A New Jersey judge struck a BigLaw attorney’s closing argument for Johnson & Johnson on Wednesday in a case alleging asbestos in the company’s talcum powder caused mesothelioma in the plaintiffs’ stomach linings, reports the ABA Journal.

Judge Ana Viscomi of New Brunswick struck from the record the entire argument made by Diane Sullivan, a litigation partner with Weil, Gotshal & Manges.

According to reports, Sullivan told jurors that experts for the plaintiffs didn’t draw a connection between talcum powder and mesothelioma until they were hired by the plaintiffs. “When you don’t have evidence, sometimes you have to create it,” Sullivan said.

Viscomi said the closing argument was “replete with conduct this court has already warned you about.”

Read the ABA Journal article.

A recent ruling illustrates how courts will typically enforce a valid forum selection clause, absent a compelling showing of prejudice to the party opposing a lawsuit in the agreed-to forum, according to a post by Murtha Cullina’s Family Business Perspectives blog.

Michael P. Connolly explains that “while substantive disputes under an agreement may still arise, a forum selection clause at least may provide a measure of certainty from the outset as to the location of any future legal action. Without such a clause, a party to an agreement may be forced to litigate in a distant, inconvenient or otherwise unwanted location, which may ultimately increase the expense, disruption and risk in connection with any future lawsuit.”

Read the article.

The judgment in the Oklahoma opioid litigation, if upheld, could yield a huge return on investment for the private lawyers hired by Oklahoma’s Republican Attorney General Mike Hunter, reports Legal Newsline.

“Under their 2017 contract with the state, those lawyers — Whitten Burrage, Nix Patterson and Glenn Coffee & Associates — get 25% of any award up to $100 million with that percentage falling to 15% of anything over $500 million,” writes Legal Newsline’s Daniel Fisher.

And more big bucks could be in the pipeline: “They stand to earn $90 million in fees from this verdict, on top of $59 million of the $260 million Purdue Pharma settlement and another $21 million from an $85 million Teva settlement in June.”

Read the Legal Newsline article.

The families of three American war veterans who died at a railroad crossing in Midland, Texas, in 2012 are asking the U.S. Supreme Court to review their legal case, arguing it could impact safety at many of the nation’s 250,000 railroad crossings.

The veterans – Army Sgt. Maj. Lawrence Boivin, Marine Chief Warrant Officer 3 Gary Stouffer and Army Sgt. Maj. William Lubbers – were three of the four who died when a Union Pacific train rammed a parade float carrying wounded war heroes. The veterans’ families sued Union Pacific, but a Texas court granted summary judgment for the railroad, and the 11th Court of Appeals in Eastland affirmed. Earlier this year, the Texas Supreme Court declined to hear the case.

“We believe the Texas courts have made significant errors of nationwide importance and we’re asking the U.S. Supreme Court to correct them before there’s another needless tragedy elsewhere,” said attorney Doug Alexander of Alexander Dubose & Jefferson in Austin, who represents the plaintiffs.

According to Alexander, the most critical error involves the amount of warning time that elapsed before the Union Pacific train entered the Garfield Street crossing, where the crash occurred. Based on a federally mandated agreement between the railroad and the Texas Department of Transportation, the warning time was supposed to have been set at 30 seconds.

Union Pacific actually set the timer higher – to 35 seconds – which compensated for a defect in the track’s warning-system circuitry and allowed the system to give 30 seconds warning, as it was supposed to, plaintiffs claim in filings.

According to a release from the plaintiffs’ law firm, eight months before the crash, Union Pacific reduced the warning time by 10 seconds, without getting written approval from the Texas DOT or the City of Midland, as it had agreed to do. Coupled with the circuitry defect, the float the veterans were riding on received only 20.4 seconds of warning, almost 10 seconds less than mandated.

Union Pacific argued the warning still exceeded the 20-second minimum that a Federal Railway Administration (FRA) regulation requires and the Texas courts agreed.

But the plaintiffs argue the 20-second amount is a baseline minimum, not intended to replace the requirements of the agreement, but rather enforce them. They point to one of the FRA’s own bulletins, which says some crossings require at least 35 seconds of warning time or even more.

“If this decision is allowed to stand, then Texas courts have effectively nullified the federally mandated agreements for warning times at crossings all over the country,” Mr. Alexander said. “We don’t believe that’s what Congress intended and we certainly don’t believe it is safe.”

Supporters of the veterans’ families have been signing an online petition (https://www.change.org/p/union-pacific-justice-for-all-veterans-killed-by-union-pacific-train) asking Union Pacific to take care of the veterans’ families.

The case is Catherine Stouffer et al. v. Union Pacific Railroad Co., in the Supreme Court of the United States.

Law firm Dentons Europe LLP won Delaware court approval to have a former client’s $92 million arbitration award seized so that it can be paid for its legal services, reports Bloomberg Law.

The firm sued its former client, Customs and Tax Consultancy LLC (CTC), after CTC allegedly failed to pay for legal fees accrued in its arbitration victory against the Democratic Republic of the Congo.

The court sided with Dentons’ effort to get paid for its legal fees by having the court authorize arbitration award broker ClaimTrading Ltd. to seize the award and market it on behalf of CTC, explains Bloomberg’s Leslie A. Pappas.

Read the Bloomberg Law article.

Breaking with eight other circuits, the Seventh Circuit ruled Wednesday that the Federal Trade Commission lacks authority to seek restitution from companies that defraud consumers, and vacated a $5 million judgment against a credit-monitoring company, reports Courthouse News Service.

The case involves a lower court’s imposition of $5 million in restitution from the target of an FTC action. Regulators said Michael Brown and his company, Credit Bureau Center, offered consumers “free” credit reports and then automatically enrolled them in a $29.94 monthly membership to a credit-monitoring service without notice.

Section 13(b) of the Federal Trade Commission Act authorizes the FTC to seek restraining orders and injunctions, but not specifically restitution, writes Courthouse News’ Lorraine Bailey.

Read the Courthouse News Service article.

The U.S. Chamber of Commerce and other business and employer groups have just submitted amicus briefs calling on the 9th Circuit to reconsider decisions that, in the views of these amici, eviscerate mandatory arbitration provisions, writes Alison Frankel in a Reuters report.

The briefs come in the wake of the 9th Circuit’s June 28 rulings in which plaintiffs claimed they couldn’t be forced into arbitration because they sought injunctions against corporate defendants.

The court found that because California’s policy of allowing consumers to pursue public injunctions does not specifically obstruct arbitration, it’s not precluded by the Federal Arbitration Act.

Read the Reuters article.

Nothing is more basic to private equity deal making than shielding the private equity firm and its funds from liability for the obligations of the fund’s affiliated acquisition vehicles and portfolio companies; and this certainly includes liabilities for breach of an NDA, points out Glenn D. West in the Weil, Gotshal & Manges Global Private Equity Watch blog.

The article discusses a case that distinguishes between affiliates entitled by the non-disclosure agreement that are entitled to receive confidential information and affiliates actually bound by the agreement.

Read the article.

A Mississippi federal court denied a defendant’s motion for partial summary judgment in connection with a limitation-of-liability clause, according to a post on the Constructlaw blog of Pepper Hamilton.

Anthony Finzio writes that the Court also denied the defendant’s motion for reconsideration, concluding that the defendant had not carried its burden as the movant of demonstrating that the limitation-of-liability clause limited the plaintiff’s rights as a matter of law.

The case is DAK Americas Mississippi, Inc. v. Jedson Engineering, Inc. et al.

Read the article.

 The Dallas Morning News  reports that American Airlines is demanding that the mechanics’ unions pay for hundreds of flight delays and cancellations over the last two months.

“In a new court filing Tuesday, the Fort Worth-based carrier said it wants sanctions ‘sufficient to compensate American for losses caused’ from violations to a June 14 restraining order telling mechanics to cease work slowdowns to punish the company,” writes the News‘ Kyle Arnold.

U.S. District Judge John McBryde found that union maintenance workers conspired to slow down work by refusing overtime, taking more time on jobs and refusing off-site assignments. The unions have denied they slowed down work.

Read the  Morning News article.

As they reach an age when other esteemed elder statesmen of the bar might be basking in acclaim for their life’s work, 78-year-old David Boies and 80-year-old Alan Dershowitz are brutally yoked in a subplot of the Jeffrey Epstein sex trafficking case, reports The Washington Post.

Boies and his partners at Boies Schiller Flexner represent one of Epstein’s accusers. That client has alleged that Epstein lent her for sex to his friends, including Dershowitz, according to the Post‘s article.

The accuser and her lawyers portray Dershowitz, who has never been charged with a sex crime, as a liar and a sneak who secretly recorded a call with a fellow lawyer, write the Post‘s Tom Jackman, Deanna Paul and Manguel Roig-Franzia.

Dershowitz has painted Boies as a corrupt attorney with a long trail of ethical lapses, a cheat and the head of a criminal enterprise.

Read the Post article.

Kraemer Manes & Associates has settled a lawsuit claiming that a client got bad legal advice after she was tricked into hiring the Pennsylvania law firm because of fake online reviews, reports the  ABA Journal.

The Journal‘s Debra Cassens Weiss explains:

“The lawsuit claimed that Kraemer Manes had ‘orchestrated a scheme of soliciting positive online reviews’ from people who had never used the law firm’s services. Nonlawyer employees were encouraged to solicit friends and family to write the reviews and given time off for each positive review they secured, the suit alleged.”

Read the ABA Journal article.

The U.S. firearms industry is facing a different kind of existential threat: liability to shooting victims, surmises Alison Frankel of Reuters.

She based that statement on the evidence of a petition filed Friday by Remington Arms, maker of the Bushmaster version of the AR-15 rifle that was used to kill 20 small children in Sandy Hook.

“Remington’s lawyers at Baker Botts asked the Supreme Court to grant review of a 2019 ruling in which the Connecticut Supreme Court held that Sandy Hook victims’ families can move forward with a suit attempting to hold Remington responsible for marketing and promoting a military-style weapon to civilians bent on executing campaigns of violence,” she writes.

“If the Supreme Court doesn’t step in, Remington said, firearms makers will face “a flood of lawsuits nationwide” that will subject them to “crippling litigation burdens.”

Read the Reuters article.

Three court cases reveal the importance of ensuring that contracts for an enterprise resource planning software system and other digital transformations be carefully negotiated, writes Marcus Harris in Taft’s Technology Insights blog.

It’s important to remove the possibility that a lawsuit over a failure can be blocked by seemingly harmless clauses that vendors and integrators insert as a matter of routine in their template agreements, he explains.

“Never sign the vendor’s or integrator’s template contract without negotiating and redrafting key provisions – even the boilerplate ones,” Harris advises. “Failing to do so may restrict your ability to sue for damages in the event of a failure.”

Read the article.

A judicial disciplinary hearing will determine the future of California judge Jeffrey Johnson’s career on the bench, in light of a list of allegations of sexual harassment, misconduct and drunken behavior, reports Above the Law.

The Commission on Judicial Performance has begun a four-week proceeding to consider the 10 counts of alleged misconduct covering a period of 20 years. The defense plans to call 168 witnesses.

“Johnson has also responded to the controversy with a lawsuit of his own.” writes Above the Law’s Kathryn Rubino. “Last month he filed a $10 million lawsuit against the court and the administrative presiding justice, Elwood Lui, alleging emotional distress.”

Read the Above the Law article.

Six years of litigation fizzled out in July when one of the plaintiffs dropped a bombshell at a breakfast meeting with opposing counsel, effectively ending a $30 million federal lawsuit filed against a Saudi businessman over a California wildfire.

The Los Angeles Times tells the story of the now-dismissed case over the fire than burned more thann 25,000 acres. The government originally contended that an electrical junction box on Tarek Al-Shawaf’s property had malfunctioned, sparked and started the Mountain fire.

Recently, one of the private plaintiffs mentioned to Al-Shawaf’s lawyer that his own investigation turned up the fact that the fire probably started hundreds of feet from the Saudi’s property, writes the Times‘ Joseph Serna.

“To be honest, at the time I didn’t realize it was this crucial,” plaintiff Lawrence Goda said in hindsight. “I figured the feds … would have definitely factored that into the case.”

Read the Lost Angeles Times article.

Reuters’ Alison Frankel tells the story of the split between the partners of a personal injury juggernaut and how their feud turned into an unusual and creative use of a derivative suit.

Cellino & Barnes used ubiquitous advertising on television, radio and billboards in New York to generate more than $10 million in profits each year since 2015 for its only two shareholders, Ross Cellino and Stephen Barnes.

Their split and the subsequent fight have resulted in a derivative suit that has provoked apparently novel questions about the intersection of shareholder derivative litigation and the dissolution of a privately-held corporation, Frankel writes.

Read the Reuters article.

Texas businessman Mas Duncan lost the nearly $6 million that he invested in a docket of claims against BP after the Deepwater Horizon spill. The money, as Reuters’ Alison Frankel explains, evaporated into an allegedly fraudulent scheme to manufacture tens of thousands of plaintiffs.

“Then when Duncan and his litigation finance company, Duncan Litigation Investments, tried to recoup the lost millions by suing the plaintiffs’ firms that allegedly benefited from his investment, he ran into timeliness problems,” according to the Reuters report.

Now DLI has filed a complaint blaming Duncan’s own former lawyers at Baker Donelson Bearman Caldwell & Berkowitz for failing to procure a tolling agreement that would have extended the statute of limitations on Duncan’s claims against the plaintiffs’ firm.

Read the Reuters article.

The ABA Journal reports that two former mobile home owners have filed a malpractice suit against Jones Day that claims that the law firm’s work on their eviction case was a “fiasco.”

Two California residents allege that Jones Day pressured them to accept a “burdensome settlement” without asserting legitimate defenses and then dropped them as clients a few weeks after the deal was signed, writes the Journal‘s Debra Cassens Weiss. The two say they couldn’t navigate the deal themselves, and they became “permanently homeless” after being evicted.

Read the ABA Journal article.

If a contract is too one-sided, it can be ruled illusory and unenforceable, warns Shepard Davidson in the Burns Levinson In-House Advisor blog.

That is exactly what happened to the defendant in McNamara v. S.I. Logistics, Inc. when it tried to enforce its contractual right to arbitration he writes.

In that case, the defendant sought to compel arbitration based on an agreement that  purported to grant the company the unilateral right to modify its terms without any prior notice to McNamara, a former affiliate.

The court found in favor of McNamara, finding that the agreement was illusory.

Read the article.