Bayer Bets on ‘Silver Bullet’ Defense in Roundup Litigation; Experts See Hurdles

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Reuters is reporting that Bayer AG plans to argue that a $2 billion jury award and thousands of U.S. lawsuits claiming its glyphosate-based weed killer Roundup causes cancer should be tossed because a U.S. regulatory “agency said the herbicide is not a public health risk.

“Some legal experts believe Bayer will have a tough time convincing appellate courts to throw out verdicts and lawsuits on those grounds,” writes Reuters’ Tina Bellon. “Bayer has a better shot if a business-friendly U.S. Supreme Court takes up the case, experts said. But that could take years.”

Bayer acquired Monsanto, the manufacturer of Roundup, last year, and the litigation involving 13,400 plaintiffs went along with the deal. The plaintiffs allege the product causes cancer. So far, three consecutive U.S. juries have found the product to be carcinogenic, resulting in verdicts amounting to billions of dollars.

Read the Reuters article.



Don’t Assume What a Court Will Assume About Your Contract

Eric D. Mulligan of Hudson Cook, LLP writes about a case that illustrates the importance of drafting a contract that will avoid questions of interpretation by making the terms clear and apparent from the face of the text.

The case involves the default on a mobile home retail installment contract. The purchaser returned the home to the vendor with $40,000 left on the contract. Then the company sold the home for $53,000 and did not return the surplus to the buyer.

The Montana Supreme Court found that the terms of the release did not end the parties’ debtor-creditor relationship, and the purchaser was allowed to retain a surplus.

Read the article.



Commercial Contracts in the USA

Greenberg Traurig offers a wide-ranging discussion of commercial contracts in a post on the Lexology website.

Using a question-and-answer format, the post covers such commercial contract topics as: contract formation, statutory controls and implied terms, limiting liability, payment terms, termination, subcontracting and assignment and third-party rights, disputes, and remedies.

Read the article.



U.S. State AGs Looking into Expedia Group, Hotel Practices in Antitrust Probe

Reuters is reporting that a group of U.S. state attorneys general are investigating Expedia Group and hotel chains like Hyatt Hotels Corp and Marriott International Inc for alleged violations of antitrust law in online travel booking, according to a court filing.

“The filing in a state court in Utah relates to a dispute originally filed in Texas in which Travelpass accused the hotel chains last year of agreeing with each other, and with online travel groups like Expedia, to not advertise to consumers who searched for another company’s hotel,” according to the report.

Court documents name the hotel chains Hyatt, Marriott, Caesars Entertainment Corp and Choice Hotels International Inc.

Read the Reuters article.



Judge Orders PG&E Directors to Visit Town Destroyed by Wildfire

A federal judge on Tuesday ordered Pacific Gas and Electric Co.’s board to tour the Butte County community where the company’s equipment is suspected of starting a historically devastating California wildfire last year.

The San Francisco Chronicle reports that “U.S. District Judge William Alsup made the decision at a sentencing hearing he held for the utility regarding a violation of its probation arising from the 2010 San Bruno pipeline explosion. Alsup previously found the utility did not properly report a settlement it reached over a small 2017 fire.”

Alsup said he wanted the energy company executives to “see the gravity of what happened up there” and indicated he likely will join the tour.

Read the SF Chronicle article.



Podcast: Omri-Ben-Shahar on Consumer Contracts and Not Reading the Fine Print

In a podcast on the website of the University of Chicago Law School, consumer contract experts Omri Ben-Shahar and Florencia Marotta-Wurgler discuss several types of consumer contracts, enforceability of terms, and the potential consequences of agreeing to these terms without reading the fine print.

“Consumer contracts are everywhere,” they write in the introduction. “The number of contracts you enter into today may surprise you. Most of the contracts you enter into no longer involve a pen and paper. Purchasing a morning coffee, visiting a website, or scheduling a delivery are just a few daily transactions that more often than not include contract terms.”

Listen to the podcast.



Three Global Drafting Considerations for International Construction Contracts

Globe - InternationalU.S. contractors should proceed with caution when seeking to expand their footprint to an international stage, especially in developing countries where the local infrastructure may not promote a sustainable, stable environment, or a sustainable business model for the contractor, warns Rachael E. Stack in a website post for Faegre Baker Daniels.

But by considering three factors, contractors can mitigate exposure to the various risks involved in an international project.

Stack discusses the elements of contract form and language, governing law, and impact on the local community.

Read the article.




Boeing Appoints Legal Czar to Oversee Fallout From Fatal 737 MAX Crashes

Facing an onslaught of lawsuits and a criminal investigation, Boeing announced the appointment of a newly created czar to oversee all legal matters arising from two deadly crashes of 737 MAX jetliners, reports The Seattle Times.

J. Michael Luttig, 64, a former federal appeals court judge who has served as Boeing’s general counsel since 2006, is now the new counselor and senior adviser to Boeing Chairman and CEO Dennis Muilenburg and the company’s board of directors, according to the Times Steve Miletich.

Dozens of lawsuits seeking monetary damages have been filed against Boeing in U.S. courts, alleging negligence on the part of the company. Statements indicate Boeing plans to take an aggressive stance in responding to civil allegations and any potential criminal accusations.

Read the Seattle Times article.



Avoiding Commercial Lease Disputes – Clearly Reflecting the Intent of the Parties is Key

Entering into a clearly drafted lease agreement at the outset of the relationship helps to set expectations, which minimizes the possibility of disputes over how the lease should be interpreted, writes Eric J. Remington for Ward and Smith.

The article lists some of the issues that can often result in disputes in commercial leases.

It also examines a recent opinion that addresses insurance and liability clauses and provides guidance on how courts should interpret insurance and liability provisions in commercial leases.

Read the article.



Merger Agreement Termination Based on Plain Contract Language

Contract - agreement - handshake - dealA recent Delaware Court of Chancery ruling is a stark reminder that courts will enforce the terms of a merger agreement as written, and that the failure to comply with seemingly ministerial formalities can have severe consequences, according to a post on the Harvard Law School Forum on Corporate Governance and Financial Regulation.

The authors, partners at Cleary Gottlieb Steen & Hamilton, discuss Vintage Rodeo Parent, LLC v. Rent-A-Center, Inc., which involves a proposed merger. The agreement included a prescribed “end date,” means for extensions, and a reverse termination fee of $126.5 million.

The article expands on key takeways from the ruling, including the need for struct compliance with notice provisions, the lack of implied duty to warn a counterparty of its mistake, the discoverability of text messages, and enforceability of reverse termination fees.

Read the article.



The Importance of a Mediation Provision in Construction Contracts

Mark A. Cobb of Cobb Law Group writes that whenever he’s negotiating construction contracts on behalf of a client or discussing a construction collection matter with a potential client, the conversation inevitably includes a discussion of the construction contract’s dispute resolution clause.

In an article in the Georgia Construction, Bond & Lien Law Blog, he discusses several of the questions that can arise; e.g., What is a dispute resolution clause and why is it important? What types of construction contracts should include the clause? What are construction arbitration and mediation?

He also offers an example of a mandatory mediation provision.

Read the article.



A Moral Compass—A Guide to Celebrity-Focused Morals Clauses

The use of so-called “morals” clauses in services agreements, licenses, and other contracts is one of the primary means by which corporations that do business with high-profile performers seek to protect their investments against the talent’s appetites, foibles, weaknesses and, in certain cases, criminal impulses, points out Bloomberg Law.

In drafting the agreements, advises Steven S. Sidman, of counsel in Carlton Fields’ Atlanta office, “the parties should prepare agreements that not only clearly state what constitutes a violation (accusation of a crime versus actual conviction; what constitutes actionable public contempt or image tarnishing, and can it be measured objectively?), but also the remedies available to an aggrieved party.”

Read the article.




Thompson & Knight Assists Frog Scooters with Launch in Chile and Portugal

The law firm of Thompson & Knight LLP has assisted Frog Scooters, Inc. with the launch of operations in Chile and Portugal.

In a release, the company said Frog is the first company to provide commercial-grade scooters and is the only micro-mobility solutions company that custom designs, manufactures, and manages its fleet of electric scooters. Chile and Portugal represent Frog’s initial markets, and the Firm is currently assisting with Frog’s proposed expansion in the United States and four additional continents.

The cross-border Thompson & Knight team assisting Frog is led by John P. Vacalis and Mickey Baden and includes John R. Cohn, Jason Patrick Loden, Jeremiah M. Mayfield, Andrew Melsheimer, Gabriel Ruiz, Michael C. Titens, Alejandro A. Sánchez-Mújica A., Thomas J. (TJ) Auner, Craig Carpenter, Murtuza Hussain, Paloma Martinez, Leslie Reynolds, and Karen Pruett.



Disclaiming Reliance in Texas Requires Specificity

The Supreme Court of Texas in its recent IBM v. Lufkin Indus. decision provided further clarity to what contracting parties must say in their contracts to disclaim fraudulent inducement claims, according to a post on the website of King & Spalding.

Craig Stanfield and Chad Stewart write that the court endorsed provisions that disclaim reliance on any representations other than those explicitly made in the agreement, further clarifying its previous holdings on this issue.

They explain that the court “held that the contractual language at issue must ‘clearly and unequivocally express[] the party’s intent to disclaim reliance on the specific misrepresentations at issue.’ The Court further noted that it must look to the contract language and the totality of circumstances surrounding the contract.”

Read the article.



Key Terms in Negotiating a Statement of Work

The importance of the terms in a state of work is sometimes overlooked by both business and legal teams because an SOW is commonly considered a business document rather than a legal document, writes Stephen F. Pinson in a Scott & Scott blog post.

He writes that it’s important for an SOW to address who will be providing the services, the scope of work being provided, the start date and timeline for the work, where the services will take place, the scope of work and the exact deliverables, and how the service ultimately be performed/delivered and paid.

Read the article.



McGuireWoods Hit With Records Demand in Suit Over Energy Deal

Bloomberg Law reports that an importer-exporter who says two former partners and their attorneys at McGuireWoods LLP used dirty tricks to strip their joint venture of its assets has accused the law firm of sitting on the records he needs to prove it.

The complaint claims McGuireWoods won’t give Andrew J.C. Kunian any of the legal work it did setting up a deal to export natural gas from Texas to Chile on behalf of two companies he co-owned with Francis Smollon and Colin Williams.

Bloomberg’s Mike Leonard writes: “According to the Delaware complaint, Smollon and Williams ‘orchestrated Kunian’s freeze-out with the full knowledge, cooperation, substantial aid, and assistance of’ McGuireWoods.”

Read the Bloomberg Law article.



Federal Appeals Court Upholds $9.5 Million Judgment for Encompass Office Solutions

The 5th U.S Circuit Court of Appeals has affirmed a 2016 jury verdict and 2017 trial court judgment that ultimately awarded $9.5 million to a Dallas-based health care company, according to a post on the website of Androvett Legal Media & Marketing.

In a majority opinion, the appellate court found that BlueCross BlueShield of Louisiana failed to properly reimburse Encompass Office Solutions for in-office medical procedures, and distributed a defamatory letter to physicians with false information regarding the company and its services. That letter threatened to terminate the network contracts of doctors who continued to work with Encompass.

Subsequent to the opinion in the case, the court has denied a motion for rehearing.

A trial team from Thompson & Knight LLP represented Encompass throughout the district court hearings and before the 5th Circuit.

“This case has a lengthy history spanning several years, and we’re pleased that finally Encompass will be properly compensated for the services it provided and the damages the company has incurred,” said Jennifer Rudenick Ecklund, a trial partner at Thompson & Knight who argued the case before the trial court and 5th Circuit. The judgment remains subject to the awarding of interest and legal fees to Encompass.

Other members of the Thompson & Knight trial team included William L. Banowsky, Andrew C. Cookingham, Greg W. Curry, Richard B. Phillips, Jr. and Reed Randel.

Encompass provides mobile ambulatory surgery services that allow doctors to safely perform surgeries in their offices. Encompass’s business is primarily focused on women’s health, allowing patients to have sensitive gynecological procedures done in the comfort and safety of the doctor’s offices while providing the necessary anesthesia care. This method reduces the infection risks associated with hospitals and ambulatory surgery centers, and provides both doctors and patients with a more efficient and cost-effective means of delivering medically necessary surgical care.



Apple, Qualcomm Settle Bitter Dispute Over iPhone Technology

iPhone -SmartphoneApple and Qualcomm have dueled on three continents over the division of billions of dollars of smartphone profits and even how much consumers pay for their phones but as a trial on the issue began Tuesday, the two companies said they had essentially made up.

The San Francisco Chronicle reports:

The companies, one the maker of iPhones and the other one of the largest providers of mobile chips, said they had agreed to dismiss all litigation between them worldwide. They added that they had reached a six-year agreement for Cupertino’s Apple to pay royalties on Qualcomm’s patents, which was effective as of April 1.

Read the SF Chronicle article.



Revenge of the Robocall Recipients: Jury Finds Marketer ViSalus Liable for 1.8 Million Calls

The outcome of a three-day class action trial accusing the nutritional supplement marketer ViSalus of violating the Telephone Consumer Protection Act hinged on the testimony of the named plaintiff, reports Reuters.

Jurors heard Lori Wakefield testify about four automated calls from ViSalus on her home phone line, according to Reuters’ Alison Frankel.

Jurors believed Wakefield and found that the calls violated the TCPA, and that the class Wakefield represents had received a grand total of 1.85 million improper robocalls. Their verdict exposes ViSalus to statutory damages of about $925 million, which could be trebled.

Read the Reuters article.



Boeing Shareholder Files Class-Action Lawsuit, Alleges Plane Maker Concealed 737 Max Safety Risks

The Washington Post is reporting that a Boeing shareholder has filed a class-action lawsuit accusing the company of covering up safety problems with its 737 Max, the commercial jet at the center of two crashes that killed 346 people.

Shareholder Richard Seeks claims Boeing “effectively put profitability and growth ahead of airplane safety and honesty.” The suit said investors suffered economic losses because of Boeing’s omissions and is seeking damages for alleged securities fraud violations, writes the Post‘s Hamza Shaban.

Seeks said he bought 300 Boeing shares in early March and sold them weeks later at a more than $14,000 loss.

Read the Washington Post article.