April 2021 - Beasley Allen Law Firm
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April 2021
I. fully, the minimum wage proposal, which is badly needed,
will continue to be pushed by the Biden Administration.
Additionally, the Senate included provisions that will
CAPITOL OBSERVATIONS fully cover COBRA health insurance premiums for laid-
off workers, exempt student loan forgiveness from tax-
ation, and opened state and local aid to broadband and
A Rescue For America other infrastructure.
President Joe Biden signed the $1.9 trillion pandem- Child tax credits, currently set at $2,000, are being
ic relief package into law on March 11, providing some raised to $3,000 and could go as high as $3,600 for chil-
of the most aggressive measures in modern U.S. history dren five years old and younger –a measure that should
aimed at keeping families and businesses hammered by be made permanent. The package raised the age limit for
the coronavirus afloat. This is a true rescue measure for child tax credits from 16 to 17.
the American people and one that was badly needed. By directing much of the rescue money on credits
The American Rescue Plan passed the House on a 220- and programs that benefit American families and mak-
211 vote after adopting the Senate’s changes. I agree with ing some of those measures long-term or permanent,
House Speaker Nancy Pelosi, who called the bill “a re- researchers estimate that the American Rescue Plan will
markable, historic, transformative piece of legislation cut child poverty in the U.S. in half.
which goes a very long way to crushing the virus and Republicans in both the House and Senate voted
solving our economic crisis.” While the cost is huge, tre- against the bill on party lines, criticizing it as “socialism.”
mendous needs throughout the country made the res- The bill, however, doesn’t leave working Americans at the
cue package an absolute necessity. mercy of huge corporations, which have been the big-
There has been some opposition to the package by a gest recipients of tax cuts, taxpayer subsidies, and other
number of politicians, some obviously speaking on behalf top-targeted corporate welfare programs. It was a rescue
of the super-rich. But the rescue effort has overwhelming measure for American families, who have been falling into
support among the vast majority of the American people. poverty at alarming rates, especially during the pandemic.
We must put things in perspective. While most Amer- Sources: CNBC, Law360.com and President Joe Biden (U.S. White-
icans were hurt economically because of the pandemic, house/Office of the President)
the 25 richest Americans did exceedingly well over the
past 12 months. The average net worth of these rich-
est Americans in March of 2020 was $43.45 billion, and IN THIS ISSUE
12 months later, in March of this year, their average net
worth had increased by 50% to $65.58 Billion. So for those I. Capitol Observations...................................................2
who are fussing about what President Biden did, I must II. The Role of Trial Lawyers Today ..............................3
remind them of who did well financially and who all were III. Court Watch ................................................................... 4
hurt during the pandemic, which by the way, isn’t over. IV. The Talc Litigation ....................................................... 5
While the tax cuts during the Trump years were for V. The Opiod Litigation .....................................................6
higher-income folks, and specifically for the super-rich, VI. Purely Political News & Views .................................8
this effort by the Federal Government was for the people VII. The Whistleblower Litigation ................................. 10
who badly needed help economically and socially. VIII. Product Liability Update ........................................... 11
Let’s take a look at the sweeping measures in the stim- IX. Update on the Boeing Litigation ........................... 13
ulus package, which include $400 billion in direct relief X. The JUUL Litigation ....................................................14
to U.S. individuals and families; $350 billion in economic XI. Mass Torts Litigation ................................................. 15
aid to state and local governments and Native American XII. Insurance Industry Litigation ................................ 15
tribes; a $250 billion boost in unemployment benefits; XIII. Employment and FLSA Litigation .......................... 16
$170 billion in relief to schools and universities; a $160 XIV. Premises Liability Litigation ................................... 17
billion expansion in individual and corporate tax cred- XV. Workplace Hazards ................................................... 17
its; and $125 billion for COVID testing and vaccines and XVI. An Update on Motor Vehicle Litigation ............... 19
related public health efforts. XVII. Toxic Tort Litigation ...................................................22
Additional provisions provide benefits for expanded XVIII. The Ongoing Roundup Litigation .........................23
tax credits to help Americans pay for health insurance XIX. Class Action Litigation.............................................24
under the Affordable Care Act (ACA) and $80 billion to XX. Pharmacy Benefits Manager (PBM) Litigation...26
save union pension plans. XXI. The Consumer Corner ..............................................26
All of these measures will address real needs caused by XXII. Current Case Activity at Beasley Allen .............28
the pandemic over 12 months. Had the Trump Adminis- XXIII. Resources to Help Your Law Practice ................29
tration dealt with the pandemic in February and March XXIV. Practice Tips of the Month For Trial Lawyers ..29
of 2020, this rescue package would not have been need- XXV. Recalls Update ...........................................................30
ed or have been at a vastly lesser cost. XXVI. Firm Activities .............................................................30
The Senate altered various sections of the original bill XXVII. Special Recognitions ...............................................32
and reduced the cost by $77 billion. The income caps for XXVIII. Favorite Bible Verses ................................................32
stimulus checks were set at $80,000 for an individual and XXIX. Closing Observations ...............................................33
twice that amount for couples. The upper chamber also XXX. Our Monthly Reminders ...........................................34
lowered unemployment benefits to $300 per week but ex- XXXI. Parting Words .............................................................34
tended the payments through Sept. 6. The proposed fed-
eral minimum wage of $15 per hour was taken out. Hope-
2 BeasleyAllen.comII. pylene mesh products have been removed from the
market. Physicians are now more aware of the issues
caused by transvaginal mesh and the alternative
THE ROLE OF TRIAL LAWYERS TODAY treatments available for stress urinary incontinence
and pelvic organ prolapse.
Mass Torts Trial Lawyers Make A Difference Talcum Powder Litigation – Johnson’s Talcum Baby
Powder was first introduced to the market in the 1890s
We continue our focus on the role that trial lawyers and has since been used by tens or even hundreds
play in regulating corporate America, this time looking of millions of people worldwide. However, Johnson
at some notable cases handled by Beasley Allen’s Mass & Johnson (J&J) did not reveal that since the 1930s,
Torts Section. Government regulation of pharmaceuti- there has been growing concern about the harmful
cals and medical devices relies on the pharmaceutical effects of talc. Talc is mined out of the ground and
and medical device companies to disclose all that they can be contaminated with dangerous heavy metals
know about their products – good and bad. When those and fibers, including asbestos. Additionally, talc has
companies fail to disclose important risks of serious been known to cause granulomas, foreign body reac-
injuries, lawyers help bring those risks out in the open tions, and other adverse effects in human tissue. Due
and hold the companies accountable. For more than 20 to these concerns, talc was removed from surgical
years, Beasley Allen lawyers have successfully handled gloves and condoms decades ago.
many important cases involving pharmaceuticals and
Meanwhile, women commonly used baby powder
medical devices. More recently, we’ve expanded to con-
as part of their feminine hygiene routines. This was
sumer products that have caused serious injuries.
strongly encouraged by J&J. Talc used in the genital re-
Beasley Allen cases that have made a difference gion to migrate up the genital tract into the fallopian
tubes ovaries and ultimately cause ovarian cancer. J&J
Vioxx – 80 million people took the pain medicine Vi- has been aware of the issues with talc and asbestos for
oxx worldwide. In 2004, the Food and Drug Admin- decades and never warned consumers of these dangers.
istration (FDA), physicians, and the public learned
In the 1960s, J&J started developing a cornstarch
what Merck had known for years – in some patients,
substitute for talc as they were concerned with fu-
Vioxx causes blood clots and narrowed blood ves-
ture litigation; however, after they were able to influ-
sels which in turn causes heart attacks and strokes.
ence many of the regulators in the country, including
Earlier studies had shown heart risks, and Merck
the FDA, J&J kept its talcum powder product on the
scientists worried about Vioxx causing heart attacks
market. Unfortunately, greed won over safety at J&J.
long before the first pill was ever sold. By the time
After several epidemiological studies were published
of its withdrawal, Vioxx had caused heart attacks or
showing the association between genital talc use
strokes in over 100,000 people. Vioxx was removed
and ovarian cancer, the first talcum powder ovarian
from the market September 30, 2004.
cancer trial was conducted in South Dakota in 2013
Andy Birchfield served as Lead Co-Counsel for the Vi- – that jury found J&J at fault but failed to award mon-
oxx MDL. Every attorney in Beasley Allen’s mass tort ey. Beasley Allen lawyers got involved in the litigation
section played a role in Vioxx litigation, with Leigh shortly thereafter and have spent the last eight years
O’Dell and Roger Smith also assisting with the set- trying these cases all over the country.
tlement program. The MDL litigation team reached a
In 2016, Beasley Allen lawyers proved to three sep-
then-record global settlement with the pharmaceu-
arate juries that J&J was at fault in the making and
tical giant, which paid $4.85 billion to compensate
selling of talc products and awarded damages total-
victims of Vioxx-related heart attacks and strokes.
ing $72 Million, $55 Million and $70 Million, respec-
Transvaginal Mesh – Beginning in 2011, plaintiffs tively, in the cases. Shortly thereafter, body powder
began to file lawsuits against the manufacturers of manufacturers started including cancer warning
transvaginal mesh from complications they sus- language on their bottles.
tained from these products’ implantation. These
In 2017, in two additional cases, juries found J&J at fault
injuries included erosion of the mesh into the vag-
with awards totaling $110 Million and $417 Million. The
inal tissue, organ perforation, pain, infection, pain-
second verdict will be discussed further in this issue.
ful intercourse and urinary and fecal incontinence.
Often women required surgery to remove the mesh Beasley Allen lawyers also serve as co-lead coun-
and oftentimes, it was impossible to remove all of sel in the federal court talcum powder MDL, where
the mesh involved. Some women were ultimately thousands of these cases have been filed by plain-
adjudicated as disabled as a result of the personal tiffs from states throughout the country. Due to the
injuries they sustained from polypropylene mesh. ongoing efforts of the Beasley Allen Talc Litigation
Team, led by Ted Meadows and Leigh O’Dell, John-
This mass tort grew into one of the largest in history,
son & Johnson pulled Talcum Baby Powder off the
involving more than 100,000 lawsuits and billions
market in North America in the summer of 2020.
of dollars in damages. Beasley Allen was intimately
involved in this litigation with attorneys serving in With an estimated 10% of 22,000 yearly ovarian can-
leadership positions, including the Plaintiffs Steer- cer cases in the United States believed to be caused
ing Committee for five separate transvaginal mesh by genital talcum powder use, removing this prod-
MDLs. As a result of these women coming forward uct from the shelves is saving thousands of lives ev-
and the resulting litigation, some of these polypro- ery year. The talc team continues to work hard for
BeasleyAllen.com 3a global resolution of these claims and hopes that lishing specific personal jurisdiction in product liabili-
Johnson & Johnson will ultimately decide to discon- ty and negligence lawsuits. Justice Elena Kagan wrote in
tinue sales of its talcum powder worldwide. the court’s opinion:
JUUL E-Cigarette Multidistrict Litigation – In 2015, When a company like Ford serves a market for a
JUUL Labs, Inc. (JLI) released a vape and line of fla- product in a state and that product causes injury
vored e-liquid pods that caused an epidemic of in the state to one of its residents, the state’s courts
youth nicotine use. As a result of JUUL’s highly ad- may entertain the resulting suit.
dictive and appealing product design and youth-tar-
geted marketing, by 2017, JLI’s sales increased by It’s most significant that the court’s opinion was 8-0.
700%. JUUL soon controlled over three-quarters of Justice Samuel Alito filed a concurring opinion, and Jus-
the e-cigarette market. JUUL causes respiratory, car- tice Neil Gorsuch also filed an opinion concurring in the
diovascular, and mental health harms, among other judgment, in which Justice Clarence Thomas joined him.
kinds of damages. Thousands of teens and young Meanwhile, Justice Amy Coney Barrett, who joined the
adults have been injured by JUUL. high court bench after the Oct. 7 oral arguments were
completed, did not participate in the decision.
Beasley Allen is honored to play a leading role in
The court’s ruling is a win for consumers. Ford attempt-
the resulting multidistrict litigation (MDL) proceed-
ed to reverse a pair of 2019 decisions from the Montana
ing in the Northern District of California. The MDL
Supreme Court and Minnesota Supreme Court that kept
consists of over 1,200 personal injury cases, several
alive lawsuits from residents injured in 2015 accidents in
class actions, 160 cases filed by government entities,
those states involving Ford Explorer and Crown Victoria
as well as suits brought by 118 school districts, 20
vehicles that were initially bought out of state.
counties, two cities, and 20 tribes. JUUL has made
The Supreme Court held in 2017’s Bristol-Myers Squibb
an initial response by removing its kid-friendly fruit
Co. v. Superior Court of California that the due process
and desert flavors from the market, changing its
clause requires both that the defendant “have purpose-
marketing practices, and increasing warnings on its
fully availed itself of the privilege of conducting activi-
product labels. A bellwether pool of 24 personal in-
ties within the forum state” and that the plaintiff’s claim
jury Plaintiffs has been selected, seven of which are
“arise out of or relate to” the defendant’s forum conduct.
Beasley Allen clients. Four bellwether trial cases will
Ford regularly conducted business in Montana and
ultimately be selected by the court and will serve as
Minnesota by extensively marketing, selling, repairing
inquires to produce reliable information about the
and maintaining Ford vehicles, including Explorers and
other cases pending in the MDL.
Crown Victorias, in those states. Justice Kagan said:
Conclusion It’s a small wonder that Ford has here conceded
We could add a number of other litigation areas and a large ‘purposeful availment’ of the two states’ markets. In
number of other specific cases where Beasley Allen lawyers other words, Ford had systematically served a market
in our Mass Torts Section have not only obtained justice for in Montana and Minnesota for the very vehicles
clients, but brought about significant safety changes in Cor- that the plaintiffs allege malfunctioned and injured
porate America. To know that our firm has helped make im- them in those states. So there is a strong ‘relationship
portant difference in the lives of American citizens makes all among the defendant, the forum, and the litigation’
of the effort, expense and hard work well worth it. — the ‘essential foundation’ of specific jurisdiction.
In next month’s issue we will discuss how lawyers in That is why this court has used this exact fact pattern
our Toxic Torts Section, led by Rhon Jones, have brought (a resident-plaintiff sues a global car company, ex-
about significant changes in another specific area of tensively serving the state market in a vehicle, for an
concern for the American people. in-state accident) as an illustration — even a para-
digm example — of how specific jurisdiction works.
III. The consolidated case involves lawsuits brought by
Charles Lucero, the personal representative of Markkaya
COURT WATCH Jean Gullett’s estate, the plaintiff in the Montana case,
and Adam Bandemer, the plaintiff in the Minnesota case.
Because this issue of the Report was headed to the
The U.S. Supreme Court Makes Important Ruling printer, we will not write more on this matter. But we will
On Jurisdictional Issue deal with it in more detail in the May issue.
The plaintiffs are represented by Deepak Gupta, Dan-
The U.S. Supreme Court on March 25 issued a most sig- iel Wilf-Townsend, Gregory A. Beck, Larkin Turner, Jenni-
nificant opinion involving a critically important issue. The fer Bennett and Neil K. Sawhney of Gupta Wessler PLLC;
high court clarified the limits of specific personal juris- Kyle W. Farrar, Wesley Todd Ball and Mark Bankston of
diction and preserving litigants’ due process rights by rul- Kaster Lynch Farrar & Ball LLP; and Dennis P. Connor
ing that Ford Motor Co. can be sued in Montana and Min- and Keith D. Marr of Conner & Marr PLLP.
nesota over accidents involving used cars initially sold The cases are Ford Motor Company, Petitioner v. Mon-
out-of-state with purportedly defective tires or air bags. tana Eighth Judicial District Court et al. (case number 19-
The justices said there were enough connections be- 368) and Ford Motor Company, Petitioner v. Adam Ban-
tween the plaintiffs’ claims and Ford’s business activ- demer (case number 19-369), both in the Supreme Court
ities in the states to be sued there, rejecting the auto of the United States.
giant’s proposed proximate cause standard for estab-
4 BeasleyAllen.comFederal Judiciary Seeks 79 New Judgeships wake of continuing coronavirus issues in the area. The
Nationwide multi-plaintiff trial in St. Louis, Missouri, involving three
plaintiffs, has been moved to August. There was also an
The federal judiciary on March 16 urged Congress to cre- additional case set for trial in St. Louis in May, but that
ate 77 new district judgeships and two new circuit judge- has also been postponed. There are several additional
ships to handle heavy caseloads that have surged since the potential trial dates throughout the second half of 2021.
last comprehensive expansion of the judiciary in 1990. In Philadelphia, coronavirus has affected several of
The Judicial Conference of the United States said the the trial settings. The Kleiner case, initially set in 2020,
efficient administration of justice requires new district is now slated to begin July 29th. The Beasley Allen team
judgeships in 13 states across the country — with more has several additional trial-ready dates in Philadelphia,
than half slated for California, Texas and Florida — with the Wilson case set to start trial on May 5 and addi-
while making eight other temporary district judgeships tional settings possible throughout the year. In Georgia,
permanent and adding two seats to the Ninth Circuit. the Brower retrial is still being reset, with plans to retry
The request by the conference, a policymaking group of this case as soon as it can be safely scheduled in 2021.
federal judges from courts around the country helmed While working on getting the Brower retrial set, addi-
by Chief Justice John Roberts, would expand the ranks of tional discovery efforts have continued against Johnson
federal district court judges by more than 10%. & Johnson’s longtime talc packager/manufacturer PTI,
According to U.S. District Judge Claire V. Eagan of the which has a large presence in Georgia and Missouri.
Northern District of Oklahoma, the chair of the Judicial Along with multiple trials already set in Missouri, Illinois,
Conference’s executive committee, the judiciary needs and Pennsylvania for 2021 and the potential trial in Georgia
Congress to act because district court filings have increased in 2021, the team is now moving forward with the Carl and
47% since 1990 while the number of district judges has risen Balderrama trials in Atlantic City, with potential trial dates
barely 5%. Judge Egan said at a virtual news conference: in early 2022. The team is also exploring South Florida as a
When there is substantial growth in other parts of potential venue for additional trials in 2021 and 2022.
our justice system, we need corresponding growth For additional information on these cases, contact Ted
in the number of judges, or the process will slow or Meadows, Leigh O’Dell, or Melissa Prickett at 800-898-2034
even break down. Before a judgeship recommen- or by email at Ted.Meadows@beasleyallen.com, Leigh.ODell@
dation is submitted to Congress, it undergoes six BeasleyAllen.com, or Melissa.Prickett@BeasleyAllen.com.
levels of careful review within the judiciary. ... We J&J Sets Aside $4 Billion For Talc Verdicts And
recognize that the growth in the judiciary must be Settlements
carefully limited to the number of judges absolutely
needed to exercise our jurisdiction. In a recent securities filing, Johnson and Johnson (J&J)
said it set aside $4 billion to cover verdicts and litiga-
Congress must approve any new judge seats. The last tion expenses while it appeals a 2018 Missouri to the U.S.
comprehensive addition came in 1990 when lawmakers Supreme Court. Along with the costs of this appeal, J&J
added 69 district judgeships. More than 130 attempts currently faces 25,000 lawsuits by women claiming the
have failed since then despite intermittent bipartisan flagship Baby Powder caused their cancer. It’s quite evi-
interest. It’s now time for the lawmakers to approve the dent that the amount set aside is inadequate.
requested judgeships, and hopefully, that will happen The 2018 Missouri verdict would take up a large portion
soon. The need is urgent and clearly justified. of this set-aside money. The original $4.7 billion, which was
Source: Law360.com later cut to $2.1 billion, was one of the largest punitive dam-
ages awards in U.S. legal history. The original verdict sparked
IV. a significant drop in J&J’s shares. The case involved 20 wom-
en who claimed the talc powder caused their ovarian can-
THE TALC LITIGATION cer. The plaintiffs cited internal J&J documents going back
to the early 1970s, indicating J&J found asbestos in their
baby powder but never made their findings public, choos-
Update On The Talcum Powder Litigation ing instead to put thousands of women at risk of cancer.
As we mentioned in this issue, Beasley Allen lawyers
Beasley Allen’s talc litigation team remains hard at tried the first talcum powder lawsuit against J&J involv-
work in the MDL and state courts. The MDL team has ing talc powder and ovarian cancer, where a jury made
now largely finished up the plaintiff, fact witness, and a monetary award. The jury in St. Louis returned a ver-
expert depositions for the discovery pool cases. The dict of $70 million in the case. The most important thing
discovery pool cases are a mix of plaintiff picks, defense about the case was that our lawyers uncovered when
picks and random selections from the court. The MDL J&J first knew about the severe ovarian cancer risk. They
has continued working on discovery issues with the de- obtained external J&J documents that were extremely
fense and took one corporate liability discovery deposi- damaging to the company. Our lawyers also learned from
tion in February, with numerous additional depositions J&J internal files how the company had been lying to the
set for the next several months. FDA and the American people for decades, thereby cov-
Meanwhile, in the state courts, Beasley Allen remains ering up a known risk that killed hundreds of women.
on track to try numerous cases in 2021. Many trials were J&J is not the only company facing justice for its wrong-
originally scheduled in 2020 but were reset throughout doing, as many of the pending lawsuits have included the
the year. In St. Clair County, Illinois, the Cadagin case company’s longtime talc supplier, Imerys Talc America,
has been rescheduled for a July 12th trial start date in the
BeasleyAllen.com 5as a defendant. Following the verdict in Mark Lainer’s abama’s case against Endo health solutions and McKesson
case, Imerys filed a voluntary chapter 11 bankruptcy peti- Corporation has been re-scheduled for November 2021.
tion. The bankruptcy relates to Imerys’ potential liability The State of Georgia’s case against opioid manufacturers
for the harm caused by exposure to the talc it supplied. Endo, Actavis, Teva, and Mallinckrodt and opioid distribu-
However, Imerys has stated that it had prior agreements tors McKesson, Cardinal Health, AmerisourceBergen, and
with J&J that J&J would assume the defense and pay any Smith Drug, is set for May 2022. Beasley Allen represents
judgment against Imerys. This would leave J&J to face both the State of Alabama and the State of Georgia in
these lawsuits alone and without anyone else to blame. these cases. Trial dates for other states and local govern-
J&J spent decades callously watching as consumers ments are still in flux due to the pandemic. Upcoming opi-
died from using a product the company continued to oid trials include a bellwether trial in West Virginia set to
sell, adding even more consumers. J&J handed out cou- start in May and the State of New York in June.
pons and free products, all the while knowing the im-
mense danger. Thousands of women suffered, and many Purdue Delivers Disappointing Chapter 11 Plan
lost their lives. Children lost their mothers, and husbands Purdue Pharma’s proposed bankruptcy plan has upset
lost their wives, all while J&J raked in the profits with- many of Purdue’s tort creditors, including many State
out giving them a second thought. There is no way to Attorneys General. The Sackler family, owners of Purdue
measure the damage, but thankfully there are still victo- Pharma, have sought to shield themselves and their for-
ries to celebrate. J&J has finally taken its cancer-causing tunes from liability for their actions in creating the Opioid
products off the shelves of stores across North America. Epidemic. Purdue and the Sackler family were responsible
While no amount of money will undo the harm J&J has for the deceptive marketing of Oxycontin, a potent opioid
caused, the litigation has given us one very important medication, that marked the start of the Opioid epidemic
thing – eventually, there will be no more victims. in the late 1990s. After OxyContin was introduced to the
Sources: Bloomberg and information from J&J’s most recent 10-K & market in 1996, prescription opioid use and opioid over-
Imerys’ bankruptcy petition dose deaths began to skyrocket in the United States.
Purdue and the Sackler family revealed the compa-
Beasley Allen Talc Litigation Team ny’s Chapter 11 bankruptcy plan on March 16. Purdue will
provide more than $10 billion in value to mitigate the
Beasley Allen lawyers Ted Meadows and Leigh O’Dell
damages caused by the crisis. This iteration of the plan
head up the Beasley Allen Talc Litigation Team. The team
would increase the Sackler family’s contributions to an
handles claims of ovarian cancer linked to talcum pow-
opioid abatement trust fund from $3 billion to almost
der use for feminine hygiene. Will Sutton and Charlie
$4.3 billion. Still, it purports to let the Sackler family
Stern, who are mesothelioma lawyers, are on the team,
off the hook for litigation claims by States, local gov-
are exclusively handling mesothelioma claims. Will and
ernments, and individuals, allowing the family to keep
Charlie are looking at cases of industrial, occupational,
their remaining fortune, which is believed to be vast in
and secondary asbestos exposure resulting in lung can-
scope and value. This is especially concerning to many
cer or mesothelioma, as well as claims of asbestos-relat-
tort creditors because the Sacklers themselves are not
ed talc products linked to mesothelioma.
parties to the Bankruptcy. The Sackler family faces liti-
Members of the Talc Litigation Team, in alphabetical order,
gation personally in many opioid lawsuits.
include Kelli Alfreds (Kelli.Alfreds@beasleyallen.com), Ryan
Funds from the bankruptcy plan, including contri-
Beattie (Ryan.Beattie@beasleyallen.com), Beau Darley (Beau.
butions from the Sacklers, would fund creditor recov-
Darley@beasleyallen.com), David Dearing (David.Dearling@
eries and opioid abatement programs. Still, there has
beasleyallen.com), Liz Eiland (Liz.Eiland@beasleyallen.com),
been concern that the Sacklers contribution will not be
Jennifer Emmel (Jennifer.Emmel@beasleyallen.com), Jenna
enough. Many Attorneys General have also expressed
Fulk (Jenna.Fulk@beasleyallen.com), Lauren James (Lauren.
concern that Purdue, although it will be taken from the
James@beasleyallen.com), James Lampkin (James.Lamp-
Sacklers’ control and become a public benefit trust, will
kin@beasleyallen.com), Caty O’Quinn (Caty.OQuinn@beas-
necessarily require continued oversight by the states.
leyallen.com), Cristina Rodriguez (Cristina.Rodriguez@bea-
Those Attorneys General are leery of becoming involved
sleyallen.com), Brittany Scott (Brittany.Scott@beasleyallen.
in the management of Purdue going forward.
com), Charlie Stern (Charlie.Stern@beasleyallen.com), Will
On March 24, Judge Drain extended the injunction
Sutton (William.Sutton@beasleyallen.com), Matt Teague
staying Opioid Litigation against both Purdue and the
(Matt.Teague@beasleyallen.com) and Margaret Thompson
Sackler family until April 21. U.S. Bankruptcy Judge Rob-
(Margaret.Thompson@beasleyallen.com).
ert Drain will rule on the adequacy of the plan at an April
V.
21st hearing. There will likely be more developments be-
fore the hearing date. Read more at https://www.law360.
com/articles/1365603/purdue-s-ch-11-plan-hangs-on-
THE OPIOID LITIGATION sackler-liability-question?copied=1
Source: Law360.com
Update On The Opioid Litigation
McKinsey Opioid Settlement With New York
Due to the COVID-19 pandemic, the only opioid crisis Attorney General Approved
litigation to go to trial is the State of Oklahoma’s case
against Johnson & Johnson (J&J), which resulted in a $465 Suffolk County Supreme Court Judge Jerry Garguilo has
million verdict from the bench against J&J. The State of Al- approved a $32 million settlement agreement between
McKinsey & Co. and the New York Attorney General over
6 BeasleyAllen.comthe consulting firm’s role in the opioid epidemic. The ap- New York Attorney General Opioid Trial Is Now
proval came over counties and municipalities’ objections Set For June
that challenged the settlement because it could potentially
block them from pursuing their claims against McKinsey. Judge Jerry Garguilo has set a new June trial date for the
Judge Garguilo agreed with McKinsey and New York Attor- New York Attorney General’s suit arising out of the opioid
ney General Letitia James that the issue of whether a provi- crisis. This very important suit has been delayed multiple
sion in the settlement agreement would release the firm from times due to the coronavirus pandemic. In an order on
certain legal claims brought by other political subdivisions March 8, the judge said that he would set the trial to start
“is not ripe for determination.” The judge wrote in his order: on June 8. During a teleconference hearing held on the
previous Friday, Judge Garguilo called off the previously
The court concurs with McKenzie in that ‘the legal set March 29 trial date out of concerns for the health and
question regarding the scope of the release will only safety of lawyers, court staff and jurors. Judge Garguilo
properly be presented for a court to decide on a mo- also moved a March 22 court appearance to May 3, stating:
tion that seeks dismissal on the basis of the release.’
That issue is not properly before this court. On that date, the court and all counsel will consider
all factors, conditions, reports, and the like reflect-
The February settlement McKinsey reached with New York ing on a realistic and responsible date to commence
is part of a larger $573 million settlement to resolve nationwide the preliminary voir dire process (distribution and
claims that advice from the firm “turbocharged” opioid sales collection of juror questionnaires).
for Purdue Pharma LP and reeled in profits stemming from the
epidemic. This was the first multistate opioid settlement to re- The trial will involve claims by New York Attorney Gen-
sult in a large payment to states dealing with the health crisis. eral Letitia James and Nassau and Suffolk counties that
The settlement requires McKinsey to turn over tens of drugmakers and distributors fueled the opioid crisis.
thousands of internal documents detailing its work for Originally scheduled to start in March 2020, the trial has
Purdue. Among the allegations in the complaint are claims been delayed multiple times due to COVID-19.
that McKinsey advised Purdue on how to jack up sales by The state is represented by the Office of the New York
honing in on higher, more lucrative dosages and increased State Attorney General. Nassau County is represented by
sales rep visits to high-volume opioid prescribers. Napoli Shkolnik PLLC. Suffolk County is represented by
The state is represented by the Office of the New York Simmons Hanly Conroy LLC.
State Attorney General. The local governments are rep- The cases are In re: Opioid Litigation (case number
resented by Simmons Cooper LLC and Napoli Shkolnik 400000/2017); County of Suffolk v. Purdue Pharma LP,
PLLC. The case is People of the State of New York v. McK- et al. (case number 400001/2017); County of Nassau v.
insey & Co Inc. (Index No. 400001/2021) in the Supreme Purdue Pharma LP et al., (case number 400008/2017);
Court of the State of New York, Suffolk County. and State of New York v. Purdue Pharma LP, et al. (case
number 400016/2018), all in the Supreme Court of the
Source: Law360.com
State of New York, Suffolk County.
McKinsey To Pay Nevada $45 Million To Settle Source: Law360.com
Opioid Marketing Case
McKinsey Seeks New Opioid MDL
Nevada Attorney General Aaron Ford announced on
March 22 that McKinsey & Co. Inc. has agreed to pay McKinsey & Co. is asking for a separate MDL in the
his state $45 million to settle the last outstanding state Opioid litigation. The lawsuits accusing the consulting
claims over the global consulting firm’s role in fueling firm of contributing to the opioid crisis would be cen-
the nationwide opioid epidemic. tralized but kept separate from the existing multidistrict
In a statement announcing the settlement, Attorney opioid litigation. The request was made by the consult-
General Ford said Nevada has been hard hit by the opioid ing firm in new court filings.
crisis, and thousands of Nevadans have died due to over- McKinsey’s filings on March 8 in multiple cases dis-
doses, which is why the state’s Bureau of Consumer Pro- closed that it had asked the Judicial Panel on Multidis-
tection has fought hard to achieve its own settlement trict Litigation on March 5 to centralize current and fu-
with the New York-based consulting firm. ture opioid-crisis lawsuits in New York City, where it is
Meanwhile, Washington and West Virginia have entered based, as opposed to Cleveland, where the existing opi-
separate opioid settlements with McKinsey for $13.5 oid MDL is located and has been in existence since 2017.
million and $10 million, respectively. McKinsey has now The company leaned heavily on efficiency arguments
reached settlements with all 50 state attorneys general, when requesting a new MDL in the Southern District of
as well as five U.S. territories and the District of Columbia. New York. It noted that its principal place of business is
The state of Nevada is represented by Ernest Figueroa Manhattan and that it is primarily accused of unlawfully
and Mark J. Krueger of the Nevada Office of Attorney advising OxyContin maker Purdue Pharma LP, which is in
General, Bureau of Consumer Protection, and by Rob- bankruptcy proceedings in the Southern District.
ert T. Eglet, Robert M. Adams, Cassandra Cummings, and McKinsey wrote that there is “no genuine nexus be-
Richard K. Hy of The Law Office of Eglet Adams. tween the new claims against McKinsey and the North-
The case is State of Nevada v. McKinsey & Company ern District of Ohio,” and if the existing MDL were not
(case number 21 OC 00043 1B) in the First Judicial Dis- situated in that district, there “would be no justification
trict Court of the State of Nevada, Carson City. for centralizing the cases there.”
Cities, counties and Native American tribes are pursu-
Source: Law360.com
ing at least 17 cases in federal court against McKinsey. All
BeasleyAllen.com 7lawsuits claim the consulting firm helped Purdue decep- pandemic. The team includes Rhon Jones, Parker Miller,
tively tout the benefits of OxyContin and focus its pro- Ken Wilson, David Diab, Rick Stratton, Will Sutton, Jeff
motional efforts on high-volume prescribers who were Price, Gavin King, Tucker Osborne and Matt Griffith. This
likely enabling painkiller abuse. Most of those cases were team of lawyers represents the State of Alabama, the State
filed in the aftermath of settlements collectively worth of Georgia, and numerous local governments and other
nearly $600 million that McKinsey had reached with entities, as well as individual claims on behalf of victims.
almost every state attorney general. Now all of the states, If you need more information on the Opioid Litiga-
including those who were not in the global settlement, tion, contact one of these lawyers at 800-898-2034 or by
have settled their claims against McKinsey. email at Rhon.Jones@beasleyallen.com, Parker.Miller@
The proposed MDL is In re: National Prescription Opi- beasleyallen.com, Ken.Wilson@beasleyallen.com, David.
ate Consultant Litigation (case number not immediately Diab@beasleyallen.com, Rick.Stratton@beasleyallen.com,
available) before the Judicial Panel on Multidistrict Lit- William.Sutton@beasleyallen.com, Jeff.Price@beasleyal-
igation. The existing MDL is In re: National Prescription len.com, Gavin.King@beasleyallen.com, Tucker.Osborne@
Opiate Litigation (case number 1:17-md-02804) in the beasleyallen.com or Matt.Griffith@beasleyallen.com.
U.S. District Court for the Northern District of Ohio.
Source: Law360.com
VI.
Oklahoma Seeks 19-Year Extension To Johnson POLITICAL NEWS & VIEWS
& Johnson $465 Million Opioid Judgment
Oklahoma has urged the state’s Supreme Court to re- Defamation Lawsuits Take Aim At Bogus Election
ject Johnson & Johnson’s appeal of a $465 million judg- Fraud Claims
ment for its role in creating an opioid addiction epi-
demic. The state also asked the high court to extend the There have been at least six highly significant civil law-
company’s one-year abatement plan to 20 years. The trial suits filed arising out of the bogus conspiracy theories
court found Johnson & Johnson liable for one year of the and other matters relating to the 2020 presidential elec-
State’s proposed 20-year plan to remedy the nuisance tion. Three companies caught up in the election fraud
caused by Johnson & Johnson’s fostering of the opioid conspiracy theories ignited by Trump-affiliated lawyers
crisis. The total plan, over 20 years, would cost $17 billion. Rudy Giuliani and Sidney Powell, and fueled by right-
In his reply to J&J’s appeal, Oklahoma Attorney Gener- wing news media, are fighting back against those baseless
al Mike Hunter painted a picture of a company motivated claims. These companies have filed billion-dollar defama-
solely by billions of dollars in profit, launching a “decep- tion lawsuits against parties who intentionally sought to
tive marketing spree” undeterred by the tens of thousands discredit them. I will briefly discuss each of these lawsuits.
of people who became addicted to its drugs and the thou-
sands of Oklahomans who died. The state’s filing said:
U.S. Dominion v. Sidney Powell
Dominion Voting Systems, an election-technology
J&J lied to Oklahoma for over 25 years. It said these
company, filed a $1.3 billion lawsuit against Sidney
drugs were safe and effective for ordinary, everyday
Powell on Jan. 8. Powell was a lawyer who served on
pains. And that they were rarely, if ever, addictive.
former President Donald Trump’s legal team and
But that was unfounded.
spread an unfounded conspiracy theory that Do-
In 2019, J&J was ordered to pay $465 million for its role minion colluded with rival company Smartmatic
in fostering opioid addiction among the state’s residents to switch President Trump’s votes to democratic
after a bench trial in front of Oklahoma Judge Thad Balk- contender Joe Biden. Further, Powell claimed that
man. The State of Oklahoma had also sued Purdue Pharma Dominion was created in Venezuela to help rig elec-
and Teva Pharmaceuticals for their role in the opioid ad- tions for Venezuelan dictator Hugo Chávez who died
diction epidemic but settled with Purdue and Teva shortly in 2013. Powell’s outrageous theories served as the
before trial for $270 million and $85 million, respectively. basis for four federal lawsuits she filed seeking to
J&J appealed the Oklahoma judgment to the state’s overturn the election results. The lawsuits have re-
Supreme Court in September 2019. Oklahoma also sulted only in calls for Powell’s disbarment.
appealed, asking the Supreme Court to modify the trial Dominion was, in fact, founded in Toronto, Ontario,
court’s judgment to adhere to the state’s 20-year plan in 2002 to create voting machines that were more
for abatement. The state argued that the one-year abate- accessible for the blind. Tom Clare, the lawyer repre-
ment—which the court ordered J&J to fund—did not go far senting Dominion, remarked that these false claims
enough, citing testimony that it would take 20 years to ful- “made [Dominion] radioactive and destroyed the
ly abate the crisis. Several chief law enforcement agents, in- value of its once-thriving business and has put Do-
cluding Attorneys General, from around the country, have minion’s multiyear contracts in jeopardy.”
filed amicus briefs urging the court to affirm the judgment.
In a most interesting and telling statement, Powell’s
Source: Law360.com defense lawyers told the trial judge that no reason-
able person would have believed Powell’s conspira-
The Beasley Allen Opioid Litigation Team cy theories to be “true.” Sadly, millions of Americans
Activity in the Opioid Litigation has intensified nation- did, in fact, believe the lies told by Powell. She was
ally. The firm’s Opioid Litigation Team is hard at work, and the lawyer representing Donald Trump, and when a
our lawyers are overcoming the roadblocks caused by the president’s lawyer makes a statement, people listen
8 BeasleyAllen.comand believe that which is said. Powell’s reversal now cations” about Smartmatic, including accusing the
proves that the election fraud conspiracy story was company of being tied up in a scheme to help Biden
nothing more than a flat lie! “steal” the Nov. 3 election from Trump. Fox News
and Fox Business Network hosts Maria Bartiromo,
U.S. Dominion v. Giuliani Lou Dobbs, and Jeanine Pirro named in the suit as
defendants and two lawyers – regular guests on the
Dominion also filed a $1.3 billion lawsuit against Rudy
program – Giuliani and Powel. Smartmatic filed the
Giuliani, on Jan. 25, in the Federal District Court in
lawsuit on Feb. 4 in New York State Supreme Court.
Washington, D.C., accusing the former New York mayor
of carrying out “a viral disinformation campaign about Giuliani claimed on the Nov. 12 episode of “Lou
Dominion” made up of “demonstrably false” allegations. Dobbs Tonight” that Smartmatic was founded by
Venezuelans with close ties to former dictator
Giuliani’s conspiracy theories involved a cast of
Chávez “in order to fix elections.” There was no fac-
colorful characters. According to Vox, “Giuliani and
tual basis for this claim, and it was just another bo-
other Trump allies relied on a former head of secu-
gus claim designed to affect a valid election result.
rity for an alleged Southern American drug kingpin,
who claims that the Muslim Brotherhood colluded Smartmatic’s founders were born in Venezuela but
with a prepubescent George Soros to form a Nazi founded the company in 2000 in Boca Raton, Florida.
‘deep state’ in 1930s Germany, and the CEO of MyP- According to the company’s website, “Smartmatic has
illow to build their case against Dominion.” only owned one election company in the U.S., Sequoia
Voting Systems. Smartmatic sold the company in 2007
In November, Giuliani echoed Powell’s false asser-
to Sequoia’s management team. More than three years
tions during an interview with Fox Business host
later, Dominion Voting Systems bought Sequoia. Smart-
Lou Dobbs. Giuliani said that Dominion’s parent
matic had no part in Sequoia’s acquisition by Dominion.”
company had ties to Chávez and that the voting
booths were explicitly designed to flip the 2020
Dominion Voting Systems sues Fox News
election in Biden’s favor.
All of the claims by Giuliani that made the basis for Dominion Voting Systems has filed a $1.6 billion defa-
the lawsuits were bogus. The company claims Gi- mation lawsuit on March 19 against Fox News. The voting
uliani’s conspiracy theories involving the company technology company was a target of baseless conspira-
potentially jeopardized hundreds of millions of dol- cy theories about the 2020 elections. The company al-
lars of government contracts it was pursuing. leged that Fox “ridiculously disregarded the truth” and
participated in a disinformation campaign against it be-
U.S. Dominion v. MyPillow, Inc. and Michael J. Lindell cause “the lies were good for Fox’s business.”
Following the election, Trump and his supporters filed
Dominion filed suit Feb. 22 against MyPillow and its CEO
a huge number of frivolous lawsuits that were totally
Mike Lindell seeking damages over $1.3 billion. It was
without merit, and they even attempted to intimidate
filed in the Federal District Court in Washington, D.C.
state officials into illegally overturning election results.
In exchange for boosting his pillow’s sales, the lawsuit
When these efforts failed, Trump and his inner circle
alleges that Lindell spread what Dominion calls the “Big
called their supporters to Washington, D.C. on Jan. 6, the
Lie,” or disinformation that Dominion used its voting
day Congress met to certify Joe Biden’s win, telling them
machines to flip the election in President Biden’s favor.
to “Stop the Steal” and “be wild.” As has been widely re-
According to the lawsuit, Lindell ran ads targeting ported, thousands of Trump supporters answered the
Trump supporters who believed the election results’ call and, in a carefully planned and carried out effort,
conspiracy theories. Dominion explained that MyPil- descended on the nation’s capitol. Donald Trump held
low’s “promo codes like ‘FightforTrump,’ ‘45,’ ‘Proof,’ a “Stop the Steal” rally for his supporters outside of the
and ‘QAnon’… increased MyPillow sales by 30-40% and capital where he, Trump Jr., Giuliani, and U.S. Rep. Mo
continues duping people into redirecting their elec- Brooks repeated the unfounded accusations that the
tion-lie outrage into pillow purchases.” Despite no ev- election was stolen, further intensifying an emotionally
idence supporting his claims, the lawsuit alleges that charged crowd. Soon after the rally, the group, already
Lindell, a multimillionaire with unlimited resources to mad and hostile, grew quickly into a violent, dangerous
broadcast his messages, even “produced a ‘docu-mov- mob and stormed the U.S. Capitol. Their obvious intent
ie’ featuring shady characters and fake documents was to keep Joe Biden from becoming president.
sourced from dark corners of the internet.” The mob disrupted the initial efforts to certify the
Lindell founded MyPillow in 2004. He and the com- Electoral College results and threatened American De-
pany have been sued multiple times for false and mocracy. The insurrectionists held lawmakers captive
misleading advertising over claims that its pillow by blocking entrances and exits. Emboldened by Trump,
can improve certain health conditions. MyPillow who told them to march on the Capitol, the mob also
was fined $1 million in 2016 by the State of California threatened lawmakers in leadership positions and terror-
over similar claims of deceptive marketing. ized and injured other lawmakers. As the world, including
Trump, watched the sheer anarchy, there is no doubt that
Smartmatic v. Fox News all trapped inside the Capitol were fearful for their lives.
Two lawmakers who endured the violent insurrection
Election technology company Smartmatic filed a $2.7 on Jan. 6 have also filed civil lawsuits. I will briefly dis-
billion defamation lawsuit on Feb. 4 against Fox News cuss these lawsuits below.
for making at least “100 false statements and impli-
BeasleyAllen.com 9Rep. Bennie G. Thompson v. Donald J. Trump, et. al. government. The lawsuit is filed under seal for 60 days to
allow the Department of Justice time to investigate the
U.S. Rep. Bennie Thompson, the House Homeland Se- claim. After investigation, FCA allows the Department of
curity Committee Chairman, filed a lawsuit on Feb. 16 in Justice to dismiss the action. The only codified require-
his personal capacity against Trump. The suit received ments for dismissal state the relator must be notified of
the NAACP’s backing. It cited the Ku Klux Klan Act of dismissal and have an opportunity for a hearing.
1871, which was created to protect against insurrec- The FCA, however, is silent on the standard courts
tionists like those organized by the white supremacist should use to review the government’s decision to
group the Ku Klux Klan (KKK) after the civil war. The dismiss. Before December 2020, courts set two differ-
group organized insurrections in the South to keep ent standards of review. Now, with the Seventh Circuit
black people from voting. Rep. Thompson compares hearing an FCA dismissal, courts are forced to consider
the violent mob that stormed the Capitol on Jan. 6 to which of three standards to follow.
KKK insurrections because of similar intent – to disrupt
American Democracy through fear and intimidation. Rational Relation Test
The lawsuit also names Giuliani, the Proud Boys Over 20 years ago, the Ninth Circuit considered an FCA
and Oath Keepers. It accuses the Proud Boys and dismissal in Sequoia Orange Co. v. Baird-Neece Packing
Oath Keepers of organizing the mob’s insurrection Corp. The court adopted a “rational-relation” test com-
and Trump and Giuliani of inciting the mob. Rep. prised of two distinct steps. Under the rational relation
Thompson seeks compensatory and punitive dam- test, the Department of Justice must show: (1) a valid gov-
ages, but his primary reason for the suit is to hold ernment purpose for dismissal and; (2) a rational relation
Trump and the insurrectionists accountable. between dismissal and accomplishment of said purpose.
Only once the Department of Justice establishes both
Rep. Eric Swalwell v. Donald J. Trump, et. al. steps, the burden switches to the relator to demonstrate
U.S. Rep. Eric Swalwell has sued Trump, Donald Trump, the dismissal is fraudulent, arbitrary and capricious, or
Jr., Giuliani and Rep. Mo Brooks. Rep. Swalwell’s suit illegal. The court stated if the relator “presents a color-
alleges conspiracy to violate civil rights, negligence, able claim that the settlement or dismissal is unreason-
inciting a riot and inflicting emotional distress. The able in light of existing evidence, that the Government
complaint details how Trump’s refusal to accept de- has not fully investigated the allegations, or that the gov-
feat prompted him to lie to his supporters by telling ernment’s decision was based on arbitrary or improper
them that Biden’s victory was a coup. It further states considerations,” a hearing is appropriate.
that “the Defendants’ false and incendiary allegations In 2005, the Tenth Circuit adopted this same standing
of fraud and theft, and in direct response to the Defen- in Ridenour v. Kaiser-Hill Co. The court cited the pur-
dants’ express calls for violence at the rally, a violent pose of the FCA—to enhance the government’s ability
mob attacked the U.S. Capitol.” Rep. Swalwell’s law- to recover losses sustained due to fraud against the
suit also seeks damages, but like Rep. Thompson, Rep. government. This, in combination with construction
Swalwell’s desires to hold accountable all those who of the statute, led the court to find the act “imparts
attacked the nation’s capital and threatened him and more substantive rights for a relator” and entitles them
others conducting business in the Capitol that day. to a fair hearing and true opportunity to be heard.
Conclusion Unfettered Right to Dismiss
All of these lawsuits are important and should not be The District of Columbia Circuit heard an FCA dismiss-
considered an attack on free speech or politically moti- al back in 2003 in Swift v. U.S. and went a very different
vated. If any person or entity ever crossed the line and direction than the Ninth and Tenth Circuit. The court
deserved to be held legally accountable for their actions, held that the Department of Justice has an unfettered
each of the Defendants in these lawsuits clearly did so. It right to dismiss-- particularly when DOJ files the mo-
will be most interesting to watch the pretrial discovery tion to dismiss prior to filing an answer or summary
in the cases. Again, I will just say – stay tuned! judgment motion. Following Swift’s language, the re-
Sources: Business Insider, New York Times, Vox, Smartmatic, Washing- lator’s hearing is “simply to give the relator a formal
ton Post and National Public Radio opportunity to convince the government not to end
the case.” Unless the court is presented with evidence
VII.
of serious government misconduct, the court is un-
likely to interfere with the Department’s decision. The
Fifth Circuit appears to follow this standard in Riley
THE WHISTLEBLOWER LITIGATION v. St. Luke’s Episcopal Hosp., stating that “the govern-
ment retains the unilateral power to dismiss an action
‘notwithstanding the objections of the person.’”
Circuit Split Deepens For FCA Relators
It might be good to review at this juncture how a Rules-Based Standard
whistleblower lawsuit works before discussing a circuit The most recent standard comes from the Seventh Cir-
split in the litigation. In a qui tam (whistleblower) ac- cuit late in 2020. In CIMZNHCA v. UCB, Inc., the court
tion, a private party or “relator” brings an action under looked to the Federal Rules of Civil Procedure, limits
the False Claims Act (FCA) on the government’s behalf in the FCA itself, and background constraints on exec-
to stop different types of fraud perpetrated against the
10 BeasleyAllen.comutive conduct in general. The Seventh Circuit moved you could be rewarded for reporting the fraud. If you
closer to the unfettered right approach, finding that have any questions about whether you qualify as a whis-
only an exceptional case where the relator alleges tleblower, you can contact one of the lawyers on Beasley
fraud on the court or a breach of constitutional rights Allen’s Whistleblower Litigation Team for a free and con-
may warrant a hearing on the dismissal. The court did fidential evaluation of your claim.
state that notice and hearing under the FCA may serve The following Beasley Allen lawyers are on the Whis-
a great purpose and that their reading of the statute tleblower Litigation Team: Larry Golston (Larry.Golston@
“does not render its process futile as a general matter.” beasleyallen.com), Lance Gould (Lance.Gould@beasleyal-
Some lawyers have proposed possible resolutions to len.com), James Eubank (James.Eubank@beasleyallen.
the split that now exists. Those resolutions, which affect com), Paul Evans (Paul.Evans@beasleyallen.com), Leslie
each branch of the government: Pescia (Leslie.Pescia@beasleyallen.com), Leon Hampton
• The Supreme Court could grant certiorari to resolve the (Leon.Hampton@beasleyallen.com), Tyner Helms (Tyner.
split and provide statutory construction for the FCA. Helms@beasleyallen.com) and Lauren Miles (Lauren.
However, as the authors note, the Court has denied pe- Miles@beasleyallen.com). Dee Miles (Dee.Miles@beas-
tition in April and October of 2020. leyallen.com), who heads up our Consumer Fraud & Com-
mercial Litigation Section, also participates in the whis-
• Congress may amend the FCA and resolve the ambiguity tleblower litigation and works with the Litigation Team.
in how to review the Department’s dismissal. The lawyers can be reached by phone at 800-898-2034.
VIII.
• The executive branch may discourage the Department
of Justice from using its dismissal power and directly
addressing the dismissal authority.
The CIMZNHCA v. UCB, Inc., case is being handled by our
PRODUCT LIABILITY UPDATE
firm with Leslie Pescia and Lance Gould, lawyers in our Con-
sumer Fraud & Commercial Litigation Section, handling Steering Sensor Lawsuit Brings GM’s Safety
the appeal in the United State Supreme Court. We expect Practices Into Question Again
a ruling later this year but hope to have a positive role in
correcting this “split” in the law among the Federal courts. A new lawsuit filed by our Atlanta friend Lance Coo-
As for qui tam actions in general, these cases continue, per has put General Motors Co. (GM) safety practices in
and when the Department of Justice declines interven- question again. For all of the wrong reasons, the Detroit
tion or moves to dismiss the suit, courts will be forced to automaker is back in the spotlight again. GM vowed to
decide which standard to follow in reviewing that deni- step up its safety practices seven years ago after recalling
al. Other circuits may remain in the three camps already millions of vehicles with a known ignition switch defect
formed or may form their own until the FCA is clarified later linked to 124 deaths. That defect was discovered in
via Court ruling, executive action, or legislative amend- a lawsuit filed by Lance Cooper, which was joined in by
ment. Hopefully, we can make a good change in the ap- our firm. The Melton case, which will be discussed be-
peal of CIMZNHCA v. UCB, Inc. low, uncovered a major safety defect, known by GM, but
If you have questions or need more information, con- covered up by the automaker for 10 years.
tact Courtney Horton at 800-898-2034 or by email at This new lawsuit involves 42-year-old Glenda Marie Bu-
Courtney.Horton@beasleyallen.com. chanan, who in Nov. 2014 veered off the road in her 2007
Chevrolet Trailblazer SUV in her hometown of rural Geor-
The Beasley Allen Whistleblower Litigation Team gia. The plaintiff, her widower, claims a defective steering
sensor that GM was aware of but failed to warn drivers
There has been no slowdown in litigation under the False
about caused the accident. The sensor is a crucial part of
Claims Act (FCA). Lawyers on Beasley Allen’s Whistleblower
GM’s StabiliTrak electronic stability control system that
Litigation Team continue to be very busy handling cases un-
adjusts brakes and engine power to help drivers avoid
der the Act. Fraud against the federal government by all too
losing control and crashing. GM knows all about Lance
many industries in this country, especially in health care, re-
Cooper and has to realize they are in for a real battle.
mains a huge problem. We project that because of the pan-
GM has denied that there are problems with the steering
demic, fraud against the federal government will increase
sensor and has refused to issue a recall. The company says it
greatly. The combination of the national mishandling of the
conducted thorough investigations and sought expert opin-
coronavirus pandemic by the Trump Administration and
ions and claims it is not aware of any other complaints alleg-
corporate greed will be a major factor for the increase.
ing accidents other than the one in the Buchanan case in-
We can’t stress enough that whistleblowers are the
volving a steering sensor disengaging the StabiliTrak system.
key to exposing corporate wrongdoing and government
GM also claims in the Buchanan case that there was in-
fraud. Their role has intensified greatly and will continue
conclusive evidence that the vehicle’s electronic stabil-
in that direction. A person who has first-hand knowledge
ity control was inoperative when Ms. Buchanan’s vehicle
of fraud or other wrongdoing may have a whistleblower
crashed, killing her.
case. Before you report suspected fraud or other wrong-
Reuters reviewed hundreds of pages of documents,
doing – before you “blow the whistle” – it is important
which were unavailable to the public until a Georgia
to make sure you have a valid claim and that you prepare
judge issued a sweeping protective order. After review-
for what lies ahead. The experienced group of lawyers on
ing the documents, the news agency began to question
our team is dedicated to handling whistleblower cases.
what the country’s top-selling automaker knew about
If you are aware of any fraudulent activity in Corpo-
issues with the steering sensor.
rate America against the federal or state governments,
BeasleyAllen.com 11You can also read
