As part of the appeal, the court noted that plaintiffs will have the opportunity to challenge the court’s ruling on jury trials.  If it is determined on appeal the court’s decision was incorrect on the right to a jury under the CLJA, the court can still hold a jury trial on remand.  In the meantime, the court assured the parties that it would have heard and disposed of ‘countless’ cases under the CLJA.

This litigation involves approximately 1,800 filed cases, and more than 200,000 filed administrative claims that have yet to be reviewed and acted upon by the Department of the Navy. The CLJA was passed to provide justice to those individuals.  We believe a right to a jury trial is at the core of that justice. 

The Department of Justice’s (DOJ) efforts to strike this right to a jury is an effort to insulate the government and evade responsibility for the suffering endured by Camp Lejeune victims.  Additionally, it stands to subject plaintiffs to massive costs and delays for having to re-try cases to juries if the Court of Appeals ultimately reverses.  This may be something the DOJ is betting plaintiffs will take into account when deciding whether to resolve at the administration claim stage, file suit, and/or appeal an inadequate award.

U.S. District Judges Richard E. Myers II, Terrence W. Boyle, Louise W. Flanagan and James C. Dever III sat on the panel for the Eastern District of North Carolina.

The case is In Re: Camp Lejeune Water Litigation, case number 7:23-cv-897, in the U.S. District Court for the Eastern District of North Carolina.

Camp Lejeune Litigation Team 

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

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

SOCIAL MEDIA LITIGATION

An Update On The Social Media Litigation

There are several important updates in the Social Media Addiction/Personal Injury and School District Product Liability multidistrict litigation (MDL) as well as in the Judicial Council Coordination Proceedings (JCCP). The litigation is against the world’s largest social media platforms including defendants Meta (Facebook and Instagram), Snapchat, TikTok, and YouTube. 

The Bellwether process in the litigation continues to proceed. The comprehensive Bellwether program is designed to test and evaluate liability and damages for both personal injury and school district cases in the MDL and JCCP. 

The MDL recently selected personal injury and school district Bellwether cases. Plaintiffs and defendants each submitted six personal injury and six school district cases, bringing the Bellwether pool to twelve for each type of case. The MDL Court accepted the parties’ proposals as generally representative, and discovery into these cases will begin immediately.

In a recent case management conference, the JCCP Judge determined that the Bellwether trial pool for the personal injury cases would consist of 10-12 plaintiffs, randomly selected from categories set by the parties and the court. The JCCP is scheduled to make the random selection in the middle of this month. The parties continue to meet and confer regarding the school district Bellwether trial pool in the JCCP. We expect updates very soon. 

Both the MDL and JCCP recently heard arguments on motions by defendants in the school district cases that are asserting nuisance and negligence claims. In the JCCP, the court selected four districts from California, Florida, Rhode Island, and Washington, which the defendants demurred against (akin to a federal motion to dismiss). In the MDL, the court is analyzing 19 states in defendants’ motions. We expect decisions from both courts in the near term. 

The MDL is located in the Northern District of California, Oakland Division. There are currently 243 personal injury cases filed, 157 school district cases, 9 local government plaintiffs, and 3 complaints filed by a total of 35 state attorneys general. Beasley Allen’s Joseph VanZandt is a member of the Plaintiff Steering Committee in the MDL. 

The JCCP is in the Superior Court of California in Los Angeles. Joseph was appointed co-lead in the JCCP. There are currently 741 personal injury plaintiffs in the JCCP, along with 617 school districts from 34 different states, 6 local government plaintiffs, and 3 tribe plaintiffs. 

The first personal injury trial is estimated to begin in June 2025. The first school district trial has not yet been scheduled.  As both venues move forward, Joseph says we can anticipate more trial dates to be set for both personal injury cases and school district cases in the MDL and in the JCCP.  We will keep our readers updated as significant developments occur. 

Meta’s Attempt to Dismiss Child Abuse Lawsuit In New Mexico Fails

In a significant legal development, a New Mexico state judge, Bryan Biedscheid, has ruled against social media company Meta Platforms Inc. (formerly known as Facebook) in a lawsuit related to child sexual exploitation on its platforms. The New Mexico Attorney General’s office hailed this decision as a victory in the state’s litigation against Meta.

These are the key points:

• Lawsuit Context: The lawsuit alleges that Meta allowed sexual predators to abuse children on Facebook and Instagram.
• Section 230 Immunity: Meta had claimed immunity under Section 230 of the Communications Decency Act, which shields website operators from liability for content posted by third parties. However, Judge Biedscheid rejected this argument, emphasizing that Meta can be held accountable for the content shared by its users.
• Social Media Giants on Notice: New Mexico Attorney General Raúl Torrez stated that this ruling should serve as a warning to other social media giants. For years, Meta had evaded legal challenges, but this case marks a turning point.

The state’s lawsuit was filed in December after an investigation by the attorney general’s office. Officials created accounts on Facebook and Instagram to assess the prevalence of child abuse content. Artificial intelligence was used to generate images of children, which were then shared with adult users to gauge the platforms’ response.

This decision has implications beyond New Mexico, holding social media companies accountable for their role in preventing child sexual exploitation. It definitely affects cases filed by Beasley Allen lawyers.

New Mexico is represented by Raúl Torrez, James W. Grayson and Serena R. Wheaton of the New Mexico Attorney General’s Office, and Linda Singer and David I. Ackerman of Motley Rice LLC.

The case is State of New Mexico v. Meta Platforms Inc. et al., case number D-101-CV-2023-02838, in the First Judicial District Court of New Mexico.

Source: Law360

Zuckerberg Seeks Dismissal Of Personal Liability Claims In Meta MDL 

Mark Zuckerberg, the founder of Facebook, is trying his best to get out of the multidistrict litigation (MDL). He filed a motion to dismiss in the California federal court requesting the dismissal of claims against him in the MDL. The litigation involves claims that social media platforms are designed to be addictive, negatively affecting the mental health of minors. 

Zuckerberg’s position as CEO of Meta Platforms Inc. does not inherently sustain the plaintiffs’ claims, which are based on omissions rather than the direct or active participation in wrongdoing required for corporate-officer liability under the laws of the 13 states involved. Thus far, it has not been demonstrated that Zuckerberg took any affirmative actions that would render him personally liable for fraudulent and negligent concealment.

While the MDL includes hundreds of claims, only 25 suits specifically target Zuckerberg for Meta’s misconduct. In April, these claims were dismissed by U.S. District Judge Yvonne Gonzalez Rogers. The plaintiffs were permitted by the judge to file a consolidated addendum on corporate officer liability.

In Zuckerberg’s motion to dismiss he contends that the addendum fails to provide evidence of affirmative conduct on his part, which is necessary to support the claims. He maintains that being the “guiding spirit” of Meta or being involved in business decisions fails to meet the legal standard for personal liability.

The personal injury plaintiffs are represented by Lexi Joy Hazam of Lieff Cabraser Heimann & Bernstein LLP, and Previn Warren of Motley Rice LLC.

The case is In re: Social Media Adolescent Addiction/Personal Injury Products Liability Litigation, case number 4:22-md-03047, in the U.S. District Court for the Northern District of California.

TikTok And YouTube Ordered To Disclose European Privacy Data

In a California federal court, Magistrate Judge Peter H. Kang has ordered TikTok and YouTube to provide American plaintiffs with technical documents related to safety features implemented in Europe and Australia. This is part of a multidistrict litigation (MDL) concerning claims that social media platforms are designed to be addictive, affecting minors’ mental health and well-being.

During a discovery dispute, the plaintiffs sought documents from TikTok and ByteDance Ltd. about platform design and knowledge of risks, including safer designs used in regions with stricter privacy laws. Similarly, they requested documents from YouTube and Google LLC about features in Europe and Australia.

The tech companies opposed these requests, arguing that the data was irrelevant to the U.S. plaintiffs’ claims and that complying would be burdensome. However, the plaintiffs’ lawyers argued that the data is crucial to their case, suggesting that the companies knowingly designed addictive products.

Judge Kang was not persuaded by the companies’ arguments and ruled that the plaintiffs were entitled to specific technical documents. He instructed the plaintiffs to narrow their requests to relevant documents from France for TikTok and from Europe, the UK, and Australia for YouTube.

Additionally, Judge Kang set limits on the time frame for the plaintiffs’ discovery requests and addressed a separate dispute regarding Meta’s corporate testimony method. He expressed disappointment with the parties’ ineffective dispute resolution efforts and urged better communication.

The discovery hearing follows a recent oral argument before U.S. District Judge Yvonne Gonzalez Rogers on a motion to dismiss claims by school districts and local governments. Judge Gonzalez Rogers also considered Meta’s request to dismiss claims by state attorneys general and a personal liability claim against Meta CEO Mark Zuckerberg.

The first bellwether trials are scheduled for October 2025, with the next case management conference set for June 21 and a discovery hearing on June 20.

Source: Law360

The Beasley Allen Social Media Litigation Teams

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

Social Media Personal Injury Team

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

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

Social Media Attorney General Litigation Team

The Attorney General and non-personal injury aspects of the Social Media Litigation are handled at Beasley Allen by lawyers in our Consumer Fraud & Commercial Litigation Section, Ali Hawthorne, Rebecca Gilliland and Zina Nour. 

MOTOR VEHICLE & TRUCKING LITIGATION

Dangerous Trucks On Our Highways Create Safety Hazards

The U.S. Census reports that there are over 3.5 million heavy truck drivers in the United States. Our fast-paced, results-driven society mandates the need for efficient shipping and product movement, but this efficiency does not come without a price. Heavy trucks pose a heightened danger to other drivers on our highways primarily due to the staggering size and weight of both the trucks themselves and the freight being transported. Inadequate driver training and failure to follow proper protocol add greatly to this inherent danger. All too often, companies allow their drivers to haul freight with little to no training. The inherent danger associated with heavy trucks leads to an absolute necessity that drivers are properly trained and are required to follow protocols such as taking required breaks to rest. 

The U.S. Department of Transportation reported that in 2021, 5,788 people were killed in wrecks involving heavy trucks. This number is unacceptable and must change. Our highways are made unsafe because of dangerous trucks driven by dangerous drivers. Every year, innocent persons are injured and killed by wrecks involving heavy trucks. It is absolutely necessary that the trucking industry be monitored and regulated to ensure safe travel for all. As warmer weather approaches, more and more families will embark on summer travel. Our highways will see countless vehicles every day – unfortunately, this means that heavy trucks will be mixed in right next to traveling families and other heavy trucks alike. 

New U.S. Safety Regulations To Mandate Enhanced Automatic Braking Systems

The National Highway Traffic Safety Administration (NHTSA) is implementing new regulations to combat the rise in distracted driving and pedestrian fatalities. By September 2029, new cars in the U.S. must have advanced automatic emergency braking (AEB) systems that can prevent crashes and pedestrian impacts at higher speeds and function in both day and night conditions. 

These enhanced AEB systems, which are already standard on most new vehicles due to a 2016 voluntary agreement by automakers, primarily prevent rear-end collisions by using sensors to detect obstacles and apply brakes automatically if the driver doesn’t react in time. 

AEB systems may not always prevent a crash, but they can significantly reduce the impact’s severity. The Insurance Institute for Highway Safety’s (IIHS) research indicates that AEB systems have cut the rate of rear-end collisions by roughly 50% and, with pedestrian detection, have decreased the risk of pedestrian injuries by 30%. 

Despite the prevalence of AEB, pedestrian and bicyclist deaths have significantly increased since 2009. Pedestrian fatalities have surged by 83%, and bicyclist deaths have risen by 75% in the same timeframe, as reported by the IIHS.

Source: CNN

 Importance Of Open Record Requests In Trucking Cases

Obtaining documents through open records requests is vital in any personal injury case. These records help with a wide range of issues, including initial fact investigation, proving liability, and establishing damages. Trucking cases are no different and actually provide prudent litigators with an opportunity to obtain more material documents than are otherwise available in a typical motor vehicle wreck.

Commercial motor vehicles pose a significant danger to the motoring public if they are not properly operated. This is because commercial motor vehicles weigh substantially more than a passenger car (anywhere from 10,000 to 80,000 lbs.), are substantially taller than a passenger car (nearly 13.5 ft.), and are substantially less responsive than a passenger car (meaning that braking, turning, and other evasive maneuvers simply take more time). 

Unsurprisingly, commercial motor carriers are heavily regulated due to the increased risk that their trucks pose to the public. Increased regulation means carriers must generate and retain specific documents that pertain to safety. This is where open records requests prove crucial.

Requests should go to two separate entities – the Federal Motor Carrier Safety Administration and the applicable state agency (in Georgia, this agency is the Motor Carrier Compliance Division of the Georgia Department of Public Safety). The request should target the following documents:

• The carrier’s Complete Safety Profile, including any inspection, crash reports, and results of any reviews or enforcement actions involving the carrier.

• Copies of all correspondence received from or sent to the carrier.

• All case reports prepared by the agency concerning the carrier.

• All safety audits and/or compliance reviews conducted by the agency regarding the carrier.

• All insurance information on file for the carrier.

• All documents, reports, information, and/or data related to the carrier’s Behavior Analysis and Safety Improvement Category Scores (“BASIC”), Pre-Screening Program (“PSP”), and/or roadside inspection compliance.

• All documents, reports, information, and/or data related to the carrier’s driver’s BASIC Scores, PSP, and/or roadside inspection compliance.

While this is not an exhaustive list, it is an excellent starting point for launching a trucking case. The information provided in response could not only help establish a claim against the carrier’s driver but also prove direct liability against the carrier itself. 

Tesla Autopilot Investigation Escalates With U.S. Regulator’s Data Demands

Tesla Inc. is facing a July 1 deadline to provide the National Highway Traffic Safety Administration (NHTSA) with information regarding its largest-ever recall related to drivers crashing while using the Autopilot system. NHTSA is seeking data on the mileage accumulated by consumers using Tesla’s driver-assistance system and the frequency of warnings issued to drivers to keep their hands on the wheel before and after the company’s December recall.

NHTSA opened an investigation to determine whether Tesla’s over-the-air software update adequately prevented misuse, following 20 additional crashes that occurred in the months following the recall. If Tesla fails to respond promptly and comprehensively, it could face penalties of up to $27,168 per violation per day, with a maximum fine exceeding $135 million.

This information request by NHTSA is the latest development in the agency’s ongoing examination of Autopilot, which began in August 2021 after Tesla vehicles crashed into first-responder vehicles. The agency concluded that Tesla’s driver engagement methods were insufficient, and its system was too permissive, creating a “critical safety gap” between drivers’ expectations and Autopilot’s actual capabilities.

NHTSA has initiated more than 50 special crash investigations involving Tesla cars suspected of being linked to Autopilot, with the frequency of probes increasing under the Biden administration. Additionally, Tesla disclosed in January 2023 that it had received document requests from the Justice Department related to Autopilot. Reportedly, the Securities and Exchange Commission is investigating CEO Elon Musk’s role in shaping Tesla’s self-driving claims.

Source: Claims Journal

Tesla Must Face A Streamlined Lawsuit Over ‘Full Self-Driving’ Advertising Claims  

In a recent development, U.S. District Judge Rita F. Lin, a California federal judge, has ruled that Tesla must face fraud and negligence claims regarding the alleged misrepresentation of its vehicles’ self-driving capabilities. Judge Lin dismissed warranty claims and a claim for equitable injunctive relief but allowed the case to proceed based on two key allegations: that Tesla vehicles have the necessary hardware for full self-driving and that the vehicles would be capable of driving across the country autonomously within a year.

The plaintiff, Thomas LoSavio, stated that Tesla misled customers with claims of “Enhanced Autopilot” or “Full Self-Driving Capability,” which he contends are experimental and dangerous, and failed to deliver on promises of a fully autonomous vehicle. Tesla countered that LoSavio’s lawsuit was filed too late, beyond the applicable statutes of limitations.

Judge Lin found that LoSavio’s allegations were sufficiently detailed to proceed, particularly regarding Tesla’s claims about the hardware capabilities and CEO Elon Musk’s statements about cross-country self-driving potential. However, the judge dismissed claims related to vague future developments without a specific timeline.

This case highlights ongoing scrutiny over Tesla’s marketing of Autopilot and Full Self-Driving features, amid investigations by the National Highway Traffic Safety Administration (NHTSA) and recalls due to safety concerns. Tesla’s Autopilot system is considered a Level 2 advanced driver assistance system (ADAS), which requires the driver to remain alert and ready to take control at any time. 

The lawsuit accuses Tesla of using customers as testers for its ADAS features, despite reports of accidents and injuries. Tesla has conducted voluntary recalls to address software issues related to vehicle operation at intersections and driver monitoring systems.

The drivers are represented by Frank Pitre, Julie Fieber, Nabilah Hossain and Andrew Kirtley of Cotchett Pitre & McCarthy LLP, Francis A. Bottini Jr. of Bottini & Bottini Inc. and David S. Casey Jr., Gayle M. Blatt, Jeremy K. Robinson and P. Camille Guerra of Casey Gerry Schenk Francavilla Blatt & Penfield LLP.

The case is In re: Tesla Advanced Driver Assistance Systems Litigation, case number 3:22-cv-05240, in the U.S. District Court for the Northern District of California.

Source: Law360

NHTSA Is Investigating Zoox Autonomous Vehicles Following Incident Reports 

The U.S. National Highway Traffic Safety Administration (NHTSA) has initiated an investigation into Amazon.com’s autonomous Zoox vehicles following two rear-end collisions that caused injuries to motorcyclists, attributed to the vehicles’ unexpected braking.

NHTSA’s preliminary evaluation was launched in response to these incidents, which involved Zoox’s Self-Driving Technology and resulted in minor injuries. The investigation extends to 500 vehicles equipped with the Zoox Automated Driving System, all incidents involving a Toyota Highlander integrated with this system.

A representative from Zoox has acknowledged the receipt of the information request and emphasized the company’s dedication to transparency and regulatory cooperation, stating their commitment to addressing NHTSA’s inquiries.

NHTSA has also begun an investigation of Waymo, Alphabet Inc.’s autonomous vehicle branch, due to 22 reported incidents of traffic law violations or collisions involving their vehicles.

In March, Zoox announced its plans to broaden vehicle testing across California and Nevada, which would encompass a larger area, increased speed limits, and nighttime driving, in a bid to outpace Waymo’s robotaxis. Amazon took ownership of Zoox in 2020 with a $1.3 billion acquisition.

NHTSA has confirmed that both collisions occurred during the day and within the Zoox system’s operational parameters. The initial investigation verified that the Zoox vehicles had the Automated Driving System (ADS) activated prior to each collision.

The ongoing investigation will scrutinize the performance of the Zoox Automated Driving System, particularly in relation to the collisions, its conduct at crosswalks near pedestrians, and other similar scenarios involving rear-end collisions. In March 2023, NHTSA also commenced an investigation into Zoox’s self-certification of a robotaxi in 2022, which lacked conventional driving controls.

The pending investigation aims to ascertain if Zoox’s certification relied on independently developed testing procedures or if certain standards were deemed inapplicable due to the vehicle’s distinctive design.

Cruise Agrees TO Multi-Million Dollar Settlement With Woman Dragged By A Self-Driving Taxi

Cruise, a subsidiary of General Motors, has settled a lawsuit filed by a woman injured by one of its autonomous taxis. The incident occurred in San Francisco when the woman, hit by another vehicle, was subsequently dragged by the self-driving car for about 20 feet. Although initially stating the car braked to minimize impact, Cruise later admitted that a software error was involved. The woman suffered multiple injuries in the incident. 

The exact settlement details have not been disclosed but reportedly the amount was between $8 and $12 million. The incident led to the suspension of Cruise’s driverless operations by California’s DMV, amid allegations of misleading conduct and evidence withholding by Cruise. Cruise is now testing robotaxis in Arizona with a safety driver present. Hopefully, safety is Cruise’s priority as it works towards resuming driverless services.

Source: LA Times

Georgia Jury Awards $28 Million IN Trial Over Fatal Head-On Crash

A Gwinnett County (Georgia) State Court jury awarded $28 million in damages to the family of Mark Cohen, a 54-year-old man who died in a head-on collision in December 2021. The crash occurred when a vehicle driven by Mary Angela Bell crossed the center line of a roadway and struck Cohen’s minivan. The trial was solely on damages, and it focused on determining the value of Mark Cohen’s life. Ms. Bell, the defendant had already pleaded guilty to misdemeanor vehicular homicide and admitted fault for the collision in the civil case. The jury awarded $26.5 million for the full value of Cohen’s life and $1.5 million for his pre-collision emotional injuries. However, the jury declined to award damages for post-collision pain and suffering prior to his death at the crash scene.

During the damages trial, much of the proceedings centered on Mark Cohen’s personal relationships with family and friends and his involvement in activities such as scouting and outdoor pursuits. The plaintiffs’ lawyers sought roughly $77 million in damages, while the defendant’s lawyer argued that this amount was excessive and suggested a $3 million award instead.

Jeb Butler, who represents the plaintiffs, emphasized Mark Cohen’s kindness, empathy, and care for others, arguing that these qualities should increase the value of his life. In a statement following the verdict, Jeb expressed satisfaction with the outcome, stating they had a strong case and represented a great family.

The verdict brings closure to the civil case stemming from the tragic December 2021 crash, which resulted in Ms. Bell being sentenced to 12 months of probation and community service for her role in the collision.

Source: Claims Journal 

PRODUCT LIABILITY

Roof Crush Case Involving Crashworthiness Filed By Evan Allen 

Evan Allen, a lawyer in our Mobile office, recently filed a case against General Motors in the United States District Court for the Southern District of Mississippi. The case involves an April 2023 rollover accident that left Evan’s client paralyzed from the neck down.  The client was driving a 2004 Chevrolet Trailblazer on Highway 90 in Gautier, Mississippi when he lost control of the vehicle.  The vehicle rolled over in the accident sequence and the roof of the vehicle collapsed, leaving no occupant survival space.  

Despite traveling at a safe speed and wearing his seatbelt, the client will live the rest of his life without any mobility or use of his limbs due to the collapse of the vehicle’s weak roof structure.  The design and materials used in the vehicle were inadequate to withstand the expected forces in a rollover event, rendering the roof structure defective.  

The need for substantial roof structures is well known in the automotive industry.  As early as the 1970’s, NHTSA began undertaking measures to set requirements for roof strength.  Federal Motor Vehicle Safety Standard 216 aimed to address the need and set a benchmark for roof strength.  FMVSS 216 established roof strength requirements using a strength-to-weight ratio (SWR).  In the original 1973 standard, the SWR was set at 1.5, meaning that a vehicle’s roof must withstand 1.5 times the vehicle’s gross weight.  

Despite this standard dating back to the 1970’s, roof crush continued to plague the industry and underwent several amendments since its inception.  

In 2009, FMVSS 216a increased the SWR to 3.  In one study, researchers found that an increase in the roof strength by one unit of the SWR reduces the odds of a non-ejected occupant suffering a severe injury by about 14%.  Despite the SWR increase from 1.5 to 3, thousands of motorists are severely injured and killed each year due to roof crush.  

Although a step in the right direction, increasing the SWR requirement from 1.5 to 3 is inadequate to address the overwhelming need to maintain occupant survival space. With today’s technology, materials, and engineering practices, there is no excuse for a vehicle’s roof to collapse in foreseeable rollover accidents.  

Georgia Automobile Products Liability: Design Defects vs. Manufacturing Defects

Automakers, like any manufacturer, have a duty to make sure the products (vehicles) they are selling for a profit are safe. This principle is often referred to as “crashworthiness” and is mirrored in O.C.G.A. § 51-1- 11, which provides: 

A manufacturer of any personal property sold as new property directly or through a dealer or any other person shall be liable in tort, irrespective of privity, to any natural person who may use, consume, or reasonably be affected by the property and who suffers injury to his person or property because the property when sold by the manufacturer was not merchantable and reasonably suited to the use intended, and its condition when sold is the proximate cause of the injury sustained.

Typically, auto products liability cases fall within one or more of the following defect categories: 

• manufacturing defect,
• design defect, and 
• failure to warn. 

A manufacturing defect is an unintended flaw or abnormal condition that occurs during the assembly or production process, thereby making the product more dangerous than it would be if manufactured properly. Examples include airbags suddenly deploying or failing to deploy, sudden unintended acceleration, or brake failure that leads to injury. 

On the other hand, a design defect occurs prior to the product being mass produced for sale to the public and exists even if the product is assembled or manufactured properly. For example, unsafe gas tank locations, seat defects, and seat belt defects. 

Regardless of whether the case turns on a manufacturing defect, design defect, or failure to warn, the key in all products cases is determining whether there is a defect in the product itself. Thus, it is imperative that the product is preserved. 

Beasley Allen Lawyers have experience conducting inspections and research to determine whether more than one party is at fault. For example, third-party manufacturers, such as tire manufacturers, sell tires to vehicle manufacturers, who, in turn, use those tires.  

It should be noted that auto product defects are typically discovered following a vehicle accident. In those cases, there are two potential claims: one against the at-fault driver and one against the manufacturer of the defective product. Beasley Allen lawyers in our Personal Injury & Products Liability Section have the necessary experience and resources to assist in the pursuit of these claims. 

Importance Of Seat Back Strength And The Need For Heightened Standards

Automobile manufacturers are held to a set of standards called the Federal Motor Vehicle Safety Standards. These standards are issued by the National Highway Traffic Safety Administration (NHTSA) and are intended to protect the public by ensuring consistency in safety measures and devices across the industry. 

Rules are made to be followed. But what happens when those rules, even if followed, are not enough? 

Included in the safety devices regulated are vehicle seats, or more specifically, seat backs. Because rear collisions cause rearward occupant movement, extreme strain is placed on the upright backs of vehicle seats. This fact led to the development of testing and standards that are used to monitor seatback strength in passenger vehicles. 

When faced with failed seatbacks, automobile manufacturers have long relied on these tests and standards in arguing that their failed safety devices were, in fact, safe. Manufacturers point to the fact that their vehicles passed the NHTSA standards in arguing that the vehicles are safe. However, these standards are often outdated and grossly inadequate. In fact, automakers often are permitted to write the new rules to be adopted and applied to their own products. This practice allows manufacturers to draft self-serving, inadequate, budget-centric standards that do anything but protect the public from harm. 

A CBS News investigation led Congress in 2021 to order NHTSA to update their standards to require heightened seatback strength by the end of 2023. The Administration failed to do so, and Congress is continuing to push for heightened standards. This Congressional involvement confirms what we have known for years – that the standards put in place to regulate safety are simply not enough, and that even when followed, approved devices can and do fail. Manufacturers must be stopped from hiding behind inadequate standards and allowing unsafe vehicles to enter the market. 

Urgent Recall Alert: Honda Recalls Lawn Mowers And Pressure Washers Over Injury Risks 

American Honda Motor Co., Inc. has issued a recall for certain lawn mower and engine models due to a significant risk of injury. The recall, announced by the Consumer Product Safety Commission (CPSC), focuses on around 200 lawn mower replacement engines that may have camshafts produced incorrectly. This defect could cause the starter rope to retract unexpectedly when attempting to start the engine, posing a risk of injury to the user.

This recent action is separate from a larger recall in September 2023, which affected approximately 391,000 lawn mowers and pressure washer engines. These products were available at various retailers, including Honda Power Equipment dealers, Ace Hardware, Home Depot, Lowes, Northern Tool, and many farm, agricultural, and rental stores nationwide, from May 2022 through June 2023. Prices for these items ranged from $550 to $1,100.

The CPSC has documented a significant number of incidents related to this issue, with Honda receiving 2,966 reports of camshaft failures. This follows 2,197 incidents and 38 minor injuries reported in the September 2023 recall. These recurring problems emphasize the critical nature of the recall and the potential hazards posed by the faulty engines.

Customers with the affected products are urged to stop using them immediately and contact an authorized Honda Power Equipment dealer for a free inspection and repair to address the issue. Honda is actively working to ensure customer safety and address these concerns promptly. These are the affected products:

• Honda HRN216 and HRX217K6 lawn mowers
• GCV170/200 G5B general-purpose engines used in power washers and as lawn mower replacement engines

For further information or to report an incident, customers are encouraged to contact Honda’s toll-free number at 888-888-3139, available from 9 a.m. to 7:30 p.m. ET, Monday through Friday. 

Source: USA Today

AVIATION LITIGATION

FAA Limits 737 Max Output As Boeing Implements Crucial Safety Overhauls 

The FAA will maintain production limits on Boeing’s 737 Max jets while Boeing implements a comprehensive safety overhaul. This follows a midair incident in January with an Alaska Airlines flight. Boeing has presented a corrective action plan to address systemic safety and quality issues, as the FAA aims to ensure public safety through increased oversight.

In response to an FAA audit revealing non-compliance in manufacturing processes, Boeing’s Product Safety and Quality Plan also addresses concerns from an independent review panel about Boeing’s safety culture. The plan includes a formal safety management system, process improvements, defect reduction, and better training and communication.

FAA Administrator Mike Whitaker emphasized the need for Boeing to demonstrate a lasting commitment to safety and quality. The plan’s execution will be under FAA supervision, with Boeing slowing production to focus on these improvements. The company is also adjusting its internal certification processes to prevent interference and retaliation issues.

Boeing executives have expressed confidence in the plan and say they are dedicated to enhancing safety management and quality systems. The FAA will not allow an increase in production until it is satisfied with Boeing’s commitment to safety. The full details of the plan and its implementation are overseen by the FAA, ensuring the safety and reliability of Boeing aircraft.

It’s quite obvious that Boeing’s safety issues are not over. The FAA and the company need to do everything possible to make sure the company’s planes are safe and reliable. Stay tuned!

Source: Law360

Families Of Marines Lost In 2022 Osprey Crash File Lawsuit Against Boeing, Bell, and Rolls Royce 

Relatives of the Marines who perished in a 2022 Osprey crash have filed a lawsuit against the aircraft’s manufacturers, Boeing, Bell, and Rolls Royce. The lawsuit, filed by families of four out of the five deceased Marines, claims the companies neglected to rectify recognized mechanical issues that resulted in the fatal incident in California.

The tragedy occurred due to a severe mechanical malfunction in the MV-22 Osprey, specifically a hard-clutch engagement—a recurring issue with this model since 2010. The suit targets Bell Textron, The Boeing Co., and Rolls Royce, with Bell responsible for assembling the Osprey alongside Boeing in Texas, and Rolls Royce manufacturing the engines.

Despite its innovative design, which allows vertical takeoffs and landings and airplane-like flight, the Osprey has seen over 50 service member fatalities since 2000. The lawsuit contends that the aircraft’s design is defective and fails to meet American safety norms.

The Osprey’s engineering involves two engines connected by a drive shaft within the wings, with a sprag clutch at each end ensuring synchronized rotor speeds. This mechanism is crucial for balanced flight and acts as a safety feature, redistributing power between engines if one fails. However, clutch wear can lead to sudden re-engagement, causing power surges and potential loss of control.

An investigation into the 2022 crash revealed that the Marines encountered a dual hard-clutch engagement during standard operations, leading to an unavoidable and unexpected mechanical failure. The report concluded that the pilots had no means to avert or recover from the emergency.

The crash claimed the lives of five Marines, including two pilots and three crew chiefs, during a routine flight near Glamis, California.

Following several incidents in 2022, military branches recognized that the clutches might degrade quicker than expected, prompting a redesign effort to prevent clutch slippage. The Marine Corps’ report cautioned that without significant enhancements to the flight control system, material strength, and inspection protocols, further accidents could not be prevented.

The filing of this lawsuit coincides with ongoing investigations into two other fatal Osprey crashes in 2023. After identifying material failure as a likely cause for one of these crashes, all Osprey flights were temporarily suspended, resuming after three months.

Source: U.S. News

WORKPLACE LITIGATION

Don’t Miss The Value: Obtaining Justice For Clients In So-Called “Exclusive Remedy Provision” Cases

Consider that “John Doe,” a seasoned construction worker, suffers a severe injury on his job site. John’s initial instinct is to seek benefits under workers’ compensation, the standard recourse for workplace injuries. Indeed, when John first speaks with a lawyer, he may be advised that workers’ compensation is his exclusive source of recovery for this workplace injury.

To borrow a phrase we hear on Saturday mornings during college football season from Coach Lee Corso, “Not so fast!”

We will take a look at the above fact situation under Georgia law. Georgia’s “Exclusive Remedy” provision does not bar all claims that John may have. Instead, it only prohibits John from bringing a tort claim against his employer and other narrowly tailored groups of entities. If John’s lawyer is to complete a thorough and comprehensive investigation, he should also consider the following:

1. Was John really an employee: Georgia defines an “employer” as one who has the right to control the time, manner, and methods of a person’s work. See, e.g., Bentley v. Jones, 48 Ga. App. 587 (1934). Methods of employment, job titles, and even contract terms are not the controlling issue. John’s attorney should look closely to see if such-and-such entity was really John’s employer. 
2. Third-party negligence claims: did a non-employer’s negligence contribute to John’s injuries? For instance, John’s injuries may have truly been caused by a machine that was negligently serviced or repaired. Such a claim would not be barred by the Exclusive Remedy Provision.
3. Product liability claims: negligent product design and failures to warn may also have caused John’s injuries.

Beasley Allen lawyers have vast experience handling workplace injury cases. The lawyers in our Personal Injury & Products Liability Section leave no stone unturned to ensure each client obtains the full measure of justice.

Dallas Jury Awards $71.95 Million In Scissor Lift Wrongful Death Case

A Texas jury has awarded $71.95 million to Laura Lopez, the widow of electrician Hernan Murillo, who died in a workplace accident involving a scissor lift and a boom lift at a Frito-Lay warehouse in 2019. A lawsuit was filed against Walker Engineering and Walker Industrial as defendants. 

The jury found Walker Engineering 65% liable and Walker Industrial 35% liable for the accident, with the former company being responsible for the entire award under Texas law. The liability in the case was based on issues of inadequate training for the boom lift operator, which was found to have contributed to the accident. 

Despite Walker Engineering’s claim that the worker was at fault and the boom lift operator was employed by Walker Industrial, a separate entity, the jury assigned no liability to the worker. 

The plaintiffs were represented by Charla Aldous, Brent Walker, Caleb Miller and Eleanor Aldous of Aldous Walker and by M. Kevin Queenan and Carlos Lopez of Queenan Law Firm PC. 

The case is Laura Lopez, et al. v. Walker Engineering Inc., case number DC-19-16959.

Source: CVN

Poultry Company Linked To Teenager’s 2023 Death Had Prior Record 

The Department of Labor has found minors working on the kill floor at Mar-Jac Poultry’s Alabama plant. This is the same company linked to the death of a teenager last year. Despite Mar-Jac’s denial of knowingly employing underage workers, claiming they were hired with documents indicating they were adults, the government is seeking a court order to halt the sale of products from the plant due to “oppressive child labor.” 

There had been a previous incident where Duvan Perez, a 16-year-old, died while cleaning machinery at a Mar-Jac facility. That led to significant OSHA penalties. A wrongful death lawsuit was also filed by Perez’s mother. 

Mar-Jac has faced other legal challenges, including lawsuits for injuries sustained at their plants and a serious OSHA violation. 

The Department of Labor reports a significant increase in child labor law violations, with over half of the investigated cases in 2023 involving minors in hazardous work. Mar-Jac Poultry claims to have a commitment to legal compliance. They defend their actions in the current incident. But the government has a duty to investigate and deal with the situation. 

Source: ABC News

INSURANCE LITIGATION

Court Question’s Insurer’s Attempt To Avoid $5.8 Million Mold Costs 

A Court of Appeals for the Fourth Circuit judge has admonished insurance company Berkley Assurance Co. for its attempt to avoid payment of a $5.8 million verdict through an exclusion in a general contractor’s policy. On appeal, the panel rejected Berkley’s assertion that its policy with CBG Building Co. didn’t cover CBG’s mold cleanup on newly built apartments due to an exclusion for contractual obligations.

Judge J. Harvie Wilkinson III criticized Berkley, saying he questioned the policy’s purpose if it didn’t cover contractual obligations for a contractor. Judge Wilkinson admonished Berkley, stating:

It’s your role to provide a recovery when the policy makes you liable. You’re trying to get out of things.

Judge Henry F. Floyd questioned why the contractual exclusion argument wasn’t raised until after trial. Additionally, Judge G. Steven Agee challenged Berkley’s position on the exception to the exclusion, which provided coverage for liabilities caused by third parties like subcontractors.

A lawyer for CBG stated that sufficient evidence supported the jury’s verdict and damages. He contended that Berkley’s contractual obligation exclusion argument was “raised at the eleventh hour.” 

The lawsuit centered on roughly $5.9 million in mold remediation costs incurred by CBG during work on the Mallard Pointe apartment complex in Charlotte, North Carolina. Berkley sued CBG, seeking a declaration that it didn’t owe coverage for the mold costs, arguing that CBG waited months to report the claim. CBG said it notified Berkley 31 days after the developer ordered work and mold cleanup to be stopped. 

Judges Harvie J. Wilkinson III, Steven G. Agee and Henry F. Floyd sat on the panel for the Fourth Circuit.

CBG is represented by Eric M. Gold, Alex J. Lathrop and Lauren N. Smith of Pillsbury Winthrop Shaw Pittman LLP.

The case is Berkley Assurance Co. v. CBG Building Co. LLC, case number 23-2045, in the U.S. Court of Appeals for the Fourth Circuit.

Source: Law360

EMPLOYMENT LITIGATION

Supreme Court Relaxes Standard On Title VII Claims

The United States Supreme Court, in a recent unanimous decision, ruled that plaintiffs need not show that a job transfer caused “significant harm” to constitute adverse employment action under Title VII. Instead, to successfully advance a Title VII claim for discrimination, the plaintiff must demonstrate “that the transfer brought about some ‘disadvantageous’ change in an employment term or condition.” The ruling came in the case of Muldrow v. City of St. Louis, Missouri, and resolved a split among the circuits. 

In Muldrow, the plaintiff, Sergeant Muldrow, was employed by the St. Louis Police Department as a plainclothes officer in the Department’s specialized intelligence division – where “she investigated public corruption, human trafficking, oversaw the Gang Unit, and headed the Gun Crimes Unit.”  Because of her position, she was also a Task Force Officer with the FBI, which came with additional perks, including the use of an unmarked take-home vehicle and FBI credentials. After nine years in the unit and against her wishes, a new division commander transferred her out of the unit so he could replace her with a male officer. 

In her new position, Sergeant Muldrow supervised neighborhood patrol officers, approved arrests, and performed largely administrative tasks. While she maintained her salary, benefits, and rank, she lost the prestige that came with being a specialized intelligence officer, FBI credentials, the ability to use an unmarked take-home vehicle, and the ability to be involved in higher-profile investigations. She sued the police department under Title VII for gender discrimination. 

The district court granted the city’s motion for summary judgment, and the Eighth Circuit affirmed the district court’s decision. Both the district court and Eighth Circuit held that because Muldrow did not lose pay, benefits, or rank – she could not show that the job transfer caused a “materially significant disadvantage”. 

The Supreme Court granted certiorari. Writing for the majority, Justice Kagan pointed out that under Title VII, a plaintiff that has been transferred “must show some harm respecting an identifiable term or condition of employment.” However, she also points out that the language of the statute does not require a showing that “the harm incurred was significant . . . or serious, or substantial, or any similar adjective suggesting that the disadvantage to the employee must exceed a heightened bar.”  

Importantly, Judge Kagan writes that “there is nothing in the provision to distinguish, as the courts below did, between transfers causing significant disadvantages and transfers causing not-so-significant ones.”  

The court also noted that the plaintiff had presented some evidence that demonstrated that she suffered some changes in the terms and conditions of her employment that left her worse off than before. The court vacated the judgment of the Eighth Circuit Court of Appeals and remanded the case for further proceedings. Overall, the ruling cleared the path for plaintiffs to bring viable discrimination claims under Title VII. 

FTC Bans Noncompete Clauses

The Federal Trade Commission (FTC), on April 23, 2024, issued a final rule to promote competition by banning noncompete clauses (hereinafter referred to as “the final rule”) nationwide. According to FTC Chair Lina M. Khan, this rule aims to protect the fundamental freedom of workers to change jobs, increase innovation, and foster new business formation.  

What Are Noncompete agreements?

Noncompete agreements are contractual agreements or clauses that prevent workers from starting new businesses or leaving a job based on the clause/agreement. These clauses often lead employees to either stay in a job they would otherwise leave or potentially lead to other significant harms and costs, like being forced to relocate, leave the workforce for the period of the noncompete agreement, take a position that is outside of their expertise, defend against expensive litigation, or take a lower paying position to avoid violating the noncompete agreement. It’s estimated that approximately 30 million workers are subject to a noncompete agreement – making up one fifth of Americans. 

Key Provisions of the FTC’s Rule

Existing noncompete agreements for more than 99% of workers will no longer be enforceable after the rule’s effective date.

The exception is thatexisting noncompete agreements for senior executives (which make up less than 1% of workers) can remain in force under the FTC’s final rule. However, employers are banned from trying to enforce or enter into new noncompete agreements, even where the noncompete involves a senior executive.  

Employers are required to provide notice to workers (other than senior executives) who are bound by an existing noncompete that the noncompete agreement will not be enforced. There will be no requirement that employers formally rescind the noncompete agreements.

The Impact of the Rule

New Business Formation: The FTC expects a 2.7% per year increase in business formation because of the final rule, resulting in an estimate of more than 8,500 additional new businesses created each year.

Higher Earnings for Workers: Workers are likely to see higher earnings as a result of the final rule, including an increase in wages of approximately $524 per year.

Lower Health Care Costs: The ban on noncompete agreements is also expected to lower healthcare costs by up to $194 billion over the next decade.

Increased Innovation: Because the rule is projected to drive innovation, the FTC estimates an average increase of 17,000 to 29,000 more patents each yearfor the next 10 years.

Public Comment Period

In January 2023, the FTC issued a proposed rule, which was subject to a90-day public comment period. Of the 26,000 comments on the proposed rule, 25,000 of the comments supported the FTC’s proposal to ban noncompete agreements. 

Beasley Allen lawyers in our Consumer Fraud & Commercial Litigation Section consistently monitor new laws, regulations, and rules that impact employees. If you have questions or need help with an employment-related case, contact Michelle Fulmer, Section Director, at 800-898-2034 or by email at [email protected]. She will have a lawyer in the Section respond to you. 

Source: Federal Trade Commission

The Beasley Allen Employment Litigation Team

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

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

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

Whistleblower Litigation

Kabbage, Inc. Agrees To Two Settlements With DOJ Totaling $120 Million

The U.S. Department of Justice (DOJ) has announced that Kabbage Inc., a bankrupt online lender, has agreed to pay $120 million in two separate settlements to resolve claims that it submitted thousands of false claims for loan forgiveness and operated without adequate fraud controls.

Kabbage has agreed to pay the federal government about $63 million to settle allegations of violating the False Claims Act. The company was accused of knowingly inflating borrowers’ loans to maximize processing fees. Additionally, Kabbage will pay $57 million to resolve claims of inadequate fraud controls and for violating its obligations under the Paycheck Protection Program (PPP).

Kabbage will receive a $12.5 million credit for payments previously returned to the government during its investigation of the alleged misconduct. The DOJ stated that the final amount the government receives will depend on the assets available to unsecured creditors in the company’s bankruptcy proceedings in Delaware federal court.

The government’s investigation was launched following two whistleblower complaints filed in 2020 and 2021 in Massachusetts and Texas federal court. It was alleged that Kabbage double-counted state and local taxes employees paid, leading to inflated loan amounts for thousands of borrowers and excess processing fees for Kabbage.

Additionally, the government said Kabbage violated PPP regulations and failed to comply with the Bank Secrecy Act and anti-money laundering requirements by not implementing adequate fraud controls. 

It was stated by the DOJ that Kabbage, based in Atlanta, used inadequate automated tools, reduced fraud review staff, and encouraged its employees to approve suspicious loans in order to make more money.

Before selling most of its business to American Express affiliates in October 2020, Kabbage operated an online platform for lending to small businesses. The company filed for bankruptcy in 2022, stating that the “extreme” cost of handling disputes related to its $7 billion in PPP loans to small businesses affected by the COVID-19 pandemic led to this decision.

The government is represented by Brian LaMacchia and Diane Seol of the U.S. Attorney’s Office for the District of Massachusetts and by Sarah E. Loucks of the DOJ’s Civil Division.

The whistleblower cases are United States ex rel. David Berteletti v. Kabbage Inc. et al., case number 1:20-cv-12114, in the U.S. District Court for the District of Massachusetts and Paul Pietschner v. Kabbage Inc. et al., case number 4:21-cv-00110, in the U.S. District Court for the Eastern District of Texas.

GSK Accused Of Concealing Zantac Cancer Risk From Federal Agencies 

Valisure LLC, a Connecticut laboratory, has filed a lawsuit accusing GlaxoSmithKline (GSK) of defrauding federal health insurance programs by not disclosing that Zantac and its generic, ranitidine, could decompose into NDMA, a carcinogen. The complaint alleges that GSK knew about this risk since the 1980s but concealed it from the FDA and the public, resulting in the sale of an adulterated drug. Valisure claims that every dose of ranitidine is contaminated with NDMA, making it misbranded and unfit for consumption.

The lawsuit, filed in Pennsylvania federal court, states that the federal government declined to intervene in the case, which was unsealed in March after being filed under the False Claims Act in 2019. Valisure asserts that GSK’s actions led to billions in sales for Zantac, which was the first drug in the U.S. to reach $1 billion in sales, and that GSK fraudulently obtained FDA approval for the drug.

Valisure’s testing in 2019 suggested that ranitidine exposed users to cancer risk, especially when stored in warm, humid conditions. The suit seeks damages up to three times what the government paid for the drug, plus civil penalties.

GSK has responded, stating that Valisure’s testing was flawed and that there is no reliable evidence that ranitidine increases cancer risk. The company intends to defend against the claims. Valisure says American taxpayers should recover the billions spent on Zantac due to GSK’s alleged fraud and misrepresentation of the drug’s safety.

Valisure is represented by Conor Lamb of Kline & Specter PC, R. Brent Wisner of Wisner Baum LLP, Jennifer A. Moore of Moore Law Group PLLC and Gregory A. Frank of Frank LLP.

The case is U.S. et al. ex rel. Valisure LLC, case number 2:19-cv-04239, in the U.S. District Court for the Eastern District of Pennsylvania.

Sources: Law360 and Claims Journal 

Whistleblower Litigation Team 

Beasley Allen lawyers continue to represent whistleblowers across the country in claims against multiple bad or corporate actors. 

If you are aware of fraud being committed against the federal or state governments, you could be rewarded for reporting the fraud.  If you have questions about whether you qualify as a whistleblower, contact a Beasley Allen lawyer for a free and confidential evaluation of your claim. Members are Lance Gould, Larry Golston, Lauren Miles, Leon Hampton, Jessi Haynes and Tyner Helms. 

Premises Liability Litigation

Update On Active Negligent Security Cases Handled By Our Atlanta Office

Recently, Parker Miller and Key Lamberth, lawyers in our Atlanta office, filed a lawsuit against Hallmark Mobile Homes Park on behalf of their client, Shanita Smith, involving the death of her three-year-old son. The complaint alleges: 

Hallmark Mobile Home Park was poorly maintained, in disrepair, unsafe, and was a haven for dangerous conduct and/or violent criminal activity like the type perpetrated on the child. 

Hallmark Mobile Home Park was aware of numerous substantially similar incidents occurring on the premises that would put Hallmark on notice that reasonable measures were necessary to prevent violence against its residents.

The facts surrounding this case are horrific. Leading up to the incident, Ms. Smith and her family were enjoying a movie together on the couch in this home when gunfire erupted outside. The stray bullets hit their apartment, striking her three-year-old son in the chest. Unfortunately, and to the shock and horror of the family members, the gunshot was fatal. 

All too often, Beasley Allen lawyers have encountered this same type of violence involving minor children. Our lawyers are currently investigating multiple negligent security cases, with minor children under the ages of eighteen and nineteen years old being the most frequent victims we see. Usually, these senseless shootings do not involve targeting or mutual combatants. Instead, these children are innocent bystanders who catch stray bullets. Because of bad management by the owners and managers, the lives of young children are more at risk than we have ever seen.

Surviving A Motion For Summary Judgment In A Georgia Slip And Fall Case 

Beasley Allen lawyers have handled a number of cases involving slip-and-fall incidents at various businesses. In those cases, it’s virtually certain that the defendant will file a motion for summary judgment in an attempt to avoid liability. The arguments of all defendants are generally the same: that the defendant had no duty to warn, or that the plaintiff failed to exercise ordinary care.  

What’s important to keep in mind when a defendant files a motion for summary judgment in such a case is that because premises cases are extremely fact-specific, many routine issues of ordinary care are for the jury to decide.  As the Georgia Supreme Court has made clear for almost 30 years, summary judgments in such cases are unusual (Robinson v. Kroger, 268 Ga. 735, 1997).

Even so, that does not stop defendants from attempting to take the decision-making in a case away from a jury.  The main thing for a trial lawyer representing a plaintiff in a civil case is to remember the plaintiff’s basic burdens. The plaintiff must prove: 

• the existence of a hazard, whether that’s static, transient or dynamic; 
• that the defendant had actual or constructive knowledge of the hazard; and
• that the plaintiff lacked knowledge of the hazard despite the exercise of ordinary care due to the actions or conditions within the control of the owner/occupier.

Defendants will try to muddy the waters by distinguishing their duty based on the type of hazard involved in the case. It can be whether the hazard was static, transient, or dynamic. Defendants may also use defenses rooted in contributory negligence such as saying the hazard was in “plain view.”  The Georgia Supreme Court, however, emphasized as recently as September 2023 that the type of hazard does not change the basic analysis of whether there was a breach of the duty (Givens v. Coral Hospitality-GA, LLC, 317 Ga. 282, 2023).  The Georgia high court stated the following:

[I]ssues such as how closely a particular retailer monitored the premises and approaches, what retailers should know about a property’s condition, how vigilant patrons must be for their own safety and where customers should be held responsible for looking or not looking are all questions that, in general, must be answered by juries as a matter of fact rather than by judges as a matter of law.  

The bottom line is that you can develop a question of fact based on the surrounding facts and circumstances. If so, your case will survive a motion for summary judgment.  

Class Action Litigation

Beasley Allen’s Fuel Pump Fight: The Class Action Chronicles

Beasley Allen lawyers have secured hundreds of millions of dollars for our clients/consumers in several recent automobile fuel pump class action cases filed throughout the country. The most recent of these settlements is Cohen v. Subaru of Am., Inc., with an estimated total value of over $230 million, covering over 1.3 million vehicles. 

In April 2020, Subaru initially only included 190,000 vehicles in their fuel pump recall. Beasley Allen filed a class action that same month contending the recall was inadequate and more vehicles were affected by the alleged defective fuel pumps. Subaru later added 165,000 vehicles in a second recall. However, as a result of our litigation team’s relentless pursuit of justice, another 170,000 vehicles were added as well, and then an additional 860,000 vehicles were included in the settlement, totaling 1.388 million vehicles. 

This substantial expansion to the settlement was the primary reason for the delay in filing for Preliminary Approval, but it was a necessary step to provide a more comprehensive solution for those affected. It definitely paid off for all members of the class.

The lawsuit alleged that a part called an “impeller” inside the fuel pump, which is supposed to move fuel from the tank to the engine, was made of a material that wasn’t strong enough for the job. This caused it to soak up too much fuel, change shape, and stop working as intended. This resulted in issues with the car’s acceleration and could also cause the vehicle to stall or completely lose power while in motion. Those fuel pumps were supplied to Subaru and to other Japanese manufacturers through a supplier known as Denso. Denso was a defendant in all these fuel pump class cases as well.  

Class Action Chronicles Continued:

• Recently, a settlement valued at over $78 Million was secured in the Mazda Fuel Pump Class Action case. The Preliminary Approval for this case was filed on May 3, 2024 and is pending. 
• The Honda Fuel Pump case is still unfolding, with the discovery process underway. Honda’s class size could eclipse Subaru and Mazda combined, indicating the potential for an even more impactful settlement.
• In 2022, a settlement valued at over $289 million was secured in the Toyota fuel pump class action case, representing 6.5 million class members. 

Dee Miles, who heads up our firm’s Consumer Fraud & Commercial Litigation Section, had this to say:

These settlements provide full relief to millions of consumers who unknowingly purchased vehicles with allegedly defective fuel pumps. We will continue to pursue these cases and to hold auto manufacturers responsible.

Consumer Fraud Section Head Dee Miles, Demet Basar, Clay Barnett, Mitch Williams, Dylan Martin, and Trent Mann represented the class members in all of these class actions.

GM Sued Over Brake Defect In Chevrolet Malibu Cars

Beasley Allen is pursuing a very important class action lawsuit against General Motors LLC (GM) concerning the automaker’s Chevrolet Malibu model. The case was filed in the Eastern District of Michigan. The plaintiff alleges that 2013-2022 Chevrolet Malibu vehicles (Class Vehicles) are designed, manufactured, sold, and leased with a dangerous defect in the cam-driven brake vacuum pumps that causes a loss of braking capability, increased stopping distances, and results in damage to the Class Vehicles’ camshaft and other engine components. This is labeled the “Brake Defect” hereinafter. 

These defective Chevrolet Malibu vehicles present a serious safety risk to vehicle occupants’ safety and health. The Class Vehicles use a brake booster to amplify the braking power delivered by the driver’s brake pedal application. This power brake assist uses engine vacuum to amplify the forces that the driver generates by applying the brake pedal. 

The Brake Defect causes vacuum pump failure, which eliminates that necessary amplifying effect. Drivers experience a stubbornly hard brake pedal and an anemic braking response which greatly increases the odds of a crash. 

This is compounded by the fact that drivers are not prepared to apply the leg forces necessary to bring the vehicle to a stop manually.  In fact, some drivers lack the leg strength to stop the vehicle manually, which puts them in exceptional danger.

Because the vacuum pump is mounted on the camshaft, when the vacuum pump fails, that causes mechanical resistance, which in turn, affects the timing of the camshaft, causing it damage, as well as damage to other engine components. This is a separate safety risk as the engines fail to accelerate as expected or shut down completely.  Engine disablement and vehicle strandings are real consequences that GM must address and cure. 

GM has long known of the Brake Defect based on consumer complaints submitted to NHTSA, pre-release design and testing, warranty claims for repairs associated with the Brake Defect, and technical service bulletins issued by GM. Although GM has recalled other model vehicles for this failure mode, GM has not recalled model year 2013-2022 Malibu cars for the Brake Defect. 

The plaintiff and the proposed class are represented by Dee Miles, Clay Barnett, Mitch Williams, and Dylan Martin of Beasley Allen, along with lawyers with The Miller Law Firm, P.C., and Dicello Levitt Gutzler, LLC. 

The Malibu Brake Defect case is Johnson v. General Motors LLC and is filed in the United States District Court for Eastern District of Michigan.

$150 Million Settlement In Chevy Bolt Battery Defect Lawsuit

Chevrolet Bolt owners have proposed a $150 million settlement in a Michigan federal court to resolve claims against General Motors (GM) and LG over alleged battery defects that could cause overheating and fires. The settlement, which is unopposed, includes:

• Recall-based remedies for all class vehicles, such as battery replacements with an eight-year or 100,000-mile warranty, and a software upgrade to monitor battery health.
• Payments to class members: at least $700 for those eligible for a battery replacement, and at least $1,400 for those eligible for and who received the software upgrade. Additionally, GM is offering a $1,400 Visa eReward card to those who have already obtained the software upgrade, with a potential for a second distribution.
• Eligibility for the settlement includes U.S. purchasers of 2017-2022 Chevrolet Bolts built and shipped before GM’s August 2021 recall, excluding those who received a buyback.
• Legal representation by The Miller Law Firm PC and Keller Rohrback LLP as co-lead class counsel, among others.
• Attorney fees up to 35% of the settlement fund and a $2,000 service award for class representatives.

GM and LG have acknowledged the settlement, which aims to compensate Bolt owners who received a battery replacement or installed diagnostic software. The litigation began in December 2020, consolidating eight class actions with claims that GM and LG failed to disclose and adequately repair battery defects after multiple recalls. The case is proceeding after some claims were dismissed in October 2022. 

The consumers are represented by The Miller Law Firm PC, Keller Rohrback LLP, McCune Wright Arevalo LLP, Fine Kaplan and Black RPC, Migliaccio & Rathod LLP, Law Offices of Todd M. Friedman PC, and Chimicles Schwartz Kriner & Donaldson-Smith LLP.

The case is In re: Chevrolet Bolt EV Battery Litigation, case number 2:20-cv-13256, in the U.S. District Court for the Eastern District of Michigan.

Judge Approves Family Dollar Settlement  

A Tennessee federal judge has given final approval to a settlement resolving consumer claims stemming from a rodent infestation at a Family Dollar warehouse. However, the judge denied the class counsel’s request for $10 million in fees.

In her order, U.S. District Court Judge Sheryl Lipman found the settlement providing $25 gift cards to class members to be fair and reasonable. However, she said the class attorneys did not follow local rules requiring detailed fee documentation, such as hourly breakdowns and affidavits on prevailing rates.

Judge Lipman denied the $10 million fee request without prejudice, meaning the lawyers can refile it properly. She did approve their request for $247,590 in expenses as reasonable. The judge also approved $44,000 in incentive awards to the named plaintiffs.

Class counsel told the court in January that, as of October they had spent around 6,100 hours on the case. Judge Lipman granted preliminary approval in October over Arkansas’ objection that it was premature.

As of January, about 840,000 claims had been filed in the settlement. The settlement resolves lawsuits accusing Family Dollar of selling products stored in an Arkansas warehouse infested with rodents and subsequently raided by Arkansas authorities. Significant rodent activity was found in the storage building, leading to the temporary closure of over 400 Family Dollar stores and recalls of FDA-regulated products.

While approving the settlement, Judge Lipman noted that no class members objected and that the notice program was successful. She said the settlement explicitly does not impact the Arkansas’ separate state court lawsuit against Family Dollar.

The class is represented by J. Gerard Stranch IV of Stranch Jennings & Garvey PLLC, Sarah Sterling Aldridge of Barrett Law Group PA and Charles J. LaDuca of Cuneo Gilbert & LaDuca LLP.

The State of Arkansas is represented by Kate Donovan and Rachel Kluender of the Arkansas Attorney General’s Office.

The case is In re: Family Dollar Stores Inc. Pest Infestation Litigation, case number 2:22-md-03032, in the U.S. District Court for the Western District of Tennessee.

Source: Law360

9th Circuit Revises Northrop Retirees’ ERISA Case For Second Time

The Court of Appeals for the Ninth Circuit has revived a proposed class action against defense contractor Northrop Grumman, ruling that retirees plausibly alleged they received inaccurate pension benefit statements in violation of the Employee Retirement Income Security Act’s (ERISA) requirements. 

The three-judge panel’s decision reversed a California federal court’s dismissal, finding the retirees adequately alleged facts concerning Northrop’s duty to provide accurate pension statements under ERISA. The panel also held that ERISA allows penalizing Northrop Grumman for allegedly failing its fiduciary duties regardless of whether or not it did so in bad faith.

The retirees filed the proposed class action in 2018, claiming Northrop and Alight Solutions (formerly Hewitt Associates) breached their fiduciary duties by providing inaccurate benefit estimates that grossly overestimated the pension benefits the retirees would receive. They alleged Alight breached its duty, and Northrop’s plan administrative committee violated ERISA by inadequately monitoring Alight.

The decision marks the second time the Ninth Circuit revived the case. In 2021, it allowed certain state claims to proceed and gave retirees a chance to shore up their allegations that Northrop Grumman’s administrative committee failed to provide accessible and accurate pension benefit statements.

The Ninth Circuit’s panel rejected Northrop’s claim that its 2021 decision barred retirees from reasserting their claim that the committee failed to send the required statements every three years. The court clarified that while it found the plaintiffs’ allegations on that issue inadequate in 2021, the retirees have now overcome that inadequacy by properly stating their claims. 

U.S. Circuit Judges Morgan Christen, Roopali H. Desai and Anthony D. Johnstone sat on the panel for the Ninth Circuit.

The retirees are represented by Elizabeth Hopkins and Susan L. Meter of Kantor & Kantor LLP and Teresa S. Renaker and Kirsten G. Scott of Renaker Scott LLP.

The case is Stephen Bafford et al. v. Administrative Committee of the Northrop Grumman Pension Plan et al., case number 22-55634, in the U.S. Court of Appeals for the Ninth Circuit.

Source: Law360

Google’s $62 Million Location-Tracking Settlement Gets Approval

Judge Edward J. Davila approved a $62 million settlement against Google for allegedly collecting and storing users’ location data without consent. Prior to the settlement, there had been about five years of litigation. The agreement includes $18.6 million in legal fees for the class counsel. Despite some objections, Judge Davis found the fees reasonable due to the case’s complexity, risks, and the fact that it was handled on a contingency basis.

The settlement also involves cy pres recipients, who will use any leftover funds to promote data privacy. The judge highlighted that the settlement offers significant benefits to the class members, comparing favorably with similar actions.

The class action consolidated six lawsuits from 2018, with claims that Google egregiously violated user privacy. Google countered that users consented to tracking.  The settlement includes a fund for organizations to educate and advocate for privacy and mandates Google to allow users more control over their data.

The settlement class is certified for all individuals whose location data was stored by Google with “location history” turned off, from January 2014 until notification, estimated to be 247.7 million people.

The class had to prove, among other elements, continuous tracking which can be very difficult. Judge Davila recognized the settlement’s reflection of the case’s strength and Google’s conduct. Service awards of $5,000 were approved for the three named plaintiffs for their extensive cooperation in the case.

The final settlement was announced in April 2023 with some of the terms revealed in September. Preliminary approval followed in October 2023. The settlement stands out as it was reached without statutory damages, focusing on injunctive relief and future privacy protection.

The plaintiffs are represented by Tina Wolfson and Theodore W. Maya of Ahdoot & Wolfson PC, and Michael W. Sobol, Melissa A. Gardner, Michael I. Levin-Gesundheit and Michael K. Sheen of Lieff Cabraser Heimann & Bernstein LLP.

The case is In Re: Google Location History Litigation, case number 5:18-cv-05062, in the U.S. District Court for the Northern District of California.

Source: Law360

Class Certified Against Amazon For BIPA Violations

An Illinois federal judge recently certified a class of consumers alleging Amazon’s virtual try-on technology violates the Illinois Biometric Privacy Act (BIPA). U.S. District Judge Jorge L. Alonso said in his order: 

The class shared common factual questions about the functionality of the Amazon technology and Amazon’s use of the class members’ facial data, as well as whether Amazon violated the Illinois Biometric Information Privacy Act.

The named plaintiffs allege in the amended complaint that Amazon “violated BIPA by capturing and storing without consent the personal identifying data of consumers who used the retailer’s apps to virtually ‘try on’ makeup and other products.” According to Judge Alonso, discovery revealed that during the class period, at least 163,738 people used Amazon’s virtual try-on while in Illinois. Judge Alonso further held that the named plaintiffs’ claims that Amazon unlawfully captured and used their facial templates aligned with class members’ claims. 

Amazon maintained it had unique defenses for every class member due to the fact that BIPA damages are discretionary, not mandatory. Judge Alonso, disagreed, noting: 

Amazon said because consumers volunteered to use its virtual try-on app, the company should be allowed to present its defenses to each claim for statutory damages, requiring individualized analysis that ‘would overwhelm common questions and undermine the efficiencies of the class device.’

The judge said further that case law does not support Amazon’s argument. That’s because the Illinois Supreme Court has ruled that fashioning a fair damage award that deters the misconduct without ruining a defendant’s business is within the trial court’s discretion. 

Source: Law360

Early Court Approval For $600 Million Norfolk Southern Derailment Settlement

In what is described as a significant development, the legal proceedings stemming from the catastrophic Norfolk Southern train derailment in East Palestine, Ohio, last year have progressed. A federal judge has provisionally endorsed a $600 million settlement agreement, which aims to compensate the numerous residents and businesses affected by the incident.

The presiding judge, Benita Y. Pearson of the Northern District of Ohio, has given her initial approval to the settlement proposed in April, marking a pivotal step in the consolidated lawsuit that addresses the fallout from the derailment that occurred in February 2023. Additionally, Judge Pearson has designated Seth A. Katz, M. Elizabeth Graham, and Jayne Conroy as the principal lawyers to lead the class action.

In her recent ruling, Judge Pearson recognized the settlement as equitable, satisfactory, and conscientiously negotiated without any collusion. She further acknowledged that the benefits outlined in the settlement surpass the extensive costs and uncertainties associated with continuing the litigation through trial and potential appeals.

With this preliminary approval, the legal teams can now commence the process of informing those eligible for compensation and initiating the claims procedure. A hearing for the final sanctioning of the settlement is slated for September 25.

The proposed settlement is comprehensive, covering a range of claims from individuals, businesses, and property owners within a 20-mile radius of the derailment site. These claims include allegations of financial loss, property damage, environmental contamination, and heightened health risks necessitating continuous medical surveillance.

The settlement also seeks to conclude all claims against Norfolk Southern and certain railcar entities responsible for transporting hazardous materials. However, it does not encompass Norfolk Southern’s separate claims against other companies involved in the transportation of vinyl chloride, a key chemical in manufacturing various plastic products.

While this settlement marks a step towards resolution, ongoing legal actions by the U.S. Environmental Protection Agency and the state of Ohio remain, seeking recompense for emergency response and environmental restoration costs.

The rail industry, along with Norfolk Southern, anticipates the National Transportation Safety Board’s (NTSB) forthcoming report, which is expected to significantly influence ongoing legal disputes, regulatory measures, and rail safety reforms. The NTSB’s conclusive report is due this month.

The plaintiffs are represented by M. Elizabeth Graham of Grant & Eisenhower PA, Jayne Conroy of Simmons Hanley Controy, Seth A. Katz of Burg Simpson Eldredge Hersh Jardine PC, Michael Morgan of Morgan & Morgan PA and Michelle L. Kranz of Zoll & Kranz LLC.

The consolidated case is In re: East Palestine Train Derailment, case number 4:23-cv-00242, in the U.S. District Court for the Northern District of Ohio.

Source: Law360

Supreme Court Orders Second Circuit To Revisit Bank Of America Preemption Case 

The U.S. Supreme Court unanimously overturned a Second Circuit decision that allowed Bank of America to avoid a class action lawsuit over New York’s escrow interest law. The Supreme Court ruled that the Second Circuit’s analysis was not “nuanced” enough and did not properly assess “the degree of interference” the state law had on the powers of national banks. The high court emphasized the need for a practical, case-by-case assessment rather than a broad categorical test that would preempt almost all state laws regulating national banks.

The case, Cantero v. Bank of America, involved allegations that the bank failed to comply with a New York law requiring payment of interest on escrow accounts. The Dodd-Frank Act states that national banks are exempt from state laws that significantly interfere with their banking powers. The Second Circuit had interpreted this to mean any state law attempting to control a national bank’s powers was preempted. However, the Supreme Court disagreed, citing the need for a more detailed analysis in line with the Dodd-Frank Act and a 1996 precedent, Barnett Bank of Marion County NA v. Nelson.

Bank of America argued that not having a clear preemption standard would lead to uncertainty and litigation over banking laws. This concern was shared by major industry groups and former officials from the Office of the Comptroller of the Currency (OCC). The OCC had supported the bank’s pro-preemption stance at the Second Circuit, but the Department of Justice (DOJ) took a different position at the Supreme Court.

The decision is significant as it marks the first time the Supreme Court has ruled on the national bank preemption standard since Dodd-Frank codified it. It also suggests that states may continue to play a role in regulating banking practices, a point underscored by the lawyer for the plaintiffs, who hailed the decision as a victory for consumers. 

The Supreme Court’s ruling does not resolve whether national banks are exempt from New York’s escrow interest law, but it rejects the Second Circuit’s approach to preemption, leaving the matter open for further proceedings. It will be interesting to see what the Second Circuit does with the case. Stay tuned!

The Cantero plaintiffs are represented by Deepak Gupta, Jonathan E. Taylor, Gregory A. Beck and Varshini Parthasarathy of Gupta Wessler LLP, Hassan Zavareei and Anna C. Haac of Tycko & Zavareei LLP, Jonathan M. Streisfeld of Kopelwitz Ostrow Ferguson Weiselberg Gilbert PA, Todd. S. Garber of Finkelstein Blankinship Frei-Pearson & Garber LLP and Mark C. Rifkin and Matthew M. Guiney of Wolf Haldenstein Adler Freeman & Herz LLP.

The case is Cantero et al. v. Bank of America N.A., case number 22-529, in the Supreme Court of the United States.

Source: Law360

Class Action Lawyers At Beasley Allen

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

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

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

SECURITIES LITIGATION

Split 2nd Circuit Panel Backs Arbitration Denial In ERISA Suit

On May 1, 2024, a divided Court of Appeals for the Second Circuit panel ruled that a group of financial services companies cannot compel individual arbitration of a proposed class action that accuses them of overcharging an employee stock ownership plan (ESOP), saying that doing so would prevent a plan participant from seeking plan-wide remedies authorized by federal benefits law.  

In a 2-1 decision, the panel said a lower court was right to deny the motion to compel arbitration by debt relief company Strategic Financial Solutions; its senior executives and their companies; and Argent Trust Co., which served as trustee to Strategic’s ESOP. 

The ruling comes nearly 15 months after oral arguments in which the appeals panel repeatedly questioned whether individual arbitration could be forced on the plaintiff, Ramon Dejesus Cedeno, given an individual’s rights to seek relief on behalf of the entire plan under ERISA Section 502(a)(2). U.S. Circuit Judge Beth Robinson wrote for the majority:

Because Cedeno’s avenue for relief under ERISA is to seek a plan-wide remedy, and the specific terms of the arbitration agreement seek to prevent Cedeno from doing so, the agreement is unenforceable.

Cedeno, an employee of Strategic Financial, filed the Employee Retirement Income Security Act suit in November 2020, alleging that the defendant companies and executives cost retirement plan participants millions when they caused the ESOP to overpay for shares of stock in Strategic Family, Inc., the parent company of Strategic Financial, which was privately owned by three of its officers and directors.  The complaint alleges that the ESOP overpaid for the shares by well over $100 million.  

The ESOP was adopted in 2017 and included provisions for mandatory arbitration as well as a waiver of the right to bring representative claims on a “class, collective, or group basis” on behalf of the Plan or any other plan participants.  After the complaint was filed, the defendants moved to compel arbitration pursuant to the Federal Arbitration Act, and specifically requested that the arbitration be compelled to hear only Cedeno’s claim, on an individual basis.  

U.S. District Judge John G. Koeltl of the Southern District of New York denied the motion, reasoning that the arbitration provision was an impermissible “prospective waiver of statutory rights.”  Judge Koeltl further held that the class waiver provision was “invalid because it seeks to waive prospectively the statutory remedies in ERISA § 409(a) that a Plan participant is entitled to seek under ERISA § 502(a)(2).”  

Two cases were critical to the Second Circuit’s analysis.  In 1985, the U.S. Supreme Court’s decision in Massachusetts Mutual Life Insurance Company v. Russell held that “Section 502(a)(2) claims can only be brought to pursue relief on behalf of a plan, and cannot be used as a mechanism to seek individual equitable relief for losses arising from the mismanagement of a plan.”  

In 2008, the Supreme Court revisited the issue in LaRue v. DeWolff Boberg & Associates Inc., holding that an individual could bring a case alleging that mismanagement impacted their account balance.  However, the court remained firm that Section 502(a)(2) provides no remedy for individual harms separate from the plan’s injuries.  

The Cedeno majority said its conclusion is backed up by rulings from sister circuits in recent years, including the Seventh Circuit in September 2021, the Tenth Circuit in February 2023, and the Third Circuit in June 2023.  

Argent, Strategic Financial, and the executives argued that the Supreme Court’s June 2022 decision in Viking River Cruises Inc. v. Moriana supported its bid to compel arbitration.  According to the companies, the justices in Viking River held that the Federal Arbitration Act allowed a company to push out of court a worker’s nonindividual claims made under a California state employment law, which supports their assertion that Cedeno’s suit should be kicked to arbitration.  

But the Second Circuit majority said in the order that the Supreme Court has never adopted a one-size-fits-all approach to “representational” arbitration, noting that there is a difference between seeking relief on behalf of a class of persons and seeking relief on behalf of a single agent, like a pension plan.  “[A] plaintiff seeking relief under Section 502(a)(2) acts in a representative capacity seeking relief for a single entity—the plan—as opposed to a collection of individuals.”  

U.S. Circuit Judge Steven J. Menashi wrote in a dissenting opinion that the majority’s holding is based on “a manufactured conflict between ERISA and the arbitration clause” in the ESOP plan documents, and he would have granted the motion to compel arbitration.  According to Judge Menashi, nothing in Section 502(a)(2) requires Cedeno to act as a representative on behalf of the plan, and the arbitration clause still allows him to obtain any relief that would make him whole on an individual basis.  

The majority said, however, that Judge Menashi’s suggestion that Cedeno could obtain plan-wide equitable relief through individualized arbitration “makes no sense” since any order that came from those proceedings would not be binding on anyone except Cedeno.  “ERISA doesn’t contemplate different plan administrators for different participants within the same group; ‘plan administrator’ is a unitary position,” Judge Robinson wrote.  “Defendants’ position that Cedeno could secure through individual arbitration equitable relief that is plan-wide in nature, but that is not binding on any other participant, is thus incoherent.”

There could be major repercussions for ERISA claims if this decision winds up before the Supreme Court.  Should the Court side with Menashi’s dissent, more plans may adopt arbitration clauses and representative action waivers, which would make obtaining meaningful, plan-wide relief for fiduciary breaches impossible to obtain.  This would eliminate the biggest arrow in ERISA’s quiver to ensure that retirement plans are maintained with participants’ best interests as the paramount concern because participants would be far less likely to go through the expensive arbitration procedures for smaller individual claims that could add up to substantial losses plan-wide.   

The case is Cedeno v. Argent Trust Company et al., case number 21-2891, in the U.S. Court of Appeals for the Second Circuit.

Securities Litigation At Beasley Allen

Beasley Allen has a skilled and experienced group of lawyers dedicated to handling cases where individuals become victims of fraud, including securities fraud.  Lawyers on the firm’s Securities Litigation Team are actively involved in multiple securities fraud class actions in courts around the country and in FINRA arbitration proceedings.  

Lawyers in our Consumer Fraud and Commercial Litigation Section are currently working on a number of cases involving corporate security issues. We will report in more detail on this litigation in the July issue. 

James Eubank, who leads the Securities Litigation Team, worked for years as a securities regulator with the Alabama Securities Commission. He was involved in a number of securities fraud investigations while with the state.  

You can contact a member of our Securities Litigation Team concerning any securities cases or issues. The team includes the following lawyers: James Eubank, who heads the team, Demet Basar, Rebecca Gilliland and Paul Evans. Dee Miles, who heads the section, also works with the team. 

INVESTOR LITIGATION

Third Circuit Clarifies Review Standard For Derivative Suits 

In an important precedential ruling, the Court of Appeals for the Third Circuit, sitting en banc, has elected to review derivative cases using a de novo standard, departing from the abuse of discretion approach the court had followed since the 1992 Blasband v. Rales decision. The court held that reviewing “demand futility” cases for an abuse of discretion is unworkable and flawed, as the question of “demand futility” depends on whether the plaintiff adequately pleaded state-law requirements, not on the court’s discretion.

The decision comes in the context of a case involving Cognizant Technology investors who sought to revive their derivative claims over a bribery scandal. The investors alleged that a bribery scheme in India cost them over $4 billion. They sued the company’s directors under Delaware law. However, the district court dismissed the case, finding that the shareholders failed to plead “demand futility” by not giving the board notice to act before filing the derivative action.

Applying the de novo standard, the Third Circuit upheld the lower court’s dismissal, stating that the plaintiffs never alleged that the director defendants knew about the bribes or that they were disseminating false or misleading information, which is fatal to their claim of a breach of fiduciary duty of loyalty. The court emphasized that the likelihood of liability against the directors must be considered in determining whether the claim can move forward.

The Third Circuit’s decision to adopt the de novo standard aligns it with other circuits and state supreme courts. It marks a significant shift in the review of derivative cases on appeal.

The investors are represented by Cohn Lifland Pearlman Herrmann & Knopf LLP, Robbins Geller Rudman & Dowd LLP, Federman & Sherwood, and others.

The case is In re: Cognizant Technology Solutions Corp. Derivative Litigation, case number 22-3027, in the U.S. Court of Appeals for the Third Circuit.

Source: Law360

New York Secures $2 Billion Settlement From Bankrupt Cryptocurrency Lender Genesis

The New York Attorney General’s office has reached a landmark $2 billion settlement with the bankrupt cryptocurrency brokerage firm Genesis Global Capital. This agreement, which is the largest of its kind in New York’s history, aims to repay Genesis’ creditors in cash and digital assets. Attorney General Letitia James emphasized that the settlement is a significant move towards justice for the investors affected by Genesis’ bankruptcy and highlighted the need for more regulation in the cryptocurrency industry to protect investors.

The settlement resolves a lawsuit filed by Attorney General James’ office, which accused Genesis of defrauding over 29,000 investors of more than $1.1 billion. It also establishes a victims’ fund without Genesis admitting or denying the allegations. U.S. Bankruptcy Judge Sean Lane approved the settlement, which also prohibits Genesis from operating in New York and endorses the company’s reorganization plan.

The lawsuit, which expanded in February, continues against other defendants, including Genesis’ former CEO and Digital Currency Group. Genesis’ assured the court that all available assets would be distributed to creditors, and the interim CEO expressed a commitment to maximizing value for all creditors, with distributions reflecting the original assets’ value rather than their dollar value at the lawsuit’s date. This approach aims to preserve the potential future value of the cryptocurrency assets for the creditors. It will be interesting and instructive to see how this matter winds up. 

Source: New York Law Journal

Chancery Court Imposes $199 Million Penalty In TransCanada Acquisition Lawsuit 

Vice Chancellor J. Travis Laster of Delaware has ordered TC Energy (formerly TransCanada Corp.) to pay $199 million from a potential $283 million judgment for fiduciary duty breaches in a 2016 merger with Columbia Pipeline Group Inc. This ruling includes nearly $180 million in interest and applies offsets not determined in a previous June 2023 ruling, which found TC Energy liable for a $13 billion merger breach.

The initial decision awarded $1 per share for fiduciary breaches and 50 cents per share for disclosure failures, totaling $398.4 million and $199.2 million respectively, plus interest. However, the recent ruling states that the $398.4 million award is non-cumulative and split between buyer and seller, while the $199.2 million disclosure award is credited 42% against TC Energy and 58% against the sellers.

After the sellers settled for$79 million, their half of the $398.4 million was deducted, with TC Energy credited for the remainder due to the non-cumulative clause. This offset also applied to the disclosure penalty, leaving only $199,218,290 to be paid by TC Energy.

The litigation, initiated by the Public Employees Retirement System of Mississippi in 2018, accused the parties of spinning off Columbia from NiSource Inc. and selling it to TransCanada for $25.50 per share. The court also ruled that stockholders seeking appraisal are entitled to damages and denied TC Energy’s request to delay interest accrual.

Former CEO Robert J. Skaggs Jr. and CFO Steven Smith were named in the suit, having received additional retirement benefits from the transaction. TC Energy plans to appeal, citing errors in law and fact.

The plaintiffs are represented by Ned Weinberger and Brendan W. Sullivan of Labaton Sucharow LLP, Gregory V. Varallo, Jeroen van Kwawegen, Lauren A. Ormsbee, Thomas G. James and Margaret Sanborn-Lowing of Bernstein Litowitz Berger & Grossmann LLP, and Stephen E. Jenkins and Marie M. Degnan of Ashby & Geddes PA.

The case is In re: Columbia Pipeline Group Inc., case number 2018-0484, in the Court of Chancery of the State of Delaware.

Source: Law360

Prudential Investors Seek Approval Of Settlement 

Investors have requested a New Jersey federal judge to approve a $35 million settlement with Prudential Financial Inc., The settlement would resolve claims that Prudential misrepresented trends affecting its life insurance reserves. 

The lawsuit, filed in November 2019, accused Prudential of hiding the poor underwriting and pricing of life insurance policies acquired from Hartford, and overstating financial results in its 2019 SEC filings.

The investors are represented by Shawn A. Williams, Daniel J. Pfefferbaum, Hadiya K. Deshmukh and Ellen Gusikoff Stewart of Robbins Geller Rudman & Dowd LLP, Thomas C. Michaud of VanOverbeke Michaud & Timmony PC, Peter S. Pearlman of Cohn Lifland Pearlman Herrmann & Knopf LLP, and Christopher A. Seeger of Seeger Weiss LLP.

The case is City of Warren Police and Fire Retirement System v. Prudential Financial Inc. et al., case number 2:19-cv-20839, in the U.S. District Court for the District of New Jersey.

Source: Law360 

Judge Wants Revisions To Apple’s $490 Million Investor Settlement 

U.S. District Judge Yvonne Gonzalez Rogers has refused to preliminarily approve Apple’s $490 million settlement to end a class action lawsuit by investors alleging the company misled them about iPhone sales in China. While the judge found the key settlement terms satisfactory, she said the agreement needs “a little bit more work” before she would grant preliminary approval.

Judge Gonzalez Rogers criticized the overly “convoluted” 20-page notice to investors, saying the first page should explain the case and settlement to investors in simple language. She also took issue with the broad and repeated use of the term “relate to” in the settlement’s release provision.

The judge questioned whether the court should award interest on the plaintiffs’ attorneys’ fees, which could be up to $122.5 million plus $3 million in expenses. The judge also asked for more information on the proposed settlement administrator, Gilardi & Co., questioning why the investors’ lawyers didn’t bid the job out.

Judge Gonzalez Rogers was further concerned that the notice instructs investors to get documents postmarked by certain dates, which she said is no longer possible for items dropped in a mailbox and not stamped at the counter.

The investors had called the $490 million settlement a tremendous result. It potentially is the third-largest securities class action recovery of all time in the Northern District of California. The settlement would resolve claims that Apple CEO Tim Cook misled investors about a slowdown in demand for iPhones in China, one of its biggest markets. Apple ultimately slashed its revenue forecast in early 2019. The company then missed its forecasted revenue by about $9 billion, causing Apple stock value to drop 9% the next day.

The investors are represented by Shawn A. Williams, Daniel J. Pfefferbaum, Kenneth J. Black, Hadiya K. Deshmukh, Jacob G. Gelman, Mark Solomon, Ellen Gusikoff Stewart and Jason A. Forge of Robbins Geller Rudman & Dowd LLP and Thomas Michaud of VanOverbeke Michaud & Timmony PC.

The Employees’ Retirement System of the State of Rhode Island is represented by Carol Villegas of Labaton Keller Sucharow LLP.

The case is In re: Apple Inc. Securities Litigation, case number 4:19-cv-02033, in the U.S. District Court for the Northern District of California.

Source: Law360

MASS TORTS LITIGATION

Beasley Allen Mass Torts Lawyers Make A Difference 

We continue our focus on the role that our trial lawyers play in the regulation of Corporate America, this time looking at Beasley Allen’s Mass Torts Section.  Government regulation of pharmaceuticals, medical devices, and consumer products relies on its companies to disclose all that they know about their products – good and bad.  When those companies fail to disclose important risks of serious injuries, lawyers help to bring those risks out in the open and hold the companies accountable.  For more than 20 years, Beasley Allen lawyers have successfully handled numerous important cases involving pharmaceuticals and medical devices.  

Our Mass Torts Section typically handles cases that eventually become multi-district litigations (MDL).  An MDL is a type of complex legal proceeding that can occur after multiple lawsuits are filed in federal courts across the country by individuals who have sustained similar injuries by a company’s conduct.  An MDL is federally authorized under 28 U.S. Code § 1407 and is permitted where consolidation of cases would convenience the parties and promote efficiency and consistency in litigating pre-trial matters.  MDLs are usually organized with lead or co-lead counsels on each side, with a Plaintiff’s Steering Committee (PSC) and/or Plaintiff’s Executive Committee (PEC) assisting lead counsel(s) to move the litigation forward.  Beasley Allen lawyers have been appointed as lead or co-lead counsel in at least 10 MDLs and have been appointed to the PEC and/or PSC in 43 additional MDLs.

Our Mass Torts Section has made significant contributions to consumer health and well-being.  An early example is Vioxx, where Beasley Allen’s Andy Birchfield served as Lead Co-Counsel and obtained a then-record global settlement against pharmaceutical giant Merck, which paid $4.85 billion to compensate victims of Vioxx-related heart attacks and strokes.  

Another example is the transvaginal mesh (TVM) litigation, where our firm was intimately involved in this litigation by serving in leadership positions including the PSC for five separate transvaginal mesh MDLs.  As a result of this litigation, some of these polypropylene mesh products have been removed from the market, and physicians are now more aware of the issues caused by TVM and the alternative treatments available for stress urinary incontinence and pelvic organ prolapse.

Perhaps one of the most notable and more recent cases handled in Beasley Allen’s Mass Tort Section is the ongoing litigation against Johnson & Johnson and their talcum baby powder.  Beasley Allen became involved in the talcum powder litigation shortly after several epidemiological studies were published showing the association between genital talc use and ovarian cancer.  Since that time, Beasley Allen lawyers have spent the last 10 years trying these cases all over the country.  

In 2016, Beasley Allen convinced three separate juries to find Johnson & Johnson at fault and award damages totaling $72 Million, $55 Million and $70 Million, respectively.  Shortly thereafter, baby powder manufacturers started including cancer warning language on their bottles.  

In 2017, Beasley Allen convinced 2 additional juries to find Johnson & Johnson at fault with awards totaling $110 Million and $417 Million. The firm also serves as co-lead counsel in the federal court talcum powder MDL, where thousands of these cases have been filed by plaintiffs from states throughout the country.  Due to the ongoing efforts of the Beasley Allen Talc Litigation Team, Johnson & Johnson pulled Talcum Baby Powder off the market in North America in the summer of 2020. However, Johnson & Johnson’s reprehensible corporate conduct continues. 

In October 2021, Johnson & Johnson used a controversial maneuver called the “Texas Two-Step” to shift its talc liabilities into a newly-created subsidiary, which subsequently filed bankruptcy.  The bankruptcy was dismissed in April 2023 after the U.S. Third Circuit Court of Appeals found that its subsidiary was not in financial distress and was ineligible for bankruptcy protection.  Beasley Allen continues to fight Johnson & Johnson’s efforts to limit their talc liabilities through bankruptcy.    

Our Beasley Allen Mass Torts Section strives to continue the firm’s legacy of “helping those who need it most” and is currently involved in the following litigations:

• Acetaminophen and Autism/ADHD
• Hair Relaxers
• Kratom
• NEC Baby Formula
• Ozempic/GLP-1
• Social Media Harm
• Talcum Powder and ovarian cancer

Philips Respironics Agrees To $1.1 Billion Settlement To Resolve CPAP Claims 

A settlement has been reached in the ongoing litigation against Philips Respironics involving its recalled CPAP and BiPAP ventilator machines. Nearly 15 million machines were recalled on June 14, 2021, due to the harmful effects of the degrading sound abatement foam used to line these machines. 

The PE-PUR foam, used to reduce the noise and vibration of the machine, and its off-gasses have long been known by the industry to be toxic. These toxic particles and fumes can enter the devices’ airways, which then, in turn, are inhaled by the users. The potential health risks for inhaling particles of the PE-PUR foam include asthma, irritation to the respiratory tract, and cancer-causing effects to organs such as the lungs. 

The exact details of the settlement, as of press time, had yet to be determined, but the related payments are expected to be disbursed during 2025. The plaintiff steering committee has stated that payment will be directed to those users of recalled device who “suffer[ed] significant physical injuries.” These injuries and payment schedules will be among those details forthcoming in the finalized settlement agreement. 

Hair Relaxer Victims Share Their Inspiring Story

Last month an in-person interview with NBC News involved five of our hair relaxer clients. This interview was seen nationally on the evening news. The persons interviewed are clients represented by Navan Ward, a lawyer in our Mass Torts Section. Frances Walters, Marnitta Ballard, Michelle Velez, Carol Patillo, and Nina Williams, were interviewed by the legendary Lester Holt. These 5 brave ladies shared their heartbreaking but also heartwarming stories about the devastating consequences related to hair relaxer usage. 

One of the clients shared how it was necessary for her to start using hair relaxers when she graduated college in order to obtain a job as a teacher. Two of the clients discussed how the surgeries to remove their cancers negatively affected their ability to have children. Two others talked about how they each found out about their cancer diagnosis and the necessary treatment. All of them relayed how the use of hair relaxers has changed their lives forever.  

These brave women and their stories will undoubtedly sound an alarm to women who don’t know about the dangers of hair relaxers. Hopefully, they will also convince women who are currently users and reluctant to quit using these products to stop using them. We are hopeful that the vulnerability of our clients will help save the lives of others as a result of their willingness to tell their stories.

Beasley Allen lawyers, led by Navan Ward, continue to file lawsuits on behalf of women who regularly used hair relaxers and developed uterine cancer, ovarian cancer, or endometrial cancer after years of using hair relaxers. The five women interviewed reflect a cross-section of the many other women who Beasley Allen represents and who have been injured by these products. 

Ozempic / GLP-1 MDL Judge Appoints Beasley Allen Lawyer To Leadership 

U.S. District Judge Gene Pratter oversees In re: Glucagon-like Peptide-1 Receptor Agonists (GLP-1 RAs) Products Liability Litigation (MDL No. 3094) in the U.S. District Court for the Eastern District of Pennsylvania. This litigation involves personal injury cases linked to severe stomach and intestinal complications, as well as failure to warn of severe risks like intraoperative aspiration.  The Ozempic/GLP-1 MDL has been off to a fast start with many initial case management decisions.  

Judge Pratter recently signed Case Management Order No. 6, which appointed the lead lawyers on behalf of the nationwide group of plaintiffs.  The MDL established four co-lead counsel, two liaison counsel, ten Plaintiffs’ Executive Committee (PEC) members, and ten Plaintiffs’ Steering Committee (PSC) members.  

We are pleased that Beasley Allen’s Ryan Duplechin was among those lawyers appointed to the PSC.  Ryan will work closely with the other lead lawyers to pursue justice on behalf of the thousands of people harmed by GLP-1 RAs such as Ozempic, Wegovy, and Rybelsus (manufactured by Novo Nordisk), as well as Mounjaro, Trulicity, and Zepbound (manufactured by Eli Lilly and Company).

Judge Pratter also entered an order setting “Science Day” for June 14, 2024.  Science Day is an opportunity for the parties to present an overview of the medical and scientific issues that will be critical throughout the litigation.  Plaintiffs and defendants will have a designated amount of time to present their scientific positions and educate Judge Pratter during Science Day.  

Beasley Allen is fully committed to the Ozempic/GLP-1 Litigation and our lawyers are continuously available to help those who have been harmed by these drugs. 

Beasley Allen Lawyer Appointed To Leadership Role In Toxic Baby Food MDL

The toxic baby food litigation, known as In re: Baby Food Products Liability Litigation (MDL No. 3101), is overseen by U.S. District Judge Jacqueline Scott Corley in the Northern District of California.  These cases allege that baby food companies knowingly sold – and continue to sell – products tainted with heavy metals that can cause brain damage, ultimately manifesting as diagnoses of autism or ADHD.  

The cases were consolidated to the Northern District of California by the Judicial Panel on Multidistrict Litigation in April 2024.  The baby food litigation comes after two different Congressional Reports were released in 2021 with shocking findings that manufacturers knowingly sold these toxic foods and that the industry’s claimed self-regulation failed to protect consumers.

In her May 16, 2024 Pretrial Order, Judge Corley established two Co-Lead Counsels, Plaintiffs’ Liaison Counsel, and sixteen Plaintiffs’ Steering Committee (PSC) members.  We are pleased that Beasley Allen’s Mary Cam Raybon was among those appointed to the PSC.  Mary Cam will work closely with the other lead lawyers in this litigation to pursue justice on behalf of thousands of children harmed by toxic baby foods manufactured by some of the most popular baby food brands, such as Gerber, Plum, Earth’s Best, and Parent’s Choice.

Infant Formula Litigation Update 

Beasley Allen lawyers continue to investigate and handle cases where cow’s milk-based formulas and milk fortifiers have caused Necrotizing Enterocolitis in premature infants. Necrotizing enterocolitis (NEC) is a serious and often fatal condition that results in the degradation and subsequent perforation of the bowels.  Studies clearly show that premature, underweight infants are at a much higher risk of this often-fatal condition when given cow’s milk-based formulas like Enfamil and Similac.  Despite the overwhelming science, and the fact that virtually every pediatric medical organization worldwide recognizes the heightened risk of NEC from these formulas, these manufacturers offer no warning whatsoever on their products about the risk.  

The federal Infant Formula litigation has been consolidated into a multi-district litigation (MDL) in the Northern District of Illinois before U.S. District Judge Rebecca Pallmeyer.  Currently, the parties in the MDL are working towards the first bellwether trials, which are expected to take place in early 2025.  At this time, parties continue the discovery process.

Beasley Allen has cases pending in Madison County, Illinois.  Those cases are presently on hold following the defendants’ appeal of several jurisdictional decisions by Presiding Judge Dennis Ruth.  All briefs have now been filed with the appellate court, and our lawyers await the court’s ruling.  We are hopeful that those appeals will be resolved soon so our trial schedule in 2024 can be resumed.  In the meantime, experts in the case are being deposed, and discovery continues.

Hawaii Secures $916 Million Settlement In Plavix Case 

Bristol-Myers Squibb Co. and Sanofi have been ordered to pay over $916 million to the State of Hawaii. This ruling comes after a judge found that the companies failed to warn patients of East Asian or Pacific Island ancestry about the health risks associated with their blood thinner, Plavix. The companies knew of a diminished response to the drug in some non-white patients but did not conduct research into this resistance, fearing it would negatively affect their profits.

Internal documents revealed that the companies were aware of the risks since Plavix’s launch in 1998 but chose to avoid studies that could reveal negative information. The judge ruled that they had a duty to warn of these risks, regardless of whether the cause was known. The companies’ actions were deemed deceptive under Hawaii law, and they were found to have knowingly placed patients at risk to increase profits.

The litigation has been ongoing for over a decade, with the original trial in 2020 and a retrial in 2022. The Supreme Court of Hawaii upheld findings of unethical behavior by the companies, but required a new trial on certain claims. The penalties include $834 million for deceptive practices and an additional $82 million for unfair practices.

Hawaii officials stated that the award will support public health initiatives and emphasized the importance of companies being truthful about medication risks. Bristol-Myers and Sanofi plan to appeal, maintaining that Plavix is safe and effective for all patients, despite the ruling. They argue that the penalties are excessive and not justified by the evidence.

Hawaii is represented by Dan Alberstone, Peter Klausner, Evan M. Zucker and Elizabeth Smiley of Baron & Budd PC and Richard Fried and Patrick McTernan of Cronin Fried Sekiya Kekina & Fairbanks.

The case is State of Hawai’i v. Bristol-Myers Squibb Co. et al., case number 1CC141000708, in the First Circuit Court of the State of Hawaii.

Source: Law360

TOXIC TORT LITIGATION

What Is A Toxic Tort?

On several occasions, I have been asked by persons outside our firm, “What exactly is a toxic tort?” I realize it’s a term most folks don’t fully understand. In fact, even many good lawyers need help with an explanation. So here it goes – a toxic tort refers to a specialized category of legal actions brought by individuals who have suffered harm due to their exposure to hazardous substances. 

Toxic Torts litigation typically falls within the larger framework of product liability law. To successfully handle a toxic tort claim in the courts, a plaintiff must prove exposure to a dangerous substance, establish the defendant’s liability for that exposure, demonstrate that the plaintiff has have incurred harm as a result, and show that the harm was directly caused by the toxic substance.

Toxic tort cases can emerge from a variety of scenarios, including adverse reactions to pharmaceutical drugs, exposure to harmful chemicals in the workplace, or contamination from environmental pollutants. 

At Beasley Allen our Lawyers on the Toxic Torts team are currently working on a variety of cases which include:

Camp Lejeune Water Litigation

• Aqueous Film Forming Foam (AFFF)
• PFAS Water Cases
• Paraquat
• Public nuisance for government clients

Rhon Jones heads up the Toxic Torts Section at Beasley Allen. He leads a group of excellent lawyers in the Section. They welcome the opportunity to work with other lawyers on any of these types of cases. More information can be found on our website. You can also contact Tracie Harrison, Director of the Section. She will have one of the lawyers in the Section respond to you. 

An Update On The JUUL Litigation

As previously reported, the JUUL e-cigarette litigation was successfully resolved through a series of settlements following three-plus years of hard-fought litigation in both state and federal court. The terms and amount of the settlements with JUUL Labs and its officers and directors are confidential. Altria Group, Inc., a JUUL investor that helped fuel the nation’s youth vaping crisis, later settled for $235 million. 

Together, these settlements resolved the personal injury, consumer class action, school district, local government entity, and tribal cases, providing meaningful compensation to address injuries and the impact of the youth vaping epidemic. 

While all Beasley Allen clients opted to participate in the settlement, there are a handful of “opt-out” cases that remain in litigation in the Northern District of California.

Beasley Allen was one of the first firms in the country to file personal injury lawsuits on behalf of minors against JUUL and was the first law firm to sue JUUL on behalf of school districts. Ultimately, Beasley Allen represented more plaintiffs in this litigation than any other firm in the country. Beasley Allen clients and lawyers played critical roles in the litigation’s personal injury, class, and government entity bellwether trial cases. With the litigation phase completed, Beasley Allen’s JUUL team continues to work on the settlement disbursement process for our clients.

More Alabama Public Water Systems File PFAS Lawsuits

Beasley Allen has filed two new lawsuits representing water utilities suffering from PFAS pollution.  The lawsuits came on the heels of the new PFAS regulation issued by the EPA.  

In separate lawsuits, the Municipal Utilities Board for the City of Albertville and the Mobile Area Water and Sewer System are suing a group of chemical manufacturing companies, rug mills, and landfills.  These utilities have detected PFAS chemicals at levels above the EPA goal of zero, and each seeks to recover the cost of removing PFAS from their customers’ drinking water.

These lawsuits are the latest in a trend of litigation brought on behalf of public utilities.  We will discuss Beasley Allen’s involvement in the litigation. 

In Alabama, Beasley Allen represents many public utilities including several in active litigation for PFAS remediation.  Lawsuits for the utilities in Gadsden, Centre, Shelby County, and Talladega County have already been filed and are at various stages of litigation.  In October of 2022, Beasley Allen secured settlements for the Water Works and Sewer Board of the City of Gadsden against some of the defendants.  These funds are being used toward the cost of construction and operation of advanced filtration capable of removing PFAS from drinking water.

Beasley Allen has also filed a lawsuit on behalf of landowners in Calhoun, Georgia, for PFAS contamination from the carpet industry and chemical manufacturers.  For decades, the carpet industry used PFAS to make carpets stain resistant.  Calhoun is home to some of the largest carpet manufacturers in the world.  As part of the manufacturing process, carpet mills send their industrial wastewater to the City of Calhoun’s sewers. The city then disposes of sewage sludge, known as bio-solids, by allowing local farmers to use the material as fertilizer.  

One local farm accepted tons of this sludge on a farm consisting of nearly 1,000 acres.  Beasley Allen’s clients are residential property owners who live adjacent to this massive sludge field.  These families and individuals have lived on this contaminated property for years without knowing about the contamination.  Many of these homes use well water for drinking, cleaning, and bathing. It was not until November 2023 that it was learned these wells were contaminated with high levels of PFAS chemicals.  Our clients are seeking to recover the cost of remediation and lowered property values caused by the contamination caused by the defendants’ PFAS

PFAS/AFFF Litigation Update

The Aqueous Film Forming Foam (AFFF) litigation is pending before the U.S. District Judge Richard Gergel in the United States District Court of South Carolina. Judge Gergel issued an order on March 23, 2024, in the case. 

Amended CMO 28, paragraph 6(a), orders plaintiffs asserting or seeking to assert “Unlisted Claims” (injuries other than kidney cancer, testicular cancer, hypothyroidism/thyroid disease, ulcerative colitis, liver cancer, and thyroid cancer, or not pregnancy-induced hypertension or high cholesterol) to dismiss their claims without prejudice within 90 days of April 24, 2024. 

Defendants named in any action voluntarily dismissed pursuant to paragraph 6(a) are deemed to have agreed that the statute of limitations is tolled from the date of plaintiffs’ original filing [paragraph 6(b)]. 

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

As discovery for the personal injury bellwether cases proceeds, San Francisco recently made national news as its lawmakers considered passing an ordinance prohibiting the use of firefighting protective gear made with per- and polyfluoroalkyl substances (PFAS). Should the ordinance pass, the law would require the city to purchase protective clothing made without PFAS. 

As we all know, PFAS can be ingested or absorbed into the skin and has been linked to harmful health conditions. However, the precise levels of PFAS exposure through protective gear remain largely unknown. 

Beasley Allen lawyers Saima Khan ([email protected]), David Diab ([email protected]), Tucker Osborne ([email protected]), and Rhon Jones ([email protected]) are handling these cases. If they can be of any assistance to you, please contact them.

Pfizer Agrees To Settle Over 10,000 Zantac Cancer Lawsuits

Pfizer Inc. has settled more than 10,000 cases alleging that the company concealed the cancer risks associated with its Zantac heartburn drug. This settlement, which covers cases in state courts across the United States, is the largest in the ongoing litigation. However, it does not entirely resolve Pfizer’s exposure to Zantac-related claims. The financial details of the agreement have not been disclosed.

The settlement is expected to relieve investors, as other Zantac manufacturers, such as GSK and Sanofi, have also reached settlements. Concerns about the drugmakers’ liability in Zantac lawsuits had previously caused a significant drop in their combined market value.

Pfizer has stated that it will continue to explore opportunistic settlements of certain cases when appropriate. The company has not sold a Zantac product in over 15 years and has done so only for a limited time.

The settlements came just before GSK successfully defended itself in the first U.S. jury trial over claims that GSK knew about the serious risks associated with Zantac. A defense verdict occurred on May 22, but we don’t have any specific information on the trial.  More than 70,000 Zantac suits have been filed in Delaware, where a judge is considering whether the scientific evidence supporting these cases is sufficient for them to proceed to trial.

GSK and Warner-Lambert developed Zantac, which was initially introduced as a prescription drug in 1983 before becoming an over-the-counter heartburn treatment in 1996. In 2019, Sanofi, which acquired the drug in 2017, recalled it after an independent lab released tests showing the likely presence of the carcinogen NDMA in the drug and its generics.

The main Delaware case is In Re Zantac, N22C-109-101, Delaware Superior Court (Wilmington).

Source: Claims Journal 

$725 Million Verdict Against Exxon In Benzene Exposure Suit

In a significant verdict, a Philadelphia jury awarded $725.5 million to Paul Gill, a former service station mechanic from New York, who alleged that Exxon Mobil Corp. failed to warn consumers about the health risks associated with benzene exposure in its products. Plaintiff Gill claimed that his exposure to high levels of benzene while using gasoline and solvents to clean car parts with his bare hands led to his leukemia diagnosis in 2019.

After deliberating for a day following a seven-day trial, the jury found 10-2 in favor of the plaintiff and awarded him $725 million. An additional $500,000 was awarded to the plaintiff’s wife. Exxon Mobil has been aware of the dangers of benzene since at least 1950. The company concealed this information from the public and failed to take necessary precautions to limit exposure.

This verdict holds corporations like Exxon accountable for prioritizing profits over people’s health and safety. The jury also found that none of the other companies named as defendants in the suit, including Shell Oil Co., Sunoco LLC, and manufacturers of various cleaning products the plaintiff had sued, were guilty of negligence.

The case highlights the ongoing concerns surrounding the health risks associated with benzene exposure and the responsibility of corporations to adequately warn consumers about these risks. The substantial award granted to the plaintiff and his wife underscores the potential consequences for companies that fail to prioritize public health and safety.

The plaintiff is represented by Patrick Wigle and Rajeev Mittal of Waters Kraus Paul & Siegel, and Andrew J. DuPont of the Locks Law Firm.

The case is Gill et al. v. Exxon Mobil Corp. et al., case number 200501803, in the Court of Common Pleas for Philadelphia, Pennsylvania.

Source: Law360

11th Circuit Rejects Monsanto’s Request For A Rehearing In Roundup Appeal

The Court of Appeals for the Eleventh Circuit has denied Monsanto’s latest request for a rehearing en banc and a panel rehearing of a ruling that allows a Georgia doctor to proceed with a state law failure-to-warn claim against the company. The claim alleges that Monsanto failed to warn about the cancer risks associated with using its Roundup weedkiller despite federal pesticide labeling requirements.

The panel initially revived the doctor’s claim in July 2022, stating that only federal actions carrying the force of law can preempt state law, and the EPA’s pesticide registration process lacks such force. The panel reaffirmed its decision in October 2022. In July 2023, the full Eleventh Circuit instructed the panel to reconsider the preemption issue under a force-of-law analysis in response to another rehearing request from Monsanto.

The panel reached the same conclusion on February 5, 2024, prompting Monsanto to file its second petition for rehearing in late February. The company argued that the panel’s decision was “far-reaching and untenable” and that federal labeling requirements impose a rule of law that must be followed.

The Eleventh Circuit’s denial of Monsanto’s petition has significant implications for the thousands of pending lawsuits. These cases, which claim that the company failed to warn consumers about the cancer risks associated with glyphosate, can now proceed. This decision could potentially set a precedent for similar cases, particularly those concentrated in a California multidistrict litigation. Bayer, Monsanto’s parent company, says it’s considering its legal options. 

Carson is represented by Ashleigh R. Madison of Southeast Law LLC and David C. Frederick, Scott K. Attaway and Derek C. Reinhold of Kellogg Hansen Todd Figel & Frederick PLLC.

The case is John D. Carson v. Monsanto Co., case number 21-10994, in the U.S. Court of Appeals for the Eleventh Circuit.

Source: Law360

Paraquat Litigation Update

We will take a look at the status of the ongoing Paraquat litigation. While 280 new Paraquat cases were filed in February in the MDL, we saw a significant drop in March with only 47 new cases filed. However, the numbers did not stay low for long. We saw them bounce back up with April having 225 new filings, making the total cases at the time of this writing approximately 5,590 pending Paraquat cases in the MDL. Although April saw the number of cases filed increase again, it was also a month of challenges.

On April 17, 2024, in a 99-page opinion, Chief Judge Rosenstengel dismissed four bellwether lawsuits after excluding testimony from Dr. Martin Wells, the key expert on general causation for the plaintiffs in these cases. Without his testimony, these plaintiffs were unable to establish the necessary causal link for their claims. This dismissal is disheartening for the four plaintiffs directly affected. It appears their only recourse is to appeal the decision.

However, this litigation is far from over. Lawyers for the Paraquat plaintiffs continue to strengthen their expert testimony, bolstering their cases with more robust expert evidence to support the strong scientific claims linking Paraquat to Parkinson’s disease. 

Judge Rosenstengel has instructed involved parties to select sixteen new cases for limited fact discovery. The plaintiffs are to choose eight of these cases, while Chevron and Syngenta will each select four. These cases must be filed on or before the judge’s order date and must not contain any materially deficient Plaintiff Assessment Questionnaires.

Once the selections are made, the court will issue a Case Management Order outlining the discovery schedule and setting trial dates. Litigation continues, and plaintiffs hope that focusing on expert testimony will allow the court to continue with these cases. 

Monsanto Faces Potential Merger Of Trials Over PCB Contamination In Washington Schools 

King County Superior Court is considering consolidating the remaining cases against Monsanto over alleged PCB contamination at a public school site in the State of Washington. This comes after an appeals court overturned a $1.7 billion verdict against Monsanto. The company has had some success in reducing other large awards. The plaintiffs, consisting of former school staff and student families, claim health issues due to PCB exposure.

Judge Jim Rogers is looking to expedite the process due to the slow pace of trials and limited court resources. He is considering using a civil court rule for joining plaintiffs with common legal and factual questions, which could apply to these cases. Parties had until May 24 to propose or object to case management plans, aiming to conclude this phase by July. We had not heard anything on that at press time for this issue. 

Monsanto has appealed several verdicts and is using a recent appellate decision, which limited claims based on a 12-year statute of repose, to argue for the reversal of other cases, including a reduced $438 million verdict. The company is requesting a stay of enforcement on this judgment, while the plaintiffs are awaiting court direction for a response.

The appellate ruling is not final, but it has resolved many issues, and further appeals are expected. Monsanto believes this ruling changes the litigation landscape and is awaiting how it will apply to the remaining cases. Judge Rogers has not referred to already tried cases in his consolidation discussion, indicating those will be handled separately.

The Bard plaintiffs are represented by Friedman Rubin PLLP, PWRFL Law and Trial Lawyers for Justice. Pfau Cochran Vertetis Amala PLLC and Schroeter Goldmark & Bender are representing other Sky Valley plaintiffs.

The case is Angela M. Bard et al. v. Pharmacia LLC, number 21-2-14305-5, in King County Superior Court.

Source: Law360

CONSUMER CORNER

Federal Consumer Protection Agency Survives Attack By Corporate America

The Consumer Financial Protection Bureau (CFPD) has been under attack by Corporate America since its inception in 2010. The latest assault on the CFPD involved the allegation that CFPD’s funding was unconstitutional. Not true, says the U.S. Supreme Court in its May 16, 2024, opinion.

The Supreme Court’s decision in the case of CFPB v. Community Financial Services Association rescues the consumer financial regulator from an effort by payday lenders to invalidate every action it has taken since it was established in 2010. There have been more than four million complaints published since the database of the CFPD was established in 2011. The agency has been effective; hence, the attacks by the financial industry, which obviously fear any oversight of their activities. 

Surprisingly, the 7-2 decision was authored by Justice Clarence Thomas, one of the court’s most conservative and controversial members on the court. Two other conservative members of the court dissented: Justice Samuel Alito, joined by Justice Neil Gorsuch.

The lawsuit began in 2017 after the payday lender trade group, Community Financial Services Association, sued to overturn a CFPB rule prohibiting illegal debits from bank accounts. The payday lenders argued against the rule and that the CFPB and all its actions since 2010 were unconstitutional due to its particular funding structure. Again, the court rejected these positions. 

After the 2008 global financial crisis, The Obama administration and Congress created the CFPB to protect consumers from predatory financial practices that played a key role in the subprime mortgage fiasco. Lawmakers wisely sought to insulate the new agency from financial industry influence by craftily funding it outside the ordinary appropriations process. The agency was housed inside the Federal Reserve and permitted to draw up to $600 million in funds from the Fed’s treasury annually.

In their lawsuit, the payday lenders argued that this funding mechanism violated Article I, Section 9 of the Constitution, also known as the Appropriations Clause, which states that “[n]o money shall be withdrawn from the Treasury, but in Consequence of Appropriations made by Law,” and that the mechanism wrongfully gave the agency “perpetual” funding.

The court rejected the illegal funding argument. Justice Thomas wrote in the majority decision: 

Under the Appropriations Clause, an appropriation is simply a law that authorizes expenditures from a specified source of public money for designated purposes. The statute that provides the Bureau’s funding meets these requirements.

In October 2023, when this case was argued before the Supreme Court, Solicitor General Elizabeth Prelogar stated then that Congress has frequently created agencies with funding mechanisms outside of the normal appropriations process since the country’s founding. Like the CFPB, the Customs Service, Postal Service and others were all funded through non-annual, standing appropriations.

We shouldn’t be surprised that the payday lenders oppose the CFPB. It’s no secret as to the motivating factor behind their position… If the funding mechanism were declared unconstitutional, as payday lenders argued, then all actions taken by the agency must be invalidated. This would have resulted in billions of dollars in fines levied against payday lenders since the agency’s inception, being reversed.

Unfortunately, while this challenge to the CFPD failed, this won’t be the last legal challenge it will face from the well-funded and persistent financial industry. We will do our part at Beasley Allen to continue the good fight for as long as possible to protect consumers from predatory lending practices.

Sources:  Huffington Post and Law360

EPA Bans Methylene Chloride To Safeguard Public 

The Environmental Protection Agency (EPA) has finalized a rule banning all consumer uses of methylene chloride, a toxic chemical widely used as a paint stripper. This decision aims to protect consumers from health risks associated with the chemical, including liver cancer, lung cancer, and damage to the nervous, immune, and reproductive systems.

Methylene chloride, also called dichloromethane, is a colorless liquid that emits a toxic vapor said to be responsible for killing several dozens of workers and sickening many others.

While the new rule prohibits consumer applications of the chemical, it allows certain critical industrial and military uses to continue under strict worker protection measures. The rule provides for the chemical’s continued use in manufacturing refrigerants as an alternative to greenhouse gas-producing chemicals, in electric vehicle batteries, and in critical military functions.

The government will phase out consumer use of methylene chloride within a year, while most industrial and commercial uses will discontinue within two years. The EPA’s final risk management rule mandates companies to rapidly phase down the manufacturing, processing, and distribution of methylene chloride for all consumer and most industrial uses, including home renovations, where it is commonly used to strip paint. 

The chemical industry contends that the EPA overstated the risks of methylene chloride and that the existing protections were adequate. The EPA, however, pushed back against the industry’s claims, stating that previous safeguards failed to protect workers from the potentially deadly chemical. 

This ruling marks the EPA’s second risk management action under the amended Toxic Substances Control Act during President Biden’s administration. In March, the EPA banned ongoing uses of chrysotile asbestos, the only asbestos form currently used in or imported to the U.S. 

Source: Associated Press

Flint Water Crisis Escalates: Judge Considers Sanctions Following Water Company’s Publicity Stunt 

U.S. District Judge Judith E. Levy, who is overseeing the Flint water crisis litigation, has expressed strong disapproval of Veolia North America LLC (VNA) and its PR firm Actum LLC, for their alleged smear campaign against Corey Stern, a well-respected lawyer who represents Flint children. Despite a court order, VNA and its parent company Veolia Environment SA (VE), along with Actum, have failed to provide documents explaining their involvement in the campaign. The campaign tactics included a truck broadcasting disparaging comments about Flint made by Stern and a website criticizing him.

Judge Levy has held VNA, VE, and Actum responsible for these actions, which she believes were intended to disrupt the litigation and undermine settlements. She threatened sanctions if the documents were not submitted by May 20. The judge is also considering a gag order in the case, as well as contemplating sanctions against Actum’s lawyer, Ashlee N. Lin, for potential involvement in the campaign.

VE has publicly disagreed with Judge Levy’s decisions and maintains that Stern’s allegations against them are false. Meanwhile, Stern has chosen not to comment on the situation. Amidst all of this, VNA has settled class claims with Flint residents for $25 million, averting a trial set for February.

The individual plaintiffs are represented by Corey M. Stern, Moshe Maimon and Melanie Daly of Levy Konigsberg LLP.

The case is In re: Flint Water Cases, case number 5:16-cv-10444, in the U.S. District Court for the Eastern District of Michigan.

Source: Law360

$10 Million Settlement Secured Against Major Telephone Carriers 

The State of Alabama, along with other states, was involved in a lawsuit against major telephone carriers over deceptive advertising practices. The settlement reached was $10.25 million, with Alabama’s share covering legal fees and costs. Attorney General Steve Marshall emphasized the importance of clear disclosure by businesses regarding product limitations and conditions, which led to the necessity of this settlement.

The lawsuit addressed misleading advertisements about “unlimited” data, “free” phones, and incentives to switch carriers, which did not adequately disclose their limitations or conditions. As a result of the settlement, the carriers are now required to:

• Ensure all future advertisements are truthful, accurate, and non-misleading.
• Only market “unlimited” data plans as such if there are no numerical data limits during a billing cycle, and disclose any data speed restrictions and their triggers.
• Clearly disclose the specifics when offering to pay consumers to switch carriers, including the type of fees, payment amounts, form, and schedule of payment, and all requirements for eligibility.
• Only advertise wireless devices or services as “free” when all material terms and conditions are clearly disclosed.
• Clearly inform consumers when they are entering into a lease agreement for wireless devices.
• Only claim consumers will save money on products or services if there is a reasonable basis for comparison with other providers’ prices, and any material differences are disclosed.
• Appoint a dedicated employee to work with attorneys general to address consumer complaints.
• Train customer service representatives to comply with these terms and enforce a compliance program.

This settlement aims to provide assurances that will benefit consumers in Alabama and ensure greater transparency in the telecommunications industry.

Source: Law360

Live Nation Ticket Buyers File Lawsuit Following U.S. Justice Department’s Case

A $5 billion class action lawsuit has been filed against Live Nation and its subsidiary Ticketmaster. This comes after the U.S. government and several states’ legal actions sought to dismantle the companies over antitrust concerns. The lawsuit, filed in a Manhattan federal court, represents potentially millions of ticket buyers who allege that Live Nation has monopolized the live events industry, coercing venues and stifling competition.

The class action, which piggybacks on the government’s case, is said to add significant legal weight against Live Nation, which has dismissed the government’s claims as “baseless,” asserting that competition in the live events market is stronger than ever.

The case was assigned to Judge Arun Subramanian, a recent appointee to the bench. This will be his first antitrust case as a judge. Legal experts suggest that Live Nation may defend itself by citing the Justice Department’s prior approval of its merger with Ticketmaster.

The Justice Department contends that Live Nation’s behavior since its 2010 merger with Ticketmaster has demonstrated increasingly anticompetitive actions, warranting the current legal scrutiny.

This lawsuit could be the beginning of a series of consumer antitrust cases against Live Nation, potentially reshaping the live events industry landscape.

Source: Reuters

Justices Support Crypto Platform Users In Arbitration Dispute

The U.S. Supreme Court has ruled that it is the role of judges, not arbitrators, to determine if a later contract between businesses and consumers supersedes a previous agreement to resolve disputes through arbitration instead of litigation. This unanimous decision supports the rights of Coinbase Inc. users in a case involving conflicting contracts: one mandating arbitration and another directing certain issues to court. Justice Ketanji Brown Jackson emphasized that arbitration must be based on mutual consent, not coercion.

The case arose from a proposed class action where plaintiffs accused Coinbase of misleadingly requiring Dogecoin purchases for sweepstakes entry, despite a free entry option. The ruling rejected Coinbase’s arguments to have arbitrators decide on the contracts, affirming that challenges applicable to both the contract and arbitration clause must be addressed by a court.

The decision clarifies that the severability principle, which requires direct challenges to arbitration clauses, does not preclude challenges to the entire contract. It also dismissed Coinbase’s concerns about potential chaos from challenges to delegation clauses, stating that courts will handle cases with two contracts, while those with one contract mandating arbitration will proceed accordingly.

Justice Neil Gorsuch’s concurrence reiterated the Supreme Court’s endorsement of the Ninth Circuit’s conclusion without supporting its reasoning. The ruling offers clarity in various business contexts, highlighting differences in arbitration provisions between employment and operating agreements.

The Supreme Court’s engagement with the case’s merits came as a surprise to many onlookers. Most believe a remand was considered likely based on oral arguments. The decision marks the second involving Coinbase and arbitration within a year, reflecting the complexity of arbitration-related contractual provisions. The main opinion delves into multiple layers of disputes, underscoring the intricate nature of such legal challenges.

Suski and the proposed class are represented by David J. Harris Jr. and Gerilyn R. Harris of Harris LLP.

The case is Coinbase Inc. v. Suski et al., case number 23-3, in the Supreme Court of the United States.

Source: Law360

THE STRUCTURE OF BEASLEY ALLEN AND CASES HANDLED

The Structure Of Beasley Allen Is Designed To Work For Clients

Beasley Allen operates in five separate sections, four litigation and one administrative. We have found the separate litigation sections concept to work very well. This concept definitely has benefited Beasley Allen clients. It has also allowed Beasley Allen lawyers to bring about national changes in product and workplace safety. 

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

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

The Mass Torts Section

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

The Toxic Torts Section

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

The Consumer Fraud & Commercial Litigation Section

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

The Personal Injury & Products Liability Section

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

The Administrative Section

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

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

The Latest Look At Case Activity At Beasley Allen

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

Practices

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

Cases 

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

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

We will give a brief explanation for each category below:

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

Resources to Help Your Law Practice

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

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

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

Co-Counsel E-Newsletter 

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

Webinars

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

Recalls Update

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

The Jere Beasley Report

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

TRIAL TIPS FOR LAWYERS

Practice Tips:  Discovery Of Metadata And Its Impact On Evidence And Shaping E-Discovery Strategies 

Suzanne Clark, a lawyer in our Mass Torts Section, has an important role in litigation handled by the firm. In her role, she assists other Beasley Allen lawyers with the discovery of electronically stored information.   This is very important in the new extremely complex field of pretrial discovery. Suzanne has vast experience in dealing with discovery issues. 

This month, Suzanne has some helpful recommendations for lawyers relating to Metadata in litigation. Read more to learn about what it is, how metadata and form of production interrelate, as well as how it impacts discovery. This is a very important topic and Suzanne is well-versed and experienced in discovery issues trial lawyers face. Let’s see what she has for us.

What is Metadata?

Metadata is data that describes the characteristics of other data.  Typical examples are the properties of an MS Word document like the location or folder path, file size, date created, date modified, authors, last saved by, word count, etc.  The metadata of a photograph (JPG file) includes the date taken, camera maker, camera model, file name, GPS latitude and longitude, and more.  Application metadata includes information like the last printed date.  Finally, “work product metadata,” is created when documents are coded in a document review platform and the coding is associated with the documents as metadata, like “hot” or “privileged” or other issue coding or notes.

Someone once described the production of Electronically Stored Information (ESI) with metadata vs. without metadata as the difference between a steak and a picture of a steak, which provides great imagery, but it is even more than that.   Metadata used in an e-discovery document review platform can be visualized and analyzed across all “documents,” to provide a better understanding of how documents are organized, who created them and when, who had access to the information, and when important events occurred (because, for example, the metadata can be used to create a timeline showing when multiple people were corresponding about certain topics).  Through analysis of metadata, one can arrive more quickly at the answer to the questions:  What happened?  When did it happen?  Who knew about it?  When did they know?

How do metadata and form of production interrelate?

  The 2006 amendment to Rule 34(b), Fed. R. Civ. P., “permits the requesting party to designate the form or forms in which it wants electronically stored information produced.”  This rule is strategically key because it means that if the requesting party requests metadata in their discovery requests, the producing party cannot, for example, just produce a bunch of PDFs of converted Word documents or Excel files wiped of the rich information found in metadata.  Picture the difference in these forms of production: 

1. a production of all PDFs with no metadata, 
2. a native file production (metadata is there but not yet processed), 
3. a production of TIFF images with extracted text and a load file containing metadata, which may also include some native file types as agreed by the parties.

In the first instance, the producing party has not provided complete evidence.  Rule 34(b)(2)(E)(ii) states that “[i]f a request does not specify a form for producing electronically stored information, a party must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms.”  Removing metadata is on its face not how ESI is ordinarily maintained.  Therefore, even if the requesting party did not specify the form of production, the producing party must still produce the ESI in a reasonable form.  If not, upon a motion to compel a reasonable form of production, a producing party may be ordered to reproduce, which will incur additional and unnecessary costs. 

With the second-described form of production, native files are precisely how documents are ordinarily maintained and do include metadata.  This form of production can be problematic for both requesting and producing parties because, for example, these file types are not static, and there may be concerns that native files are modified (negligently or intentionally).  Finally, the third illustrated form of production is often the standard, at least in complex litigation and/or Federal Court.  Static images (TIFFs) are produced, with searchable extracted text, a load file with metadata, and natives, where appropriate.  For example, native spreadsheet files are often produced with a single image placeholder plus the native file, because of the need to view formulas and hidden data that would not appear in a static image.  The same goes for slide presentations and word-processing documents with track changes, the native file is necessary to provide the full evidence available.  Which native file types will be produced is something to be negotiated between the parties and is often addressed in an ESI Protocol. 

How else does metadata impact discovery?

Metadata impacts discovery on many other levels.  Preservation of metadata is of high concern because of the duty to preserve evidence upon anticipation, and in ongoing litigation failure to preserve metadata may result in spoliation sanctions under Rule 37(e).  Defensible collection of ESI is necessary to preserve metadata. 

In Hoehl Family Found. V. Roberts, 2023 WL 3271517 (D. Vt. April 13, 2023), an ESI Protocol was in place, and the plaintiff’s request for production included language that ESI “shall be produced in a format that preserves all metadata.”  However, in the defendant’s production, 9,500 files were missing file names, and 5,500 documents had incorrect metadata in the date-created field.  Plaintiff’s counsel asserted that “defendant’s counsel acknowledged that defendants moved documents to new folders in order to then transmit documents to their counsel for document review prior to production, and that metadata was stripped during this process.”  The court sided with the plaintiff and compelled the defense to produce the requested metadata.  The court stated, “[n]otably, file system metadata makes electronic documents more functional because it significantly improves a party’s ability to access, search, and sort large numbers of documents efficiently.”

Metadata also supports verifying the authenticity of electronic documents.  Under Federal Rule of Evidence 902 certain items of evidence are self-authenticating.  In 2017, Rule 902 was amended to state, in paragraph 14, that “Certified Data Copied from an Electronic Device, Storage Medium, or File” falls within the rule “if authenticated by a process of digital identification, as shown by a certification of a qualified person that complies with the certification requirements of Rule (902(11) or (12).”  The Committee Notes state that this authentication can be done by comparison of hash value (which is metadata) or other reliable means.

As a final point, metadata can be used to give an overarching picture of the production of ESI.  As examples, metadata can quickly show (i) the date range for an entire production or for specific custodians, (ii) gaps in date ranges, (iii) custodians for which documents have not been produced, or (iv) missing metadata fields.  Metadata can also be used to organize the efficient and meaningful review of documents through organizing by custodian, information source, date, or file type.

Metadata is a valuable source of important information and insight into the facts of a case and plays a critical role in e-discovery.  There can be significant consequences to mishandling metadata resulting in orders to compel or sanctions, but there are also methods to prevent such issues and handle them if they arise.  As e-discovery evolves, and new sources of ESI become available with the increasing sophistication of technology, there is an ongoing need for legal professionals to stay abreast of these changes and effectively manage metadata within the discovery process. 

SPECIAL RECOGNITIONS

Lawyer And Employee Spotlights

David Byrne

David Byrne joined Beasley Allen in 2001 and is a lawyer in the firm’s Mass Torts Section. He handles claims against pharmaceutical and medical device companies. David shares that his decision to become a lawyer was deeply rooted in a desire to make a difference in people’s lives during their most challenging times. David says his desire to help people aligns perfectly with Beasley Allen’s creed: Helping those who need it most. He adds:

This statement isn’t just a tagline; it encapsulates why I ventured into the legal profession and continue practicing law with passion and dedication. The opportunity to assist someone in need, to stand beside them as they navigate through some of their most daunting challenges, is not just a job—it’s an honor and a privilege that I hold in high regard.

David is the proud father of Betsy and Bryson. In his free time, he enjoys hunting deer and turkey and fishing. David says the pinnacle of practicing law is the unmistakable feeling of having significantly impacted a case. He adds:

It’s about those moments when you step back and realize that your dedication, strategy, and hard work have truly made a difference in the outcome of a case.

David says Beasley Allen is unique due to its remarkable team approach to every

case and that it is not about individual egos or personal accolades; it’s about how every

lawyer and staff member at Beasley Allen prioritizes the case and, more importantly,

the client above all else. He adds:

This servant-leadership model is not just about leading; it’s about serving those we represent, ensuring their needs and interests are at the forefront of everything we do. This approach has not only garnered us respect and trust from our clients but also made us a preferred partner for other firms looking to collaborate. It’s a testament to our commitment to always doing the right thing.

David is a tremendously talented trial lawyer who works very hard and is totally dedicated to his clients. We are blessed to have him at Beasley Allen. 

Matt Griffith

Matthew “Matt” Griffith is a lawyer in Beasley Allen’s Toxic Torts Section. He is based in the Mobile office, handling cases primarily involving toxic exposure and environmental contamination of water systems. Matt explains that his journey to becoming an attorney started at a very young age with the allure of advocacy and the thrill of delving into different perspectives on the same issue. Beyond the intellectual rigor that the profession demands, his primary motivation for pursuing a career in law was to effect positive change in people’s lives. He says:

In their most challenging moments, my clients have turned to me for support. It’s an honor and a privilege to assist them during these critical times.

Matt, his wife, Lauren, and their three children, Mary Charles, Hudson, and Savannah, live in Mobile. Outside of work, Matt enjoys spending time at the beach with his family. He says he finds the most rewarding aspect of practicing law aligns with the firm’s guiding principle: helping those who need it most. He adds:

From addressing the complexities of removing hazardous chemicals from a water system to confronting the opioid crisis head-on, the opportunity to make a tangible difference in our clients’ lives is what I cherish most about my profession.

Matt shares that his admiration for Beasley Allen predated his association with the firm. He adds further, that for 45 years, Beasley Allen has been a paragon of excellence in the legal profession, continuously raising the standard for trial lawyers. Joining the firm over four years ago was a decision that required no second thought. Beasley Allen’s reputation of excellence is recognized and esteemed nationwide. It is a privilege to contribute to the firm’s longstanding tradition of serving those in need, upholding a legacy of over four decades.

Matt is another tremendously talented trial lawyer who is dedicated to his clients. He is a hard worker. We are blessed to have him at Beasley Allen. 

Alexzandra (Alex) Jolley

Alex Jolley joined Beasley Allen in December 2022. She serves as my Executive Assistant. In addition, Alex is also a Marketing Assistant in the firm’s marketing department. In her marketing role, Alex is involved in several activities, including coordinating attorney conferences, reporting on speaking engagements, updating the firm’s marketing database, and handling leads generated through the firm’s website. 

As my Executive Assistant, Alex provides day-to-day administrative duties and support, including coordinating contacts with colleagues both at Beasley Allen and outside the firm. She is very good at organizing matters. 

Alex shares that she comes from a close-knit family that settled in Montgomery in 2002. As the middle child, she has an older sister, Peighton, a first-grade teacher for Montgomery County Public Schools, and a younger sister, Josie, currently studying at Troy University. Their family also includes Jersey, which Alex describes as an energetic yet sometimes moody Wire-haired Dachshund. 

Raised in an environment that encouraged achieving goals, Alex says her parents have been her biggest supporters in both sports and academic pursuits. She adds further:

Their support motivated me to earn a degree in Business Administration with a concentration in global business marketing from Troy University.

Alex says the best part about working at Beasley Allen is the firm’s family-like atmosphere. She appreciates how everyone is always ready to lend a hand or support where needed. Alex takes pride in witnessing the firm’s motto, “helping those who need it most” in action every day.

Alex is an excellent employee who works hard and handles her duties in a professional and efficient manner. I suspect the hardest part of her job is working for an “old lawyer who is set in his ways.”

Chelsea Salter

Chelsea Salter is a Staff Assistant in the firm’s Toxic Torts Section. In her role, she provides initial correspondence support to the section’s attorneys, who handle various environmental and toxic exposure cases. She is also instrumental in assisting her team with various projects when needed. Chelsea joined Beasley Allen two years ago, and she explained that developing relationships with clients and coworkers is one of the many things she enjoys most about her job at the firm!

Chelsea shares that her personal life is filled with love and joy. She has been happily married to her husband, Zachary, since 2017. The two met in 2015. Their family includes a son named Wylder, two dogs, Ziggy and Lilly, a turtle named Leo, and two fish, Bluey and Raphael. In her leisure time, Chelsea cherishes moments with her family and close friends. She also indulges in a variety of activities including playing cards, listening to music, dancing, swimming, thrifting, traveling, and exploring the outdoors.

Chelsea says her favorite aspect of working at Beasley Allen is fostering meaningful connections with clients and aiding them with their claims to successfully secure justice and the compensation they deserve. She is a dedicated, hard-working employee and we are fortunate to have her with us. 

Maida Skaljic-Nur

Maida Skaljic-Nur joined Beasley Allen in 2020 as a Paralegal in the Mass Torts Section. Currently, she assists the section’s discovery team in many ways. Under the direction of Suzanne Clark, a lawyer in the section, Maida assists with managing and handling Electronically Stored Information (ESI) for clients’ legal matters. This includes emails, social media content, mobile phone data, and other electronic data through eDiscovery platforms. Maida also acts as the main contact between clients and third-party vendors to ensure the smooth handling of ESI. In addition to her regular duties, she assists with other aspects of discovery practice, including discovery motions, requests, and responses.

Originally from Bosnia, Maida and her family came to the United States in 1993 as refugees of a horrible genocide. She now resides in Atlanta, Georgia, with her husband, Tauhid, and their beautiful 4-year-old daughter, Kamila. Maida shares that in her free time, she enjoys spending time with her family, taking nature walks, traveling, working out, and shopping.

When asked what her favorite aspect of working at Beasley Allen was, Maida said:

I find it gratifying to work at a law firm so dedicated to the pursuit of justice for their clients. Beasley Allen never stops working to bring clients the justice they so rightfully deserve!

Maida is a dedicated, hard worker who is a definite asset to the firm. We are fortunate to have her with us. 

BEASLEY ALLEN LAWYERS SELECTED FOR LEADERSHIP ROLES

Aigner Kolom And Ryan Duplechin: Leading The Charge In Alabama’s Legal Community

We are pleased to announce that Aigner Kolom is now President of the Alabama Lawyers Association, and that Ryan Duplechin has become President of the Alabama State Bar Young Lawyers Association. 

Aigner Kolom – President of the Alabama Lawyers Association

Aigner Kolom joined Beasley Allen in August 2015 and is now a principal in the firm. Aigner brought with her a wealth of knowledge and a passion for advocacy. As a lawyer in the Mass Torts Section, Aigner has worked on significant cases involving injuries related to medical devices and medications. She is currently working on our Hair Relaxer Litigation Team.

Aigner’s professional journey is marked by her active involvement in numerous legal associations and her leadership roles within each of them. She has served as President-Elect of the Alabama Lawyers Association, Vice President of the Black Women Lawyers Association of Alabama, and Secretary/Treasurer of the Montgomery County Bar Association, among other positions.

Aigner’s contributions extend beyond the courtroom to the community, where she serves on the Board of Directors for Hope Inspired Ministries and other local organizations. Aigner has also been recognized in the Midsouth Super Lawyers “Rising Stars” list since 2020 and The National Black Lawyers Top 40 Under 40 list.

Ryan Duplechin – President of the Alabama State Bar Young Lawyers Section

Ryan Duplechin joined the Beasley Allen team in 2015 and was promoted to principal in 2023. He works on product liability cases, focusing on medical devices and medicines. 

Ryan’s involvement in the legal community extends beyond the courtroom. He played a pivotal role in establishing a COVID-19 legal hotline, demonstrating his commitment to public service. His leadership skills were recognized by the Alabama State Bar, which selected him for its prestigious Leadership Forum Class 17. He is also on the Executive Committee for the Young Lawyers at the Birmingham Bar Association. 

Ryan is involved with groups fighting for justice, including the American Association for Justice and the Alabama Association for Justice. He helped start a group within AAJ that deals with legal issues about medicine called the Ozempic/GLP-1 RA Litigation Group. Ryan is also part of the Preemption Law Litigation Group, which deals with laws about whether federal or state laws should be followed in certain court cases. He also serves as a board member for Emerging Leaders and is part of ALAJ’s Amicus Curiae Committee.

Aigner and Ryan represent the best of what Beasley Allen stands for: excellence, service, and the relentless pursuit of justice. Their achievements and ongoing commitment to their profession and community make them not just lawyers to watch, but a beacon of hope for those persons seeking legal representation. We are blessed to have these two outstanding lawyers with us!

FAVORITE BIBLE VERSES

Several lawyers and staff employees who are being featured this month are sharing their favorite Bible verses in this issue.

David Byrne

David Byrne says that he finds great peace and comfort in the following verse because it reminds him to slow down and remain calm when everything around him seems to be spinning out of control. He adds that the knowledge that God has a plan for our individual lives- a plan that will allow us to grow and prosper, is an amazing promise that has always sustained him in times of stress and uncertainty.

For I know the plans I have for you,” declares the Lord, “plans to prosper you and not to harm you, plans to give you hope and a future. Jeremiah 29:11

Matt Griffith

Matt Griffith shares two of his favorite verses below with us.

I can do all this through him who gives me strength. Philippians 4:13

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

Alex Jolley 

Alex Jolley offers one of her favorite verses. She says that she likes this bible verse because it serves as a reminder that rather than panicking or doubting, we must trust God’s plan and sense/feel the peace He gives us.

I have told you these things, so that in me you may have peace. In this world you will have trouble. But take heart! I have overcome the world. John 16:33

CLOSING OBSERVATIONS

The Meaning of Memorial Day 

We observed and celebrated Memorial Day on May 27. I am concerned that too many Americans don’t really understand or acknowledge the significance of this holiday. We are including a piece written by Dr. John Ed Mathison that all of us need to read. John Ed is a good friend, a dedicated follower of Christ, a semi-retired Methodist pastor, and a devoted citizen of our country. 

Memorial Day

What is the meaning of Memorial Day? It’s appalling how few people realize the depth of its meaning for the freedoms we enjoy today.  They thought about it, and together they said, “It’s the day that the pool opens.”  That’s sad. Studies have shown that only about 25% of Americans know the meaning of Memorial Day. Memorial Day is about remembering. It has ‘memory’ in it. It’s easy to forget the price that was paid for our freedoms. We can casually sit back and enjoy backyard barbecues, boat rides, and beach bashes, but the meaning of Memorial Day is that almost 1.5 million men and women have died so that you and I might enjoy our freedoms. 

We look to Thanksgiving as a day when we pause to give thanks for the things that we have. Memorial Day is a day when we pause to give thanks to the people who fought and died for the things we have.  Peter wrote to the church, saying, “This is now the second letter I am writing to you in which I’m stirring up your sincere mind by way of reminder that you should remember…” (II Peter 3:1,2) We need to have our minds stirred. We need to remember. 

It started during the Civil War when women began decorating the graves of soldiers who had died in that war. On May 30, 1868, the day was designated as ‘Decoration Day’ – a day for placing flowers on the graves of Union and Confederate soldiers throughout the United States.

‘Decoration Day’ gradually became known as Memorial Day, and soldiers who died in other wars were honored. Itquickly became a day to remember all people who had died in defense of our country. In 1971, the United States Congress declared Memorial Day a national holiday to be observed onthe last Monday of May. We must remember that freedom isn’t free. People died so that we could live. We have the opportunity to make decisions today because of the sacrifice of people yesterday! 

Remember the bravery of soldiers like Marine Sergeant John Basiloni, who was awarded a Medal of Honor for his bravery at Guadalcanal. He commanded two sections of machine guns against three thousand enemy soldiers for more than forty-eight hours before reinforcements arrived. You add the names of people you know to John Basiloni’s name. Spend some time thanking people and God for their bravery. People who have died in allthe wars form an elite group that must never be forgotten. We must remember. 

How do you plan to celebrate Memorial Day? What difference will Memorial Day make during the rest of the summer and the rest of life? Spend some time thinking about the price for freedom. We think freedom is free. Freedom isn’t free! It’s the most expensive gift we enjoy! Share conversations about the price of freedom. Remember!! Freedom isn’t free!! 

MONTHLY REMINDERS

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

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

2 Chronicles 7:14

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

Edmund Burke

Injustice anywhere is a threat to justice everywhere.

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

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

Martin Luther King, Jr. 

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

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

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

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

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

Bryan Stevenson, 2019

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

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

PARTING WORDS

The Rule Of Law

The foundation of our government, its form, purpose and structure, are found in the Constitution. The Rule of Law, which comes from the Constitution, is the bedrock of our system of government. The Constitution established a federal democratic republic form of government. It’s critically important that the Rule of Law be upheld and protected in our country. It’s the duty and responsibility of all lawyers, but especially trial lawyers, to help ensure that all levels of government – federal, state, and local – promote equal justice under the law and uphold civil and human rights. Without the Rule of Law, it would be impossible for those rights to be a reality.  

Lawyers must defend the judicial system – including the right to trial by jury – and resist attacks on the system. That duty includes supporting judges and juries. 

No person, government official or government is above the law. The principles set out below are fundamental in protecting the Rule of Law:

• All persons are ruled by and must obey the law.
• The government, judges, and law enforcers must adhere to the law without bias of prejudice. 

It’s a basic premise that no person is above the law. That is an absolute necessity in a democratic system of government. There can be no exceptions to this rule – either legal or political – and that applies to all Americans.