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A jury in California delivered a $25.75 million verdict against the maker of Johnson’s Baby Powder for the deadly asbestos-caused cancer a woman developed after years of using the product, according to a post on the website of Androvett Legal Media & Marketing.

The post continues:

The verdict by jurors in Los Angeles Superior Court before Judge Gloria White-Brown includes $21.75 million in compensatory damages and $4 million in punitive damages. Jurors found that Johnson & Johnson was negligent and failed to warn consumers, and that its iconic Johnson’s Baby Powder contained manufacturing and design defects because of the presence of asbestos.

Joanne Anderson, 66, of Williams, Oregon, filed suit following her diagnosis with pleural mesothelioma. A cancer in the lining of the lungs, pleural mesothelioma is caused by asbestos exposure. She used Johnson’s Baby Powder on her children when they were younger and, as an avid bowler, regularly used the product on her hands and shoes for years. All told, experts estimate she used the product more than 10,000 times.

“It was our great honor to represent Joanne and Gary Anderson in this battle against Johnson & Johnson,” said trial attorney David Greenstone of Simon Greenstone Panatier, who was one of the attorneys who tried the case. “We are extremely pleased that our clients have found a measure of justice, although nothing can truly compensate them for what they have lost. Our clients are hopeful that this verdict can further bring light to this unbelievable example of corporate misconduct. Johnson’s Baby Powder has contained asbestos for decades. People need to know about this.”

The jury found Johnson & Johnson liable for two-thirds of the verdict amount. The remaining percentage of fault was spread among other exposures that Joanne had as a bystander to automotive work her husband occasionally performed. Medical testimony in the case indicated that all of her exposures to asbestos contributed to cause her mesothelioma.

“In 1969, a Johnson & Johnson’s company doctor told them that if they didn’t get control of the mineral contaminants in their baby powder that they would end up in litigation years later,” said trial attorney Chris Panatier, who also represented the family at trial. “Instead of pulling the powder from the market or going with a safer alternative such as corn starch, they engaged in a multi-decade campaign wherein they hid testing data from the FDA, altered reports to make them more favorable and lied to consumers. This jury saw Johnson & Johnson documents that were never given to the public or the FDA.”

Also assisting in the case was Simon Greenstone Panatier attorney Conor Nideffer.

The verdict is the third cosmetic talc case tied to asbestos that Simon Greenstone Panatier has won on behalf of its clients. In 2015, a California jury awarded mesothelioma sufferer Judith Winkel $13 million in her case against Colgate-Palmolive, based on her exposure to asbestos in its Cashmere Bouquet powder. The following year, a jury awarded $18 million to Philip Depoian in a mesothelioma case against talc supplier Whittaker Clark & Daniels.

Anderson’s case is Joanne Anderson and Gary Anderson v. Borg-Warner Corporation et al., No. BC 666513 in Los Angeles Superior Court.

DLA Piper secured a victory in its representation of WebSpectator Corporation, a Santa Monica-based company that pioneered online analytics and attention ad space, as the plaintiff before the U.S. District Court for the Central District of California.

According to a release from DLA Piper, the litigation against the company’s former officers and directors included claims for violations of the Computer Fraud and Abuse Act, the Anti-Cybersquatting Consumer Protection Act and RICO, among other causes of action. Granting WebSpectator’s motion for sanctions for spoliation of evidence, the court entered defaults against the defendants and vacated the trial date.

The DLA Piper team representing WebSpectator was led by partner Ellyn Garofalo and associate Amir Kaltgrad (both of Los Angeles).

Missing a deadline by 41 minutes was all it took to turn a $250,000 settlement offer in a personal injury case into a $5.5 million jury verdict that has since grown with interest to about $7 million and counting, reports The Dallas Morning News.

Reporter Kevin Krause explains: “The lawyer who failed to timely accept that offer in writing is Levi G. McCathern II, who also represents the Dallas Cowboys and owner Jerry Jones. His mistake in the personal injury case could end up putting a small, family-owned trucking company out of business, according to court records.”

The company sued McCathern, claiming his alleged legal malpractice led to the “ruinous” jury verdict.

Read the Dallas News article.

Image by Sean P. Anderson

In three separate lawsuits, the families of eight Sandy Hook shooting victims as well as an FBI agent who responded to the shooting seek damages from conspiracy theorist Alex Jones for defamation, reports The New York Times.

Jones has claimed that the 2012 shooting that killed 20 first graders and six adults at the elementary school in Newtown, Conn., was an elaborate hoax invented by government-backed “gun grabbers.”

Reporter Elizabeth Williamson writes that, “The families allege in one suit, filed by Koskoff, Koskoff & Bieder in Bridgeport, that Mr. Jones and his colleagues ‘persistently perpetuated a monstrous, unspeakable lie: that the Sandy Hook shooting was staged, and that the families who lost loved ones that day are actors who faked their relatives’ deaths.’”

Plaintiffs in a suit filed Wednesday challenged any First Amendment defense: “The First Amendment has never protected demonstrably false, malicious statements like the defendants’.”

Read the NY Times article.

A North Carolina law firm shouldn’t be sanctioned for failing to take steps to preserve emails that are potentially relevant to a lawsuit brought by a former partner, a business court judge ruled, according to Bloomberg Law.

The court found that the law firm’s duty to preserve emails arose four weeks before it issued a litigation hold. But sanctions aren’t warranted because there are no facts to suggest any potentially relevant emails were lost, he said.

Reporter Michael Greene quotes the judge: “There must be a specific reason, beyond mere speculation that relevant information was lost as a result of a delayed litigation hold, to justify imposing sanctions.”

Read the Bloomberg article.

The International Association of Defense Counsel (IADC) has published its second quarter 2018 Defense Counsel Journal (DCJ) with instructive articles on trending litigation issues and techniques ranging from “Lone Pine” orders to “litigation tourism” to “slack fill litigation.”

Frequently and favorably cited by courts and other legal scholarship, the DCJ is a quarterly forum for topical and scholarly writings on the law, including its development and reform, as well as on the practice of law in general, the counsel said in a release. DCJ articles are written by members of the IADC, which is a 2,500-member, invitation-only, worldwide organization that serves its members and their clients, as well as the civil justice system and the legal profession.

The current DCJ issue is available for free and without a subscription via the IADC’s website.

Michael Franklin Smith, IADC member and current editor for the DCJ, notes in his introductory article in the current issue that he felt compelled to write about the importance of the rule of law.

“The increasing rash of accusations of fake news by politicians from all levels of governments around the world and by media talking heads appears to be weakening the people’s confidence in the rule of law,” writes Smith, a shareholder at McAffee & Taft in Tulsa, Okla. “The work of those who enforce the rule of law helps to restore that confidence. Standing behind those enforcers and defending the virtues of the rule of law is more vital now than it has ever been.”

Also in the spotlight in the current DCJ issue is a letter from IADC President Andrew Kopon Jr. that highlights the IADC’s active and increasing commitment to advancing diversity and inclusion within the organization.

“Organizations realize that diversity is essential to attain their desired goals,” writes Kopon, a founding member of Kopon Airdo, LLC in Chicago. “Without inclusion fostered by multiculturalism and diversity, organizations cannot evolve and assure their success. The IADC is no exception.”

The second quarter 2018 issue of the DCJ includes the following articles:

– “Supreme Court Strikes Another Blow to Litigation Tourism in Bristol-Myers Squibb”– Explores the continuing trend of rulings against the litigation tourism industry – with companies and multi-national corporations, especially, subjected to numerous, identical lawsuits filed in the same plaintiff-friendly venues regardless of the personal connections plaintiffs share with those venues – in favor of more traditional notions of fair play and substantial justice as envisioned by the U.S. Constitution.

– “Preimpact Terror Awards – A Lottery”– Analyzes preimpact terror as a recognized category of compensable tort damages, suggesting that legislatures or the highest courts of all states could enact or rule that a “one size fits all” schedule of specific amounts could be considered “reasonable compensation” for preimpact terror. This would treat equally all objectively similar situated decedents and not reward some of their survivors with the equivalent of a winning lottery ticket.

– “Considerations for Defense Counsel in Deciding to Seek, or Not to Seek, Lone Pine Orders in Mass Tort Litigation”– Dissects “Lone Pine” orders commonly used as a hybrid trial management technique by defendants wishing to quickly dispose of frivolous toxic tort case claims involving multiple plaintiffs.

– “Not Edible, But Still Empty: Manufacturers of Non-Food Products are also Targets for Slack Fill Litigation”– Assesses the successes and failures of slack fill litigation in the context of consumer food products, describes the initial attempts to expand slack fill litigation to non-food products, and suggests actions that companies can take to avoid being the target of slack fill lawsuits.

Trial attorney Rogge Dunn has filed a lawsuit in Dallas County against FindLaw for alleged fraud and misrepresentation of services the company provided for the new Rogge Dunn Group, PC firm website.

According to Dunn, FindLaw, a Thomson Reuters business, promised to create a website with content he would own, and conduct SEO services. Instead, he says the website FindLaw proposed contained only basic images and stock language that didn’t align with the business objectives of his law practice.

In a release from Dunn’s firm, he said discovered that FindLaw, and not the Rogge Dunn Group, is the owner of the content, “which forces the firm to start from square one should it decide to build a new website.” The release also said that, after entering into the contract, Dunn learned that if he failed to renew his FindLaw contract, the company would basically “flip a switch” and un-tag the attorney, eliminating any benefit for the 12 months of SEO.

Dunn says FindLaw rejected his attempts to find a solution.

“When you hire a big company, you expect them to live up to their representations and the work they promised,” said Dunn. “Instead, all I have encountered has been a series of misrepresentations compounded by bureaucratic and corporate indifference.”

In his lawsuit, Dunn said, after interviewing a number of website developers, he was prepared to hire an alternate company, but a FindLaw salesperson talked him out of the decision by falsely claiming the other company had a poor reputation.

The case is Rogge Dunn vs. FindLaw, West Publishing Corporation, a/b/a FindLaw, Super Lawyers, and LawInfo, and Kevin Donahue at al. in Dallas County Court.

A federal judge in New Jersey has criticized Samsung Electronics America and its lawyers at Squire Patton Boggs for alleged “poor judgment and a misunderstanding” of their obligations in litigation involving two would-be class actions, reports the ABA Journal.

At a status conference in November, Squire Patton Boggs partner Philip Oliss told the judge that his firm was having “an incredibly difficult time in terms of the turn-around between here and Seoul, Korea.”

U.S. District Judge William Martini said Oliss’ representation is “as if his firm of over 1,500 lawyers (including several located in Seoul) and its client, a giant multinational conglomerate, were restricted to Eighteenth-century lines of communication.”

Read the ABA Journal article.

Bloomberg Law is reporting that a federal magistrate judge recommended the dismissal of a lawsuit that accuses Reed Smith LLP and Clark Hill PLC of using baseless lawsuits, discovery delays—and even thuggish private eyes—to help a client conceal its criminal activities.

Reporter Samson Habte writes that the recommendation could bring an end to one of several high-stake lawsuits that LabMD Inc. is pursuing against cybersecurity firm Tiversa Inc. and some of the nation’s largest law firms.

In a lawsuit, LabMD accused former U.S. Attorney Mary Beth Buchanan and Bryan Cave Leighton Paisner LLP of trying to prevent a whistleblower from revealing Tiversa hacked LabMD with “FBI surveillance software” it got from Buchanan.

The suit also claimed that Reed Smith and Clark Hill helped Tiversa cover up Tiversa’s allegedly criminal activities. “The firms allegedly did so by bringing baseless defamation suits that drained LabMD’s resources, and by using private investigators to intimidate and silence the whistleblower,” according to Habte.

Read the Bloomberg article.

The language in a forum selection clause is critical if you want to ensure that potential litigation takes place on your “home court,” writes Shep Davidson in the Burns Levinson In-House Advisor blog.

“Indeed, as the defendants in Genis v. Campbell recently learned, having a less than all-encompassing and precise forum selection clause can lead to unintended results,” he writes.

Defendants in that suit tried to invoke a forum selection clause in a license agreement and in an employment agreement that would have kept the litigation in Ohio, but the plaintiff prevailed in having the case processed in Massachusetts. The Superior Court found that the suit seeks redress for alleged misappropriation of intellectual property, not covered by the two agreements.

Read the article.

Lex Machina, a LexisNexis company and creator of the award-winning Legal Analytics platform, announced the addition of new remedies analytics content for the platform.

The company said the new feature reveals grant and deny rates for permanent injunctions, preliminary injunctions and temporary restraining orders issued by specific judges or in specific districts for antitrust, commercial, copyright, employment, patent, securities and trademark litigation. The feature also adds new case timing data to the Legal Analytics platform, providing insights into the length of time it takes for judges to reach grant or deny decisions for these remedies. Armed with this information, attorneys can employ more effective legal strategies, reduce unnecessary legal spend and gain competitive advantage.

The addition of remedies analytics is the latest in a series of innovations and product enhancements that Lex Machina has introduced in recent months. Legal Analytics has been expanded to cover District Court bankruptcy appeals and product liability cases, as well as Delaware Court of Chancery litigation. The recently introduced Expert Witness Explorer app sorts and compares expert witness data and testimonial outcomes in product liability cases. The Legal Analytics platform now supports ten federal and state practice areas and eight Legal Analytics apps.

“The addition of remedies data is another enhancement to our Legal Analytics platform’s rapidly expanding scope and functionality, and makes the platform even more of a ‘must-have’ tool for both in-house law departments and law firms,” said Owen Byrd, General Counsel and Chief Evangelist at Lex Machina. “Deeper remedies analytics and insights has been one of the most requested features by our users. We’re pleased to be able to address this feedback with remedies analytics and help our customers make more informed, data-driven business and legal decisions.”

In Lex Machina’s database of more than 1 million federal district court cases, there are 27,500 cases containing orders on motions for permanent injunctions, preliminary injunctions or temporary restraining orders. For these cases, Lex Machina data shows that permanent injunctions are granted in 88% and denied in 12% of cases when ruled on the merits. The trend varies, however, by practice area, with trademark cases seeing 91% of permanent injunctions granted when there is a judgment on the merits versus 86% of patent and 79% of employment cases.

In a release, the company said Legal Analytics users can gain even deeper insights by applying filters for specific judges or jurisdictions, and then use the results to better predict outcomes and develop winning legal strategies. Case filters for case type, case tags and time ranges may also be used to analyze remedies analytics for a specified group of cases.

Legal Analytics also contains data about other specific remedies pertaining to employment, antitrust, commercial and trademark litigation. The employment-specific remedies data includes reinstatement and promotion; antitrust remedies data includes divestiture; commercial remedies data includes replevin and specific performance; and trademark remedies data includes relinquish domain name and termination of mark. By using Legal Analytics’ built-in filters, lawyers can now uncover data-driven insights to answer questions such as: Has any employee successfully obtained restatement in the Northern District of Florida? How can I find recent commercial cases in which my judge granted specific performance?

Exterro has published “A GDPR Road Map” that discusses best practices and techniques for ensuring e-discovery processes are compliant with the EU’s new General Data Protection Regulation.

The complimentary report can be downloaded from Exterro’s website.

The report includes:

• Practical explanations of the requirements of GDPR and their implications for e-discovery
• Workflows to meet the needs of several key components of GDPR
• Change management tips organizations can use as they adapt to post-GDPR life

Download the report.

Chipotle Mexican Grill Inc. on Monday reached a confidential settlement with a former employee, rather than face punitive damages for wrongfully firing her in January 2015 from the the restaurant she once managed, reports The Fresno Bee.

A Fresno jury last Thursday awarded Jeanette Ortiz $7.9 million in her wrongful termination civil case for loss of past and future wages and emotional distress against the fast-foot giant, a company that is worth about $1.3 billion, according to reporter Pablo Lopez.

Instead of letting the jury decide punitive damages, which could have been as much as nine times the original award, Chipotle’s lawyers settled with Ortiz and her lawyers for an undisclosed sum.

“In its verdict, the jury of four men and eight women ruled that Oritz was not a thief, but was a victim of a scheme to fire and defame her for filing a worker’s compensation claim for a job-related injury to her wrist caused by carpal tunnel syndrome,” writes Lopez.

Read the Fresno Bee article.

Venerable Fort Lauderdale law firm Conrad & Scherer is under siege, reports the Miami Herald.

The firm is bitterly fighting a former client, prominent investor Douglas Von Allmen, who claims the firm stiffed him on a $25 million loan that financed costly efforts to recover losses from from a Ponzi scheme, explains reporter Jay Weaver.

And the firm also is fighting on another front, against major Alabama-based energy firm Drummond Company. Drummond has accused the law firm and a former partner of paying hundreds of thousands of dollars in bribes to witnesses to bolster their human-rights abuse cases against the corporation.

“The law firm lost the litigation with Drummond, and it is now facing a defamation case that gained significant momentum last week in a key ruling by an appeals court in Atlanta,” writes Weaver.

Read the Miami Herald article.

Fisher & Phillips LLP reports that a delivery driver for gig economy company DoorDash has been ordered by the 5th Circuit Court of Appeals to take his misclassification case to a private arbitrator instead of court pursuant to a valid arbitration agreement he entered into.

“The April 25 decision is a solid win for gig employers and could provide a template for how other similar businesses should structure their own arbitration agreements,” writes Richard Meneghello.

Delivery drivers for DoorDash are classified as independent contractors, but one driver filed suit, claiming wage and hour violations, and sought conditional class certification.

“If there is an agreement to arbitrate with a delegation clause…, we will consider that clause to be valid and compel arbitration. Challenges to the arbitration agreement as a whole are to be heard by the arbitrator,” the 5th Circuit said.

Read the article.

A former client of Perkins Coie and Bracewell has filed a malpractice suit against the two firms, claiming they led it into a contract that failed to protect its interests in a deal with Morgan Stanley.

Above the Law explains that plaintiff Electron Trading wanted to license its technology for spread trading — which allows investors to buy and sell securities simultaneously in an effort to capture price difference between financial instruments — to Morgan Stanley. Electron wanted the deal to include language limiting Electron’s liability for third-party intellectual property claims and maintaining their right to sue Morgan Stanley in the event of a contract breach, writes Kathryn Rubino.

The final agreement, however, did just the opposite, Electron claims.

Read the Above the Law article.

Michael Lyons and Courtney Bowline of the Texas trial law firm Deans & Lyons, LLP have secured a confidential settlement on behalf of vocalist and musician Amy Boone, who sustained life-altering injuries when she was hit by a car in a parking lot near a popular Holly Street convenience store in Austin.

In a release, the firm said the lawsuit alleged that Boone, formerly of The Damnations and now The Delines, was injured in April 2016 as she walked through a parking lot where wheel stops had been removed and replaced with picnic tables. A motorist in the parking lot mistakenly depressed the accelerator rather than the brake, causing the vehicle to crash through a picnic table and pin Boone against the side of the building.

“What Amy has endured following this incident has been remarkably difficult,” said Boone’s attorney Michael Lyons, co-founder of Deans & Lyons. “It is nothing short of a miracle that Amy survived, but her life has been profoundly altered. Our hope is that this settlement will allow her to move forward to find a new normal for her life. She remains an incredibly thoughtful and talented woman and it was a pleasure to represent her.”

Boone endured eight surgeries during an initial month-long stay in the hospital. Despite extensive additional treatment, including surgery for placement of a large skin graft, the severity of her injuries resulted in an open wound on her leg more than 15 months after the incident. Following intensive therapy, she remains unable to walk without the assistance of a cane, according to the firm.

Best known in Austin for her work with The Damnations, an alt-country band she formed with her sister Deborah Kelly in the 1990s, Boone had been touring and recording with The Delines at the time of the accident.

The case is Amy Boone v. Century Club, LLC, et al., Cause No. D-1-GN-16-005557 in Travis County District Court.

Zapproved and Hobson & Company recently partnered to research the average return on investment (ROI) that businesses gained by implementing Digital Discovery Pro for in-house ediscovery. A report on the research is available for downloading at no charge.

Zapproved reports that its research shows a 4X return on investment with an automated, cloud-based software solution.

“Companies in this study reported that for many of their investigations and legal matters, in-house ediscovery is more cost-effective than outsourcing,”  Zapproved reports. “Our experience with clients backs that up: for organizations that are ready, automating data processing and review in house is well worth the investment. But how quickly does that investment pay for itself?”

Download the report.

Attempting to advance a novel theory of law, several banks filed a class action in Illinois federal court against a grocery store chain arising out of a data breach that resulted in the theft of 2.4 million credit and debit cards, reports Jackson Lewis PC.

After the breach, the banks were required to issue new cards and reimburse its customers as required by federal law for financial losses due to unauthorized purchases, estimated by the plaintiffs to be in the tens of millions of dollars. With the litigation, the financial institutions sought to recover some of their costs from the grocery store chain that was allegedly responsible for the loss of the data.

Jeffrey M. Schlossberg explains the outcome: “Despite seemingly compelling arguments, the Seventh Circuit ultimately upheld the lower court’s dismissal of the banks’ claims finding that they were bound by the contractual provisions of their agreements. Essentially, the court ruled, by joining the credit card system, the banks accepted some risk of not being fully reimbursed for the costs of another party’s mistakes.”

Read the article.

The U.S. Supreme Court has emphatically reaffirmed the requirement that collective bargaining agreements must be interpreted according to “ordinary principles of contract law” when deciding whether retired employees are entitled to health care benefits, according to a post by Foster Swift Collins & Smith PC.

Richard C. Kraus and Mindi M. Johnson discuss CNH Industrial N.V. v. Reese. 

“The case involved a dispute over union retiree health benefits. In 1998, CNH entered into a CBA which provided group health care benefits to certain employees set to retire under the company’s pension plan. After the CBA expired, a class of CNH retirees and surviving spouses initiated a lawsuit in federal court asking for declaratory judgment that they were entitled to health care benefits for life and seeking to enjoin CNH from modifying those benefits.”

Read the article.