Pharmaceutical and medical device companies find themselves in the crosshairs for major matter “bet-the-farm” litigation, and recent research tends to suggest that such large-scale litigation is going to increase, reports litigation consulting firm DOAR in a new article published on its website.

DOAR is offering a presentation of its research and findings to corporate legal departments and the lawyers who represent them. The research is based on a national survey of attitudes toward the pharmaceutical industry that reports on consumer and juror sentiments and the ways in which their views and dispositions may impact litigation strategies.

“In order to best advise our clients as they respond to this shifting landscape, DOAR conducted empirical research designed to identify the key factors that contribute to jurors’ perceptions of product liability and defending companies, and how juror attitudes can be altered,” the company said. “What may be surprising is the vigor and specificity in feedback offered by individuals – as customers and as prospective jurors.”

Read the article.

Prominent trial lawyer Charla Aldous of Dallas’ Aldous\Walker has been named one of 22 recipients of Texas Lawyer newspaper’s 2015 Lifetime Achievement Award. The honorees are described by the legal news publication as lawyers “who have made their mark on the legal profession in the Lone Star State.”

She also was named recently to the Board of Trustees for Austin College in Sherman, where she earned a B.A. in 1982. The Board of Trustees is responsible for all operations of the college located in Sherman. Aldous is recognized among the school’s Distinguished Alumni.

“I am so honored to be able to serve Austin College, the place that set me on the path I’m on today,” she says. “And I will always be grateful.”

In addition to the Texas Lawyer and Austin College recognitions, the publishers of D CEO magazine named her as one of only six personal injury lawyers recognized in the Dallas 500, the inaugural publication devoted to the city’s top business leaders from various industries. The list was compiled by D CEO after more than a year of research that included a review of corporate rankings, input from industry experts and analysts, and a final analysis by the publication’s editors.

In a profile story, Texas Lawyer notes Aldous’ history of commitment to underdogs facing long odds. Among the clients she has championed are:

• A group of 176 North Carolina residents challenging oil giant Conoco over water contamination;
• A whistleblowing physician alleging billing fraud at Parkland Hospital;
• A Muslim physician claiming discrimination by the University of Texas Southwestern Medical School, and;
• Dallas nurse Nina Pham, one of Time magazine’s 2014 People of the Year. Ms. Pham says Texas Health Resources ignored warnings about the Ebola virus and contributed to her contracting the disease from Thomas Duncan, the first U.S. patient to die of Ebola.

“My office rarely lets me meet with new clients, because I want to represent them all,” Ms. Aldous told Texas Lawyer. “They limit me to two crusade cases at a time where we know we’re not going to make any money.”

In a release, the firm said Aldous has tried nearly 200 cases, a record that has earned her admission to the highly selective Inner Circle of Advocates. She is one of only six Texas lawyers among the 100 active members and was the fourth woman admitted.

Aldous\Walker represents clients in general civil litigation, personal injury, medical malpractice, products liability and wrongful death lawsuits.

Contract terms and purchaser assent to those terms, conditions, intended use and warning information provided with a purchased product are known fertile ground for defending product claims, write Amy Alderfer and Sara Poster in Cozen O’Connor’s Products Liability Prevention & Defense blog.

The authors point out that consumers often turn to the internet to purchase products, particularly during the holiday season. The paper examines the enforceability of online contracts and corresponding reliance upon virtually provided product documentation.

By following the guidelines in the article, the authors write, “manufacturers and sellers can place themselves in a stronger position to successfully enforce the terms and conditions on their websites in court, and hold consumers accountable for having received, reviewed and accepted the warnings and product related information so diligently provided.”

Read the paper.

A Houston federal jury has returned a verdict in favor of National Oilwell Varco, L.P., (NYSE: NOV), finding no wrongdoing in an employment discrimination lawsuit filed by eight African Americans who sought $120 million in damages.

Houston-based NOV, an oilfield equipment supplier, argued that these employees were not treated differently because of their race. The jury heard 12 days of testimony in the trial before Judge Lee H. Rosenthal in the U.S. District Court for the Southern District of Texas.

The plaintiffs were represented by high-profile civil rights lawyer Angela M. Alioto of San Francisco’s Law Offices of Mayor Joseph L. Alioto and Angela Alioto in their claims of racial discrimination, hostile work environment and retaliation.

Read more about the case.

Clients need to understand that they must communicate fully with their lawyers if they want to receive the best possible legal advice, writes Francis Drelling in a new article. He says lawyers need to better understand what a client might “hold back” so that they can take steps, early on, to solve the problem.

He starts with the problem of clients withholding important information, possibly in an attempt to “sell” their case to the lawyer.

“Lawyers need to understand that they should make their point, their recommendations, and then listen to their clients,” he writes in the second point.

Other points include when to stop talking, hiding motives from the lawyer, and following the client’s directions.

Read the article.

The latest of a line of recent cases in which the U.S. Supreme Court has weighed the enforceability of class action waivers in arbitration agreements was before the court on Oct. 6, 2015, when the court heard oral argument in DirecTV, Inc. v. Imburgia, et al., No. 14-462, reports James A. McKenna of Jackson Lewis.

“These decisions almost uniformly have favored arbitration, and many employers have adopted and successfully utilized arbitration agreements containing class action waivers,” he explains.

DirecTV’s customers signed agreements requiring claims relating to the agreement or to the company’s service to be decided by binding arbitration on an individual basis. “Arbitration on a class basis was specifically prohibited. At the time Amy Imburgia signed the agreement, the controlling California law was the “Discover Bank rule” announced by the California Supreme Court in 2005. Under the Discover Bank rule, almost all consumer arbitration agreements containing class action waivers were deemed unconconscionable and, therefore, unenforceable,” according to the article.

Read the article.

The Consumer Financial Protection Bureau (CFPB) announced that it is exploring a rulemaking to eliminate the use of certain arbitration agreements in consumer contracts that block consumers from participating in class-action lawsuits, report Bill Mayberry and Jodie Herrmann Lawson of McGuireWoods. They write that, if the new rule is enacted, it will impact companies that fall within the CFPB’s broad interpretation of businesses that provide financial products and services for consumer purposes.

“The announcement comes on the heels of the CFPB’s publication of a three-year study on arbitration that concluded that consumers generally are better served through litigation. According to CFPB Director Richard Cordray, arbitration clauses amount to ‘a free pass to sidestep the court and avoid accountability for wrongdoing,” they write.

The article is on the firm’s Subject to Inquiry blog.

Read the article.

A West Texas jury has awarded more than $43 million to a group of oil and gas investors after finding that their business partners had breached fiduciary duties by crediting themselves for financial contributions they never made and by excluding the investors from a lease acquisition project after it became apparent that the project would be tremendously successful.

Dallas attorneys Frank L. Branson, Eric T. Stahl and Debbie Branson of The Law Offices of Frank L. Branson represented one of the investor groups, consisting of Dallas-based Tiburon Land and Cattle LP and Trek Resources Inc. on behalf of the Three Finger/Black Shale Prospect Partnership. The Fisher County trial was heard in 32nd District Court in Roby.

“In Fisher County a deal is a deal,” said Branson in a report on the firm’s website. “It was very clear to the jurors that the defendants did not honor their word and took opportunities that did not belong to them, and that’s a very serious matter in West Texas.”

Read the article.

A Houston federal jury this week returned a verdict in favor of National Oilwell Varco, L.P., (NYSE: NOV), finding no wrongdoing in an employment discrimination lawsuit filed by eight African-Americans who sought $120 million in damages.

Houston-based NOV, an oilfield equipment supplier, argued that these employees were not treated differently because of their race. The jury heard 12 days of testimony in the trial before Judge Lee H. Rosenthal in the U.S. District Court for the Southern District of Texas.

The plaintiffs were represented by high-profile civil rights lawyer Angela M. Alioto of San Francisco’s Law Offices of Mayor Joseph L. Alioto and Angela Alioto in their claims of racial discrimination, hostile work environment and retaliation. Their lawsuit alleged that non-African-Americans received raises and promotions that were denied to the plaintiffs, in addition to claiming that racial slurs were frequently used in the workplace. However, the jury found that NOV had not violated the rights of the plaintiffs, seven former NOV employees and one current NOV employee.

NOV’s trial team was led by special trial counsel John Zavitsanos of Houston’s Ahmad, Zavitsanos, Anaipakos, Alavi & Mensing P.C., or AZA.  He offered evidence that showed there were several non-discriminatory reasons some of the workers did not receive promotions, were not asked to return to their jobs after taking unauthorized leave or were fired for cause.

“NOV always has promoted a diverse workplace where discrimination isn’t tolerated,” says Zavitsanos. “This was nothing more than an attempt by a discrimination law firm to pull out a playbook that has worked in other cases in hopes of cashing in.”

Also representing NOV along with Zavitsanos were attorneys Monique Gougisha Doucette and Christopher E. Moore of Ogletree, Deakins, Nash, Smoak & Stewart’s New Orleans office. Assisting on the case was law school graduate Nathan Campbell, who is not yet licensed to practice law.

The plaintiffs in Vital, et al. v. National Oilwell Varco, No. 4:12-cv-01357, included former NOV employees Junious Vital, DeWarren Bellard, Damon Darby, Herbert Heard, Edward Jiles, Jerome Johnson, David Lane and current employee Billy Rose.

Lawyers with Gruber Hurst Elrod Johansen Hail Shank have recently scored big wins on the plaintiff side and the defendant side of the docket in civil litigation.

On the plaintiff’s side, the firm’s Trey Crawford was co-leader of the trial team that secured a $21.4 million civil damages award to a young woman who was sexually assaulted by the owner of a popular Addison restaurant. The bench ruling on behalf of the unidentified victim known as “Jane Doe” against the owner of Addison’s Pastazios restaurant received media coverage on multiple prints and broadcast outlets. To read the Dallas Morning News article, click here.

And on the defense side, the firm’s Orrin Harrison appeared in Law360 and in Texas Lawyer, which named him “Litigator of the Week,” commenting on the firm’s successful defense of Dillon Gage, a Dallas-based coin and gold wholesaler, against claims by the federal government that Dillon Gage fraudulently received more than $5 million from an Allen Stanford-affiliated company. Click here for the Texas Lawyer feature.

Zapproved has released its Third Annual Legal Hold and Data Preservation Benchmark Survey Report, the industry’s most extensive survey series focused on legal data preservation and collections practices, and the results show that processes still lack maturity.

More than 421 professionals dealing directly with litigation hold management participated in the Zapproved study.

One of the key findings shows that more than half of survey respondents still use manual processes for tracking litigation holds, and 3.5 percent communicate litigation holds verbally; nearly half of respondents now have a software system in place.

It also found that 34 percent of the survey respondents have had to defend their preservation efforts, a fact that underscores the importance of defensible processes. And 56 percent of respondents consider their organization to be “at risk” when it comes to legal holds.

The study also covers training in data preservation, benefits of automating the legal holds process, and more.

Download the complimentary report.

Occupational Assessment Services will present a complimentary CLE dinner seminar titled “Documenting Long Term Medical Needs through a Life Care Plan and Establishing a Special Needs Trust.”

The event, which includes two hours of Texas CLE credit, will be in three Texas cities:

• Sept. 8, Tuesday | Belo Mansion, 2101 Ross Ave., Dallas, TX | 6-9 p.m.
• Sept. 9, Wednesday | Tony’s Houston, 3755 Richmond Ave., Houston, TX | 6-9 p.m.
• Sept. 10, Thursday | InterContinental, 701 Congress Ave., Austin, TX | 6-9 p.m.

Presenters will be Edmond Provder, Vocational Expert and Life Care Planner and Suzanne R. Gaidoo, Esq.

They will cover such topics as:

• Determine the worth of a case
• Understand when a PI case warrants a Life Care Plan
• Understand how a Life Care Plan is used by the trustee of a Special Needs Trust
• Understand using information from a Life Care Plan to establish a special needs trust
• Move toward settlement — Prepare the case for trial

Register for the event.

After a trial court and intermediate appellate court had ruled that an arbitration clause in a consumer contract was unconscionable, the California Supreme Court reversed in a recent ruling, finding the clause was enforceable in Sanchez v. Valencia Holding Co., LLC, reports Liz Kramer in Stinson Leonard Street’s Arbitration Nation.

She wrote: “[T]he court found that because the buyer could not negotiate the provisions of the sales contract, he had established ‘some degree of procedural unconscionability.’ (The buyer did not have to prove he tried to negotiate the arbitration clause.)  The court could then address the buyer’s claims of substantive unconscionability.”

“This decision puts California squarely in the mainstream on the unconscionability of arbitration agreements,” she continued. “It also offers very useful guidance for California courts (or those applying California contract law) facing future arguments about the unconscionability of arbitration clauses.”

Read the article.

A young woman who was allegedly sexually assaulted in 2011 by the owner of a pizza restaurant in Addison, Texas, has been awarded $21.43 million following a four-day bench trial heard in the 193rd District Court in Dallas.

Judge Carl Ginsberg issued the award after hearing evidence that Ajredin “Danny” Deari, owner of co-defendant Pastazios Pizza in Addison, served the then-18-year-old victim multiple rounds of beer and whiskey at the restaurant under the pretext of a job interview.

According to a release issued by the plaintiff’s law firm, the victim eventually passed out and awoke in a nearby hotel room while she was being sexually assaulted by Mr. Deari, who then fled the scene. Subsequent physical examinations determined that Deari had infected her with herpes during the assault.

The woman, who is identified as “Jane Doe” due to the nature of the assault and her age at that time, was in Judge Ginsberg’s courtroom throughout the trial.

“The judge called this the most offensive set of facts he had ever seen during his time on the bench,” says Dallas attorney Trey Crawford of Gruber Hurst Elrod Johansen Hail Shank, who represented the woman at trial with co-counsel Royce West of Dallas’ West & Associates L.L.P. and Gruber Hurst Elrod co-founder Michael Gruber.

Deari pleaded no contest to criminal charges and the next day filed for personal and business bankruptcy protection. Pastazios continues to operate under Chapter 11 status.

“This is certainly one of the largest bench trial judgments in Dallas County in recent memory,” says Mr. West. “This young woman has been waiting for justice for four long years, and she’s fought very hard to make sure that every business owner is aware of the consequences of their actions.”

Gruber Hurst Elrod attorney Brian Mason also represented the woman at trial.

The case is Jane Doe v. Pastazios Pizza, Inc.; and Ajredin “Danny” Deari, No. 13-04564.

Not all construction contracts are written, and contractors don’t always provide a written policy at the end of a project, writes Austin B. Calhoun of Florida-based Jimerson & Cobb. This raises the question: are oral multi-year warranties enforceable?

The article discusses a case involving Florida’s Statute of Frauds, which bars the enforcement of oral agreements that are not to be performed within one year. But Loper v. Weather Shield Mfg., a recent Florida First District Court of Appeals case, appears to have opened the door to enforcing oral multi-year warranties.

The article focuses on the Loper holding, as it applies to the Statute of Frauds and oral warranties for more than one year.

Read the article on Lexology.com.

A group of airline customers has filed a federal class-action lawsuit in Dallas accusing four major U.S. airlines of violating antitrust laws by conspiring to artificially inflate airfares in order to reap huge profits.

The lawsuit filed July 8 says Texas-based Southwest Airlines (NYSE:LUV) and American Airlines (NASDAQ:AAL), Atlanta’s Delta Airlines (NYSE:DAL) and Chicago’s United Airlines (NYSE:UAL) conspired to restrict capacity by limiting routes and the number of available seats in order to charge artificially high prices.

“The defendants are so intent on raising profits that they appear to have colluded to gouge customers’ pocketbooks and keep airfares sky high,” says Dallas attorney Warren T. Burns of Burns Charest LLP, who represents the plaintiffs. “Agreeing to restrict capacity to keep your profits high marks the very definition of an antitrust violation.”

In a release, Burns Charest describes a series of economic conditions that should have resulted in more available airline seats and lower ticket prices, including increasing public demand for airline seats and the fact that airlines paid at least $1.50 per gallon less for jet fuel in 2014 compared to 2013. Instead, the supply of seats has remained virtually flat and airline fares skyrocketed at an inflation-adjusted rate of 13 percent from 2009 to 2014, the lawsuit says.

The filing follows last week’s announcement from the U.S. Department of Justice that it is investigating the airlines’ tactics. Similar lawsuits on behalf of airline customers have been filed in New York, Chicago, San Francisco, and Washington, D.C. Burns and Burns Charest have moved to transfer and consolidate all the civil cases in the U.S. District Court for the Northern District of Texas, where today’s lawsuit was filed, according to the firm’s release.

The case is Cumming, et al. v. American Airlines, Inc., et al., No. 3:15-cv-02253.

Burns Charest is a Dallas and New Orleans-based trial law firm with a national practice representing consumers and businesses. The firm represents clients in large, complex class actions; antitrust claims; oil and gas royalty disputes; environmental pollution cases; and asbestos exposure claims.

A Colorado oilman must pay $16.8 million to reimburse energy companies for legal fees they incurred defending his unsuccessful lawsuits against them, a federal judge in Wyoming has ordered, according to a report in The Casper Star-Tribune.

The defendant, Jack Grynberg, filed scores of lawsuits against natural gas and pipeline companies around the West in the late 1990s.

“Grynberg claimed the companies had underreported energy production from federal lands by billions of dollars and claimed he was due a share of the funds as a whistleblower under the federal False Claims Act.” the newspaper reported. “He stood to collect up to 30 percent of any award, but said he intended to donate proceeds to charity if he was successful.”

Casper lawyer Tom Reese is liaison counsel for the energy companies.

Read the article.

Archer Norris has published a first-of-its-kind California Business Litigation White Paper revealing that many corporate lawyers view California’s litigation environment as hostile, characterizing it as “burdensome,” “complex,” and “cumbersome.” While California was once widely considered by corporations to be the Promised Land because of the unlimited economic opportunity the state offered, its increasingly oppressive legal and regulatory environment means it is now getting panned by many businesses.

Conducted in partnership with ALM Marketing Services, Archer Norris’s survey polled general and corporate counsel with business interests in California on their opinions of the California legal climate, how they evaluate litigation matters, and how they choose outside counsel for handling these matters.

Compared to other states, corporate counsel reported three practice areas in California as particularly fraught with risk and potential liability: employment litigation (67%), environment/regulatory matters (59%), and commercial litigation (43%), with the first two most negatively impacting their decision to conduct business in the state. Other factors giving them pause about doing business in California include its judicial system (43%), state and local taxes (42%), environmental regulations (34%), and health and safety codes (30%).

Given their feelings about litigating in California – four in ten indicated they are simply “resigned” to the cost of doing business in the state – many corporate counsel indicated they struggle in deciding whether to settle cases or proceed to court. Forty percent of respondents were required to make such a call on ten or more matters within the last year. Counsel most often assessed the short-term odds of success in court versus reaching a favorable settlement (73%), followed by considerations of their legal exposure or the dollar value of a potential settlement (72%).

“As a law firm that has maintained a singular focus on helping businesses meet the unique challenges and opportunities in California for 35 years, we can’t say we’re surprised by these findings,” said Gene Blackard, Managing Partner. “In fact, we owe our continued growth and success to our ability to efficiently guide clients through California’s increasingly complex legal terrain. We have strategically developed our practices to meet the diverse litigation and transactional needs of companies doing business in the state, maintain offices in key geographic regions, and offer creative alternative fee arrangements to every one of our clients.”

The survey also yielded insights about how in-house counsel evaluate which outside counsel offer the right mix of skills and experience to handle the challenging California litigation environment. At the onset of a legal engagement, the most important factors include law firm responsiveness, knowledge of the business and industry, and overall litigation costs.

To download the Business Litigation Playbook white paper, please visit: http://www.archernorris.com/Templates/media/files/AN-Business-Litigation-Playbook-0615.pdf

About Archer Norris

A leading California law firm, Archer Norris PLC has more than 100 attorneys admitted to practice in 15 states. The firm focuses on business law from five strategically located California offices in San Francisco, Sacramento, Walnut Creek, Newport Beach and Los Angeles. Archer Norris counsels clients in commercial and complex litigation, insurance coverage, bad faith litigation, business, health care, public entity, environmental, and real estate transactions throughout California and wherever our clients need us.

The standards for walkway safety have changed – and the way slip and fall lawsuits are going to change with them, reports The Expert Institute.

The Institute has produced a white paper that outlines crucial updates made by the (ANSI) B101 committee on safety requirements for slip, trip, and fall requirements, and how they will impact defendant liability in more than half of all slip and fall claims.

The information in this whitepaper will help readers:

• Use new testing standards to prove defendant liability
• Select better slip and fall cases
• Understand how these new standards will affect your practice

Download the white paper.

National law firm Wilson Elser announces that Jeffrey C. Hart has joined the firm’s Detroit Metro office in Livonia, Michigan, as of counsel. Prior to joining Wilson Elser, Hart was of counsel with Segal McCambridge Singer & Mahoney.

Hart litigates employment, complex commercial, product liability, medical malpractice, transportation, general liability, professional liability and workers’ compensation matters.

An accomplished attorney with more than 280 cases tried before various administrative agencies, judges and juries, Hart represents Fortune 500 companies, cities, universities, hospitals, physicians groups and individuals in civil and criminal matters.

“Jeff is a welcome addition to our Metro Detroit office,” said John Eads, regional managing partner of the office, in a release. “His experience representing clients across a broad spectrum of practices and industries adds tremendous value to the counsel we provide our clients and to our office – one of the firm’s newest. The clients who accompany Jeff will benefit from his role as their one point of contact for Wilson Elser’s national, full-service platform.”

Hart believes in staying abreast of the most recent developments in the legal sector and is affiliated with several bar associations, including the American Bar Association, DRI: The Voice of the Defense Bar and the State Bar of Michigan, and maintains memberships on numerous committees within each group.

Committed to pro bono service, Hart volunteers with the Homeless Experience Legal Protection (H.E.L.P), a program offered through Sts. Peter and Paul Jesuit Church’s Warming Center that assists homeless men and women with legal issues.

Hart earned his B.A. degree from Michigan State University (1992) and his J.D. degree from Loyola University Chicago School of Law (1995), where he served on the editorial board for the Loyola Consumer Law Reporter and on the advisory board for the publication’s predecessor, Loyola Consumer Law Review.

About Wilson Elser

Wilson Elser, a full-service and leading defense litigation law firm (www.wilsonelser.com), serves its clients with nearly 800 attorneys in 27 offices in the United States and one in London and through a network of affiliates in key regions globally. Founded in 1978, it ranks among the top 200 law firms identified by The American Lawyer and is included in the top 50 of The National Law Journal’s survey of the nation’s largest law firms. Wilson Elser serves a growing, loyal base of clients with innovative thinking and an in-depth understanding of their respective businesses.