The Associated Press is reporting that MGM Resorts International drew criticism Tuesday for saying hundreds of survivors of the Las Vegas mass shooting, who are being sued by the casino operator, could opt to have the money that will be used to serve them a lawsuit instead donated to a charity.

The company, which sued more than 1,900 victims of the Oct. 1 mass shooting, has been working to notify them as it faces a standard 90-day deadline, explains AP reporter Regina Garcia Cano.

Attorney Robert Eglet, part of a group representing most of the victims, said the company is just trying to “spin” its attempt to save money on serving legal notices, Cano writes.

Read the AP article.

Judge Brett Kavanaugh

In the midst of the discord surrounding his confirmation hearings, Judge Brett M. Kavanaugh was a placid presence. Even as he deflected most questions about legal issues, he was quick to say he was alert to the real-world consequences of his rulings, reports The New York Times.

“He gave the same answers countless times, explaining, for instance, that Roe v. Wade had in 1973 established a constitutional right to abortion and that the Supreme Court had repeatedly reaffirmed it, notably in 1992,” writes Adam Liptak. “But he would not say whether he was prepared to overrule it.”

“The Democrats made a fairly strong case that Judge Kavanaugh is very partisan and loyal to the president,” said Paul M. Collins Jr., a political scientist at the University of Massachusetts, Amherst. “The nominee’s refusal to criticize the president in his attacks against the judicial branch didn’t help his case.”

Read the NY Times article.

Sacha Baron Cohen is being sued for defamation by Roy Moore over his appearance on the actor’s controversial Showtime series — and the embattled former Alabama Supreme Court Chief Justice is seeking $95 million in damages, reports The Hollywood Reporter.

“Cohen, as the character Erran Morad, interviewed the judge and demonstrated a fictional device meant to detect pedophiles — a reference to Moore’s alleged sexual misconduct with an underage girl that surface during his failed campaign for Alabama’s U.S. Senate seat,” writes reporter Ashley Cullins.

Moore’s complaint claims he was deceived and was defamed by “the false and fraudulent routine.”

Read The Hollywood Reporter article.

State Farm agreed to pay $250 million on the brink of a trial to customers who claimed the company tried to rig the Illinois justice system to wipe out a $1 billion jury verdict from 19 years ago, Bloomberg reports.

“The customers were seeking as much as $8.5 billion in damages in a civil racketeering trial that was set to start Tuesday in federal court in East St. Louis, Illinois. A judge granted preliminary approval to the accord and set a final fairness hearing for December,” according to the report.

Policyholders had accused the company of leading an effort to recruit a judge friendly to its cause for the Illinois Supreme Court, secretly funding Judge Lloyd Karmeier’s 2004 election campaign by funneling money through advocacy groups that didn’t disclose donors. Under the federal Racketeer Influenced and Corrupt Organizations Act, any damages would have been tripled.

Read the Bloomberg article.

“Choice of law” clauses in contracts are often overlooked in their potential importance, as the parties and counsel concentrate on the more immediate matter of the explicit commercial terms, write Val H. Stieglitz and R. Bruce Wallace for Nexsen Pruet.

“When the deal goes sour, however, and it comes time for the parties to assert and enforce their contractual rights, the spotlight often turns to the ‘choice of law’ provision – which perhaps no one had paid much attention to previously,” the authors explain.

Their article examines a recent case experience highlighted how “choice of law” distinctions can become significant once matters enter litigation.

Read the article.

A federal judge in the U.S. District Court for the Southern District of Texas has appointed Warren Burns of Dallas-based Burns Charest LLP as sole interim lead class counsel in a nationwide antitrust class action. The litigation alleges a conspiracy by online retailers, including Houston-based Zaapaaz, to fix prices for customized silicone wristbands and lanyards.

In 2017 the defendants in the class action pleaded guilty to a range of federal charges of price-fixing in violation of Section 1 of The Sherman Act.

In appointing Burns as sole interim lead counsel, the court explained:

This appointment is warranted for several reasons. First, at oral argument, Mr. Burns was the only counsel who offered the Court substantive, detailed explanations on how he structures and runs his large case litigation teams.

Of particular note were Mr. Burns’ explanations of his and his firms’ billing practices in prior class action litigation, and his representations that he will use those practices, such as not permitting billing for file and correspondence review, and other mechanisms to ensure efficient prosecution of this case.

Second, the balance of the Rule 23(g) factors support appointment of Mr. Burns and Burns Charest as sole interim lead counsel. Burns Charest has made extensive efforts in these matters to date, Mr. Burns and his firm have significant experience in antirust class actions, and he and his firm have knowledge of the applicable law.

The court concluded that “Burns Charest is uniquely positioned to prosecute this case in the most cost effective and efficient manner possible.”

The case is Kjessler v. Zaappaaz, Inc. et al., Case No. 4:17-cv-3064 (S.D. Tex).

Harvey Weinstein

Image by David Shankbone

NBC News’ handling of allegations of sexual harassment against powerful men is once again under scrutiny over its alleged failing to follow through on a credible probe of accusations levied against Harvey Weinstein, according to Variety.

The magazine’s latest article on the controversy also refers to a Daily Beast report alleging that NBC News general counsel Susan Weiner made multiple phone calls to the reporter, Ronan Farrow, threatening to smear him if he continued his reporting on Weinstein.

“This is a ridiculous claim by all measures. Susan is a person of tremendous integrity, is respected by all her peers and would never, ever threaten someone,” said an NBC News spokesperson.

Much of the criticism comes from  Rich McHugh,  the NBC News former supervising producer of investigative reporting.

Read the Variety article.

Bloomberg Law is reporting that Kenneth W. Starr, the former independent counsel, appeals court judge, and U.S. solicitor general, is going to be practicing law again.

Starr, the former Baylor University president, will join the Houston trial firm The Lanier Law Firm, which is involved in some of the country’s biggest civil disputes, including over hip replacements and talcum powder, writes Elizabeth Olson.

“Starr already has been working with the Lanier firm’s appellate litigation team on multi-million-dollar hip implant litigation against Johnson & Johnson and its subsidiary DePuy Orthopaedics Inc.,” according to the report.

Read the Bloomberg Law article.

The Senate reached a deal Tuesday to swiftly confirm seven federal district court judges, helping President Donald Trump put an enduring stamp on the U.S. judiciary, reports Bloomberg.

One of the Trump nominees, Charles Barnes Goodwin in the Western District of Oklahoma, had been rated “not qualified” by the American Bar Association. Goodwin’s “work habits, including his frequent absence from the courthouse until mid-afternoon,” raised doubts among a majority of the members of the ABA Standing Committee on the Federal Judiciary.

Susan Paradise Baxter, whom President Barack Obama also nominated but who was stalled by the Republican-controlled Senate, was confirmed to the Western District of Pennsylvania.

The Senate is scheduled to vote on a second failed Obama nominee to the same court, Marilyn Jean Horan, along with seven other district court nominees, “at a time to be determined next week.”

Read the Bloomberg article.

Image by Mike Mozart

Demos Parneros, former CEO of Barnes & Noble, is suing the bookseller in federal court over his firing last month.

CNN reports that Parneros says in the complaint that Barnes & Noble fired him without cause and “irrevocably damaged” his reputation.

Julia Horowitz writes that the suit alleges breach of contract and defamation and asks for severance, lost wages and other damages. The lawsuit says he was not paid severance due under his contract and was removed from the board immediately, after serving as chief executive since April 2017.

Parneros also complained that a Barnes & Noble press releaseon his termination included language that it “knew full well was false but would be read as reporting that Parneros had engaged in serious sexual misconduct.”

Read the CNN article.

The ABA Journal reports that a Cleveland lawyer who was arrested and held in contempt after missing a show-cause hearing will get a new chance to make his case before a different federal judge.

U.S. District Judge John Adams of Akron had ordered the arrest of Brent English after the lawyer didn’t appear for an Oct. 29, 2015, hearing to show cause why he shouldn’t be held in contempt for missing a prior court date on Oct. 21. Federal marshals delivered English to Adams’ courtroom and the judge held a hearing. Adams found English in contempt and fined him $500, writes Debra Cassens Weiss.

The appeals court said in its Aug. 23 decision that Adams had used the wrong standard to judge what amounted to a criminal contempt case against English.

Read the ABA Journal article.

Bloomberg Law reports that a plaintiff in a bellwether products liability case involving the chemotherapy drug Taxotere was sanctioned for withholding information about her medical history.

Plaintiffs in the case claim Sanofi-Aventis U.S. LLC failed to warn patients that Taxotere could cause permanent hair loss.

Reporter Michael Greene explains: “Dr. Kelly Gahan, a bellwether plaintiff in the multidistrict litigation, used evasive discovery tactics to avoid revealing information about medical treatment she had received, Judge Jane Triche Milazzo, of the U.S. District Court for the Eastern District of Louisiana, said.”

Gahan did not reveal all the physicians who provided treatments to her over an eight-year period and whether she used any over the-the-counter medications. Now she must pay Sanofi expenses and attorneys’ fees incurred in obtaining the records.

Read the Bloomberg Law article.

The ABA Journal reports that a federal appeals court has overturned a $3 million award to the widow of a Reed Smith partner who blamed antidepressant labeling for her husband’s suicide.

“The Chicago-based 7th U.S. Circuit Court of Appeals ruled Wednesday against the widow, Wendy Dolin, in an appeal by GlaxoSmithKline, the maker of the antidepressant Paxil. Dolin’s husband, Reed Smith partner Stewart Dolin, was taking paroxetine, a generic version of Paxil, when he committed suicide in 2010,” writes reporter Debra Cassens Weiss.

Dolin’s widow had maintained the drug labels should have warned of an increased suicide risk, but the court found that the wording on the drug labels was mandated by the Food and Drug Administration, and Dolin’s labeling claim under Illinois law was pre-empted by federal law.

GSK countered that Stewart Dolin committed suicide because of job concerns. He had been a partner at Sachnoff & Weaver before it was acquired by Reed Smith in 2007. He was named chair of Reed Smith’s corporate and securities group, before becoming co-chair along with another lawyer in 2010, the ABA Journal reports.

Read the ABA Journal article.

Following its recent annual meeting held in Lisbon, Portugal, the International Association of Defense Counsel (IADC) has published its third quarter 2018 Defense Counsel Journal (DCJ) with articles that focus on trending international law issues. Topics range from product liability in Latin America, to global business compliance with the European Union’s new General Data Protection Regulation (GDPR), to the consequences of data breaches in Europe compared to the United States.

In a release, the IADC said 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. 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.

Also in the current DCJ issue, the IADC’s immediate past president, Andrew Kopon Jr., looks back at his year leading the organization while heralding the many talented lawyers who serve the IADC as members and active participants as committee leaders and members.

“What distinguishes the IADC from the pack of quality professional bar associations around the world? I believe the answer lies with the caliber of our members that continuously forge the extraordinary character of the IADC,” Kopon wrote in his DCJ letter.

In a separate article, IADC member Michael Franklin Smith reflects on the end to his two years serving as the DCJ’s editor, thanking IADC members whose articles helped him personally delve deeply into many vital subjects, also helping to inform his own law practice.

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

— “Re-Examining ‘Carbon Copy’ Prosecutions: A Look Back and Spring Forward” – Explores the transnational trend of “carbon copy” prosecutions, which is when one jurisdiction files charges based on a guilty plea or similar charging document from another jurisdiction. The article explains why duplicative, serial enforcement actions are now part and parcel of the enforcement landscape, and have joined the international vernacular dealing with cross-border corruption matters.

— “Cyber Liability: Data Breach in Europe” – Looks at the consequences of data breaches in Europe and compares the situations in Europe and the United States with regard to the major features of such an event. The article’s authors review developing case law in this area, in particular in the UK where there have been some landmark decisions, as an indicator for where Europe seems to be heading. With recent regulatory changes in the European Union, the approach to dealing with data breaches in Europe and the United States is becoming more aligned.

— “Product Liability in Latin America” – Analyzes product liability in Latin America where the recent shift to a market-friendly approach in politics has made the region attractive for business development in a reduced players’ market. The article goes on to suggest that product defects present complex cross-border situations that require a product liability risk management team with knowledge of the relevant laws across the jurisdictions at play.

— “The General Data Protection Regulation – Another Key Compliance Area for Global Business” – Examines key provisions of the European Union’s recently implemented General Data Protection Regulation (GDPR), as well as what lessons may be drawn from the development and enforcement of Foreign Corrupt Practices Act-style provisions when considering the potential impact of the GDPR.

A federal judge slashed attorneys’ fees in a $115 million data breach case settlement between Anthem Inc. and its customers, according to Bloomberg Law.

“The Aug. 16 ruling by Judge Lucy Koh of the U.S. District Court for the Northern District of California closes the long-running lawsuit against Anthem. The case stemmed from a 2015 breach that exposed Social Security numbers, birth dates, and health-care data of 78.8 million customers,” explains reporter Daniel R. Stoller.

The judge ruled that attorneys for the class action plaintiffs are entitled to $31 million in fees, $2 million in expenses, and $132,000 for other operation costs. Class attorneys had requested $37.95 million in fees, or roughly one-third of the total settlement fund, which Koh approved Aug. 15.

Read the Bloomberg Law article.

A Dallas County jury awarded more than $242 million to a family after finding that manufacturer defects in their Lexus ES 300 caused their children to suffer serious and permanent injuries during a rear-end collision in 2016, reports The Dallas Morning News.

The jury found that the front seats of Benjamin and Kristi Reavis’ 2002 Lexus ES 300 were, as the plaintiffs argued, “unreasonably dangerous.” And the company didn’t warn the family about that danger, which amounted to gross negligence, jurors agreed. Their verdict included more than $143.6 million in punitive damages.

The family’s legal team presented evidence they said showed engineering, design and structural issues with the front seat backs of the vehicle, according to reporter Marc Ramirez.

“This is a danger that Toyota has known about,” attorney Frank Branson said in a press release, representing the family. “This company has had plenty of time to design around these safety shortcomings.”

Read the Dallas News article.

Bloomberg Law reports that a federal appeals court has ruled that a district court had the right to toss a jury verdict as a sanction because of the severity of a lawyer’s “continuous, contumacious” conduct.

The trial court had set aside a plaintiff’s verdict in an excessive-force claim against a Chicago police officer by entering judgment for defendants based on misconduct by plaintiff’s lawyer, Dana L. Kurtz.

The trial judge outlined the misconduct that led to the sanction, including the eliciting of barred testimony, witness misconduct and lack of preparation, lack of candor, and destruction of evidence.

Read the Bloomberg Law article.

The U.S. Federal Trade Commission failed to convince a federal judge in San Francisco that DirecTV should pay nearly $4 billion in restitution to customers for allegedly misleading consumers about the costs of programming packages, Bloomberg reports.

The said that “the scope of the maximum potential recovery in this case has been substantially curtailed,” according to reporter Pamela MacLean.

The FTC suit alleged that DirecTV failed to disclose to consumers in 40,000 print, mail, online and TV advertisements that its lower introductory pricing lasted just one year but tied buyers to a two-year contract.

Read the Bloomberg article.

The family of a 3-year-old who died after being left for more than four hours in a Houston day care center’s van in late July has sued the operator for negligence, according to a post on the website of Androvett Legal Media & Marketing.

The post continues:

Raymond Pryer Jr., known as R.J., was found unresponsive in the van around 7 p.m. on July 20, when his father arrived to pick him up at Discovering Me Academy. Records indicate the high temperature in the area on that date was 97, with a temperature inside the van reaching at least 113 degrees.

Discovering Me Academy and its employees failed to have systems in place to safeguard its students while on field trips, according to the lawsuit filed by Raymond and Dikeisha Whitlock-Pryer. Law enforcement reports indicate the little boy was on an outing with 28 others when the van returned to the northwest Houston day care around 2:30 p.m.

“This was a horrible, preventable death, and no child should be put at such risk,” R.J.’s parents said in a statement released by their attorney, Larry Wilson, of Houston’s Lanier Law Firm. “We are devastated, and we are angry. We trusted this day care center with the life of our son, who has now been taken away from us because of their simple, uncaring neglect. Our hope is that this lawsuit makes other operators and regulators take notice and work to prevent anything like this from happening again. That would be the greatest legacy that R.J. could leave this world.”

State records reveal that the day care was cited for several violations involving its van in 2015. One infraction included not having an electronic child safety alarm, which is used to notify the driver that a child has been left in the vehicle. The day care was also cited for not reporting a wreck involving the van in a timely manner, and for a driver’s failure to know the number of children in her group.

A Harris County grand jury investigation into the death is pending, while the Texas Department of Family and Protective Services is conducting its own investigation. This is the third heat stroke death of a child in Texas this year.

Even if the $289 verdict against Monsanto last week survives the appellate process, the plaintiff will see much of his award go the IRS because of  taxes imposed by the a new tax law involving legal fees, according to tax lawyer Robert W. Wood, a Forbes contributor.

In his article, Wood explains: “Under President Trump’s tax bill passed in late 2017, there is a new tax on litigation settlements: no deduction for legal fees. Amazingly, many legal fees simply can’t be deducted. That means [plaintiff Dewayne] Johnson must pay tax even on monies his attorney collects. That is so even though the attorney must also pay tax on the same money.”

Johnson’s suit claimed Monsanto’s Roundup weedkiller caused his cancer.

Read the Forbes article.