JUNE 2 016

Distributed to over 40,000 subscribers each month

BeasleyAllen.com I. number of lawyers at the firm who self- cause the propellant to burn too quickly, identify as black. rupturing the inflator module and sending CAPITOL To obtain more information about shrapnel through the air bag and into the Beasley Allen’s African American lawyers vehicle occupants. OBSERVATIONS and their successes, visit the attorneys NHTSA will also consult with affected page on the firm’s website at www.beas- vehicle manufacturers before revising the leyallen.com/attorneys. For additional Coordinated Remedy Order that governs Beasley Allen In Top 10 Best Law Firms For information, you can contact Helen Taylor, the accelerated program to obtain and Black Lawyers In The U.S. Public Relations Coordinator, at Helen. install replacement inflators. The Coordi- [email protected]. nated Remedy Program will continue to Our law firm was selected by Law360 as ensure that replacement inflators will be one of the 10 Best Law Firms for Black made available to highest-risk vehicles Attorneys in the United States. The firm first. The revised Coordinated Remedy was recognized as having the highest per- II. Program, to be announced this summer, centage of African American partners of will detail the updated vehicle prioritiza- any of the firms included on the list. That’s MORE tion schedule and the schedule by which something all of us at Beasley Allen are AUTOMOBILE manufacturers are required to procure a extremely proud of. sufficient supply of replacement parts to Tom Methvin, Principal & Managing NEWS OF NOTE conduct the required recall repairs. This is Attorney for the firm, says being mindful of providing opportunities for African IN THIS ISSUE American lawyers is part of our firm’s Recall Of Additional 35-40 Million Takata business plan. The firm actively supports Air Bag Inflators I. Capitol Observations...... 2 programs of the Alabama Lawyers Associa- II. More Automobile News Of Note. . . . 2 tion, and each year hires two or more law The National Highway Traffic Safety clerks from that network. Creating a work- Administration (NHTSA) has expanded III. A Report On The Gulf Coast Disaster. . 5 place where black lawyers can succeed is and accelerated the recall of Takata air bag a win-win for all concerned. inflators. The decision followed what the IV. Drug Manufacturers Fraud Litigation. . 6 Lawyers are hired by our firm based agency says is confirmation of the root V. Legislative Happenings...... 8 strictly on merit. However, when you have cause behind the inflators’ propensity to diversity in a firm, there will be different rupture. As we have written, ruptures of VI. Court Watch...... 8 and needed points of view. We have Afri- the Takata inflators have been tied to 10 VII. The National Scene...... 9 can-American lawyers in each section of deaths and more than 100 injuries in the the firm. Lots are expected out of all our United States. There have been at least VIII. The Corporate World...... 10 lawyers and we have been blessed to two more deaths outside the U.S. IX. Whistleblower Litigation ...... 12 attract tremendously talented lawyers. We Under the Amended Consent Order provide an environment in the firm where issued to Takata, the company is required X. Congressional Update...... 15 each lawyer can be successful. When an to make a series of safety defect decisions XI. Product Liability Update ...... 15 individual lawyer has success, the entire that will support vehicle manufacturer firm will benefit and our clients will have recall campaigns of an additional esti- XII. An Update On Johnson & Johnson been well-served. mated 35-40 million inflators, adding to Litigation...... 17 Kendall Dunson, a Principal in the the already 28.8 million inflators previ- XIII. Mass Torts Update...... 20 firm’s Personal Injury/Products Liability ously recalled. These expansions are Section, was named Beasley Allen’s Litiga- planned to take place in phases between XIV. An Update On Securities Litigation. . .21 tor of the Year for 2015. He has served as May of this year and December of 2019. President of both the Alabama Lawyers The expansions mean that all Takata XV. Insurance and Finance Update . . . .21 Association and the Capital City Bar Asso- ammonium nitrate-based propellant driver XVI. Employment and FLSA Litigation. . . 22 ciation. Kendall also served as the first and passenger frontal air bag inflators African-American President of the Mont- without a chemical drying agent, also XVII. Workplace Hazards...... 22 gomery County Bar Association. Kendall known as a desiccant, will be recalled. XVIII. Transportation...... 23 points out that the firm is very proud of The five recall phases are based on pri- our stance on diversity. He is proud of the oritization of risk, determined by the age XIX. Healthcare Issues ...... 23 success of all of our African-American of the inflators and exposure to high XX. Environmental Concerns...... 24 lawyers. Kendall says: “Each of us has dis- humidity and fluctuating high tempera- tinguished our self as a lawyer, and we are tures that accelerate the degradation of XXI. An Update On Class Action Litigation. .26 all assets to the legal profession.” the chemical propellant. XXII. The Consumer Corner...... 27 To compile its Top 10 list, Law360 sur- NHTSA and its independent expert veyed more than 300 U.S. firms with a U.S. reviewed the findings of three indepen- XXIII. Recalls Update...... 28 component, about their overall and minor- dent investigations into the Takata air bag ity headcount numbers as of Dec. 31, 2015. ruptures and confirmed the findings on XXIV. Firm Activities...... 34 Only U.S.-based lawyers were included in the root cause of inflator ruptures. The XXV. Special Recognitions...... 35 the survey. Firms are ranked based on agency says a combination of time, envi- three factors: the percentage of partners, ronmental moisture and fluctuating high XXVI. Favorite Bible Verses...... 37 both equity and non-equity, who self-iden- temperatures contribute to the degrada- XXVII. Closing Observations...... 37 tify as black; the percentage of non-part- tion of the ammonium nitrate propellant ners who self-identify as black; and the in the inflators. Such degradation can XXVIII. Parting Words...... 39

2 BeasleyAllen.com the largest and most complex safety recall The suit says Takata ran secret tests on suspension defect. Judge Koh said in in U.S. history. its air bags and later concealed the adverse her order: All vehicle owners should regularly results until Takata whistleblowers made check SaferCar.gov for information about the information public. It’s alleged that Indeed, the facts here are almost any open safety recall on their vehicle and Takata continued to deny that ammonium identical to those in Daniel: Both what they can do to have it fixed free of nitrate was responsible for the safety cases involve the same defendant charge. The recall expansion does not issues in its air bags, failed to disclose (Ford), the same sort of defect (a include inflators that include a chemical what it knew about its own testing of the latent defect brought under the desiccant that absorbs moisture. There air bags, and continued to attempt to mini- Song-Beverly Act after the one-year have been no reported ruptures of the des- mize the scope of the problem. duration period), and even the iccated inflators due to propellant In the claim against Honda, Hawaii same vehicle (the Focus). The Song- degradation. alleges the automaker didn’t halt sales of Beverly Act claim survived in Takata is required, under the Amended cars furnished with Takata air bags despite Daniel. They also survive here. Consent Order, to redirect its research being aware of the dangers. Hawaii said in Despite Ford’s claims that the ruling did toward the safety of the desiccated infla- the complaint: not actually mean a driver can recover on tors. Absent proof that the desiccated an implied warranty claim “no matter inflators are safe, Takata will be required [Honda] continued to sell cars equipped with Takata air bags and when” a defect is found and that, essen- to recall them under the November 2015 tially, a defect must be discovered within a Consent Order. As you will recall, NHTSA inadequately pursued recalls— saving money while subjecting con- year of purchase, Judge Koh found that imposed the largest civil penalty in its argument did “not comport” with court history in 2015 for Takata’s violations of sumers to an ongoing risk of serious injury and death. precedent. In fact, she said the Ninth the Motor Vehicle Safety Act, and for the Circuit in Daniel and a state court of first time used its authority to accelerate Stephen Levins, head of Hawaii’s Office appeal in Mexia v. Rinker Boat Co.— recall repairs to millions of affected vehi- of Consumer Protection, said companies which concerned a latent engine defect in cles. NHTSA also appointed an Indepen- are obligated to deliver safe products. He certain Rinker boats—both held Plaintiffs dent Monitor to assess, track and report added the following in a statement: in those cases could pursue claims of the company’s compliance with the latent defects outside of the one-year Consent Order and to oversee the Coordi- Takata and Honda put their own period Ford has argued for. Judge Koh said nated Remedy Program. profits and reputations ahead of in her order: Source: Custerfreepress.com honesty and their customers’ safety. We intend to hold them accountable Ford has failed to explain why for their conduct. Mexia and, in particular, Daniel—a published Ninth Circuit decision Hawaii Is First State To Sue Takata Over Hawaii is represented by Melina D. involving the same basic claim Deadly Air Bags Sanchez of the Hawaii Office of Consumer against the same defendant and Protection, L. Richard Fried Jr. and Patrick concerning the same vehicle—do Hawaii has become the first state to file F. McTernan of Cronin Fried Sekiya Kekina not govern the instant case. Accord- suit against Takata Corp. over its faulty air & Fairbanks, and Linda Singer and ingly, the court finds that California bags linked to several deaths. The con- Anthony R. Juzaitis of Cohen Milstein plaintiffs have sufficiently alleged a sumer protection lawsuit was filed in state Sellers & Toll PLLC. The case is in the First Song-Beverly Act claim under Mexia court accusing the Japanese auto parts Circuit Court of the State of Hawaii. and Daniel. maker of engaging in a cover-up. Takata Source: Law360.com was accused in the suit of making and sup- The suit filed by plaintiffs in June 2014 plying air bags it knew were unsafe, and was initially on behalf of a nationwide $10,000 is sought for each instance of class of drivers who had leased or pur- unfair and deceptive conduct in violation Warranty Claims Survive In Ford Power chased 2010-2014 Fusion and 2012-2014 of state consumer protection laws. The Steering Suit Focus vehicles. The Plaintiffs alleged that state also claims that Honda Motor Co., Ford advertised the cars’ electric power- A federal judge in California has which installed at least 10 million of the assisted steering system as enhancing rejected an attempt by Ford Motor Co. to defective air bags, failed to do enough to vehicle safety, but knew the system was deflect implied warranty claims in a pro- warn consumers of the potential danger. defective. The case is in the U.S. District posed class action alleging power steering Hawaii claims in its lawsuit that Takata Court for the Northern District of in some Focus and Fusion cars is prone to switched to ammonium nitrate propellant California. to inflate the bags because it was cheaper, sudden failure. U.S. District Judge Lucy H. Source: Law360.com despite being aware of the potential for Koh found that each of Ford’s arguments the bags to unpredictably explode upon against the claims “lack merit.” Judge Koh inflation. The complaint states: said that implied warranty claims under both the Song-Beverly Act and the Magnu- Lawsuit Filed Against BMW Over Electric Takata knew even before it began son-Moss Warranty Act reasserted in Cars Losing Power While Driving using ammonium nitrate in its air March by lead Plaintiff Jaime Goodman in bags in 1999 that ammonium an amended complaint over the alleged A lawsuit filed against BMW involves its nitrate was too unstable to be suit- steering defect “rise and fall together.” newer i3 line of electric cars. It’s alleged able for use in motor vehicle air Being so intertwined, Judge Koh said each that these cars can unexpectedly drop to bags, particularly in areas of the are properly pled in view of the Ninth Cir- dangerously low speeds due to a design country with high heat and/or high cuit’s December ruling in Daniel v. Ford defect in an engine feature meant to humidity, like Hawaii. Motor Co., which found Focus warranties extend the cars’ mileage. The proposed were vague enough to cover a latent rear class of national drivers filed the suit in a

JereBeasleyReport.com 3 California federal court. Named Plaintiff 2016 Chevrolet Traverse, GMC Acadia and lose power at any time, placing occupants Edo Tsoar alleges that 2014 to 2016 BMW Buick Enclave because of new emissions- at risk. The suit claims that, based on pre- i3 REx models contain a “range extender” related hardware. GM claims that the new production testing, design failure mode feature that, when a car’s battery drops to numbers weren’t reflected in calculations analysis and consumer complaints to a certain level of available power, switches for fuel economy labels, causing the dealers, the Defendants knew of the pre- over to a two-cylinder, traditional, gaso- numbers to be overstated. mature failure of the tensioning system in line combustion engine to extend the GM said buyers will get to choose class members’ vehicles, but fraudulently available drive time from 81 to 150 miles between a prepaid debit card and a four- concealed them from class members. In per charge. year, 60,000-mile protection plan, which addition, it’s alleged in the suit that the It’s claimed that the switch to the fuel the automaker said is designed for high- Defendants knowingly omitted material extender can happen mid-drive. When mileage customers or those who plan to facts about the defective tensioning that happens, the performance capability keep their vehicle for an extended amount system and its corresponding safety risk, is prone to slide off dramatically. The cars of time. Those who leased their vehicles and misrepresented to buyers the stan- are unable to maintain speed for normal will be offered the debit card. According dard, quality or grade of class vehicles. operation, a function consumers relied on to GM, the average value of the debit cards It’s alleged further in the complaint that having when purchasing the vehicle, the will be $450 to $900, though the numbers owners whose vehicles suffered failure of suit says. The complaint states: will vary individually. The maximum the timing belt tensioning system have payout for certain vehicles will be $1,500, had to pay thousands of dollars to make Indeed, if the vehicle is under any according to GM. repairs or to replace the entire engine. kind of significant load (such as The automaker said it based its calcula- The Plaintiffs claim that the Defendants going uphill, or loaded with passen- tions on a fuel price of $3 per gallon and did not reimburse class members for fail- gers), the speed of the vehicle will 15,000 miles of driving per year over a ures that occurred outside the vehicle’s dramatically decrease as the battery five-year period, which it says is the same warranty periods. There are claims in the charge diminishes. BMW knew assumptions used in the U.S. Environmen- suit on behalf of a nationwide class of about, but did not disclose, this tal Protection Agency’s (EPA) formula to owners or lessees of 2008 through 2013 sudden, significant, and dangerous calculate future fuel costs on the window Volkswagen and Audi vehicles with 2.0L loss of power that was inevitable label. Dealers were notified of the plan on TSI or 2.0L TFSI engines. Also, there is a when the range extender is engaged. May 20. Letters will be sent out to custom- subclass of New Jersey residents who Online consumer reports are cited by ers starting on May 25. GM says about owned or leased such vehicles. Tsoar, along with a number of complaints 135,000 customers are expected to be On behalf of the nationwide class, there made with the National Highway Traffic covered by the plan. are claims in the suit for breach of con- Safety Administration, all concerning the The announcement of the reimburse- tract, fraud, negligent misrepresentation, loss of power experienced while driving ment program came about a week after breach of express and implied warranty, the i3 due to the fuel extender switching reports circulated that GM had instructed violation of the Moss-Magnuson Warranty on. One of the NHTSA complaints was dealers to stop selling the 2016 Traverse, Act and unjust enrichment. There is also a made by a driver who claimed the car sud- Acadia and Enclave while it corrected claim for violation of the New Jersey Con- denly dropped from 75 to 35 miles per their fuel economy ratings. A class action sumer Fraud Act on behalf of the subclass hour while driving on a freeway in lawsuit has also been filed, claiming that of New Jersey owners. December. Another driver said their i3 GM knew or should have known that its The engine with the faulty timing chain dropped from 50 to 25 miles per hour automobiles were being advertised and tensioner was sold in various Volkswagen while he was driving along a Northern sold with misleading ratings. It was Beetle, CC, EOS, Golf, GTI, Jetta, Passat, California highway in 2014, shortly after alleged by Sean Tolmasoff in the com- Golf R32, Rabbit, Routan, Tiguan and the model hit the market. plaint that the company should have com- Toureg and Audi A3, A4, A5, A6, A7, TT, The named Plaintiff is seeking certifica- pensated drivers who bought their cars Q3, Q5 and Q7 models. Volkswagen has tion of a national class of i3 drivers and a before the miles per gallon ratings were faced other suits over timing chain ten- California subclass, reimbursement of car updated. GM claims that its reimburse- sioners in the past, and it is also named in payments and out-of-pocket expenses ment program was a GM customer initia- 763 suits that have been consolidated in related to the alleged defect, and unspeci- tive, and that the framework for the the Northern District of California by the fied damages for the automaker’s “mali- program was created and approved before Judicial Panel for Multidistrict Litigation cious, oppressive and deliberate fraud.” Tolmasoff’s suit was even filed. Based on over allegedly rigged emissions systems on our history with GM, I find that very hard cars with diesel engines. Source: Law360.com to believe. Source: Insurance Journal Source: Law360.com

GM Drivers Are Offered Cash And Caterpillar Gets Preliminary Approval For Warranties Over False Fuel Economy Class Suit Accuses Volkswagen And Audi of $60 Million Settlement General Motors (GM) announced last Another Cover-Up month that it will offer prepaid debit cards We previously mentioned the class or extended warranties to owners of Volkswagen and Audi, which already action lawsuit filed against Caterpillar Inc. certain SUVs for fuel economy numbers face hundreds of lawsuits over a scheme involving its bus engines. The company that are overstated by one to two miles to falsify diesel emissions, now face a class has now won preliminary approval for a per gallon. It’s estimated that 135,000 cus- action filed in the U.S. District Court for $60 million settlement in the lawsuit. It tomers will be covered by the reimburse- the District of New Jersey. The automak- was alleged that Caterpillar sold bus ment program. The automaker said it had ers are accused of concealing defective engines with a defective anti-pollution to conduct new emissions tests on the timing belt tensioning systems in their system. U.S. District Judge Jerome B. vehicles. The defect can cause vehicles to Simandle found the settlement amount to

4 BeasleyAllen.com be fair and reasonable. A final approval letter, dated May 23, 2016, to NHTSA that the AEB system will stop the car hearing will be held in September. Judge the agreement is “unlawful” as it’s merely from before hitting a parked vehicle. Simandle said in his order: a memorandum of understanding that pur- portedly allows the automakers to avoid In November NHTSA announced plans The court has conducted a prelimi- federal safety rules already in place. The to include AEB capabilities in its safety nary assessment of the fairness, rea- letter says further that NHTSA won’t have rating system beginning with 2018 vehicle sonableness and adequacy of the to explain the terms of the agreement. models. A month before that announce- agreement, and hereby finds that Moreover, the advocacy groups are taking ment, NHTSA said it would also begin con- the settlement falls within the range issue with NHTSA’s claim that “substan- sidering new federal standards for crash of reasonableness meriting possible tially all” light cars and trucks will have avoidance technology in heavy trucks, or final approval. AEB systems standard by 2022, which those over 10,000 pounds, including early crash warnings and auto braking. The settlement calls for a $60 million they say means only 95 percent of vehicles common fund. Class members would be will need to have AEB by the deadline, Source: Public Citizen eligible for $500 to a maximum of $10,000 leaving one out of every 20 vehicles per engine, or $15,000 for losses stem- without the technology. The consumer groups also said the ming from repairs. Settlement administra- III. tor Epiq Systems Class Action & Claims memorandum allows light duty vehicles Solutions Inc. will set up a settlement with a manual transmission two additional A REPORT ON THE website, giving notice and the necessary years for standardizing AEB and lets those forms to potential class members. Plain- vehicles that are phased out within one GULF COAST tiffs in the five consolidated class actions year of the 2022 deadline to leave out AEB DISASTER alleged that an exhaust emission control altogether. The consumer groups said: system used in Caterpillar’s C13 and C15 Nowhere has NHTSA said how many heavy-duty on-highway diesel engines is vehicles these waivers and exten- BP Lawsuit Filings On The Rise defective. sions cover, and perhaps the agency The cases claim that buses or trucks does not even know. If the MOU After the BP oil spill in 2010, thousands with the engines suffered repeated fail- were a rulemaking, as the law of lawsuits filed by businesses, individuals, ures and fault warnings that resulted in requires, NHTSA would have to and other entities ranging from Texas to time-consuming and costly repairs. The provide such information to Florida were consolidated before U.S. Dis- engines contain technology, known as the public. trict Court Judge Carl J. Barbier in the ACERT, that recycles exhaust back Eastern District of Louisiana. To facilitate through the engine to reduce emissions, As the name implies, AEB systems are the effective administration of the multi- which Caterpillar developed to comply intended to prevent crashes or reduce district litigation (MDL), Judge Barbier with a series of tougher emissions regula- their severity by applying the brakes for established eight separate “pleading tions that went into effect in 2002, accord- the driver. The technology generally bundles” for different categories and ing to Salud Services Inc., which does works through on-vehicle sensors like claims. The “B1” Bundle included claims business as Endeavor Bus Lines. radar, cameras or lasers to detect an immi- for Non-Governmental Economic Loss and Source: Law360.com nent crash, warn the driver and apply the Property Damages by Private Individuals brakes if the driver does not respond and Businesses. The Court utilized the B1 quickly enough, according to NHTSA. Master Complaint as a procedural device But the consumer groups said the mem- for administrative purposes to facilitate NHTSA Accused Of Letting Car orandum agreement with the auto compa- Automakers Off Easy On Auto Braking the filing of short form joinders by Plain- nies has “inexplicably” weakened brake tiffs who sought to file suit against BP. tests like NHTSA’s standard minimum 25 Three well-respected consumer and With the purpose of the B1 Master Com- miles per hour to 10 miles per hour safety safety advocacy groups have accused plaint fulfilled, the Court dismissed the B1 test. The manufacturers in the memoran- the National Highway Traffic Safety Master Complaint in Pretrial Order No. 60 dum now only need to show the AEB can Administration of not doing enough to (PTO 60), which was issued on March 29, slow a car to 2 mph from 12 mph. make automatic emergency braking stan- 2016. PTO 60 effectively removed the bun- The groups pointed out that if the AEB dard in all light vehicles. A recent “back- dling of lawsuits, and contains certain deal was going through a traditional rule- room deal” between the agency and a requirements that must be met or risk making process, NHTSA “would have to number of automakers allows them to having the case dismissed without explain how and why the AEB voluntary skirt safety standards, according to the prejudice. measures became so weak in the face of groups. NHTSA announced in March that Understandably, the most catastrophic higher ratings everywhere else.” Beyond 20 automakers representing nearly the environmental disaster in the history of that, the compliant manufacturers also entire U.S. auto market, including Ford, the United States has taken some time to allegedly have “unfettered discretion” to GM Subaru and many others, had made an resolve issues common to all Plaintiffs. implement an AEB system that can bring a “unprecedented commitment” to making The PSC has done a phenomenal job of car driving 40 mph to a full stop, some- automatic emergency braking a standard handling this massive litigation and bro- thing that is a standard measure in feature on all new cars no later than 2022. kering the Deepwater Horizon Economic NHTSA’s current 5-Star Safety Rating NHTSA estimated the agreement would and Property Damages Settlement. Program. The consumer groups said: get the technology to the public three years faster than would be possible It speaks volumes that neither the through a “formal” rulemaking process. MOU nor NHTSA requires a window Consumer Watchdog, the Center for sticker detailing the speed at which Auto Safety and Public Citizen said in a

JereBeasleyReport.com 5 BP Drops Injunction Against Seafood IV. verdicts for those states. The AWP trial Compensation Program Fund team was lead by Dee Miles with Roman DRUG Shaul, Clay Barnett, Ali Hawthorne and BP has withdrawn its motion seeking an Chad Stewart (1972-2014) assisting. All of injunction against paying approximately MANUFACTURERS our lawyers and support staff did tremen- $1 billion for claims remaining in the $2.3 FRAUD LITIGATION dous work in this litigation. billion Seafood Compensation Program (SCP) Fund. In 2013, BP urged U.S. District Court Judge Carl J. Barbier to suspend Mississippi Supreme Court Upholds $30 Twenty-Five Years Of Pharmaceutical additional payments required under the Industry Criminal And Civil Penalties: 1991 Settlement Agreement, claiming that it Million Judgment Against Sandoz was tainted by an inflated number of SCP Through 2015 Lawyers at Beasley Allen have been claimants who were projected to submit serving as Special Counsel to Mississippi Public Citizen published a report last commercial fishing claims. Attorney General Jim Hood for several month that catalogues all major financial BP’s motion was filed in the midst of its years on the Average Wholesale Price settlements and court judgments between attempt to stall and eventually overturn (AWP) litigation. Thus far we have recov- pharmaceutical companies and federal the 2012 Deepwater Horizon Economic ered from 61 companies over $200 million and state governments from 1991 through and Property Damages Settlement reached for the State of Mississippi, including a $30 2015. The report found that drugmakers with private individuals and businesses. million verdict against generic pharma- entered into 373 settlements totaling $35.7 One year after the Settlement Program ceutical giant Sandoz, Inc. in 2011. That billion in criminal and civil penalties, but became operational, BP realized it under- verdict was appealed by Sandoz and the that both the number and size of settle- estimated the likely cost of the settlement Mississippi Supreme Court affirmed the ments decreased significantly in and sought to renege on both certain pro- verdict in full last October. Sandoz then 2014 and 2015. visions and the entire settlement. While asked the Supreme Court to rehear the In September 2012, Public Citizen pub- the company was successful in altering appeal. On May 26th, we were informed lished an updated analysis of all major the way in which Business Economic Loss that the court had denied Sandoz’s rehear- financial settlements and court judgments claims are calculated, BP’s attempt to ing request. This effectively exhausts the between pharmaceutical manufacturers overturn the class settlement as a whole drug company’s last chance for an appeal. and the federal and state governments was denied. Attorney General Hood applauded the Mis- from 1991 through July 18, 2012. At the Unfortunately, BP’s behavior during this sissippi Supreme Court’s refusal to recon- time of the report’s publication, more than process didn’t come as a surprise. Some sider its October 2015 decision that $30 billion had been paid by the pharma- huge corporations facing liability for their affirmed the state’s $30 million verdict. He ceutical industry to settle allegations of actions will do almost anything to limit had this to say: numerous violations, including illegal off- their exposure, even when doing so label marketing and the deliberate over- directly contradicts what they tell the It is reassuring to know that when a charging of taxpayer-funded health public. In this instance, BP touted the set- big drug company like Sandoz programs, such as Medicare and Medic- tlement as a fair and expedient way to cheats the taxpayers, justice will aid. The following study was undertaken resolve tens of thousands of claims prevail. The court made the right to assess the level of settlement activity asserted by those harmed by its conduct. decision to turn back a greedy cor- from the time period studied in the previ- But when it came time to pay claims BP poration that focused on its own ous report through 2015, an additional had acknowledged were legitimate, profits at the expense of the people three and a half years, thereby providing instead the company sought to invalidate of Mississippi. collective data for the entire 25 years from the settlement it had agreed to. BP ques- 1991 through 2015. tioned those who were playing by the This case came to the Mississippi Methodology from the 2012 report was rules that BP had agreed to. The oil giant Supreme Court following a 9-day bench replicated, the sole exception being that tried to intimidate other claimants from trial in Rankin County Chancery Court. unlike the previous studies, this study rightfully asserting their legitimate claims. Chancellor Tom Zebert concluded that includes federal and state settlements In so doing, BP had no qualms about Sandoz defrauded Mississippi, and cost totaling less than $1 million. Therefore, halting payments to commercial fisher- taxpayers $24 million when it reported the study includes all federal and state men, who are among the many victims of Average Wholesale Prices, or AWPs, which government settlements reached with this tragedy. grossly exceeded the actual prices Sandoz pharmaceutical manufacturers from July All of this goes to show that a fight charged its customers. 19, 2012, through 2015, but only settle- against a corporate giant is never-ending, Those manipulated prices caused the ments of at least $1 million for the period even when one thinks the companies have state to pay more for prescription drugs prior to July 19, 2012. owned up to their “mistakes.” We have for Medicaid recipients. As a result of this In addition, the totals presented in this learned this reality over the years, so I fraud, the trial court awarded the state report for the period prior to July 19, 2012, can’t say our lawyers were surprised by compensatory, statutory and punitive are different from those listed in the previ- BP’s actions. The lawyers from our firm damages. The case against Sandoz was ous report for several reasons, most working on this project will continue to among dozens of similar cases brought by notably the overturning on appeal of two fight for all of those harmed by the oil the state against other drug companies previous state court judgments against spill. So far their efforts have been that also manipulated their reported AWPs Johnson & Johnson totaling $1.5 billion successful. so that Mississippi paid too much for pre- in fines. Source: Law360.com scription drugs for Medicaid recipients. Our firm represented eight other states As in the prior report, single-state settle- in this very same litigation and recovered ments were those in which only one state over $1.5 billion in settlements and jury was a party to the final settlement, as gleaned from the information provided in

6 BeasleyAllen.com the press release. All other state settle- nearly $2.8 billion in 2012-2013 to $263 Zeneca also paid more than $1 billion in ments were classified as multi-state. million in 2014-2015. The combined financial penalties. Thirty-one compa- From 1991 through 2015, a total of 373 total for these latter two years was nies entered into repeat settlements settlements were reached between the lower than that for any single year since with the federal government from 1991 federal and state governments and phar- 2006. As was the case with overall through 2015, with Pfizer (11), Merck maceutical manufacturers, for a total of federal financial penalties, this reflects (nine), GlaxoSmithKline, Novartis, and $35.7 billion. Of these, 140 were federal a sharp decrease in the amount of the Bristol-Myers Squibb (eight each) final- settlements, for $31.9 billion, and 233 average penalty paid for unlawful pro- izing the most federal settlements. were state settlements, for $3.8 billion. motion, since the number of federal Other key findings include the following: unlawful promotion violations had The number and size of federal and declined only slightly, from 11 to eight. state settlements against the pharmaceuti- • Financial penalties declined sharply cal industry decreased significantly in since 2013. Just $2.4 billion in federal • The most striking decrease in financial 2014 and 2015. It remains to be seen financial penalties were recovered in penalties involved criminal penalties whether this decline represents a longer- the most recent two-year period (2014- (all of which, from 1991 through 2015, term trend. Financial penalties continued 2015), less than one-third of the $8.7 were federal). For 2012 and 2013 com- to pale in comparison to company profits, billion in federal penalties in 2012-2013 bined, criminal penalties totaled $2.7 with the $35.7 billion in penalties from and the lowest two-year total since billion, but by 2014-2015, the total had 1991 through 2015 amounting to only 5 2004-2005. In contrast, the number of fallen to $44 million, a decrease of more percent of the $711 billion in net profits these federal settlements decreased than 98 percent. made by the 11 largest global drug compa- only slightly, from 22 to 19, from 2012- nies during just 10 of those 25 years 2013 to 2014-2015. Thus, the average • Qui tam (whistleblower) revelations, (2003-2012). size of federal settlements declined brought mostly under the False Claims Public Citizen says to its knowledge a from $395 million per settlement—$8.7 Act, were responsible, at least in part, parent company has never been excluded billion for the 22 settlements—in 2012- for 81 of 140 (58 percent) federal settle- from participation in Medicare and Medic- 2013 to $126 million per settle- ments, and $22.8 billion of $31.9 billion aid for illegal activities, which endanger ment—$2.4 billion for 19 (71 percent) in federal penalties, from the public health and deplete taxpayer- settlements—in 2014-2015, less than 1991 through 2015. By contrast, just 17 funded programs. Nor has almost any one-third of the average amount in the of 233 (7 percent) state settlements and senior executive been given a jail sentence earlier interval. $793 million of $3.8 billion (21 percent) for leading companies engaged in these in state financial penalties originated illegal activities. • There were just 20 state settlements in from qui tam actions. Of all state settle- Much larger penalties and successful the final two years of the study period ments originating from qui tam actions prosecutions of company executives that (2014-2015), a nearly 80 percent drop from 1991 through 2015, a single state, oversee systemic fraud, including jail sen- from the 95 settlements in 2012-2013 Texas, accounted for nine of 17 (53 tences if appropriate, are necessary to and the lowest two-year total since percent) settlements and $409 million deter future unlawful behavior. Other- 2006-2007. State financial penalties of $793 million (52 percent) in financial wise, these illegal but profitable activities totaled just $424 million during these penalties. will continue to be part of companies’ two most recent years—compared with business model. $1.2 billion in 2012-2013—a lower total • From 1991 through 2015, 29 states and than in any two-year period since the District of Columbia reached at least Source: Public Citizen News Release 2007-2008. one single-state settlement with a phar- maceutical company. Hawaii recovered • From 1991 through 2015, overcharging the most money as a proportion of Med- J&J, Merck And Endo Investigations Involve of government health insurance pro- icaid drug expenditures (15 percent), Pharmacy Benefit Managers grams, mainly drug pricing fraud South Carolina recouped the most against state Medicaid programs, was money per enforcement dollar spent Federal prosecutors in Manhattan have the most common violation, while the ($12.25), Louisiana had the most asked drugmakers including Johnson & unlawful promotion of drugs was the single-state settlements (55), and Texas Johnson, Merck and Endo for information single violation that resulted in the finalized, by far, the most whistle- regarding contracts with pharmacy largest financial penalties. blower-initiated settlements (nine). benefit managers in connection with a Overall, 17 of the 30 states with at least False Claims Act (FCA) investigation. In its • Almost all of the decrease in the total one single-state settlement from 1991 quarterly report filed with the U.S. Securi- number of settlements in 2014 and 2015 through 2015 attained a return on ties and Exchange Commission (SEC), J&J was attributable to the sharp decrease investment of $1 or greater for every disclosed that its Janssen Pharmaceuticals in the number of single-state settle- dollar spent on enforcement of all (both unit received a civil investigative demand ments involving overcharging govern- pharmaceutical- and non-pharmaceuti- from the U.S. Attorney’s office for the ment health programs, from a combined cal-related) Medicaid fraud. Southern District of New York asking for 73 settlements in 2012 and 2013 to just information about Janssen’s contractual five in 2014 and 2015, a 93 percent drop. • From 1991 through 2015, GlaxoSmith- relationships with pharmacy benefit man- Kline and Pfizer reached the most set- agers (PBMs) for unspecified products • The decline in total financial penalties tlements (31 each) and paid the most in from January 2006 to the present. The in 2014 and 2015 was primarily due to a financial penalties—$7.9 billion and demand was issued in connection with an decrease in the size of federal settle- $3.9 billion, respectively—to the federal investigation under the False Claims Act. ments involving unlawful promotion, and state governments. Johnson & Merck & Co. Inc. disclosed a similar with federal financial penalties that Johnson, Merck, Abbott, Eli Lilly, Teva, request by federal prosecutors, who could be attributed to unlawful promo- Schering-Plough, Novartis, and Astra- tion declining by 90 percent from wanted to know more about Merck’s PBM

JereBeasleyReport.com 7 contracts, services and payments in con- completed the Regular Session last month, $70 Million Faulty Carpet Resin Verdict nection with its Maxalt and Levitra drugs. I don’t believe Gov. Robert Bentley should Upheld By Florida Appeals Panel Endo Pharmaceuticals Inc. said last month call a Special Session unless a definite plan that prosecutors requested information to address two specific issues is agreed A Florida appeals court has upheld a regarding PBM contracts for its Frova treat- upon in advance. First, it’s abundantly $70.1 million judgment against Arizona ment for migraines. clear that Medicaid must be properly Chemical Co. over defective carpet resin. None of the three companies revealed funded. Too many mistakes have already The court found that Mohawk Industries in their respective SEC filings which phar- been made in dealing with the Medicaid Inc.’s evidence at trial was sufficient to macy benefit managers they contracted program to compound the problems by justify the damages awarded. The First with. Pharmacy benefit managers such as bringing the Legislators back to Montgom- District Court of Appeal said Mohawk had Express Scripts Inc. and CVS Health act as ery without an agreed-upon plan to ade- provided plenty of evidence to show a a third-party administrator of prescription quately fund the program. spike in warranty claims for Mohawk drug programs for health plans, process- I have mixed emotions about the pro- carpets that used Arizona Chemical’s ing drug benefits, negotiating prices with posed $800 million bond issue to build Unibond resin was not just a coincidence. drugmakers and operating mail-order new prisons. We have 16 existing prisons The three-judge panel said: pharmacies. and the state should be able to bring them In October, Novartis Pharmaceuticals up to standards without having to build Mohawk did not argue simply that Corp. agreed to pay $390 million to three new prisons at a tremendous cost. In the coincidence of a claims spike resolve the federal government’s FCA alle- my opinion, the state already has enough with the use of Arizona’s resin estab- gations that it provided improper dis- debt. I might add that a no-bid $800 lished causation. Mohawk argued counts and rebates to specialty million construction project is sort of that other factors, such as the pharmacies. The following month, the scary. Nevertheless, those in state govern- history of Unibond claims and the company made detailed admissions about ment must deal with the prison problems. lack of any significant change to the its sales strategies with specialty pharma- However, I am not sure a huge bond product other than the manufac- cies and agreed to sweeping federal over- issue—without a bidding requirement—is turer of the resin during the rele- sight of its relationships with the the answer. My preference would be to vant time period, combined with the controversial dispensers. work toward improving what we already claims spike to suggest that the resin Novartis admitted to using various have in place. was to blame. methods to create incentives for specialty Arizona Chemical had begun supplying pharmacies to increase sales of iron-reduc- Mohawk and Aladdin Manufacturing ing drug Exjade and immunosuppressant Corp. with pine-based resin in 2005. In Myfortic. Specifically, Novartis admitted VI. subsequent years, Mohawk noticed an that it threatened to cut ties with at least COURT WATCH increase in warranty claims related to the one pharmacy that wasn’t dispensing carpeting. The carpets’ backing deterio- enough of its medicines. The drugmaker rated, causing unraveling of edges, also acknowledged that it steered patients backing delamination and offensive odors, U.S. Supreme Court Refuses To Hear Philip and bonus payments to specialty pharma- according to court documents. Mohawk Morris Appeal cies based on their ability to generate notified Arizona Chemical of the problem refills, many of which were paid for by in 2008 and stopped using the company’s Medicare and Medicaid. The U.S. Supreme Court has declined Philip Morris USA Inc.’s request to review resin before suing in 2011. I have found that few people in the busi- In March 2014, a Jacksonville jury ness world really understand how the an Oregon jury’s $25 million punitive damage award to the family of a woman returned a $70.1 million verdict against pharmacy benefit managers operate. Arizona Chemical that comprised $32.3 There is ample opportunity for the PBMs who died of lung cancer. The tobacco giant had claimed that the verdict con- million for future lost profits, $16.9 to use the current system for their finan- million for warranty claims and cial benefit with little supervision over flicted with a first jury’s decision that the company was liable. The high court $20.9 million for past costs incurred by their activities. Kickbacks from drug com- Mohawk for warranty claims and carpet panies to PBMs appear to be quite preva- wasn’t impressed with Philip Morris’ argu- ment that Oregon’s partial retrial system that was sold at a discount or destroyed. lent. If you are not familiar with PBMs, you This was the largest “commercial” jury should check out the legislature history had deprived the company of its right to due process after an Oregon appellate award in Florida in 2014. and learn how they have become so In a separate appeal, Arizona Chemical powerful. court threw out the first jury’s $150 million punitive damage verdict. had asked the First District to slice nearly Source: Law360.com The initial verdict was based on two $15 million in prejudgment interest from types of fraud. A new trial was ordered the verdict—which now totals $93 after the first verdict solely on the issue of million—arguing that the clock on inter- V. the appropriate amount of punitive est should start when Mohawk discovered damages. The Oregon Supreme Court the problem, not on the date the resin was LEGISLATIVE affirmed that decision, and a second jury delivered. Arizona Chemical argued that then awarded $25 million in punitive the damages should be calculated from HAPPENINGS damages for fraud arriving from state- the date Mohawk had to pay customer ments the company made about low-tar warranty claims or discard the carpet, cigarettes. which at that point was several years after Does Alabama Need A Special Session? Arizona Chemical supplied the resin. Source: Law360.com Excess insurer XL Insurance America While there were a number of issues Inc. sued other insurers in the Middle Dis- left over when the Alabama Legislature trict of Florida to escape having to cover

8 BeasleyAllen.com the verdict. XL is asking the court to rule the oil industry and the drug industry is decried the cost. But with public outcry— that Commerce and Industry Insurance grossly inadequate and the health and and civil litigation—airbags are now stan- Co. and National Union Fire Insurance Co. safety of the consuming public is put at dard features on automobiles. of Pittsburgh, Penn., are obligated to cover risk as a result. That makes the role of the But there is some promise. Under the the judgment against Arizona Chemical judicial system extremely important. terms of a pending class action settlement, under their umbrella policies. However, there is at least one industry Taurus International Manufactur- Source: Law360.com that is not only unregulated, but also ing agreed to effectively recall nearly 1 enjoys a level of immunity that no other million Taurus pistols. The lawsuit was industry has. International Business Times filed by Iowa Police Officer Chris Carter, a reports, “Unlike virtually any other con- deputy sheriff with the Scott County Sher- Claim Adjuster’s Documents Not Privileged sumer product sold in the United States— iff’s Office, who alleges his Taurus PT 140 In Bus Crash Lawsuit from toasters to medical devices—the fired when it fell to the ground during a federal government has no authority to drug sting. No one was injured, but the The Pennsylvania Superior Court has force the recall of potentially defective gun shot out a car window, according to ruled that records generated by a claims and dangerous firearms.” There is no the complaint, which was filed in 2013 in adjuster for Greyhound Lines Inc. were agency tasked with ensuring the product the U.S. District Court for the Southern not protected by attorney-client privilege. functions safely. District of Florida. The ruling was in litigation over a bus While there is a lot of emphasis on the The Taurus recall would include the PT crash that injured 42 people. The panel Second Amendment “Right to Bear Arms,” 140 involved in Carter’s case and others, affirmed three trial court orders obligating the freedoms granted by an unregulated as well as the PT 111, which is one that the Greyhound and its adjuster to turn over gun industry are a double-edged sword for company’s former CEO admitted during documents and a fourth order pertaining gun owners. Whether gun manufacturers his testimony at a jury trial six years ago to a videotaped practice deposition of the choose to recall a firearm is entirely at could fire when dropped. Since 2005, at bus driver involved in the accident. That their discretion. If they do, there is no least 13 people have been injured in decision followed an in camera review of mandatory protocol to follow to alert similar incidents involving various models thousands of documents submitted to the owners, and no official repository of recall of Taurus handguns, and an 11-year-old court after a March 2015 discovery order. notices. If a gun is defectively designed boy was killed. The consolidated lawsuits are from a and unintentionally injures or kills Taurus’ concession in the case is a legal 2013 accident in which the Greyhound someone, gun owners are left with little landmark for a gun company operating in bus traveling from New York City to Cleve- recourse to hold companies accountable the U.S., but the company continues to land rear-ended a tractor trailer that outside the civil court system. deny allegations that its guns have defects. lacked operating headlights, taillights, Experts can’t pinpoint the exact In a statement provided to the Interna- hazard lights and reflectors. The truck’s number of deaths and injuries from defec- tional Business Times, Tim Brandt, direc- owners and operator are also named as tive firearms, because there is no national tor of marketing for Taurus Holdings Inc., additional defendants. Greyhound and its data that tracks it. But there were 215,422 said, “We are unable to comment at this driver filed an appeal to the orders on the non-fatal injuries from unintentional gun- point in the Carter settlement process, documents as did FirstGroup America, shots between 2001 and 2013, according which has received preliminary court whom the plaintiffs say owns Greyhound. to the Centers for Disease Control and Pre- approval, or on other pending litigation at But both raised different issues. vention (CDC). During that same this time.” Source: Law360.com period, 8,383 people died from uninten- The pending Taurus settlement, which tional shootings. is scheduled for a final review in January, Just because a gun is inherently lethal is only the second proposed class action doesn’t mean it can’t be designed in such a settlement with a U.S. gun manufacturer VII. way that the odds are less that a person in which the company effectively agreed THE NATIONAL will be injured or killed unintentionally. to a recall. The other agreement is For example, a gun shouldn’t have a pending with Remington Arms, and would SCENE design flaw that allows the weapon to fire affect more than 7 million guns. if dropped. If guns are finally going to be subject to Technology also exists to create addi- federal safety regulations, the next ques- Defective Guns Are Not Regulated tional safety features, such as an indicator tion is how that will be done, and by to allow a person to see if the gun is whom. Several times in the past, and most There is always lots of talk in corporate loaded with a round in the chamber; and recently this year, legislators and advo- boardrooms about how the government for a magazine disconnect device that cates have suggested the U.S. Consumer overregulates and hurts businesses in this would prevent the gun from firing when Product Safety Commission (CPSC) would country. This is largely a myth created by the magazine is removed, even if there is a be the logical choice. The CPSC already Corporate America. Considering the bullet in the chamber. Experts estimate monitors emergency room data to identify source, I fully expect to hear that sort of these features would cost as little as $1 for injury patterns, investigates consumer thing. But I know based on our firm’s a manufacturer to add, and greatly complaints and enforces companies’ experience in product liability litigation enhance the weapons’ safety. Yet, gun reporting requirements related to danger- that the government not only doesn’t over- manufacturers still refuse to add them. ous defects. It can sue businesses that regulate, it actually does an inadequate job Gun manufacturers are not adding violate safety regulations, and force them of regulation. There may well be a number safety features because the public is not to recall defective products. Companies of small businesses that believe that too demanding them, through lobbying or liti- face fines and other penalties for violating much regulation hurts them. However, the gation. Safety features in other industries, safety standards. regulation of such industries as the auto- such as airbags in automobiles, were also However, others, such as the Violence mobile industry, the chemical industry, initially balked at by manufacturers who Policy Center, argue adding guns and

JereBeasleyReport.com 9 ammunition to the CPSC’s regulatory interest rate used to set terms for swaps sensible and feasible given that duties would overburden the already transactions. The banks, which lost a many banks (including some defen- heavily overworked agency. Representa- motion to dismiss the complaint in March, dants) have admitted that, in tives from the Center say the duties would also agreed to cooperate with lawyers for approximately the same period of be better handled by the U.S. Justice the Plaintiffs in further investigation of time, they conspired to rig similar Department. manipulation of the so-called ISDAfix, a benchmark rates—namely, Libor Source: International Business Times tool that determines valuations for interest and the leading benchmark interest rate derivative products. The cooperation rate for the foreign exchange feature is potentially significant because market—in order to maxi- 15 Defendants that have been sued over mize profits. VIII. alleged ISDAfix manipulation have pending cases. The Plaintiffs alleged that the conduct THE CORPORATE According to the Plaintiffs, who filed came to a halt once the subpoenas arrived, WORLD suit in September 2014, the banks worked an assertion that Judge Furman said closely with interdealer broker ICAP PLC, strengthened their claims. The Plaintiffs which until January 2014 was tasked by are represented by lawyers from Scott & the International Swaps and Derivatives Scott LLP; Quinn Emmanuel Urqhart & Citibank To Pay $425 Million In Settlement Association with managing the daily Sullivan LLP; Robbins Geller Rudman & setting of the U.S. dollar-rate version of Dowd LLP; Grant & Eisenhofer PA; Bern- Citigroup Inc. has agreed to pay $425 ISDAfix. The banks were responsible for stein Liebhard LLP; Carella Byrne Cecchi million to settle civil charges that it tried submitting rate quotes, which ICAP essen- Olstein Brody & Agnello PC; Labaton to manipulate interest rate benchmarks. In tially adopted. The suit alleges that the Sucharow LLP; Trief & Olk; Berger & Mon- announcing the settlement, the Commodi- parties worked together to set the rate at tague PC, McCulley McCluer PLLC; and ties Futures Trading Commission said Citi- the point where it was most profitable Fine Kaplan & Black RPC. The case is in group affiliates also made false reports in for them, including engaging in a the U.S. District Court for the Southern connection with ISDAFIX benchmark process known in the industry as “banging District of New York. rates and dollar Libor rates during the the close” where they bought and sold Source: Law360.com financial crisis to protect its reputation. derivative products just before the fix was The CFTC accused Citigroup of trying to closed in order to get the price manipulate the benchmarks by certain they wanted. traders putting in false data to benefit Citibank Fights Objectors To $2 Billion JPMorgan agreed to pay $52 million to their own trading positions. The various Forex Settlement settle the case while Bank of America, actions occurred between 2007 and 2012. Credit Suisse AG, Deutsche Bank AG and With the Citigroup settlement, the Citibank NA has urged a New York The Royal Bank of Scotland PLC each CFTC said it has imposed more than $5 federal court to reject two settlement class agreed to pay $50 million. Citigroup billion in penalties in 17 actions against members’ bid to modify a $2 billion settle- agreed to a $42 million payout and Bar- banks and brokers for manipulating ment over alleged foreign exchange clays PLC will pay $30 million to resolve benchmarks for interest rates and foreign (forex) market manipulation. The bank the claims, the Plaintiffs said. Barclays had exchange. The settlement is the latest in a contends the settlement properly releases already paid $115 million last May to settle series of ongoing international probes of claims involving undisclosed transaction claims brought by the U.S. Commodity global banks. Citibank has faced at least charges. In a letter to U.S. District Judge Futures Trading Commission (CFTC) one larger regulatory settlement. In 2014, Lorna G. Schofield, Citibank said that an related to alleged ISDAfix rigging. Citi agreed to pay the U.S. Justice Depart- objection filed by traders Eduardo and Class action lawsuits are still pending ment $7 billion to resolve claims it misled Gervasio Negrete in April improperly against BNP Paribas SA, Goldman Sachs investors about the quality of mortgage- seeks to exclude claims related to undis- Group Inc., HSBC Bank PLC, ICAP Capital backed securities. The benchmarks closed markups the bank charged for Markets LLC, Morgan Stanley, Nomura included the U.S. dollar ISDAFIX for fixed transactions. Not only are the claims Securities Inc., UBS AG and Wells Fargo & interest rate swaps, the Yen Libor and the appropriately covered by the forex manip- Co.’s Wells Fargo Bank NA unit. The CFTC Euroyen Tibor. ulation settlement, but also the objection and other regulators are reportedly con- Banks use the London Interbank has come too early, Citibank said. tinuing their investigation into allegations Offered Rate (Libor) and Tokyo Interbank Citibank is part of a $2 billion agree- of manipulation of the ISDAfix. Offered Rate (Tibor) to set the cost of bor- ment between investors and nine banks The CFTC has reportedly referred the rowing from each other. Libor is often that was preliminarily approved in Decem- case to the U.S. Department of Justice for used to set rates on such things as credit ber to settle allegations that they engaged an investigation into potential criminal cards and mortgages. in a broad scheme to rig the $6 trillion activities. U.S. District Judge Jesse M. foreign exchange market. JPMorgan Chase Source: Reuters Furman noted that many of the claims & Co., Barclays PLC, HSBC Holdings PLC, made by institutional investors related to The Royal Bank of Scotland PLC, Goldman alleged manipulation of the ISDAfix Sachs Group Inc., BNP Paribas SA,UBS Seven Banks Agree To Pay $324 Million In looked very much like those made against AG and Bank of America Corp. are also Settlement banks in litigation related to the London parties to the settlement. Citibank agreed Interbank Offered Rate (Libor) and other to pay about $400 million in the Bank of America Corp., Citigroup Inc. financial benchmarks. Judge Furman settlement. and JPMorgan Chase & Co. were among rejected the banks’ motion to dismiss in The forex manipulation settlement has seven banks that have agreed to pay a total March, writing: also drawn the ire of some employee of $324 million to settle class action litiga- retirement funds contending their claims It appears that that sort of rate tion alleging that they rigged a benchmark under the Employee Retirement Income manipulation can be economically

10 BeasleyAllen.com Security Act (ERISA) were not properly be noted that BBA no longer conducts the This case as it goes forward will be addressed in the settlement. Plan partici- LIBOR calculations. The Plaintiffs alleged watched closely. In any event, at this junc- pants have filed an amended complaint that the banks began in 2007 to ture, it’s a big win for the plaintiffs. including ERISA claims; however, lowball their borrowing costs in a bid to Source: Law360.com the banks have said the settlement deals shield themselves from worries that they with the same underlying actions as those were being charged high rates to claims as well. Both the antitrust case and borrow money. the markup case are in the U.S. District The fear was that, in the wake of the $150 Million “London Whale” Settlement Is Court for the Southern District financial crisis, a higher borrowing cost Approved of New York. reflected worries that a bank would be JPMorgan Chase & Co. will pay $150 unable to repay any short-term debt they Source: Law360.com million to settle fraud allegations tied to acquired, which could further destabilize its “London Whale” trading debacle, after their financial positions. The Second U.S. District Judge George B. Daniels gave Circuit said that Judge Buchwald incor- final approval to the class action settle- Sixteen Big Banks To Face Revived Libor rectly ruled that the Plaintiffs failed to ment last month. Judge Daniels found Antitrust Suit allege injury in the lower court’s March that the settlement was “fair, reasonable 2013 decision. The Second Circuit Court of Appeals and adequate” for the class of investors, Although the market participants has revived an antitrust lawsuit against 16 saying the two objections had no merit. retained the power to negotiate financial big banks, including Citigroup, JPMorgan The settlement was placed into escrow in contracts, the rates from which they nego- Chase and Bank of America. It’s alleged January and has been accruing interest tiated were artificially set due to the the banks rigged the London Interbank since then. It was reported that an expert banks’ actions to falsify their borrowing Offered Rate (LIBOR). A three-judge for the investors had estimated a cost estimates, the opinion said. Because Second Circuit panel ruled that Manhattan maximum recovery at trial of about of that, the consumers, investors and U.S. District Judge Naomi Reice Buchwald $2 billion. municipalities on the other side of con- was wrong when she dismissed the com- Apparently there was a risk that the tracts with the banks were potentially plaints against the banks on the grounds Plaintiffs could establish that bank CEO harmed, the Second Circuit said. The that the Plaintiffs had failed to allege Jamie Dimon and former finance chief opinion stated: injury under antitrust law. The panel Douglas Braunstein knew that they were instead found that the proceedings should The Sherman Act safeguards con- making misleading statements during an be reopened because antitrust law does sumers from marketplace abuses; April 2012 conference call. Dimon and not require that Plaintiffs show injury in appellants are consumers claiming Braunstein have maintained that they order to effectively allege a conspiracy injury from a horizontal price- believed their statements to have been among market participants. The opinion, fixing conspiracy. They have true when they were made, but the inves- written by Judge Dennis Jacobs, reads: accordingly plausibly alleged anti- tors have argued the opposite. None of the trust injury. institutional investors, which held about Since the district court did not reach 76 percent of the stock during the class the second component of antitrust The panel also found that Judge Buch- period, objected to the settlement. standing—a finding that appellants wald did not take stock of the question of Anyone who bought JPMorgan common are efficient enforcers of the anti- whether the Plaintiffs would be an “effi- shares between April 13 and May 21, 2012, trust laws—we remand for further cient enforcer” of the antitrust statute, the will be part of the settling class. proceedings on the question of anti- second component that would need to be The suit was filed in 2012, and in 2014, trust standing. decided for the decision to move forward. during motions to dismiss, Judge Daniels The judges on the panel instructed Judge The Second Circuit panel said that the reduced the scope of the case by dismiss- Buchwald to explore that question. Plaintiffs had sufficiently alleged both a ing three individual defendants and limit- Despite the clear win for the Plaintiffs in violation of antitrust law and antitrust ing the investors’ claims to statements getting the case revived, the Second injury in a series of complaints alleging made by Dimon and Braunstein during the Circuit panel cautioned that it was not that the 16 banks, including Barclays PLC, conference call. During that call, Dimon, making a dispositive ruling that antitrust Credit Suisse AG and UBS AG, engaged in a addressing reports of the losses, called the injury had occurred. Instead, the panel wide-ranging, horizontal conspiracy to rig matter “a complete tempest in a teapot.” merely found that the Plaintiffs had met the LIBOR, a key benchmark interest rate Other “London Whale” civil suits— the bar for their claims to be heard in that is used to set rates for everything which use the name given to Bruno Iksil, court. The opinion said further: from derivatives contracts to mortgage the former JPMorgan trader whose bets caused the losses—have been dismissed, rates and credit card interest rates. Bar- This decision is of narrow scope. including employee pension and deriva- clays, UBS and the Royal Bank of Scotland The net impact of a tainted LIBOR in tive claims against the bank. The bank PLC all entered into criminal plea agree- the credit market is an issue of cau- itself settled with U.S. and United ments with U.S. authorities over LIBOR sation reserved for the proof stage; Kingdom regulators in 2013. manipulation claims. RBS is also a party to at this stage, it is plausibly alleged the litigation before the Second Circuit. on the face of the complaints that a Source: Law360.com Prior to the alleged rigging of the rate manipulation of LIBOR exerted coming to light, LIBOR was set by the some influence on price. The extent British Bankers Association (BBA), which of that influence and the identity of B. Braun Medical Admits To Tainted Syringe would collect borrowing cost estimates persons who can sue, among other Sales from participating banks and then calcu- things, are matters reserved late an average of the costs, eliminating for later. B. Braun Medical, a drug and device the highest and lowest estimates. It should maker, has admitted wrongdoing and will

JereBeasleyReport.com 11 pay up to $7.8 million to avoid criminal without even viewing AM2PAT’s whistleblowers to date, while the CFTC charges related to the distribution of con- manufacturing operations. In 2007, has awarded only three. There are signs, taminated saline syringes. The U.S. B. Braun began selling syringes however, that the CFTC may be catching Department of Justice (DOJ) announced without visiting or auditing up. In April, the CFTC approved a payout the settlement, which included a non- AM2PAT’s new manufacturing of more than $10 million to a whistle- prosecution agreement last month. The plant. B. Braun ultimately received blower who provided key information that payout includes $3.8 million in forfeitures, numerous complaints about saline led to a successful CFTC enforcement a $1 million civil penalty and up to $3 tainted with orange or black parti- action. The identity of the whistleblower million in restitution for patients who cles and brownish saline that and the name of the company penalized were “directly and proximately harmed” “looked like it contained water from were not disclosed in that case. Ehrman, by bacteria-laced saline produced by the Hudson River.” in a press release, stated: North Carolina-based AM2PAT Inc. and sold by Germany-based B. Braun. B. Braun is agreeing to an array of com- The Whistleblower Program is Although B. Braun did not manufacture pliance actions. The agreement includes working. My hope is that this multi- the syringe products, it sold them under the following: million dollar award will encourage others to come forward with infor- its name and was responsible for taking improved vetting and monitoring of certain steps to ensure the products were mation that will assist the Commis- suppliers, stronger tracking of cus- sion in protecting our markets. safe. The company failed to adequately tomer complaints, enhanced train- oversee quality control and therefore ing of auditors and annual The CFTC’s Whistleblower Program could have faced criminal liability under certifications of the stepped-up com- was created by section 748 of the Dodd- the Federal Food, Drug and Cosmetic Act pliance by B. Braun’s CEO. The com- Frank Act. The CFTC pays monetary for distributing tainted products, the DOJ pliance obligations will last for 30 awards to eligible whistleblowers who vol- said. Benjamin C. Mizer, head of the DOJ’s months, although an extension or untarily provide the CFTC with original civil division, said: early termination are possible information about violations of the Com- Companies must take reasonable depending on B. Braun’s adherence. modity Exchange Act (CEA). Under the Dodd-Frank Act, employers may not retali- steps to ensure that their suppliers In a statement, a B. Braun spokesperson are making quality products that ate against whistleblowers for reporting said that the events occurred almost a violations of the CEA to the CFTC. In help rather than harm patients. decade ago and that the company is “fully Today’s settlement shows that the general, employers may not discharge, committed to ensuring patient safety.” The demote, suspend, threaten, harass, or dis- government will continue to hold government is represented by Benjamin C. companies accountable for failing to criminate against a whistleblower because Mizer, John Stuart Bruce, Michael S. of any lawful act done by the fulfill this critically important Blume, Felice M. Corpening, Allan Gordus, responsibility. whistleblower. Shannon L. Pedersen and Evan Rikhye of According to Ehrman, the CFTC’s whis- The improper manufacturing and sales the U.S. Department of Justice. tleblower program is gaining momentum. stretch back almost a decade. Two employ- Source: Law360.com He told the National Law Journal: ees of AM2PAT ultimately received 54-month prison sentences for fraud. My sense is that you’re going to see a Reportedly, the company’s former presi- lot more frequent awards than in dent, Dushyant Patel, a wanted fugitive, is IX. the past. They used to be every year. still on the run. He is believed to have WHISTLEBLOWER I think we’re going to step that up. fled the United States. B. Braun’s nonpros- Certainly we’ll be doing more than ecution agreement says that AM2PAT used LITIGATION one a year. “dirty and filthy equipment” to manufac- Lawyers at Beasley Allen handle whistle- ture sterile syringes that are used to flush blower cases involving violations of the out medical devices, such as catheters. On CFTC Whistleblower Program Gains federal False Claims Act and related state several occasions, the agreement said that Momentum With $10 Million Whistleblower statutes, as well as cases under the IRS, AM2PAT falsified data and hid its wrong- Award SEC, and CFTC whistleblower programs. doing from B. Braun. The agreement also For more information on our firm’s whis- contains elaborate detail on B. Braun’s The Director of the Whistleblower tleblower practice, contact Archie Grubb admitted conduct. Office for the U.S. Commodity Futures ([email protected]) at On repeated occasions, company Trading Commission (CFTC) wants to 800-898-2034. employees are described as raising con- strengthen the agency’s whistleblower cerns about AM2PAT and being alerted to Sources: www.CFTC.gov and www.nationallawjournal. program. Christopher Ehrman, who left com suspicious products but failing to follow the U.S. Securities and Exchange Commis- through, sometimes amid the backdrop of sion (SEC) in 2013 to lead the CFTC’s overdue syringe orders from customers. whistleblower program, recently told the The agreement revealed the following: National Law Journal that he is “commit- The False Claims Act Will Have Increased Penalties For example, B. Braun in 2006 con- ted to doing everything I can to protect whistleblowers.” ducted an on-site audit of AM2PAT The United States Department of Justice Both the SEC and the CFTC have whis- to confirm remedial actions in the (DOJ) announced that there will be tleblower programs that allow whistle- wake of a warning letter issued by increased penalties under the federal False blowers to receive up to 30 percent of the U.S. Food and Drug Administra- Claims Act, is a powerful tool in the gov- monies recovered by the government tion (FDA). However, B. Braun’s ernment’s war against fraud. As we have based on the whistleblower’s original auditor signed off on the remedies stated on numerous occasions, the False information. The SEC has awarded 21

12 BeasleyAllen.com Claims Act incentivizes integrity by protect and reward individuals for doing incentivize Byram’s recommendation of its empowering ordinary citizens to blow the the right thing by reporting fraud. If you products, according to the settlement whistle on fraud committed against the have any questions about whether you agreement. The company entered a five- United States government. qualify as a whistleblower, or need more year corporate integrity agreement as part The text of the False Claims Act pro- information about the FCA, you can of the settlement. vided for penalties not less than $5,000 contact a lawyer at Beasley Allen for a free The complaint was brought by three and not more than $10,000. The Depart- and confidential evaluation of your poten- whistleblowers: Kimberly Herman, a Min- ment of Justice later increased that range tial claim. There is a contact form on our nesota resident and former Coloplast pres- to $5,500 to $11,000, and now the range firm’s website, or you can email one of the ident; Kevin Roseff, a Florida resident and has been adjusted once again. On May 2, lawyers on our whistleblower litigation former Coloplast director; and Amy the Department of Justice published the team: Archie Grubb, Larry Golston, Lance Lestage, a Massachusetts resident and new penalty range for False Claims Act Gould or Andrew Brashier at 800-898- Coloplast manager. Herman and Roseff say violations, which now provides for penal- 2034 or by email at ArchieGrubb@beasley- that they were fired for objecting to kick- ties not less than $10,781 and not more allen.com, Larry.Golston@beasleyallen. backs, and Lestage says that she was than $21,563. This new increase takes com, [email protected] or placed on leave for joining the FCA case. effect this year on August 1, and will last [email protected]. The suit alleges kickback arrangements until Jan. 1, 2017. After Jan. 1, 2017, the that spanned much of the industry for con- penalties are indexed to increase annually tinence care and ostomy goods. In addi- to keep pace with inflation. These new tion to Hollister, Byram and Coloplast, a Hollister And Byram To Pay $21 Million In penalties will be published in the Federal supplier called Liberator Medical Supply FCA Kickbacks Case Register on an annual basis on or before Inc. has also agreed to a settlement in the Jan. 15 of each calendar year. Medical product maker Hollister Inc. case. Liberator agreed to pay $500,000 last The False Claims Act is like a watchdog and medical product supplier Byram year. A number of other companies have against fraud, and the penalties are the Healthcare Centers Inc. have agreed to been parties to the litigation, and certain teeth. With these long-overdue penalty pay a combined $21 million to settle whis- allegations—including claims of retalia- increases, the teeth are now twice as tleblower allegations that they violated the tion by Coloplast—are still being litigated. sharp as before. The new penalties serve False Claims Act (FCA) by carrying out a The federal government is represented to protect citizens and the government in years-long kickback scheme involving by George B. Henderson II, Kriss Basil and three ways: catheters and colostomy bag accessories. Jay Majors of the U.S. Department of Justice, and Robert K. DeConti of the • First, there is a correlation between According to the U.S. Department of Justice (DOJ), the payouts include almost Office of Inspector General at the U.S. penalties and the tax pool. When an Department of Health and Human Ser- unscrupulous person or corporation $11.5 million from Hollister and almost $9.5 million from Byram. This settlement vices. The relators are represented by Paul defrauds the government, they steal W. Shaw and Taylor R. Neff of Verrill & from our tax pool. They are depleting resolves an FCA case brought in Massachu- setts federal court by three employees of Dana LLP, and Jeffrey E. Marcus of Marcus monies gathered to fund our health Neiman & Rashbaum LLP. The case is in care, our defense, and other benefits Coloplast Corp., a manufacturer, also named in the suit. That company agreed the U.S. District Court for the District of our tax dollars afford us. Higher penal- Massachusetts. ties for committing fraud help replenish to pay a $3 million settlement the tax pool. in December. Source: Law360.com The settlement agreements released • Second, these new penalties deter described allegations of misconduct over a others from committing fraud against period from 2007 to 2014. It was claimed Merck And Genentech Said To Have Sold the government. Fraudulent acts com- in the case that Hollister bribed Byram to Unapproved Drugs mitted many times over, such as promote its medical products, in violation improper billing, coding, or document- of prohibitions on kickbacks in Medicare Merck Serono S.A., Genentech and ing of medical procedures, may result in and Medicaid. Benjamin C. Mizer, head of other drug manufacturers are facing qui penalties in the millions of dollars. the DOJ’s civil unit, said in a statement: tam claims that they illegally received reimbursements from the government for • Third, the False Claims Act provides We will not permit such illegal pay- unapproved vaccines and other biologic incentives for citizens to step forward ments to taint the decision-making drugs. The False Claims Act (FCA) suit was and blow the whistle on fraud. These of those who serve the beneficiaries unsealed last month in a New York federal incentives include 15 to 30 percent of of these important programs. court. The complaint alleges that Merck the funds recovered by the government. Serono S.A., Genentech Inc., Amgen Larger penalties equal larger rewards The companies allegedly reached an Inc., Bayer Schering Pharma AG, Bristol- for whistleblowers. These larger agreement in 2007 under which Hollister Myers Squibb and a number of other com- rewards will incentive whistleblowers would pay Byram for the costs of cash panies put patients at risk by conspiring to remain vigilant, which is a win-win incentives given to its sales representa- with pharmacies and drug-packaging com- situation for taxpayers and the govern- tives for every new order of Hollister panies to repackage drugs with excess ment. Whistleblowers receive larger barrier rings and strips. In 2012, the com- product in violation of approved labeling. rewards while the tax pool is more ade- panies allegedly reached another agree- John F. Underwood, the relator, a quately recompensed. ment under which Hollister paid cash incentives for the Byram vice president former sales representative for Merck and If you are aware of fraud being commit- who presided over the largest annual Genentech, said the manufacturers ted against the federal government, or a revenue growth for Hollister catheters. entered into a scheme to overfill vials and state government, you should report it. And from 2009 to 2014, Hollister paid pre-filled syringes with extra liquid solu- The False Claims Act and other laws can $200,000 per year in “catalog funding” to tion or powder up to and exceeding the authorized amount. The overfill was alleg-

JereBeasleyReport.com 13 edly marketed to heath care providers as a jected patients to increased risks of The Department of Commerce (DOC) free dose that can be repackaged and morbidity and mortality. publishes orders detailing the antidump- billed to U.S. taxpayers. Underwood ing duties, including the antidumping claimed the allegedly repackaged drugs Underwood further accused the manu- order concerning wooden bedroom furni- weren’t eligible for coverage and reim- facturers and health care providers of ture imported from the People’s Republic bursement. The complaint says: receiving kickbacks as part of the alleged of China. 70 FR 329-01. These antidump- scheme. He said the defendants violated ing duties protect domestic manufacturers Although expansive in scope, the state FCA laws by submitting false claims against foreign manufacturers dumping fraudulent scheme is straightfor- through various state Medicaid and other their products into the American market ward. With the knowledge and par- health care programs in California, Illi- at prices below cost. Companies that ticipation of defendant health care nois, New York and other states. The suit import and sell foreign goods are required providers and manufacturers, sought up to $11,000 for each alleged vio- to obey the orders published by the DOC, defendant repackagers unlawfully lation of federal anti-kickback laws, in especially the orders designed to protect manipulated the licensed biologic addition to other relief. our domestic companies from unfair com- drugs by repeatedly entering single- The relator is represented by Andrew M. petition. The allegations against Z Gallerie use and multi-use vials, extracting Beato, Robert F. Muse, Joshua A. Levy and were brought by Kelly Wells, an e-com- and/or pooling the overfill, and Kerrie C. Dent of Stein Mitchell & Muse merce retailer of furniture, under the repackaging the product into LLP. The case is in the U.S. District Court whistleblower provision of the FCA. smaller doses that are relabeled and for the Eastern District of New York. Sources: U.S. Department of Justice replaced in interstate commerce for Source: Law360.com delivery to health care providers.

Biological products, or biologics, are a Whistleblowers Win In U.S. Court Of Upscale Furniture Seller Agrees To Pay virus, vaccine, blood component or cure Appeals For The Fourth Circuit of cancer, anemia, multiple sclerosis and $15 Million To Settle Reverse FCA other diseases or conditions, according to Allegations The U.S. Court of Appeals for the Fourth the FCA suit. The biologics at issue in the Circuit ruled last month in favor of a cor- suit are liquid and powder formulations The Department of Justice (DOJ) porate whistleblower in a case filed under that are intravenously infused or adminis- announced last month that Z Gallerie LLC the Sarbanes-Oxley Act. Mrs. Dinah R. tered by injection in patients. Biologics are has agreed to pay $15 million to resolve a Gunther, a former employee, alleged that highly regulated, and their manufacture lawsuit filed under the False Claims Act the Virginia-based software provider, requires a valid biologics license, the com- (FCA). It was alleged in the lawsuit that Z Deltek, Inc., fired her after she raised plaint said. The U.S. Food and Drug Gallerie was committing “reverse false accounting concerns to the company’s Administration allegedly only approves a claims” by making false statements con- General Counsel, Audit Committee and biologics licensing application after a cerning furniture imported from the Peo- the U.S. Securities and Exchange Commis- showing that the biologic is safe, pure and ple’s Republic of China, thereby evading sion (SEC). potent and that it is made in a safe and customs duties. The FCA contains a The U.S. Department of Labor originally effective manner. reverse false claims provision that makes reviewed the claim and ruled in Mrs. Gun- Moreover, if a drug manufacturer con- it unlawful for one to “knowingly make, ther’s favor, ordering the company to pay tracts with another facility to package or use, or cause to be made or used, a false substantial damages, including back pay repackage its products, the manufacturer record or statement material to an obliga- with benefits and four years of front pay. must ensure that the repackager complies tion to pay or transmit money or property Subsequently, the company filed with certain standards, according to the to the Government, or knowingly conceal various appeals. complaint. Underwood claimed he has or knowingly and improperly avoid or In ruling for Mrs. Gunther, the Court more than 30 years’ experience in market- decrease an obligation to pay or transmit determined that she was “entitled to be ing biologic and conventional drugs. He money or property to the Government.” returned to the identical financial position allegedly started working for Merck in 31 U.S.C. § 3729(a)(1)(G). she would have occupied had she not 1972 and for Genentech in 1986, leaving Reverse false claims are different from been terminated unlawfully for protected the latter company in February 2005. The other false claims. That’s because, unlike whistleblowing.” The Court also made relator filed his sealed complaint in the typical false claim where one falsely important findings upholding the Depart- May 2010. claims federal or state funds, the reverse ment of Labor’s rulings on removal of The complaint also names Johnson & false claim arises when one makes false company documents and surreptitious Johnson, Genetech, Teva Pharmaceuti- statements in order to avoid paying tape recording in the context of a whistle- cal and Kaiser Permanente, among other monies owed to the government. The blower case. The Court noted that “Gun- Defendants. Underwood said that, during complaint alleged in this case that Z Gal- ther’s effort to protect selected relevant his time at Genetech, he discovered that lerie was classifying wooden bedroom fur- documents from what she reasonably the drug companies, pharmacies and phar- niture, such as dressers and chests, as believed was a risk of destruction” was maceutical repackagers were conspiring non-bedroom furniture, such as a hall reasonable. Stephen M. Kohn who argued to unpack, divide, repackage and relabel chest, in order to avoid the antidumping before the Court of Appeals on behalf of unlicensed biological drug, resulting in duties on imported wooden bedroom fur- Mrs. Gunther stated: the adulteration and misbranding of prod- niture. Because the obligation to pay ucts that were later administered to duties on imported wooden bedroom fur- This is a great day for whistleblow- patients. It was alleged in the suit: niture from the People’s Republic of China ers. Employees who risk their jobs to existed before and outside of the false report wrongdoing must be assured As a result of the acts and practices statement, the reverse false claims provi- that they will not suffer financial described herein, defendants sub- sion of the FCA applied. retribution. Mrs. Gunther is a hero. With the support of her husband

14 BeasleyAllen.com and her family, she stood up to a get down to it, The Donald’s campaign has 35 mph, the speed at which federal regula- corporate giant, and vindicated her been largely run based on the not-too-stel- tions require that a vehicle is strong right to disclose potential violations lar performance of Congress. In effect, enough so that its occupants survive a of law. She has fought this case since Trump is running against Congress, and crash. The test was successful in that the her illegal termination on October now he wants the GOP members of the newly designed rear underride guard did 27, 2009. A long and House and Senate to join his campaign. not intrude into the passenger compart- painful journey. The old saying that “politics makes ment, therefore making the crash strange bedfellows” certainly seems to survivable. The whistleblower, Dinah Gunther, had apply to the Trump bandwagon effect. It The main change to the bars would be this to say: will be most interesting to see how these four supports across the horizontal bar This has been both the simplest and “arranged marriages” work out. Things instead of the current two. The new bars most difficult journey I’ve made. have a way of changing quickly—some- are on the outer ends of the bar, and all Simple because I believe I did the times overnight—in politics. I have to are fastened to a more robust undercar- right thing by reporting potential wonder when the Trump voters will start riage. Currently, Manac, Vanguard, wrongdoing; difficult because Deltek to look at their candidate’s history. Wabash and Stoughton trailers pass the mounted forceful defenses that took When—or I should say if—they do, The institute’s crash test; however, Great a toll on my career and family. I am Donald could see a very fast drop in popu- Dane, Hyundai, Strick and Utility do not. grateful that the trial Judge ulti- larity. Stay tuned! One manufacturer says the fix is easy, mately found Deltek’s defenses doesn’t add a lot of extra weight and is not lacked merit. I think of King David, expensive—costing only $20. The who as a shepherd boy faced National Highway Traffic Safety Adminis- Goliath, a giant who in every XI. tration believes the fix is much costlier measure—save one—had the PRODUCT than this. However, IIHS disputes that and advantage over David. What David disagrees with the agency. Regardless, the had over Goliath was unshakeable LIABILITY UPDATE cost and extra weight should not be an faith. Standing on faith, David undue burden for independent owners- stopped Goliath with a simple operators. There was also discussion at the confer- smooth stone. Throughout this Stronger Underride Guards Are Needed To ence that semi-trailer side skirts, currently process, my faith never wavered, Prevent Deadly Truck Underride Crashes and today I feel like I am the stone used for fuel-saving streamlining, could be that stopped the giant. The Insurance Institute for Highway made more rugged to also serve as under- Safety (IIHS) recently held an all-day con- ride prevention devices in side crashes. I agree that Mrs. Gunter is a hero. She is ference at its Vehicle Research Center in Many cities are putting side guards on an inspiration to all persons who simply Ruckersville, Va., on the issue of deadly their trucks to protect pedestrians, bicy- want Corporate America to do the right truck underride crashes. The topic of dis- clists and motorcycle riders. These are thing and play by the rules. When that cussion at this conference, attended by further steps taken in the right direction doesn’t happen, corporate wrongdoers trucking industry executives, government to decrease the number of people who are must be held accountable. The False officials and safety activists, was that big killed each year in underride accidents. Claims Act is a valuable tool that is avail- trucks need improved underride guards. Our firm has successfully handled a able to help make that happen. In an underride crash, a passenger number of underride cases over the years Source: Corporate Whistleblowers News vehicle crashes into a tractor-trailer truck for clients who lost loved ones in a crash. or straight truck from behind or from the If you would like to have more informa- side and jams underneath the truck, flat- tion relating to the underride issue, tening the passenger compartment and contact Chris Glover, a lawyer in our Per- X. injuring or killing the vehicle’s occupants. sonal Injury / Products Liability Section, at CONGRESSIONAL Underride can also happen when bicy- 800-898-2034 or by email at Chris. clists, pedestrians and motorcyclists slide [email protected]. UPDATE under the body of a truck and are in danger of being run over. There are federal regulations in place that require The Sailun S825 Medium Truck Tire Has trailers and some straight trucks to be Will There Be A Political Marriage Issues equipped with rear underride guards, Involving GOP Members Of Congress? which are bars that hang down on the Lawyers in our firm are handling an The biggest news coming out of Con- back of the truck and trailer. In fact, regu- increasing number of tire cases involving gress recently has been the dilemma faced lations requiring modest underride guards the failure of tires made in China. Ameri- by GOP members of the House and Senate have been in place in the U.S. since 1953. can consumers have faced numerous who are facing reelection this year. Having However, the National Highway Traffic issues with Chinese products including to run on a ticket led by “The Donald” Safety Administration (NHTSA) is cur- lead-laced toys, tainted toothpaste and pet seems to have lots of them very much con- rently considering a new standard for the food recalls. However, the problems with cerned. While several have endorsed guards; a stronger underride guard. Chinese products are emerging with Trump, some have tried their best to As a demonstration, IIHS, an insurance greater frequency and a major area of dodge him. Frankly, I believe all of them industry trade group, crash-tested a latest- concern involve tires. The tires on a on the GOP ticket are stuck with Trump. design Stoughton trailer, slamming a 2010 vehicle are part of the vehicles and are I doubt seriously that more than a Chevrolet Malibu into the back of the amongst the most important. One of the handful of the members of Congress trailer hooked to a semi-tractor and laden most important safety features on an auto- approve of Trump’s candidacy. When you with 34,100 lbs. The collision occurred at mobile is its tires.

JereBeasleyReport.com 15 China is currently sending nearly 65 Lumber Liquidators Pays $26 Million To ment, the company would adopt new million tires a year into the U.S. and that Settle Investors’ Import Suit stock holding guidelines and make other number is increasing. Many Chinese tire corporate governance changes, according manufacturers have come under attack Lumber Liquidators Inc. has agreed to to the filing. recently for making substandard and pay $26 million to settle shareholder and Source: Law360.com unsafe tires available for sale in the United derivative suits alleging the company States. Furthermore, some Chinese manu- misled investors regarding its importation facturers have been the subject of recalls of hazardous products that used illegally by many state attorneys general and the harvested wood from China. Lumber Liq- A $11.5 Million Verdict In A Death Case Federal Trade Commission (FTC). uidators will also pay $1 million to settle a Against R.J. Reynolds While there have been numerous contract dispute with its ex-CEO. A Florida jury returned a $6.5 million Chinese tire brands which have been scru- The flooring manufacturer, which has verdict against R.J. Reynolds Tobacco Co. tinized, some of the brand tires which faced a series of suits and actions over in punitive damages in a lawsuit brought have been recalled for safety defects formaldehyde used in the glue to hold the by relatives of a chain-smoking registered include Westlake Tires, AKS Tires, Tellu- imported composite flooring together, nurse and addiction counselor who died ride tires and Compass Tires. All of these said in a U.S. Securities and Exchange of lung cancer. This is in addition to the $5 tires are made by the China-based Hang- Commission (SEC) filing that it will pay million compensatory verdict awarded to zhou Zhongce Rubber Company and $26 million and issue stock worth $16 the Plaintiffs a day earlier. The jurors all lack the most basic of tire safety million under the terms of a settlement awarded $1 million to each of Dorothy features, such as bead wedges and cap ending the proposed consolidated securi- Jane McCabe’s five children, but found she plies, which are state-of-the-art in the tire ties lawsuit. was 70 percent responsible for her own industry today. The 8-K filing also said ex-President and death, while R.J. Reynolds bears 30 Another Chinese tire that our lawyers CEO Robert M. Lynch had agreed to a percent of the blame. McCabe began have found to be failing and causing injury general release of claims to cooperate smoking as early as 12 years old and was a to people is the Sailun S825, a medium with the company, and to certain restric- regular smoker by age 14. The evidence truck tire. Our firm has just filed two tive terms regarding confidential informa- revealed that she smoked two to three cases against Sailun and their importers tion, non-competition and non-solicitation packs per day for 53 years, always keeping involving failures of the S825. One case in of its employees or customers. a pack on her nightstand and often Mississippi involves the death of a retired Lumber Liquidators came under scru- smoking outside instead of spending time military man who was working for Oktib- tiny when independent analysts began with her family. beha County. He lost his life when the investigating the company, followed by R.J. Reynolds claimed that McCabe’s right front tire on the truck he was driving federal regulators and journalists with “60 training as a health professional and addic- separated, causing the vehicle to become Minutes.” The news program, in a March tion counselor made it unlikely she didn’t uncontrollable. 2015 episode, purchased dozens of boxes know about the dangers posed by ciga- The other case is in North Carolina and of Chinese flooring from Lumber Liquida- rettes. She was a registered nurse who it involves a truck driver, who suffered a tors stores in four states, and said that attended nursing school immediately after disabling injury when the S825 failed on independent testing revealed that all but high school and worked at Charity Hospi- the truck he was driving for his employer. one of the samples surpassed the Califor- tal in New Orleans, where one of the In fact, his employer bought 10 of the nia limit for unsafe formaldehyde levels, nation’s foremost anti-smoking cancer S285s from Sailun distributors and has had with some going more than 13 times experts worked. Ms. McCabe also was a two other tires fail, causing injury to beyond the mark. serious alcoholic who sought treatment to employees. The employer has removed all Plaintiffs in the securities lawsuit overcome her alcohol addiction and even- Sailun tires from service. alleged the company was buying engi- tually helped run an addiction treat- There is also another case pending neered and laminate flooring manufac- ment program. against Sailun in Florida where several tured in China that contained and emitted Ms. McCabe was diagnosed with lung people were injured. We are aware of dangerously high levels of formaldehyde, cancer in 1995 and died the following numerous other cases involving this tire. as well as wood that had been illegally year. The case is one of the thousands Interestingly, Sailun has recalled similar harvested from protected forests in the stemming from the landmark Engle class tires, but has not recalled the S825 Russian Far East, home to the critically action against tobacco companies. The involved in our cases. endangered Siberian tiger and Far East Florida Supreme Court had decertified the In addition to the workers who con- leopard, which are both among the rarest Engle class in 2006 and overturned a $145 tinue to be at risk while operating cement animal species on the planet. billion verdict, but allowed up to 700,000 and other trucks on our highways, all of us The U.S. Lacey Act bans trading in ille- people who could have won judgments to who share the roadways with these gally sourced wood products imported in rely on the jury’s findings to file suits of medium trucks equipped with S825 tires violation of foreign laws. The company’s their own. Those findings include conclu- are also at risk of injury or death. When a allegedly false statements led to its stock sions that smoking causes certain diseases tire fails on the front axle of a medium price soaring from $19.17 to a high of and that tobacco companies hid the truck, such as a cement truck, the driver $115.44 in less than two years, but these dangers of smoking. cannot control the truck and a 40,000- values plummeted resulting in a “massive pound vehicle becomes a lethal weapon loss in shareholder value” when the Source: Law360.com on the highway posing a risk for others. company came under suspicion of violat- Based on what we have seen so far, the ing the law, according to the Plaintiffs. tragic incidents caused by this defective The securities filing also said Lumber tire are not over. Until these tires are Liquidators reached an agreement in prin- recalled and gotten off the highways, ciple last month to settle related derivative people will remain at risk. litigation. Under the terms of that settle-

16 BeasleyAllen.com Tony Gwynn’s Family Says Tobacco boardroom instead of a street erberg and Katherine A. Tremblay of the Companies Are Responsible For His Death corner. The tactic is basi- Law Offices of Donald P. Tremblay. The cally the same. case is in the Superior Court of the State of Family members of Baseball Hall of California, County of San Diego. After his 1982 debut with the San Diego Famer Tony Gwynn have filed a wrongful Source: Law360.com death lawsuit in a California state court, Padres, Gwynn quickly became a an alleging that a tobacco company lured him extremely popular player because of his into an addiction to smokeless tobacco outstanding on-field performance and that made him an unwitting promoter of likable personality. He was a natural hitter XII. the products and eventually led to the ball- and had a tremendous career. His constant player’s death in 2014. The suit, filed in use of tobacco products made him a mar- AN UPDATE ON California Superior Court by Gwynn’s keting tool without his even knowing it. JOHNSON & widow and two children, names the Altria The complaint says: Group—the parent company of Philip JOHNSON Throughout his career, he was pho- Morris USA and U.S. Smokeless Tobacco tographed and broadcast directly LITIGATION Co.—for its sale and marketing of smoke- into countless homes across less tobacco products under brands America, including in formats like including Skoal, Copenhagen and Happy baseball cards directed at children, Days. According to the complaint, Gwynn Another Verdict In A Johnson & Johnson complete with a distinctive dip started using smokeless tobacco or “dip” at Baby Powder Case visible in his lower right cheek and age 17 while in college after receiving free a distinctive round can of dip visible samples from the company. He used it On May 2 the second jury in three in his back pocket. Defendants throughout his 20-year Major League Base- months found Johnson & Johnson liable received the benefit of this priceless ball career. for ovarian cancer resulting from use of its advertising without Tony’s knowl- Gwynn died in 2014 at age 54 from sali- talc containing products. The St. Louis edge, permission or compensation. vary gland cancer. It’s alleged in the suit jury awarded Plaintiff Gloria Ristesund $55 million dollars after agreeing John- that Gwynn’s addiction turned him into The company has known since the son’s Baby Powder contributed to the an unwitting promotional figure for the 1960s that smokeless tobacco could have development of her ovarian cancer. Mrs. deadly products, especially in the eyes of devastating health effects, but worked to Ristesund was diagnosed with ovarian young children, even though the company convince the public otherwise. The cancer in 2011 when she was just 57 years knew all along about their associated Gwynn family said the industry has now old. She had used Johnson’s Baby Powder health risks but refused to admit them. been forced to place warning labels on its for feminine hygiene for more than 40 The complaint states: products with the admission that they years. The verdict includes $5 million could cause oral cancer, but no such labels Collectively, the defendants are the dollars in actual damages and $50 million appeared when the all-star outfielder first companies and individuals that in punitive damages. received samples. And despite the labels, manufactured, adulterated and You will recall that we reported on the the family said that tobacco companies pushed on the public the tobacco first of these two verdicts after a St. Louis today continue to dispute the fact that dip products that led to Gwynn’s death, jury found in favor of the family of Jacque- is addictive and cancerous. all while falsely denying the prod- line Fox. The jurors found that her ovarian The complaint has claims for negli- ucts were dangerous or addictive cancer, and subsequent death, were gence, product liability, negligent misrep- and engaging in a worldwide cam- caused by the use of Johnson & Johnson’s resentation and fraudulent concealment. paign to continually recruit new Baby Powder and Shower to Shower. The In addition to Altria and its subsidiaries, underage users. This case seeks to Fox verdict came down in February of this the suit also names three individuals who hold them responsible for killing a year and totaled $72 million dollars—$62 marketed the products on the San Diego baseball legend and a wonderful million of which was punitive in nature. State campus while Gwynn attended human being. Both Mrs. Ristesund and Jacqueline school there and the operators of two Fox’s family were represented by our firm. ampm convenience stores where he pur- Gwynn started receiving free samples Each of these women testified that the chased the dip. A lawyer for the Gwynns, of smokeless tobacco products as a San purpose for bringing their lawsuit was so David S. Casey, Jr., told Law360.com that Diego State University freshman and even- that other women would be aware of this the suit is meant to remind people about tually became a “self-described ‘tobacco cancer risk. Since Johnson & Johnson is the dangers of smokeless tobacco. Casey junkie’” who daily consumed as much as unwilling to change the labeling on their had this to say: two cans of dip, the equivalent of four to baby powder product, it will take lawsuits five packs of cigarettes. Comparing this Tony Gwynn was an iconic figure in brought by brave women and their fami- marketing tactic to the practices of illicit the history of baseball and a role lies to get the word out to the public drug dealers, the family said the scheme model for many young people. The regarding this health hazard. Eventually was part of larger practice of the company, family really wants people to know Johnson & Johnson will have to listen. which they said purposefully targeted that the dipping and chewing of The juries in these two cases saw inter- young people, athletes and African-Ameri- tobacco is dangerous to their health. nal company documents that proved cans in efforts to promote addiction. The Johnson & Johnson has known for decades complaint says: The Gwynns are represented by David about the ovarian cancer risk and not only Casey Jr., Frederick Schenk, Robert J. Fran- The only major difference between didn’t do anything to warn consumers, cavilla, Jeremy Robinson, Srinivas Hanu- the marketing by defendants and but they purposely refused to warn and madass and Adam B. Levine of Casey other dealers is that defendants covered up the risk. Indeed, Johnson & Gerry Schenk Francavilla Blatt & Penfield; orchestrated their schemes from a Johnson’s own consultant advised them in and Donald P. Tremblay, Peter Q. Schlued- a 1997 letter to the CEO of the company

JereBeasleyReport.com 17 that if they didn’t start warning and other- known for decades about these risks, and phia’s Complex Litigation Center, had wise acknowledging that the evidence that they not only didn’t do anything to erroneously dismissed his bid for putative presented by studies showed this increase warn consumers, they purposefully damages during the pretrial proceedings. risk, the public would start perceiving refused to warn, and covered up the risks. Judge New said New Jersey law applied them like the cigarette industry for There are other products on the market to punitive damages and did not permit denying a risk of cancer when all evidence that work in a similar way, that use corn- any recovery in the case. Pledger’s family pointed to the contrary. The jury also starch instead of talc. Yet Johnson & had sued the drugmaker in April 2012, heard evidence that genital talc use causes Johnson still sells talc and insists there is alleging the boy grew large breasts after a thousands of new ovarian cancer cases in no danger. nearly five-year course of Risperdal treat- this country every year and results in an It’s now time for Johnson & Johnson to ment beginning in 2002, when he was 7 estimated 2,500 deaths each year. bring this massive litigation to an end by years old. In February 2015, a Philadelphia Mrs. Ristesund was represented in her doing the right thing. We have called on jury returned the $2.5 million verdict for case by Beasley Allen lawyers Ted G. Johnson & Johnson to establish a compen- Pledger. The suit is one of 1,500 Risperdal Meadows, David P. Dearing, Danielle Ward sation fund that will be fully adequate to cases pending in a mass tort program in Mason, Brittany Scott, and Ryan Beattie, compensate all of the thousands of victims the court. The Pledger verdict marks the along with Allen Smith of The Smith Law who have suffered greatly because of third Risperdal case Janssen has lost at Firm in Jackson, Mississippi, and Stepha- Johnson & Johnson’s intentional wrongdo- trial so far. nie Rados, Jim Onder, and Wylie Blair of ing. We have also called on Johnson & In November, another jury awarded the St. Louis firm of Onder, Shelton, Johnson to either pull the talc products $1.75 million to a Maryland man who took O’Leary & Peterson, LLC. All of these from the market or at the very least give Risperdal as a 9-year-old in 2003. Janssen lawyers have worked hard on the Talcum an adequate warning to women so they lost its bid to throw out that verdict in powder cases and they did an excellent can make an informed choice. March, but the verdict was reduced to job in this second case. Shortly after Labor If Johnson & Johnson refuses to do the $680,000. In December, a jury awarded a Day we will have two more cases set for right thing, our law firm and those other Wisconsin man $500,000 in another Risp- trial, one in St. Louis and a second in New firms working with us, are totally dedi- erdal case. The trial judge in that case Jersey, with many more to follow. cated to continuing our mission, and that denied the Plaintiff’s bid for a new If you have any questions regarding is to obtain total and complete justice for damages trial in January. The drugmaker these cases, or you want to know more all of Johnson & Johnson’s victims. The did get a victory in the second Risperdal about the Talc litigation generally, contact ball is in the giant drug company’s court trial, when in March 2015 a jury found Ted Meadows at 800-898-2034 or by email and our hope is Johnson & Johnson will that Janssen was negligent in warning at [email protected]. change its corporate culture and do the about the drug’s risks, but that this failure right thing for a change. was not the cause of the patient’s abnor- mal breast growth. The Plaintiffs in the case are repre- Johnson & Johnson Should Do The Right sented by Thomas R. Kline and Charles L. Thing $2.5 Million Risperdal Verdict Against J&J Becker of Kline & Specter PC and Stephen Stands Following the two trials mentioned A. Sheller and Christopher A. Gomez of above, resulting in multi-million dollar ver- A Philadelphia judge has refused to Sheller PC. The case is in the Court of dicts against Johnson & Johnson—includ- disturb the $2.5 million jury verdict that Common Pleas of the State of Pennsylva- ing $112 million in punitive damages—it’s was returned against a Johnson & Johnson nia, County of Philadelphia. time for the giant drug company to put an unit over allegations its antipsychotic drug Source: Law360.com end to the ongoing talcum powder litiga- Risperdal caused an autistic boy to grow tion and also to remove its talcum powder breasts. Interestingly, both sides had asked products from store shelves, or at least to for new trials. Philadelphia County Court California And Washington File Suits warn women about the cancer risks the of Common Pleas Judge Ramy I. Djerassi Against J&J Over Pelvic Mesh giant drug company has known about denied the new trial bids. In his May 4 for decades. order, Judge Djerassi rejected Janssen California and Washington state have Johnson & Johnson should face reality, Pharmaceuticals Inc.’s argument that each filed suit against Johnson & confess their corporate sins, admit the letting in a new expert during the bell- Johnson for false advertising and decep- truth that the company has hidden for wether trial had prejudiced the tive marketing of a surgical mesh product decades, and end the litigation by taking drugmaker. for women, saying the company failed to care of the thousands of women harmed Judge Djerassi also refused the now inform both patients and doctors of severe by its talcum powder products and the 20-year-old Austin Pledger and his mother potential complications. Attorneys families of those who have died. The a new trial exclusively on Janssen’s puni- General Bob Ferguson of Washington and message that the jurors are sending to tive liability and damages. Janssen had Kamala D. Harris of California contend Johnson & Johnson is loud and clear. They argued that the substitution of Pledger’s that Johnson & Johnson knowingly con- are demanding that Johnson & Johnson causation expert left the drugmaker’s cealed the risks associated with their warn women of the dangerous link lawyers unprepared for the new testi- product, which is designed to treat between talcum powder used for femi- mony. The company also claimed that the common conditions in women such as nine hygiene and its well-documented $2.5 million figure was excessive because stress urinary incontinence and pelvic increased risk of ovarian cancer. it was solely based on the mother’s testi- organ prolapse, but can lead to serious Gloria Ristesund and the family of Jac- mony, including her account of her son’s complications including loss of sexual queline Fox have made it very clear—they experiences after growing breasts. function, chronic pain and infection, per- want other women to be warned about Pledger had requested a new trial on manent urinary or defecatory dysfunction this cancer risk. The juries saw documents punitive damages, saying Judge Arnold L. and a “devastating impact on overall that proved Johnson & Johnson has New, the coordinating judge of Philadel- quality of life.”

18 BeasleyAllen.com The two states filed separate complaints award to a woman who claimed Ethicon’s potential liability under state law. The against J&J and its subsidiary Ethicon Inc. pelvic mesh caused debilitating nerve opinion states: in California and Washington state courts. pain. The court said ample evidence pre- In California, violations of the state’s sented at trial showed that better warn- Janssen’s argument that impossibil- unfair competition and false advertising ings of the product’s risks might have ity preemption precludes the failure- laws are alleged. In the Washington case, prevented her injuries. A month earlier, a to-warn claim has already been “tens of thousands of violations” of the Philadelphia jury returned a $13.5 million rejected by this court. We conclude state’s consumer protection laws verdict against J&J and Ethicon in a sepa- that Janssen’s preemption argu- are alleged. rate case brought by a woman who ments ... do not merit relief. Both states are seeking injunctive relief claimed the company’s faulty mesh Kelly Anderson and her family had filed and monetary penalties potentially in the implant produced near constant pain, dis- suit in December 2011 alleging her daugh- millions of dollars “to ensure that J&J comfort and an inability to have sex. ter Payton was born with a cleft lip after stops its deceptive practices.” Attorney Both state attorneys general said that doctors continued to prescribe Topamax General Harris said in a statement: besides false advertising and deceptive to her mother to treat chronic migraines marketing, J&J also misrepresented the Johnson & Johnson put millions of during the pregnancy. They argued that severity and frequency of common com- Janssen should have pushed to have women at risk of severe health prob- plications and failed to disclose that its lems by failing to provide critical Topamax listed as a so-called Pregnancy surgical mesh devices “presented risks not Category D drug, which warns consumers information to doctors and patients present in alternative treatment options.” about its surgical mesh products. there is evidence of fetal risk based on Attorney General Harris said that J&J had studies in humans. Johnson & Johnson’s deception sold more than 42,000 mesh devices in denied women the ability to make The family was awarded $3 million in the state between 2008 and 2014, and that damages by a Philadelphia County jury in informed decisions about their the company faces more than 35,000 per- health and well-being. March 2014 after jurors agreed that the sonal injury lawsuits nationwide. company failed to adequately warn the These complications can crop up years Attorney General Ferguson said J&J had mother’s physicians about the risks associ- after the surgery and are in many cases sold 12,000 mesh products in his state ated with the drug. On appeal, Janssen irreversible, as removal of the mesh is during about that same time and said he said it had no authority to unilaterally nearly impossible, Attorney General Fer- would seek to impose the maximum change the drug’s pregnancy category guson said in a statement. She said further: $2,000 penalty for each violation of the without the blessing of the U.S. Food and state’s consumer protection laws. Drug Administration (FDA). It’s difficult to put into words the California is represented by Kamala D. The appellate court panel found that horrific injuries and pain many Harris, Judith A. Fiorentini, Jinsook Ohta, what was actually at issue was the compa- women are still suffering as a result Sanna Singer and Michelle Burkart of the ny’s efforts across the board to warn of Johnson & Johnson’s deception. state Attorney General’s Office. Washing- doctors about what risks it may have They believed they were making ton is represented by Robert W. Ferguson, known about. The opinion stated further: informed medical decisions, but Elizabeth J. Erwin, Andrea M. Alegrett and that was impossible when Johnson Leilani N. Fisher of the state Attorney Gen- Prior to trial, the court issued an & Johnson was spreading inaccu- eral’s Office. order declaring that Janssen did not rate information about its products’ The cases are California v. Johnson & have the ability to unilaterally risks, essentially duping doctors into Johnson et al., in the Superior Court of change the pregnancy category from using their own patients as clini- the State of California, County of San C to D, and the jury was instructed cal trials. Diego; and Washington v. Johnson & as such multiple times during trial. Johnson et al., in the King County Supe- Thus, the jury’s determination that A spokeswoman for Johnson and rior Court in the State of Washington. Janssen is liable for its failure to Johnson told Law360 the company plans Source: Law360.com warn was not predicated upon to “vigorously defend itself against the Janssen failing to change Topamax’s allegations,” which is a typical corporate pregnancy category. resonse, and should not be a surprise to any lawyer who has dealth with the $3 Million Verdict In J&J Topamax Case The appeals court rejected arguments company. In a statement it was said: Upheld On Appeal by Johnson & Johnson that the failure-to- warn claim was precluded based on testi- The evidence will show that Ethicon A Pennsylvania appeals court has mony from Anderson’s prescribing doctor acted appropriately and responsibly upheld the $3 million verdict against that she could not have totally ruled out in the marketing of our pelvic mesh Janssen Pharmaceuticals Inc., a Johnson & the possibility of Topamax causing birth products. The use of implantable Johnson unit. Once again the court defects at the time she prescribed the mesh is often the preferred option to rejected arguments that claims over birth drug. The opinion stated: treat certain female pelvic condi- defects allegedly caused by the anti-epi- tions, including pelvic organ pro- lepsy drug Topamax were preempted by Janssen’s argument fails to differen- lapse and stress urinary federal law. A three-judge Superior Court tiate between the nonspecific, poten- incontinence, and is backed by panel said that prior decisions upholding tial risk that Topamax’s Category C years of clinical research. verdicts against Janssen over Topamax- label implied and a known risk in related birth defects had already dis- which the drug has been scientifi- The states’ lawsuits were only the latest pensed with the company’s arguments cally established to cause particular in a string of litigation J&J has faced over that federal law did not allow the company birth defects. The evidence presented its pelvic mesh. As we have previously to make unilateral changes to the medica- at trial indicated that Janssen knew reported, in late March, a New Jersey tion’s warning label in order to avoid of a causal relationship between appeals court upheld a $11.1 million jury Topamax and specific birth defects,

JereBeasleyReport.com 19 including cleft palate, but failed to cannot offer sufficient evidence to estab- failure to warn users about the link disseminate the information so that lish an essential element of their case— between Viagra and the increased risk of [Anderson’s] physicians would be that a Mirena IUD is capable of melanoma even after studies showed the adequately warned. spontaneous uterine perforation and association, and instead continued promo- migration—and Plaintiffs’ claims therefore tion of the product. The plaintiffs say that Only one of the two prior Topamax fail as a matter of law. The PSC maintains if they been properly informed they could cases to be decided by the Superior Court that the case against Bayer is strong, even have limited their dosage or length of use, was presented to the state’s Supreme without expert testimony, and is working more closely monitored for symptoms of Court for a potential appeal, but court to prepare a response to Bayer’s motion. melanoma, or simply not used Viagra at all. records show that the application was However, if Bayer’s motion is granted, the Viagra, generically sildenafil, acts by withdrawn before the justices decided Court will dismiss all of the Mirena law- essentially inhibiting the secretion of an whether or not to hear arguments. suits currently pending in the MDL. enzyme, phosphodiesterase 5 (PDE5). The Andersons are represented by the Although the future of the MDL is Decreased levels of PDE5 leads to the Law Offices of Howard J. Bashman, David uncertain at this time, Mirena litigation relaxation of smooth muscle and increased deBruin of Bifferato Gentilotti LLC, David continues in New Jersey state court, blood flow. In vitro studies show that Matthews of Matthews & Associates, and where more than 2,000 cases have been PDE5 inhibition results in increased tumor Rosemary Pinto of Feldman & Pinto PC. filed. We continue to investigate cases of cell invasiveness, which is supportive of a The case is in the Superior Court of the spontaneous uterine perforation involving causal connection between Viagra and State of Pennsylvania. Mirena IUDs. If you have any questions invasive melanoma. In 2011, a study linked Source: Law360.com about the Mirena litigation, contact Liz melanoma invasion with Viagra treatment. Eiland or Roger Smith, lawyers in our Mass A 2012 study found that PDE5 inhibitors Torts Section at 800-898-2034 or by email can promote melanin synthesis, and thus at [email protected] or Roger. exacerbate the development of melanoma XIII. [email protected]. in that way. A study published in JAMA MASS TORTS Internal Medicine in June 2014 found that men taking Viagra, generically sildenafil, may be 84 percent more likely to be diag- UPDATE Lawsuits Link Viagra To Melanoma nosed with melanoma skin cancer than A growing number of product liability men who do not use the drug. Viagra does Mirena Litigation Update lawsuits are being filed around the not appear to cause an increased risk of country by men who have been diagnosed cutaneous squamous cell carcinomas or More than 1,200 Mirena cases have with melanoma skin cancer, allegedly basal cell carcinomas. been filed in the federal court Multidis- caused by the erectile dysfunction drug Four other drugs are currently pre- trict Litigation (MDL) and are now Viagra. On April 7, 2016, the United States scribed for erectile dysfunction that also pending in the United States District Court Judicial Panel on Multidistrict Litigation contain active ingredients that inhibit for the Southern District of New York. issued a Transfer Order consolidating the PDE5: Cialis (tadalafil), Levitra (varde- Each of these women alleges that, after a pretrial proceedings against Pfizer before nafil), Staxyn (vardenafil) and Stendra successful placement procedure, her U.S. District Judge Richard Seeborg in the (avanafil). In addition, the PDE5 inhibitors Mirena device spontaneously perforated Northern District of California. The cases Revatio (sildenafil) and Adcirca (tadalafil) the uterine wall and migrated outside of pending in the U.S. District Courts will be are used in the treatment of pulmonary the uterus, requiring surgical removal. In centralized as part of a multidistrict litiga- arterial hypertension (PAH). Data is still the last three years, the Plaintiffs’ Steering tion (MDL) (MDL 2691), to avoid duplica- emerging on the epidemiology of these Committee (PSC) has been hard at work, tive discovery on common issues and drugs and their active ingredients, but reviewing millions of pages of documents avoid conflicting pretrial rulings from dif- because their mechanism of action produced by Bayer and taking depositions ferent courts. However, unlike a class includes PDE5 inhibition, a link with mela- of current and former Bayer employees, action, each case in the MDL remains an noma may be found for them as well. as well as experts designated to individual action, and each Plaintiff must Pfizer began marketing Viagra in 1998 testify at trial. individually establish causation and for the treatment of erectile dysfunction. While preparations were underway for damages. The Transfer Order states that During its peak sales year in 2012, it was the first Mirena bellwether trial slated to “[t]hese actions share actual questions prescribed about 8 million times, and it begin this spring, U.S. District Judge Cathy arising out of the allegation that Viagra brought in more than $2 billion in sales Seibel issued an order that the PSC’s causa- (sildenafil citrate) causes or increases the annually. Pfizer estimates that as many as tion experts cannot testify that Mirena is risk of developing melanoma and that 35 million men have taken Viagra. The dis- capable of perforating the uterus after the Defendant failed to warn consumers and covery process will get underway IUD is correctly placed. Citing method- health care providers of the alleged risk.” throughout 2016, but it is expected to be ological problems, Judge Seibel found Prior to the consolidation, there were several years before the first trials reach a Plaintiffs’ experts’ testimony to be unreli- 15 claims pending against Pfizer in several jury or settlements are negotiated able and inadmissible. different federal jurisdictions, all making with Pfizer. Following that ruling, the Court granted similar claims and allegations. Plaintiffs’ The Viagra MDL is titled In re: Viagra Bayer’s request to file an omnibus motion lawsuits include allegations that Pfizer (Sildenafil Citrate) Products Liability Lit- for summary judgment. As our lawyer knew Viagra posed a cancer risk and pur- igation, and is pending in the Northern readers well know, a summary judgment posely concealed facts regarding the District of California. If you need more without trial is appropriate when one drug’s safety. Plaintiffs allege that Pfizer information, contact Jennifer Emmel, a party is entitled to judgment in its favor as failed to sufficiently test the link between lawyer in our Mass Torts Section, at 800- a matter of law. Bayer believes that, the drug and risk of melanoma prior to 898-2034 or by email at Jennifer.Emmel@ without expert testimony, Plaintiffs FDA approval. Allegations include the beasleyallen.com.

20 BeasleyAllen.com XIV. wave. Three months later, there was keeping the information under wraps. The another during which the price fell from price of the company’s stock shot up more AN UPDATE ON $37.41 on July 23 to $35.74 on July 24, than 500 percent after Intercept according to the complaint. announced the drug’s positive effects in SECURITIES The investors are represented by Salva- January 2014, but dropped sharply days LITIGATION tore J. Graziano and James A. Harrod of later when the NIH revealed the patients’ Bernstein Litowitz Berger & Grossmann increased cholesterol levels, according to LLP and E. Powell Miller, Marc L. Newman Judge Buchwald. and Sharon S. Almonrode of The Miller The proposed class includes those who Investors Win Final Approval For $300 Law Firm PC. The case is New York State purchased Intercept stock during two Million Settlement In GM Securities Suit Teachers’ Retirement System v. General days that month. In support for their set- A Michigan federal judge has given final Motors Co. et al., in the U.S. District Court tlement, the investors said recovery is 13 approval to a $300 million settlement that for the Eastern District of Michigan. times greater than the average. Intercept was agreed to in a shareholder class action Source: Law360.com executives had argued to the court that alleging that General Motors’ concealment they lacked scienter because their state- of deadly ignition-switch defects damaged ments were approved by the National its stock prices. U.S. District Judge Linda Institute of Diabetes and Digestive and Intercept To Pay $55 Million To End Kidney Diseases. The executives claimed V. Parker approved the settlement approx- Investors’ Stock-Drop MDL imately six months after the New York they had no motive to mislead the investors. State Teachers’ Retirement System asked Intercept Pharmaceuticals Inc. has The Plaintiffs are represented by Tor for approval of the settlement ending agreed to pay $55 million to settle multi- Gronborg, Kevin A. Lavelle, David Avi claims that General Motors Co.’s stock district litigation (MDL) brought by inves- Rosenfeld, Samuel Howard Rudman and price was inflated during a period when tors accusing the company of securities Trig Randall Smith of Robbins Geller the company allegedly concealed ignition- fraud by concealing a liver drug’s side Rudman & Dowd LLP, and Jeremy Alan switch defects that killed at least 124 effects. A stipulation of settlement was Lieberman of Pomerantz LLP. The case is people when their cars shut down mid- filed last month by the parties in a New in the U.S. District Court for the Southern drive. Judge Parker said: York federal court. The settlement amount District of New York. reflects a recovery of about 35 percent of The court finds the settlement and the total possible damages, according to Source: Law360.com plan of allocation to be fair, ade- the investors, who contend that this is a quate, and reasonable to the settle- good result. ment class and therefore is granting For the purposes of the settlement, the final approval of the settlement and parties asked U.S. District Judge Naomi XV. the plan of allocation. Reice Buchwald to certify the class. The INSURANCE AND While a number of individuals objected investors said the recovery to individuals FINANCE UPDATE to the settlement, Judge Parker found the from the proposed two-day class period objectors’ contentions lacked merit. She will depend on variables, including the ruled that the complexity of the case, the number of Intercept shares purchased, likelihood of success, class counsel’s opin- but the estimated average distribution per $39 Million Settlement Over Target Data ions and the public interest all favor share of Intercept stock is projected to be Breach Approved approval. Judge Parker said she approved about $48.27. both the Plaintiff’s motion for final The investors’ two proposed class U.S. District Judge Paul Magnuson has approval of the settlement and approval of actions, which were consolidated in May approved the settlement between Target the plan allocation and its motion for an 2014, accused Intercept, along with CEO and a group of financial institutions over award of attorneys’ fees and reimburse- Mark Pruzanski and Chief Medical Officer the retail giant’s massive 2013 data breach. ment of litigation expenses. David Shapiro, of withholding news that As part of the settlement, Target has According to the Plaintiffs, GM’s stock the drug, obeticholic acid, caused “sub- agreed to pay $39.3 million to the finan- value steadily and substantially dropped stantial” increases in cholesterol lipids in cial institutions. The court has also after it became evident that GM held off order to drive up the value of Inter- approved attorneys’ fees of $17.8 million. on fixing an ignition switch problem in cept’s stock. The settlement resolves a consolidated several older-model cars, including Chev- In March 2015, Judge Buchwald denied complaint filed in August 2014 by Umpqua rolet Cobalts and Saturn Ions. The initial Intercept’s motion to dismiss the multidis- Bank, Mutual Bank, Village Bank, CSE complaint in the case was filed in March trict litigation, finding the investors pro- Federal Credit Union and First Federal 2014, the month after GM began its vided evidence that the company and its Savings of Lorain after more than 40 recalls, and a consolidated class action executives knowingly concealed the liver million payment cards used at Target in complaint was filed in January 2015. drug’s side effects. Judge Buchwald noted late 2013 were compromised. Under the The New York teachers’ pension fund that Intercept learned from a National settlement, approved by Judge Magnuson, was selected as lead Plaintiff in October Institutes of Health (NIH) doctor running Target must pay up to $20.25 million 2014. The suit covers stock bought from a clinical trial that the drug had proven directly to class members and an addi- Nov. 17, 2010, the day the new GM was effective, but also had the side effect of tional $19.1 million to fund MasterCard’s born out of the old GM’s bankruptcy, to increasing cholesterol. Account Data Compromise program, July 2014. The stock price declined from Judge Buchwald said the company only which relates to the breach. $37.09 in March 2014 to $31.93 in April told investors about the good news, while The settlement applies to all U.S. finan- 2014 as information started coming out. correspondence between the doctor and cial institutions that issued payment cards That was what the lawsuits called the first Intercept’s chief medical officer revealed identified as having been at risk as a result the company had misgivings about of the breach and that did not previously

JereBeasleyReport.com 21 release their claims against the retailer by The concept behind this rule is this: if understand how OSHA can help in signing on to separate settlements with the employee holds a high level position, litigation. card brands Visa Inc., and Master Card Inc. then they have the bargaining power to Kendall was recently referred a workers’ In December, Judge Magnuson had ensure they do not work excessive hours compensation client who unfortunately granted preliminary approval of the settle- without being properly compensated for had lost the ability to see in one of his eyes ment and the financial institutions pressed their work. Until Dec. 1, 2016, this following an on-the-job injury. Kendall the judge in April to issue final approval minimum salary will remain $23,660; asked the worker if he had spoken to on the settlement arguing that the deal however, after that date this minimum OSHA and he replied he had not. Kendall was positively received by class members salary will be raised to $47,476. This says he initially wondered if the employer and helps avoid further complex and increase, according to the Washington had failed to report the injury. expensive litigation. Of the 2,212 total Post, will cause “[a]bout 35 percent of The worker explained to Kendall that financial institutions with members full-time salaried employees [to] be eligi- he felt OSHA was an advocate for the whose accounts were potentially compro- ble for time-and-a-half when they work employer and that he was hesitant to call mised, 67 percent filed for compensation extra hours…[which is] up significantly back. The worker was told to call OSHA from the settlement fund—a high from the 7 percent who qualify under the immediately because OSHA is not an ally response rate, according to the lawyers current threshold.” of the employer and that the OSHA report involved in the litigation. If you need more Some believe, as does Jared Bernstein, a would be a tool Kendall could use in pros- information on this matter, contact former chief economist for Vice President ecuting the worker’s case. This man is not Section Head Dee Miles or Larry Golston, Biden,that “this is one of the most impor- the first client to misconstrue OSHA’s role. a lawyer in our Consumer Fraud and Com- tant measures that the Obama administra- For that reason, it is important for workers mercial Litigation Section, at 800-898- tion has implemented to help middle-wage and lawyers representing injured workers 2034 or by email at Dee.Miles@ workers.” However, others believe the to fully understand OSHA and how its role beasleyallen.com or Larry.Golston@beas- change will have a large negative impact and purpose can serve injured workers. leyallen.com. on small businesses and educational insti- As most of you will know, OSHA stands tutions. Linda Harig, Vice President of for the Occupational Safety and Health Human Resources for the University of Administration. It is an agency of the Tennessee, said, “We agree that there United States Department of Labor and its XVI. needs to be a change. But we believe due goal is to ensure safe and healthy working diligence has not been done on the impact conditions through inspections, training EMPLOYMENT AND for higher education.” and enforcement actions. OSHA’s website FLSA LITIGATION The impact of this new rule is yet to be (OSHA.gov) is rich with information and seen; however, it does have the potential statistics valuable to attorneys practicing to boost worker’s wages by $12 billion in this field. Because some accidents are over the next 10 years. Additionally, with mandatory reports, OSHA is the best Obama Administration Implements New Law the new threshold requirement being source for statistics on injury trends in the That Will Give More People Overtime updated every three years, to compensate United States. As we have written in this publication for inflation, we could see the minimum OSHA requires the employer to report on numerous occasions, the Obama salary requirement reach $51,000 by 2020. all work-related fatalities within eight Administration has been working on new If you need additional information on this hours and all inpatient hospitalizations, regulations that would result in more subject, contact Roman Shaul, a lawyer in amputations and losses of an eye within workers being eligible for overtime pay. our firm’s Consumer Fraud and Commer- 24 hours. In addition to employer manda- On May 18, President Obama announced cial Litigation Section, at 800-898-2034 or tory reporting requirements, employees the Department of Labor’s (DOL) rule by email at Roman.Shaul@beasley- may report conditions and request an updating the overtime regulations under allen.com. OSHA inspection if they believe unsafe the Fair Labor Standards Act (FLSA). This Source: Washington Post working conditions exist. Kendall says he new rule raises the minimum salary has recommended many employees to amount required to be exempt from over- contact OSHA to report unsafe conditions time pay from $23,660 to $47,476 and it and each such employee was justly con- will take effect on Dec. 1, 2016. When the XVII. cerned about losing their job. DOL published the proposed rule on July WORKPLACE It should be noted that OSHA regula- 6, 2015, the Department received 270,000 tions specifically prevent employers from comments in response. After those com- HAZARDS retaliating against whistleblower employ- ments, the DOL announced this new rule, ees. There is also a provision for anony- which, as expected, has instigated a mous reporting. So if a worker approaches strong split of opinion. a lawyer for advice about reporting what OSHA Is Useful For Lawyers Representing they believe are unsafe working condi- It should be noted that the FLSA has Injured Workers narrow exceptions for corporations who tions, the worker should be encouraged to call OSHA. That report could prevent inju- don’t want to pay their employees over- OSHA can be a valuable resource for ries or deaths and could serve as valuable time. In order to meet one of those excep- lawyers and their clients in workplace evidence of notice of a dangerous condi- tions, certain tests or criteria have to be injury litigation. That is well known to the tion in a later incident. met. One of these tests is the “salary-level lawyers in our firm who are involved in Kendall handled a fatality case a few test,” and it’s this test that has been work-place litigation. I asked Kendall years ago where his client’s spouse was changed. The basic rule is employers must Dunson, a lawyer who has handled a killed on the job. He knew OSHA would pay employees a minimum salary in order number of work-place injury and death liti- investigate the accident so Kendall submit- for an employee to fall within the gation for our firm, to help our readers exception. ted a Freedom of Information request for

22 BeasleyAllen.com OSHA’s investigation. He was able to a proper third party case analysis could On the morning of the accident, the driver obtain OSHA’s citations against the result in a failure to adequately compen- said he got up about 5:30 a.m. to drive to employers who were involved, OSHA’s sate the client or their family and a legal work at a chicken farm in Chilton. The investigation including photographs and malpractice claim against the offending driver said he had to be in Chilton statements, and OSHA’s imposition of pen- lawyer. We all know that state workers’ between 6:30 and 7 a.m. and that he nor- alties. The OSHA investigation is an asset compensation laws do not adequately mally worked 10 to 16 hours a day. In the in that OSHA has access to the scene compensate injured workers, but third week before the wreck, records reveal within hours of the event occurring. party claims certainly can. If you want that the driver worked 67.5 hours. Driver Because a potential client may not get to additional information, or have questions, fatigue is a very serious problem and lots a lawyer until months or even a year has contact Kendall Dunson at 800-898-2034 of folks are put at risk on our highways as passed, this makes OSHA’s work very or by email at Kendall.Dunson@beasley- a result. important. OSHA’s investigation is a great allen.com. Source: Waco Tribune-Herald source of information. In addition to the incident report, Kendall obtained prior OSHA investigation reports only to dis- cover that the hazard that killed his cli- XVIII. Fatal Bus Crash In Texas Is Being ent’s spouse had also killed another Investigated individual nine years earlier. TRANSPORTATION Federal investigators and local authori- After reviewing those reports Kendall ties are working to determine what caused knew the hazard, what happened, why, a charter bus to crash in far South Texas, and which witnesses he needed to depose. Lawsuit Against Sanderson Farms Settled killing nine people and injuring 43 others The prior report was the basis for Kend- For $27.5 Million in a one-vehicle rollover. National Trans- all’s punitive damages arguments. In full portation Safety Board (NTSB) investiga- disclosure, our firm handled the first A Waco mother and her two sons, tors are working on the incident and their death case involving that equipment; injured almost three years ago when a work was ongoing when this issue went to however, because the fines levied against Sanderson Farms truck crashed into the the printer. A spokesman, Keith Holloway, one of the employers exceeded a certain back of their car, have settled their lawsuit said the agency will look at the operations threshold ($7,000), Kendall knew this was with the chicken processing company for of the charter bus company as part of its a repeat violation that would have trig- $27.5 million. Judge Vicki Menard investigation and has requested inspection gered a second Freedom of Information approved the agreement during a hearing and maintenance records. The state request for any fatality. OSHA lacks the that came after the parties in the case had Department of Public Safety is also con- ability to assess heavy fines ($7,000 max been through two mediation sessions. Jim ducting its investigation, separate for serious violations and $70,000 Dunnam, who represents the family along from the NTSB. maximum for repeat or willful violations), with Robert E. Ammons, said the proceeds and the assessed fines are often reduced. from the settlement involve three insur- Source: Associated Press OSHA’s real power originates from the ance companies for Sanderson Farms and ability to conduct inspections following will be divided into three trust accounts complaints and reportable incidents. that the family can draw on for long-term Kendall says all of our lawyer readers health and educational needs for the two XIX. who handle workplace litigation, need to boys. One of the boys was 2 weeks old at HEALTHCARE heed this warning: do not base your analy- the time of the accident and suffered sis of third party claims solely on the severe brain damage that likely will leave ISSUES OSHA report. OSHA only focuses on the him incapacitated for the rest of his life. conduct of the employer. OSHA does not The boy, who is almost 3 now, cannot speak, walk or crawl. focus on manufacturers of machinery. For FDA Says Janssen Diabetes Drugs Are The mother, who was waiting to make a example, an unguarded machine that kills Linked To Amputations or injures an employee will be photo- turn onto another road, suffered a com- graphed and discussed in OSHA’s report. pound fracture to her left arm and other Patients in a clinical trial studying However, the citation will state the injuries in the November 2013 collision. Janssen Pharmaceuticals’ diabetes drugs employer failed to guard a known hazard. Her older son, who was 2 at the time, suf- Invokana and Invokamet were roughly Almost 99 percent of the time, employ- fered minor scratches on his neck. The twice as likely to undergo amputations as ers purchase machinery used in their busi- infant, who was in a car seat in the back, patients taking a placebo, the U.S. Food ness from other companies. The designer/ suffered a fractured skull, massive brain and Drug Administration reported last manufacturer of that machinery is primar- damage and a collapsed lung. The injuries month. The FDA said in a safety alert that ily responsible under the common law for caused one half of the baby’s brain mass in the equivalent of five of every 1,000 eliminating or guarding recognized one hemisphere to die and about a third in patients taking a 300-milligram daily dose hazards. A reading of an OSHA report with the other hemisphere to die, according to of the active ingredient canagliflozin an untrained eye would lead one to the lawsuit. The Sanderson Farms truck needed amputations. In addition, the believe that only the employer is responsi- was traveling 57 mph when it struck the equivalent of seven of every 1,000 patients ble for an incident. Thus, OSHA reports back of the woman’s car. After the impact, taking a 100-milligram daily dose needed are a useful tool, but they are not the only the woman’s car was knocked into oncom- amputations, compared with only three of tool that should be used to analyze an inci- ing traffic and was hit by a van. every 1,000 patients taking a placebo. The dent for third party liability. The lawsuit alleges that in the days amputations affected toes, feet and legs. Anytime a death or serious injury before the crash, the truck driver worked FDA officials said they are working to occurs on the job, a third party analysis “long and irregular work hours on a sched- determine whether canagliflozin really must be conducted. The failure to conduct ule which disrupted his sleep patterns.” does elevate the risk of amputation, and

JereBeasleyReport.com 23 that patients shouldn’t stop taking the XX. Dow And A Boeing Unit Agree To $375 drug without first consulting a doctor. The Million Pollution Settlement agency said: ENVIRONMENTAL The Dow Chemical Co. and a former Patients taking [canagliflozin] CONCERNS Rockwell subsidiary, which is now owned should notify their health care pro- by The Boeing Co., have agreed to pay fessionals right away if they notice $375 million to settle a 26-year-old nuclear any new pain or tenderness, sores $46.5 Million Jury Verdict Returned In PCB pollution lawsuit. The lawsuit, filed by a or ulcers, or infections in their Suit Against Monsanto class of Colorado residents, claimed inju- legs or feet. ries from exposure to waste from a A Missouri state court jury has awarded nuclear weapons facility. Canagliflozin is the only active ingredi- $46.5 million to three people who The settlement means that the U.S. ent in Invokana and is combined with claimed Monsanto Co. negligently handled Supreme Court will not decide whether another active ingredient, metformin, in toxic polychlorinated biphenyls that gave the federal Price-Anderson Act—a 1957 Invokamet. Invokana and Invokamet were them cancer. The three alleged they law covering liability claims for personal approved in 2013 and 2014, respectively, absorbed PCBs through the course of their injury and property damage caused by and are used to control blood sugar levels daily lives, by eating food, drinking liquids commercial nuclear facility operators— in patients with Type 2 diabetes. The trial, or breathing air that contained traces of preempts state nuisance claims. Dow and which is examining how canagliflozin the chemical. The St. Louis jury awarded Boeing petitioned the high court to affects cardiovascular health, has followed the plaintiffs, one of whom has died, $17.5 review a Tenth Circuit holding that state patients for 4.5 years and is expected to million in damages and $29 million in claims are not preempted. continue. A similar clinical trial that has punitive damages. Steven J. Kherkher, a Dow’s portion of the settlement is followed patients for nine months hasn’t lawyer with Williams Kherkher, had $131.25 million, leaving the remaining found the same elevated risks of amputa- this to say: $243.75 million to be paid by Boeing- tion, the FDA said. owned Rockwell Automation Inc. The set- In a statement, Janssen officials said We argued that Monsanto, since FDR tlement is still subject to approval by the they “remain confident that canagliflozin was our president back in 1933, did U.S. District Court for the District of Colo- is an important treatment option for not conduct itself as an ordinary, rado. The U.S. Department of Energy people with Type 2 diabetes.” The uptick prudent chemical company should (DOE), although not a party to the litiga- in amputations has not been observed in a have done. The jury saw right tion, said that the Price-Anderson Act dozen other Phase III and Phase IV trials through Monsanto’s misrepresenta- imposes indemnification requirements on or in postmarketing safety reports, the tion. I wish I could tell you it was the government for certain public liability company officials added. Admittedly, my great lawyering, but it wasn’t. It claims relating to nuclear incidents. Both there is a risk of amputations for diabetics was just that the facts and the evi- companies said that they expect to be because the disease can cause nerve dence were overwhelming. fully indemnified. damage and impair blood circulation. The The federal government established the Mayo Clinic confirms that. However, the Monsanto’s predecessor company manu- Rocky Flats facility, which is about 16 FDA report gives cause for concern. factured and sold PCBs, an industrial miles from downtown Denver, in the early Invokana was the first in a class of drugs chemical, to large companies that then 1950s to produce nuclear weapons com- known as sodium-glucose cotransporter 2, incorporated them as safety fluids and ponents, according to the DOE. From 1952 or SGLT2, inhibitors. It was approved amid additives in their own products. Monsanto to 1975, Dow operated the plant, and from concerns about cardiovascular health and stopped making PCBs in 1977. Aside from 1975 to 1989 it was operated by Rockwell. bone safety, and the FDA has since the personal injury PCB suits, Monsanto is The 6,500-acre plant site was closed in updated Invokana’s and Invokamet’s facing a number of environmental damage 1992, remediated, and is now a wild- warning labels to reflect risks of bone lawsuits filed by municipalities around the life refuge. fractures. The drugs’ labels—as well as the country. In April, the U.S. Judicial Panel on Federal Bureau of Investigation agents labels of other SGLT2 inhibitors—have Multidistrict Litigation refused to consoli- raided the plant in 1989 and found evi- also been revised to disclose risks of a date suits in which cities in California and dence of environmental crimes. Plant blood disorder and urinary tract Washington are seeking environmental workers had mishandled radioactive waste infections. PCB cleanup costs from Monsanto, saying for years, with some being poured into the Other drugs in the class include Astra- the suits don’t have enough in common. ground and leaching into nearby bodies of Zeneca PLC’s Farxiga and Xigduo XR, The JPML said the factual questions in water. Some of the waste was released dapagliflozin and a dapagliflozin-metfor- the four actions in California and the two into the air and filtered its way into the min combination respectively, and Boeh- in Washington will differ, since they soil throughout the area. The residents’ ringer Ingelheim GmbH and Eli Lillyand involve different bodies of water: the San lawsuit was first filed in Colorado federal Co.’s Jardiance and Glyxambi, empa- Diego Bay, San Francisco Bay, the Spokane court in 1990, with the Plaintiffs alleging gliflozin and an empagliflozin-linagliptin River and the Duwamish River. The plain- that plutonium releases from Rocky Flats combo respectively. tiffs are represented by Steven J. Kherkher had exposed area residents, increased Source: Law360.com of Williams Kherkher and John G. Simon of the Simon Law Firm PC. their cancer risks, contaminated their properties and lowered property values. Source: Law360.com The trial started in October of 2005, and in early 2006, the jury found Dow and Rockwell liable under trespass and nui- sance theories. The jury awarded the Plaintiff class about $177 million in com- pensatory damages from both companies,

24 BeasleyAllen.com and about $111 million in punitive stance exposure, including the following Chronic Beryllium Disease Can Be damages from Dow, and about $89 million categories: Misdiagnosed As Sarcoidosis in punitive damages from Rockwell. After awarding prejudgment interest dating • The Pneumoconiosis Diseases: dis- Beryllium is the fourth element on the back to 1990, the district court entered a eases caused by exposure to inorganic periodic chart and is arguably one of the final $926 million judgment in favor of the dusts and substances such as coal, silica, most toxic substances on earth. For Plaintiffs. chemicals, metals, and fibers. These dis- decades, beryllium was used in the aero- In 2010, the Tenth Circuit vacated the eases include black lung disease, silico- space industry, as well as to make air- judgment and sent the case back to dis- sis, bronchiolitis obliterans, hard metal planes, engine components, trict court, where it was completely dis- lung disease, and chronic beryllium telecommunications equipment (including missed by the presiding judge. But the disease (also known as berylliosis). semiconductors and cell phones), x-ray and lab tech equipment, nuclear reactors, Plaintiffs appealed that decision, and in • The Hypersensitivity Pneumonitis and rockets. Because of its unique proper- 2015, the Tenth Circuit issued a second Diseases: diseases caused by exposure ties, beryllium is an often-used alloy for ruling holding that the Plaintiffs could to organic dusts and molds which often- various metals, including copper, nickel proceed with their lawsuit under state nui- times lead to permanent lung scarring and aluminum, and this use has further sance claims. It was those claims that (dust, mold, wood dust, cheese, bird expanded the substance’s presence in con- were pending before the Supreme Court excrement and wastes, cotton, etc.). sumer goods (such as golf clubs) and to when the settlement was reached. These diseases include farmer’s lung, employees throughout the manufactur- The class is represented by Merrill G. compost lung, coffee worker’s lung, hot ing sector. Davidoff, David F. Sorensen, Jennifer E. tub lung, wood worker’s lung, chemical As we have detailed in the Report previ- MacNaughton and Caitlin G. Coslett of worker’s lung and byssinosis (brown ously, exposure to beryllium can cause a Berger & Montague PC, Gary B. Blum and lung), to name a few. Steven W. Kelly of Silver & DeBoskey PC, dreadful lung disease called chronic beryl- Marcy G. Glenn of Holland & Hart LLP, • Asthma: Occupational asthma can lium disease, or “CPD.” A certain percent- Jeffrey A. Lamken and Robert K. Kry of either be caused by an acute or chronic age of the population is especially MoloLamken LLP, and Paul M. De Marco exposure to fumes, gases, dusts, isocya- vulnerable to beryllium. Exposure to the and Louise M. Roselle of Markovits Stock nates (chemicals used for spray paint- substance can induce an allergic reaction & DeMarco LLC. ing, insulation, plastic manufacturing, that causes the lungs to fail. In cases Source: Law360.com rubber, and foam), and high concentrate where chronic beryllium disease has been ethers. Depending on the exposure, if diagnosed, the condition is often fatal diagnosed and treated early, permanent unless a lung transplant is obtained. damage to the lungs may be avoided. CPD is virtually identical to sarcoidosis Beasley Allen Lawyers Are Investigating Unfortunately, we see instances were pathologically. Due to a lack of causal Severe Lung Injury Cases permanent damage to the lungs occurs. awareness, as well as the fact that CPD is The pneumoconiosis diseases are par- considered a rare disease, studies have Severe lung injury cases are of growing ticularly troubling because they often shown that CPD is commonly misdiag- concern to lawyers in our firm who are result from man-made products. For nosed as sarcoidosis. committing resources to evaluating the instance, chronic beryllium disease is Lawyers in our Toxic Torts Section are cause of these dreadful illnesses. In many caused by exposures to beryllium that investigating cases where a person has situations, severe lung disease occurs as a occur in the manufacturing sector. Bron- been diagnosed with sarcoidosis when, in direct result of exposure to hazardous sub- chiolitis obliterans, which has been fact, their condition may actually be stances. The lungs are the only internal termed “popcorn lung,” is a devastating chronic beryllium disease caused by expo- organ consistently exposed to the outside and irreversible disease caused by expo- sure to beryllium. If you have any ques- world, and, as a result, they are particu- sure to diacetyl (flavoring additive), acetal- tions about beryllium, contact Parker larly vulnerable in the workplace as well dehyde, formaldehyde, fiberglass and Miller at 800.898.2034 or Parker.Miller@ as to certain hazardous consumer goods. styrene (oftentimes in the fiberglass indus- beasleyallen.com. It is important to understand the many try). Hard metal lung disease (various different forms severe lung injury can steels and metal dusts) and silicosis take. Short-term, high concentration expo- (quartz and silica dust) are equally devas- sures (also known as acute exposures) can Iowa Jury Awards $3.52 Million In Benzene tating and irreversible. cause devastating injuries to the lungs and Exposure Case Unfortunately, many of the interstitial body in only one exposure. Chemicals lung diseases progress to the point where most commonly related to acute severe An Iowa jury has awarded just over $3.5 they are fatal without a lung transplant. lung injury cases are chlorine and chlo- million at the conclusion of a benzene trial These cases are oftentimes the result of rine gas, ammonia, acrylonitrile, formalde- brought by the widow of a former truck poor industrial hygiene, defectively hyde, vinyl acetate, petroleum driver who, she alleged, developed acute designed products and infrastructure. hydrocarbons in the oil industry, high con- myeloid leukemia as a result of exposure Parker Miller, a lawyer in our firm’s Toxic centrate acids and high concen- to benzene during the course of his Torts Section, leads a team of lawyers who trate ethers. employment. The jury in the U.S. District are all reviewing these cases. If you have Long-term “chronic” exposures can also Court for the Southern District of Iowa any questions about severe lung disease, cause severe lung conditions. Commonly, awarded the Plaintiff $1.76 million in you can contact Parker at 800.898.2034 or these lung conditions are interstitial lung actual damages and an additional $1.76 [email protected]. He will diseases where the end result is advanced million in punitive damages, against Lyon- be glad to assist you. pulmonary fibrosis (permanent lung scar- dell Chemical Co., Equistar Chemicals LP, ring). There are more than 100 lung dis- and Equistar GP LLC. eases that are associated with The Plaintiff’s deceased husband Dean occupational exposure / hazardous sub- Dahlin was employed as a commercial

JereBeasleyReport.com 25 truck driver for Dahlen Transport Inc. XXI. from China. In so doing, it appears both from 1990 to 1992, and for A&R Logistics companies put the American con- Inc. from approximately 1992 to 1995. An Update On sumer at risk. During the course of his employment, In addition to increasing the risk of Dahlin loaded, transported and unloaded Class Action cancer and leukemia, formaldehyde expo- benzene-containing products from a pet- Litigation sure can cause burning eyes, nose and rochemical facility located in Clinton, throat irritation, coughing, headaches, diz- Iowa, to a municipal dock storage facility ziness, and nausea. Toxic flooring may be in South Clinton, Iowa. The Plaintiff especially dangerous to toddlers and Class Action Lawsuit Filed Against Lowe’s asserted, that as a direct result of young children who play and crawl on the And Armstrong Over Toxic Flooring the benzene exposure, Dahlin developed floor and have underdeveloped immune myelodysplastic syndrome, which Lawyers in our firm have filed a lawsuit systems. Armstrong’s quality and compli- eventually developed into acute for a Florida couple against home improve- ance control are woefully inadequate. The myeloid leukemia. ment retailer Lowe’s and floor manufac- company is trusting these Chinese manu- In less than a day of deliberating, the turer Armstrong World Industries. The facturers instead of scientifically testing in jury found that the defendants knew, or company is accused of selling laminate reasonable intervals the core that is actu- should have known, “of a condition on the flooring that emits toxic levels of formal- ally in the laminate flooring. This puts premises, specifically benzene exposure, dehyde, a known carcinogen. The Plain- people at risk. and that it involved an unreasonable risk tiffs, William Woodworth and Diane For more information about this litiga- of injury to a person in Dean Dahlin’s posi- Pilkerton, researched the various laminate tion, contact Beasley Allen Consumer tion.” Jurors further found that the defen- flooring product options, ultimately Fraud and Commercial Litigation Section dants knew, or should have known, that choosing Armstrong’s product whose Head Dee Miles, or Clay Barnett, Archie Dahlin would not discover the condition, label stated that the flooring satisfied Cali- Grubb, or Andrew Brashier, the other realize the condition presented a risk of fornia’s standards for formaldehyde lawyers in this section who are handling injury, and would not protect himself content, when it actually did not. these claims, at 800-898-2034 or by email from the condition. As referenced above, The couple bought about $2,000 worth at [email protected], Clay. in addition to general damages, the jury of 12mm high-gloss Woodland Walnut [email protected], Archie. found the defendants’ actions constituted laminate flooring made by Armstrong and [email protected], or Andrew. a willful and wanton disregard for the sold by Lowe’s. The purchase was made [email protected]. Anthony rights or safety of others and awarded an by the Plaintiffs after they checked the Garcia is also working with our firm in additional $1.76 million in puni- product’s label to make sure it complied this litigation. tive damages. with formaldehyde regulations set by the Source: Law360.com Prior to the trial, the defendants had California Air Resources Board and asked the court to throw out the punitive adopted by federal regulators. damage claim, saying that the plaintiff had After learning about formaldehyde con- failed to present evidence that would $55 Million Settlement By PWC In Madoff tamination problems from other laminate Feeder Action support a finding of willful and wanton wood products imported from China, the disregard of the rights or safety of another. Plaintiffs sent samples of the flooring to a U.S. District Judge Victor Marrero has The federal court declined to revisit its well-respected lab for testing. The results given final approval to a $55 million settle- order denying the motion, however, showed it emitted formaldehyde gas well ment between PricewaterhouseCoopers saying that it had already “considered and beyond the maximum allowable concen- LLP (PwC) and investors in Bernie rejected the arguments now raised by the trations. The complaint states: Madoff’s Ponzi scheme. It was alleged that defendants.” The Plaintiffs were repre- the audit firm had ignored red flags. This sented at trial by Keith E. Patton and David Rather than seek to effectively settlement winds up the litigation against J. Baluk of Shrader & Associates in remedy the harm and the risks to its entities that provided services to Madoff Houston; and Robert Gallagher Jr. and customers’ health and safety caused feeder funds. The total recovery is $235 Peter Gierut of Gallagher Millage & Galla- by its formaldehyde-laden flooring million. Judge Marrero said the seven-and- gher in Bettendorf, Iowa. products. Armstrong has instead a-half-year-old litigation was a “long road,” John Tomlinson, a lawyer in our Toxic sought to cover up the dangers but that the PwC settlement was a Torts Section, has filed and is investigating inherent in its products with misin- good one. Benzene exposure cases. If you need more formation and with a disingenuous The total recovery comes from settle- information on this contact John at 800- public relations campaign that is ments with PwC, Fairfield Greenwich Ltd., 898-2034 or by email at John.Tomlinson@ designed to mislead its customers. GlobeOp Financial Services LLC and Citco beasleyallen.com. Like other Plaintiffs suing Lumber Liqui- Group Ltd. An additional $30 million Source: Harris Martin Publishing, April 5, 2016 dators over toxic flooring, the Wood- recovery is possible, pending the outcome worths accuse Armstrong of using of litigation brought by the trustee over- untrustworthy Chinese mills that use seeing the liquidation of Madoff’s defunct excessive amounts of formaldehyde in the brokerage. The litigation is in relatively manufacturing process to save time and early stages. Named Plaintiffs Pasha and money. The lawsuit alleges Armstrong off- Julia Anwar filed suit against PwC in 2008, shored its manufacturing process to claiming that the company was negligent Chinese plants operated by individuals in its auditing of funds invested in with no regard for the safety of American Madoff’s investment company and failed consumers. Lowe’s allegedly retailed the to recognize red flags that would have contaminated laminate knowing it came revealed the Ponzi scheme.

26 BeasleyAllen.com The class of about 1,000 people and CFPB highlighted the 2015 study’s finding guns, drugs or explosives; or ads that were businesses that lost about $7.5 billion fol- that class actions bring “hundreds of mil- sexually explicit or graphic. lowing Madoff’s collapse settled with PwC lions of dollars in relief to millions of con- The ban, which is set to take effect July just before the case was slated for trial. sumers each year and cause companies to 13, comes as a result of pressure from con- The case is in the U.S. District Court for alter their legally questionable conduct” sumer advocates that say payday loans the Southern District of New York. and noted that mandatory pre-dispute prey on the poor and disadvantaged. Source: Law360.com arbitration clauses can block class actions. Unlike most other forms of credit, to This proposed rule finally provides a qualify for a payday loan a borrower need step in the right direction toward reigning only provide proof of income (such as a in the abusive arbitration practices that paystub or verification of government ben- XXII. many consumers have faced. Although the efits) and a bank account. precise wording of the final rule is subject In theory, these types of loans are THE CONSUMER to change, the proposed rule demon- designed to help people meet a small, one- CORNER strates the CFPB’s commitment to protect- time expense, yet in practice most payday ing the Seventh Amendment rights of loans are taken out to pay for previous consumers. This rule provides a huge win loans. More than three quarters of all for consumers, and although it only payday loans are given to borrowers who Consumers Get A Big Win In Fight Against applies to the financial markets, hopefully are renewing a loan or who have had Arbitration it will pave the way for other indus- another payday loan within their previous tries as well. pay period. In May, the Consumer Financial Protec- There is a 90-day comment period after Payday loans trap borrowers in a cycle tion Bureau (CFPB) delivered a much- the proposed rule is published in the of debt by charging exorbitantly high needed win to consumers by leveling the Federal Register. The effective date of the interest rates. According to a 2014 study first blow to mandatory arbitration. The final rule is 30 days after final rule is pub- by The Pew Charitable Trusts, annual Dodd-Frank Wall Street Reform and Con- lished in Federal Register. Consistent with interest rates on small payday loans can sumer Protection Act of 2010 authorizes the Dodd-Frank Act, the proposed rule range from 300 percent to more than 700 the CFPB to limit arbitration in contracts will apply only to agreements entered into percent. A borrower finds himself unable for consumer financial products and ser- 180 days after the effective date. The final to pay off the interest on the loan, and vices. After a multi-year analysis into the rule will apply to agreements entered into often borrows again, perpetuating a wors- effects of arbitration on consumers and 211 days after the final rule is published in ening cycle of debt. businesses, the CFPB proposed a rule pro- the Federal Register. The Google ban will apply to compa- hibiting companies from using pre-dispute The public is invited to comment on the nies globally that provide loans that are arbitration agreements to block consumer proposed rule. It is published in the due within 60 days of issue, and in the class actions and requiring providers to Federal Register and available for viewing United States to loans whose annual inter- insert language into their arbitration at http://files.consumerfinance.gov/f/doc- est rate is 36 percent or higher. Payday agreements reflecting this limitation. To uments/CFPB_Arbitration_Agreements_ lending companies may still appear in accomplish this, agreements between con- Notice_of_Proposed_Rulemaking.pdf. If organic search results, but they may no sumers and companies must state: you need any more information on the longer purchase clickable ads (pay- We agree that neither we nor proposed rule, or the subject matter gen- per-click ads) that appear on the top and anyone else will use this agreement erally, contact Leslie Pescia at 800-898- right-hand side of the Google search to stop you from being part of a 2034 or by email at Leslie.Pescia@ results pages. class action case in court. You may beasleyallen.com. Facebook already bans ads from payday file a class action in court or you You can find the May 5, 2016, proposed lenders, a practice it instituted last August. may be a member of a class action rule on the CFPB’s website at: http://files. Hopefully others will soon follow the lead even if you do not file it. consumerfinance.gov/f/documents/ of Facebook and Google and insti- CFPB_Arbitration_Agreements_Notice_ tute a ban. While the CFPB’s proposed rule does of_Proposed_Rulemaking.pdf . If you have Sources: Montgomery Advertiser and The Washington not prohibit companies from forcing indi- any questions, contact Leslie Pescia, a Post viduals to arbitrate their disputes, it does lawyer in our firm’s Consumer Fraud and require the companies to provide informa- Commercial Litigation Section, at 800-898- tion about the arbitration, including the 2034 or by email at Leslie.Pescia@beasley- The Continuing Danger Of Exploding initial claim and any counterclaim as well allen.com. as any award issued. The proposed rule’s E-Cigarettes requirements on individual arbitration Recently, a high school student in information disclosure allow the process Google Set To Ban Payday Lenders From Albertville, Alabama, was hospitalized to be more transparent for consumers as Advertising with burns to his face and neck when the CFPB plans to provide this informa- another student’s electronic cigarette tion to the public on its website. Tech giant Google announced last exploded inside a classroom. This event is The CFPB published and provided its month it will begin banning payday one of many incidents that illustrate the study to Congress in March 2015, and the lending companies from advertising on its major safety issues with e-cigarettes. The results showed that mandatory arbitration website. This is the first time the company devices—particularly the lithium ion bat- provisions seriously undermine consum- has imposed a global ban on ads for a cate- teries—can explode or catch fire. This ers’ rights and relief. Businesses won gory of financial products. In the past, injury in Albertville was not life-threaten- bigger judgments against consumers in Google has imposed bans on ads for illegal ing, but many others have been far worse. arbitration than the consumers obtained activities or products or services it In a previous issue, we wrote about a in relief, according to the analysis. The deemed illicit or dangerous, like selling Florida man who was placed into a medi-

JereBeasleyReport.com 27 cally induced coma after his e-cigarette In a complaint filed in federal court, the to reverse a transaction. In some cases exploded in his mouth. More recently, a CFPB alleged that All American tried to All American’s procedures actually do California man lost an eye and was seri- keep consumers from learning how much make it difficult or impossible for the ously burned as a result of an e-ciga- they would be charged to cash a check consumer to cash the check elsewhere. rette explosion. and used deceptive tactics to stop con- For example, employees sometimes Two more incidents involving teenagers sumers from backing out of transactions. apply a stamp to the back of the occurred within a week of the Albertville The CFPB also alleged that All American check—such as “For Deposit Only: All explosion. In Paso Robles, California, a made deceptive statements about the ben- American Check Cashing Inc.”—effec- 17-year-old was sitting in his car listening efits of its high-cost payday loans and also tively locking the consumer into the to music and laughing with friends when failed to provide refunds after consumers transaction. his e-cigarette exploded. He was airlifted made overpayments on their loans. The to a burn unit and the debris from the CFPB’s lawsuit seeks to end All American’s Meanwhile, appeals by Grey have explosion knocked out teeth and burned a unlawful practices, obtain redress for con- helped him so far to both avoid payment hole through his tongue. Another 17-year- sumers, and impose penalties. of the $3 million state fine and to keep his old of Ogden, Utah, suffered injuries when The action is separate from enforce- stores open. Gray’s lawyers say the he put his e-cigarette into his mouth and ment action the Mississippi Department of Madison businessman and his company pressed the ignition device. The explosion Banking and Consumer Finance has taken are victims of “government thuggery” and burned a hole into the back of his throat against All American and Gray. The that the “draconian” penalties proposed and caused serious cuts and burns. banking department alleges All American by regulators “are the result of a vendetta The examples we see are only those violated the state’s loan rollover laws as a against All American, orchestrated by one publicized because of the severity of inju- matter of company policy. With a rollover, or more” unidentified employees of the ries. It is very likely that more devices are the borrower pays fees on the first loan [Banking] Department. In all due respect, malfunctioning. Despite the recent with money from a new loan. that’s a rather lame excuse for a defense increase in popularity, e-cigarettes are In ordering revocation of the licenses and I don’t believe that sort of thing will largely unregulated and lack adequate for All American’s Mississippi stores and sell to a judge. safety standards. Sharp growth in the pop- payment of a $3 million penalty, the Source: Mississippi Business Journal ularity of e-cigarettes, lack of regulation Banking Department says it found 1,600 and the lack of safety standards in the rollover violations involving 6,500 custom- industry are attributes of a product that ers. In addition, the investigation turned will likely continue to cause harm to up 692 violations involving refusals to give XXIII. persons who use the products. There will customers refunds All American Check RECALLS UPDATE certainly be an increase of litigation Cashing owed them, regulators say. All involving e-cigarettes. American, they say, took “overt” actions to Lawyers at Beasley Allen are currently keep customers from learning they had It seems that each month we report a investigating potential claims on behalf of refunds coming. large number of safety-related recalls. individuals who have suffered injuries Again, that is the case this month. We caused by exploding e-cigarettes. If you The CFPB complaint alleges that have included some of the more signifi- would like more information, someone All American: cant recalls that were issued in May. If you know has been injured by a fire or more information is needed on any of the explosion of one of these devices, or have • Refused to tell consumers how much recalls, readers are encouraged to contact specific questions, you can contact they will be charged: All American Shanna Malone, the Executive Editor of William Sutton, a lawyer in our firm’s instructs its employees to hide the the Report. We would also like to know if Toxic Torts Section. He can be reached at check-cashing fees by counting out the we have missed any safety recalls that 800-898-2034 or by email at William. money over the fee disclosure on the should have been included in this issue. [email protected]. receipt and removing the “receipt and check as quickly as possible.” All Ameri- Source: Personal Injury Law Journal can’s policies explicitly forbid employ- ees from disclosing the check-cashing Nissan Recalls 3 Million Cars Over Air Bag fee to consumers, even when directly System Defect CFPB Sues All American Check Cashing asked. A training presentation for new Over “Deceptive” Tactics employees instructs them to “NEVER Nissan is recalling about 3.17 million TELL THE CUSTOMER THE FEE.” vehicles including a range of models due The U.S. Consumer Financial Protection Employees are directed to say they do to a potential air bag system defect that Bureau (CFPB) has filed suit against not know what the fee will be, and to can leave a car to misclassify an adult pas- payday lender All American Check deflect consumers’ questions with small senger as a child or even as nonexistent, Cashing. The Madison-based company is talk and irrelevant information so that according to the National Highway Traffic accused of tricking and trapping check- “they are overwhelmed with info.” Safety Administration (NHTSA). In a letter, cashing and loan customers at its 43 stores NHTSA said Nissan North America will in Mississippi and a number of other stores • Trapped consumers who change their issue a recall for 13 models that may in Alabama and Louisiana. minds: When consumers ask to cancel contain a front-seat passenger “occupant The suit seeks monetary relief against or reverse a check cashing transaction classification system” that can incorrectly All American and owner Michael Gray, after learning the fee, All American peg an adult passenger as a child or even injunctive relief and penalties, the CFPB employees sometimes lie and say that decide a seat is empty, leaving the passen- said in a press release. The Bureau filed the transaction cannot be canceled, ger air bag to be shut down and unable to the suit in the U.S. District Court Southern even when that is not the case. All deploy during a crash. District of Mississippi Northern Division. American employees also falsely tell The affected models include 2013 Infin- consumers that it will take a long time iti JX35, the 2014 to 2016 Infiniti Q50 and

28 BeasleyAllen.com Infiniti QX60, the 2013 to 2016 Altima and announced the recall in a letter. If the anti- sent more than 17 percent of the 1,534,205 Leaf, the 2016 to 2017 Maxima, the 2015 to corrosion coating on the outer tube of the Ford F-Series trucks sold in 2014 and 2015. 2015 Murano, the 2013 to 2016 NV200 and rear liftgate support stay used to power In those same years, the Ford F-Series the 2014 to 2016 NV200 Taxi, the 2013 to assist the door is insufficient, it could were named America’s best-selling truck 2017 Pathfinder, the 2014 to 2017 Rouge, corrode over time and break off, the and best-selling vehicle. the 2013 to 2016 Sentra, and even the 2015 agency said in a safety recall report filed to 2016 City Express model Nissan manu- with its recall notice. factured for Chevrolet. NHTSA said the Approximately 108,500 2014-2016 Ford Recalls 202,000 Vehicles With issue occurs with “a small number of rare Nissan Rogue vehicles are affected by the Transmission Issue passenger ingress scenarios and unusual recall, and dealers will replace the rear seating positions immediately upon enter- tailgate stays with new ones at no cost to Ford Motor Co. has recalled roughly ing the vehicle” that lead the system to drivers, the NHTSA said. The parts aren’t 202,000 trucks, cars and SUVs in North think a seat is occupied by a child or currently available, but customers will be America affected by a transmission empty, but if the position is maintained notified when they are. According to the problem that can inadvertently shift the when the car begins moving, the classifi- report, the supplier of the anti-corrosion vehicles into first gear and increase acci- cation is locked in for the duration of the treatment on the rear liftgate stay’s outer dent risks. Ford announced the three drive. “In all instances, the OCS may not tube altered the treatment from its specifi- safety recalls and two safety compliance perform as designed and the passenger air cation, resulting in a coating that is poten- recalls in a press release. The largest of the bag not to deploy as designed in a crash, tially insufficient. If the coating isn’t recalls pertains to roughly 202,000 2011- increasing the risk of injury to the front adequate, the rear liftgate stay can corrode 2012 Ford F-150 trucks, and 2012 Ford passenger seat occupant,” NHTSA said. over time as a result of water and salt pen- Expedition, Lincoln Navigator and Ford Nissan said it intends to notify the etration. Because the stay operates under Mustang SUVs and cars for a potential owners of the potentially affected vehicles high-pressure gas, the corrosion can cause problem with the output speed sensor in within 60 days. Although repairs are a sudden release of pressure, potentially the vehicles’ transmission lead frame. The expected to vary between vehicle models, causing the stay to break off and problem could lead to the transmission the defect will be fixed without cost to injure someone. controls to temporarily shift the vehicle drivers. The air bag recall comes little Nissan North America Inc. was first into first gear, resulting in a sudden speed more than a month after Nissan agreed to notified of field incidents in foreign reduction that could increase the risk of recall about 47,000 Leafs released between markets involving the rear liftgate stays an accident, according to Ford. The 2013 and 2015 over the possibility that a malfunctioning on older vehicles that company is aware of three reported acci- braking component will freeze in colder aren’t for sale in the U.S. and launched an dents related to the transmission problem, climates, increasing the risk of a crash. investigation, according to the safety but no injuries, according to the At the time NHTSA said the problem lies report. The automaker later determined announcement. with the cars’ electronic brake booster. that the component was also installed on Ford said that dealers will inspect the When one of the cars is parked in vehicles in the U.S. and reviewed field power train control modules, and update “extremely cold temperature conditions,” data to see if there had been any incidents the modules’ software to eliminate the the relay inside the booster tends to freeze in the country. Nissan said it didn’t iden- downshift problem, plus provide a one- up and the car goes into an assisted mode tify any incidents. As part of its investiga- time replacement of the lead frame at no for braking, requiring more effort and tion, Nissan says it also analyzed parts charge for vehicles within 10 years or likely increasing braking distance. Drivers gathered through a parts collection 150,000 miles from their warranty start. living in colder climes were also affected program and didn’t find any evidence of There are 184,000 vehicles in the U.S. and by an October recall of about 300,000 corrosion on Rogue vehicles in the U.S. 17,900 in Canada affected. Ford also Nissan Versas, a compact car with front announced that roughly 81,000 2014-2015 coil springs prone to corrosion from road Ford Explorer and Ford Police Interceptor salt used in colder months. If the springs Ford Recalls 271,000 Trucks Over Brake SUVs are being recalled to replace rear corroded and fractured, it could cause the Fluid Leak suspension toe links. The company said car’s front suspension and tires to fail com- that in some vehicles poor weld quality pletely. NHTSA launched an investigation Ford Motor Co. has recalled nearly could cause the suspension links to frac- into the problem in May after receiving 93 271,000 F-150 pickup trucks in North ture, making it harder to control the vehi- complaints of front coil spring fractures America due to malfunctioning brake cles. Ford said that it is aware of one and one complaint of a crash related to the master cylinders that allegedly led to nine accident and one injury related to the sus- defect. In its preliminary analysis, the accidents. Ford said in a press release that pension problem. agency found that coil spring failures it will recall 270,873 model year 2013-2014 could happen without warning and at F-150 trucks because the master cylinders any speed. leak brake fluid into the brake booster, Maserati Recalls 26,000 Vehicles Over increasing the risk of a crash. Dealers will Rear Suspension Problem replace the brake master cylinder, and Nissan Recalls 110,000 Rogues Over Rear will also replace the brake booster if a Maserati has recalled more than 26,000 Liftgate Defect leak is found. The issue only affects the vehicles over a loose bolt that could cause vehicles’ front wheels, Ford said. The the rear tires to oversteer under extreme Nissan has recalled nearly 110,000 recall covers F-150s built at two Ford driving conditions and increase the likeli- Rogue vehicles over a problem with an plants in Dearborn, Michigan, and Kansas hood of a crash. NHTSA said in a recall anti-corrosion treatment on the rear lift- City, Missouri, in August 2014. Ford sold notice recently posted online that Maser- gate support that can cause it to break off 225,012 of the affected vehicles in the ati North America Inc. is recalling certain and cause injury, the National Highway United States, 43,682 in Canada and 402 in 2014-2016 Quattroporte and Ghibli vehi- Traffic Safety Administration (NHTSA) Mexico. The recalled F-150 trucks repre- cles because the attaching bolt on the rear

JereBeasleyReport.com 29 tie-rod to hub assembly might not have Rocky Mountain Recalls Bicycles With bicycle down tube and “SYNCROS” is been properly tightened during the assem- Front Disc Brakes To Replace Quick printed on the seat post. The bicycles bly process. The bolt could lessen its Release Lever Due To Crash Hazard were sold in black, grey and white with clamping force over time and result in yellow, orange, green or blue decals. A noise emanating from the rear of the car Rocky Mountain Bicycles of Canada has complete list of serial numbers included while it’s being driven, according to recalled about 17,300 Rocky Mountain in the recall can be found at NHTSA. Eventually, the piece could fail Bicycles. An open quick release lever on http://www.scott-sports.com/global/en/ and the tie-rod and hub carrier assembly the bicycle’s front wheel hub can come company/safety-and-recalls. The serial could separate, resulting in a condition in into contact with the front disc brake number is printed on a white sticker and which the vehicle pulls to one side from assembly, causing the front wheel to come embossed on the underside of the bicycle the rear that could increase the risk to a sudden stop or separate from the frame near the pedals. The company has of a crash. bicycle, posing a risk of injury to the rider. received 11 reports of broken seat posts To fix the problem, NHTSA said Maser- This recall involves all 2003 through 2016 outside of the U.S. No injuries have been ati will inspect vehicles starting on July 1 models of Rocky Mountain bicycles reported. to ensure the bolt is properly tightened. In equipped with front disc brakes and a The bicycles were sold at authorized the event that it’s loose, the automaker black or silver quick-release (QR) lever on SCOTT dealers nationwide and online will replace the rear tie-rod to hub carrier the front wheel hub. Bicycles that do not from June 2015 through March 2016 for assembly at no charge to customers. In have disc brakes are not included in this between $3,300 and $9,700. Consumers documents filed with the recall, Maserati recall. When the front QR is fully opened, should immediately stop riding the said it wasn’t aware of any accidents or if there is less than 6 mm—or the width of recalled bicycles and return them to an injuries that could be related to this issue a No. 2 pencil—between the QR and disk authorized SCOTT dealer to have a free as of late April. The automaker opened an brake rotor on the wheel, the bicycle is replacement seat post installed. Contact investigation into the problem in July 2014 included in this recall. Scott USA toll-free at 888-607-8365 from 8 after receiving four field claims about The bicycles were sold at Rocky Moun- a.m. to 6 p.m. CT Monday through Friday, excessive noise when certain vehicles tain bicycle dealers nationwide and online by email at [email protected] or were being driven, according to the docu- at www.Bikes.com (Rocky Mountain Bicy- online at www.SCOTT-Sports.com and ments. Maserati pinned the problem on a cles), www.Ems.com (Eastern Mountain click on “Safety” at the bottom of the possible torque process failure and Sports), www.JensonUsa.com, www. page, then “Recalls” for more information. thought it had solved the problem, but an MikesBikes.com and www.Performance- Photos available at http://www.cpsc.gov/ additional eight field claims were reported Bike.com from May 2002 through April en/Recalls/2016/Scott-Recalls-Bicycles/ after it modified its torque procedure, 2016 from between $250 and $15,000. prompting the automaker to reopen its Consumers should stop using the recalled internal investigation early last year. bicycles immediately and contact an Rixson Exterior Gate Closers Recalled Due All affected customers will be notified authorized Rocky Mountain retailer for To Injury Hazard of the problem by first-class mail and be free installation of a new quick release on advised to schedule an appointment to the front wheel. Contact Rocky Mountain Rixson, of Monroe, N.C., a brand of Yale have their vehicles repaired. Maserati toll-free at 800-663-2512 from 9 a.m. to 5 Security Inc. (Yale Security is owned by expects it could take up to a day to fix the p.m. ET Monday through Friday, via email Assa Abloy) has recalled about 130 Exte- vehicle, but noted that the repair will be at [email protected] or online at www. rior Gate Closers. The gate closer mecha- free of charge. bikes.com and click on Safety/Recall at the nism can break and eject metal pieces bottom of the page. Photos available including the spring or it can spray oil, at http://www.cpsc.gov/en/Recalls/2016/ posing a risk of injury. This recall involves Rocky-Mountain-Recalls-Bicycles-with- GM To Recall 2 Million Cars In China Over the Exterior Gate Closer Model 1350. The Front-Disc-Brakes-to-Replace-Quick- Valve Engine Defect affected gate closer is affixed to external Release-Lever/ gates and has a body that is approximately General Motors’ Chinese affiliate is set 6.5 inches long, with a sliding arm that is to recall more than 2 million cars over about 3 feet in width when extended. The possibly faulty crankcase valves, which SCOTT Recalls Bicycles Due To Fall unit is marked on the side of the body allow gasses to flow through a typical Hazard with “MAB/ASSA ABLOY.” The recall only combustion engine, the country’s quality includes units produced between January control body said last month. According to SCOTT USA Inc., of Salt Lake City, Utah, 2014 and December 2015. The unit’s pro- a statement on the General Administration has recalled about 1,400 SCOTT bicycles duction date is stamped on the side of the of Quality Supervision, Inspection and with SYNCROS seat posts in the U.S. and gate closer body in a “week/year” format Quarantine’s website, the recall will an additional 170 in Canada. The seat post and can be accessed by removing the include about 1 million Chevrolet Cruzes, can break, posing a fall hazard to the rider. body’s plastic housing. The firm has 830,000 Buick Excelles, 159,000 Chevy This recall involves model year 2016 received 15 reports worldwide of mecha- Epicas and 18,000 Chevy Aveos, all of SCOTT men’s and women’s road bicycles nisms breaking and ejecting metal objects, which were manufactured bySAIC-GM with SYNCROS FL 0.1 seat posts. Bicycle including three in the U.S. No injuries and have been sold exclusively in China. models included in the recall are Addict have been reported. The potential problem lies with the valves CX 10 disc, Addict SL, Addict Team Issue, The gate closers were sold at wholesale being prone to corrosion, which can lead Addict 10, Addict 15, Addict 20, Addict and hardware distributors from April 2015 to oil leaks and other engine malfunctions. Gravel disc, Solace Premium disc, Solace through November 2015 for about $460. 10 disc, Frame set Addict 10 (HMF), Frame Consumers should immediately stop using set Addict CX 10 disc (HMX) mech / Di2 the gate and contact Rixson for informa- and Seatpost Syncros FL1.0 Carbon Offset tion on safely removing the arm from the 27.2mm. “SCOTT” is printed on the gate closer and returning for a free

30 BeasleyAllen.com replacement gate closer. Rixson is contact- and Tate counter stools with solid wood to obtain a free repair. Contact Robert ing consumers who bought the recalled legs and a metallic kick pate. The Louigi Bosch Tool toll-free at 844-552- product directly. Contact Rixson toll-free black leather counter stool has a backrest 6724 Monday through Friday between 7 at 866-474-9766 (Option 2) from 8 a.m. to and measures about 18 inches wide by 26 a.m. and 7 p.m. CT, or online at www.Bos- 4:30 p.m. ET Monday through Friday or inches deep by 41 inches tall. The back- chTools.com and then click on Important contact Assa Abloy Italia online at www. less Tate counter stools were sold in white Product Recalls at the bottom of the page assaabloy.it and click on the “Rixson 1350 or brown and measure about 16.5 inches for more information. Photos available Gate Closer Corrective Action” box on the wide by 16.5 inches deep by 27 inches tall. at http://www.cpsc.gov/en/Recalls/2016/ right-hand side of the page for more “MADE BY: PERMAISURI CO., LTD: No. 30 Robert-Bosch-Tool-Recalls-Grinders/ information. YUANCUO ROAD HONGSHANQIAO, Photos available at http://www.cpsc. FUZHOU, FUJIAN 350002 CHINA” is gov/en/Recalls/2016/Rixson-Exterior- stamped on a tag on the underside of the Digital Clamp Meters Recalled by Klein Gate-Closers-Recalled/ stool’s seat. The firm has received six Tools Due To Shock And Burn Hazards reports of the stools injuring consumers, including scratches and cuts. About 114,000 Digital clamp meters The stools were sold online at Amazon. TJX Recalls Foldable Lounge Chairs Due have been recalled by Klein Tools, of Lin- com, ATC.com, eBay.com, Greatdealfurni- To Risk Of Injury colnshire, Ill. The meters can fail to give ture.com, Groupon.com, Houzz.com, an accurate voltage reading, resulting in About 5,200 foldable lounge chairs have Overstock.com and Wayfair.com from the operator falsely believing the electri- been recalled by The TJX Companies Inc., October 2013 through March 2015 for cal power is off, posing shock, electrocu- of Framingham, Mass. This recall involves about $120. Consumers should immedi- tion and burn hazards. This recall involves T.J. Maxx and Marshalls foldable weather- ately stop using the recalled stools and Klein Tools digital clamp meters used to proof lounge chairs. The chairs are made remove the kick plates from the stools and detect electrical current in wiring. Model of an acacia wood frame and striped fabric contact Noble House for free replacement numbers CL110, CL210, CL310 and in two styles: a natural oiled wood frame kick plates, including shipping. Consumer CL110KIT with date codes 0815U-A1, with red and white stripe fabric or a white Contact: Noble House toll-free at 888-600- 1015U-A1, 1115U-A1, 1215U-A1, 0116U-A1, gloss frame with blue and white stripe 6376 from 8:30 a.m. to 5:30 p.m. PT 0216U-A1 and 0316U-A1 are included in fabric. The chairs measure about 30 Monday through Friday or online at www. this recall. “Klein Tools” and the model inches high by 42 inches long when noblehousefurniture.com and click on the number are printed on the front of the unfolded. The style number is printed on Safety Recall link at the bottom clamp meters. The date code is printed on the hang tag attached to the chair. “MADE of the page. the back. The meters are black with a IN VIETNAM” is printed on a label on the backlit LCD display and an orange trigger bottom of the chair frames. TJX has and clamp mechanism. The meters are received 15 reports of injuries from col- Robert Bosch Tool Recalls Grinders Due rated CAT III 600 volts and measure lapsing chairs. Injuries included back and To Risk Of Burns voltage up to 600 volts and alternating tailbone injuries, one report of a fractured current up to 400 amps. Only the meter in finger, three reports of stitches to fingers Robert Bosch Tool Corp., of Mount Pros- the CL110KIT is included in the recall. and reports of cut, bruised or swollen pect, Ill., has recalled about 91,000 Bosch The meters were sold at Home Depot fingers. small angle grinders. The grinder can and other hardware stores, industrial dis- The chairs were sold at T.J. Maxx and overheat while in use, causing the brush tributors and electrical wholesalers nation- Marshalls stores nationwide during March covers to melt and expose the end of the wide from November 2015 through April 2016 for about $40. The chairs can col- brush holder, posing a risk of burns to the 2016 for between $55 and $75. Consumers lapse unexpectedly, posing a fall and consumer. This recall involves Bosch 1380 should immediately stop using the injury hazard. Consumers should immedi- Slim small, 4.5-inch angle grinders with recalled digital clamp meters and contact ately stop using the recalled foldable date codes 502 through 511. The model Klein Tools to receive postage paid labels chairs and return them to any T.J. Maxx or number and date codes are located on the to return the clamp meters for free Marshalls store for a full refund. Con- name plate affixed to the underside of the replacement units. Contact Klein Tools at sumer Contact: T.J. Maxx at 800-926-6299 grinder. The grinders are blue and silver 800-527-3099 from 7 a.m. to 6 p.m. CT from 9 a.m. to 6 p.m. ET Monday through with a black label and black and red Monday through Friday, online at www. Friday or online at www.tjmaxx.com then control buttons. “BOSCH” is printed in kleintools.com and click on “Safety Recall click on Product Recalls at the bottom of red on the side of the product. The Information” at the bottom of the page for the page or Marshalls toll-free at 888-627- company has received four reports of the more information, or email ClampMeter- 7425 or online at www.marshallsonline. grinders overheating. No injuries have [email protected]. Photos available at com and click on Customer Service at the been reported. http://www.cpsc.gov/en/Recalls/2016/ bottom of the page. The grinders were sold at Lowe’s, Digital-Clamp-Meters-Recalled-by- Menards, The Home Depot and other Klein-Tools/ home improvement, hardware stores nationwide and online at Amazon.com, Noble House Recalls Counter Stools Due HomeDepot.com, Lowes.com and To Laceration Hazard Philips Lighting Recalls Metal Halide Lamps Menards.com from March 2015 through Due To Burn And Laceration Hazards Noble House Home Furnishings LLC, of November 2015 for between $50 and Chatsworth, Calif., has recalled about $200, depending on the model and About 87,000 Halide Lamps have been 2,000 counter stools. The kick plates of whether it was sold in a combination recalled by Philips Lighting North America the counter stools can have a sharp edge, package with other tools. Consumers Corp., of Somerset, N.J. The outer bulbs posing a laceration hazard to consumers. should immediately stop using the can shatter, resulting in hot internal pieces This recall involves Noble House’s Louigi recalled grinders and contact the company of glass falling from the lamps, posing a

JereBeasleyReport.com 31 burn and laceration hazard. This recall through February 2016 for between $400 Camalot and Camalot Ultralight camming involves the Philips Energy Advantage and $820. Consumers should immediately devices. The climbing devices are used to Ceramic Metal Halide Lamps model stop using the gas water heaters and call secure ropes while rock climbing. The CDM330. They are designed as energy effi- Water Heating Technologies to arrange for Camalots were sold in sizes 0.3 to 6 and cient replacements for traditional 400W a service technician to inspect, repair or have manufacturing codes from 5133 to quartz metal halide lamps installed in replace the water heater free of charge. 6067. The Camalot Ultralights were sold in magnetic ballasts and intended for use in Contact Water Heating Technologies toll- sizes 0.4 to 4 and have manufacturing high-ceiling industrial, retail and commer- free at 888-883-0788 from 9 a.m. to 5 p.m. codes from 5309 to 6061. Manufacturing cial applications. The lamps were sold in ET Monday through Friday or online at codes are printed on the underside both clear and coated versions. Each lamp www.americanstandardwaterheaters.com of the cams. includes an etching, located either at the and click on “Recall Information” for more The devicies were sold at Eastern Moun- base of the lamp or on the ovoid of the information. Photos available at http:// tain Sports, Gear Express, Mountain Gear, lamps, that displays the relevant date www.cpsc.gov/en/Recalls/2016/Water- REI and other specialty outdoor recreation code, along with Philips’ name, wattage Heating-Technologies-Recalls-Gas- stores nationwide and online at BackCoun- (330W) and the model (CDM330). Each Water-Heaters/ try.com and BlackDiamond.com for lamp includes an etching, loca at the base between $65 and $130. Consumers should of the lamp or on the ovoid of the lamps, immediately stop using the recalled that displays the relevant date code, along camming devices and contact Black Walmart Recalls Rival Electric Water with Philips’ name, wattage (330W) and Diamond for inspection and replacement Kettles Due To Burn And Shock Hazards the model (CDM330). The firm has instructions. Instructions for inspection received two reports of lamps shattering. Wal-Mart Stores Inc., of Bentonville, are also available at https://warranty.bdel. No injuries have been reported. Ark., has recalled about 1.2 million Rival com/CamalotRecall/Landing. Only those The lamps were sold at electrical supply brand electric water kettles. The heating camming devices that have unformed axle distributors from May 2011 through June element can fail and rupture, posing burn ends are included in the recall. Contact 2012 for about $40. Consumers should and shock hazards to the user. This recall Black Diamond at 877-775-5552 from 8 immediately stop using the recalled lamps involves Rival brand electric water kettles a.m. to 5 p.m. MT Monday through Friday and contact Philips for a free replacement. with model numbers WK8283CU and or online at http://blackdiamondequip- Contact Philips Lighting toll-free at 866- WK8283CUY. The model numbers are ment.com and click on “Safety Notices” for 253-5503 from 9 a.m. to 5 p.m. ET Monday printed on a product label on the under- more information. Consumers can also through Friday, via email at ceramicmh@ side of the water kettle. The white plastic email the company at [email protected]. philips.com or online at www.philips. water kettles were sold with a warming Photos available at http://www.cpsc.gov/ com and click on “For Professionals” and base and a pitcher. A window on the side en/Recalls/2016/Black-Diamond-Recalls- then “Recalls” for more information. pitcher has markings that measure the Camming-Climbing-Devices/ Photos available at http://www.cpsc.gov/ water levels. “Rival” is printed beneath the en/Recalls/2016/Philips-Lighting-Recalls- window. Walmart has received 80 reports Metal-Halide-Lamps. of incidents, including seven Twin Go Recalls Baby Carriers Due To Fall reports of burns. Hazard The kettles were sold exclusively at Water Heating Technologies Recalls Gas Walmart stores nationwide and online at TwinGo LLC, of Mclean, Va., has Water Heaters Due To Fire Hazard Walmart.com from March 2011 through recalled about 4,000 baby carriers in the October 2015 for about $14. Consumers U.S. along with 160 that were sold in About 14,400 Gas water heaters have should immediately stop using the Canada. The waist buckle can break, been recalled by Water Heating Technolo- recalled kettle and return it to any posing a fall hazard to children in the gies Corp., of Pomona, Calif. The water Walmart store for a full refund. Contact carrier. The Twin Go Original Carrier is an heaters have a space between the burner Walmart at 800-925-6278 between 7 a.m. infant carrier designed to carry one or two flange and the combustion chamber that and 9 p.m. CT Monday through Friday, 9 babies against the caregiver’s body at the allows flammable liquids or gases to a.m. and 9 p.m. CT Saturday, or noon and waist. It is intended for babies that are contact burning flammable vapors inside 6 p.m. Sunday; or visit the company’s from 10 to 45 pounds. “Twin Go” is the combustion chamber, posing a risk of website at www.Walmart.com and click printed on a label located on the front of fire or explosion. This recall involves “Product Recalls.” Consumers can the carrier and an 11-digit batch number is Water Heating Technologies “American also visit http://walmartstores.com/con- printed on a label sewn to the waistband. Standard” gas water heaters. The model tactus/feedback.aspx. Batch numbers included in this recall: numbers included in the recall begin with 23014024003, 01515026003, and GN and GSN. The water heaters are white 21615019001. They were sold in fabric that with an “American Standard” logo printed is black on the outside and blue or orange Black Diamond Recalls Camming Climbing on the front. The model number is on the inside. The company has received Devices Due To Fall Hazard printed on a label on the side of the water 13 reports of buckles breaking worldwide, heater. The water heaters were sold in 30, Black Diamond Equipment Ltd., of Salt including 10 in the U.S., one in Canada 40 and 50 gallon capacities. A complete Lake City, Utah, has recalled about 45,500 and two in the UK. No injuries have list of models and serial numbers can be Black Diamond Camalot climbing devices been reported. found on the company’s website at http:// in the U.S. and an additional 5,700 in The carriers were sold at boutique www.americanstandardwaterheaters. Canada. The camming devices can come stores nationwide and online at Amazon. com/recall/. apart during use and fail, posing a fall com and TwinGoCarrier.com from Decem- The water heaters were sold by plumb- hazard to the consumer. This recall ber 2014 through May 2016 for about $215. ing contractors nationwide from May 2015 involves all sizes of Black Diamond Consumers should immediately stop using

32 BeasleyAllen.com the infant carrier and contact TwinGo for Striker™ 240 avalanche rescue probes. take the clip away from young children a free repair kit. A free replacement The probe is divided into six or eight sec- and contact Munchkin for a free replace- buckle will be provided with instructions. tions of 18-inch aluminum shafts that lock ment Lightweight Pacifier pack with two A repair video is also available at http:// into place to create a single 94-inch or pacifiers or a full refund. Contact Munch- twingocarrier.com/pages/repairkit. Con- 126-inch probe, depending on the model. kin toll-free at 877-242-3134 from 7 a.m. to sumer Contact: TwinGo toll-free at 888- The probe is used by searchers to help 5 p.m. PT Monday through Friday or 288-9342 from 9am-5pm EST identify something or someone buried by online at www.munchkin.com, click on Monday-Friday, via email at safety@twing- snow after an avalanche. “Striker 320” is Help at the bottom of the page and then ocarrier.com or online at www.TwinGo- printed on the red and gray probe and Recalls for more information. Photos avail- Carrier.com and click on “Product Recall” “Striker 240” is printed on the yellow and able at http://www.cpsc.gov/en/ at the bottom of the page for more infor- gray probe. “MSR” is printed on the shaft. Recalls/2016/Munchkin-Recalls-Latch- mation. Photos available at http://www. The probes were sold at REI and other Lightweight-Pacificers-and-Clips/ cpsc.gov/en/Recalls/2016/Twin-Go- outdoor recreation stores nationwide and Recalls-Baby-Carriers/ online at Amazon.com and other websites from September 2014 through January Hobby Lobby Recalls Infant Rattles Due To 2016 for between $60 and $70. Consum- Choking Hazard ers should immediately stop using the phil&teds Recalls Dash Strollers Due To recalled probes and call Cascade Designs Risk Of Injury Hobby Lobby Stores Inc., of Oklahoma for instructions on receiving a refund or City, Okla., has recalled about 14,400 About 630 phil&teds dash strollers have free replacement probe. Contact Cascade rattles. The rattle seams can separate, been recalled by phil&teds, of Fort Designs at 800-531-9531 from 8 a.m. to 5 exposing the fiber stuffing and bell rattle, Collins, Colo. The hinge used to fold the p.m. PT on Monday through Friday or posing a choking hazard. This recall dash v5 stroller can become damaged online at www.msrgear.com and click on involves Little Wishes Chenille Stuffed while opening and closing the stroller, “Recall” for more information. Photos Rattles, including the Pink & Green Fish posing a pinch hazard to the consumer. available at http://www.cpsc.gov/en/ rattles, item number 5141577, and the Blue This recall involves phil&teds dash v5 Recalls/2016/Cascade-Designs-Recalls-Ava- & Yellow Fish rattles, item number buggy-style strollers with serial numbers lanche-Rescue-Probes/ 5127642. The rattles are made of a soft ranging between PTRV 0715/0746 and chenille fabric with a fiber stuffing. They PTRV 0815/2525. The serial number is are 8.5 inches by 7 inches and have a hole printed on the lower left rear cradle, next Munchkin Recalls Latch Lightweight cut out in the middle. The item number is to the identification label. The company Pacifiers & Clips Due To Choking Hazard printed on the top left corner of the has received one report of the stroller product hang tag. Rattles have a sewn-in hinge joint separating. No injuries have About 180,000 LatchTM lightweight label with “Reg. No. PA-15130(CN)” and been reported. pacifiers and clips have been recalled by “Hobby Lobby 9123069” printed on the The strollers were sold at Baby Street, Munchkin Inc., of Van Nuys, Calif. The front of the label. Dainty Baby, Mega Babies and other baby clip cover can detach from the pacifier’s The rattles were sold exclusively at product and specialty stores nationwide clip, posing a choking hazard for young Hobby Lobby Stores nationwide from and online at Amazon.com, diapers.com children. This recall involves Munchkin’s January 2016 through April 2016 for about and philandteds.com from August 2015 Latch lightweight pacifiers and clips sold $7. Consumers should immediately stop through April 2016 for about $550. Con- as a set. The pacifiers were sold in five using the recalled rattles and return them sumers should immediately stop using the styles: designer, rattle and heartbeat clips to the nearest Hobby Lobby store for a full dash v5 stroller and contact phil&teds to with 0m+ natural shape pacifiers, and refund or store credit. Contact Hobby have the stroller frame replaced free of designer and rattle clips with 6m+ orth- Lobby Stores at 800-326-7931from 9 a.m. charge. Contact phil&teds toll-free at 855- odontic pacifiers. The designer pacifiers to 6 p.m. ET Monday through Friday, or 652-9019 from 9 a.m. to 5 p.m. MT Monday and clips 0m+ and 6m+ are in three color online at www.hobbylobby.com and click through Friday or online at www.philandt- patterns: blue and white strips, orange on the “Recall” tab at the bottom of the eds.com and click on “Support,” then and with white polka dots and pink with page for more information. Photos avail- “Upgrades” and “Recalls” for more infor- white polka dots. The rattle pacifiers and able at http://www.cpsc.gov/en/ mation. Photos available at http://www. clips 0m+ and 6m+ are green with beads Recalls/2016/Hobby-Lobby-Recalls- cpsc.gov/en/Recalls/2016/philandteds- in the pacifier cover to make a rattle Infant-Rattles/ recalls-dash-strollers/ sound and have a polka dot strap. The heartbeat pacifiers and clips have a red, heart-shaped pacifier cover and red and Publix Recalls Cranberry Nut And Seed white polka dots on the strap. The Cascade Designs Recalls Avalanche Rescue Mix For Possible Listeria company has received 10 reports (five in Probes Due To Risk Of Suffocation the U.S. and five in Canada) of the clip Publix is urging consumers to throw Cascade Designs Inc., of Seattle, Wash., cover detaching from the pacifier clip. No away or return its 7.05-ounce containers has recalled about 1,600 Avalanche rescue injuries have been reported. of cranberry nut and seed mix because probes in the U.S. and an additional 230 The pacifiers and clips were sold at the product may have Listeria. The super- that were sold in Canada. The lock button Babies R Us, Target, Wal-Mart and other market chain issued a voluntarily recall on the probe can fail to engage and lock, mass merchandisers, juvenile product, after the company’s walnut supplier, causing the probe not to function as baby boutique and discount stores nation- Woodstock Farms, alerted Publix about intended. This can interfere with finding wide and online at amazon.com, munch- possible contamination. someone buried beneath snow, posing a kin.com and other website from March The cranberry nut and seed mix was suffocation hazard. This recall involves 2014 through March 2016 for between $11 sold in Alabama, Tennessee, Georgia, Mountain Safety Research Striker™ 320, and $15. Consumers should immediately Florida, North Carolina and South Caro-

JereBeasleyReport.com 33 lina and has best-by dates of Aug. 6-30, XXIV. ment with Solutia, Monsanto and Pharma- 2016. The UPC is 41415-34986. Listeria can cia over PCB contamination in cause symptoms such as high fever, severe FIRM ACTIVITIES Anniston, Alabama. headache, stiffness, nausea, abdominal In connection with the BP Oil Spill liti- pain and diarrhea. Young children, frail or gation, David has assisted the State of elderly people, pregnant women and Employee Spotlights Alabama and numerous counties and cities those with weakened immune systems are in Alabama and northwest Florida that most at risk of developing a serious or have been damaged by the disaster. In sometimes fatal infection with Listeria HEIDI BOWERS addition, David recently served as co-lead exposure. To ask questions, call Publix at Heidi Bowers, a native of Elba, Ala., has counsel in the federal trial against the Ten- 800-242-1227 or the U.S. Food and Drug been with the firm for 15 years and cur- nessee Valley Authority over the compa- Administration at 888-SAFEFOOD rently works as a Legal Assistant in our ny’s catastrophic release of more than 1 (888-723-3366). Consumer Fraud and Commercial Litiga- billion gallons of coal ash sludge from an tion Section. Although Heidi has previ- impoundment at its Kingston Fossil Plant. ously worked in the both Mass Torts and Our lawyers represent hundreds of indi- vidual property owners and businesses Blue Bell Recalls More Ice Cream Personal Injury Sections, she is now tasked with working on whistleblower who were damaged when the Kingston Blue Bell has another recall on its hands. claims and employment law claims, which impoundment ruptured on December 22, The company, which had a large listeria covers a broad range of cases. The whistle- 2008, and released an enormous wave of outbreak in 2015, said select lots of Blue blower claims are increasing at a record toxic coal slurry into local neighborhoods Bell’s Rocky Road pints made in Brenham, case. She also works on sexual harass- and the Watts Bar Reservoir. The environ- Texas, may be mispackaged to contain ment, discrimination, wage and hour, and mental ramifications of the TVA spill have Cookies ‘n Cream ice cream, which has retaliation cases. been enormous and cleanup is slated to undeclared allergens soy and wheat. No Heidi graduated Magna Cum Laude from cost more than $1 billion and continue for illnesses have been reported, but Blue Bell Auburn University of Montgomery in 2001 years to come. acknowledges the allergens may pose a with a Bachelor of Science in Justice and David is a 1989 graduate of the Citadel serious or life-threatening reaction to Public Safety. She has also earned her where he served on the Cadet Honor Com- certain people. “The problem was discov- Legal Assistant Certificate. In her free mittee. In 1992, he obtained his law ered when a Blue Bell employee restock- time, Heidi enjoys being on the water and degree from the Cumberland School of ing a retailer observed the incorrect quilting. She is a very hard working, dedi- Law at Samford University. During his packaging,” the company said in a state- cated employee who puts the clients’ time at Cumberland, David was elected to ment on the FDA website. The recalled interest first. We are fortunate to have the positions of Chief Justice of the product has a Rocky Road pint with a Heidi with us. Student Honor Court and Director of the Cookie ‘n Cream Lid and the code number Student Trial Advocacy Board. David’s 022918576. The ice cream was sent to DAVID BYRNE peers elected him Best Student Advo- retail outlets in Texas and Louisiana. Cus- David Byrne is a lawyer in our Mass cate in 1991. tomers who have one of the mislabeled Torts Section. He is currently assisting Following graduation, David served as a products may return the ice cream for a clients with claims against pharmaceutical Deputy Alabama Attorney General and as refund. Call 979-836-7977 from 8 a.m. to 5 and medical device companies. David is a law clerk to U.S. District Judge Robert p.m. CST Monday through Friday with primarily working at this juncture on liti- Varner and Alabama Court of Criminal questions. gation related to Xarelto blood thinner, Appeals Judge John M. Patterson. Before Transvaginal Mesh injuries, as well as joining Beasley Allen, David was a partner Once again there have been a large Hormone Replacement Therapy class with the Montgomery, Ala., law firm, Beck number of recalls since the last issue. action litigation in California. & Byrne, P.C. As a matter of interest, his While we weren’t able to include all of Prior to moving to Mass Torts, David former partner George Beck is now the them in this issue, we included those of practiced in the firm’s Environmental & U.S. Attorney in Montgomery for the the highest importance and urgency. If Toxic Torts section, where he has handled Middle District of Alabama. you need more information on any of the numerous complex environmental cases David currently serves as the Chair of recalls listed above, visit our firm’s web in state and federal courts throughout the the Alabama State Bar’s Federal Court site at www.BeasleyAllen.com or www. United States. He has also been actively Practice Section. David is a past-president RightingInjustice.com. We would also like involved in litigation related to the BP Oil of the Montgomery County Trial Lawyers to know if we have missed any significant Spill disaster. Additionally, David’s cases Association and currently serves on the recall that involves a safety issue. If so, have involved such wide-ranging topics as Board of the Federal Bar Association please let us know. As indicated at the drinking water contamination, toxic air (Middle District of Alabama outset, you can contact Shanna Malone at emissions, contaminated waste water dis- Chapter). David is also a member of the [email protected] for charges, toxic exposure, improper landfill Board of Governors for the Alabama Asso- more recall information or to supply us activities, petroleum spills, medical moni- ciation for Justice and is a Master Bencher with information on recalls. toring claims and soil and groundwater with the Justice Hugh Maddox American contamination. Inn of Court. In 2009, David was During the course of his environmental appointed to serve as the Chair of the practice, David has represented individu- Alabama Bar’s Federal Practice Section als, businesses and municipalities, and Task Force. He was named to the Best assisted numerous clients in obtaining Lawyers in America list. multi-million dollar settlements or ver- David is a regular speaker at state, dicts. In 2003, David was involved in the regional and national environmental law landmark $700 million toxic tort settle- seminars. Most recently, he served as a

34 BeasleyAllen.com speaker and faculty member for the HB B.S. in Finance in 2008. He then went on Ben is married to Lisa Matthews Locklar Litigation Coal Ash & Slurry Contamina- to earn his J.D. at Thomas Goode Jones and has three daughters—Katie, Sarah tion seminar and the American Associa- School of Law in May 2011. While attend- Beth and Greyson. Ben and his family are tion for Justice’s Gulf Coast Oil Spill ing law school, Jake served on the Honor members of Frazer Memorial United Meth- Litigation seminar. Court from 2008-2011, and was the Honor odist Church. During his free time, he David and his wife Betty Bobbitt have Court Chief Justice from 2010-2011. enjoys his horses at his small farm in South been married for 22 years, and they have During his time at Jones, Jake and his Montgomery and riding his Harley David- two children. The family attends First service dog Phoenix were featured in a son motorcycle. Ben is a very good lawyer Baptist Church in Montgomery, Ala. David national advertising campaign for Milk- who totally is dedicated to his clients. We is a very good lawyer and an extremely Bone, a major sponsor of the Canine Assis- are blessed to have Ben in the firm. hard worker. He cares deeply about the tants program. clients he works for. We are blessed to Jake is a member of the Alabama State PAM MURPHY have David with in the firm. Bar, American Association for Justice, Pam Murphy has worked at Beasley Montgomery County Association for Allen for 15 years and has been serving as TRACIE HARRISON Justice and the Montgomery County Bar a Medical Records Coordinator for Melissa Tracie Harrison began working for Association. Jake has a light sport pilot’s Prickett since 2005. In her position, Pam is Beasley Allen in September 1999 in the license and really enjoys flying, hunting required to order medical records for all of Toxic Torts section of the firm. For the and fishing. His favorite part of practicing the files within the firm’s Mass past three years, Tracie has served as legal law is being trusted by clients to help Torts section. assistant to Parker Miller, a lawyer in our solve their legal issues and navigate the Pam has one son and a daughter-in-law, firm’s Environmental/Toxic Torts Section. tangled web of the law. Jake is a very good Kelly and Shea Murphy, and two grand- Tracie is highly skilled in the management lawyer who is dedicated to helping folks children, Wilson and Ella. She also has of large document production databases, who need help. He is a very hard worker. two dogs, Jack and Boxer, who are her and her work proved essential in the man- We are blessed to have Jake with us. best friends at home. Pam’s sister, Deborah agement of the State of Alabama vs. BP Drinkard, also works in the firm as a case. Before BP, Tracie was a key contribu- BEN LOCKLAR Medical Records Coordinator. tor on the Carbon Black, Aniston Mon- Ben Locklar has been with Beasley Pam is a hard-working employee who is santo PCB, 3M Minnesota and TVA Coal Allen since 2005, but wasn’t always an dedicated to her work and the clients she Ash Spill litigations. Currently, Tracie attorney. Upon graduating high school, serves. When Pam is not working at the assists Parker with the day-to-day manage- Ben joined the Montgomery Police Depart- firm, she enjoys working in her yard, ment of his BP personal injury, seafood ment and later went on to become a sworn taking rides to the country and spending and business economic loss client bases, police officer. However, after being time with her family. She is also a fan of as well as with clients suffering debilitat- chosen to play the role of a lawyer during Alabama football and NASCAR racing. We ing severe lung injuries. a mock trial in 8th grade, Ben maintained are most fortunate to have Pam with us. After graduating from Southern his dream of eventually becoming a Academy in Greensboro, Ala., Tracie went lawyer. After graduating from Auburn Uni- on to attend both Shelton State Commu- versity Montgomery, Ben left his job as a nity College and Wallace Community police officer and moved to Birmingham XXV. College to receive a degree in nursing. She to attend Cumberland School of Law at is currently a student at Judson College in Samford University, where he earned his SPECIAL Marion, Ala., with dreams to attend J.D. in 1989. RECOGNITIONS law school. As a lawyer in our Personal Injury / Tracie has been married for 21 years to Products Liability Section, Ben has her husband, Nick, and they have one son, handled several cases, many of which Fred Gray Is A Great American Hayden. Tracie is also a 2nd recommended resulted in six- and seven-figure settle- black belt in Taekwondo and trained in ments and verdicts. Ben’s favorite part of Over the years there have been a both Bo Staff and Escrima/Kali. In her practicing law is helping people with the number of individuals in America whose spare time, Tracie enjoys reading and complexities of the law. He has found that lives on this earth have made a tremen- cooking for her family. Tracie is a very his relationship with the Lord allows him dous difference for good in the lives of good, hard-working and dedicated to help obtain justice on behalf of his others. Tuskegee lawyer Fred Gray is such employee. We are fortunate to have her clients. Ben says that Beasley Allen is a a person. Without a doubt, this man made with the firm. great environment for him to practice law a huge difference in how people of color because of our firm’s extended resources, are treated in the United States. Fred Gray JAKE JETER name recognition and positioning in the fought for the rights of African-Americans Jake Jeter started working at Beasley legal community. This allows Ben the in this country at a time when those rights Allen as a summer intern in 2009 through opportunity to work on a variety of cases. were universally being denied. 2010 before becoming a Staff Attorney in He says Beasley Allen is a family that holds While I had read and heard lots about the Consumer Fraud section. Jake learned true to its motto of “helping those who Fred, I didn’t actually meet him until I after an accident that left him paralyzed at need it most.” moved back to Clayton in the Fall of 1964. a young age how lawyers are in a unique Ben has served in a number of leader- That first meeting came about in Eufaula position to assist others with their legal ship roles on various boards, such as the at a call of the civil case court docket. I problems. His decision to stay with editorial board for The Docket, a publica- later had a civil case in Clayton and Fred Beasley Allen was due to the firm’s many tion of the Montgomery County Bar Asso- was one of the defense lawyers. I got to experienced attorneys and support staff, ciation, as well as the board of trustees of know him much better during that trial. I allowing him to better help those in need. the Montgomery County Trial Lawyers was very impressed with Fred on each of Jake attended Auburn University Mont- Association. those occasions both as a lawyer and as a gomery (AUM) where he graduated with a

JereBeasleyReport.com 35 man. Perhaps the most impressive thing to be vigilant. Tire tread and inflation combined land area totaling nearly about Fred was how down-to-earth and levels are common factors in tire-related 90,000 acres. unassuming he was, considering that he accidents. Many people also are not aware The Bartlett Ranch pastures and feeds was already developing a national reputa- that as tires age the rubber can become out 4,000 head of steers each year, calves tion. Fred had handled a number of more brittle and more prone to a blowout, 1,500 commercial cows and owns more notable civil rights cases by that time. regardless of tread or inflation levels. than 250 American Quarter Horses. Fred Gray has made a name for himself These community events provide a hands- Bartlett Ranch-bred horses are not only as a champion for real change in America. on opportunity to educate people about used by ranch cowboys as a vital part of The early battles for equality and civil tire safety and prevent deadly tire-related the ranching operations, but have also rights were most difficult for those who accidents. been extremely successful in halter, were on the front lines. Being involved cutting, barrel racing, roping and other quite often came at a tremendous cost. It rodeo events. took great courage to do that which men Dr. Bartlett’s passion for breeding Amer- Beasley Allen Participates In Alabama and women like Fred Gray did. I am told ican Quarter Horses has been a focus of Legal Food Frenzy that Fred made a promise to himself that the ranch since the 1950s. In the ranch’s he would work diligently to end racial seg- Recently Beasley Allen joined law firms 2016 Best Remuda application, Dr. Bartlett regation in Montgomery upon becoming a from across the state in raising money and had this to say: lawyer. Not only did Fred keep that collecting food items for Alabama Legal promise, he expanded his territory greatly The goal of the Bartlett Ranch Food Frenzy, sponsored by the Alabama remuda program is to produce and America is better for it today. State Bar, Alabama Attorney General Fred has received an array of accolades horses that look good, have a quiet Luther Strange and the Alabama Food temperament and can be used for over the years. He became president of the Bank Association. Our firm’s donations National Bar Association in 1985, later any type of work on or off the ranch. went directly to the Montgomery Area Bartlett Ranch remuda horses are becoming the first African-American presi- Food Bank to help end child hunger. The dent of the Alabama Bar Association in structurally sound and correct in campaign ran from April 25-May 6 and conformation, minimizing lame- 2002. In 1995, Fred published his autobi- more than 225 pounds of food was ography, Bus Ride to Justice: The Life and ness. The cowboys and horses of donated by Beasley Allen staff and lawyers Bartlett Ranch are a winning combi- Works of Fred Gray. I have a signed copy, in addition to $1,872 donated in cash. which I consider a prized possession, and nation, and the traditions of Ameri- One in four children in Alabama experi- can ranching are alive and well. I recommend it to all persons who believe ence food hardships. Alabama’s food in liberty and justice for all citizens. I am banks distributed more than 50 million All of the 2-year-old remuda horses are privileged to say that I have known Fred pounds of food last year through their started during an annual colt starting Gray and that he is a good friend. 1,500 partner agencies and pantries. With clinic each year at the Wyoming ranch. We need more men and women today the demand increasing during the summer The renowned clinic, held for the past 20 who have the courage needed to help months the Alabama State Bar and Attor- years, is taught by “Cody” Bill Smith, bring about even more change in America ney General Luther Strange developed the three-time world champion Professional and continue the fight for equality, liberty inaugural event in an effort to help end Rodeo Cowboys Association saddle bronc and justice for all. Fred Gray can be a role child hunger. To find a food bank near you rider. At the ranch, all foals are halter model for them. I thank God for bringing visit www.alfoodbanks.org. broken at weaning. Care is taken to ensure Fred into the battle early in his career and gentleness is worked for and attained with for sustaining him over the years. Fortu- the foals. The foals are handled on a nately, Fred is still engaged in this battle Bartlett Ranch Named Zoetis-AQHA Best regular basis for the next year and a half and that has to be an inspiration to until they come to the clinic. Remuda younger persons who share his zeal and Bartlett Ranch is an AQHA legacy dedication to a worthy cause. The American Quarter Horse Associa- breeder, and the ranch’s top resident stal- tion (AQHA), along with its Corporate lions over the years include “Handle Bar Partner Zoetis, announced last month that Doc” (1983 National Cutting Horse Associ- Beasley Allen Promotes Tire Safety At Bartlett Ranch, an AQHA Ranching Heri- ation world champion and NCHA Hall of Millbrook Police Department “Cops & Kids” tage Breeder, is the recipient of the 2016 Fame member); “Preferred Pay” (a son of Event Zoetis-AQHA Best Remuda Award. The the famous racehorse “Dash For Cash”); award was established to honor the contri- and “Watch Two Eyed Buck” (an AQHA Each year, the Millbrook Police Depart- butions ranch horses have made to the Superior calf roping, Superior heading, ment hosts a fun family event, “Cops & heritage of the American Quarter Horse. Superior heeling and Open Performance Kids,” at the Village Green park. This year Traditionally, a remuda is a herd of horses Champion). Dr. Bartlett recently added the all-day celebration was held on May 14 from which ranch hands select their “Very Special Playgun,” who is a son of and Beasley Allen was proud to participate mounts. The word remuda derives from a “Playgun” out of the mare “Very Special with a tire safety booth. The firm held two Spanish term meaning “change of horses.” Peppy,” to his stallion roster. As you can tire safety events last year and had such a The Bartlett Ranch was established in see, there have been some great horses on good response that we have scheduled Pike Road, Ala., in 1954. It is owned by Dr. this ranch. three in 2016 including the MPD’s “Cops H.B. “Woody” Bartlett and managed by Many of the Bartlett Ranch remuda & Kids,” a booth on June 25 at the Shoppes Stephanie Bryant, Milton Scott, Woody horses have also found success outside of at EastChase Farmer’s Market, and the Bartlett Jr. and Warren Bartlett. Currently, the ranch. A few of these American Prattville Police Department “National the diversified cattle and horse operation Quarter Horses include “Reys Desire,” Night Out” event in August. is comprised of three properties located in “Whats Your Handle,” “Raps Red River,” With no dependable system in place to Alabama, Texas and Wyoming, with a “Hav U Herd My Handle,” “Silky Rap” and ensure tire safety, it falls to the consumer “Aproach With Caution.” Each of these

36 BeasleyAllen.com horses achieved accolades in events XXVI. LaBarron says the following is one of his ranging from rodeo to cutting to halter. favorite Bible verses. Dr. Bartlett and Bartlett Ranch have FAVORITE BIBLE received recognition and awards that If God is for me, then who can stand support the importance of education and VERSES against me. community involvement. In addition to Romans 8:31 the AQHA Legacy Award for breeding Pete Raiche, a lawyer with Blustein, American Quarter Horses for 50 consecu- Shapiro, Rich & Barone, Health, a law firm Pastor Dean Finch, the Pastor for Mis- tive years, they have received awards located in Goshen, N.Y., sent in his favor- sions and Senior Adults at Taylor Road including the Colorado State University ite verse this month. Baptist Church in Montgomery, sent in Equine Industry Leader Award, induction some verses that he says keep him going into the Alabama Cattlemen’s Association “Make yourself an ark of gopher- and highly motivated. Pastor Finch says Hall of Fame, and recognition as a 2005 wood; make rooms in the ark, and that he wants to be faithful in waiting on AQHA Best Remuda Regional Finalist. cover it inside and outside with the Lord to lead him and that he wants the The Best Remuda Award began in 1992 pitch. And behold, I Myself am bring- strength to follow God’s leading. and has since recognized outstanding ing floodwaters on the earth, to ranches for their efforts in raising Ameri- destroy from under heaven all flesh Have you not known? Have you not can Quarter Horses, an important tool of in which is the breath of life; every- heard? The everlasting God, the their trade. Any ranch that has five or thing that is on the earth shall die.” Lord, The Creator of the ends of the more American Quarter Horse mares used earth, Neither faints nor is weary. to produce horses for ranch work and is Genesis 6:14 and 17 His understanding is unsearchable. He gives power to the weak, And to an AQHA Ranching Heritage Breeder is eli- Lynn Bloodsworth, who serves as those who have no might He gible for this award. The award will be for- Administrative Assistant for the Alabama increases strength. Even the youths mally presented to the Bartlett Ranch Fellowship of Christian Athletes, the verse shall faint and be weary, And the during the 2016 Working Ranch Cowboy’s she furnished is perfect for this issue: Association World Championship Ranch young men shall utterly fall, But Rodeo held Nov. 10-13 in Amarillo. Bartlett Whatever you do, work at it with all those who wait on the Lord Shall Ranch will also be recognized during the your heart, as working for the Lord, renew their strength; They shall 2017 National Cattlemen’s Beef Associa- not for human masters, since you mount up with wings like eagles, tion Convention. know that you will receive an inher- They shall run and not be weary, Zoetis is the proud sponsor of the Zoe- itance from the Lord as a reward. It They shall walk and not faint. For I, tis-AQHA Best Remuda Award. AQHA Cor- is the Lord Christ you are serving. the Lord your God, will hold your porate Partner Zoetis cares about the right hand, Saying to you, ‘Fear not, well-being of horses and understands the Colossians 3:23-24 I will help you.’ Isaiah 40:28-31 serious consequences of disease. Founded and 41: 13 Francesis “Cricket” Katsos, a Paralegal in 1940, the American Quarter Horse who also serves as Office Manager for And now, behold, the Lord has kept Association is the largest equine breed O’Leay Associates, located in Lexington, me alive, as He said, these forty-five organization in the world. With headquar- S.C., sent in her favorite verse for years, ever since the Lord spoke this ters in Amarillo, AQHA has a membership this issue. word to Moses while Israel wan- of more than 260,000 people in 86 coun- dered in the wilderness; and now, tries and has registered more than 5 The LORD is more pleased when we here I am this day, eighty-five million horses in 95 countries. For more do what is right and just than when years old. news and information, follow @ we offer him sacrifices. AQHAnews on Twitter and visit www. Joshua 14;10-11 aqha.com/news. For more information on Proverbs 21:3 Bartlett Ranch, you can visit www. My friend Cecil Spear furnished a verse bartlettranch.com. for this issue. As I have mentioned previ- I am a partner with my daughter Julie in ously, Cecil works for Trinity Industries Double B Ranch, located in Montgomery, XXVII. and has one of the best jobs in the U.S. All AL and we both have a real love for horses. Cecil does now is take folks who either CLOSING Julie competes in cutting horse competi- work for Trinity or are good customers to tions and has done quite well. I help feed OBSERVATIONS play golf at Shoal Creek in Birmingham. the horses and clean stables and do what- That’s pretty hard to beat and he actually ever needs to be done when Julie is gets a salary. unavailable. The Political Rise Of The Donald Julie and Dr. Bartlett are good friends Jesus Christ is the same yesterday, and she insisted that I write about this tre- today, and forever. I have watched the political rise of mendous award and the many successes Donald Trump over the past several Dr. Bartlett and his vast operation have Hebrews 13:8 months and must say that he caught all of had. My friend Carol Brown also told me the so-called political experts off guard. LaBarron Boone, a lawyer in our firm, that I should include a good “horse story” My wife Sara warns me not to write about was a graduate engineer (Auburn Univer- in this issue. She too is a good friend of Dr. politics, but I really can’t resist writing sity) before he decided to go to law school. Bartlett’s. Hopefully, this change of pace about “The Donald.” I find Trump’s rise to All of us at Beasley Allen are mighty glad from law will be of interest to our readers. prominence in the political arena to he made the decision to be a lawyer. be quite interesting and also quite scary. I sensed months ago that there was a great

JereBeasleyReport.com 37 deal of unrest in our country and that lots and totally ineffective—actually made him their decision-making process. What the of folks were unhappy with most all politi- even stronger with his base. next president does and how he or she cians and generally dissatisfied with both Trump’s attacks on his opponents does things is so critically important to political parties. I also recognize that “neg- always put a special label on them. Who America’s future. We are literally at a ative stuff” sells well in the political arena could forget about “Little Marco” and crossroads in our nation and we must take and that’s been proven to be true on many “Lying Ted?” Trump made it apparent the right direction for the good of our occasions. Obviously, Donald Trump also early on that Jeb Bush was dishonorable nation and for all of the American people. recognized that unhappy folks will and too weak to be President. Trump also We can’t afford to take the wrong road, respond to negative messages so long as convinced folks that Lindsay Graham, a and if we do, our nation will pay the con- there is a little bit of positive material good man and a powerful member of the sequences for years to come. We need a thrown in. U.S. Senate, was nothing more than a light- true leader, who not only knows how to When the GOP primary campaign weight. You will recall how the other can- lead, but will really lead our nation. began, I really didn’t believe Trump would didates were labeled and how effective come on like he has. All of the experts Trump’s attacks against them were. said the leaders were Jeb Bush, Marco Trump even compared Ben Carson, a Our Monthly Reminders Rubio and Ted Cruz, with several more well-respected medical doctor who candidates bunched together below the aspired to be president, to a “child If my people, who are called by my leaders. On the bottom rung of the ladder molester,” with absolutely no factual basis name, will humble themselves and was Donald Trump. Nobody paid any real for the charge. Dr. Carson has now joined pray and seek my face and turn attention to Trump’s candidacy when he the Trump campaign, which I find to be from their wicked ways, then will I announced. Most of the experts said he very interesting. Then there is Gov. Chris- hear from heaven and will forgive was in the race to get publicity tie, who tried hard to attack Trump, but their sin and will heal their land. and have fun. with no success. He now—with a totally 2 Chron7 :14 As I watched the first debates, I saw blank look—stands behind Trump at his how unprepared the other candidates rallies. I have to wonder what it took to All that is necessary for the triumph were to deal with Trump’s brash and self- get Christie on board. His deer-in-the- of evil is that good men do nothing. centered political style. As the weeks headlights stare at the rallies—always to passed, The Donald, with surgical preci- Trump’s right—is sorta weird, but funny. Edmund Burke sion, systematically eliminated his primary I have to wonder what Donald Trump’s opponents one by one. I wonder how label would have been if say Jeb Bush, an Woe to those who decree unrigh- many folks can name all of the 17 candi- honorable and capable man, had used that teous decrees, Who write misfor- dates who started the race. I suspect very tactic. I thought of a few possibilities for tune, Which they have prescribed. few will be able to do so. Jeb to use. For starters, how about “Dis- To rob the needy of justice, And to Trump has no real regard for the honest Donald,” “Devious Donald” or take what is right from the poor of truth—changes his positions on important “Dangerous Donald” or maybe even My people, That widows may be issues on a daily basis—has no substantive “Disastrous Donald?” Actually, I suspect their prey, And that they may rob policy—and during the GOP primaries, most of you could do a better job of the fatherless. nobody challenged and exposed him. It’s coming up with an appropriate label for a been evident that Trump’s personal man with Trump’s most interesting back- Isaiah 10:1-2 attacks on his opponents worked ground. Some who support Trump might extremely well. Those attacks by Trump say “Dandy Donald” or “Darling Donald” I am still determined to be cheerful made the news daily and the real issues would be the proper labels for their candi- and happy, in whatever situation I facing America were relegated to the back- date. But the real scary thing would be to may be; for I have also learned from ground. Thus far, Trump has evaded close hear the GOP nominee called “President experience that the greater part of scrutiny, but I suspect that is coming and Trump.” As they used to say in Clayton, our happiness or misery depends very soon. “Who woulda thunk it?” upon our dispositions, and not upon It will be most interesting to list In any event, the fall campaign between our circumstances. Trump’s initial positions on each impor- Hillary and The Donald will be most inter- tant issue and then see how his positions esting. I am convinced that neither candi- Martha Washington (1732—1802) have changed almost daily as the weeks date can afford to underestimate their passed. The only consistent feature of the opponent. To do so will be a major The only title in our Democracy Trump Campaign has been the candidate’s blunder. I sincerely hope that the general superior to that of President is the constant and relentless attacks on his election campaign will be one run on title of Citizen. opponents. As the primary season rolled issues rather than on personal attacks. on, it became very clear that all of the can- Sadly, our country is as divided today as I Louis Brandeis, 1937 didates—with the exception of Gov. John can ever recall. There are strong feelings U.S. Supreme Court Justice Kasich—were pretty much intimidated by of “hate” and “ill will” around the country Trump. Their campaigns floundered and that are quite evident and also quite scary. The dictionary is the only place that eventually sank. The Republican establish- Those feelings should never be the moti- success comes before work. Hard ment sat back, watched what was happen- vating factors in selecting a president. We work is the price we must pay for ing, and eventually realized that a badly need a leader who will be able to success. I think you can accomplish candidate they didn’t like or respect, who bring all of us together, unify the nation anything if you’re willing to pay started at 1 percent, was going to be their and be a real leader. the price. standard bearer. The party leaders I sincerely hope and pray that the appeared to be in shock and their efforts person selected in November to lead our Vincent Lombardi to derail Trump—which were disjointed nation will see the need to involve God in

38 BeasleyAllen.com We must all hang together, or assur- old enough to be my grandmother, but she with you. She was that person,” Lisa says. edly we shall hang separately. very much reminded me of my grand- “She enjoyed the simple things in life. mother, who was one of my very favorite Flower gardens, puppy dogs and just Ben Franklin people in the world. Over the years Genie being outside in nature. She would always At the signing of the Declaration of became a surrogate for that relationship in ask how my children were doing and more Independence my life and I cherished it so very much. I recently how our service dog was doing. could (and did) tell Genie anything. She She loved hearing stories about his latest was always there to listen and to give antics or what he did to take care of my sincere and good advice, especially after daughter. She adored dogs and would do XXVIII. having my first child. It isn’t common to anything that she could to help them. She find that person in the workplace, but I always said that she would have a hundred PARTING WORDS was lucky enough to find that in Genie,” of them if she could. Her spunkiness will she said. “Genie loved her children and be deeply missed by all here in her grandchildren and it was evident in Mass Torts.” Each member of the Beasley Allen everything she did. We often bonded over Genie was born on Aug. 28, 1948, to the family was saddened last month when we our pet stories and no one grieved with late Carey Davis Harper, Jr., and the late got the news that a longtime employee me like Genie did over the loss of my Mary Brook Putman Harper. She was and friend Genie Harper Pruett had beloved lab a few years ago. Genie loved raised in Montgomery and attended Lanier passed away. She died on Tuesday, May 10, big and everyone that she loved will feel a High School. She worked as a legal secre- after a courageous battle with pancreatic huge void in their lives. I know I do. I tary for more than 30 years. Genie was a cancer. Without a doubt, Genie’s response thank God for bringing Genie into my life beloved mother, grandmother and friend to cancer was filled with grace, hope and and I am so glad to know that I will see to many. She is survived by three children: peace. Genie was a Legal Secretary in the her again!” Patti Prickett Brewer (Shane), Michael Mass Torts Section for 18 years, working Frank Woodson, a lawyer in the Mass Prickett (Melissa), Jennifer Prickett Ayers primarily for Andy Birchfield, Mass Torts Torts Section, also mentioned Genie’s (Tommy); seven grandchildren: Savannah Section Head. She was a tremendously tal- ready smile and laugh as evidence of her Richardson Abrams (Jake), Hollie Ingram ented employee and a real asset to positive outlook on life. Although she was Moland (Zach), Sarah Harrison Popwell our firm. facing a serious cancer battle, Frank says (Dustin), Jessica Ingram, John David Harri- Benita Bunch, who worked with Genie Genie never complained. There was a son, Jake Prickett, Sam Prickett; and four for many years, recalls how Genie would powerful peace about her attitude, he great-grandchildren. greet her with a cheery, “Hey gal!” and a says. “She carried on with her life, and Genie enjoyed the outdoors, gardening, ready laugh. (This trademark greeting was was a wonderful example for us with her knitting and had a passion for dogs. In lieu mentioned to me by several folks who positive attitude throughout her battle of flowers, the family wanted those worked with Genie.) “Genie loved life, with cancer.” wishing to remember Genie to make a and it sounded through in her laughter,” The sentiment is echoed by so many donation to the humane shelter of their Benita says. “My life is better for having folks who worked with Genie at Beasley choice. A memorial service with Senior her a part of it. She was such a blessing Allen. “One of the biggest things I remem- Pastor Jay Wolf officiating was held at First and I count myself privileged to have ber about Genie is that it didn’t matter if Baptist Church in Montgomery, on worked side by side with her for a number you were having a bad day or just in a Friday, May 13. of years She is a part of Beasley Allen that mood, you always left her office with a The loss of Genie Pruett is felt by all of can never be replaced.” smile,” recalls Lisa Bruner. “She would us at Beasley Allen. The response to Kelli Alfreds began working as a lawyer quickly have you laughing about some Genie’s death made me realize that the in the firm’s Mass Torts section in 2002. observation she had made, or what she folks who work in any capacity at our firm Genie made an immediate and lasting thought about something. She had an are family. All of us will really miss Genie, impression on Kelli, and became an infectious laugh. She would laugh and it but we know that because of her faith, she important person in her life. “Life-loving. would make you laugh. You always knew is now in a much better place and will live Kindhearted. Trustworthy. Hilarious. where you stood with Genie. She didn’t eternally with her Lord and Savior Jesus Honest and direct. Loyal. REAL. These are worry about being politically correct and Christ. God blessed us to have Genie with the words that come to mind when I think would tell it like it is. Sometimes you just us for 18 years; now she is with Him. of Genie,” Kelli says. “She wasn’t nearly need someone to be honest and upfront

To view this publication on-line, add or change an address, or contact us about this publication, please visit our Website: BeasleyAllen.com

No representation is made that the quality of legal services to be performed is greater than the quality of legal services performed by other lawyers.

JereBeasleyReport.com 39 218 COMMERCE STREET (36104) PRESORTED POST OFFICE BOX 4160 STANDARD MONTGOMERY, ALABAMA 36103-4160 U.S. POSTAGE (334) 269-2343 PAID TOLL FREE MONTGOMERY,AL (800) 898-2034 PERMIT NO.275 TELECOPIER (334) 954-7555 WEB PAGE www.BeasleyAllen.com RETURN SERVICE REQUESTED

Jere L. Beasley, Principal & Founder of the law firm Beasley, Allen, Crow, Methvin, Portis & Miles, P.C. is one of the most successful litigators of all time, with the best track record of verdicts of any lawyer in America. Beasley’s law firm, established in 1979 with the mission of “helping those who need it most,” now employs over 75 lawyers and more than 175 support staff. Jere Beasley has always been an advocate for victims of wrongdoing and has been helping those who need it most for over 35 years. Jere Locke Beasley , founding shareholder of the law firm Beasley, Allen, Crow, Methvin, Portis & Miles, P.C., is one of the most successful litigators of all time, with the best track record of verdicts of any lawyer in America. Beasley’s law firm, established in 1979 with the mission of “helping those who need it most,” now

employs 44 lawyersNo representation and more is made than that the 200 quality support of services staff. to Jere Beasley has always been an advocatebe performed for victims is greater of than wrongdoing the quality of legal and services has been helping those who need it most for over 30performed years. by other lawyers.

No representation is made that the quality of services to be performed is greater than the quality of legal services performed by other lawyers.