“An appeals court panel on Wednesday refused to overturn the majority of a visiting judge’s decisions in a civil case involving former Mahoning County Judge Diane Vettori-Caraballo and a client in her private practice, from whom she stole money,” reports Ed Runyan in The Vindicator’s News.

“Vettori-Caraballo, who formerly served as Mahoning County Sebring Area Court judge, was sent to federal prison in September 2019 for 2 1/2 years and ordered to pay $328,000 in restitution and after being convicted in federal court for her actions. She was removed as a judge in 2018 during an investigation.”

“The case went to trial in December 2018, and visiting judge Thomas Swift ruled in March 2019 that Vettori-Caraballo concealed $110,200 in cash assets from Falgiani’s estate and filed false statements to the Mahoning County Probate Court regarding estate assets. He ruled she should repay the the money, plus legal fees she received, interest and other costs totaling $185,678.”

Read the article.

“Global consultancy firm McKinsey & Company has agreed to pay $573 to settle claims by more than 40 US states related to its role in the nation’s opioid epidemic,” report Michael Forsythe and Walt Bogdanich in The New York Times.

“Sources familiar with the matter said that McKinsey’s settlement is with 43 states, the District of Columbia and three territories. Several attorney generals said they planned to make announcements on the opioid epidemic on Thursday, coinciding with the filing of the settlement.”

“$478 million of the settlement must be paid within 60 days, according to the New York Times. In total, the settlement will exceed any profits the firm made from its opioid-related work with pharmaceutical companies.”

“The company will not admit wrongdoing as part of the deal.”

Read the article.

“On August 24, 2020 in Ann Finch v. Covil Corp., 972 F.3d 507 (4th Cir. 2020), the Fourth Circuit Court of Appeals upheld a North Carolina federal district court’s decision, sustaining a $32.7 million verdict in favor of the plaintiff in an asbestos-related wrongful death lawsuit against insulation contractor Covil Corporation. On appeal, Covil argued that the district court erred in instructing the jury as to proximate cause and refused to reduce the damages award, however the three-judge panel found no fault with the district court’s jury instructions or its rationale for refusing to reduce the jury verdict,” write Deanielle Luisi and Tierra Jones in Husch Blackwell’s Toxic Tort Monitor.

“The $32.7 million verdict in Finch is reportedly the largest single-plaintiff verdict and the largest mesothelioma-related verdict in North Carolina history. Additionally, the verdict is four times larger than any other North Carolina mesothelioma verdict.”

Read the article.

“Johnson & Johnson has been defending against claims its talc-based powders cause cancers for years, and, with a new ruling against the drugmaker in Missouri, it’s preparing to challenge a massive verdict at the U.S. Supreme Court,” reports Eric Sagonowsky in Fierce Pharma.

“After a Missouri appeals court this summer lowered a 2018 talc verdict against the drugmaker to $2.11 billion, J&J pledged to appeal to the state’s Supreme Court. That court has now refused to take up the appeal—and J&J says it’ll take its case higher.”

“But it’s far from certain to get a hearing at the U.S. Supreme Court, either. Of the 7,000 cases it’s asked to review each year, the high court takes up 100 to 150 of them, according to U.S. government figures.”

Read the article.

“Kansas promoter Brett Mosiman was ready to chase former KAABOO owner Bryan Gordon to the end of the earth to collect a $7 million judgement delivered by a Kansas jury in February, but that will no longer be necessary after the men settled their claims last week over the canceled 2015 Thunder on the Mountain festival in Ozarks, Ark.,” reports Dave Brooks in Billboard’s Touring.

“Mosiman had filed a second lawsuit against Gordon in San Diego in December accusing the Madison Companies chairman of trying to hide his assets after selling KAABOO late last year. Mosiman was also working with his attorney to prepare their enforcement option for the Kansas judgment, but neither remedy will be needed after Mosiman filed a notice with the Kansas court Wednesday saying that Gordon and the companies he controls have satisfied the terms of the judgement ‘in an amount of which has been fully agreed to by the parties.'”

“Mosiman is the founder of the Wakarusa festival and had been hoping to revive the Thunder on the Mountain series when he was approached by Gordon and his business partners Seth Wolkov and Robert Walker from the Denver-based Madison Companies in 2014.”

Read the article.

“Attorney General Alan Wilson announced Monday that the State of South Carolina and the United States have reached a settlement to end litigation related to weapons-grade plutonium that was relocated to the Savannah River Site in the early 2000s,” reports WSPA Staff in WSPA News.

“According to the settlement, the U.S. will pay South Carolina $600 million immediately and the Department of Energy says they will remove the plutonium by 2037.”

“The settlement ends six years of litigation related to the remaining 9.5 metric tons of weapons-grade plutonium.”

Read the article.

“Attorney General Kathy Jennings today announced an $85 million multistate settlement with American Honda Motor Co., Inc. and Honda of America Mfg., Inc., over allegations Honda concealed safety issues related to defects in the frontal airbag systems installed in certain Honda and Acura vehicles sold in the United States. The systems were designed and manufactured by Takata Corporation, a long-time Honda supplier, and were first installed in Honda vehicles in the 2001 model year,” was posted in Delaware.gov’s news feeds.

“The settlement, reached between the attorneys general of 43 states and the District of Columbia and Honda, concludes a multistate investigation into Honda’s alleged failure to inform regulators and consumers of that the frontal airbags posed a significant risk of rupture, which could cause metal fragments to fly into the passenger compartments of many Honda and Acura vehicles. The ruptures have resulted in at least 14 deaths and over 200 injuries in the United States alone.”

Read the article.

“Despite winning a relatively swift victory in the district court, Tiffany & Co. will not be collecting its $21 million judgment against Costco Wholesale Corp. anytime soon. In a 3-0 decision on Aug. 17, 2020, the U.S. Circuit Court of Appeals for the Second Circuit vacated the district court’s judgment for Tiffany, holding that factual questions improperly decided by the court instead should have gone to a jury,” report Andriana Shultz Daly and Stephanie A. Martinez in McGuireWoods’ Resources.

“The dispute between Tiffany and Costco began in 2012 when Tiffany, a well-known purveyor of high-end jewelry, discovered that Costco was using ‘Tiffany’ on point-of-sale signs for certain of its otherwise ‘unbranded’ diamond rings. Tiffany demanded that Costco cease use of ‘Tiffany’ in connection with its rings, and Costco complied. Costco also notified purchasers of such rings that Costco used ‘Tiffany’ merely to indicate that the rings had Tiffany-style settings, and reminded customers that they could return their rings at any time. Still, Tiffany sued for trademark infringement and counterfeiting. In response, Costco asserted that its use of ‘Tiffany’ constituted descriptive fair use.”

Read the article.

“Daimler said on Thursday it has reached agreements costing nearly $3 billion to settle civil investigations by U.S. regulators and lawsuits from vehicle owners stemming from a long-running probe into software to cheat diesel emissions tests,” report David Shepardson and Emma Thomasson in Reuters Environment.

“The settlements in principle address civil and environmental claims tied to 250,000 U.S. diesel passenger cars and vans in the United States and include claims from the Environmental Protection Agency, Justice Department, California Air Resources Board (CARB) and the California Attorney General’s Office.”

“The German carmaker said it expects the costs of the settlements with U.S. authorities will total $1.5 billion, settling with owners will cost about $700 million and ‘further expenses of a mid three-digit-million EUR (euro) amount to fulfill requirements of the settlements.'”

Read the article.

“A Florida-based specialty pharmacy will pay $3.5 million to resolve allegations it served as a conduit for a Teva Pharmaceutical Industries Ltd subsidiary to pay kickbacks to Medicare patients, the U.S. Justice Department said on Thursday,” reports Nate Raymond in Reuters’ U.S. Legal News.

“The settlement with Advanced Care Scripts Inc was the latest to result from an industry-wide U.S. probe of drugmakers’ financial support of patient assistance charities that has resulted in nearly $921 million in settlements.”

“Representatives for Teva and ACS did not respond to requests for comment. Teva has said it has been cooperating with the investigation since first receiving a subpoena from the U.S. Attorney’s Office in Boston in 2017.”

Read the article.

“When defending a Lanham Act claim brought by a competitor, the doctrine of unclean hands—the lawyerly version of ‘But they did it too!’—can be a case-dispositive argument. Last month, the Ninth Circuit made it a bit easier to establish this defense, holding that a defendant arguing unclean hands need not prove that the plaintiff’s unclean conduct caused ‘actual harm,'” write Michael Sochynsky and Jonah M. Knobler in Patterson Belknap’s blog.

“The unclean hands defense is based on the equitable maxim that ‘he who comes into equity must come with clean hands.’ … Its roots lie in the English Court of Chancery—a royal ‘court of conscience’ that was able to grant relief in situations where the hidebound courts of law could not. Chancery’s unique focus on conscience and morality meant that plaintiffs seeking its aid were held to a high standard of behavior.”

“Unclean hands remains a viable defense today in the context of equitable claims.”

Read the article.

“Bayer is asking a California appeals court to trim $4 million from the amount of money it owes a California groundskeeper struggling to survive cancer that a trial court found was caused by the man’s exposure to Monsanto’s Roundup herbicides,” reports Carey Gillam in U.S. Right to Know.

“In a ‘petition for rehearing’ filed Monday with the Court of Appeal for the First Appellate District of California, lawyers for Monsanto and its German owner Bayer AG asked the court to cut from $20.5 million to $16.5 million the damages awarded to Dewayne ‘Lee’ Johnson.”

“The appeals court ‘reached an erroneous decision based on a mistake of law,’ according to the filing by Monsanto. The issue turns on how long Johnson is expected to live. Because evidence at trial found Johnson was expected to live “no more than two years,” he should not receive money for future pain and suffering allocated for any longer than two years – despite the fact that he continues to outlive predictions, the company argues.”

Read the article.

“Bayer recently announced its intent to settle all Roundup, dicamba drift and Polychlorinated biphenyls (PCB) water litigation cases between $10.1 and $10.9 billion. The company says this settlement is not an admission of fault, but rather a cost-effective way to end the ‘distraction,’ reports Sonja Begemann in AG Web’s Business.

“The decision to resolve these cases was driven by our desire to bring greater certainty to the farmers we serve every day,” says Liam Condon, Bayer president of the crop science division.”

“These, and all our products, bring to growers and other users around the world the ability to help them economically and sustainably produce a healthy crop.”

Read the article.

“Class actions present significant risk, because a certified class exposes a class defendant to class-wide liability,” warns James Bogan III of Kilpatrick Townsend & Stockton LLP in JD Supra.

“Most defendants agree to settle rather than face the risk of a class verdict. But sometimes a class defendant will roll the dice, hoping it will prevail either at trial or on appeal. In a recent case, Bahamas Surgery Center, LLC v. Kimberly-Clark Corporation, …, the class defendants did just that. Although the district court entered judgment against the class defendants in the amount of $24 million, they were ultimately saved on appeal by a split panel of the Ninth Circuit Court of Appeals.”

“By way of background, Bahamas Surgery Center, LLC (Bahamas), sued Kimberly-Clark Corporation (KC) and Halyard Health, Inc. (Halyard), for fraud, asserting that KC and Halyard misrepresented the efficacy of surgical gowns in terms of blocking the spread of pathogens. Bahamas presented evidence that the surgical gowns had been labeled as compliant with a specific standard going to that efficacy – the Association for the Advancement of Medical Instrumentation (AAMI) Liquid Barrier Level 4 standard – when in fact the gowns did not meet that standard.”

Read the article.

“Three recent decisions demonstrate how the legal landscape continues rapidly to change and evolve in response to COVID-19. These decisions highlight certain developing uncertainties in the law, including the impact of COVID-19-related executive and administrative orders on the rights of private parties,” report Jonathan P. Wolfert, Eddy Salcedo, Owen R. Wolfe, and Sarah Fedner in Seyfarth’s News & Insights.

The takeaways from these recent decisions are that “These decisions reflect the importance of staying up to date not only on various executive and administrative COVID-19 orders and anticipating the effects of those orders on pending litigation, but also Court decisions interpreting such orders or otherwise dealing with the effects of COVID-19. The legal landscape will continue to be affected as courts grapple with the continuing fallout from the pandemic.”

Read the article.

“Judge Klausner, sitting in the Central District, dismissed a claim brought by a class of Princess Cruise Line passengers premised on their exposure to COVID-19 while aboard the now-infamous cruise ship that departed San Francisco for Hawaii on February 21, 2020,” reports Patrick Hammon in McManis Faulkner’s Blog.

“Plaintiffs, Ronald and Eva Weissberger, while still on the ship, filed suit against the cruise line on March 9, as the Grand Princess docked at the Port of Oakland alleging a claim for negligence. Although the Weissbergers did not test positive for COVID-19 (or suffer symptoms of the disease), they sought to recover damages for the emotional distress they suffered based on their fear of contracting coronavirus while quarantined on the ship.”

“Defendant, Princess Cruise Lines, moved to dismiss, arguing Plaintiffs failed to state a claim. The district court explained, as an initial matter, that Plaintiffs’ negligence claim had to be considered as a claim for negligent infliction of emotional distress (NIED), since Plaintiffs did not seek to recover for any physical harm, instead alleging only that they suffered emotional distress and mental anguish associated with their ‘of developing COVID-19’ on the ship.”

Read the article.

“As the COVID-19 pandemic continues with no certain end in sight, courts and lawyers alike must come to terms with the possibility that the conduct of trials may require dramatic changes to keep the wheels of justice turning,” write Thomas B. Fiddler and Vincent N. Barbera in White and Williams’ News & Resources.

“While bench trials (by video, and in some instances, live) present their own logistical challenges and strategic considerations, the prospect of video trials by jury adds additional layers of complexity. One threshold factor that must be carefully considered is the impact of video jury trials on the jury pool itself.”

“Significant change to any longstanding practice has consequences, both good and bad, and a shift to conducting jury trials remotely is no exception. Replacing the need to report to court for jury duty with the need to report to one’s personal computer may help remove barriers associated with transportation, but invariably presents a host of new questions and challenges. What about potential jurors who do not own or have access to the necessary technology to participate? What about potential jurors who do not possess the necessary skills to operate the technology required to fully and appropriately participate? These and similar questions highlight an unintended, but likely consequence: the de facto exclusion of jurors who do not own the requisite assets or possess the necessary technical skillset to qualify for remote jury service. In turn, there is a realistic possibility that neither plaintiffs nor defendants will have access to the jury of their choosing or a jury of ‘their peers.'”

Read the article.

“ERISA litigation continues to flourish thanks to veteran plaintiffs’ attorneys refining their strategies, newcomers entering the ERISA arena using traditional arguments and lawsuits being filed against smaller plans,” reports Robert Steyer in Pensions & Investments’ Courts.

“For the veteran plaintiffs’ attorneys, their lawsuits ‘generally are sophisticated and appear to respond to roadblocks from decisions that have gone against plaintiffs,’ Thomas E. Clark Jr., a St. Louis-based partner and chief operating officer of Wagner Law Group who represents sponsors, wrote in an email.”

“For the new crop of law firms filing suits, “these complaints appear to generally be cookie cutter and borrow from legal theories from earlier lawsuits,” he wrote.”

“Recent defendants include Costco Wholesale Corp., Paychex Inc., KeyCorp, Land O’ Lakes Inc., Estee Lauder Inc., Oshkosh Corp., Automatic Data Processing Inc., MedStar Health Inc., Astellas US LLC, Quest Diagnostics Inc., Universal Health Services Inc., Schneider Electric Holdings Inc., CDI Corp., and CommonSpirit Health.”

“And that’s only since Memorial Day.”

Read the article.

“Despite citing the surge in coronavirus cases and economic fallout from the pandemic in California, Sutter Health failed to persuade a state judge on Thursday to delay the $575 million settlement it reached last December over accusations of price gouging and monopolistic practices,” reports Reed Abelson in The New York Times’ Health.

“Sutter, which has already received hundreds of millions of dollars in federal coronavirus aid, argued it needed three more months to decide whether it should try to abandon the settlement terms. The sprawling health system in Northern California warned that the costs of the pandemic might force it to raise rates for patient care beyond caps set by the proposed settlement.”

“But Superior Court Judge Anne-Christine Massullo was not swayed. While sympathetic to concerns over the rising number of infections in California, the judge refused to give Sutter more time, scheduling a hearing next month on the preliminary agreement. Sutter Health could still try to block final approval of the settlement, which also prevents it from forcing insurers to include all of its health facilities in insurance policies rather than coverage for some.”

Read the article.

“Once parties agree to arbitrate, courts generally defer to the arbitrator’s judgment regarding resolution of a dispute,” discuss Jim Archibald, Amandeep S. Kahlon & Luke D. Martin in Bradley’s BuildSmart Arbitration. “The prevailing approach in many states is to not set aside an arbitration award unless the arbitrator clearly exceeded his or her authority and to exercise every reasonable assumption in favor of the validity of an award. The Minnesota Court of Appeals recently confirmed this view in Faith Technologies, Inc. v. Aurora Distributed Solar LLC.”

“In that case, the court upheld the arbitrator’s award for equitable relief, despite the parties’ contract prohibiting the arbitrator from providing any equitable remedy. The court found the parties’ stipulation to arbitrate all disputes effectively waived the contractual prohibition on equitable relief, especially where the equitable claim for abandonment was pled and not objected to until after the final award.”

“In 2016, Aurora hired Biosar to design and construct solar-power generators for a project in Minnesota. Biosar hired Faith Technologies to provide labor, materials, and services for the project. The EPC contract between Aurora and Biosar permitted arbitration to resolve disputes arising out of the contract but prohibited the arbitrator from ‘awarding nonmonetary, injunctive, or equitable relief.'”

Read the article.