e JERE BEASLEY REPORT February 2018 I. Street, Frank M. Johnson Jr. Federal estimated 300 people per year—who Building and United States Courthouse, died in an underride crash. CAPITOL Freedom Rides Museum, Holt Street In this type of crash, a car slides under OBSERVATIONS Baptist Church, Rosa Parks Museum the body of a large truck, rendering the car’s safety features mostly useless. • Scottsboro: The Scottsboro Boys Often, these accidents are fatal even at Museum and Cultural Center low speeds and include injuries like Alabama Landmarks Now Part Of Civil decapitation. But a way to minimize the Rights Trail • Selma: Brown Chapel AME Church, Edmund Pettus Bridge, Lowndes Inter- extent of these tragic injuries is within reach. As Ms. Durso says on her website Dr. Martin Luther King Jr. Day may be pretive Center, National Voting Rights Stop Underrides: over, but Alabama’s place in the new U.S. Museum and Institute, Selma Interpre- Civil Rights Trail is here to stay. The trail tive Center, Selma to Montgomery The technology is available to equip links “almost 130 museums, churches, National Historic Trail, The Sullivan every truck in this country with courthouses and other landmarks that and Richie Jean Sherrod Jackson Foun- underride protection. It’s not the were essential to the advancement of dation and Museum crash that kills—it’s the underride. social equality during the volatile 1950s • Tuscaloosa: Foster Auditorium at the Without underride protection on and 1960s.” Alabama’s share includes 10 University of Alabama trucks, every passenger vehicle is sites in Montgomery, seven in Selma, four in Birmingham and four in Tuskegee. • Tuskegee: Butler Chapel AME Zion The creation of the trail is the first time Church, Tuskegee Airmen National His- IN THIS ISSUE tourism departments from multiple toric Site, Tuskegee History Center, I. Capitol Observations...... 2 Southern states have worked together to Tuskegee University jointly promote civil rights sites. My II. Automobile News Of Note...... 2 friend Lee Sentell, Director of the Gov. Kay Ivey made Alabama’s trail Alabama Department of Tourism, stated: announcement on Jan. 15 at Dexter III. Purely Political News & Views. . . . .7 Avenue King Memorial Baptist Church. The subject of human rights has Other speakers at the church included IV. Legislative Happenings...... 7 never been more relevant. The Montgomery Mayor Todd Strange, Mont- landmarks in Birmingham, Selma gomery County Commission Chairman V. Court Watch...... 8 and Montgomery already attract Elton Dean and Joseph Carver, the vice visitors from Britain, Europe and president of the Montgomery Improve- VI. The National Scene...... 8 Australia as well as from the U.S. ment Association. You can go to www. VII. The Corporate World...... 9 Now that the South has a website civilrightstrail.com to obtain information that raises the visibility of minor about the trail. VIII. Whistleblower Litigation ...... 10 sites, we can expect more tourists Source: Montgomery Advertiser in Monroeville, Tuskegee and IX. Product Liability Update ...... 12 Scottsboro. X. Mass Torts Update...... 16 The two-year effort to create the trail II. began when National Park Service Direc- XI. Premises Liability Update...... 17 tor Jonathon Jarvis called for an inventory AUTOMOBILE of surviving civil rights landmarks. NEWS OF NOTE XII. Workplace Hazards...... 19 Georgia State University found 60 sites, and Lee Sentell “helped spearhead an XIII. Transportation...... 21 effort by TravelSouth USA to have the 12 XIV. Healthcare Issues ...... 22 Southern states in represents supplement Underride Guard Legislation For Large Trucks Would Save Lives the list with other worthy sites. The XV. Environmental Concerns...... 23 Alabama trail sites are: On Thanksgiving Day of 2004, Lois XVI. Update On Nursing Home Litigation . .26 • Anniston: Freedom Riders Durso got the call no mother ever wants National Monument to receive. A slippery road caused the car XVII. An Update On Class Action Litigation. .27 her daughter’s fiancé was driving to slide th • Birmingham: 16 Street Baptist under the side of a large truck traveling XVIII. The Consumer Corner...... 30 Church, Bethel Baptist Church, Bir- next to them, dragging their car down mingham Civil Rights Institute, Kelly the road in its rear wheels, crushing XIX. Recalls Update...... 32 Ingram Park 26-year-old Roya Sadigh to death. A new bill intended to reduce the XX. Firm Activities...... 34 • Monroeville: Old Courthouse Museum number of accidents like the one that XXI. Special Recognitions...... 36 • Montgomery: Alabama State Capitol, took Roya’s life was introduced by U.S. City of St. Jude, Civil Rights Memorial Senators Kirsten Gillibrand (D-NY) and XXII. Favorite Bible Verses...... 38 Center, Dexter Avenue King Memorial Marco Rubio (R-FL) on Dec. 12. The Stop Baptist Church Dexter Parsonage Underrides Act was introduced in Roya’s XXIII. Closing Observations...... 38 Museum, First Baptist Church on Riley memory along with the many others—an XXIV. Parting Words...... 39

2 BeasleyAllen.com vulnerable to underride crashes. in a California federal court. It’s alleged puter software that controls the 9-speed There is a solution that will save that the automaker’s 2017 and 2018 transmission. In addition, FCA executives countless lives. Chrysler Pacifica vehicles equipped with have confirmed that the company has a 3.6-liter V6 engine contain a design been working to refine the transmission, In fact, rear underride guards have defect that causes the vehicles to stall at according to the complaint. been mandated on large trucks since high speeds without warning. Claims are made in the suit under Cali- 1996, but despite a 2014 recommendation The complaint filed on Dec. 30 by lead fornia’s Consumers Legal Remedies Act from the National Transportation Safety Plaintiffs Ryan and Sarah Wildin alleges and its Unfair Competition Law. The com- Board (NTSB) suggesting front and side they would not have purchased their new plaint also asserts breach of implied war- underride guards would save lives, they 2017 Chrysler Pacifica, or they would ranty claims under the Song-Beverly still have not been mandated. To demon- have paid less for it, had they known Consumer Warranty Act and the Magnu- strate the value of underride guards, the about the defect. Allegedly the defect son-Moss Warranty Act, as well as an Insurance Institute for Highway Safety causes moving vehicles to shut down at unjust enrichment claim. The Wildins (IIHS) demonstrated the difference speeds as fast as 70 mph on the highway. seek to represent a nationwide class of between a guard and a skirt intended for The suit says: drivers who purchased or leased a 2017 aerodynamics. The first resulted in an or 2018 Chrysler Pacifica vehicle airbag deployment as in any front-end The stalling defect prevents the equipped with a 3.6-liter V6 engine and a collision, and the second resulted in a driver from operating the vehicle as 9-speed automatic transmission. They truck trailer resting on top of the front intended, which results in a range seek restitution, attorneys’ fees and costs, passenger seats. The proposed bill would of unsafe conditions, including the compensatory, exemplary and statutory improve the guidelines for preexisting inability to change speed or steer, damages plus interest, and declaratory rear underride guards and introduce often while in traffic and at high relief, and more. requirements for side and front under- rates of speed. Ryan and Sarah Wildin are represented ride guards. The putative class action comes after by Jordan L. Lurie, Tarek H. Zohdy, Cody According to the bill, one year after the R. Padgett and Karen L. Wallace of Cap- date of its enactment, a final rule requir- the National Highway Traffic Safety Administration (NHTSA) announced in stone Law APC. The case is Wildin et al. ing new trucks to be equipped with side v. FCA US LLC, (case number 3:17-cv- underride guards must be issued, and December it would follow up on a non- profit’s petition requesting that the 02594), in the U.S. District Court for the within two years after its passage, a final Southern District of California. rule requiring all existing trucks to be agency look into 57 customer complaints Source: Law360.com retrofitted must be issued. For front claiming their 2017 Chrysler Pacificas underride guards, the bill outlines a two- lost engine power without warning at year timetable for a final rule for new various speeds. One driver claimed the trucks and a three-year timetable for a vehicle lost power while traveling at 40 Tennessee May Become Into Dumping Ground final rule to require retrofitting mph on local roads, and another said the For Dangerous Cars older models. car stalled at 60 mph while driving in Data on victims of underride crashes a tunnel. It’s being reported that a new law in also would be required to be displayed NHTSA has not yet made a determina- Tennessee could put countless dangerous on a public website. Placing public safety tion on whether there is a defect. In their cars on the state’s roads by allowing over profit margin should not have to be suit, the Wildins allege that since they dealers to easily sell cars that are under something an industry is forced to do, but purchased their Chrysler Pacifica in Sep- safety recall. Consumer advocates are sadly, that appears to be the case. A guard tember 2016, they have experienced alerting the media and the public to the could have easily saved Roya Sadigh’s life symptoms of the alleged defect multiple problems. Andy Spears, who is with Ten- and countless others. Those in positions times and once while driving on the nessee Citizen Action, stated: of authority must recognize the risk of highway. As a result, they claim they’ve returned their vehicle for repairs twice, It basically makes Tennessee a underride crashes and eliminate this dumping ground for unsafe cars major safety hazard. but the alleged defect still is not fixed, the suit says. The complaint alleges Fiat that will kill people. And now Chris Glover is a lawyer in our Atlanta there’s an incentive for dealers in office who handles cases involving truck Chrysler knew of the vehicles’ problems from customer complaints posted online other states to ship their dangerous accidents. For more information about cars here to our dealers, because truck underride regulations and acci- in March 2016. The Wildins claim the automaker now we have a way to get rid of dents, contact him at 800-898-2034 or those cars. email [email protected]. should have known about the defect through its pre-market testing, through Sources: Stop Underrides, Marco Rubio, U.S. Senator, The Motor Vehicle Recall and Disclo- Kristen Gillibrand, U.S. Senator, Insurance Institute for complaints made to the NHTSA, and sure Act allows used car dealers to sell Highway Safety Data, Federal Register and National through other sources, and Fiat Chrysler vehicles under safety recall as long as the Transportation Safety Board should have warned drivers. buyer signs a disclosure form. Consumer This is not the first problem with the advocates like Spears argue a majority of 9-speed automatic transmission at issue buyers will overlook that sheet of paper, Fiat Chrysler Faces Class Action Over in this case. It has been “plagued” by con- which will likely be in a group of other Alleged Engine Defect sumer complaints since it was first intro- forms a person is asked to sign when duced in the 2014 Jeep Cherokee and buying a car. A putative class action has been filed 2015 Chrysler 200. FCA has also released against Fiat Chrysler Automobiles (FCA) multiple service bulletins about the com-

JereBeasleyReport.com 3 Spears said the law reverses important lane and hit him. His lawsuit says he has Nissan, Subaru and Tesla. Automakers protections for car buyers and puts every had to take disability leave from his job were to provide specific models driver on the road at risk. He added: due to the injuries. to NHTSA. The accident occurred in San Francisco Takata’s air bags have prompted one of Previously, the Consumer Protec- on Dec. 7 while the GM vehicle was in the largest recalls in U.S. history. There tion Act in Tennessee would’ve self-driving mode, according to the com- were roughly 34 million vehicles under allowed you to have at least a plaint. Nilsson said the car indicated it recall as of November 2017, according to cause of action and t would’ve dis- was merging left, so he drove straight NHTSA. The recalls are being conducted couraged dealers from selling the ahead once the car had cleared lanes. It’s in phases based on vehicles’ location and most dangerous cars. Now all they alleged that the vehicle then swerved age. The recent additions bring the total have to do is give you a form that back into the original lane, knocking number of Honda and Acura automobiles says we know this car is unsafe, Nilsson over and causing his injuries. under recall to almost 12 million, the you may not be able to get it fixed, Interestingly, GM reported a different company said. but we’re going to sell it to you version of events to California’s Depart- As we have previously reported, the anyway. If you sign that, you can’t ment of Motor Vehicles. The automaker defective air bags have caused at least 11 hold the dealer accountable later. said the car was driving in the middle of deaths in Honda vehicles. The ammo- It appears the law was passed in a three one-way lanes when it attempted to nium nitrate that inflates the bags can rather strange manner. Reportedly, merge into the left lane. The minivan fire by mistake, especially in high humid- during the legislative session, Senator ahead of the car slowed down, and the ity, blasting chemicals and shrapnel at Frank Nicely (R) amended an unrelated GM vehicle abandoned its attempt to passengers and drivers. Takata is facing bill, essentially deleting the subject of the merge, the report said. The report from multidistrict litigation, regulator actions, bill and replacing it with the recall law. GM stated: criminal investigations and a Chapter 11 bankruptcy as a result of the air bags. Spears said that individuals who typi- While the car was “re-centering” cally follow automotive legislation in Ten- The company has pled guilty to wire itself in the middle lane, a motorcy- fraud, agreed to pay $1 billion in fines nessee had no idea such a bill was being cle that had passed between two considered. The law passed quickly and and restitution, and acknowledged that it vehicles in the center and right ran a scheme to use false reports and with strong support from the Automotive lanes hit the side of the car and Association. Spears said further: other misrepresentations to convince toppled over, scuffing the side of the automakers to buy air bag systems that This is the first state in the nation vehicle, the report said. The self- contained faulty, inferior or otherwise to pass a law this dangerous. These driving car had been keeping pace defective inflators. types of laws were denied in Cali- with surrounding traffic at 12 mph In May, Toyota, Subaru, Mazda and fornia, Maryland, and Virginia. So while the motorcycle was traveling BMW became the first four automakers to other states have seen this law but 17 mph, the report said. exit the multidistrict litigation after rejected it when they found out Nilsson is represented by Trinette G. agreeing to pay a combined $553.6 what the law does. Kent and Sergei Lemberg of Lemberg Law million settlement. The auto companies have pointed to Takata’s guilty plea and Spears says the only way for Tennessee LLC. The case is Oscar Willhelm Nilsson vs. General Motors LLC, (case number the settlement as a “game changer” that consumers to protect themselves now absolves them of most of their liability to that the law has passed is to do their own 3:18-cv-00471) in the U.S. District Court for the Northern District of California. consumers in the case. They maintained research. Individuals should run the VIN that they did not know the air bags were Source: Law360.com number of any car they are looking to faulty when they installed them buy through www.safercar.gov. No in vehicles. person should buy a car under safety NHTSA maintains a list of vehicles recall and neither should any dealer Takata Air Bag Recalls Now At 4.4 Million affected and guidance on steps to take if sell one. a car is affected. To find out if a vehicle is American Honda Motor Co. and Toyota on the recall list for defective Takata air Motor North America Inc. are recalling bags, visit the NHTSA website. All defec- an additional 1 million vehicles equipped GM Hit With First-Known Suit Over Self- tive Takata air bags are under recall and with Takata Corp. air bags that pose an Driving Car Crash will be replaced at no charge. NHTSA has explosion risk. This comes after Takata in an online lookup tool where drivers can early January recalled another 3.3 million It appears that General Motors LLC has enter a Vehicle Identification Number air bag inflators with the defect. The become the first automaker to be sued (VIN) to determine if any safety or recall latest recalls of roughly 465,000 Honda over an accident involving a self-driving issues affect their vehicle. The full list of and Acura and 600,000 Toyota and Lexus vehicle. The suit arises from an incident vehicles affected by the air bag recall, vehicles are part of the third phase of where a motorcyclist was injured when broken down by manufacturer, is also Takata air bag recalls announced by the one of GM’s vehicles veered into his lane available on the NHTSA website. and knocked him to the ground. Motorcy- National Highway Traffic Safety Adminis- Sources: Law360.com and CNN cle driver Oscar Willhelm Nilsson says he tration (NHTSA). This latest recall covers attempted to pass a Cruise Automation frontal air bags in certain 2009, 2010 and 2016 Chevrolet Bolt when the vehicle 2013 vehicles made by Honda, Toyota, began to switch lanes. He says the car Audi, BMW, Daimler Vans, Fiat Chrysler, suddenly swerved back into its original Ford, General Motors, Jaguar-Land Rover, Mazda, Mercedes-Benz, Mitsubishi,

4 BeasleyAllen.com Takata Bankruptcy Disclosures Approved cient. The trustee said that information VW Settlements Should Not Affect After Numerous Changes was already included in the document, Emissions Suits but wasn’t in an easily understood format. The Chapter 11 disclosure statement After addressing all of the objections, We have reported extensively on the for Takata, the bankrupt vehicle safety Judge Shannon said the disclosure state- blatant cheating by Volkswagen, Audi and equipment maker, has now received ment would be adequate and granted Porsche relating to the installation of court approval. Before making his deci- approval of the document pending the illegal “defeat devices” to cheat on vehi- sion, U.S. Bankruptcy Judge Brendan L. ordered modifications. The judge stated: cles’ emissions tests. Two counties in Shannon considered more than two Florida and Utah have asked a California dozen requests for modifications made by Having walked through each of the federal court to keep alive their claims creditors, tort Plaintiffs and the federal objections, I am prepared to find against the automakers in multidistrict lit- bankruptcy watchdog. The company had the disclosure statement satisfies igation. The claims are not barred by the filed an amended disclosure statement the requirements of the bank- Clean Air Act or by settlements Volkswa- that included numerous additional disclo- ruptcy code. gen previously reached. sures requested by the objecting parties. The Environmental Protection Com- The complex plan of reorganization Judge Shannon, at a hearing, heard the mission of Hillsborough County, Florida, proposed by Takata would see the bulk of remaining objections from the official and Salt Lake County, Utah, asked the its assets sold to competitor Key Safety committee of unsecured creditors, the court to reject the automakers’ bid to Systems for about $1.6 billion, with most official committee of tort claimant credi- have their suits dismissed. The past set- of the proceeds going to satisfy restitu- tors and the U.S. trustee, among others. tlements or fines paid by Volkswagen tion obligations imposed by the U.S. Various issues were presented at the should not be a viable reason to deny the Department of Justice (DOJ). The govern- hearing to the judge. The tort claimant counties’ claims. ment settlement calls for a restitution committee’s representative, James Stang Volkswagen should be fined as much as fund of $850 million to pay claims to of Pachulski Stang Ziehl & Jones, laid out $5,000 a day for its eight years of miscon- OEMs financially harmed by the debtor’s more than 25 pages of objections to indi- duct, and is now paying less than half faulty airbags and a $125 million fund to vidual passages in the disclosure that, the counties claimed. Salt Lake cover personal injury and wrongful death statement. County’s lawyer Colin King of Dewsnup claims. A federal judge in Michigan Judge Shannon agreed with some of King Olsen Worel Havas Mortensen appointed a special master to oversee dis- the requests by the tort claimants for told Law360: tributions of those funds. The plan would added disclosures, including requests for also create the personal injury and more information about nondebtor enti- These defendants have paid wrongful death trust, funded by the ties that will be getting third-party nothing to these counties; the fact debtor and the OEMs, to satisfy the hun- releases under the plan and a list of docu- the defendants have settled with dreds of claims made by those injured or ments relating to the global transactions others does not justify them escap- killed as a result of the faulty airbags. contemplated under the plan. The judge ing accountability under our laws Takata will reorganize around its also said that additional disclosures they intentionally and fraudulently retained assets and the company will con- would not be necessary from Takata with violated and for the harm they tinue operations for several months to regard to the opt-in and opt-out provi- caused to the counties and our complete the manufacture of replace- sions of the solicitation package. county residents. ment airbag kits to satisfy the recall of It should be noted that the features millions of vehicles with the faulty The counties correctly take the posi- would allow tort claimants to participate airbags. The company filed for Chapter tion that Volkswagen’s past settlements in a trust created under the plan that 11 protection in June of 2017. This came can be taken into account if the trier of would result in their claims being satis- after the government investigation into fact and courts are ultimately tasked with fied from a “pot of money” contributed Takata’s faulty airbag inflator devices determining an appropriate amount to by the debtors and the original equip- resulted in the DOJ settlement. The pay the counties, but the mere existence ment manufacturers (OEMs) participating defect led to the largest recall in Ameri- of those past settlements should not bar in the trust. The OEMs are the vehicle can automotive history and has been the counties’ claims. The counties also makers that sold cars with defective directly implicated in a dozen deaths. contended that their claims are not pre- Takata airbags. A hearing on confirmation of its pro- empted by the Clean Air Act (CAA), as It should be noted that the trust for tort posed Chapter 11 plan is set to begin on Volkswagen had claimed. The CAA essen- claimants would be subject to a channel- th the 13 of this month. If you need more tially created a partnership between the ing injunction that directs those claims to information on the effect of the bank- state and federal authorities when enforc- the trust and would preclude those claim- ruptcy in claims, contact Chris Glover, a ing emissions standards, and the U.S. ants from pursuing the claims outside of lawyer in our firm’s Personal Injury & Environmental Protection Agency (EPA) the trust unless they opted out of the Products Liability Section, at 800-898- has “encouraged” states to enforce their trust when voting on the plan. The U.S. 2034 or by email at Chris.Glover@beas- own laws against tampering with emis- trustee asked for additional information leyallen.com. Chris is handling claims sion control systems, the counties argued. that explains the channeling injunction against Takata and several automakers By cutting the EPA’s budget, the Trump more directly so non-attorney parties involving the defective airbags. administration has required the states to could better understand it. Judge Source: Law360.com take a large role in enforcing the Clean Shannon agreed with the trustee’s Air Act. As subdivisions of Florida and request and said that a paragraph describ- Utah, the counties therefore have a ing that aspect of the plan would be suffi- responsibility to regulate air pollution. By

JereBeasleyReport.com 5 tampering with its vehicles’ emissions tests and to end the investigation by the when new so-called voluntary consensus controls for nearly a decade, VW made it Canadian Competition Bureau, an inde- standards are put out by private organiza- more difficult for the counties to attain pendent law enforcement agency, into tions that have historically developed and baseline air quality standards, cheated their marketing practices. If approved by recommended safety and design stan- the effectiveness of their inspection and the courts, the settlement will divide up dards for the automotive industry. The maintenance programs and threatened CA$290.5 million between 20,000 Cana- study correctly states that Congress does the health of their citizens. dian drivers and lessees of certain 3.0- not require updates. The private organi- Volkswagen representative Jeannine liter diesel vehicles in buyback, repair zations that develop standards include Ginivan said in a statement that the court and restitution payments. the Society of Automotive Engineers, the previously rejected claims by the state of The bureau also reached a consent American National Standards Institute Wyoming for being preempted by federal agreement with Volkswagen Group and the American Society for Testing and law, and should consequently reject these Canada Inc. and its Audi unit that Materials. local claims as well. But Hillsborough requires the automakers to pay a fine of In its “Modernizing Federal Motor County, represented by Archie Grubb, a CA$2.5 million. The government and Vehicle Safety Standards” report, CEI says lawyer with Beasley Allen, says the differ- automakers negotiated the fine after the regulators’ failure to revise outdated stan- ence is that that the vehicles in this bureau found that Volkswagen and Audi dards that have been locked into law ulti- instance were subject to post-sale emis- misled consumers into falsely believing mately denies manufacturers and sions control changes. Archie stated: their vehicles had “clean” diesel engines consumers the latest in vehicle produc- with lower emissions than their gasoline tion practices and technologies, many of The post-sale modification issue counterparts. The bureau also found that which are intended to boost safety. The was not addressed in the Wyoming Porsche Cars Canada Ltd. misled consum- report says: order, and we believe these modifi- ers by claiming their vehicles complied cations to used Volkswagen vehicles with federal emissions standards. The current failure to modernize remove Hillsborough’s claims from In December 2016, Volkswagen Canada motor vehicle safety regulations to the umbrella of Clean Air Act also reached a CA$2.1 billion settlement, reflect the latest consensus techni- preemption. one of the largest consumer settlements cal standards denies American automakers and consumers supe- The counties also countered Volkswa- in the country’s history, to resolve class claims with about 105,000 owners of rior and likely safer vehicle technol- gen’s contention that their regulations ogies. With the deployment of don’t apply to its conduct. It should be vehicles that have certain 2.0-liter diesel engines. At the time, the automaker also automated vehicles on the horizon noted that a Utah regulation bars anyone and their promise of far safer from tampering with emission control agreed to pay a CA$15 million penalty. The settlement covers 2013-2016 Volk- driving, failing to address this devices, and a Hillsborough County regu- problem could result in legal prohi- lation bars the installation of swagen, Audi and Porsche Cayenne 3.0L diesel vehicles, according to a Volkswa- bitions on safer technologies, which defeat devices. would needlessly result in increases Hillsborough County is represented by gen statement. It also provides cash pay- ments to owners and lessees of 2009-2012 in automotive fatalities, injuries, Dee Miles and Archie Grubb from our and property damage. law firm, along with Gardner Brewer Volkswagen and Audi 3.0L diesel vehi- Martinez-Monfort PA and the Law Office cles, as well as other buyback, trade-in The report singles out one such stan- of Thomas L. Young PA. Salt Lake County and early lease termination options. dard in the FMVSS related to headlamps is represented by the Office of the Salt The consumers were represented by that requires cars to have separate and Lake County District Attorney and Reidar Mogerman of Camp Fiorante Mat- distinct high and low beams. It’s an out- Dewsnup King Olsen Worel Havas thews Mogerman LLP, Michael Peerless of dated standard, according to CEI, that Mortensen. The case is In re: Volkswa- McKenzie Lake Lawyers LLP, Sylvie De blocks car manufacturers from installing gen “Clean Diesel” Marketing, Sales Bellefeuille of Option Consommateurs adaptive driving beam, or ADB, head- Practices and Products Liability Litiga- and David Assor of Lex Group Inc. lamps that can automatically adjust tion, (case number 3:15-md-02672), in Source: Law360.com beams to minimize glaring light toward the U.S. District Court for the Northern oncoming and leading vehicles. District of California. If you need addi- As a result, the report says, American tional information on this subject, Old Standards Holding Back Auto Safety consumers are being denied “superior contact Archie Grubb, a lawyer in our Advancement and likely safer headlamps” that have firm’s Consumer Fraud & Commercial Lit- already been available in Europe for igation Section, at 800-898-2034 or by Federal regulators’ failure to routinely years. Marc Scribner, CEI senior fellow email at [email protected]. update motor vehicle standards to keep and author of the report, said in a Source: Law360.com up with technological advancements and statement: industry best practices hampers the deployment of safer driving technology, When it comes to auto safety stan- including automated or self-driving cars, dards, regulators must be faster to VW, Audi And Porsche Agree To $235 according to a report released on Jan. 9. revise regulations so that they stay Million Canadian Emissions Settlement The Competitive Enterprise Institute current with rapidly changing tech- (CEI), a Washington, D.C.-based nonprofit nology and don’t prolong hazard- Volkswagen Canada, Audi and Porsche ous situations for decades. have agreed to pay CA$293 million ($235 public policy organization, says Congress million) to settle class claims alleging should require updates to the Federal CEI says Congress should enact a regu- they rigged vehicles to cheat emissions Motor Vehicle Safety Standards (FMVSS) latory-update trigger mechanism for

6 BeasleyAllen.com FMVSS, so that whenever there’s a revi- A Political Year In Alabama focus on the state’s two budgets. That has sion to voluntary consensus standards to be the top priority. The Legislature incorporated into federal regulations, the There will be a number of statewide must also address issues ranging from National Highway Traffic Safety Adminis- offices up for election this year, including prison health care to the state’s Chil- tration (NHTSA) would have to start the governor, lieutenant governor and other dren’s Health Insurance Program. Both process for amending the applicable reg- executive offices. House and Senate seats issues were discussed by Gov. Ivey in her ulations or explain why it’s choosing not will also be on the ballot. A number of State of the State address. The Governor to do so. The report says: judicial positions are up for election, did a tremendous job of setting out her including the chief justice of the Alabama agenda for the 2018 legislative session. It is without dispute that the out- Supreme Court and several more appel- The following are some of the more dated voluntary consensus stan- late seats. important items on that agenda: dards incorporated throughout the Code of Federal Regulations pose a • Supporting Alabama’s education system policy challenge. If private stan- from Pre-K to the workforce will be a The Alabama Legislature Must Balance dards are to be used in lieu of gov- priority; Work And Politics ernment unique standards—and there is a strong argument for • Ensuring the needs of our state’s rural It’s been said that a political year with citizens are being met and providing doing so—regulatory agencies must the Alabama Legislature in session makes do a better job of ensuring that reg- proper care and facilities to those lots of folks in my home state very incarcerated in Alabama; and ulated entities are governed by nervous. Hopefully, the performance by modern best practices. members of the House and Senate this • Badly needed pay raises for state Congress has largely neglected to year will negate any apprehension over employees and teachers. Alabama state address the problem involving outdated the lawmakers being in Montgomery. The employees have not received a cost-of- standards. The lawmakers have the leadership of both chambers appears to living increase since 2009. Alabama responsibility to design legislative mecha- be dedicated to getting down to work teachers and education employees have nisms to keep up with technological and having a successful session. I believe gotten two cost-of-living raises during advancements and industry standards. this will be a good session and hopefully that span. that will be the case. Outdated standards can be used by auto- • The Department of Corrections has makers to the disadvantage of people asked for a $30 million supplement to who deserve safety on our highways. this year’s budget and a $50 million Quite often the standards require much IV. increase for next year. Most of the less than the internal standards followed LEGISLATIVE increase would go to expanding health by automakers. care services for prisoners, a move Source: Law360.com HAPPENINGS prompted by a federal judge’s ruling that mental health care is “horren- dously inadequate.” Corrections Com- The Alabama Legislature Comes To Town missioner Jeff Dunn said he does not III. expect a prison-building proposal this PURELY POLITICAL The Regular Session of the Alabama year. For the last two years, lawmakers Legislature started on Tuesday, Jan. 9 and have rejected plans to issue bonds to NEWS & VIEWS this Legislature will face lots of problems build prisons. that badly need to be addressed. The members of the House and Senate are • Funding for the Alabama Medicaid The National Scene hoping for a quick session that will allow Agency is always a key issue. Medicaid them to get on the campaign trail for consumes more than one-third of the I don’t believe we have seen in many state elections in November. However, General Fund. Close to 1 million Ala- years a more confused and unstable situa- there are several critical issues that can’t bamians receive some services from tion in our nation’s capital. In fact, it may be ignored. Medicaid. Slightly more than half are well be the worst ever. Sadly, things may This is an election year in Alabama for children. Lawmakers used $105 million get worse if that’s possible. The Trump all 140 legislative seats, and also for the in BP oil spill money to prop up this Administration has an agenda that favors governor’s office and other statewide year’s budget and that won’t be avail- the rich and powerful, with little if any offices. Campaign considerations are able for next year. A $53 million carry- regard for middle-income families and for bound to influence what legislation is over into next year, however, will help the poor among us. All of this is a recipe proposed and passed during the session. offset Medicaid’s need for state for a national disaster. It’s disturbing to Gov. Kay Ivey gave her first State of the more money. see capable members of the House and State address outlining her agenda and • Congress has not reauthorized funding Senate either marching in lock step with she hit a home run. While it was a politi- the president or sitting back quietly and for the Children’s Health Insurance cally charged talk, it didn’t come across Program, known in Alabama as ALL allowing bad things to happen. Political as “political.” Instead, it was a combina- courage is a rare commodity in Washing- Kids. Federal funds have fully paid for tion of concern and sincerity in laying out the program the last two years. If Con- ton these days. We need more folks like a plan for our state. Richard Shelby, Lindsey Graham, and gress does not fully fund it this year, While the upcoming elections will be Alabama lawmakers would have to Dick Durdin in the U.S. Senate. on their minds, the Legislators must first

JereBeasleyReport.com 7 appropriate about $53 million in state VI. caused by the BP oil spill, the largest funds to sustain the program. That environmental settlement in U.S. history. could significantly affect other pro- THE NATIONAL Florida was promised an exemption grams, including the requested SCENE from offshore drilling by the new admin- increase for prisons and pay raises for istration, but as of Jan. 18 had not state employees and teachers. received enough confirmation from Inte- rior Secretary Ryan Zinke that he would Governor Ivey’s goal for this legislative Did We Learn Nothing From The BP Spill? honor that promise to rest comfortably. session is to invest in our state’s future, Trump Wants To Expand Offshore Drilling In response, Florida Sen. Bill Nelson was provide for our people and to spend tax- blocking confirmation of three Trump It is said that those who cannot remem- payer dollars responsibly. I would give administration nominees until the issue is ber the past are doomed to repeat it, and Gov. Ivey an A+ for her State of the State resolved to the state’s satisfaction. it appears the Trump administration has a speech to the legislators and to the Do we really want to open the door to short memory. In early January the people of Alabama. Big Oil to put its profits ahead of the administration unveiled a plan that would My hope is for a productive legislative health of our oceans, putting at risk the radically expand offshore drilling to all of session with a good number of long- livelihoods and critical natural resources America’s coasts—from the west coast to standing problems being solved. Gov. of generations? What do you say? Ivey has the ability, experience and the Arctic Ocean, to the east coast and the Gulf of Mexico. Sources: League of Conservation Votors, The Hill, The intense desire to make positive things New York Times happen during this session of the legisla- When the Deepwater Horizon oil drill- ture. I predict that she, with the help of ing platform exploded in 2010, it killed the Legislative leaders, President of the 11 workers and set off the biggest oil Public Citizen Calls For Reversal Of Senate Dell Marsh and Speaker Mac disaster in U.S. history. The BP Oil Spill McCutcheon, will be successful. released nearly a million gallons of diesel Citizens United fuel into the Gulf of Mexico’s waters, and threatened the livelihoods of commercial Last month was the eighth anniversary fishing and shrimping operations and the of the U.S. Supreme Court’s unbelievably V. revenues of states and municipalities. bad Citizens United decision. In the all- Trump, all-the-time media environment, COURT WATCH The move to allow new offshore oil and gas drilling would lift a ban on this it’s easy to just consider that Trump alone type of drilling that was imposed by Pres- is the source of all of our political prob- ident Barack Obama in the wake of the lems, but that is not so. Even if Trump is $1.7 Million Verdict Upheld By Alabama BP Oil Spill. It also runs counter to the impeached or elects to leave office, our Supreme Court In Dollar General Case past administration’s—and the world’s— democracy will remain in crisis. There is move toward a clean energy future, and a root cause of the problems in Washing- The Alabama Supreme Court has undermines coastal communities already ton facing the American people and that upheld a $1.7 million verdict for a cus- challenged by sea level rise and erosion. is the unlimited spending in political tomer injured by a fall in a Mobile County If the plan goes forward, the Interior races. Robert Weissman, President of Dollar General store. On July 9, 2012, Department would open 25 of 26 regions Public Citizen, had this to say: 60-year-old Deborah Revette slipped and of the outer continental shelf, 94 percent fell at a Dollar General store in Mobile. So long as a handful of big money of which was blocked to drilling by the She filed suit and the case was hotly con- donors have outsized influence Obama administration. It would only tested for four years in Mobile County over who is elected and what is spare the North Aleutian Basin, which Circuit Court. debated in Congress, our democ- President George Bush protected in an Ms. Revette was represented by the racy will remain broken. And so executive order. Cunningham Bounds firm. Her lawyers too will the corporate oligarchy The governors of nearly all coastal said that the woman had slipped in clear maintain the power to block or states including New Jersey, Delaware, liquid laundry detergent and suffered leg impede the policies favored by over- Maryland, Virginia, North Carolina, South and shoulder fractures that required mul- whelming numbers of Americans— Carolina, California, Oregon, Washington tiple surgeries and nearly half a million from sharply raising the minimum and Florida have voiced their opposition dollars in medical bills. It was contended wage to addressing catastrophic to the proposed offshore drilling plans. that the store bore the blame due to Dol- climate change, from breaking up They point to the risk drilling poses to gencorp corporate policy that allowed Wall Street banks to expanding their states’ tourism, fishing and recre- insufficient safety inspections. Medicare to cover everyone. ational industries. The jury returned a verdict in favor of Alabama is well familiar with those I am not sure that regular everyday Ms. Revette and awarded her $1,725,000 risks. In the wake of the BP oil spill, folks understand the adverse effect of Cit- on Sept. 27, 2016. Dolgencorp filed notice Alabama suffered the devastation of its izens United on our political system in of appeal in January 2017. On Jan. 12, beaches, tourism industry and businesses this country. If we are going to solve the 2018, the Alabama Supreme Court throughout the state, suffering substan- problem of “Big Money” dominance of affirmed the verdict and the lower tial tax losses and environmental impacts. our elections, we must overturn Citizens court ruling. In 2015, Beasley Allen represented the United. The Supreme Court has given Source: AL.com State of Alabama and we reached an $18.7 corporations the same First Amendment billion settlement with BP for damages rights that people have under the Consti- tution. That is impossible to justify.

8 BeasleyAllen.com There is very little reason to believe The FDA Makes Drug And Device Makers VII. the currently constituted U.S. Supreme Happy Relating To Off-Label Policy Court will overturn that heinous deci- THE CORPORATE sion. Sadly, there is no reason to expect The U.S. Food and Drug Administration WORLD relief from the high court anytime soon, (FDA) has once again delayed a new which makes Public Citizen’s project to policy related to off-label promotion. win a constitutional amendment to over- When the drug and device makers that turn Citizens United all the more vital. have decried the agency’s approach are Federal Judge Issues Ruling In 2009 In the shadow of Donald Trump’s presi- happy that’s not a good sign. This move Colonial Bank Collapse Litigation dency, it is very easy to lose sight of the marked the third delay of a new FDA A federal judge has ruled that Pricewa- need to reverse Citizens United. Public policy for assessing the “intended use” of terhouseCoopers was negligent in the Citizen’s constitutional amendment move- drugs and devices. The concept looks at events that led to the 2009 collapse of ment, however, has made progress since whether products are intentionally being Colonial Bank. The judge found that the the high court handed down its decision promoted for unapproved uses, which world’s second-largest professional ser- in 2010. Public Citizen reports: can lead to criminal misbranding charges or False Claims Act (FCA) liability. In a vices firm could have done more prior to • With Nevada approving a resolution proposed rule on Jan. 12, the FDA said it the bank’s failure, which was caused by a this year, 19 states have passed resolu- intends to delay the new policy “until $2 billion fraud perpetrated by Florida- tions or the equivalent supporting a further notice.” The move follows a six- based mortgage lender Taylor Bean constitutional amendment. That’s half week delay announced in February and a & Whitaker. the total needed to win approval! one-year delay announced in March. In a 93-page decision issued last month, The disputed policy was contained in a U.S. District Judge Barbara Jacobs Roth- • More than 750 cities and towns across broader final rule regarding intended use stein wrote that Colonial was victimized the country have approved resolutions and tobacco regulation. Under the policy, by “one of the largest and longest-lasting in support. regulators said they would consider “the bank frauds in American banking history,” which PwC failed to detect. This • In 2014, there was majority support in totality of the evidence” when assessing led to a $2.8 billion cost to the Federal the U.S. Senate for the amendment. intended use. Industry groups quickly objected calling the approach “vague and Deposit Insurance Corp., which sued • Thousands of people turned out to overbroad.” PwC after it had given Colonial Banc- protest Citizens United at the Democ- Although industry groups praised the Group “clean audits” for years. However, racy Awakening demonstration in delay, their ultimate goal is to prevent the many of Colonial’s loans to Taylor Bean & Washington, D.C., in 2016, and tens of “totality of the evidence” standard from Whitaker were secured against non-exis- thousands have participated in similar ever taking effect. The FDA has acknowl- tent assets, leading to the failure during protests and actions around edged the opposition, but cautioned that the economic recession that began in the country. its delay “should not be construed to indi- 2008. The jury’s decision means PwC cate that FDA has made any decisions” could potentially face hundreds of mil- • Millions of Americans have signed peti- about the policy’s future. Hopefully, the lions of dollars in damages. Colonial was tions calling for the amendment. FDA will continue to work diligently on one of the 25 biggest banks in the U.S. at the time of its collapse, with more than Public Citizen is the people’s voice in the issues relating to intended use raised $26 billion in assets and offices in our nation’s capital. For eight years, in the underlying rulemaking and will Alabama, Georgia, Florida, Nevada Public Citizen has been leading the remain committed to rulemaking on this and Texas. nationwide movement to rescue our issue. Comments on the proposed delay Judge Rothstein rejected four of the democracy from billionaires and big busi- will be accepted until Feb. 5. Hopefully, five main claims made by the FDIC and ness by working to overturn Citizens the FDA will not be adversely influenced Colonial, and that numerous employees United. The advocacy group has helped by the powerful drug and device manu- at the bank “actively and substantially to move the issue to the mainstream of facturers and will protect consumers in interfered” with its audit. Pricewater- political discourse, an achievement that this matter. There have been far too many houseCoopers says it “looks forward to seemed absolutely impossible to many at abuses involving off-label use of drugs the damages phase where the FDIC will the time of the decision. and medical devices. th bear the burden of proof on what We badly need a 28 amendment to the Source: Law360.com remains of their inflated damages claim. U.S. Constitution to overturn Citizens Lee Farkas, the former chairman of Taylor United. Unfortunately, having to deal Bean & Whitaker, went to prison over the with a Congress and president who are fraud. Investigators found TBW was taking things in the opposite direction, running up overdrafts in the account it makes the job very tough, but not impos- used to fund mortgages and Colonial sible. If you want more information on employees hid them from regulators and this important matter, go to citizens.org auditors. Several Colonial employees also or call Public Citizen toll free at went to prison as a result of the case. 800-289-3787. Colonial was seized by the government as Source: Robert Weissman, President, Public Citizen

JereBeasleyReport.com 9 insolvent and sold to North Carolina- two-part test and the materiality These businesses now find their fate based BB&T Corp. standard. hanging in the balance as the Court of Source: AL.com, Wall Street Journal and The Tampa Federal Claims recently found in PDS Bay Times Medical Necessity and Potential First Consultants Inc. v. U.S. that “VOSBs must Cybersecurity FCA Case be given preference over AbilityOne con- tractors for VA contracts,” resulting in an The health care industry remained a appeal to the Federal Circuit. According VIII. leading source of government FCA recov- to the AbilityOne Commission, more that WHISTLEBLOWER eries in 2017. Medical necessity in partic- $3.3 billion in purchases were made ular remains one of the largest uncertain through the AbilityOne program, and the LITIGATION FCA issues. This past March, the Eleventh circuit court’s ruling could have an exis- Circuit heard oral arguments for U.S. v. tential impact on the program. GGNSC Administrative Services et al., Potential Government Contract Case and is poised to make a ruling on the Federal Contracting Ban Challenges Trends In 2018 issue. That case alleges hospice company AseraCare Inc. illegally billed the govern- In September of last year, the U.S. Following the U.S. Supreme Court’s ment for services to patients who were Department of Homeland Security (DHS) landmark Escobar decision two years not terminally ill. The district court directed federal civilian agencies to stop ago, many False Claims Act (FCA) issues found that the issue was based on a dif- using antivirus software from AO Kasper- remain unsettled. As a result, 2018 will ference of opinion about hospice care eli- sky Lab because of security concerns that bring prominent challenges to a national gibility. Additionally, the AseraCare case the company may have ties to the Russian security-related contracting ban, as well could see a ruling on the unresolved Government. Kaspersky sued DHS on as potential litigation over enormous issue of statistical sampling, which is Dec. 18, stating it has claimed for months recently awarded and imminent federal allowing damages or liability to be esti- that it does not collaborate with the deals. Government contractors would be mated based on a sample of claims. Russian government and claiming it was wise to watch out for these cases in the On another note, 2018 may see the first not given a fair chance to respond before coming year. Last year saw a number of ever cybersecurity-based FCA case. The DHS issued the ban. important contracts rulings, and 2018 federal government has increased its Kaspersky has minimal direct govern- will likely see more of the same. The fol- emphasis on cybersecurity over the past ment sales, but “its software is embedded lowing describes some of the most prom- few years, and the Department of in several other manufacturers’ hardware inent cases and potential legal battles to Defense amended the Defense Federal solutions that are used by the govern- stay alert for in 2018: Acquisition Regulation Supplement ment.” In broad terms, this case will (DFARS) in 2017 to require contractors to likely give both the government and Post-Escobar Cases “protect controlled information and federal contractors with foreign opera- promptly report breaches.” According to tions a better idea of “where they stand in In the Escobar decision, the U.S. many lawyers in this area of practice, this regard to similar potential bans from con- Supreme Court approved implied false is a particularly likely source of potential tracting outside of the formal debarment certification as a basis for False Claims liability because many federal contractors system.” The case is in the U.S. District Act liability. This ruling established that struggled to implement their compliance Court for the District of Columbia, claims can be brought against companies plans by the Department of Defense’s Kaspersky Lab Inc. et al. v. Department for mistakenly implying that they are (DOD’s) Dec. 31, 2017, deadline. The high of Homeland Security et al., case meeting the “contractual, regulatory and number of people within organizations number 1:17-cv-02697. statutory requirements by submitting responsible for DFARS compliance will claims for payment.” However, lower most likely be more whistleblowers Bid Protests and Post-Disaster courts are left with two new unsettled making claims under the False Contracting Enforcement issues: whether it is mandatory to apply Claims Act. the two-part test for falsity of claims out- It’s fairly common when agencies lined in the opinion, and how to deter- Competing Preference Programs announce a large contract award for mine if an alleged false claim is “material” unsuccessful bidders to make legal chal- to government payment. Despite dozens In its 2016 Kingdomware decision, the lenges. This was best “demonstrated by a of post-Escobar decisions in the district U.S. Supreme Court ruled that under a series of bid protest challenges to the U.S. and circuit courts, there is still no con- 2006 statute, the U.S. Department of Vet- General Services Administration’s recent sensus on these issues. erans Affairs must give preference on $50 billion multiaward Alliant 2 informa- More post-Escobar will be decided in contracts to veteran-owned small busi- tion technology contract.” Further, the 2018, hopefully bringing more clarity to nesses (VOSBs) “where at least two small DOD’s fifth repetition of its multiaward FCA relators and Defendants. Perhaps the businesses are expected to bid on a con- Logistics Civil Augmentation Program most prominent will be U.S. ex. rel. Rose tract” that can do the work at a reason- contract, or LOGCAP V, is expected to be et al. v. Stephens Institute, a recently able price. While the ruling was a victory the largest single contract award in 2018. argued case in the Ninth Circuit. This for VOSBs, it conflicts with the federal While the fifth iteration will not be quite case involves allegations that Stephens agency’s requirement to give preference as lucrative as LOGCAP IV, awarded in Institute, an Academy of Art University, for certain products and services to busi- 2007, “it will still be worth up to $82 paid illegal bonuses to student recruiters. nesses that are part of the AbilityOne billion over a decade,” making it ripe for The circuit court will address both the program, nonprofits that employ blind or legal challenges. significantly disabled individuals.

10 BeasleyAllen.com In addition, litigation under the FCA or the False Claims Act, which allows recovery obtained on behalf of the as a criminal action is highly likely with private parties to sue on behalf of the government. respect to the emergency contracting fol- government in cases of fraud. The whis- In the Kmart case, the lawsuit was filed lowing the string of hurricanes and wild- tleblower’s allegations were investigated in 2008 by a qui tam relator named fires in 2017, because contractors will by the U.S. Department of Justice and the James Garbe. Originally, the lawsuit was struggle to completely comply with the Department of Health and Human Ser- filed in federal court in Los Angeles, Cali- law in these exigent circumstances. With vices, Office of Inspector General, which fornia, but was later transferred to the “Congress poised to provide more than discovered that many of the claims United States District Court for the South- $130 billion in overall federal disaster Region 8 submitted for payment from ern District of Illinois. In the qui tam relief funds,” many lawyers say that long- 2004 to 2010 were for services that were lawsuit, Garbe alleged that Kmart phar- term disaster recovery and reconstruc- never provided or were provided by macies offered discounted generic drug tion contracts will likely see many of unqualified staff. The federal and state prices to cash-paying customers through their own legal challenges in 2018. governments backed the whistleblower’s various club programs but knowingly Further, federal agencies have recently claims. U.S. Attorney Hurst said in a failed to disclose those prices when taken an aggressive stance regarding statement: reporting to federal health care programs access to contractors’ technical data. This its usual and customary prices, which are could result in new bid protest litiga- Our children are among the most typically used by those programs to tion in 2018. valuable and vulnerable in our establish reimbursement rates. society, and it is imperative that we Source: Law360 The settlement agreement with the do all that we can to protect the Untied States is part of a global $59 programs that offer them the ser- million settlement that includes a resolu- vices that they need. The work we tion of state Medicaid and insurance Whistleblower Helps Mississippi Win Record do in combatting waste, fraud and claims against Kmart. Garbe, the qui tam False Claims Act Settlement abuse in government programs is relator, litigated the case after the govern- among some of the most important ment declined to intervene in the lawsuit A Mississippi mental health facility has work this office does, and we will agreed to pay the U.S. government and and he will receive $9.3 million. Donald continue to vigorously investigate S. Boyce, U.S. attorney for the Southern the state’s Medicaid program nearly $7 all allegations of fraud. million to settle a whistleblower lawsuit District of Illinois, stated: alleging it billed Medicaid for preschool The whistleblower who initiated the Pharmacies and other providers day-treatment services that it never pro- False Claims Act complaint against who receive funds from taxpayers vided or that were provided by unquali- Region 8 will receive more than $1 have a duty to follow the law. If fied personnel. Region 8 Mental Health million as a whistleblower award for health care providers do not Services, a publicly funded mental health helping the U.S. and the State of Missis- provide fair and transparent center based in Brandon, Mississippi, that sippi recover taxpayer funds. pricing as required under the law, provides mental health services across Source: U.S. Department of Justice the False Claims Act allows the gov- five state counties, will pay the Missis- ernment and whistleblowers to sippi Division of Medicaid $6.93 million ensure that the Medicare, Medicaid, to resolve the whistleblower allegations. Kmart Settles Whistleblower Lawsuit Over and TRICARE programs are The settlement is believed to be the Drug Overcharges For $32 Million made whole. largest False Claims Act health care settle- ment in Mississippi history, U.S. Attorney Kmart Corporation, a wholly owned Acting Assistant Attorney General Chad Mike Hurst said. subsidiary of Sears Holdings Corporation, A. Readler, on behalf of the Department’s The Mississippi Department of Mental has entered into an agreement with the Civil Division, added this statement: Health reports that nearly 35,000 Missis- United States Government to settle a sippi children and adolescents suffer This settlement should put pharma- whistleblower lawsuit by paying the gov- cies on notice that there will be con- mental health issues that are “severe and ernment $32 million. The claims are that persistent.” The state’s Medicaid program sequences if they attempt to Kmart stores with in-store pharmacies improperly increase payments from defines day treatment as “a behavioral failed to report discounted prescription intervention program, provided in the taxpayer funded health programs drug prices to Medicare Part D, Medicaid by masking the true prices that context of a therapeutic milieu, which and TRICARE, the health program for provides children/adolescents with they charge the general public for members of the U.S. uniformed services the same drugs. serious emotional disturbances the inten- and their family members. sity of treatment necessary to enable The claims were brought under the qui It’s quite apparent there is widespread them to live in the community.” Day tam provisions of the False Claims Act cheating and outright fraud involved in Treatment services covered by Medicaid (FCA). For those who may not know, the many federal programs. This is especially provide a vital service to the citizens of qui tam provisions of the Act allows true in programs such as Medicaid. This Mississippi, enabling the State’s youth to private citizens with knowledge of fraud is why whistleblowers are so critically live productive lives and grow to become committed against the government to important today to protect taxpayers. healthy, productive adults. “blow the whistle” on the parties com- The case against Region 8 started after mitting the fraud and bring a civil action a former employee filed a lawsuit on on behalf of the U.S. government. The behalf of the U.S. and state governments person bringing the suit is known as the under the whistleblower provisions of “relator” and is permitted to share in any

JereBeasleyReport.com 11 Dental Care Company To Pay $23.9 Million scandal that erupted in 2016. The settle- thing by reporting the fraud. If you have In Whistleblower Settlement ment, finalized on Jan. 12, brought an any questions about whether you qualify end to Wells Fargo’s appeal of a U.S. as a whistleblower, please contact an A dental management company and Department of Labor order compelling attorney at Beasley Allen for a free and more than 130 of its affiliates in 17 states the bank to reinstate the fired branch confidential evaluation of your claim. have agreed to pay $23.9 million plus manager, Claudia Ponce de Leon, and pay There is a contact form on our firm’s interest to settle civil charges that they her $577,500 in back wages, damages and website (Beasleyallen.com) or you may fraudulently billed the government for legal fees. That decision came almost a email one of the lawyers on our whistle- medically unnecessary dental services year after Wells Fargo reached a $185 blower litigation team: Archie Grubb, performed on children. The U.S. Depart- million settlement with federal regulators Larry Golston, Lance Gould or Andrew ment of Justice (DOJ) announced the set- and the Los Angeles City Attorney’s Brashier. You may contact one of the tlement last month. It’s very sad to learn Office resolving allegations over the lawyers by phone 800-898-2034 or by that the claims involved medically unnec- widespread misconduct at the bank. email at [email protected], essary dental services performed Wells Fargo and Ponce de Leon are to [email protected], Lance. on children. submit a copy of the settlement agree- [email protected] or Andrew. Kool Smiles dental clinics and their ment by Feb. 9. The settlement has a con- [email protected]. parent company, Benevis, formerly fidentiality agreement. known as NCDR, based in Marietta, Even though the Ponce de Leon matter Georgia, violated the federal False Claims is behind the bank, Wells Fargo has a Act (FCA) by billing state Medicaid pro- wider whistleblower problem on its IX. grams for medically unnecessary baby hands. In a regulatory filing last year, PRODUCT root canals, tooth extractions and stain- Wells Fargo said it is facing “multiple less steel crowns, as well as baby root single Plaintiff Sarbanes-Oxley Act com- LIABILITY UPDATE canals that were never performed, plaints and state law whistleblower according to the Justice Department. actions filed with the Department of It appears that from January 2009 to Labor or in various state courts alleging Products Liability & Personal Injury December 2011, the Kool Smiles clinics adverse employment actions for raising Section Litigation Update also routinely pressured and incentivized sales practice misconduct issues.” dentists to meet production goals Lawyers in our firm’s Products Liability through a system that disciplined “unpro- & Personal Injury Section handle cases ductive” dentists and rewarded “produc- involving catastrophic injuries and deaths A Most Useful CLE Program In Montgomery tive” dentists with substantial cash arising out of any type of accident, bonuses based on the revenue generated If you would like to learn more about including car crashes, 18-wheeler acci- by the procedures they performed. The whistleblower claims, Andrew Brashier dents and industrial and workplace acci- DOJ said that the clinics ignored com- from our firm will be speaking at “The dents. We have learned over the years plaints about the practice from their own False Claims Act Today,” a CLE program that many potential product liability dentists. hosted by the Federal Bar Association Qui claims are overlooked by all too many Three whistleblowers who filed the Tam Section, with support from the Asso- lawyers when investigating what many False Claims Act lawsuits—former Kool ciation’s Montgomery Chapter. The view as routine accidents. Smiles employees Adam Abendano, program is set for March 7, and will start In many motor vehicle crashes, some Poonam Rai and Robin Fitzgerald—will at 11:30 a.m. CT, at the Frank M. Johnson defect—either design or manufacturing— receive a combined $2.4 million for their U.S. Courthouse Complex in Montgom- played a major role in causing the acci- share of the recovery. Of the nearly $24 ery, Alabama. dent. A product liability claim focuses on million payment, about $14.2 million will This seminar will feature Assistant U.S. whether or not the product is defective. go to the federal government and about Attorneys from three separate federal dis- An entire product may be defective, or it $9.7 million to the states. Five lawsuits tricts, Jerusha Adams (M.D. Ala.), Deidre may be that a component part of the filed under the whistleblower provision Colson (S.D. Ala.), and Don B. Long III product contains the defect. The product of the False Claims Act started the investi- (N.D. Ala.); as well as The Honorable W. may well contain design, manufacturing, gation. Four cases are pending in the Dis- Keith Watkins, Chief Judge of the U.S. or warning defects. In some cases, it will trict of Connecticut and one is pending District Court for the Middle District of be a combination of these problems. in the Western District of Texas. Alabama; and Defense counsel Thomas Personal injury claims that don’t Source: Law.com K. Potter III of Burr & Furman. Registra- involve a defective product include heavy tion information is available at fedbar.org. truck litigation, slip and falls and automo- I will say more on this seminar in another bile accidents. Below are just a few of the type cases lawyers in the Section handle Wells Fargo Settles Whistleblower’s section of this issue. on a regular basis. Retaliation Case Cab Guards Wells Fargo & Co. has reached a settle- You Can Be A Whistleblower ment with a former branch manager who A hundred thousand pounds of timber claimed she was fired for blowing the Are you aware of fraud being commit- travels down the county roads and Inter- whistle on employees who had been ted against the federal government, or a states of this country. Most folks do not opening accounts without permission. state government? If so, you may be pro- realize just how dangerous these loads The sales-pressure conduct at issue was a tected and rewarded for doing the right are to the hard-working log truck driver

12 BeasleyAllen.com tasked with delivering these loads to the Mazda, BMW, Nissan, Chrysler, Audi, obligation to alert consumers to the sawmills and papermills. Most drivers Volkswagen and General Motors. Cole potential danger. themselves are often not aware of the Portis and Chris Glover in the Section are An often overlooked area of tire litiga- danger they are in from not being prop- involved in these cases. tion relates to tires manufactured for RVs. erly protected from their heavy cargo. A large RV typically seats up to six people Cab guards are supposed to be protect- Heavy Trucking Accidents and has a kitchen, living area, bathroom ing these drivers. The shiny, metal pieces and bedroom. Many are loaded with positioned behind the cab of almost There are significant differences pricey extras such as ceramic floors, every log truck in the United States are between handling an interstate trucking granite countertops and slide out sec- purchased with the belief they will case and other car wreck cases. It is tions that enlarge the motor home when protect cab occupants from cargo shift- imperative to have knowledge of the it is parked at a campground. ing forward and crushing the cab Federal Motor Carrier Safety Regulations, These heavy loads, coupled with during a crash. technology, business practices, insurance weight-shifting inside the RV, put too Cab guards, however, are woefully and coverages, and to have the ability to dis- much pressure on tires that are inade- inadequately designed because manufac- cover written and electronic records. quate for the load, resulting in sudden turers use weak aluminum instead of a Expert testimony is of utmost impor- tire failures. The problem is that RV man- stronger metal like steel. Lawyers in our tance. Accidents involving semi-trucks ufactures under-rate the axle weight of firm have successfully handled a number and passenger vehicles often result in their vehicles and equip them with tires of cases over the years involving defec- serious injuries and wrongful death. that can’t bear the load. The tire failures tive cab guards on big log trucks or any Trucking companies and their insurance typically occur in the front end of the RV, big truck hauling large and heavy loads. companies almost always quickly send which has only single tires on each side For more information about cab guards accident investigators to the scene of a instead of doubles. This is particularly and trucking injuries, contact LaBarron truck accident to begin working to limit dangerous because a front-wheel blowout Boone or Ben Baker in our Montgomery their liability in these situations. makes it almost impossible to steer. office at Labarron.Boone@beasleyallen. Chris Glover, a lawyer in the Section, The risk is compounded when the RV com, [email protected] or has represented numerous folks who owners load their vehicles with luggage, Chris Glover in our Atlanta office at have been seriously injured or lost a food, gasoline and passengers. Also, [email protected]. You can family member as a result of the wrong- because many RVs are used only a month call these lawyers at 800-898-2034. ful conduct of a trucking company. He or two a year, the tires are often old, most recently wrote and had published a heightening the risk of tread separation. Takata Airbags book that explains how to properly liti- The tire will pass inspection because the gate a heavy trucking case. The book is tread depth is fine, but it’s being run The drip, drip, drip of recalls related to titled An Introduction to Truck Accident during the summer during high ambient one of the worst worldwide automotive Claims: A Guide to Getting Started. The temperatures. It may be five or six years manufacturing fiascos in recent history book covers topics including the basics of old, and it’s not really designed for the continues. Just this week, Takata added trucking regulations and requirements, application for which it’s being used. an additional 2.7 million airbags to its how to prepare for your case, potential Those factors combined are a recipe recall list that apply to vehicles produced Defendants including the carrier, the for disaster. by Ford, Mazda and Nissan. During this broker and the driver; and common Lawyers in the Section have pursued same time, Honda confirmed another issues that arise in commercial vehicle lit- numerous claims against both tire manu- death connected to the exploding igation, such as hours of service, fatigue, facturers and importers of the defective airbags, bringing the total number of con- maintenance and products liability. This Chinese tires. If you have questions firmed fatalities in the U.S. linked to the book is available free to lawyers in either regarding a potential tire case, contact Takata inflators to 12. In late February, hard copy or downloadable digital Cole Portis or Ben Baker at 800-898-2034 Takata pled guilty and agreed to pay $1 format. For your free hard copy, call Sloan or by email at Cole.Portis@beasleyallen. billion for concealing a defect in millions Downes, Section Director, at 800-898- com or [email protected]. of its airbag inflators. 2034 or by email at Sloan.Downes@beas- The potential dangers posed by these leyallen.com. The book also can be Bad Boy Buggy Litigation air bags are that the airbags can unex- downloaded at www.beasleyallen. pectedly explode with excessive force, com/books. Lawyers in the Section continue to causing serious injury or death to occu- handle cases involving injuries from the pants. The defect is linked to the air bags’ Tire Defects, including RV Tires off-road vehicle known as the Bad Boy inflator systems, which can shoot metal Buggy. The Buggy was initially designed fragments from the devices into the car Tire failure can result in a serious car by a gentleman who owned an auto like shrapnel. Airbags on both the driv- crash causing serious injury or death to salvage yard in Natchez, Mississippi, but er’s and passenger’s side can explode, the car’s occupants. Air, heat and sun- the company was sold a couple of times even as a result of a fender bender or light can cause the rubber in tires to and now is owned by Textron, Inc. other minor collision. Tokyo-based Takata break down. When a tire is defective, The Bad Boy Buggies are currently mar- is one of the world’s largest automotive potentially serious problems like detreads keted for hunting and utility work but suppliers. It manufactures airbags, safety and blowouts can occur long before the they are designed very poorly. They are belts, steering wheels and other auto tire would be expected to wear out. If the unstable on uneven terrain. The static parts for a variety of automakers. Vehicles tire failure is the result of design or manu- stability factor of the Bad Boy vehicles is containing the defective airbags include facturing defects, and the manufacturer very low, which is caused by a design that certain models made by Toyota, Honda, is aware of the problem, they have an has a narrow track width and a high

JereBeasleyReport.com 13 center of gravity. The vehicles are also Although a state’s workers’ compensation faulty response in the air can spell disas- very heavy primarily because of the system places limitations on the ability of ter for air passengers and even unsus- weight of the numerous batteries located employees to hold employers accountable pecting people on the ground. This is internally. When the Bad Boy vehicle for these work-related injuries, many why it’s crucial for the aviation industry, turns over, it has the potential to cause people do not realize that there may be including manufacturers, pilots, mechan- significant injuries. another available source of recovery. Inju- ics and air traffic controllers, to adhere to As of today, the Bad Boy Buggies are ries in the workplace are often caused by the highest possible standards at still not equipped with doors or adequate defective products, such as a machine all times. measures to prevent “leg-out injuries.” where a dangerous nip-point is not prop- Statistics indicate mechanical failures Yamaha performed a recall on all of its erly guarded nor is the employee warned cause up to 22 percent of aviation Rhino vehicles in 2007 because it was of the dangerous nip-point. If a product crashes. Historically, aircraft manufactur- seeing numerous leg-out injuries when causes an on-the-job injury, a product lia- ing defects, flawed aircraft design, inade- the vehicles tipped over. The primary bility suit may be brought against the quate warning systems and inadequate problem was that, in a side-by-side product’s manufacturer. Catastrophic instructions for safe use of the aircraft’s vehicle, the driver or passenger will injuries, deaths, and amputations unfor- equipment or systems have contributed reflexively put their foot out as the tunately too commonly occur from defec- to numerous aviation crashes. In such vehicle tips. The vehicle typically still has tive products found in the work place. cases, the pilot may follow every proce- forward momentum as the tip-up occurs, Our firm handles numerous product dure correctly but still be unable to avert so as the occupant plants his foot on the cases each year that arise in the context disaster. Mike Andrews, a lawyer in the ground, the foot/leg will be pulled under of an accident that occurred on the job or Section, has handled numerous cases the backside of the vehicle. Quite often, in the workplace. Currently, Kendall involving defects found in aircrafts. this causes severe fractures and even Dunson, a lawyer in the Section, is han- Currently, Mike is pursuing two defec- amputations. dling a tragic case that occurred in Ten- tive aviation cases. One case involves a While Bad Boy has now upgraded its nessee. While working in the crash of the V22 Osprey in Hawaii result- design to add a shoulder net and seatbelt, maintenance department for his ing in death of a young marine. The its foot-out protection is still very bad. employer, the employee was setting up a Osprey has a long history of defects Textron added a trip bar in the foot well roll stack on an extruder. The roll stack is involving the aircraft’s hydraulics and area, which it claims is a foot-out preven- one machine in an entire line. The roll software. This crash resulted from the tative device. But Textron has performed stack consists of three large rollers. The engines ingesting sand which was kicked no testing on the vehicle to see if the trip middle roller is the master and the other up into the air by the downwash from the bar is effective. The vehicles have no pro- two are slaves. While working to get the Osprey’s rotor-blades as it attempted to tection for occupants who are younger, rollers in sync, he was pulled through the land. The aircraft is equipped with a fil- or of short stature, because their legs may rollers and his head was crushed leading tration system referred to as an engine air not be long enough to reach the area to his death. No one saw the incident, but particle separator which is intended to where the leg-out device is located. These the rollers were found spinning at prevent sand and other particle ingestion. vehicles need doors and netting to maximum rate. The rollers have in-run- However, the system is faulty. Bell and prevent leg-out and arm- and hand- ning nip points which should have been Boeing have tried various iterations and out injuries. guarded, but, in this tragic case, the nip- designs but have not yet implemented a Hopefully, Textron, Inc. and its subsid- points were not guarded. The manufac- safe and effective filter. Several crashes iary Textron Specialty Vehicles, Inc. will turer outfitted the rollers with a stop pull have resulted in deaths and serious recognize the design flaw and start equip- cord along the edges and at the top and injuries. ping their vehicles with doors and other bottom of the roll stack. But the roll stack The other case involves the crash of a proper safety devices to reduce the is so large that someone standing in the light aircraft off the coast of Georgia. danger. In the meanwhile, some very bad middle of the roll stack cannot reach the Two inexperienced pilots were attending and defective vehicles are in use and are pull cord. The roll stack was defective flight school in North Carolina and were an extreme hazard for folks and unreasonably dangerous for lack of assigned to fly an aircraft to Jacksonville, who use them. adequate guarding and/or a presence Florida, to the flight school maintenance If you have any questions about a spe- sensing device that would have pre- facility. Unfortunately, the aircraft was cific Bad Boy accident or need informa- vented this needless death. dispatched with inoperable equipment. tion on the ongoing litigation, contact Kendall Dunson, Ben Locklar and Evan Specifically, the pilots were sent up in an Greg Allen, our firm’s Senior Product Lia- Allen are among our lawyers handling aircraft which had faulty vacuum bility lawyer, at 800-898-2034 or by email these cases. You can contact them at 800- pumps—one was completely inoperable at [email protected]. Greg 898-2034 or by email at Kendall. and the other failed in flight. The vacuum has successfully handled a number of [email protected], Ben.Locklar@ pumps provide the pilots’ horizon and cases involving the Bad Boy Buggy and beasleyallen.com or Evan.Allen@beasley- orientation information while in flight. currently has several active cases allen.com. Without such information, pilots lose pending in court. spatial awareness and become disori- Aviation Accidents ented. Due to the inoperable and faulty Industrial Accidents And equipment, the plane crashed, killing Soaring through the sky at hundreds of Workplace Defects both student pilots. miles an hour, thousands of feet above If you need more information or need Each year, thousands of workers are the ground in an airplane or helicopter help on an aviation-related case, contact injured or killed at their workplace. leaves little room for error. One small Mike Andrews, a lawyer in the Section at mechanical problem, misjudgment or

14 BeasleyAllen.com 800-898-2034 or by email at Mike. • Greg Allen (Greg.Allen@beas- installed in 2006 Ranger pickups. As we [email protected]. leyallen.com) have reported, there are at least 21 deaths • Cole Portis (Cole.Portis@beas- worldwide linked to the defective Takata Non-Auto Product Defects leyallen.com) inflators that can rupture and send • Mike Crow (Mike.Crow@beas- deadly metal fragments into the driver’s Lawyers in the Section also handle leyallen.com) body. The faulty inflators have led to the cases involving defective products, • Graham Esdale (Graham.Esdale@beas- largest automotive recall in history. The including smoke detectors, flammable leyallen.com) other 19 deaths have occurred in Honda clothing, industrial equipment and • LaBarron Boone (Labarron.Boone@ Motor Co. vehicles, most of which were heaters just to name a few. Most of the beasleyallen.com) in the United States. time, family members do not suspect that • Kendall Dunson (Kendall.Dunson@ Ford issued a new recall for automo- a defective product is the cause of a death beasleyallen.com) biles that had been previously recalled in or injury, and manufacturers readily • Ben Baker (Ben.Baker@beas- 2016. Of those 391,000 2004-2006 Ranger blame the victim’s actions. We have dis- leyallen.com) vehicles, the new recall announced on covered that defective products are • Chris Glover (Chris.Glover@beas- Jan. 9 affects 2,900 vehicles. These increasingly a major cause of unexpected leyallen.com) include 2,700 in the United States and deaths and injuries. Quite often the real • Mike Andrews (Mike.Andrews@beas- nearly 200 in Canada. The new recall will cause of an incident resulting in tragic leyallen.com) allow for identification of the 2,900 consequences is a defective product. • Parker Miller (Parker.Miller@beasley- owners in the highest risk pool. allen.com) A Mazda Motor Corp. spokeswoman Premises Liability Litigation • Ben Locklar (Ben.Locklar@beasley- said on Jan. 11 the company would Premises Liability Cases can involve allen.com) conduct a similar recall and stop-drive claims arising out of falls caused by a • Evan Allen (Evan.Allen@beasley- warning for some 2006 Mazda B-series foreign substance on the premises, falls allen.com) trucks, which were built by Ford and are caused by a part of the premises, as well • Warner Horsby (Warner.Horsby@beas- similar to the Ranger. The National as injuries caused by falling items. Specif- leyallen.com) Highway Traffic Safety Administration ically, in a case involving a foreign sub- • Jere Beasley (Jere.Beasley@beasley- urged owners to heed Ford’s warning. stance on a floor, a Plaintiff must allen.com) NHTSA spokeswoman Karen Aldana said: establish that the foreign substance “It is extremely important that all high- Cole Portis heads up the Personal caused the fall and that the Defendant risk air bags are tracked down and Injury & Products Liability Section. Sloan premises owner had notice or should replaced immediately.” Ford said it would Downes is the Section Director. They can have had notice of the substance at the pay to have vehicles towed to dealerships be reached at 800-898-2034 or by email time of the accident. The law is different or send mobile repair teams to owners’ at [email protected] or Sloan. when injuries are caused by part of the homes and provide free loaners if needed. [email protected]. Dana premises that is in a dangerous condition, In June Takata said that it has recalled, Taunton and Stephanie Monsplair handle such as part of a doorway, curb, or stairs, or expected to recall, about 125 million appellate work for the Section and also or where the injury is caused by a display vehicles worldwide by 2019, including work on complex cases at the trial court created by a store employee. In situations more than 60 million in the United States. level, doing motion-related work. You can where the injury is caused by part of the Some 19 automakers worldwide are contact Dana and Stephanie at 800-898- premises or a display that was set up by impacted. 2034 or by email at Dana.Taunton@beas- the store, proof of notice is not a prereq- As we have previously stated in prior leyallen.com or Stephaine.Monsplair@ uisite, but the Plaintiff must still prove issues, Takata inflators can explode with beasleyallen.com. Feel free to contact any the injury was caused by a defective or excessive force, unleashing metal shrap- of our lawyers at any time. dangerous condition. Injuries caused by nel inside cars and trucks, and have falling objects most often involve items injured more than 200. The defect led falling from displays that are either part Takata to file for bankruptcy protection of the premises, or were set up by the Ford Urges 2,900 Pickup Owners To Stop in June. Chinese-owned supplier Key store. If the falling object is the result of a Driving After New Takata Death Safety Systems Inc. has purchased Taka- display set up by the store or some part of ta’s viable assets out of bankruptcy court. Ford Motor Co. has confirmed a second the premises falling, then the customer In November, NHTSA rejected a peti- death in an older pickup truck caused by does not have to prove notice. Mike tion from Ford to delay recalling 3 million a defective Takata airbag inflator. The Crow, a lawyer in the firm, has extensive vehicles with potentially defective airbag automaker urged 2,900 owners in North experience in handling premises liability inflators to conduct additional testing. In America to stop driving immediately until cases. If you need any guidance or have June 2016, NHTSA warned airbag infla- they can get replacement parts. Ford said any questions, contact Mike at 800-898- tors on more than 300,000 unrepaired it confirmed in late December that a July 2034 or by email at Mike.Crow@beasley- recalled 2001-2003 model year Honda 2017 crash death in West Virginia in a allen.com. vehicles showed a substantial risk of rup- 2006 Ford Ranger was caused by a defec- The following lawyers handle Personal turing, and urged owners to stop driving tive Takata inflator. It previously reported Injury & Products Liability Litigation for them until getting them fixed. NHTSA a similar death in South Carolina that our firm. Their contact informa- said they have as high as a 50 percent occurred in December 2015. tion is below: chance of a rupture in a crash. Ford said both Takata deaths occurred Source: Automotive News with inflators built on the same day

JereBeasleyReport.com 15 X. 2015, over 180,000 Americans died from rulings, and rulings excluding the plain- prescription opioid overdoses. tiffs’ experts from testifying on key MASS TORTS Now consumers, hospitals, and govern- issues. Oral argument was held in Decem- UPDATE ments across the country are pushing ber before a panel of Fourth Circuit back with lawsuits and investigations, judges. The outcome of this case will hoping to hold pharmaceutical manufac- determine whether plaintiffs in the turers and distributors accountable for Lipitor MDL can revive their cases against Mass Torts Outlook For 2018 damage caused by the opioid crisis. Cur- Pfizer for hiding and downplaying the I will give a brief projection in this rently, opioid lawsuits are being brought risks of developing Type 2 Diabetes as a issue on some of what to expect from our by three types of plaintiffs: government result of taking the drug. firm in the Mass Torts Section relating to entities, hospitals, and injured individu- Metal on Metal Hip Litigation the area of Mass Torts. There have been a als. While lawyers in Beasley Allen’s number of important developments in Toxic Torts Section are investigating and handling claims by government entities, Our lawyers anticipate several trials recent months that will carry over in involving metal-on-metal hips this year, 2018. Fortunately, we have lawyers and our firm’s Mass Torts Section is investigat- ing cases involving individuals who have including hip replacements made by support staff who are ready and willing Biomet and DePuy. Metal-on-metal hips to face the challenges ahead. suffered opioid-related deaths or hospital- ization due to overdose. were first used more than 40 years ago and the results and outcomes to patients The Opioid Litigation In December 2017, the Judicial Panel on Multidistrict Litigation centralized were disastrous because of premature Without a doubt, the opioid litigation opioid lawsuits in the Northern District failure and metal toxicity in the human will be at the forefront of Mass Torts this of Ohio. On January 9, 2018, Judge Dan body. In the early 2000s, manufacturers year. While many cities and states have Polster, the federal judge overseeing this decided to make another go of it, and just already filed lawsuits against opioid man- massive multidistrict litigation spoke to a as surgeons saw with the early MoM hips, ufacturers for the tax dollars spent on crowded courtroom and expressed the the newer versions often resulted in the treatment and law enforcement mea- unusual nature of this litigation. Judge same types of injuries to patients. The sures, our lawyers in the Mass Torts Polster explained that his “objective is to most recent jury trial against DePuy Section are evaluating individual opioid do something meaningful to abate this resulted in a verdict of over $500 million addiction cases involving injuries and crisis and to do it in 2018.” While lawsuits for the plaintiff. Lawyers in the Mass deaths caused by overdoses. Opioids are involving government entities may be on Torts Section anticipate being the first to highly-addictive pain killers and were a fast track, Judge Polster indicated that take on Biomet at trial later this year. blamed for approximately 64,000 death injured individuals will still have their The Xarelto Litigation due to overdose in 2016 alone. Some right to pursue recovery due to their own common opioids include Vicodin, Perco- unique circumstances. The Xarelto litigation ended on what cet, Dilaudid, Morphine, Oxycontin, and appeared to be a high note in 2017 when Oxycodone. The Low-T Litigation a Philadelphia state-court jury returned a As early as 1911 until the late 1990s, Low testosterone therapy (Low-T) will verdict in favor of the plaintiff for $28 opioids were used in limited circum- million after she suffered a gastrointesti- stances, such as to treat post-surgical also be a hot topic this year. On January 8, 2018, the third MDL bellwether trial nal bleed while taking the drug. pain, end-of-life care or terminal illness. However, that verdict was set aside last This is because both the medical commu- involving AndroGel began in Illinois federal court. Low-T has been associated month by the trial judge. Two additional nity and regulators were aware of the Philadelphia trials will begin very soon addictive nature of these drugs. However, with heart attack, stroke, and pulmonary embolisms in men who were using the with several more to follow later this in the late 1990s and early 2000s, treating year. In federal court, Johnson & Johnson pain became a greater priority. The phar- products for fatigue, depression, and loss of libido. It is very clear that the manufac- is facing almost 20,000 individual Xarelto maceutical manufacturers played an cases. U.S. District Judge Eldon Fallon of important role in this changing school of turers rushed Low-T products to market without adequate safety and efficacy the Louisiana Eastern District oversees thought, while making billions in that MDL. It is our hope that Judge Fallon the process. testing. Although the latest Low-T trial resulted in a defense verdict, two other will soon begin remanding MDL cases According to the Centers for Disease back to their home jurisdictions for trial. Control and Prevention, the number of juries have awarded nearly $300 million in punitive damages to plaintiffs injured The MDL litigation in the Eastern Dis- prescription opioids sold to pharmacies, trict of Louisiana now contains approxi- hospitals and doctors’ offices almost qua- by Low-T products. I will have more to say on this litigation below. mately 20,000 individual Xarelto cases. drupled from 1999 to 2014. While there Andy Birchfield, the head of Beasley was little evidence of a change in Ameri- The Lipitor Litigation Allen’s Mass Torts Section, continues to cans’ overall reported pain, prescriptions serve as Co-Lead Plaintiff Counsel for the to opioids skyrocketed. According to U.S. Women who were prescribed Lipitor Xarelto MDL. On January 30, 2018, Judge government numbers, there are more for the primary prevention of a cardiovas- Fallon was to hear oral arguments regard- than 650,000 opioid prescriptions dis- cular event and later developed Type 2 ing the next phase of the Xarelto MDL liti- pensed every day in this country. Diabetes will be watching closely for a gation. The next case management order As the number of prescription opioids decision from the United States Court of will control how cases are handled from rose, so too did overdoses and deaths of Appeals for the Fourth Circuit following the date of its issuance going forward, American citizens. Between 1999 and the MDL judge’s 2017 summary judgment including the possibility that some of the

16 BeasleyAllen.com cases filed in the MDL could undergo should be allowed to seek punitive on remand, will decide that Wisconsin additional case-specific discovery and be damages at trial. The ruling reversed a has a greater interest than New Jersey remanded back to their respective decision that had applied New Jersey law when it comes to punitive damages. Tom Federal District Courts for trials. to the litigation globally. New Jersey Kline, a lawyer with Kline & Specter PC The state court Xarelto litigation in products liability law specifically prohib- representing Stange, discussing the Supe- Philadelphia now contains approximately its punitive damages. rior Court’s ruling, said: 1,500 cases, and the litigation there con- This ruling came as a three-judge panel tinues to be very active. Four additional considered an appeal from Timothy This is a pivotal decision in the Ris- Philadelphia Xarelto cases are set for trial Stange, who took Risperdal beginning perdal litigation. Each state obvi- in March, April, May, and June of 2018. 2006 to treat symptoms associated with ously has a paramount interest in Beasley Allen attorneys continue to work Tourette’s syndrome, after he won protecting its citizens and the physi- on behalf of thousands of individuals $500,000 in compensatory damages from cians who give warnings to patients injured by Xarelto. J&J subsidiary Janssen Pharmaceuticals and their parents. Inc. in December 2015. The trial judge In addition to applying to Risperdal The Talc Litigation had not allowed punitive damages to be cases moving forward in Philadelphia, asked for. The opinion, written by Judge the ruling could also have an effect on Finally, in the talc state court litigation, Kate Ford Elliott, stated: Missouri Judge Rex M. Burlison recently four other cases where juries have upheld a $110 million verdict awarded by It is necessary to remand for the already ruled for Plaintiffs, awarding a St. Louis jury in May of 2017. We believe trial court to allow Stange to some $75 million in compensatory that 2018 will bring other favorable deci- develop an individual record on damages. Aside from the punitive sions in several cases currently on appeal. choice-of-law as it relates to his damages issue, the Superior Court’s deci- Anticipated decisions include: a decision unique circumstances and to set sion also rejected Janssen’s efforts to from the Missouri Supreme Court on the out the facts and state interests challenge the liability verdict in the jurisdictional issue following BMS, a deci- important to his particular case. As Stange case. The court found that causa- sion from the NJ Court of Appeals on our such, it is necessary to reverse the tion expert Mark Solomon had been prop- appeal of the dismissal of two of our state order granting partial summary erly allowed to testify despite what court cases in September 2016, and a judgment for the defendants on the Janssen argued was his failure to use a review by appellate courts in California punitive damages issue. generally accepted scientific method to of the JNOV in the Eccheverria case, rule out other potential causes for which returned a $417 million verdict. The appeal in the Stange case chal- Stange’s breast growth. Beasley Allen lawyers are also prepar- lenged a global order entered as part of a Stange is represented by Tom Kline, ing to return to St. Louis for a multi-plain- mass tort program in Philadelphia Chip Becker, Christopher Gomez and tiff trial in June. In the MDL, generic County, which was established to consoli- Ruxandra Laidacker of Kline & Specter discovery continues. Plaintiffs recently date a large number of Risperdal cases. PC and Stephen Sheller of Sheller PC. The disclosed expert witnesses and have The lower court’s order had found that case is Timothy Stange v. Janssen Phar- requested the Court require that Defen- Janssen’s business ties with New Jersey maceuticals Inc. et al., (case numbers dants disclose their own witnesses prior allowed it to take advantage of a state law 739 EDA 2016 and 1549 EDA 2016), to any Daubert hearings. there shielding pharmaceutical compa- before the Pennsylvania Superior Court. If you have any questions or the need nies from punitive damages for claims Source: Law360.com for help on a Mass Torts case, call Melissa related to medications approved by the Prickett, Mass Torts Section Administra- U.S. Food and Drug Administration tor, at 800-898-2034 and she will put you (FDA). But lawyers for Stange argued that in touch with the appropriate lawyer. Wisconsin law should have applied to the XI. You can email Melissa at Melissa.Prick- case because he was both prescribed the PREMISES [email protected]. drug and suffered his injury in that state. Under Wisconsin law punitive damages LIABILITY UPDATE are capped at the larger of either $200,000 or twice the amount of any Pennsylvania Superior Court Opens Door compensatory damage award. Janssen Chicago Pays $115 Million To Woman For Punitive Damages Claims In The countered that New Jersey law was more Paralyzed At The O’Hare Airport Risperdal Mass Tort Litigation appropriate given that its principal place The City of Chicago has paid $115 The Pennsylvania Superior Court has of business was in the state, and the rele- million in settlement to a woman who opened the door for Plaintiffs in the Risp- vant labeling and marketing decisions was paralyzed from the waist down by a erdal mass tort to seek punitive damages. had been made there. The appeals court, falling pedestrian shelter at O’Hare Inter- We believe this ruling significantly raises however, found that Philadelphia County, national Airport. This settlement ends the stakes of the litigation, which cur- in issuing a global order governing all Ris- the city’s challenge to a jury’s award of rently involves more than 6,000 pending perdal cases, had improperly limited its $148 million to the woman. The city and cases in Philadelphia. A three-judge Supe- choice-of-law analysis to either New its insurance carrier will pay Plaintiff rior Court panel ruled on Jan. 8 that Plain- Jersey law or Pennsylvania law. The Supe- Tierney Darden the $115 million rather tiffs may seek to have the law of their rior Court said that the trial court had not than continuing to challenge the damages home state apply to their case when it fully addressed the issue. verdict handed down by a Cook County comes to the issue of whether they It remains to be seen, however, whether the trial court, hearing the case

JereBeasleyReport.com 17 jury in August. Lead Plaintiffs counsel Family Sues Alaska Airlines For Escalator $3.5 Million Jury Verdict In Bed Bug Patrick A. Salvi said in a statement: Fall That Led To A Woman’s Death Infestation Case

I believe anyone who sat through The Spokane family of a 75-year-old The largest “bed bug” jury verdict in the trial would not find the award woman who uses a wheelchair is suing the United States was returned in Califor- to be excessive. Although we Alaska Airlines and its contractor Huntle- nia recently. In the case against Park La believed the verdict would have igh USA. The family claims that airline Brea, one of the largest apartment com- been upheld on appeal, when workers’ failure to care for the woman plexes in California, a jury returned a weighing the risks and benefits, we resulted in her fall down an escalator at verdict of $3.5 million last month for 16 felt this was a fair compromise. Portland International Airport. She died renters whose units were infested with Darden has a long, difficult life three months later from her injuries. It’s the pests. ahead of her; these funds will help alleged in the suit that Bernice Kekona’s Brian Virag, who represented the her obtain all the necessary family had requested a gate-to-gate escort renters, operates his own firm, “My Bed medical care for the remaining service during her trip from Maui to Bug Lawyer.” He exclusively handles bed decades of her life. Spokane in June 2017. The suit alleges bug cases. The Park La Brea litigation further that Kekona’s family called Alaska included a period between 2011 and Ms. Darden, 24, was waiting to be Airlines three times to make sure she 2013. However, it appears that the apart- picked up from O’Hare with her mother would not be left alone during her trip. ment complex owners became aware of and sister on an August 2015 afternoon Federal law requires airlines to assist dis- the bed bug problem in 2008. when a storm gust loosened a pedestrian abled passengers on and off their flights The apartment complex had an on-site shelter that weighed more than 750 and between gates to make connections. pest control operator, which made rec- pounds. The shelter came loose and fell Ms. Kekona, who had impaired vision ommendations on how to deal with the on Darden, severing her spinal cord. Ms. and hearing, also had a prosthetic left leg problem, including such things as educat- Darden was a dancer and student at and used a power wheelchair for mobil- ing tenants about the issue and employ- Truman College when she was paralyzed. ity. The lawsuit contends the woman was ing specially trained dogs to sniff out the The lawsuit, which named both the City helped off her Alaska flight from Maui to bugs. But Virag said the complex went of Chicago and the City of Chicago Portland, but that workers from Huntle- with its own methods like chemical treat- Department of Aviation as Defendants, igh USA left her alone in the terminal to ments, which didn’t solve the problem. involved claims for negligence and willful find her next gate. Ms. Kekona is seen on He said it was that oversight that perhaps and wanton conduct. Portland airport surveillance video wan- struck a chord with the jurors. The It was determined the shelter that dering through the airport and moving lawyer stated: caused the incident had missing bolts. her wheelchair to the top of an escalator. However, a subsequent investigation at The lawsuit alleges that the woman, who I would think that what the jury O’Hare found other shelters also had suffered extensive injuries in the fall, told was not particularly pleased with missing bolts, as well as corroded parts first responders she was confused and was that Park La Brea had the or broken brackets. In early 2017, the City thought she was boarding an “elevator” resources to deal with this early on of Chicago admitted wrongdoing in the before she fell down 22 escalator steps and to try to deal with it in a more accident, and in August, the case was face-first with her heavy electric wheel- effective way and they didn’t. tried before a jury on damages. On Aug. chair on top of her. 23, following a 10-day trial, the jury The complex initially tried to settle the An Alaska Airlines spokesperson, awarded $148 million to Ms. Darden, case but made a low-ball offer. Once the Bobbie Egan, released a statement which appears to have been the largest trial began, Park La Brea increased its denying fault. She said that “Ms. Kekona personal injury verdict on record in the offer, but it wasn’t enough to settle the declined ongoing assistance in the termi- state of Illinois. cases. Virag stated: nal and decided to proceed on her own to Following the trial, the City of Chicago her connecting flight.” The airlines It’s really a traumatizing experi- filed post-trial motions arguing that the contend that the family failed to fill out ence to go through bed bugs, verdict was excessive. However, after an necessary application documents because you’re living with it. It “extensive mediation,” Ms. Darden’s correctly. affects every portion of your life, lawyers and the city’s insurance carrier The lawsuit claims, however, that the from being able to sleep to being agreed to the $115 million settlement. Ms. airline had a responsibility to escort able to go to work. You go to work Darden is represented by Patrick A. Salvi, Kekona to her connecting flight in Port- with bites all over your body. It’s Jeffrey J. Kroll, Tara R. Devine, Patrick A. land, no matter what she may have told a humiliating; there’s a lot of Salvi II, and Eirene N. Salvi of Salvi Schos- worker, or what boxes on forms they may shame involved. tok & Pritchard. The case is Tierney not have checked. It appears there were Darden v. City of Chicago et al., (case several places in the reservation form This was a tremendous result in a case number 2015 L 008311), in the Circuit asking if there were any special needs for that should get the attention of not only Court of the Cook County, Illinois. the passenger. The case is scheduled for this Defendant, but also other companies Source: Law360.com trial in December of this year. that rent apartment complexes and other rental units. There really should be no Source: www.springfieldnewssun.com excuse for having bed bug problems in rentals. This verdict confirms that belief. Source: Law.com

18 BeasleyAllen.com Movie Stuntman’s Family Files Wrongful ing officer that Bernecker was supposed people in the town. The settlement came Death Suit In Georgia to fall about 22 feet (7 meters) from a just before trial was scheduled to begin balcony over a railing onto “a pad made on Jan. 16. The mother of a stuntman who fell to of a layer of 22-inch boxes, port-a-pit While settlements with individuals his death on the set of “The Walking pads, and a large pad.” This comes from a related to the explosion have been confi- Dead” in Georgia has filed a wrongful report by the Coweta County Sheriff’s dential, the city of West said in a press death lawsuit against the show’s network Office. Austin Amelio, who is also named release that it is required by law to dis- and other Defendants. It’s contended in as a Defendant in the lawsuit, was the close the information when requested. the lawsuit, that unreasonably low only actor on the balcony with Bernecker The City of West is represented by Steve budgets led to inadequate safety precau- at the time of the fall. The report says he Harrison, Zona Jones, Bryan Harrison and tions. John Bernecker, 33, died on July 12 told the same officer that he had asked Matt Morrison of Harrison Davis Steakley from injuries suffered in a fall on the set Bernecker if he had ever done a fall like Morrison Jones PC, and Mark Grotefeld in Senoia. that before. Reportedly, the stuntman and Pat Gareis of Grotefeld Hoffman. The The lawsuit filed last month by Susan said he had done a few, but never from case is City of West, Texas v. CF Indus- Bernecker in Gwinnett County State that high up. Amelio told the officer that tries Sales LLC et al., (number 2013- Court says AMC Networks Inc. “orches- Bernecker “seemed a little nervous.” 2476), in the District Court of McLennan trated and enforced a pattern of filming Filming began after Bernecker gave a County, Texas. and producing ‘The Walking Dead’ thumbs-up to signal he was ready, Source: Law360.com cheaply and, ultimately, unsafely.” It’s Goodwin said. Bernecker got most of the further alleged that AMC pressured pro- way over the railing and then appeared to duction company Stalwart Films to keep try to stop the fall by grabbing the railing budgets and expenses unreasonably low, with both hands, but he hit the balcony, XII. leading Stalwart Films to cut corners on causing him to release his grip and spin WORKPLACE safety measures. The lawsuit also names upside down as he fell, the report said. other companies associated with AMC Bernecker landed a few inches HAZARDS and Stalwart Films, as well as the director from the pad. and stunt coordinator for the episode that The lawsuit asks for a jury trial and was being shot. An actor who was shoot- seeks punitive and compensatory Trends In Workplace Safety ing a scene with Bernecker is also a damages, as well as attorney fees. Susan Defendant. Bernecker is represented by Jeff Harris, Unfortunately, millions of American Susan Bernecker said in a press release who had represented the parents of workers are injured and thousands more that she hopes her son’s death will lead to another film worker, Sarah Jones, who lose their lives every year in job-related improved safety standards for stunt per- was killed on a Georgia railroad trestle in incidents. It is important to document formers in the film and television indus- 2014 during the shooting of a movie these incidents to understand why they tries. She stated: about singer Gregg Allman. In that case, occur and to take steps to improve work- CSX Transportation was ordered to pay place safety. The Bureau of Labor Statis- My goal is to do everything I can to $3.9 million in damages to Jones’ parents. tics (BLS) is the source for information protect other stunt performers and CSX lawyers blamed filmmakers who regarding reportable workplace injuries to ensure their safety on the set in were denied permission by CSX to shoot and fatalities. In November of 2017, the the future. The industry is not on its tracks. Film director Randall Miller BLS released the latest (2016) statistics on doing enough to maintain basic served a year in jail for the death of nonfatal workplace injuries. Just over a safety guidelines for these perform- Ms. Jones. month later, fatal work injury statistics ers. Worst of all, they’re scared Source: Associated Press were released for public review. The raw to speak up. data provided in the releases provides an In early January, the U.S. Department insight into whether the laws and systems in place to protect workers are of Labor’s Occupational Safety and Health Texas Town Settles Suit Over Chemical serving their purposes. Administration (OSHA) cited Stalwart Explosion For $10.4 Million Films in Bernecker’s fatal fall. The agency According to the BLS, there were 2.9 proposed a fine of $12,675, the maximum The city of West, Texas, has reached a million nonfatal workplace injuries and allowable fine for a single serious viola- $10.4 million settlement with the manu- illnesses reported for 2016. The figures tion, for “failure to provide adequate pro- facturers and suppliers of ammonium are slightly down from 2015 statistics. tection from fall hazards.” OSHA said the nitrate that the city blamed for contribut- Reportable nonfatal workplace injuries company could have used several ing to the deadly fertilizer explosion in are broken down into those resulting in methods to reduce the risk from stunts 2013 that rocked the small town. The city time missed from work (the more serious on high platforms. In a statement after said the settlement includes $6.4 million injuries) and those that do not require the citation was issued, Stalwart Films from CF Industries, $3.9 million from El time off from work (minor injuries). A said it disagreed with the citation and Dorado Chemical, and $143,000 from third of all nonfatal injuries in 2016 were called Bernecker’s fall “a tragic and terri- Adair Grain. The city had alleged they attributable to serious injuries requiring ble accident,” saying it meets or exceeds were negligent in supplying agricultural- days away from work. Interestingly industry safety standards on its sets. grade ammonium nitrate to West Fertil- enough, in manufacturing, injuries and Reportedly, Matthew Goodwin, an izer and not properly warning about the illnesses to production workers assistant director who is named as a risks of handling and storing it, contribut- accounted for 64 percent of the total days Defendant in the lawsuit, told a respond- ing to the devastating blast that killed 15 away from work incidents. It should be

JereBeasleyReport.com 19 noted that production workers in manu- Workplace Hazards—Machine Guarding monly used to protect the user from the facturing are likely working with or hazards associated with these locations. around industrial machinery. BLS In 1970 Congress established the Occu- Fixed barrier guards, interlocking reported 5,190 fatal workplace injuries in pational Safety and Health Act and an devices, light curtains, and sensors are all 2016. Statistics from prior years indicate accompanying Administration with the common methods to protect the user three consecutive years of increases in mission to assure safe and healthy from hazards. annual workplace fatalities and 2016 is working conditions for the American Other forms of guarding include two- the first year since 2008 that on the job people. Under Section 5(a)(1) of the Act, hand tripping devices, or other means by deaths exceeded 5,000. Fatalities involv- employers are required to provide their which to keep the operators’ hands away ing contact with objects or equipment employees with a place of employment from the moving parts. An appropriate along with deaths associated with that “is free from recognizable hazards guarding method largely depends on the harmful environments both increased. that are causing or likely to cause death type of hazard. Effecting machine design When a worker dies in an on-the-job or serious harm to employees.” This pro- requires that the engineer perform a injury the loss extends beyond the work- vision of the Act is typically referred to as hazard risk analysis. In the analysis, the place to the family that lost a loved one the general duty clause, and goes on to engineer must identify all hazards and and a provider. Likewise, serious nonfatal require that employers comply with the undertake to either eliminate the hazard injuries either require significant time standards promulgated under the entirety through design or guarding. from work, and in some instances, reduce of the Act. The most effective guards are those the injured employee’s earning capacity. The Occupational Safety and Health that do not hinder the function or utility For non-fatal injuries, the worker’s Administration (OSHA) has without ques- of the machine while safely eliminating income and ability to earn income will be tion made the U.S. workforce safer in the the hazard posed to the user. OSHA negatively affected temporarily. 40-plus years since its inception. further requires that the guard be fas- Some injuries are severe enough to However, injuries due to workplace tened to the machine, difficult to remove, negatively affect a worker’s earnings for hazards are still some of the most and not create additional or differ- their entire work life expectancy. common cases we see in our practice. ent hazards. Because many of the deaths and serious Often these injuries are caused by Even if the manufacturer takes appro- nonfatal injuries are caused by interac- hazards created by the premises where priate steps to design and implement tions with some form of industrial one is working, such as trip-and-fall acci- guards on machinery, the guards must machinery, it is important for manufac- dents or falls from ladders or stairs. remain in place and in good working turers to ensure that robots and other However, the most serious on-the-job order to be effective. In Alabama, if an machines are designed with adequate injuries we see typically involve hazards employer removes a safety device incor- safety devices in place. caused by defective machinery, equip- porated by the designers of the machine, In turn, the employer has a responsibil- ment or tools on the job site. the injured may sue their employer ity to properly train employees and Industrial machines, often due to the outside of workers’ compensation. Under ensure that the manufacturer-provided very nature of the machines, create Ala. Code § 25-5-11(c)(2), an injured safety devices are installed and properly hazards that cannot be completely elimi- employee may bring an action in tort if a maintained. Safer industrial machines nated. To completely do away with these safety device is intentionally removed will result in a reduction of deaths and functions would eliminate the hazard, from a machine. These cases are very the nonfatal injuries requiring days but also the utility of the machine. In common and are easily overlooked unless off work. such cases, guards are often the best a detailed investigation is conducted. It should be no surprise that the means to retain both the function of the All too often machines are unguarded, current administration took steps to machine and protect the employee inadequately guarded, or the wrong type reduce the Occupational Safety and against the hazard. The OSHA Act specifi- of guard is used. In many instances pro- Health Administration’s (OSHA) ability to cally speaks to the necessity to guard ductivity and ease of use is given more enforce workplace safety requirements. against hazards caused by machinery. weight in machine design than user OSHA’s purpose is to emphasize worker Section 1910.212, often referred to as the safety. Failure to adequately guard against safety and many of the rules apply specif- general guarding provision, requires “one hazards can cause any number of injuries ically to safeguarding industrial machin- or more methods of machine guarding including amputations, lacerations, and ery. Without OSHA’s constant oversight, shall be provided to protect the operator even death. Every on-the-job injury manufacturers and employers might be and other employees in the machine area involving a machine must be examined tempted to sacrifice worker safety for from hazards such as those created by on a case-by-case basis. Just because profits, which will lead to more deaths point of operation, ingoing nip points, guards are incorporated into a particular and serious injuries. rotating parts, flying chips and sparks.” machine does not necessarily mean that We will continue to monitor these sta- Hazards generally occur in three loca- the user or operator was adequately pro- tistics and use them to inform our readers tions: the point of operation, or the loca- tected. OSHA regulations are a great start- about workplace safety. If you need more tion where the machine cuts, bends, or ing point in building a machine information, contact Kendall Dunson, a presses a material; a power take-off or guarding case. lawyer in our Personal Injury & Products power transmission device; or any other If you need more information on this Liability Section, who handles workplace moving parts such as gears or chains. For subject, contact Evan Allen, another of litigation for our firm. He can be reached employees that work around machinery, our lawyers in our Personal Injury & at 800-898-2034 or by email at Kendall. it is imperative that these hazardous areas Products Liability Section, who handles [email protected]. are adequately guarded. There are many premises liability claims, at 800-898-2034 different types of guards that are com-

20 BeasleyAllen.com or by email at Evan.Allen@beasley- and positive or negative performance wrongful actions. Because of this reality, allen.com. reviews either in exchange for sexual many victims are reluctant to report the favors or as punishment for refusing to offensive behavior. As more victims of comply with a superior’s demand for sexual harassment come forward, we are th Sexual Harassment In The Workplace sexual favors. The 11 Circuit has held seeing a shift in society’s perspective on that for an employee to be successful in this issue. In recent months, there has been a advancing a quid pro quo sexual harass- If you think you have been a victim of huge surge of sexual harassment accusa- ment theory, the Plaintiff must prove the workplace sexual harassment, it is impor- tions levied against a number of powerful following elements: tant to seek the immediate advice of an men in our society. These accusations employment lawyer. You can contact have rocked many industries including • the employee belongs to a pro- Larry Golston or Leon Hampton, lawyers sports, entertainment, and more recently tected group; in our firm’s Consumer Fraud & Commer- the legal field. The accusations were soon • the employee was subject to unwel- cial Litigation Section, at 800-898-2034 or followed by a rallying cry, and the come sexual harassment; by email at Larry.Golston@beasleyallen. #MeToo movement was started. This com or Leon.Hampton@beasley- #MeToo movement is a way that men and • the harassment complained of was allen.com. women across the country can both based upon sex; and express their solidarity with victims and • the employee’s reaction to harassment publicly announce that they too have Families To Receive $6 Million In Settlement complained of affected tangible aspects been victims of sexual harassment. The Of Railroad Tank Car Deaths momentum of the #MeToo movement is of the employee’s compensation, causing a major shift in the way society terms, conditions, or privileges of The families of two central Illinois men views victims of workplace sexual employment. who died in 2014 after breathing gas harassment. Additionally, a corporate Defendant inside a railroad tanker car will receive In 1964, Congress passed Title VII of will be held strictly liable for a superior’s $6 million from the settlement of a the Civil Rights Act of 1964. Title VII is a action under the quid pro quo harass- lawsuit. A federal investigation deter- federal law that prohibits workplace dis- ment theory. mined 37-year-old Frank Rosebur and crimination based on sex, race, color, The second type of workplace sexual 29-year-old Dean Stone were victims of national origin, and religion and is aimed harassment theory is hostile work envi- safety rule violations at Agridyne LLC’s at employers with 15 or more employees. ronment. Hostile work environment livestock food plant in Pekin. The lawsuit Sexual harassment has been determined sexual harassment occurs when an had been field in Tazewell County to be a form of sexual discrimination that employer alters an employee’s job condi- Circuit Court. clearly violates the federal law. The Equal tions because of the employee’s refusal to The air-tight tanker contained hydro- Employment Opportunity Commission submit to sexual demands. Meritor Sav. gen sulfide gas, which can kill with only (EEOC) defines sexual harassment as Bank, FSB v. Vinson, 477 U.S. at 65, 106 a few breaths, when Rosebur entered to “unwelcomed sexual advances, requests S. Ct. at 2405 (1986). A hostile work envi- clean it of corn. Steep residues remained for sexual favors, and other verbal or ronment due to sexual harassment often when the car had been drained. The physical conduct of a sexual nature… manifests itself through severe and perva- worker passed out in seconds. Stone when submission to or rejection of this sive explicit jokes, constant demands for entered the car after Rosebur’s work conduct explicitly or implicitly affects an sexual favors, racy or crude comments, partner called for help. Stone was climb- individual’s employment, unreasonably or even by sharing inappropriate text ing up the hatch latter with Rosebur on interferes with an individual’s work per- messages or images. These utterances his shoulder when he passed out and formance or creates an intimidating, and/or demands are often so severe that collapsed. hostile or offensive work environment.” it becomes difficult for an employee to The Occupational Safety and Health 29 CFR § 1604.11. comfortably go about his/her work. For a Administration (OSHA) cited Agridyne There are two types of sexual harass- Plaintiff to be successful in advancing a with safety violations and imposed a ments: quid pro quo and hostile work hostile work environment theory the $266,000 fine. The families will split the environment. Let’s first explore quid pro Plaintiff must prove the following: settlement proceeds. Matthew Ports, a quo sexual harassment. The Latin phrase lawyer with Pfagg, Gill & Ports, repre- “quid pro quo” means an exchange of • The employee belongs to a pro- sented both families in the lawsuit. something for something. In an tected group; Source: Associated Press employer/employee context, quid pro quo sexual harassment takes place when • The behavior was severe or pervasive; a superior (i.e. supervisor, manager, or • The harassment complained of was other person of power) makes sexual unwelcomed; and that XIII. favors a condition of one’s employment. TRANSPORTATION This type of sexual harassment usually • The employer knew or should have comes with promises of job benefits or known about the harassment but failed threats of retribution if the victim does to take prompt, corrective action. not comply with the superior’s overtures. Amtrak Crash Increases Pressure To Other examples of quid pro quo Historically, sexual harassment claims Bolster Rail Safety Technology harassment are positive or negative work have been difficult cases to win. In times We wrote in January about the Amtrak assignments, promotions or demotion, past, the victim’s credibility has been put on trial instead of the perpetrator’s train derailment in Washington that

JereBeasleyReport.com 21 killed three people during the inaugural Committee on Transportation and Infra- Act also adjusted the cap for inflation trip on a new route. That accident has structure, and Michael Capuano, D-Mass., every fifth year going forward. reignited concerns over federal rail safety ranking member of the House Subcom- Source: Law360.com mandates that have yet to be fully imple- mittee on Railroads, Pipelines and Haz- mented. The pressure should be increas- ardous Materials, have demanded that the ing on railroads to install crash-avoidance DOT hold railroads more accountable for technology. The National Transportation complying with the deadline. XIV. Safety Board (NTSB) said in a Jan. 4 pre- The legislators have introduced a bill, HEALTHCARE liminary report that the Dec. 18 derail- Positive Train Control Implementation ment of an Amtrak Cascades train was and Financing Act, that would speed up ISSUES due to it speeding as it approached a PTC implementation by requiring that all curve, and that federally mandated tech- railroads have the technology installed by nology known as positive train control the end of the year, while also preventing Romaine Lettuce Linked To Outbreak Of E. (PTC) that can automatically activate railroads from getting further extensions Coli In 13 States brakes on trains in over-speed situations on the deadline, and providing approxi- could have prevented the accident if the mately $2.5 billion in grants for cash- Consumer Reports said last month that technology had been fully activated on strapped commuter and intercity people should stay away from romaine that stretch of track. passenger railroads to implement PTC. lettuce until U.S. and Canadian health The Washington wreck, according to Rep. DeFazio said in a statement last officials get to the bottom of an outbreak safety experts, has amplified the pressure month: “Enough. No more delays, no of E. coli infections. The consumer advo- on railroads and train operators to accel- more extensions, no more excuses from cacy group called on the Food and Drug erate the widespread rollout of positive railroads who have had 10 years to imple- Administration (FDA) and Centers for train control before a year-end deadline. ment PTC technology.” Disease Control and Prevention (CDC) to As we reported previously, Congress PTC is a multifaceted system that do more to warn people about the out- mandated that passenger and freight rail- involves digital radio communications, a break, which at last count had made 58 roads install PTC by the end of 2015 global positioning system and fixed people sick in the U.S. and Canada. when it passed the Rail Safety Improve- wayside signal systems to transmit a con- Reportedly, one person has died. ment Act in 2008. However, the railroads tinuous stream of data about the location, Canadian officials first identified an E. have successfully delayed installing the direction and speed of trains, according coli outbreak on Dec. 11 and linked it to rail safety technology. They successfully to regulators. Ultimately, PTC can be romaine lettuce three days later, advising lobbied Congress to extend that deadline used to prevent train-to-train collisions, Canadians to avoid eating romaine. In to Dec. 31, 2018, in the Fixing America’s overspeed derailments, incursions into contrast, the CDC waited until Dec. 28 to Surface Transportation (FAST) Act established work zone limits, and the notify the public about the E. coli out- of 2015. movement of a train through a main line break, which it said in a news release had In certain situations, railroads can ask switch in the wrong position. started around Nov. 15. The CDC said 17 the Department of Transportation (DOT) The Federal Railroad Administration people were sick in 13 states, dating to bump their PTC installation deadlines (FRA) website tracks railroads’ progress back to November. In its statement, to 2020. But with the nation’s sprawling in installing PTC. Only a few regional the CDC said: network of rail tracks and railroad opera- railroad operators have reached the 100 tors, the responsibility for PTC implemen- percent mark for equipping locomotives, In the United States, state and local tation is often shared among multiple completing track segments, installing public health officials are interview- parties. The debate is ongoing at present radio towers, training employees, acquir- ing sick people to determine what over who all was responsible for the ing spectrum, installing back office they ate in the week before their Washington accident. servers, and submitting safety plans for illness started. CDC is still collecting This latest Amtrak derailment, a Sep- the FRA’s review and approval. information to determine whether tember 2016 NJ Transit commuter train Meanwhile, the lawsuits are being filed there is a food item in common crash in Hoboken, New Jersey, and the against Amtrak over the Washington among sick people, including leafy May 2015 derailment of Amtrak 188 in derailment. PTC is front and center in greens and romaine. Because we Philadelphia have brought the PTC issue those suits. The Plaintiffs allege that have not identified a source of the back to the fore and have sparked outrage Amtrak equipped the locomotive with a infections, CDC is unable to recom- that the slow rollout of the technology control system that would have warned mend whether U.S. residents should has cost lives, experts say. Whenever its operator to slow down and automati- avoid a particular food. there is a major Class I freight rail acci- cally brake if he didn’t respond, but On Jan. 8, U.S Rep. Rosa DeLauro dent, the NTSB has to determine if the “knowingly failed” to make it operable. (D-Connecticut) harshly criticized the accident could have been pre- There is a $295 million statutory cap CDC for what she called its “stunning vented by PTC. on damages that Amtrak can face from lack of guidance” and “slow and insuffi- Following the Amtrak incident, U.S. any single incident. Congress first set the cient response” to the deadly E. coli out- Transportation Secretary Elaine Chao damages cap at $200 million in the break. Rep. DeLauro, who often sent letters to railroads on Dec. 27 urging Amtrak Reform and Accountability Act of champions food safety issues, sent her them to take all possible measures to 1997, but raised that cap to $295 million harsh rebuke to CDC director Dr. Brenda ensure they will meet the year-end dead- in the 2015 FAST Act, making sure that it Fitzgerald. In the letter, Rep. DeLauro line to install PTC. Reps. Peter DeFazio, also applied retroactively to the May 2015 suggests the CDC’s delay could have cost D-Ore., ranking member of the House Amtrak crash in Philadelphia. The FAST U.S. consumers their life. She writes:

22 BeasleyAllen.com CDC’s stunning lack of guidance to tion on the source of to make it clearer just how addictive the consumers regarding this outbreak is contamination. Consumers should pills can be. unconscionable. Just as concerning, also check salad blends and mixes, There are many other Cities and Coun- the investigation appears to have and avoid those that ties in Alabama that have been dispropor- gone ‘cold,’ with the agency’s own contain romaine. tionately impacted by prescription opioid staff seemingly content with ending abuse that not have not yet filed suit. the investigation without ever E. coli bacteria are just about every- Alabama has one of the highest rate of finding the cause and source. where, and they are normally harmless prescription opioid use in the country residents of the digestive tract. But there with more prescriptions being written Rep. DeLauro’s letter includes a list of are a few forms that can cause diseases. than people living in the state. questions about the outbreak. Among the The CDC estimates that about one in six We expect that many more states and questions she asks are, “What is the Americans are made sick by foodborne local governments around the country CDC’s justification for waiting almost a illnesses every year—that’s about 48 will file lawsuits against opioid manufac- month and a half before publicly confirm- million people. About 3,000 die. The turers and distributors in the coming ing the outbreak?” and “To what degree toxin produced by E. coli 0157 can cause months. If you need additional informa- has the CDC collaborated with the Public severe stomach cramps, bloody diarrhea tion relating to this litigation, contact Health Agency of Canada” in investigat- and vomiting. The most dangerous effect Rhon Jones, head of our Toxic Torts ing the outbreak. is hemolytic uremic syndrome (HUS), a Section, at 800-898-2034 or rhon.jones@ Thorough cooking usually kills food- type of kidney failure. The CDC said: beasleyallen.com. Rhon, Rick Stratton borne bacteria such as E. coli or salmo- Very young children and the elderly and Will Sutton are handling this litiga- nella, but lettuce is not usually cooked. tion for the firm.” “Even though we can’t say with 100 are more likely to develop severe illness and HUS than others, but percent certainty that romaine lettuce is Off-Shore Drilling the cause of the E. coli outbreak in the even healthy older children and U.S., a greater degree of caution is appro- young adults can become The Trump administration has recently priate given that romaine lettuce is seriously ill. unveiled its proposal to permit drilling in almost always consumed raw,” said James most U.S. continental-shelf waters, includ- Sources: Today, RightingInjustice.com, Sen. Rosa L. ing currently protected areas of the Roger, food safety director at Con- DeLauro, CDC sumer Reports. Arctic and Atlantic, and has also pro- Consumers Union’s Jean Halloran said posed opening nearly 77 million more people should get stronger warnings. acres in the Gulf of Mexico to companies She stated: XV. wishing to purchase federal oil and gas leases. The Bureau of Ocean Energy Man- The FDA should follow the lead of ENVIRONMENTAL agement, which oversees offshore the Canadian government and CONCERNS leasing, has promised that the marine immediately warn the public about environment will be protected as the this risk. The available data United States pursues an energy domi- strongly suggest that romaine Major Environmental Litigation For 2018 nance agenda. lettuce is the source of the U.S. out- Needless to say, this controversial pro- break. If so, and people aren’t We will take a brief look in this issue at posal has been opposed by many outside warned, more may get sick. some of the major environmental litiga- the oil and gas industry. Offshore drilling It can take weeks to track down the tion that our firm will be involved in led to the worst environmental disaster in source of a food poisoning outbreak. during 2018. Lawyers in our Toxic Torts U.S. history, the 2010 Deepwater Horizon Food is often shipped to central plants Section, headed by Rhon Jones, handle explosion and subsequent oil spill in the from various farms, where it is processed, this litigation. Gulf of Mexico. The effects of that spill mixed together, packaged, and are still being felt almost eight years later, redistributed. Opioids Update and many are worried that the increased Consumer Reports said people should risks of additional drilling outweigh the Nearly 200 local governments, and potential rewards. err on the side of caution and throw out several states, have filed lawsuits against romaine lettuce. It stated: prescription opioid manufacturers and PFC Water Contamination Neither the U.S. nor Canadian distributors in an effort to curb the As previous issues of the Report dis- health officials have provided infor- ongoing opioid epidemic. Recently, our cussed, the contamination of drinking mation on where the romaine firm filed lawsuits on behalf of Houston water from perfluorinated chemicals lettuce potentially involved in the County and the City of Greenville and we (PFCs) is a nationwide problem. Testing illnesses was grown or processed, so are currently representing over 25 other found traces of two of the most well-stud- for now, Consumer Reports says local governments. ied PFCs, perfluorooctanoic acid (PFOA) consumers should assume that any For now, all of the cases appear to be and perfluorooctanesulfonic acid (PFOS), romaine lettuce, even when sold in civil lawsuits seeking monetary damages in 162 water systems serving 15.1 million bags and packages, could possibly to help the governments recoup the Americans. be contaminated. Do not buy money lost to fighting the epidemic. A recent report from Eurofins Eaton romaine lettuce and don’t use any Many of the lawsuits also hope to force Analytical laboratories suggests that our that you may have in your refriger- drugmakers to change their marketing nation’s drinking water may be more con- ator until there is more informa- tactics, which they argue are deceptive,

JereBeasleyReport.com 23 taminated than originally thought. The ing the Coosa River and Weiss Lake. The Dicamba lab, which has conducted testing for the lawsuits were filed to ensure that these EPA, found that up to 28 percent of water entities, not ratepayers in Gadsden and In 2017 there was an increase in law- systems nationwide serving more than Centre, would pay to decontaminate their suits filed by farmers against Monsanto, 10,000 customers contain some levels of drinking water. BASF, and DuPont regarding the herbi- the perfluorochemicals PFOA and PFOS. Lawyers at Beasley Allen are investigat- cide dicamba. The complaints generally This is significantly higher than the 4 ing other PFC contamination cases. If you allege that dicamba tends to “drift” and percent originally reported by the EPA in have any questions about this subject, cause damage to non-dicamba-resistant 2016 and means that millions more Amer- contact Rhon Jones, Rick Stratton, or neighboring crops during and after its icans could unknowingly be exposed to Ryan Kral, lawyers in our firm’s Toxic application to a target crop. some levels of PFOA and PFOS. Torts Section, at 800-898-2034 or by Prior to the 2017 growing season, PFOA and PFOS persist in the environ- email at [email protected], farmers were not allowed to use dicamba ment for years and accumulate in the [email protected], or Ryan. on growing plants. They could use it body. Exposure over one’s lifetime can [email protected]. before planting their seeds or after har- lead to a number of health problems vesting their crops. In 2016, that changed including testicular cancer, kidney PFC National Litigation Update when the EPA allowed new formulations cancer, ulcerative colitis, thyroid disease, of dicamba to be applied over the top of high cholesterol and pregnancy-induced Water systems nationwide are filing growing plants due to the manufacturer’s hypertensions. Consequently, the EPA set lawsuits against alleged polluters to claims that the new formulations were a lifetime health advisory of exposure to recoup costs incurred to deliver clean less volatile. PFOA and PFOS at 70 parts per trillion in water to their customers. Individuals are Unsurprisingly, farmers in more than May 2016. also suing these companies for contami- two dozen states reported problems in These unregulated chemicals were nating private wells and causing personal 2017. The problems were so severe and tested by the EPA between 2013 and 2015 injuries. These lawsuits help illustrate the widespread that in July 2017 Missouri and as part of the Third Unregulated Contam- widespread use of PFCs across a variety Arkansas introduced short-term bans on inant Monitoring Rule. According to of industries. the herbicide. In response, the EPA Eaton, the EPA set the “minimum report- As discussed above, the carpet industry toughened its dicamba regulations ing level” (the lowest amount of a chemi- relies heavily on PFCs and related chemi- for 2018. cal the EPA said could reliably be cals to manufacture carpet that is stain- Many farmers have already filed law- detected) too high, which resulted in resistant. Many companies in the textile suits against Monsanto, BASF, and DuPont underreporting the number of contami- industry use PFCs or related chemicals to alleging that they have suffered crop nated water systems. Rather than select- apply stain or water-resistant qualities to damage or losses because of dicamba’s ing 20 ppt for PFOA and 40 ppt for PFOS, their products. For example, Michigan’s off-target movement. These filings are Eaton states the chemicals can be Department of Environmental Quality expected to increase well into 2018. detected as low as 2.5 ppt. recently sued a leather tannery for con- Eaton reanalyzed the EPA’s data and, taminating the drinking water of nearby The E-cigarette Litigation residents. Manufacturers of these chemi- after dropping the MRL to 5 ppt, found at More than 120 lawsuits were filed least one of six PFCs in samples from 511 cals have also been sued in Decatur, Alabama and in North Carolina. across the United States in 2017 by Plain- water systems, or 28 percent of those tiffs hurt in explosions and fires involving tested serving approximately 13.8 million In addition, PFCs are present in some firefighting foams used to fight petro- e-cigarette devices. Most Plaintiffs have people. PFOA was discovered in 12.5 alleged they were burned around their percent of the systems while PFOS was leum fires. Therefore, fire departments, the military, and airports have been iden- legs or groin when vaporizer batteries found in 11.5 percent, compared to less they were carrying in their pocket caught than 1 percent reported by the EPA. tified as potential sources of contamina- tion in Colorado, North Carolina, New fire. A few Plaintiffs have alleged that According to Eaton’s data, five states had electronic cigarettes have exploded in more than 40 systems detect either PFOA Hampshire, Pennsylvania, Washington, and Massachusetts. These entities appear their mouth, knocking out teeth and or PFOS: Alabama, California, Massachu- causing facial burns. However, the first setts, New Jersey and South Carolina. to be the most common polluters of con- taminated water systems identified by the wrongful death lawsuit was recently filed More testing is needed to fully under- in California. stand the extent of chemical contamina- EPA in 2016. Although we are in the infancy of this Most lawsuits involving e-cigarette tion of our nation’s water. As the results injuries will be products liability claims, of ongoing testing are revealed, we litigation, settlements have been reached with Daikin America in Decatur, Alabama alleging one of three causes for the expect lawsuits filed by water systems malfunction: and residents to increase in the and with the County of Barnstable, Mas- upcoming year. sachusetts. The military is also involved • Defects in Design: A defect causes the Our firm, along with Roger H. Bedford in ongoing discussions with residents e-cigarette to pose an unreasonable of Roger Bedford & Associates, has filed who live on or nearby military bases risk to consumers, even if it is manufac- lawsuits on behalf of the water systems in across the country. While these signs are tured and used as intended; Gadsden and Centre, Alabama. These encouraging, we expect more lawsuits to • Defects in Manufacturing: A mistake in complaints allege that carpet and textile be filed to hold polluters accountable for the production of a well-designed e-cig- companies, manufacturers, and chemical contaminating Americans’ drink- arette introduces a new danger to suppliers located upstream in Dalton, ing water. consumers; or Georgia are responsible for contaminat-

24 BeasleyAllen.com • Defects in Warnings: A company’s internal company emails released in the nection between their disease and their failure to properly warn consumers of last year show that Monsanto may have past chemical exposure. known risks in using e-cigarettes, if influenced supposedly “independent” Beasley Allen is currently pursuing there are inadequate warnings, inaccu- studies that concluded Roundup was safe. cases on behalf of clients who developed rate warnings, or no warnings at all. Hundreds of lawsuits are currently one of these types of leukemias or lym- pending against Monsanto Co. in U.S. Dis- phomas following exposure to benzene- So far, the e-cigarette litigation has not trict Court in San Francisco, filed by containing products. If a person has been shown any signs of slowing down in plaintiffs alleging that their exposure to diagnosed with one of these diseases and 2018. In fact, the U.S. Fire Administra- Roundup caused them or their loved ones has a history of chronic benzene expo- tion’s statistics indicate that e-cigarette to develop NHL and that Monsanto sure, we are interested in investigating fire incidents have been steadily increas- covered up the risks of using their whether they have a potential claim. ing, coinciding with rapid growth of product. These cases have been consoli- If you would like more information, vaping products into a popular alterna- dated into a multidistrict litigation, and you can contact John Tomlinson, a lawyer tive to smoking tobacco. Daubert hearings are currently scheduled in Toxic Torts Section. He can be reached E-cigarettes have turned into a multibil- for the week of March 5, 2018. There are at 800-898-2034 or by email at John.Tom- lion-dollar industry, and according to a also several thousand similar claims filed [email protected]. 2016 National Health Interview Survey, against Monsanto in state court. If you have any questions about any of roughly 15 percent of adults reported If you would like more information, the above, contact Sandra Walters, the that they had used vaping products at you can contact Grant Cofer, a lawyer in Toxic Torts Section Director, at 800-898- some point. Toxic Torts Section. He can be reached at 2034 or by email at Sandra.Walters@beas- If you have any questions regarding the 800-898-2034 or by email at Grant. leyallen.com. Sandra will put you in litigation, or if you would like for us to [email protected]. touch with a lawyer. review a potential claim, contact Rhon Jones or Will Sutton, lawyers in our firm’s Benzene Litigation Update Toxic Torts Section, at 800-898-2034 or Oregon Sues Monsanto Over $100 Million by email at [email protected] Benzene is a carcinogenic liquid that is or [email protected]. widely used throughout the United PCB Pollution Cleanup States. Benzene is among the top 20 The State of Oregon has filed suit Mesothelioma Update chemicals produced by volume each year against Monsanto Co. over pollution and is used in a number of industries and caused by polychlorinated biphenyl Beasley Allen lawyers continue to products, yet many people remain (PCB). The suit was filed in an Organ handle mesothelioma cases in our region unaware of the toxic danger posed by state court seeking more than $100 and throughout the country. These are this chemical. Some industries in which million to cover damages and cleanup devastating for families who have a loved benzene is commonly used include the costs stemming from the toxic chemical, one diagnosed with mesothelioma, as the manufacture of plastics, resins, lubri- known as PCB. Oregon joined a slate of cancer is terminal and is caused by expo- cants, rubbers, solvents, and degreasers. cities and states, including its own Port- sure to asbestos. We have helped numer- Exposure to products containing land and neighboring Washington state, ous families navigate this difficult path. benzene can cause can cause life threat- that have sued Monsanto and linked com- Rhon Jones is the lead lawyer in these ening diseases, including Acute Myeloid panies for manufacturing the durable cases for our firm and he can be reached Leukemia (AML), Myelodysplastic Syn- chemical for decades—even after learn- at [email protected].” drome (MDS), Aplastic Anemia, and other ing that it was toxic to humans and types lymphomas and blood illnesses. animals and could contaminate the Roundup Litigation Update Occupations in which workers may be environment. exposed to benzene include: Lawyers at Beasley Allen are actively Oregon is still trying to remedy the investigating cases on behalf of farmers, • Tire and rubber workers damage to its natural resources and envi- landscapers, or others who used commer- ronment caused by PCBs, which are lin- cial-grade Roundup on a large scale and • Mechanics gering in the state’s lands, waterways and subsequently developed non-Hodgkins wildlife even though the chemicals have • Painters Lymphoma (NHL). The active ingredient been banned since the late 1970s. The in Roundup is a broad system herbicide • Gasoline workers complaint said: and crop desiccant called glyphosate. Roundup is manufactured by Monsanto, • Railroad and seamen Today, Oregon bears the burden of and is the company’s flagship product— Monsanto’s decision to place profit glyphosate is the most widely used weed • Printers above all else. The toxic legacy that Monsanto left Oregonians lives on, killer in the world. The seriousness of the poisoning as PCBs persist in Oregon’s lands, In July 2015, the International Agency caused by benzene depends on the rivers, and waterways, in its sedi- for Research on Cancer (IARC) issued a amount, route, and length of time of ments, soils, and in the bodies of report determining that glyphosate is exposure, with chronic long-term expo- animals and humans. It has caused “probably carcinogenic to humans,” and sure carrying the most risk. Because the harm to aquatic, marine, and specifically linked Roundup exposure to diseases caused by benzene exposure do avian species, and poses ongoing the development of NHL. Monsanto not manifest for several years after expo- risks to the health of the people of claims that the IARC is wrong and that sure to the chemical, many individuals the state of Oregon. Roundup is harmless to humans, yet may not recognize that there is any con-

JereBeasleyReport.com 25 Monsanto was the only company in the of fish and wildlife. The Attorney not recorded on the nursing home’s United States to manufacture PCB for General said: accounts. Some homes even contract out widespread commercial use between basic functions like management, or rent 1929 and 1977, distributing the fire-resis- PCBs are extremely hard to get rid their own building from a sister corpora- tant chemical nationwide for use in all of—and it will take significant time tion, saying it is simply an efficient way of sorts of products, including electrical and resources to fully clean them running their business and can help them equipment, paint and caulking. Even up. It only makes sense that the minimize taxes. though Monsanto’s internal research manufacturer of these PCBs, Mon- But a Kaiser Health News analysis of shows the company knew as early as santo, help clean up this mess federal inspection and quality records 1937 that PCBs were toxic to humans and with dollars! reveals that nursing homes that outsource animals and could contaminate the envi- As to be expected, Monsanto denies to related organizations tend to have sig- ronment, the company continued to sell liability and in a statement issued last nificant shortcomings: They have fewer the chemicals until they were banned month, said: nurses and aids per patient, they have under federal law. higher rates of patient injuries and unsafe Oregon alleges as the public began to Cleanup efforts are underway in practices, and they are the subject of grow concerned about the chemical in Oregon with the full group of complaints almost twice as often as inde- the 1960s, the company went so far as to responsible parties under supervi- pendent homes. In fact, Kaiser’s analysis assemble an internal team tasked with sion of the EPA, and it’s most revealed that these nursing home compa- concealing PCB’s harmful effects and important that everyone stay nies, on average, employed 8 percent deflecting criticism, “deciding instead focused on that work. This lawsuit fewer nurses and aids, were 9 percent that its financial bottom line—and, later, is baseless and undermines the more likely to hurt residents or put them its corporate reputation—were more ongoing EPA cleanup efforts, and in immediate jeopardy of harm, were important than the health and well-being Monsanto will defend itself fined 22 percent more often for serious of humans and the environment.” As a accordingly. health violations, and received 24 percent result, Oregon says Monsanto caused more substantiated complaints from their hundreds of millions of pounds of PCBs The suit is State of Oregon v. Mon- residents than were independent to enter the environment over the years, santo Co. et al., in the Circuit Court of nursing homes. and the chemicals continue to contami- the State of Oregon for the County of “Almost every single one of these nate public lands and waterways such as Multnomah. chains is doing the same thing,” says the Portland Harbor, as well as fish Source: Law360.com Charlene Harrington, a professor emeri- and wildlife. tus of the School of Nursing at the Univer- As we have previously reported, expo- sity of California-San Francisco. “They’re sure to the chemicals is dangerous to just pulling money away from staffing.” both animals, for whom it is known to XVI. Ms. Harrington’s statement was substanti- cause cancer, and to humans, for whom it UPDATE ON ated by the allegations in a Tennessee has been deemed a known carcinogen. In lawsuit. In that lawsuit, nurses and aids addition for humans other problems such NURSING HOME testified about how their nursing home as liver damage, skin conditions, nose LITIGATION corporation would add staffing for state and lung irritation, and learning impair- inspections while the rest of the time ment are caused by PCBs. Oregon state their pleas for more staffing to care for alleges the chemicals are hard to get rid Nursing Home Care Suffers As Owners residents went unheeded. of and bioaccumulate in fish and wildlife, Funnel Profits Into Related Companies These corporate webs and related which means that species further along party transactions bring the nursing the food chain accumulate PCBs from In what has become an increasingly home owners a legal benefit in addition eating smaller species. common business arrangement, owners to financial benefits: When a nursing Oregon is seeking to hold Monsanto of some nursing homes outsource a wide home is sued, injured residents and their responsible for the financial burden the variety of goods and services to compa- families have a much harder time collect- state has and will continue to incur as it nies in which they have a financial inter- ing money from the related companies— tries to clean up and remediate contami- est or that they control. Nearly the ones with the full coffers. This seems nated sites. The state’s claims include three-quarters of nursing homes in the to be an industry-wide strategy. In 2003, public nuisance, trespass and unjust United States—more than 11,000—have an article appearing in the Journal of enrichment. The suit also names Eastman such business dealings, known as related Health Law encouraged owners to sepa- Chemical Co. subsidiary Solutia Inc., party transactions, according to an analy- rate their nursing home businesses into which was a spinoff of original Monsan- sis of nursing home financial records by detached entities to protect themselves if to’s chemical products business, and Kaiser Health News, a nonprofit news the government tried to recoup overpay- Pfizer Inc. unit Pharmacia Inc., which service committed to in-depth coverage ments or if juries levied large negligence now operates the old company’s pharma- of health care policy and politics. judgments against the nursing home. ceutical business. In these related party transactions, Further, at a 2012 conference for execu- Oregon Attorney General Ellen Rosen- owners can establish highly favorable tives in the long-term health care indus- blum said in a statement that the state is contracts in which their nursing homes try, one presentation boasted that such paying a big price for Monsanto’s actions, pay more for basic services than they complex corporate structure was advan- as PCBs continue to be dredged up in might in a competitive market. Owners tageous because in lawsuits brought on river sediments and found in the tissues then siphon off higher profits, which are behalf of residents harmed by the nursing

26 BeasleyAllen.com home’s negligence discovery of the true represented by Beasley Allen lawyers Dee for which they bargained and are left corporate structure will be “too expen- Miles, who is head of the firm’s Con- without any choice but to accept the sive and time consuming,” and “financial sumer Fraud & Commercial Litigation patch to safeguard their personal infor- statements in punitive damages phase Section of the firm, and Leslie Pescia, a mation—which comes at the expense of shows less income and assets.” lawyer in the Section. the fast performance Intel marketed. Despite the nursing home industry’s Intel manufactures some of the fastest Further, the complaint alleges that con- efforts to avoid accountability and CPUs in the world, which are used in the sumers would not have purchased Intel’s protect their profits at all costs, lawyers most popular personal computers, includ- CPUs or would have paid substantially at Beasley Allen continue to fight for resi- ing cellphones, sold on the market. The less for the CPUs if Intel would have dents and their families who have been complaint filed by Beasley Allen alleges made them aware of the security flaw harmed by a nursing home’s abuse, negli- Intel touted the speed of its CPUs in and the necessity of a patch. gence or poor care. If you or your loved advertising and on the packaging for the If you would like to speak with a one has suffered serious injury or death processors. However, to manufacture lawyer regarding Intel’s “Meltdown” secu- because of nursing home abuse or faster CPUs, Intel took shortcuts that led rity flaw defect and deceptive marketing, neglect, or if you have any questions to the Meltdown security flaw in the contact Dee Miles at 800-898-2034 or by about nursing home abuse and neglect, defectively designed CPUs. The Melt- email at [email protected] or contact Chris Boutwell at Chris.Bout- down flaw allows hackers unauthorized Leslie Pescia at Leslie.Pescia@beasley- [email protected] or by phone at access to sensitive and private informa- allen.com. 800-898-2034. Chris handles nursing tion contained on the memories of per- Sources: Law360 and Reis v. Intel Corp., No. home litigation for our firm and he will sonal computers, including usernames, 5:18-cv-00074-SVK (N.D. Cal. Jan. 4, 2018). be happy to talk with you. Chris also has passwords and other personal informa- written a helpful brochure about identify- tion. The complaint alleges the security ing signs of nursing home abuse and flaw in Intel’s CPUs puts potentially mil- Petrobras To Pay Nearly $3 Billion To neglect, and steps you can take to file a lions of people at risk of fraud, having Settle Securities Class Action claim. You can request a copy of the bro- their identities stolen, and having chure at www.beasleyallen.com/books. malware installed on their personal Brazilian oil giant Petrobras has agreed Source: Kaiser Health News computers. to a tentative settlement to pay $2.95 Jann Horn, a security analyst for the billion to resolve an investor class action Google-run security research group over a corruption scandal that sent the named Google Project Zero, discovered prices of its securities falling. The XVII. the security defect in Intel’s CPUs in June company refused the U.S. Supreme Court An Update On 2017. Despite knowing about the security to delay its decision on whether to hear flaw in June 2017, Intel continued to the case. Jeremy Lieberman, one of the Class Action market and to sell CPUs containing the lawyers for the Plaintiffs, said the settle- Litigation security flaw. The Meltdown security ment would address the investors’ claims defect was not publicly announced until against both Petrobras and the banks that early January 2018. At the same time, underwrote its securities that were Intel announced that it was working to named in the consolidated lawsuit. The Intel’s ‘Meltdown’ Security Defect Sparks develop a “patch”—which is a software settlement must be approved by U.S. Dis- Litigation update—to secure personal computers trict Judge Jed Rakoff. Lawyers at Beasley Allen, along with against the Meltdown. Petrobras told investors the amount several other law firms, represent a pro- However, the patch will drastically would be paid in two installments of posed class of Plaintiffs in a federal slow the performance of the CPUs, $983 million 10 days after the court lawsuit filed against Intel Corporation. because correcting the security flaw grants preliminary and final approval of The suit comes after the corporation caused by Intel’s shortcuts in designing the settlement and a final payment of admitted to a security flaw in the design the CPUs is essentially correcting the $984 million by Jan. 15, 2019, or six of the central processing units (CPUs) exact feature that made the CPUs fast in months after final approval, whichever used in personal computers, which leaves the first place. These patches are esti- comes later. If the settlement is approved, every personal computer using an Intel mated to slow computers with Intel pro- it would end a closely watched lawsuit CPU vulnerable to hackers. The security cessers down by as much as 30 percent, that raised key questions about the limits vulnerability caused by Intel’s CPUs resulting in Intel CPUs no longer being of securities class actions. affects potentially millions of consumers the fastest on the market. Judge Rakoff’s original decision to and all computers using the processors The complaint filed by Beasley Allen certify two classes of investors was partly manufactured since at least 2004. The lawyers alleges various causes of action reversed by the Second Circuit last year computer industry refers to this major against Intel based on its deceptively mar- because it was unclear whether trades by security flaw or vulnerability as the keted CPUs containing the design defect. class members were “domestic” by the “Meltdown.” These causes of action include breach of standards set in the Supreme Court’s On Jan. 4, 2018, Plaintiffs Richard Reis warranty, unjust enrichment, and various 2010 Morrison ruling. and Zachary Finer filed a complaint in the state’s deceptive trade practices acts and Lieberman said the settlement to be United States District Court for the North- consumer protection statutes. The com- filed would define class membership in a ern District of California on behalf of all plaint alleges consumers with personal way supported by case law. While he said consumers who have purchased Intel computers containing Intel’s CPUs are it wasn’t clear how many investors could CPUs. Richard Reis and Zachary Finer are being deprived the benefit of the CPUs ultimately benefit from the deal, Lieber-

JereBeasleyReport.com 27 man said the Plaintiffs had sought about million; RBC Capital Markets LLC, $15.5 D. Hausfeld, Bonny E. Sweeney, Reena A. $15 billion in damages, a number he million; The Royal Bank of Scotland PLC, Gambhir, Timothy S. Kearns, Nathaniel called “highly aggressive.” The settlement $255 million; Societe Generale, $18 C. Giddings, Sarah R. LaFreniere, Michael comes more than a year after Petrobras million; Standard Chartered PLC $17.2 P. Lehman, and Christopher L. Lebsock of said it was setting aside $353 million to million; and UBS AG, $141,075,000. Hausfeld LLP. fund settlements with four investment The 15 settlements were negotiated The case is In re: Foreign Exchange firms that were among the biggest separately, with Credit Suisse AG remain- Benchmark Rates Antitrust Litigation, holders of its securities. ing the sole holdout among the banks (case number 1:13-cv-07789), in the U.S. The case is Petroleo Brasileiro SA - included in the sprawling multidistrict lit- District Court for the Southern District Petrobras et al. v. Universities Superan- igation. In their motion for approval of of New York. nuation Scheme Ltd., (case number attorneys’ fees, the investors say that Source: Law360.com 17-664) in the U.S. Supreme Court. although early settlements provided Source: Law360.com momentum and helped focus discovery efforts in the case, the work to prove a Pershing And Valeant Agree To A $290 conspiracy among all of the Defendants Million Settlement Ending Allergan Suits was challenging. And although there $2.3 Billion Investors’ Settlement Approval were parallel government investigations, Sought Hedge fund Pershing Square and only some of the Defendants’ foreign Valeant Pharmaceuticals have reached a Investors have asked a New York exchange-related conduct was targeted. $290 million preliminary agreement to federal court to give final approval to set- The lawyers are asking for $381 settle two investor suits pending in a Cali- tlements amounting to slightly more than million in fees. fornia federal court. The companies were $2.3 billion in settlements resolving puta- On behalf of all Plaintiffs’ counsel, the accused of an insider trading scheme in tive class claims that Bank of America lead counsel asked the court to award connection with Valeant’s attempted $55 Corp., Barclays Bank PLC, Citigroup Inc. 16.51 percent of the settlement fund— billion takeover of Allergan. The settle- and others rigged foreign exchange rates. $381,353,830.27—plus interest as attor- ment, which was announced on Dec. 29, The global banking giants faced claims neys’ fees, and also moved for the must be approved by the court. they were part of a scheme to manipulate reimbursement of $22,495,669.73 in liti- If approved, the settlement could rank foreign exchange markets over an gation expenses. The 16.51 percent cut among the largest shareholder class approximately six-year period. sought for the class counsel is compara- action settlements in 2017. It would As a result, settlements totaling ble to what’s been deemed fair and rea- require Pershing Square Capital Manage- $2,310,275,000 were reached with 15 of sonable by other courts in “mega-fund” ment LP to pay $193.75 million, which is the 16 Defendant financial institutions. cases, according to the fee motion roughly two-thirds of the total settle- This is the third largest antitrust class The action, filed in 2013 amid regula- ment. Valeant Pharmaceuticals Interna- action settlement ever achieved, accord- tory investigations, accused major finan- tional Inc. would be responsible for ing to the Plaintiffs’ filing. “Although gov- cial institutions of engaging in a scheme paying the remaining $96.25 million. The ernment regulators and prosecutors have to rig the $6 trillion foreign exchange settlement resolves claims brought by a imposed fines and reached settlements market from at least 2007 to 2013. In certified class of Allergan Inc. common with certain banks for FX-related miscon- 2016, a first round of settlements was stock sellers and a proposed class of duct, the 15 settlements here are the only given preliminary approval by U.S. Dis- traders in derivatives linked to Allergan ones that will return money to the trict Judge Lorna D. Schofield. In Septem- stock. Pursuant to the settlement, the victims of the misconduct,” the motion ber 2017, she gave the court’s initial common stock class would receive $250 for approval says. Class members have blessing to others, including, most million and the derivative class would responded positively to the settlements, recently, Deutsche Bank’s $190 million receive $40 million. according to the investors. The deal. The JPMorgan Settlement, The settlement came as U.S. District motion says: announced in January 2015, “was an ice- Judge David O. Carter was preparing to breaker, motivating other Defendants to issue a final ruling on summary judge- As of January 12, 2018, no class enter into negotiation,” according to the ment motions filed in the case brought by member has objected to the settle- motion for final approval. the common stock sellers. That case was ments, and of the potential hun- The cooperation from JPMorgan, and scheduled to go to trial late this month. dreds of thousands of class later UBS, helped to substantiate the con- Some of the claims involved in the set- members only six entities with spiracy, which included collusion on tlement date back as far as December minimal trading volumes have pushing through trades just before or 2014 and arise from investor allegations requested exclusion. during the time when benchmarks are of a scheme in which Valeant supposedly set, according to the investors, along with tipped off Pershing Square in February The Defendants and their individual using chatrooms and other mechanisms settlement amounts are: Bank of America, 2014 about its impending hostile takeover to set rates. of Allergan so that Pershing could buy $187.5 million; Bank of Tokyo-Mitsubishi Co-lead class counsel are Christopher UFJ Ltd., $10.5 million; Barclays, $384 stock in Allergan and commit that stake M. Burke, Walter W. Noss, Kristen M. in support of Valeant’s takeover bid. million; BNP Paribas SA, $115 million; Anderson, Stephanie A. Hackett, David R. Citigroup, $402 million; Deutsche Bank Investors have said Pershing Square then Scott, Joseph P. Gugliemo, Donald A. “covertly” acquired a massive 10 percent AG, $190 million; Goldman Sachs Group Broggi, Peter A. Barile III, Sylvia Sokol Inc., $135 million; HSBC Holdings PLC, stake and gleaned billions in profits by and Thomas K. Boardman of Scott & selling on the news of the takeover bid. $285 million; JPMorgan Chase & Co., Scott Attorneys at Law LLP, and Michael $104.5 million; Morgan Stanley, $50 Third-party bidder Actavis wound up

28 BeasleyAllen.com making a tender offer of $219 per share raise its prices. The buyers also allege the $250,000 for notice costs. Philippine Air- that beat Valeant’s $200 per share bid. companies made agreements to change lines would pay $9 million, and Air New The cases are In re: Allergan Inc. their price quoting practices around the Zealand would pay $400,000 plus Proxy Violation Derivatives Litigation, same time, conspiring to no longer $250,000 toward notice costs. (case number 2:17-cv-04776), and In re: provide so called job quotes, which used The litigation dates back to 2007, when Allergan Inc. Proxy Violation Securities to lock prices in for the duration of a spe- passengers accused a group of airlines of Litigation, (case number 8:14-cv-02004), cific project regardless of market conspiring to fix prices on long-haul both in the U.S. District Court for the fluctuations. trans-Pacific flights to Australia, New Central District of California. In August of last year Judge Baylson Zealand and the Pacific Islands. Most of Source: Law360.com certified a class of direct purchasers, the carriers have already settled the case. which includes distributors, buying coop- Air France, Japan Airlines International eratives and contractors, that purchased Co., Vietnam Airlines Co., Thai Airways paper-backed gypsum wallboard directly International Public Co. Ltd., Malaysian Drywall Makers To Pay $125 Million To from the Defendants anytime in 2012 or Airline System Bhd. and Cathay Pacific Settle Price-Fixing Claims 2013. However one day later, the judge Airways Ltd. agreed to deals totaling Three drywall manufacturers have rejected a certification request from a $29.6 million in 2014. agreed to pay a class of direct purchasers group of indirect buyers that said they A few months later, there were two $125 million to settle price-fixing claims purchased the products from third more settlements with Singapore Airlines pending in multidistrict litigation (MDL) parties such as The Home Depot Inc. or Ltd. and Qantas Airways worth $9.2 being overseen by a Pennsylvania federal Lowe’s Companies Inc. between 2012 million and $550,000, respectively. The court. These settlements agreements and the present. Judge Baylson found the court ultimately approved those settle- bring the total settlement amount for the indirect purchasers failed to provide a ments over the objections of one class class up to $190.7 million. The settlement feasible way of determining class mem- member who challenged the settlements will end the direct purchasers’ portion of bership, and knocked the group’s pro- and lost at the Ninth Circuit. The the litigation. posal for a class period that extends to Supreme Court refused in December to National Gypsum, Eagle Materials Inc. the present. review the case despite claims the settle- and PABCO Building Products were the The direct purchasers are represented ments were marred by intraclass con- last of seven Defendants in multidistrict by H. Laddie Montague Jr., Eric L. Cramer, flicts. The other five carriers had sought litigation that began in 2013. Previous set- Ruthanne Gordon, Michael C. Dell’Angelo summary judgment, saying that the suit tlements with three other companies— and Candice Enders of Berger & Mon- was barred by the filed-rate doctrine Lafarge North America Inc., TIN Inc. (or tague PC; Kit A. Pierson and David A. because the U.S. Department of Transpor- Temple-Inland) and USG Corp.—bring Young of Cohen Milstein Sellers & Toll tation (DOT) oversees the airlines’ fares the total amount of settlements for direct PLLC; and Eugene A. Spector, Jeffrey J. and surcharges. purchasers in the case to nearly $191 Corrigan, Rachel E. Kopp and Jeffrey L. The district court denied, however, million. In 2016, U.S. District Judge Spector of Spector Roseman Kodroff & and the Ninth Circuit upheld that ruling Michael Baylson of the Eastern District of Willis PC. The case is In Re: Domestic in a split decision. The panel found that Pennsylvania granted summary judgment Drywall Antitrust Litigation, (case the doctrine, which bars suits over as to a seventh Defendant, Cer- number 2:13-md-02437), in the U.S. Dis- federal agency-approved rates, did not tainTeed Corp. trict Court for the Eastern District of shield the airlines. The district judge cor- The latest settlements were made with Pennsylvania. rectly ruled that it was a question of fact affiliates of American Gypsum Co., Source: Law360.com as to whether the DOT was regulating National Gypsum Co. and PABCO Build- fares and surcharges that the airlines did ing Products LLC. The prior agreements not directly file with the agency, and that a material dispute of fact must thus be were reached with three other manufac- Airlines To Pay $29.4 Million To Settle settled via trial. The Ninth Circuit panel turers, including Lafarge North America Price-Fixing Class Action Inc. Kit A. Pierson, a partner with Cohen agreed. The two remaining Defendants, Milstein who served as co-lead counsel in Three airlines accused of fixing the Eva and All Nippon, asked the Supreme the case, said in a statement: price of long-haul flights to Pacific desti- Court in October to review the issue. nations have agreed to pay a total of $29.4 The Plaintiffs are represented by Adam We are pleased with this settlement million to settle a proposed class action. J. Zapala and Elizabeth Castillo of Cotch- for our class of 14,000 plaintiff enti- The Plaintiffs moved for preliminary ett Pitre & McCarthy LLP, and Michael D. ties and believe it sends a strong approval in the Northern District of Cali- Hausfeld, Seth R. Gassman, Michael message to the rest of the industry. fornia of the settlement agreements with Lehmann and Christopher Lebsock of When companies violate the anti- Philippine Airlines Inc., Air New Zealand Hausfeld LLP. The case is In re: Transpa- trust laws and drive up prices for Ltd. and China Airlines Ltd. The settle- cific Passenger Air Transportation Anti- their customers, they will be held ments will leave just two carriers in the trust Litigation, (case number accountable. suit—All Nippon Airways Co. Ltd. and 3:08-md-01913) in the U.S. District Court for the Northern District of California. The suits, which were consolidated in EVA Airways Corp.—which have asked 2013, accuse the drywall manufacturers the U.S. Supreme Court to review Source: Law360.com of conspiring to hike prices starting in whether the filed-rate doctrine should let 2011, while the companies have argued them escape the suit. they were just following the lead of China Airlines agreed to the largest set- American Gypsum, which was the first to tlement: $19.5 million in cash plus

JereBeasleyReport.com 29 Toyoda To Pay Purchasers $34 Million In C. Kohn of Kohn Swift & Graf PC; Steven they discover that the proposed settle- Auto Parts Antitrust MDL A. Kanner of Freed Kanner London & ment isn’t quite adequate. Millen LLC; and Eugene A. Spector of There are two related actions in A putative class of direct buyers who Spector Roseman Kodroff & Willis PC. Oregon state court that claimed Com- sued Toyoda Gosei Co. Ltd. over alleged The MDL is In re: Automotive Parts Anti- Score’s 2016 merger with Rentrak Corp. price-fixing of occupant safety systems trust Litigation, (case number 2:12-md- included breaches of fiduciary duty that have asked a Michigan federal judge to 02311) in the U.S. District Court for the have already been settled for $19 million. approve a $34 million settlement with Eastern District of Michigan. The case is The settlement in those Oregon cases the manufacturer. This is the latest settle- In re: Occupant Safety Systems—Direct covered claims against Rentrak Defen- ment to emerge from a massive multidis- Purchaser Actions, (case number 2:12- dants who allegedly ignored warning trict litigation (MDL) against auto cv-00601), in the same court. signs to merge with ComScore, and industry companies. In 2012, the direct Source: Law360.com because of a high degree of crossover purchasers had accused Toyoda—and between the Oregon classes and the New other companies such as TRW Automo- York case, class counsel said the parties tive Holdings Corp. and Autoliv Inc.—of agreed to dismiss claims against the ComScore Investors Agree To $110 Million conspiring with other auto parts manu- Rentrak Defendants in the New York Settlement Over Inflated Stocks facturers to suppress and eliminate com- settlement. petition for occupant safety systems Investors in ComScore Inc., a media The class comprises all those who through price-fixing and bid-rigging. analytics company, have asked a New bought or otherwise acquired ComScore The case is part of a huge MDL that fol- York federal judge to approve a $110 stock from February 2014 through lowed the U.S. Department of Justice’s million settlement over alleged inten- November 2016; all those who held stock own expansive investigation into the auto tional miscalculations the company’s in Rentrak as of December 2015 and were parts industry, which has already yielded accounting department made that caused entitled to vote on the merger; and those more than $1 billion in fines. The MDL artificial stock value inflation and led to who acquired ComScore stock based on has been split into separate proceedings heavy losses. According to the proposed the company’s Oct. 30, 2015, registration for different automotive parts, including settlement, ComScore will pay the class statement and were subse- those filed by automotive dealerships for $27 million in cash, as well as stocks quently damaged. automotive wire harnesses, switches, valued at $82.7 million. Claims brought The class will likely include thousands, steering angle sensors and HID ballasts. by potentially thousands of shareholders based on the fact that comScore had The latest settlement comes in a pro- who saw their share prices fall more than nearly 40 million outstanding shares of ceeding focused on occupant safety 33 percent after the company announced common stock during the class period, systems. Seeking recovery of triple the it needed to recalculate three years of with an average daily trading volume on damages they suffered by paying more incorrect financial statements will the NASDAQ of more than 400,000 shares for the systems than they would have be settled. per week. paid sans an illegal conspiracy, the direct The settlement was said to be a consid- The class is represented by John C. purchasers have reached multiple settle- erable achievement given the financial Browne of Bernstein Litowitz Berger & ments with the companies involved in condition of ComScore and the potential Grossmann LLP and Sharan Nirmul and the MDL. In June 2014, Autoliv paid $65 ability to pay issues presented in this Margaret E. Mazzeo of Kessler Topaz million to exit the litigation. In Septem- case. The securities class action was ini- Meltzer & Check LLP. The case is ber 2014, the class of car buyers scored a tially filed in March 2016, after ComScore Sommer v. ComScore Inc., et al., $5.4 million deal with TRW. disclosed that its audit committee had (number 1:16-cv-01820) in the U.S. Dis- Toyoda became the next domino to fall been contacted about “potential account- trict Court for Southern New York. in November, agreeing to the proposed ing matters” and would therefore be Source: Law360.com $34 million settlement. The settlement launching an investigation. does not release Toyoda Gosei from In its amended complaint, the class claims based on indirect purchases of alleged ComScore executives knew that occupant safety systems or claims based its accountants had been misreporting XVIII. on negligence, personal injury or product revenues, but lied to investors and media THE CONSUMER defects. In a footnote, the direct purchas- companies about the trajectory of the ers said the settlement amount is subject company. When the March 2016 auditing CORNER to reduction, but will be no less than announcement came, the class said stock $14.25 million based upon the level of prices—which had nearly doubled in less requests for exclusion by class members. than two years based on the inflated Avoiding Winter Fire Hazards The group comprises all individuals revenue reports—came falling down. and entities who purchased occupant The investors will drop their claims When most people think of winter safety systems in the U.S. directly from that ComScore violated sections 10(b) storms, they think of relaxing snow days companies involved in the alleged con- and 20(a) of the Securities Exchange Act filled with soup and snowball fights. spiracy between January 2003 and Feb- in return for $110 million, pending a While trying to keep warm, the last thing ruary 2015. review of internal ComScore documents on anyone’s mind is that their source of The direct purchaser Plaintiffs are rep- and interviews of ComScore witnesses. heat could be fatal. However, heating is resented by David H. Fink of Fink & Asso- Lead Plaintiffs also have the right to with- the second leading cause of U.S. home ciates Law; Gregory P. Hansel of Preti draw from the proposed settlement after fires, deaths and injuries. December, Flaherty Beliveau & Pachios LLP; Joseph the due diligence discovery practice if January and February are the peak

30 BeasleyAllen.com months for heating fires. In 2011–2015, completely. In the home, heating and Price, a lawyer in our firm, at 800-898- U.S. fire departments responded to cooking equipment that burn fuel are 2034 or by email at Jeff.Price@beasley- 54,030 home structure fires that involved potential sources of CO. Portable genera- allen.com. heating equipment. tors, while useful during power outages, These fires caused 480 civilian fire present a risk of carbon monoxide poi- deaths, 1,470 civilian fire injuries, and soning. According to a 2013 Consumer Nearly 40,000 Users’ Payment Card Details $1.1 billion in direct property damage. Product Safety Commission report, half Stolen In Major Security Breach Involving Space heaters are the type of equipment of the generator-related deaths happened OnePlus most often involved in home heating in the four coldest months of the year, equipment fires, figuring in two of every November through February, and porta- OnePlus confirmed last month that it five fires (40 percent). The leading factor ble generators were involved in the had suffered a major data breach poten- contributing to ignition for home heating majority of carbon monoxide deaths tially compromising the payment card fire deaths (53 percent) was heating involving engine-driven tools. Keep por- details of up to 40,000 customers. In an equipment too close to flammable items, table generators outside, away from email sent to customers on Jan. 19, the such as upholstered furniture, clothing, windows, and as far away as possible Chinese phone maker said its website, mattress or bedding. from your home. The NFPA recommends OnePlus.net, was hacked with a malicious To avoid heating source fires, the installing and testing carbon monoxide script injected into the company’s National Fire Protection Agency (NFPA) alarms at least once a month. payment page designed to harvest sensi- recommends keeping anything that can Source: NFPA.orgt tive data from visitors’ browsers. OnePlus burn at least three feet away from any said in a statement: heat source like fireplaces, wood stoves, radiators or space heaters. Plug only one The malicious script operated inter- Claim Filing And Opt Out Date For Ocwen heat-producing appliance (such as a space mittently, capturing and sending TCPA Settlement Approaches heater) into an electrical outlet at a time. data directly from the user’s browser. It has since been elimi- Have a qualified professional clean and The date for consumers to opt out of or nated. We have quarantined the inspect your chimney and vents every file a claim in a Class Action Settlement infected server and reinforced all year. Store cooled ashes in a tightly between Ocwen, a mortgage servicing relevant system structures. covered metal container, and keep it firm, and homeowners is rapidly outside at least 10 feet from your home approaching. The date set for potential Customers who entered their credit and any nearby buildings. class members to file a claim or opt out of card details on OnePlus’ website between Another winter fire hazard is carbon the Settlement and file an individual mid-November 2017 and Jan. 11, 2018, monoxide (CO), an odorless, colorless gas claim is set for March 5, 2018. may have been affected by the breach. created when fuels such as gasoline, Even though the settlement is antici- Compromised data includes customers’ wood, coal, propane, etc. do not burn pated to pay out less than $100 per claim- credit card numbers, expiry dates and ant, it does provide for security codes. The company said users future injunctive relief. By who paid with a previously saved credit filing a claim, if Ocwen con- card on file, PayPal or the “Credit card via tinues to make automated PayPal” methods “should not be affected” calls to a consumer’s cellular by the intrusion. It added that customers’ telephone, Ocwen has card details are never processed or stored agreed to pay between on the OnePlus.net site. “It is sent directly $1,000 and $1,500 per phone to our PCI-DSS-compliant payment pro- calls. By contrast, if an indi- cessing partner over an encrypted con- vidual can prove a violation nection, and processed on their secure of the Telephone Consumer servers,” it noted. Protection Act (TCPA), that Only potentially affected users have person could be entitled to received a notification email regarding $500 to $1,500 per phone the breach and have been offered a year call received in violation of of credit monitoring. that statue. The disclosure comes several days after The class definition covers reports of credit card fraud began certain consumers who were popping up earlier this month after users contacted by Ocwen purchased OnePlus products from the between Oct. 27, 2010 and official OnePlus.net store. The company Oct. 6, 2017. If you believe temporarily shut down credit card pay- you are included in this ments for its online store last week and class, it is important to check launched an investigation into the on https://www.ocwentcpa- “serious issue” with the assistance of a settlement.com. third-party security firm. The issue was If you would like to first reported by forum user @superdu- discuss a potential Tele- tynick. OnePlus has not provided any phone Consumer Protection details of the cause of the breach or when Act case, please contact Jeff

JereBeasleyReport.com 31 the malicious script was inserted issues affect your vehicle. The full list of replaced, enter its VIN on the NHTSA by hackers. vehicles affected by the air bag recall, recall website. Customers have been advised to check broken down by manufacturer, is also their payment card statements for any available on the NHTSA website, www. potentially suspicious activity. OnePlus is nhtsa.gov. Western Gas Recalls Propane Gas Due To working with its providers and local Fire And Burn Hazards authorities to better address the incident. Source: International Business Times Ford Issues Safety Recall In North America Western Gas Partners LP, of The Wood- For Certain 2006 Ranger Vehicles lands, Texas, has recalled about 45.7 million gallons of Propane (LP) Gas. The Ford Motor Company has identified recalled propane may not contain suffi- XIX. approximately 3,000 2006 model year cient levels of odorant to help alert con- RECALLS UPDATE Ranger vehicles in North America with sumers to a gas leak. Failure to detect airbag inflators that pose a higher risk of leaking gas can present fire, explosion rupturing in the event of a crash. Dealers and thermal burn hazards. This recall We are again reporting a fairly large are prepared to get vehicles directly from involves under-odorized propane (LP) gas number of safety-related recalls. It should customers, make permanent repairs that delivered to consumers’ storage tanks or be noted that there were fewer auto will resolve the safety risk and provide a sold at retail locations in portable cylin- recalls in January. We have included some free interim loaner vehicle, if necessary, ders (for use in recreational vehicles, bar- of the more significant recalls that were according to Ford. beques, stoves and other appliances). issued in January. If we have missed any Affected vehicles include certain 2006 Propane tanks that have been inspected significant automobile recalls, let us Ford Rangers built at Twin Cities Assem- for the level of odorant or have been know. If more information is needed on bly Plant from Aug. 10, 2005, to Dec. 15, refilled after November 2017 are any of the recalls, readers are encouraged 2005. The recall involves approximately not affected. to contact Shanna Malone, the Executive 2,902 vehicles located in North America, The gas was distributed in Colorado, Editor of the Report. We would also like with 2,712 located in the United States Montana, Nebraska, South Dakota and to know if we have missed any safety and federalized territories and 190 in Wyoming, delivered by various compa- recalls that should have been included in Canada. The Ford reference number for nies and sold by various retailers from this issue. this recall is 18S02. Ford has a VIN April 2015 through October 2017. Con- look-up tool at Ford.com that customers sumers should not attempt to test the can use to determine if their vehicle is propane themselves. Instead, consumers Takata Air Bags Recall Expands To Include one of those involved in this action. It who have propane delivered to storage An Additional 4.3 Million Vehicles can be found at http://owner.ford.com. tanks should immediately contact their supplier or Western Gas to determine Takata is recalling an additional 4.3 whether their propane is affected and million faulty air bag inflators as it Mazda Announces Expanded Takata Airbag arrange for a free inspection. If the expands the largest automotive recall in Recall For B-Series Pickup Trucks inspection confirms the propane con- U.S. history. The phased recalls began in tains insufficient levels of odorant, May 2016 stemming from previous Takata Mazda has also announced a new Western Gas will promptly arrange for air bag incidents, and will continue Takata call back affecting B-Series trucks. additional odorization or replacement of through December 2019. The latest One hundred and sixty B-Series pickups the under-odorized propane. recalls cover frontal air bags in certain are getting called back by the automaker Consumers who have purchased a por- 2009, 2010 and 2013 vehicles made by to fix the deadly airbag defect that has table cylinder should contact the retailer Honda, Toyota, Audi, BMW, Daimler taken the lives of 18 people worldwide. or the Western Gas hotline to determine Vans, Fiat Chrysler, Ford, General Motors, Previously addressing the driver-side whether their propane may be affected Jaguar-Land Rover, Mazda, Mercedes- airbags, the latest expansion now extends and if so, return the cylinder to the Benz, Mitsubishi, Nissan, Subaru and to the passenger-side front airbags in retailer for a replacement. If consumers Tesla. Automakers will provide specific certain B-Series vehicles. do smell even a faint odor of gas or a gas models in paperwork that will be filed Almost 200 Mazda B-Series pickups got leak, they should immediately leave the later this month with the National a second call back to fix their Takata building and call 911 or their gas supplier Highway Traffic Safety Administration airbags. The automaker strongly urges from a neighbor’s phone. Do not light a (NHTSA). Notices of the expanded recalls B-Series owners to immediately stop match, turn on a light or switch on any- were posted on the agency’s website. driving their trucks until the issue is thing electrical. Contact Western Gas toll- NHTSA maintains a list of vehicles fixed. The B-Series pickup, which has the free at 833-444-1451 from 9 a.m. to 5 p.m. affected and guidance on steps to take if same platform as the Ford Ranger MT Monday through Friday, email at a car is affected. To find out if a vehicle is pickups, was manufactured with identi- [email protected] or online at on the recall list for defective Takata air cal Takata airbags. Dealerships will www.propaneawareness.com. Pictures bags, visit NHTSA website. All defective replace the defective airbags at no cost to available here: https://www.cpsc.gov/ Takata air bags are under recall and will the customer. Mazda customers should Recalls/2018/Western-Gas-Recalls-to- be replaced for free. NHTSA has an call the Customer Experience Depart- Inspect-Propane-Gas-Due-To-Fire-and- online lookup tool where drivers can ment if their vehicle is affected at 800- Burn-Hazards enter a Vehicle Identification Number 222-5500. If you are not sure whether (VIN) to determine if any safety or recall your car is in need of its Takata airbags

32 BeasleyAllen.com HP Recalls Batteries For Notebook Fujifilm Recalls Power Adapter Wall Plugs screen LED/LCD televisions with tabletop Computers And Mobile Workstations Due To Sold With Digital Cameras Due To Shock swivel stands. The mounting screws that Fire And Burn Hazards Hazard connect the swivel stand to the television can come loose and cause the television HP Inc., of Palo Alto, California, has FUJIFILM North America Corporation, to tip over and fall off the stand unex- recalled about 50,000 lithium-ion batter- of Valhalla, New York, has recalled about pectedly, posing serious tip-over and ies for HP notebook computers and 270,000 Power adapter wall plugs sold entrapment hazards that can result in mobile workstations in the U.S. and an with Fujifilm digital cameras. The power injuries or death to children. This recall additional 2,600 that were sold in adapter wall plug can crack, break or involves Panasonic 55-inch, LED/LCD flat Canada. The lithium-ion batteries can detach and remain in the wall and expose screen televisions with a tabletop swivel overheat, posing fire and burn hazards. live electrical contacts, posing a shock stand intended for use in hotels, govern- This recall involves lithium-ion batteries hazard. This recall involves AC-5VF ment buildings and schools. The televi- for HP Notebook computers and mobile power adapter wall plugs sold with Fujif- sions are black and “Panasonic” is printed workstations. The batteries were shipped ilm digital camera models XP90, XP95, on the front. The television’s model with or sold as accessories for HP Pro- XP120, XP125, X-A3 and X-A10. The number is TH055LRU50. The model Books (64x G2 and G3 series, 65x G2 and digital cameras were sold in a variety of number is printed on a tag located in the G3 series), HPx360 310 G2, HP Envy m6, colors. The recalled wall plugs are black center of the back of the television. The HP Pavilion x360, HP 11, HP ZBook (17 and are combined with a power adapter swivel stand is a glossy black color and G3, 17 G4, and Studio G3) Mobile Work- and USB cord that plugs into the adapter. measures 50.5 inches long by 32 inches stations. The batteries were also sold as Model number “AC-5VF” is printed on the tall by 11.1 inches deep. There is a label accessories or replacement batteries for back of the power adapter. The serial on the front underside of the base as well the HP ZBook Studio G4 mobile worksta- number is printed on the bottom of the as a number etched into the metal. tion or for any of the products listed camera or under the battery compart- The television and swivel stands were above. HP has received eight reports of ment lid. To check your serial number, sold to hotels, government buildings and battery packs overheating, melting, or visit http://fujifilmusa.com/support/ schools from July 2012 through March charring, including three reports of prop- recall/index.html 2014 for about $1,825 for the television erty damage totaling $4,500 with one The cameras were sold at mass mer- and the swivel stand. Consumers using report of a minor injury involving a first chandisers, electronics and membership the swivel stand should immediately degree burn to the hand. club stores nationwide and online at detach it, place the television in a safe The computers were sold at Best Buy Amazon.com and other websites. The location away from children and contact and other stores and authorized dealers XP90 and XP95 were sold from June 2016 Panasonic for a free repair kit. Contact nationwide and online at www.Amazon. through January 2018, the XP120 and Panasonic toll-free at 855-772-8324 com, www.hp.com and other websites. XP125 were sold from January 2017 between 8 a.m. and 8 p.m. ET Monday The batteries were shipped in notebook through January 2018, the X-A3 was sold through Friday, email prodisplaysup- computers and mobile workstations sold from October 2016 through January [email protected] or online at from December 2015 through December 2018, and the X-A10 was sold from Febru- www.panasonic.com and click on 2017 for between $300 and $4,000. The ary 2017 through January 2018. The “ANNOUNCEMENT” for more informa- batteries were also sold separately for digital cameras were sold for between tion. Pictures available here: https:// between $50 and $90. Consumers should $160 and $600 with the power adaptor www.cpsc.gov/Recalls/2018/panasonic- immediately visit www.HP.com/go/bat- wall plugs. Consumers should immedi- recalls-flat-screen-televisions-and-swivel- teryprogram2018 to see if their battery is ately stop using the recalled power stands-due-to-tip-over-hazard included in the recall and for instructions adapter wall plugs and contact Fujifilm on how to enable “Battery Safety Mode” if for a free replacement. Consumers can their battery is included in the recall. The continue to charge the camera using the Skip Hop Recalls Convertible High Chairs website provides consumers instructions USB cable attached to a computer. Due To Fall Hazard on how to initiate the validation utility to Contact Fujifilm toll-free at 833-613-1200 check their battery and what to down- from 9 a.m. to 8 p.m. ET Monday through Skip Hop, Inc., of New York, has load if their battery is included in the Friday, email at productsafety@fujifilm. recalled about 7,900 Tuo Convertible recall. These batteries are not customer- com, or online at www.fujifilmusa.com High Chairs in the United States. An addi- replaceable. HP will provide free battery and click on “Support & Contact” for tional 2,000 were sold in Canada and are replacement services by an authorized more information. Pictures available also part of the recall. The front legs on technician. Contact HP toll-free at 888- here: https://www.cpsc.gov/ the highchair can detach from the seat, 202-4320 from 8 a.m. to 7 p.m. CT Recalls/2018/Fujifilm-Recalls-Power- posing fall and injury hazards to children. Monday through Friday or online at Adapter-Wall-Plugs-Sold-with-Digital-Cam- This recall involves the charcoal colored www.HP.com/go/batteryprogram2018 or eras-Due-to-Shock-Hazard Tuo convertible high chair, which can be www.hp.com and click “Recalls” for converted into a toddler chair. The style more information. Pictures available numbers are 304200 and 304200CN with here: https://www.cpsc.gov/ Panasonic Recalls Flat Screen Televisions a date code found on the back of the Recalls/2018/HP-Recalls-Batteries-for- And Swivel Stands Due To Tip-Over Hazard chair as follows: HH102016, HH11/2016, Notebook-Computers-and-Mobile-Work- HH3/2017 and HH4/2017. The highchairs stations-Due-to-Fire-and-Burn-Hazards Panasonic Corporation of North have a reversible seat pad, removable America, of Newark, New Jersey, has tray, 5-point harness, beechwood footrest recalled about 755 Panasonic 55-inch flat and legs. Skip Hop has received 13

JereBeasleyReport.com 33 reports of the legs of the high chairs with a pre-existing lower lung capacity should immediately take bean bag chairs detaching, resulting in two reports of may also be more susceptible to air embo- with the recalled covers away from chil- bruises to children. lisms. The FDA advised health care facili- dren and contact Comfort Research for a The high chairs were sold at: Babies ties and providers to examine their full refund. This recall involves Comfort ”R” Us, Buy Buy Baby, Target, Kohls, Dil- inventories for the sheath and return any Research’s Ultra Lounge bean bag chair lards and other children specialty stores unused ones to Sterilmed. Providers covers. The natural polyester Sherpa, nationwide and online at Amazon.com should continue to monitor patients teardrop-shape bean bag chair cover mea- and Skiphop.com from December 2016 treated with the sheath as normal, the sures 28 inches by 28 inches by 36 inches through September 2017 for about $160. FDA said. A Sterilmed representative said and has two zippers on the exterior. The Consumers should immediately stop on Wednesday that the company initiated covers were sold without foam bead using the recalled high chairs and contact the recall in June and has not received filling in a DIY package. The covers have Skip Hop for a free replacement. Contact any reports of adverse events related to three sewn-in tags. One tag reads “id Skip Hop toll-free at 888-282-4674 from 9 the devices. COLORS” on the front and “RN48711” on a.m. to 5 p.m. ET Monday through Friday, the back. The second tag has the UPC or online at www.skiphop.com and click label code “PO#12991” or “PO#13539” on on “Recalls” for more information. Pic- Bed Bath & Beyond Recalls Hudson the front. And, the third tag has the care tures available here: https://www.cpsc. Comforters By UGG Due To Risk Of Mold and use instructions printed on one side gov/Recalls/2018/Skip-Hop-Recalls-Con- Exposure and the warning notice on the other. vertible-High-Chairs-Due-to-Fall-Hazard The bags were sold at Kroger, Meijer Liberty Procurement Co. Inc., of Union, and Shopko from April 2017 through New Jersey, an affiliate of Bed Bath & August 2017 for between $30 and $40. FDA Issues Highest-Level Recall For J&J Beyond Inc., of Union, New Jersey, has Contact Comfort Research toll-free at Heart Device recalled about 175,000 Hudson comfort- 844-578-8933 from 9 a.m. to 5 p.m. ET ers by UGG. Mold can be present, posing Monday through Friday or online at The U.S. Food and Drug Administration a risk of respiratory or other infections in www.comfortresearch.com and click on (FDA) announced its strictest form of individuals with compromised immune the Safety Recall Notices link for more recall for a cardiac device manufactured systems, damaged lungs or an allergy to information. Pictures available here: by a Johnson & Johnson unit because a mold. This recall involves Hudson com- https://www.cpsc.gov/Recalls/2018/ faulty valve poses the risk of a patient forters by UGG. The polyester comforters Comfort-Research-Recalls-Bean-Bag- becoming seriously injured or dying. The were sold in four different solid colors: Chair-Covers-Due-to-Risks-of-Entrapment- FDA identified the recall of Agilis Steer- garnet, navy, gray, and oatmeal, and three Suffocation-to-Children able Introducer Sheath devices made by sizes: twin, full/queen, and king. Once again, as stated above, there have Sterilmed Inc. as a Class I recall, its most The comforters were sold at Bed Bath been a fairly large number of recalls since serious type. The sheath is used to insert & Beyond stores nationwide and online at the last issue. We included those of the and position cardiovascular catheters, www.bedbathandbeyond.com from highest importance and urgency. If you including on the heart’s left side through August 2017 through October 2017 for need more information on any of the the wall of tissue separating the right and about $70 (twin), $90 (full/queen), and recalls listed above, visit our firm’s web left chambers of the heart. The sheath’s $110 (king). Consumers should immedi- site at www.BeasleyAllen.com or our blog hemostatic valve, which blocks blood ately stop using the recalled comforters at www.RightingInjustice.com. We from flowing back through the valve, is at and return them to Bed Bath & Beyond would also like to know if we have risk of failing because of an improper seal for a full refund. Contact Bed Bath & missed any significant recall that involves on the sheath’s hub, the FDA said. Beyond at 800-462-3966 any time or a safety issue. If so, please let us know. As “Improper seals can allow blood to leak online at www.bedbathandbeyond.com indicated at the outset, you can contact through the hub, cause the cap to fall off and click on “Product Recall Information” Shanna Malone at Shanna.Malone@beas- during the procedure or can create a dif- at the bottom for more information. Pic- leyallen.com for more recall information ference in pressure that allows air into tures available here: https://www.cpsc. or to supply us with information the circulatory system (air embolism),” gov/Recalls/2018/Bed-Bath--Beyond- on recalls. the FDA said. Recalls-Hudson-Comforters-by-UGG-Due- The improper seal happens when there to-Risk-of-Mold-Exposure isn’t enough glue used to reattach the sheath’s cap after use, the FDA said. And XX. too much glue can also block the valve Comfort Research Recalls Bean Bag Chair FIRM ACTIVITIES and make the device unusable, according Covers Due To Risks Of Entrapment, to the FDA. “The use of affected products Suffocation To Children may cause serious health consequences for patients, including death,” the FDA Comfort Research LLC, of Grand Beasley Allen names New Principals In Firm said. There are 112 affected devices Rapids, Michigan, has recalled about included in the recall, which covers 1,200 Ultra Lounge bean bag chair Beasley Allen has named Stephanie sheaths made between Jan. 1, 2017, and covers. The zippers on the bean bag chair Monplaisir and Evan Allen as new Princi- May 5, 2017, according to the FDA. covers can be opened by children who pals in the firm. Both Stephanie and Evan Patients with a lower body mass index can then crawl inside, become are lawyers in the firm’s Personal Injury may be more at risk if there is blood loss, entrapped, suffocate or choke on the and Products Liability Section. “Stepha- the FDA said. Smaller patients and those bean bag chair’s foam beads. Consumers nie and Evan are two talented attorneys

34 BeasleyAllen.com who work tirelessly for their clients on oldest sister, Frances, has just graduated Paralegal Certificate in 1993 while attend- behalf of the firm and we are thankful to from Huntingdon. ing Huntingdon College. have them here with us,” said Tom In his free time, Evan enjoys cars, In October, Valerie and her husband, Methvin, who is the firm’s Manag- working on his motorcycle, fishing and Robert, celebrated their 20th wedding ing Attorney. running. We are pleased to have another anniversary. She and Robert have three Stephanie joined Beasley Allen in 2011 member of the Miles family with us. Evan children, who are all grown, and one and she handles complex litigation and is a very good, hard-working employee. granddaughter. They enjoy attending appellate proceedings for the firm. She Auburn football games and relaxing at has argued and tried cases in state and TIFFANY ROBERTS home. They are also crazy about animals federal courts and has been an important Tiffany Roberts joined our firm in and currently enjoy caring for their three a member of the trial team in several December 2014 in the Mass Torts Section. Yorkies and four cats. Valerie admits she notable cases, helping secure more than She is currently investigating cases loves caring for any other animals she can $30 million in verdicts and settlements. involving proton pump inhibitors’ (PPIs) sneak into the house. When she has spare Evan joined the firm full time in 2012 link to kidney disease and also works on time, you can find Valerie reading, or and he now primarily handles on-the-job cases involving defective metal-on-metal watching a cooking show. products liability cases. Evan has handled hip implants. Tiffany says the ability to Valerie says she loves her position at many cases involving defective machine help solve problems is her favorite part of the Firm and that she happily assists design, inadequate guarding and the her position as a staff attorney Graham, Dana and Theresa Perkins every removal of safety devices. He has also with the firm. day. We are blessed to have this dedicated handled negligent installation and main- Tiffany graduated from Jacksonville hard-working employee with the firm. tenance cases involving tires and heavy State University in December 2008 with a trucks, and has secured numerous ver- B.A. in political science. She says a legal ELIZABETH WILLIAMS dicts and settlements on behalf of career was chosen because of its stability. Elizabeth Williams, a digital marketing his clients. Tiffany graduated from Faulkner Universi- assistant in our Marketing Department, is Stephanie and Evan are two very good ty’s Thomas Goode Jones School of Law the firm’s photographer and videogra- lawyers and we are blessed to have then in May 2012, becoming a member of the pher. She captures and visually communi- at Beasley Allen. It is critically important Alabama State Bar in September of that cates our story. From the excellent to keep young lawyers coming in and year. During law school, Tiffany was an graphics showcased on our websites, to then staying with the firm. Stephanie and Editor on The Law Review and president the trendy videos on our social media Evan are typical of the young lawyers we of the Student Animal Legal Defense platforms, to the graphic design of have at Beasley Allen. All of our lawyers Fund, Jones Chapter. Prior to joining Beasley Allen’s various publications and put the interests of their clients first and Beasley Allen, Tiffany worked as a clerk signage, Elizabeth’s work personifies work hard to obtain justice for them. for the Honorable Judge Tracy McCooey our brand. in Montgomery County Circuit Court. In March 2015, Elizabeth joined the Tiffany is a supporter of various animal firm as a staff assistant in the Toxic Torts organizations and fosters for the Mont- Section. After her talent as a photogra- Beasley Allen Employee Spotlights gomery Humane Society. She lives in Pike pher and her passion for graphic design Road with her cats, Oliver and Jack, and were discovered by the folks who “run” EVAN MILES dogs, Dexter and Josie. Tiffany is a dedi- our firm, Elizabeth moved to what is now Evan Miles began working at Beasley cated, hard-working lawyer and we are our firm’s Marketing Department. She is Allen just over a year ago as a runner. His fortunate to have her with the firm. particularly proud that she is a “self- position sends him around the firm and taught” artist and appreciates having a around town picking up and delivering VALERIE G. WALKER job that also provides a channel for her supplies, paperwork and performing a Valerie Walker is employed as a legal creativity. Elizabeth is thankful for the number of other tasks daily. In that job, secretary for Graham Esdale and Dana G. strong work ethic instilled by her mom, a Evan stays very busy. Taunton. Among her many contributions single mother who adopted Elizabeth Evan is dual-enrolled at Auburn Univer- to the work of the two Personal Injury when she was a baby. sity Montgomery and is working on and Product Liability Section lawyers, The self-professed “mamarazzi” con- earning college credits while finishing up Valerie helps keep client files organized, fesses that her own daughter Kinsley, or high school at Ezekiel Academy. After transcribes dictation, and helps Dana Kins (5), is the subject of most of her graduating this year, he plans to attend prepare briefs for the Section. time and photography when Elizabeth Huntingdon College or Auburn Valerie previously worked for the Firm isn’t at work. And Elizabeth says, “I love University. between May 2001 and February 2002 being a mom!” Raised in a Catholic home, Evan is the and worked with Graham and Theresa Elizabeth just celebrated her first anni- youngest child of Dee and Sandra Miles. during her initial stay Beasley Allen. versary with our marketing department. Dee is the head of our firm’s Consumer Valerie says that she was fortunate to She does very good work and is a most Fraud & Commercial Litigation Section. return to the Firm in 2016, noting she valuable employee. We are fortunate to Evan’s brother, Wilson, is a student at even works at the same desk and same have her talents and dedication to the University of Alabama Birmingham and a location as she did when she first began firm with us. member of Tau Kappa Epsilon fraternity. her journey at Beasley Allen. His oldest sister, Lauren, is a lawyer with For nearly 30 years Valerie has worked a very good law firm, the Schreiber Law as a legal secretary or paralegal in a Firm, in Birmingham. Evan’s second number of areas of law and obtained her

JereBeasleyReport.com 35 XXI. RSA legal staff has only one side: our help other lawyers around the country members’ protection. with their practices. These books are free SPECIAL to lawyers, and available as digital RECOGNITIONS When I came to the RSA, we only e-books for download to your Kindle or had one attorney—me! Now, RSA other device. We will also be happy to members have a very professional send you a hard copy of any of these legal department with only one publications. Alabama Is Fortunate To Have Dr. David objective: Making the RSA as sound Bronner In Charge At RSA and safe as possible. The 6-6 vote for Aviation Litigation hiring independent fiduciary counsel Dr. David G. Bronner, the CEO of the failed thanks to Board members In his book, Aviation Litigation & Retirement Systems of Alabama (RSA), David Bollie, Jim Fibbe, Bill Flowers, Accident Investigation, Beasley Allen has been in Alabama for about 47 years. Ben Powell, Steve Walkley, and Steve lawyer Mike Andrews discusses the com- He came to the state to attend law school Williams. plexities of aviation crash investigation at the University of Alabama. Fortunately and litigation. He provides basic instruc- for Alabamians, and especially for teach- On top of this attempted move, the tion on investigating an accident, preserv- ers and state employees, David stayed in Finance Director suggested we have ing evidence, and anecdotal instances of our state. He taught at the University and too much invested in stocks (oops, military and civilian crashes. later became Assistant Dean of the Law that gave the RSA its high returns for School. I met David in 1973 when he took years), and the RSA now needs more Whistleblowers the job at RSA. bonds. Buying even more bonds at David has done a tremendous job for 2% or less would truly give you a In this book, Whistleblowers: A Brief RSA and he has contributed greatly in reason to criticize the RSA staff! History & A Guide to Getting Started, many ways to his adopted state. However, lawyer Lance Gould, a lawyer who Maybe the general public and some David still has his critics. Some of these handles whistleblower litigation for the members do not understand—the critics have ulterior motives of a political firm, provides background on whistle- RSA made $4.0 BILLION in “net nature. Some of the critics would like to blower law, and how it now applies to investment earnings” in FY2017 (for get their hands on the funds being organizations including Medicare/Medic- those who focus on losses, losses are handled by RSA to use to plug holes in aid, the IRS and SEC, and motor vehicle deducted) and paid out $3.2 billion state budgets. Others just believe they safety. Learn how to identify a whistle- in pensions. could do a better job of handling invest- blower claim and navigate these complex claims. ments, even though they have no prior YET the assets increased by $1.7 experience. billion for the TRS and $942.0 Trucking Litigation One of David’s strong points is that you million for the ERS—or $2.6 billion. never have to wonder where he stands on By the way, YOUR RSA investment Chris Glover, who practices in our any given issue. He is outspoken and staff cost was $9 million for FY2017. Atlanta office, wrote An Introduction to doesn’t let controversy bother him. In my Truck Accident Claims: A Guide to Two other southern states that are opinion, David is an outstanding Ameri- Getting Started. This volume covers the same size but with “outside can and a tremendous asset to Alabama. topics including the basics of trucking money managers” (that some politi- Dr. Bronner wrote a short piece regulations and requirements, how to cians on the ERS Board desire) cost recently discussing a topic that affects all prepare for your case, potential Defen- one state $340 million and the other state employees, including teachers, in dants, and common issues that arise in state $360 million for ONE year! the state’s retirement system. I am includ- commercial vehicle litigation. ing his remarks below. David Bronner is one of the smartest After decades of ERS Board meet- individuals I have ever dealt with. He has Tire Litigation ings, I must admit I still marvel at brought together a talented, hard-work- The purpose of Ben Baker’s book, Tire how some politicians work to get ing and well-respected staff at RSA. There Litigation: A Primer, is to provide their hands on ERS funds. Remem- are plenty of checks and balances in lawyers with a guidebook to evaluating ber, the TRS Board is controlled by place to make sure the retirement system tire litigation. Although tire failures, the members, the ERS Board is not. operates properly and efficiently. I trust blowouts and detreads are foreseeable Maybe it is time for ERS members to David to do his job and to do it well. Han- and preventable events, all too often con- do something about that! A first for dling the funds and making good invest- sumers are unaware of the potential me in my forty-plus years at the RSA ments is extremely important and his dangers from defective, old or degraded was how some current ERS Board record is one of the best in the country. tires. Ben handles tire litigation for the members wanted to hire their own My advice to the legislators is to let this firm and is in our Personal Injury & Prod- outside attorney to make legal deci- man do his job! ucts liability Section. sions for the Board. One trustee actu- ally said, “We just need different We have created a page on our website voices.” Great! Let’s just have total Books Written By Beasley Allen Lawyers that allows anyone to easily download a chaos. Maybe he does not under- digital copy of a book or folks can request stand that lawyers are paid to argue Lawyers in our firm have become a hard copy of our publications. They are one side or the other of an issue. The leaders in several areas of litigation. available at www.beasleyallen.com/ Several of them have written books to

36 BeasleyAllen.com books. You can also call 800-898-2034 to of the Year. He also has been selected for own FCA lawsuit or whistleblowers request a copy of a book. inclusion on the Best Lawyers in America (known as “relators”) may file a qui tam list since 2016 and to the 2017 Super suit on behalf of the government. If a suit Lawyers list. is filed by a realtor, the realtor litigates Kendall Dunson Recognized As 2017 Kendall is a tremendously talented the case unless the government decides Alabama Law Foundation Fellow lawyer who is totally dedicated to his to intervene. At the end of the litigation, clients and to the quest for justice. We are the realtor will receive 15-30 percent the Beasley Allen lawyer Kendall Dunson blessed to have him with the firm. government’s recovery. has been selected as a 2017 Alabama Law The CLE will be held from 11:30 a.m. Foundation Fellow. At the start of every through 2:30 p.m. on Wednesday, March year, the Alabama Law Foundation selects Dr. Margaret Thompson Named To The 7, at the Frank M. Johnson U.S. Court- Alabama Bar members who have shown National Physicals Alliance Board Of house Complex. The CLE will be moder- outstanding dedication to their profes- Directors ated by R. Scott Oswald of the sion and their community by inviting Employment Law Group. Among the pan- them to become Fellows. Since no more Beasley Allen lawyer Margaret Thomp- elists are Andrew Brashier, from our firm; than 1 percent of Bar members are son, MD, JD, MPAFF was recently named Jerusha Adams, Assistant U.S. Attorney invited into fellowship, the selection to the board of directors of the National for the Middle District of Alabama; Don committee chooses new members from Physicians Alliance. The National Physi- Long, Assistant U.S. Attorney for the an exceptional group of lawyers. cians Alliance is an advocacy group com- Northern District of Alabama; Deidre Kendall handles product liability, mitted to advancing the core values of Colson, Assistant U.S. Attorney for the general personal injury and workers’ the medical profession: Service, Integrity, Southern District of Alabama; Thomas K. compensation cases involving defective and Advocacy. Dr. Thompson is one of Potter III, a lawyer with Burr & Furman; industrial machinery as a member of the few doctor-lawyers working in the and the Honorable Keith Watkins, Chief Beasley Allen Law Firm’s Personal Injury field of women’s health advocacy. Her Judge of the U.S. District Court for the and Product Liability Section. He has medical expertise, combined with her Middle District of Alabama. worked on numerous cases to compen- legal and public policy knowledge and Anyone interested in learning more sate clients for their losses and influence passion for women’s issues, makes her an about the FCA is encouraged to attend corporations to design and manufacture effective crusader for women’s reproduc- the CLE. For more information and to reg- safer products. tive health rights and progressive health ister, visit http://www.fedbar.org/Sec- Most recently, Kendall has been policy. We are blessed to have her with us tions/Qui-Tam-Section/Qui-Tam- involved in several multimillion dollar at Beasley Allen. Section-Calendar/False-Claims-Act-Today- lawsuits, including a $24.75 million Alabama-.aspx. verdict in a premises liability case; a A number of lawyers at Beasley Allen $18.79 million verdict in a commercial Andrew Brashier Featured On A CLE Panel are experienced with the False Claims Act and have had successful results in truck product liability case; a $5.75 Involving The False Claims Act million verdict in a maritime lawsuit; and FCA litigation. Our lawyers are able to a $4.7 million verdict in a seat belt failure On Wednesday, March 7, Andrew guide whistleblowers along the process. case. He and his Beasley Allen law Brashier, a lawyer in our firm’s Consumer If you have any information and would partner Mike Andrews also recently Fraud & Commercial Litigation Section, like to speak with a lawyer, contact secured an $8 million jury verdict on will participate in a CLE panel discussing Andrew Brashier at Andrew.Brashier@ behalf of a woman who was seriously the False Claims Act (FCA). The CLE is beasleyallen.com; Archie Grubb at injured when her Volkswagen suddenly sponsored by the Federal Bar Associa- [email protected]; Lance accelerated out of her control and tion’s Qui Tam Division and features Gould at [email protected]; crashed. notable FCA practitioners overviewing and Larry Golston at Larry.Golston@beas- Kendall was a member of the trial team the FCA, discussing relevant cases and leyallen.com. You can also call them at that handled a wrongful death case trends regarding the FCA, and providing 800-898-2034 or 334-269-2343. against a corporate defendant resulting in diverse perspectives and practice tips Sources: 31 U.S.C. §§ 3729 et seq. (West); https:// the largest jury verdict ever in Selma, regarding the FCA. This CLE is part of a www.justice.gov/sites/default/files/civil/ Alabama. That suit influenced the corpo- series of CLEs aligned with select U.S. legacy/2011/04/22/C-FRAUDS_FCA_Primer.pdf, rate defendant to outfit its entire fleet of http://www.fedbar.org/Sections/Qui-Tam-Section/Qui- Attorneys’ offices across the country Tam-Section-Calendar/False-Claims-Act-Today- trucks with audible backup alarms. He created to demystify the filing and gov- Alabama-.aspx. also handled the suit over a bus collision ernment investigation inherent in FCA case in Huntsville, Alabama, that caused qui tam cases. the death of four students and numerous The FCA imposes liability on persons Beasley Allen Sponsors 5K And Youth injuries. The suit resulted in the cancella- or companies who defraud the govern- Donut Run To Benefit Brantwood tion of the contract between the county ment or its programs and serves as the Children’s Home and the defendant, which had the duty to federal government’s primary tool for safely transport students to school in combatting fraud against the govern- For the second year our firm will be Madison County. ment. The law provides that anyone who the proud sponsor of Brantwood Chil- Kendall was selected as Beasley Allen’s conspires or knowingly submits false dren’s Home’s annual 5k Love Run and Litigator of the Year in 2013, and again in claims, whether to receive or avoid pay- Youth Donut Run through downtown 2015. In 2014, Kendall was recognized as ments, is liable for the government’s Montgomery! The race will be held on our firm’s Personal Injury Section Lawyer damages. The government may file its Saturday, Feb. 10.

JereBeasleyReport.com 37 Past race participants have billed it and become the same value that XXIII. “the toughest 5k in Montgomery,” You, Jesus, are to the Father and designed to simulate the incredible hard- have the destiny (joint heirs) that CLOSING ships some of Brantwood’s children have you have. Because God, You my OBSERVATIONS endured in their short lifetimes. More Father didn’t send the gift of Jesus than a home, Brantwood really is a place my Lord to shame, place guilt on, or where children are nurtured and sup- judge us here in the world, but to ported just as they would receive at home save us from the world and its ways Beasley Allen Represents Clients In Their with family. Archie Grubb, a lawyer in that destined us for destruction. Quest For Justice our firm, is serving as the President of Thank you Father and my Lord In January 1979, I was considering my Brantwood’s Board of Directors this year. Jesus for such a wonderful love for work options for my future and I wanted Since 1917, Brantwood Children’s me and all who will believe! Thank to stay in Montgomery. I had served as Home has been providing a safe, stable, you Holy Spirit for revealing and Lieutenant Governor under Gov. George structured environment for abused, bringing us to such an Awesome Wallace, and even served as “Acting Gov- neglected and other “at-risk” children. and Almighty Love! ernor” in 1972 after the governor was Currently Brantwood serves children and shot in Maryland in an assassination youth ages 10-21. Brantwood offers pro- Rachel Boyd, a lawyer in our firm, sent attempt. I didn’t always agree with Gov. grams that are designed to help these in two verses for this issue. Rachel works Wallace on some of his positions, but young people cope with and succeed in in the Consumer Fraud & Commercial Lit- that’s another story for another day. society. For more information about igation Section. She believes the first Feeling that politics and public service Brantwood programs, visit www.brant- verse, Proverbs 31:8-9, really goes to the was a road I needed to stay on, in 1978 I woodchildrenshome.org. heart of Beasley Allen’s fundamental mission and that is to help those who made a run for Governor. But I was need it most. As lawyers, Rachel says its soundly defeated in the race. our duty to speak for those who need us Having been Lt. Governor for eight XXII. and defend their rights, ensuring that years, and prior to that having been a they receive justice. She says Proverbs 31: fairly successful lawyer for about eight FAVORITE BIBLE 8-9 is a verse that all lawyers should years, I felt that I would have no problem VERSES always keep in mind. securing a position with a good law firm. I sent out resumes in the Fall of 1978 to a Speak up for those who cannot number of firms in Montgomery since I Bruce Hudgins, who works at the speak for themselves, for the rights wanted to live and work in Montgomery. Retirement Systems of Alabama as a of all who are destitute. Speak up I was certain that I would have several Senior Technical Support Analyst, says and judge fairly; defend the rights offers to consider. However, I was one of his favorite bible verses is one of the poor and needy. Prov- shocked when I didn’t get even a single familiar to all of us. That verse is erbs 31:8-9. reply from law firms in the Capital City. John 3:16 -17. I must admit that while I was some- The second verse is from John and is what disappointed, I didn’t let it get me For God so loved the world that He special to Rachel. She says, “sometimes down. In late December, I went by to see gave His only begotten Son, that we all need a reminder to be more like Judge Frank M. Johnson to ask his advice whoever believes in Him should not Jesus; to let the joy and love of Jesus on what I should do. I explained my perish but have everlasting life. For radiate from within.” financial situation to him and told him God did not send His Son into the that I really needed to find a job so that I world to condemn the world, but A new command I give you: Love could support my family and start paying that the world through Him might one another. As I have loved you, so off campaign debts. I asked him if I be saved. John 3:16-17 you must love one another. John 13:34 should consider working for a state Bruce has expressed his love and agency. I had been offered a low level appreciation for these verses in the fol- Kwanzaa White, who does a tremen- cabinet position by Gov. Fob James. lowing prayer: dous job as a receptionist with the firm, Judge Johnson, in his stern manner, sent in Proverbs 16:3 as a verse for this with his glasses down on his nose, told My Father, your abundant and issue. She says “This is a short verse, but me that I needed to practice law and to extreme love for the world (us and it’s meaning is so BIG. I read it often, and represent folks who needed help. He told everything You created in it) it helps me to realize that no matter how me that too many lawyers were afraid to caused You, out of that true nature small we think we are contributing, we take on the rich and powerful in corpo- that You are (Love), to give Your all have a great task and purpose. If we rate America. I left Judge Johnson’s office most valued treasure—a treasure commit to doing God’s will and honoring without any job prospects, but with a that nothing can match or attain HIM in all that we do, the reward will be good feeling about my future as a lawyer. the value of. You gave your only great, and it makes everything we do After a blessed Christmas season, I Son (Jesus) so that any of us in the meaningful.” started in earnest to make plans for world that were destined to destruc- opening a law office. It was now certain Commit thy works unto the Lord, tion because of sin, who were not that I was going to be a sole practitioner. and thy thoughts shall be estab- worthy in and of ourselves, and My desire was to be a lawyer who would lished. Proverbs 16:3King James without hope in the world, could help folks who needed help in their quest Version (KJV) believe on You, Jesus, and receive for justice. The wise counsel that Judge

38 BeasleyAllen.com Johnson had given to me was still firmly Woe to those who decree unrigh- Having attended a segregated school embedded in my mind. The fact that a teous decrees, Who write misfor- and playing on a football team made up man of his status had confidence in me tune, Which they have prescribed. of all whites, and living through the tense was a definite inspiration. But I also knew To rob the needy of justice, And to times in Alabama after the Brown v. I would face a real challenge since I was take what is right from the poor of Board of Education decision in 1954, I basically starting all over again My people, That widows may be can identify with what the players at T.C. as a lawyer. their prey, And that they may rob Williams High School and the townspeo- I rented a small office in Montgomery the fatherless. ple in Alexandria had to deal with. Those on Hull Street from my friend Irvin years were not good times for America. Winter. I was the only lawyer and Karen Isaiah 10:1-2 The film does a tremendous job of Lewis, who had worked with me in the reflecting the divisive nature of the times. Lt. Governor’s office, had agreed to be my I am still determined to be cheerful The racial tensions were very high in secretary. Karen was taking a big gamble and happy, in whatever situation I those days and most whites could not because with her ability and work ethic may be; for I have also learned accept the changes they felt were being she could have had a much better job from experience that the greater forced on them. with a much more promising future. We part of our happiness or misery The head coach of the Titans was black added one more clerical employee and depends upon our dispositions, and and he had replaced a very popular white opened for business on Jan. 7, 1979. not upon our circumstances. coach who became his assistant and Today, the firm operates as Beasley, defensive coordinator. Denzel Washing- Allen, Crow, Methvin, Portis & Miles, Martha Washington (1732 - 1802) ton played the role of Herman Boone and P.C., and is one of the largest Plaintiff’s did a tremendous job. The white coach law firms in the country. Beasley Allen is The only title in our Democracy (played by Will Patton) had a real difficult one of Montgomery’s largest employers, superior to that of President is the time accepting his new demoted role. To with 80 attorneys and more than 250 title of Citizen. make things even more difficult for the support staff. We also have an office in team and their coaches, all other schools Atlanta, which extends our reach in the Louis Brandeis, 1937 in the football-crazy school district were Southeast and allows us to serve more U.S. Supreme Court Justice not segregated. So each week the Titans clients. Beasley Allen has successfully faced an all-white team. represented hundreds of thousands of The dictionary is the only place that The movie shows how the courage of people across the United States. success comes before work. Hard individuals and the power of sports can God has blessed me with both the work is the price we must pay for transcend perceived and ingrained differ- ability and the desire to be a lawyer who success. I think you can accomplish ences. We can all learn lots from the helps people who need the help of a trial anything if you’re willing to pay Titans. Therefore, regardless of whether lawyer. It’s one of the greatest pleasures the price. you have seen the movie, see it—you will of my job to know when people leave our be blessed! I have seen it at least three office, they are in better shape, and that Vincent Lombardi times and plan on seeing it again. we have helped to make their lives better. We have become extremely divided in America. In recent years, racism has reared its ugly head and that is intolera- Our Monthly Reminders XXIV. ble. There is far too much hate in PARTING WORDS America and much of it is based on If my people, who are called by my nothing more than racism. name, will humble themselves and My prayer today is for unity in this pray and seek my face and turn Recently, my wife Sara and I watched a country and for an end to the rise in from their wicked ways, then will I fairly old movie that I recommend to all racism. We must allow God to control our hear from heaven and will forgive Americans. The message from this movie lives and when He is in control, love will their sin and will heal their land. is one that is most timely considering the replace hate, and folks will accept their racial problems facing our country today. differences and concentrate on the many 2 Chron 7:14 The movie, Remember the Titans, first things that make them alike. We cannot played in theaters in 2000. It was based tolerate racism in the United States and All that is necessary for the triumph on a true story of how in 1971 a football must unify in our efforts to stamp it out of evil is that good men do nothing. team in Alexandria, Virginia, and the entirety. God loves all of His people! people in the town, dealt with racial inte- Edmund Burke gration of the school and the team.

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JereJere BeasleyBeasley, has the been founding an advocate member for victims of of Beasleywrongdoing Allen since Law 1962, Firm, practicing has lawpracticed in his lawhometown as an ofadvocate Clayton, for Alabama, victims until of wrong he was- doingelected sinceLieutenant 1962. Governor During hisof thecareer, state heof hasAlabama tried in hundreds 1970, beginning of cases. his termJere's in numerJanuary- ous courtroom victories include landmark 1971. During his career, he has tried hundreds of cases that have made a positive impact cases. Jere’s numerous courtroom victories include upon our society. His areas of practice landmark cases that have made a positive impact include litigation in products liability, insuranceupon our society. fraud, His business, areas of practicenursing includehome andlitigation personal in products injury. liability, insurance fraud, business, nursing home and personal injury. Jere established a one-lawyer firm that officiallyOn January opened 15, 1979, on Jan.Jere established15, 1979, and a one- he filedlawyer his firm first in case Montgomery, on behalf ofAlabama, the practice now onknown Jan. as Beasley,17, 1979. Allen, Now, Crow, itMethvin, has been Portis 30 & yearsMiles, P.C..since He he filed began his first with case onthe behalf intent of theof "helpingpractice on those January who 17, 1979.need It it has most." been nearly Today, 40 the firm is known as Beasley, Allen, Crow, years since he began the firm with the intent of Methvin, Portis & Miles, P.C., still located “helping those who need it most.” Today, Beasley in Montgomery, Alabama. Beasley Allen Allen has offices in Atlanta and Montgomery. It is is one of the country's leading firms involvedone of the incountry’s civil litigationleading firms on involvedbehalf ofin claimants,civil litigation having on behalf represented of claimants, hundreds having of thousandsrepresented hundredsof people. of thousands The firm of people.employs more than 250 people in Montgomery, includingBeasley Allen more employs than more70 attorneys. than 250 people in Montgomery, including more than 70 attorneys.

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