The American Bar Association has issued a finding stating that Justin Walker, President Trump’s nominee for the federal bench in Kentucky, is unqualified because of his lack of experience, reports the Louisville Courier Journal.

The ABA’s Standing Committee on the Federal Judiciary says Walker “does not presently have the requisite trial or litigation experience or its equivalent.”

Walker, 37, is a conservative intellectual who clerked for Brett Kavanaugh when he sat on the U.S. District Court of Appeals, according to the Courier Journal‘s Andrew Wolfson. He has practiced at Dinsmore Shohl in Louisville since January and is co-director of University of Louisville’s new Ordered Liberty Program.

Read the  Courier Journal article.

Image by Mitch Barrie

Gun manufacturer Remington Arms asked the U.S. Supreme Court on Thursday to overturn a ruling from Connecticut’s high court allowing the company to be sued by one survivor and the families of nine victims killed in the 2012 massacre at Sandy Hook Elementary School, reports Courthouse News Service.

The North Carolina-based company argued in a petition for a writ of certiorari that the 2005 federal Protection of Lawful Commerce in Arms Act shields firearm makers from liability in every circumstance when their products are used in acts of violence, reports Courthouse News’ Christine Stuart.

The Connecticut Supreme Court in May refused to strike arguments regarding the marketing of the XM15-E2S weapon, a type of AR-15 semiautomatic gun that killed 20 first graders and six educators in 264 seconds.

Read the Courthouse News article.

The first Texas trial addressing the role of pharmaceutical manufacturers, distributors and physicians in creating and fueling the state’s opioid crisis has been scheduled for Dallas County next year.

Judge Robert Schaffer, who will preside over Texas’ opioid multidistrict litigation (MDL), announced the initial county cases will include Dallas, Angelina, Freestone and Kendall counties. The first, Dallas County, will be heard in the fall of 2020. Dallas County is represented in its opioid-related case by the law firms of Simon Greenstone Panatier, P.C., The Lanier Firm and The Cochran Firm.

“The public nuisance these drug companies have created is of epidemic proportions, destroying countless lives and families, and costing Dallas County taxpayers far too much. There must be a reckoning, and through this case, there soon will be,” said Jeffrey Simon of Simon Greenstone Panatier, P.C.

The Dallas County MDL seeks to hold several prescription opioid manufacturers, wholesale distributors and certain doctors responsible for their role in the opioid painkiller epidemic.

“Recently uncovered records reveal that more than 461 million prescription pain pills were supplied to Dallas County residents from 2006 to 2012. That’s enough for every man, woman and child in Dallas County to consume 28 narcotic pills a year,” said Simon.

A release from the firm states:

Once tightly regulated, the pharmaceutical industry made a dedicated push to encourage doctors to expand the prescription of the powerful painkillers beginning in the late 1990s, promoting claims that opioids were a safe, non-addictive means to treat even moderate chronic pain on a long-term basis. The resulting epidemic caused significant increases in addiction and overdose deaths, skyrocketing health care costs and demands on community services, such as courts, child services, treatment centers, emergency response and public safety.

“Records also show that as the opioid epidemic grew worse, defendants supplied more of them,” said Simon. “They profited by flooding Dallas County with narcotic pills that were manufactured from the same base molecule – morphine – as heroin, but these pills were often sold in doses more powerful than heroin.”

Image by Mike Mozart

A California judge on Thursday reduced a $2 billion jury verdict, slashing the award for a couple who blamed Bayer AG’s glyphosate-based weed killer Roundup for their cancer to $86.7 million, according to a Reuters report.

A California Superior Court judge in Oakland said the jury’s billion-dollar punitive damages awards were excessive and unconstitutional, but rejected Bayer’s request to strike the punitive award outright, writes Reuters’ Tina Bellon.

The order could result in plaintiffs Alva and Alberta Pilliod receiving $17 million in compensatory and $69 million in punitive damages, down from $55 million and $2 billion, respectively.

Read the Reuters report.

Two years after a major data breach exposed the personal information of around 147 million Americans, the credit bureau Equifax has agreed to pay at least $650 million to resolve consumer claims and multiple state and federal investigations stemming from the episode, according to The New York Times.

At least $300 million of that amount will go to consumers, with an additional $125 million available if the initial fund is exhausted.

Times reporter David Yaffe-Bellany writes that individual victims may be able to claim as much as $20,000 in compensation for losses resulting from the breach if they can prove they were harmed.

Read the NY Times article.

The National Law Journal has honored The Law Offices of Frank L. Branson as a top law firm in the nation for product liability litigation based on the firm’s large jury verdicts and track record of excellence going back more than three decades.

The firm founded by Frank L. Branson was chosen for the prestigious Elite Trial Lawyers award based on exceptional product liability litigation work. The award was presented at a reception in New York on July 18. The firm was honored as part of a three-way tie in the product liability category.

The NLJ recognition follows a string of high-profile legal victories for Branson and his team, including:

A $242 million product liability jury verdict against Toyota in August 2018. Jurors agreed Toyota was grossly negligent for failing to correct or warn consumers about seatback design flaws in the Lexus ES 300. The award included $144 million in punitive damages awarded a Dallas family whose two young children suffered serious injuries in a collision. The verdict was recognized as the No. 1 product liability verdict in Texas in 2018.

A $10.9 million jury verdict resulting from the crash of a charter bus en route to the Choctaw Casino & Resort in Oklahoma. The 2016 verdict was affirmed on appeal and settled recently. The firm represented the estate and children of an 83-year-old woman who was killed in the accident. The verdict was awarded to Mr. Branson’s client and a second victim who was represented by separate counsel and who joined the case as an intervenor.

Branson also has won multimillion-dollar verdicts and settlements in all types of transportation crashes. He has been recognized for top verdicts multiple times by VerdictSearch and the NLJ – four alone in the last six years.

“I feel honored every day to have the opportunity to put our clients on a level playing field with corporate America,” said Mr. Branson. “The results we’ve been able to secure reflect decades of hard work and our team of great lawyers.”

Trial law firm Martin Walker has earned honors for winning the largest medical malpractice verdict in Texas in 2018 for the $43.32 million jury award against Tyler-based East Texas Medical Center and one of its doctors. The editors of Texas Lawyer included the verdict in the magazine’s listing of Top Verdicts and Settlements, 10th Edition, based on research gathered by VerdictSearch.

A jury found ETMC grossly negligent for allowing Dr. Gary Boyd to treat 61-year-old Billy Pierce, despite having been placed on probation by the Texas Medical Board. Pierce was admitted in April 2014 with stomach pain and vomiting.

During the trial, Martin Walker attorneys argued the hospital bylaws should have prevented Boyd from practicing at the facility. Testimony showed that Boyd diagnosed Pierce with an abnormality he said would make surgery to remove bile duct stones impossible. For more than a month, the firm said, Pierce was in a medically induced coma during which time Boyd and the hospital abandoned him, according to testimony. Once the hospital sought a second opinion, a new doctor rejected Boyd’s diagnosis and operated without complication.

Jurors agreed that Boyd’s improper care led to the loss of Pierce’s quality of life and his ability to provide for his family. The $43 million verdict included $18.57 million for past and future pain, anguish, loss of earning capacity, and medical care and expenses. The jury also awarded $25 million in punitive damages, after concluding the hospital’s conduct involved an extreme risk of potential harm to others.

Pierce was represented by Martin Walker name partners Reid Martin and Jack Walker and attorney Marisa Schouten. The case is Billy Pierce v. East Texas Medical Center and Dr. Gary Boyd and the ETMC Digestive Disease Center, Cause No. 16-0853-C in the 241st District Court in Smith County.

The firm is based in Tyler, Texas.

Each year, VerdictSearch conducts a comprehensive review to produce the list of top verdicts in Texas. The full list is published in the July 2019 issue of Texas Lawyer.

Several Trump administration officials have personal or professional ties to Boeing’s man at the center of the 737 Max jetliner crash drama. He’s J. Michael Luttig, the longtime general counsel whom the company reassigned to lead its 737 response, reports Bloomberg.

“When he was a federal appellate court judge, Luttig brought on dozens of promising young clerks who are now spread throughout the judiciary and beyond,” explain Bloomberg’s Tom Schoenberg, Julie Johnsson and Peter Robison. “In more than a decade at Chicago-based Boeing, he stocked his department with ex-government lawyers. He also tapped Kirkland [& Ellis LLP], which has a big Chicago presence, for matters as varied as acquisitions and contract disputes.”

Luttig also is wired into the Supreme Court. He was a groomsman at the wedding of U.S. Chief Justice John Roberts.

Read the Bloomberg article.

The Associated Press reports that federal, North Carolina and Virginia governments asked a court Thursday to declare the country’s largest electricity company liable for environmental damage from a leak five years ago that left miles of a river shared by the two states coated in hazardous coal ash.

The AP’s Emery P. Dalesio writes: “Government lawyers sought to have Charlotte-based Duke Energy declared responsible for harming fish, birds, amphibians and the Dan River bottom. Hazardous substances like arsenic and selenium poured into the river at levels high enough to harm aquatic life, according to a complaint filed in the North Carolina federal court district near the site of the 2014 disaster.”

Duke Energy pleaded guilty to federal environmental crimes in 2015 and agreed to pay $102 million.

Read the AP article.

The Eighth Circuit recently ruled that an employee was not subject to the employer’s arbitration agreement, including a delegation clause. The agreement was contained in an employment handbook addendum, which was available to the employee electronically.

Henry Allen Blair, writing for Arbitration Nation, discusses the case in a post about the ruling in Shockley v. PrimeLending.

Blair cites the court’s opinion, which states that “[w]e are aware of no legal authority holding that an employee’s general knowledge or awareness of the existence of a contract constitutes the positive and unambiguous unequivocal acceptance required under Missouri law.”

Read the article.

Reuters reports that civil rights groups who successfully blocked the Trump administration from adding a citizenship question to the 2020 U.S. census are seeking sanctions against government officials, saying they brazenly hid the truth about the inquiry’s origins during trial.

The American Civil Liberties Union asked a New York court to grant new discovery into the alleged misconduct, as well as monetary sanctions for the government’s “concerted campaign of delay and obfuscation” during trial last November.

Reuters’ Nick Brown writes that the plaintiffs cited a list of “false or misleading” testimonies that amounted to “fraud on the court,” perpetrated by officers of the U.S. Department of Commerce, DOJ and Census Bureau.

Read the Reuters article.

The ABA Journal reports that a lawyer who sued Monster Energy in the cardiac death of a teenager can be sued for allegedly violating a confidentiality clause that was part of the case settlement.

The California Supreme Court has ruled that Monster Energy could sue Bruce Schechter and his firm, the R. Rex Parris Law Firm, based on language in the agreement that could be construed to bind the attorneys, reports the Journal‘s Debra Cassens Weiss.

Schecter argued that he and the firm weren’t bound by the confidentiality clause because he signed the agreement under the preprinted notation “approved as to form and content.” Schechter said the notation meant he was approving the agreement only for his clients’ signatures.

Read the ABA Journal article.

Two verdicts won by Provost Umphrey Law Firm earned recognition among the Top Texas Verdicts & Settlements for 2018 based on a comprehensive review by VerdictSearch.

A $6.34 million Harris County negligence verdict against a suburban Houston apartment complex in connection with the 2014 murder of a 15-year-old girl was the largest premises liability verdict in Texas last year. Testimony showed Corriann Cervantes was tortured and murdered, her body left in an abandoned apartment in a Clear Lake area complex. Two young men were convicted of capital murder for their roles in the attack. Provost Umphrey attorneys Joe Fisher, Guy Fisher and Taylor Thompson as well as Andrew Bender of The Bender Law Firm prevailed in the civil suit filed by the girl’s family against the apartment complex owners.

Also last year, jurors in Denton County returned a $4.8 million verdict against ladder manufacturer Werner Co., after finding the company liable for the faulty design and marketing of an aluminum ladder that collapsed and permanently injured John DeVallee’s hand. The verdict is the fourth-largest product liability award and ranked 33 overall on the Top Verdicts list. Provost Umphrey’s Joe Fisher and Edward Fisher were on the trial team with attorney Brian Zimmerman of Zimmerman, Axelrad, Meyer, Stern & Wise, P.C. and David L. Cook of Harris Cook LLP.

The Texas Top Verdicts annual list is developed from research compiled by VerdictSearch, a recognized leader in U.S. verdict information. The full list will be published in the July 2019 edition of Texas Lawyer.

A federal court in Seattle has appointed Christopher J. Cormier and a legal team at Burns Charest LLP as co-lead counsel in a proposed federal class action against a group of manufacturers of cedar shakes and shingles, and the industry’s trade association.

The lawsuit, filed in the U.S. District Court for Western District of Washington, alleges that the companies conspired to artificially inflate the price of Certi-Label cedar shakes and shingles sold to indirect reseller plaintiffs, such as contractors, construction companies and roofers, in the U.S. The litigation includes detailed evidence of improper pricing discussions among the defendants as well as detailed economic analysis showing that the price of the materials has increased substantially since early 2011.

“The public must be protected when companies conspire to fix prices because this conduct harms not only cedar shake and shingle purchasers in particular but also fundamental principles of fair competition in general,” said Mr. Cormier. “We allege that the proposed class we represent has been forced to pay inflated prices for already expensive building materials for a number of years, and we are eager to roll up our sleeves and get to work in seeking recovery for them in this case.”

The class action claim, originally filed in April 2019, alleges that the price increases cannot be explained by ordinary market forces and instead are a result of the defendants’ anticompetitive pricing conspiracy. The lawsuit also claims that the companies conspired with the Washington-based Cedar Shake & Shingle Bureau, the industry’s trade association, to muscle out upstart and discount competitors from the market, thus preserving the defendants’ ability to charge artificially high prices for their products.

U.S. District Judge Marsha Pechman has also appointed the firm of Portland-based Stoll Berne to serve as co-lead counsel for the plaintiffs with the Burns Charest team.

The case is Fraser Construction Company et al v. Cedar Shake & Shingle Bureau et al. Case No. 2:19-cv-00451-MJP in the U.S. District Court for the Western District of Washington.

The firm has offices in Dallas, Denver, and New Orleans.

The overwhelming majority of contracts and purchase orders are fulfilled without a major issue, but contractual limitation on liability can have significant impact for a business, warns Glen W. Price of Best Best & Krieger.

He discusses the two types of limitation of liability.

“The first limitation is on the type of damages you can claim if there is a breach of contract. The most common damages to be waived or limited in contracts are indirect or consequential damages and lost profits,” Price writes.

The second type of limitation on liability he discusses is a dollar limitation or cap.

Read the article.

Jeffrey Neuburger of Proskauer writes that two recent web scraping disputes highlight some important issues regarding whether a website owner may successfully allege a breach of contract action against a commercial party that has scraped website content contrary to “clickwrap” and “browsewrap” website terms of use.

Writing in the New Media and Technology Law Blog, West describes a Texas case in which a court declined to dismiss Southwest Airlines Co.’s breach of contract claim against an entity that scraped airfare data from Southwest’s site in violation of the website terms of use.

He also discusses a similar case in the Southern District of New York, in which the court granted the plaintiff’s request for a default judgment on some scraping-related claims.

Read the article.

Delta Air Lines scored a victory when a California federal court granted the company’s motion to dismiss a putative class action based on a data breach, primarily by arguing that its publicly posted privacy policy is not a contract and Delta did not have any enforceable obligation to keep the plaintiff’s data secure, reports Manatt, Phelps & Phillips.

A Delta passenger sought to represent a nationwide class of consumers alleging breach of contract after the airline suffered a data breach, explains Jesse M. Brody.

The court found that the plaintiff could not assert a breach of contract based on Delta’s privacy policy, because it expressly disclaimed that it constitutes a contract, stating, “This Privacy Policy is not a contract and does not create any legal rights or obligations.”

Read the article.

The $166 million jury verdict secured by Fears Nachawati for the son of a North Texas woman killed for the proceeds of her life insurance policies has been recognized by The National Law Journal as 2018’s largest intentional tort award in Texas.

The May 2018 jury verdict in Tarrant County’s 141st Judicial District Court was also ranked the sixth largest among all verdicts in Texas and the 14th largest nationally for the year. Rankings are based upon national court records compiled by the NLJ’s research affiliate, VerdictSearch, coupled with its own research of online news sources and databases.

Read more about the case.

Dali Wireless, a maker of wireless systems designed to help improve cellular communications inside buildings, has prevailed over its much larger rival after a multiyear battle over both companies’ patents.

A federal jury in Dallas awarded California-based Dali $9 million, finding that rival CommScope infringed on two Dali patents. The same jury found Dali infringed on five older CommScope patents and awarded CommScope $1.98 million.

“We are very proud of our trial team,” said attorney Cris Leffler of the Seattle office of Dorsey & Whitney LLP, who represented Dali at trial. “The difference in the awards underscores the advantage of Dali Wireless’ innovative technology over CommScope’s older technology.”

In a release, Mark Strachan of the Dallas office of Bradley Arant Boult Cummings LLP, who also represented Dali Wireless stated, “Dali Wireless honored us by trusting us with this important challenge. We are very pleased that the jury recognized and protected the value of Dali Wireless’ intellectual property. If this were a football game, then Dali Wireless scored a touchdown and a field goal, and CommScope had only a field goal. As time ran out, Dali Wireless walked away with the trophy.”

Dali Wireless is represented by Cris Leffler, Stefan Szpajda, Madeline Hepler, Ryan Meyer, and David Tseng from the Seattle office of Dorsey & Whitney, LLP and by Mark Strachan and Dick Sayles from the Dallas office of Bradley Arant Boult Cummings LLP.

The dispute between the two tech companies dates to 2015, when Dallas Fort Worth International Airport chose Dali over North Carolina-based CommScope to install distributed antenna systems (DAS) in airport buildings. Considered a leading innovator in the field, Dali holds over 450 patents on its technology.

DAS uses a base station and remote units positioned throughout a building to receive and amplify cellphone signals and provide better cell service.

Following the DFW contract award, CommScope filed suit, claiming Dali had infringed on its patents. Dali countersued, claiming CommScope likewise had infringed.

The case is CommScope Technologies LLC v. Dali Wireless, Inc. No. 3:16-cv-477, in the U.S. District Court for the Northern District of Texas, Chief Judge Barbara Lynn presiding.

A Pepper Hamilton client alert discusses a Delaware case in which the court held that the sellers of a target corporation retained the right to assert attorney-client privilege over pre-merger communications with the target corporation’s counsel because the parties included a provision in the merger agreement that explicitly precluded the buyer from using the communications in a post-closing dispute with the sellers.

“The court’s opinion serves as an important reminder to sell-side counsel to negotiate for these provisions to ensure that privileged pre-merger communications between the target’s counsel and the sellers cannot be used against them in any future disputes,” the authors explain.

Read the article.