Appeals Court Tosses $72 Million Award in Talcum Powder Case

The Associated Press is reporting that a Missouri appeals court on Tuesday that vacated a $72 million award to an Alabama woman who claimed her use of Johnson & Johnson products that contained talcum contributed to her ovarian cancer has thrown the fate of awards in similar cases into doubt.

“The appeals court cited a Supreme Court ruling in June that placed limits on where injury lawsuits could be filed, saying state courts cannot hear claims against companies not based in the state where alleged injuries occurred. The case involved suits against Bristol-Myers Squibb over the blood-thinning medication Plavix,” writes the AP’s Margaret Stafford.

More than 1,000 plaintiffs have filed similar lawsuits in St. Louis against New Jersey-based J&J. “In four of five trials held so far, jurors awarded more than $300 million combined. Only two of the 64 cases attached to Fox’s case lived in Missouri,” according to Stafford.

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Jury Slaps JPMorgan Chase with $6 Billion-Plus Verdict in Sabre Creator’s Estate

A jury has awarded the widow and heirs of Sabre airline reservation system pioneer Max D. Hopper more than $6 billion in damages after finding JPMorgan Chase in breach of its fiduciary duty in administering the multimillion-dollar Hopper estate.

“JPMorgan Chase is one of the world’s largest and most respected banks, and its clients expect honesty and fairness in the handling of trusts and estates,” said James S. Bell of James S. Bell, PC, trial lawyer for Hopper’s adult children, Dr. Stephen Hopper, a Tulsa, Oklahoma, psychiatrist, and Laura Wassmer, mayor of Prairie Village, Kansas.

“In this case, the JPMorgan Chase name doesn’t mean the institution put its clients’ interests above its own. When challenged, the bank used the family’s own money to fight them in court over the handling of their father’s estate,” said Bell.

Hopper, who helped create the Sabre reservations system, died unexpectedly in 2010 without a valid will. At the time of his death, his estate was estimated at more than $19 million.

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Proving Liability in Las Vegas Shooting Could be Challenging

Lawsuits are being filed over the Oct. 1 Las Vegas massacre that left 58 dead and more than 500 wounded when Stephen Paddock fired down on a country music festival from a nearby high-rise hotel. Among the first was a suit filed by a wounded Texas college student, seeking to hold MGM Resorts, Live Nation, Bump Stock manufacturer Slide Fire and the estate of the gunman liable, reports Androvett Legal Media & Marketing.

“There does not appear to be any dispute that Stephen Paddock was the gunman, making the move to freeze the estate a prudent decision,” says Dallas attorney Timothy Zeiger. “Injured victims will often sue the estate of the person who acted negligently, such as when a careless driver causes a traffic fatality, or in this case carries out an intentionally malicious act.

“However, despite the reported size of his estate, given the large number of potential claims related to the horrific injuries and deaths he caused, the chance that any particular victim will be justly compensated from the estate does not appear to be likely,” adds Zeiger, head of the litigation section at Shackelford, Bowen, McKinley & Norton.

It is still too early to determine the legal responsibility of MGM Resorts, Live Nation or Slide Fire, Zeiger says. He notes that unless a tragedy is “reasonably foreseeable” and not just an “isolated, and up to now, unique crime,” it will be difficult to prove negligence.

 

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J&J Blames Jury Misconduct for $417 Million Talc Verdict

Johnson & Johnson said a $417 million verdict in a talc powder cancer case should be thrown out because three jurors were excluded by fellow panelists from the decision-making process, reports Bloomberg Technology.

“The three were wrongly left out of deliberations on the fourth-largest U.S. jury award of the year because they didn’t agree with the other nine jurors that baby powder was the cause of a lifelong user’s ovarian cancer, the company said in a request for a new trial,” according to reporter Edvard Pettersson.

The jury foreperson said that the three jurors who were excluded from the discussions about damages had expressed doubts that J&J’s product was a fault.

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Las Vegas Firm Files Lawsuit Against Bump Stock Manufacturer

A Las Vegas law firm has filed a class-action lawsuit against a bump stock manufacturer on behalf of all those “who tragically suffered emotional distress” as a result of the mass shooting at the Route 91 Harvest festival, the Las Vegas Review-Journal is reporting.

Authorities have said unman Stephen Paddock used an attachment on semi-automatic weapons known as a “bump stock” to increase the firing capacity of his rifles when he killed 58 and injured hundreds on Oct. 1.

Eglet Prince law firm filed the 30-page suit in state district court, citing claims of negligence, infliction of emotional distress, products liability and public nuisance, according to reporter David Ferrara.

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Fox News’ General Counsel, Under Legal Siege, Takes Leave From Network

Fox News general counsel Dianne Brandi will take an unspecified leave of absence from the company, in the latest sign of fallout from the network’s long-running sexual harassment scandal, reports The Washington Post.

Brandi has been named in four lawsuits filed by former Fox employees or contributors alleging harassment. And a federal investigation into Fox News’ financial practices began to focus on her role during the long tenure of its co-founder and former chairman, Roger Ailes, sources told the Post. Investigators are looking into payments made under Ailes to employees who had accused him and other executives of harassment or mistreatment.

“Brandi could prove to be a key figure in the investigation because of her long and close association with Ailes, who was ousted from Fox last year amid harassment allegations and died in May,” writes reporter Paul Farhi. “She may have direct knowledge of some of his more secretive and allegedly sinister management practices, people who are involved in the investigation said.”

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Dallas Attorney Clayton Bailey Named Benchmark Litigation Star

Trial and appellate attorney Clayton Bailey, co-founder of Dallas-based litigation boutique Bailey Brauer PLLC, has earned recognition for a fourth consecutive year as a “Local Litigation Star” in the Benchmark Litigation guide to the nation’s top lawyers.

Bailey was named among the leading attorneys in Texas for his general commercial litigation practice. He was also selected for his professional liability practice, competition and securities-based litigation and his international arbitration work. The 2018 edition of Benchmark Litigation was compiled after months of peer review, client-based research and a review of attorney casework.

“Earning recognition from Benchmark Litigation is certainly an honor, not only for me, but also for our firm,” said Bailey. “It serves as a strong indicator that our commitment to our clients has not gone unnoticed.”

Bailey was also recently selected to join the invitation-only National Trial Lawyers’ Top 100 civil plaintiff lawyers in Texas. Membership is extended to only those attorneys who exemplify superior qualifications, trial results and professional leadership.

Founded in 2013, Bailey Brauer has won multiple individual and firm recognitions from BTI Consulting Group, the National Law Journal, The Best Lawyers in America, Texas Super Lawyers and D Magazine.

 

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Yes, Overtime Laws Apply To Law Firms

A pair of lawsuits allege two Florida law firms failed to pay administrative workers proper overtime wages in compliance with the Fair Labor Standard Act, reports Above the Law.

Reporter Kathryn Rubino explains: “Brandi Durrett, a case manager, is suing personal injury firm The Disparti Law Group and its founder, Lawrence Disparti over unpaid overtime wages. Jayne Hinkle, an office manager, is making similar claims against The Jodat Law Group and partner Gary Jodat.”

Plaintiffs claim their employers would use various methods to circumvent overtime compensation requirements.

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‘It Will Be Momentous’: Supreme Court Embarking on New Term

U.S. Supreme CourtWhen the U.S. Supreme Court begins its new term Monday, it will take up a docket filled with some of the moment’s most contentious issues: voting rights, religious liberty, protection from discrimination, and privacy in an increasingly monitored society, reports The Washington Post.

Reporter Robert Barnes quotes Justice Ruth Bader Ginsburg, who told Georgetown University law students recently: “There is only one prediction that is entirely safe about the upcoming term, and that is: It will be momentous.”

He lists three cases that will get the most attention:

* Whether the court for the first time will find that a state’s electoral districts were gerrymandered with such a partisan skew that they violate the Constitution.

* Whether prosecutors must seek a judge’s permission before securing cellphone tower records that contain months of details about a person’s whereabouts.

* Whether a wedding vendor whose religious beliefs do not condone same-sex marriage must comply with a state law that prohibits discrimination based on sexual orientation.

Read The Washington Post article.

 

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Litigating Climate Change: An Overview of Suits Against the Oil and Gas Industry

The Institute for Energy Law will present a webinar discussing the various climate change-based lawsuits and current trends in climate change litigation.

The event will be Wednesday, Oct. 18, 2017, at 1 p.m. EDT / 10 a.m. PDT. Information about MCLE credit and fees can be found on the registration site.

The institute is a part of the Center for American and International Law.

“Over the past few years, government entities and non-governmental organizations have moved the debate over climate change from the court of public opinion and into the courtroom,” according to the institute. “Oil and gas companies have been one of the bigger targets for such suits, where plaintiffs have alleged that the companies are responsible for rising sea levels and that they have failed to warn about the potential impacts of greenhouse gas emissions.”

Register for the event.

 

 

 




Are Noncompetes With Independent Contractors Enforceable?

An article on the website of Fisher & Phillips discusses the question: Will a noncompetition agreement be enforceable against the independent contractor?

The Eight Circuit recently addressed this question in Ag Spectrum Co. v. Elder. In that case, Ag Spectrum contracted with Vaughn Elder to work as an independent contractor and entered into a three-year noncompete agreement.

“Elder argued that the agreement was unenforceable under Iowa law. He argued that because he was an independent contractor the noncompete was unenforceable per se. The district court granted Elder summary judgment on this basis, and Ag Spectrum appealed,” according to the article.

“The Eighth Circuit affirmed but on an alternative basis. The noncompete was not unenforceable per se but it was unreasonable under the circumstances.”

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WilmerHale Acciddentally Sent Whistleblower Docs to Wall Street Journal

MistakeWhen The Wall Street Journal broke a story about the firing of PepsiCo Inc.’s general counsel, the newspaper had some inside information: someone at WilmerHale accidentally sent a privileged memo about the case to the publication.

Above the Law recounts the story of how the memo, discussing a subpoena whistleblower/GC Maura Smith received, was sent to a group of lawyers — and the Journal.

Writer Joe Patrice speculates that “someone’s inline autocomplete got the better of them.” He also has some tongue-in-cheek advice for WilmerHale: call the whole thing fake news.

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Just Released: New E-Discovery Meet & Confer Checklist

Exterro has released a new guide titled “Rule 26(f) Meet & Confer Checklist: How to Be Prepared.” The guide can be downloaded from Exterro’s website.

Preparation is key for any meet and confer conference to be successful, the company says on its website. This checklist can help a practitioner ensure you’re adequate preparation to negotiate and identify reasonable e-discovery terms within any meet and confer.

The guide includes:

  • 39 Questions you must ask your legal team and your opponent before and during meet & confer
  • A list of questions that will help you negotiate e-discovery parameters that are proportionate and reasonable
  • Reassurance that all the necessary e-discovery questions are asked every time for every matter

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Trump’s Impact Felt in Supreme Court Labor Rights Cases

When the Supreme Court opens its 2017 term on the first Monday in October, its very first cases will serve as a stark reminder of why elections matter, predicts USA Today.

Reporter Richard Wolf writes that the upcoming term stands “a real chance of being a one-two punch against workers’ rights,” says Claire Prestel, associate general counsel for the Service Employees International Union.

Wolf points out how things have changed:

When the court was asked to hear three cases on labor arbitration agreements last September, Barack Obama was president, Hillary Clinton was heavily favored to succeed him, and federal appeals court Judge Merrick Garland was in line to replace the late Antonin Scalia. Garland had a strong record of defending workers’ rights.

Read the USA Today article.

 

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3 E-Discovery Attitudes and How They Influence Behaviors, Processes And Priorities

ZapprovedZapproved has published The 3 Archetypes of Corporate E-Discovery to shed light on the widening gap between corporate legal teams that have conquered their e-discovery challenges and those that are still struggling to do so — or simply haven’t prioritized it.

The report summarizes the common attitudes held by e-discovery executives — and how those beliefs are influencing behaviors, processes and priorities.

Amid this environment are the inescapable pressures nearly every legal professional faces:

  • Responsibly lower costs while managing risk.
  • Provide better visibility and accuracy into litigation timelines and costs.
  • Expand portfolio to manage compliance and regulatory response.
  • Keep up with the rapidly evolving digital data and ephemeral communications landscape.

By identifying Achievers, Strugglers and Idlers as the three predominant archetypes amongst corporate e-discovery professionals, the report shows how each attitude impacts success. Achievers, which represent 30% of the e-discovery market, believe automation is good for business and report high confidence in defensibility. That leaves 70% of e-discovery professionals struggling or disengaged.

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Dallas Trial Lawyer David Elrod Joins Shackelford, Bowen, McKinley & Norton

David ElrodVeteran trial lawyer David Elrod has joined the business and entertainment law firm Shackelford, Bowen, McKinley & Norton, LLP, as a partner in the Dallas office, marking a significant expansion of the firm’s existing litigation practice, the firm announces.

Also joining Shackelford are partner Worthy Walker, of counsel Barbara Wohlrabe and associate Hayley Ellison. The attorneys all have substantial experience in complex commercial and energy disputes in Texas and around the country.

“It’s not every day that you have the opportunity to bring upper-tier litigators such as David and his team into your firm. Their addition strengthens our litigation and trial capabilities regionally and throughout the country, while also adding a robust energy litigation section.”

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Lurid Lawsuit’s Quiet End Leaves Silicon Valley Start-Up Barely Dented

The executives of some Silicon Valley companies have been forced out of their corporate positions because of sexual improprieties between themselves and employees, but one company has weathered a similar ordeal with little apparent repercussion.

The New York Times discusses the case of Upload, an entertainment and news hub for the VR industry. When the former digital media manager sued the company after she was fired, allegedly because she complained about the hostile atmosphere, the company at first denied the allegations. Then, as the Times‘ story about the suit neared publication, Upload’s CEO and president issued a statement saying, “We let you down and we are sorry.”

The Silicon Valley story took a turn. As reporter David Streitfeld writes:

In contrast to the venture capitalists who were knocked off their perches this summer by harassment complaints, Upload was scarcely dented by the publicity surrounding [the] suit. [The CEO and president] were not forced to resign. Investors did not pull their money. The company’s events continued, if in terms that were a bit more muted.

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ADA Website Wars Coming to a Retailer Near You

The Winn-Dixie grocery chain is the latest and perhaps highest-profile business to face penalties for websites that are not compliant with the Americans with Disabilities Act (ADA), but it’s not likely to be the last, according to a post on the website of Androvett Legal Media & Marketing.

A federal judge in Florida found that the grocery chain’s website was inaccessible to visually impaired individuals and thus violated the ADA because features such as the website’s online coupons and pharmacy could not be accessed using a screen reader. The court ruled in favor of the plaintiff on all issues and awarded injunctive relief and attorneys’ fees.

The Americans with Disabilities Act prohibits discrimination on the basis of disability in public places, like stores and movie theaters. Increasingly, a battle has been brewing over whether or not websites for such “places of accommodation” must also be accessible.

“In Winn-Dixie’s case, the court agreed that because its website was closely integrated with its stores, the web content must be accessible to the hearing and visually impaired,” said employment attorney Audrey Mross of Dallas-based Munck Wilson Mandala. “If consumer-facing businesses were not aware of ADA website compliance, this case should be an eye-opener.

 

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2017 Litigation Finance Survey Shows Continued Growth

Burford’s 2017 Litigation Finance Survey shows that litigation finance continues to achieve dramatic growth, finding that the use of litigation finance in the United States grew by 28% from last year, to 36%. And it has grown 414% since 2013.

Among respondents in the US, UK and Australia, a majority of users (59%) say their use of litigation finance has increased in the last two years.

A strong majority (72%) of all respondents agree that litigation finance is a growing and increasingly important area of the business of law—and, notably, 40% of US companies report having foregone claims due to the cost of litigation.

Pointing to continued growth on the horizon, among all respondents whose organizations have not yet used litigation finance, a majority of law firm respondents (57%) and nearly half of in-house respondents (49%) are likely to consider its use in the next two years.

Some early concerns about litigation finance have evaporated. For example, in the US, the number of in-house respondents with concerns about litigation finance leading to unnecessary litigation fell to 10% from 81% five years ago. Among all respondents, ethical concerns rank dead last among obstacles to use, at 9%.

Only 7% of all respondents are unfamiliar with litigation finance, and only 4% of law firm respondents.

Christopher Bogart, Burford’s CEO, commented: “Burford’s latest research affirms our own experience: More and more often, clients and law firms are turning to litigation finance as a solution to some of the intractable challenges and pressures of managing legal cost and risk, and that strong demand is driving dramatic growth.”

Burford’s 2017 Litigation Finance Survey was conducted by ALM Intelligence, the research arm of ALM Media, publisher of The American Lawyer, from May 17 to June 16, 2017. The full report is available online.

 

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Federal Judge Sues Judiciary for Ordering Him to Get Mental Health Evaluation

A BuzzFeed News report covers the story of a federal judge in Ohio who is suing the federal judiciary, claiming that other judges violated his constitutional rights in ordering him to undergo a mental health screening.

Reporter Zoe Tillman writes that US District Judge John Adams, who sits in Akron, faced disciplinary action after a panel of judges found that he mistreated another official in his courthouse and refused to cooperate with an investigation into his behavior by undergoing a mental health exam.

The basis for the order involved a magistrate judge, Tillman explains:

“After a magistrate judge missed a deadline that Adams had set for completing work on a case in February 2013, Adams issued an order that the magistrate judge explain why that magistrate judge should not be held in contempt. The magistrate judge submitted an explanation, and Adams accepted it.”

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