CYBER SECURITY BREACH COULD CREATE ISSUES FOR MASS TORT FIRMS

Foreword: This content should not be considered legal advice. As a general rule, the Plaintiffs Bar represents individuals who have been subjected to unauthorized exposure of their personal information; however, recent reporting related to a marketing vendor, XSOCIAL MEDIA, engaged by Plaintiffs Firms brought our attention to the very real possibility that Plaintiffs Firms could easily find themselves as defendants in matters arising form cyber security breaches, even in situations in which the firm was not in direct control over the server or other computer system that was breached. We would encourage firms to engage in independent research related to the regulatory and statutory topics covered and welcome any information, including differing opinions, on the substantive matters covered herein.

The most important takeaway from our research on this topic can easily be summed up by the following statement:

If a cyber security breach occurs within systems controlled by your firm, or a vendor engaged by your firm, which could have POTENTIALLY exposed client or potential client personal data, do not stick your head in the sand and hope the issue goes away. The most significant negative consequences that may occur after such a breach arise from failing to act transparently, not necessarily from the fact that the breach occurred. If your systems are breached, or your vendors’ systems are breached, you and/or your vendor are the victim of a crime. Additionally, any client or potential client who was subjected to having the personal data exposed, is a victim of that same crime and has a legal right to know they have been victimized or potentially been victimized by a third party, just as you were. Notifying your clients places them in a position to be on alert and mitigate any damage that may occur because of the exposure. Failing to notify your clients effectively makes you a party to the same bad acts that were perpetrated against you.

ALARMING REPORTS OF MARKETING VENDOR SECURITY BREACH

Alarming reporting regarding an alleged data security breach at XSOCIAL MEDIA, a major provider of marketing services to Mass Tort Law firms, draws our attention to potential liability and other exposure Plaintiff Law Firms could face in the ever-changing digital age.

The reporting related to XSOCIAL MEDIA (see examples below) caused our researchers to pose and research the following question:

Could a Law Firm face liability or disciplinary exposure from the third-party vendor and marketing agency data breach?

Our research resulted in some surprising implications and conclusions. The most important conclusion reached was that every Plaintiff Firm should not only review the cybersecurity practices within their own firm, every firm should also be diligent in remaining aware of cyber security issues related to any marketing vendor the firm engages. Secondly, in the event that a breach does occur resulting in the POSSIBLE exposure of client’s private information, review and comply with State and Federal Statutes which require notifying the effected persons and, in some states, notifying the State Attorney General.

WHO IS XSOCIAL MEDIA?

According to the company’s website, XSOCIAL MEDIA engages in the business of:

“Finding clients via Facebook advertising is what we do on a big scale.”

WHICH LAW FIRMS ENGAGE OR ENGAGED XSOCIAL MEDIA?

Among the testimonials found on the homepage of the XSOCIAL MEDIA homepage we found the following:

“Jacob and his team have been helping us on various projects for several years now and his performance has always been great”. Robert Blanch, Levin Papantonio

“Jacob has done, and continues to do, an amazing job for our law firm. He is incredible to work with.”
Martin Levin, Levin Papantonio

Given the high profile of the Levin Papantonio firm, as well as the firm’s companion organization, Mass Torts Made Perfect, we would have no reason to believe that this firm would labor under any belief that its actions could ever “fly under the radar.” Consequently, we have no reason to believe that this firm would ever knowingly engage actions that might result in unwanted attention from State Attorney Generals and other enforcement agencies. The same is true of other firms and attorneys known to us for whom testimonials appear on XSOCIAL MEDIA’s homepage.

Unfortunately, if the reporting relevant to the XSOCIAL MEDIA security breach (see below) is accurate, law firms that have employed the services of the agency may face requirements and duties to notify “effected clients” despite the fact that the “breach” did not occur into a server owned nor directly controlled by these firms.

REPORING ON XSOCIAL MEDIA ALLEGED SECURITY BREACH

Report: Medical Data Leaked for Hundreds of Thousands of Users (including US Veterans)

xSocialMedia’s unsecured database exposed 150,000 sensitive medical records.

Ad agency data leak leaves veteran combat-injury information vulnerable.

xSocial Media Exposed 150,000 Records Containing Personal And Medical Information.

xSocialMedia’s unsecured database exposed 150,000 sensitive medical records.

Hundreds of thousands of medical records exposed in two data breaches media advertising agency exposes patients’ medical info.

Online media advertising agency exposes patient’s medical info.

POTENTIAL LAW FIRM LIABLITY AND OTHER EXPOSURE ARISING FROM A THIRD PARTY VENDOR CYBER SECURITY BREACH

Without opining on or drawing factual conclusions as to the accuracy of the above reporting, our staff engaged in research relevant to four major areas of concern based on an “if such a breach did occur” basis.

The first area of concern our researchers addressed was, of course, HIPAA. Surprisingly, our research led to the conclusion that “HIPAA” violations might pose the least potential exposure (if any) for law firms under the scenario considered. We have listed our four primary “areas of concern” below in reverse order of “degree of concern.” The listing will be followed up by our tentative findings and conclusions in the reverse (area of most concern first).

HIPAA VIOLATIONS: (unlikely to expose the law firm to liability) CAVEAT: The plain language of the HIGHTECH act would not appear to have expanded the “covered entity” limitations of HIPAA in a manner that would be apt to our present subject; however, certain ambiguities in the HITECH Act could be construed to have created such an expansion.

LIALIBTY ARISING FROM VENDOR CYBER SECURITY BREACH: (dependent on the existence of an agency relationship)

RULES OF PROFESSIONAL CONDUCT: Law Firm exposure (Bar action) arising from the vendor breach is improbable; however, failing to notify plaintiffs of the breach, could be significantly problematic.

FEDERAL and STATE CYBER SECUIRTY BREACH NOTIFICATION REQUIREMENTS: (Significant potential exposure, especially arising from the various State laws, less under Federal Law).

POTENTIAL LIABLITY AND OTHER EXPOSURE ARISING FROM NOTIFICATION REQUIREMENTS

Section Foreword: One of the most important and potentially easily overlooked language in the various States Cyber Security Breach Notification laws, arises from the fact that the notification is triggered on the POTENTIAL exposure of individuals’ private information. It is also worth noting that numerous states, in addition to requiring notification be sent to effected persons, certain Government authorities must also be notified in detail. Below are two examples:

In Florida, the following authorities must be formally notified:

Department of Legal Affairs, (State Attorney General) as well as file a police report.

In New York, the following authorities must be formally notified:

NYS Attorney General, NYS Division of State Police; and the Department of State’s Division of Consumer Protection.

Although there are a number of Federal Statutes that address Cyber Security Breaches and notification requirements relevant to individuals from whom personal data was POTENTIALLY exposed, our research found that the laws of the various States apt to the subject could potentially be far more problematic than Federal Law. The foregoing arguably imposes a “best practice” on Mass Tort firms, that accept clients from numerous states, to become familiar with the cyber security breach and notification laws of every state, before or certainly upon the occurrence of any event which might cause issues for a firm in “real time.”

The National Conference of State Legislatures Publishes a 50 State Security Breach Notification Laws “compendium” which can be viewed at this link.

The Law Firm of PERKINSCOIE also publishes a similar 50 State Compendium which may be more up to date, which can be viewed at this link.

It should be noted that the various states are routinely amending the laws referenced in the “compendium”; therefore, if you believe your firm has potential exposure under any of these laws, firms may wish to check each state’s most recent statutes, for which you represent clients.

Notes:

  1. When reviewing the various States Cyber Security Breach Notification laws, keep in mind that the attorney client relationship as a rule places the attorney in the role of a fiduciary. Certain states may impose greater duties relevant to circumstances in which a fiduciary relationship exists.
  2. Without regard to whether a given state law imposes a requirement, that same States Bar rules and most recent opinions relevant to Cyber Security may pose such a requirement apt to attorneys.

 

It was not my law firm’s server that was breached, how could I be responsible for notifying anyone of the breach?

The foregoing is a logical question and one might think that the duty to notify individuals who were subject to having their personal information “exposed” would fall solely on the entity that controlled the server that was breached. Think again!

Our take, after reviewing every State’s Cyber Security Breach notification law concluded in general is as follows:

Any entity or individual who received and electronically or otherwise stored the “breached data” has an individual and unique duty to provide notice to everyone for whom personal data was or was potentially exposed.

There does appear to be exceptions (generally) to the above:

  1. If the entity that controlled the server, notified the “exposed individuals” provides proper notice per the various Federal and State Laws, other third party lawful and legitimate recipients of the data are not required to “double notify” the exposed individuals. Caveat: The foregoing should not be taken to mean a given States Bar rules might none the less require the law firm to provide notice without regard to any other notice provided by a third party.
  2. In general, the State Laws provide some “safe harbor” for recipient entities (such as law firms who received client personal data from vendors) who did not know nor should have reasonable been aware of the breach. Caveat: If the reporting related to XSOCIAL MEDIA is accurate, these safe harbor protections might not be available. Given the breadth of reporting on the matter, it would be difficult for a firm to claim that could not have been reasonable expected to be aware of the alleged breach.

Caveat: Check each state’s laws (by client’s residence) to determine what, if any, “safe harbors” exist in that state.

 

STATE RULES OF PROFESSIONAL CONDUCT

Note: When accessing your firms notification obligations under the “notification laws” of the various states, it appears that you must apply the law of the residence state of each client who may have been subject to exposure of their personal information. You may also need to file a report with authorities in any state in which you occupy a premises, or are directly subject to that state’s Rules of Professional Conduct, even if the breach did not expose a single (resident) individual’s personal data in that state.

When accessing the various States Bar Rules, it is less clear as to whether an attorney need only concern themselves with the states in which they are barred vs states in which clients may reside, but in which the given attorney is not barred.

Given the increasing frequency of cyber security breach occurrences, almost every State Bar has opined on a lawyer’s obligations after a cyber security breach, without regard to whether the attorney or law firm controlled the breached server, or the server was controlled by a third party service vendor (i.e. marketing vendor). In general, the ABA has opined on attorneys’ obligations related to exposure of client data arising from a cyber security breach (without regard to fault for or cause of the breach.)

Quotes from the ABA:

ABA Model Rule 1.6(c) requires that “[a] lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.”

Rule 1.4 does require that notice of a breach to a current client include, at a minimum: That there has been unauthorized access to or disclosure of the client’s information. That unauthorized access or disclosure is reasonably suspected of having occurred.

Even a given state’s (by client residence) “notification” laws might not require the law firm to notify plaintiffs (only requiring the entity that controlled the server to provide notice) the ABA has opined in general as follows:

The committee’s opinion reviews lawyers’ duties: of competence under Rule 1.1, as informed by Rules 5.1 and 5.3; of confidentiality under Rule 1.6; to inform clients under Rule 1.4; and to safeguard client property under Rule 1.15. The committee also notes that an attorney’s ethical obligations under the Model Rules are distinct from statutory obligations imposed by state or federal laws.

The committee points to the ABA Cybersecurity Handbook the ABA Cybersecurity Handbook: A Resource for Attorneys, Law Firms, and Business Professionals, Second Edition.

Takeaway: If your firm’s client’s personal information has potentially been exposed, without regard to “State and Federal Cyber Security Law”, it is probable that your State Bar Rules would require you to notify any potentially effected client. This requirement would appear to apply without regard to whether the exposure occurred because of a breach of a server controlled by a law firm or a third-party vendor (e.g. a marketing vendor). More simply stated, if the person is your client and you know or should know their personal information has been exposed via a cyber security breach, you are most likely obligated to let the client know.

HIPAA VIOLATIONS AND NOTFICATION REQUIREMENTS

45 CFR §§ 164.400-414 The HIPAA Breach Notification Rule, requires HIPAA covered entities and their business associates to provide notification following a breach of unsecured protected health information. Similar breach notification provisions implemented and enforced by the Federal Trade Commission (FTC), apply to vendors of personal health records and their third party service providers, pursuant to section 13407 of the HITECH Act.

HIPAA  provides The Department of Health and Human Services to enforce the provisions of the act against “covered entities.”  The definition of “covered entities” under HIPAA is extremely limited, only including health care providers, their agents and other narrowly defined entities which would neither include law firm marketing vendors nor law firms.

It is not however, clear whether the HITECH Act, expanded the definition of “covered entities” beyond the original definition found in HIPAA.

https://www.govinfo.gov/content/pkg/CFR-2011-title45-vol1/pdf/CFR-2011-title45-vol1-part164-subpartD.pdf

https://www.govinfo.gov/content/pkg/CFR-2011-title45-vol1/pdf/CFR-2011-title45-vol1-part164-subpartD.pdf

https://www.hhs.gov/sites/default/files/ocr/privacy/hipaa/understanding/coveredentities/hitechact.pdf

 

OTHER POSSIBLE LIABILITY ARISING FROM A CYBER SECUIRITY BREACH

Could a law firm be held liable (under general negligence theories or statute) for allowing or failing to prevent a cyber security breach of a third-party marketing vendors (or other vendor) computer systems?

The tentative answer to the foregoing seems to turn on the nature of the relationship between the law firm and the third-party marketing or other vendor:

  1. If an agency relationship exists between the law firm in which the law firm is the principal, it is possible that the law firm could be held liable for the breach, despite the fact that the law firm had no direct control over the servers or other computer systems that were breached.Example: If a law firm hires an ad agency or other marketing firm, to run advertising or engage in lead generation specifically for that firm, then an agency relationship might exist in which the law firm is the principal and is therefore liable for the agents’ (the vendors’) negligence.
  2. Conversely, if a law firm simply buys leads from a third party marketing vendor, without “hiring” that vendor to perform any specific task intended to result in the manifestation of those leads, it is less likely that an agency relationship would be created.

Note: The relevant jurisprudence related to the existence of “vicarious liability” imposed upon principles arising from acts of their agents is complex. Deception of the principal by the agent, relevant to the matter at Bar, can provide a defense for the principal. Generally, this defense requires that deception be express (the agent actively mislead the principal). Unfortunately, the fiduciary nature of the attorney client relationship further complicates this analysis.

It would seem manifestly unjust for a law firm to be held liable for a data breach, under circumstances in which the law firm had no means by which to ensure the third party vendor exercised adequate “cyber security measures”, none the less, the jurisprudence relevant to agency relationships not only fails to exclude the possibility of such an injustice but instead creates a backdrop in which such a scenario could occur.

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Roundup Settlement – Dear Bayer, the number is $22 Billion

Preface: Bayer is a German Company. Bayer stock is traded on the Frankfurt Stock Exchange on the XETRA Trading Platform. Bayer is one of the 30 Stocks currently included in the DAX Index, which is the German equivalent of the Dow Index.

A Level 1 American Depository Receipt (ADR) is traded on the OTC Market in the U.S. under the ticker BAYRY. Level 1 ADRs are essentially unregulated derivatives of foreign stocks held by a U.S. bank and traded in U.S. markets.

We include the above due to the significant number of references made in this article to Bayer stock. When we reference Bayer stock, we are referencing the actual stock traded in Germany, not the ADR traded in the U.S. Also, as a research hint, if you want to track Bayer stock, Google “Bayer Stock XETRA.” If you just Google Bayer Stock from the U.S., you will get the ADR charts and graphs, not the actual Bayer Stock current information.

The Roundup Settlement is Dead – Long Live the Roundup Settlement

This article covers what appears to be the demise of the Roundup settlement first announced in June of 2020, as well as what steps Bayer needs to take immediately to put a new settlement on the table that will calm the market, satisfy plaintiffs and allow the company to get back to the running of an otherwise profitable and enterprise. We also cover why Bayer should take the steps we discuss from a business perspective.

Bayer’s hope of capping future liability arising from Roundup cancer cases, without taking any measures to prevent future injuries (adding warnings and instructions to the label) were dashed by 27 words in Judge Vince Chhabra’s order handed down on July 6, 2020, in response to a proposed Class Action that could have served to cap Bayer’s future liability. These words appear on page 3 paragraph 1.

“before receiving opposition briefs, the Court is skeptical of the propriety and fairness of the proposed settlement and is tentatively inclined to deny the motion.”

If the possibility of the viability of the proposed Class Action was not foreclosed on by the above Statements, it would appear that the conference held by Judge Chhabra on 07/24/2020 put the final nail in the coffin.

“If I leave the stay in place, am I complicit in whatever shenanigans are taking place on the Bayer side,” the judge was quoted as saying by Bloomberg news. “We’ve got a bunch of cases we could send out to other jurisdictions.” (end quote). In other words, remand for trail.

Sara Randazzo of the Wall Street Journal filed a report on Aug. 27, 2020 which included the following quote:

Deals with some of the lead plaintiffs’ lawyers, Aimee Wagstaff and Jennifer Moore, still haven’t been signed by Bayer, the lawyers told a judge at a Thursday hearing. Another agreement to resolve a large batch of cases was terminated altogether earlier this month, plaintiffs’ lawyer Brent Wisner said.

It is not surprising that Bayer appears to be backing away from deals it has already made with various law firms. The following explains why Bayer may not be in a position to go through with “deals” made on a piece meal firm by firm basis at this time.

Bundesanstalt für Finanzdienstleistungsaufsicht (BaFin), the German equivalent of the U.S. SEC imposes Market Abuse Regulation (MAR) and transparency requirements (including disclosure time frame requirements,) which make it difficult for Bayer to consummate any settlement reached with any firm (piecemeal), post the failure of the Class Action, which would have served to cap future liability. The announcement made by Bayer on Wednesday – June 24, 2020 contained these words.

“The company will make a payment of $8.8 billion to $9.6 billion to resolve the current Roundup™ litigation, including an allowance expected to cover unresolved claims, and $1.25 billion to support a separate class agreement to address potential future litigation.”

With the collapse of the “$1.25 billion to portion for the the separate class agreement to address potential future litigation.”  In the statement made by Bayer in June, Bafin regulations make it difficult if not impossible for Bayer to go through with the individual firm settlements previously (tentatively) put on the table. Bayer presented the settlement to the market as a package deal (covering current and future claims) and is not free under BaFin regs to simply move forward with a portion of the “package deal” now that the “future” liability portion is no longer a reality. Bayer is arguably required to revise the June statement prior to consummating any individual firm deals or risk facing regulatory action and potential lawsuits from stockholders. Thus far, Bayer has only revealed to stockholders, to the best of our knowledge, that that the settlement has encountered “bumps” in the road.

Reuters files a report on August 27, 2020 that contained the following statement:

“It (Bayer) has indicated that settling existing cases is contingent on some form of agreement on future cases, and has proposed a scientific panel to rule on any future claimants that agree to submit to the out-of court procedure.”

The market wants to hear a definitive statement that removes the Roundup Litigation as a potentially fatal threat. The market will accept that Bayer may continue to face some liability from the Roundup Litigation going forward, major corporations always face the potential of litigation. The market simply needs to hear that the company can weather any storm they may face, not that no storm will ever occur. The market wants a “known” to the extent of what is knowable, as the market always prefers a “known” (even if it may not be completely thrilled with, over an unknown.

Plaintiffs want a fair settlement, even if the settlement amounts do not truly make plaintiffs whole, Plaintiffs do not want to be insulted with low ball offers. Telling someone that their family members life or their own suffering from cancer is only worth a pittance, is insulting.

The following would be an announcement that MTN believes the market would accept, Bayer (stock) would benefit from immediately and Plaintiffs would likely accept:

Bayer has reached a Global Settlement agreement to pay $22 Billion U.S. to resolve existing Roundup claims as well as provide a fund for future claims. $20 Billion of this amount will be used to pay existing claims while $2 Billion will be set aside for future claims.

Simultaneously, the Company will be adding cancer warnings as well as protective device and clothing instructions to the Roundup Product label. While these new warnings and instructions will not provide a definitively quantifiable cap on future claims, the changes will enable Bayer to make a colorable defense under The Restatement (Second) of Torts § 496A (Assumption of Risk) in any case in which the first use of Roundup occurred after the warnings and instructions are issued as well as any case in which a Plaintiff, who had not been diagnosed with NHL prior to the issuance of the new warnings and instructions and continued to use the product after the warnings and instructions were issued. Additionally, in the U.S., the addition of the new warnings and instructions will generally begin the accrual of the Statute of Limitations for any plaintiff who has already been diagnosed with NHL but has yet to file a claim.

Although management believes the $2 Billion set aside for future claims should be sufficient to cover any future liability, in the event the initial set aside is not sufficient, we do not believe any additional set asides that might be required will materially impact the financial viability of our company.

Management has made these decisions because we believe it is time to move forward and get back to the business of growing our otherwise profitable and financially sound company, focused on providing for the health care and agricultural needs of the world. It is time to focus on our future and the many great things we hope to achieve for the betterment of all. 

Can Bayer Actually Pay Out $22 Billion?

Not only can Bayer pay out $22 Billion (or more), it makes business sense for the company to do so, sooner rather than later.

In July 2020, Bayer extended a bond offer of 6 billion euros ($7.15 billion U.S.) to assist in paying for the settlement announced in June. Bayer offered bonds in four tranches.

The four tranches of 1.5 billion euros each were offered with maturities of 4 years, 6.5 years, 9.5 years and 12 years. The coupons on the notes are 0.375 percent p. a., 0.75 percent p. a., 1.125 percent p. a. and 1.375 percent p. a. respectively. Demand for the bonds offered exceeded 17.5 billion euros (20.86 billion U.S.) according to reports from Reuters and other financial news media.  If Bayer so desires, the company could extend the time for paying off any Roundup settlement costs, by simply making additional future bond offers. Bayer has an excellent bond rating and the market has a significant appetite for Bayer’s bond offerings. There is no business logic that could justify Bayer risking their bond rating and financial health in general, by refusing to take the steps necessary to refocus the markets attention from the Roundup litigation, to other activities of the (otherwise) financially sound business.

In addition, Bayer reported $6.172 billion Euros in cash on hand for the quarter ending December 31, 2019. (A slight increase over 2018).   In the same year end report, Bayer reported $141.409 billion euros in total assets, against a mere $41.34 billion euros in long term debt. Adding an additional 22 Billion (U.S.) or approximately 18.45 billion euros to Bayer’s existing long-term debt would bring that number $59.79 billion, leaving the company with a debt to asset ratio that should not be concerning to investors.

It is also worth noting that the PE Ratio of Bayer Stock is currently 8.95 with a Market Cap of $54.23 billion euros. Prior to the Roundup Litigation, the PE Ratio for Bayer Stock generally hovered around 20, which is the average for the “Big Pharma/Big Agra” sector. If Bayer will simply take the steps needed to refocus the market away from the Roundup litigation, the companies market cap could easily double in a short period of time, returning stockholders to a debt equity ratio historically shown to be acceptable.

If Bayer were to announce tomorrow that it was entering a private mass settlement agreement that provided $20 billion dollars for existing claims, (financed by bonds) that needed no approval for the Court and employed a third party company like Brown Greer to set up an online program for the settlement that firms could use to settle their dockets, investors would rush to buy Bayer stock before the price doubles or triples.

Because the scenario above would not require approval from the Court, the only risk Bayer would face in the settlement not consummating would be mass rejections by Plaintiffs. Using Bayer’s reported figure of 125,000 current Plaintiffs worldwide, (filed and unfiled), $20 billion U.S. (16.78 euro) would render an average individual case value of $160,000 (U.S).  Although Plaintiffs may not be happy with the number, it is doubtful that many would find the offer insulting and equally unlikely that many would reject the offer.

Take the Bankruptcy Bluff off the Table

Insolvenzordnung, (Germanys Bankruptcy Code) section 15a(1) contains a “no delay provision.” Section 15a(1) requires that a German Corporation file their insolvency petition no later than three weeks after the event leading to the insolvency. The clock arguably started ticking on this three-week period at the time any Bayer executive or their legal counsel first mentioned the possibility that the company might file bankruptcy as a settlement negotiation ploy. Even without the “threats” that have been intimated,  if the Roundup litigation had rendered Bayer insolvent per Sections 17, 18 or 19 of the German Code, the “triggering event” for the application of 15a(1) occurred far longer than three weeks prior to any future date the company might actually file an insolvency petition in Germany.

Prior to any litigation stay being issued by the German Bankruptcy Court, a Corporation must show that it is unable to meet its mature obligations to pay (illiquidity according to sec. 17 Insolvency Act) or the Corporation will most likely not be able to pay its due liabilities of the current and the next fiscal year (impending illiquidity according to sec. 18 Insolvency Act), or if the debtor is over-indebted according to sec. 19 Insolvency Act. Contingent Liabilities (such as pending lawsuits that have yet to be converted to actual debt via the Plaintiff prevailing and receiving a judgment) are not included in the “solvency” determination.

If Bayer were able to get past section 15a(1), 17, 18 and 19, and obtain a stay order from a German Bankruptcy Court (which is highly doubtful given the fact that Bayer is far from insolvent) the German stay would not automatically be recognized by U.S. Courts. After obtaining a stay in Germany, the German foreign representative, appointed by the German Court, would have to move before a U.S. Bankruptcy Court under Chapter 15 of the U.S. Bankruptcy Code, (11 U.S.C. §§ 1501) seeking recognition of the German Courts proceedings and orders.

Among the many downsides and obstacles Bayer would face if the company attempted to make good on threats of bankruptcy, despite the fact that a filing in Germany would have no immediate impact the U.S. litigation, the filing could have an immediate impact on the company’s ability to continue to exhaust resources (pay legal fees) to defend in the U.S. litigation, including but not limited to the continuation of or filing of appeals related to judgments already granted by U.S. juries.

The Bottom Line: Even if Bayer were to jump through all of the hoops required of the German Courts and U.S. Courts required to “stay” the U.S. Roundup litigation, the process could easily drag out for several years, during which time additional Roundup trials could move forward in the U.S., potentially resulting in the addition of billions of dollars in new jury awards.

WHAT HAPPENS IF BAYER DOES NOT DO THE SMART THING?

  1. Plaintiffs firms continue to market for additional Roundup clients.
  2. More jury trials potentially resulting in massive verdicts, by Plaintiff lawyers that have already acquired billions in jury verdicts for clients.
  3. President Trump does not get reelected and a Biden EPA retracts the January 30, 2020. Final Statement on Roundup (not that the statement would have much impact on current cases). Although the EPA statement is not a significant threat to current Plaintiffs, the retraction of the Statement would likely not be well received by the market. Bayer stock would most likely take another hit.Why does the January 30, 2020 EPA Final Statement pose little threat to existing plaintiffs’ cases? Because it is well settled that only those agency statements that are final have the force of law required to support an impossibility preemption defense. In addition, the SCOTUS decision in Merck Sharp & Dohme Corp. v. Albrecht, 139 S. Ct. 1668, the U.S. Supreme Court 2019, arguably forecloses on Bayer arguing that the January 30, 2020 statement could have any retroactive pre-emption effect under an implied impossibility theory.More simply stated, the only value the EPA statement could possibly provide Bayer would be in Plaintiff cases, in which exposure to Roundup occurred after the EPA final statement was issued. In addition to the above, because Roundup is not a drug nor a vaccine, Comment K of the Second Restatement 402A does not apply to the case. Whether Bayer would or would not have been preempted from adding a cancer warning would not save them from the strict liability provisions of 402A.
  4. Bayer potentially gets delisted from DAX. Lufthansa, Germany’s flagship airline was delisted from the Dax Index in June of 2020 (after enjoying a 30-year run on the DAX). Temporary lagging revenues due to the coronavirus was the reason behind Lufthansa being delisted. The delisting sent Lufthansa stock into a nosedive that it may not recover from for decades (if ever). If Bayer executives allow the company to be delisted from the DAX over a problem they could resolve with a relatively painless bond offer, they will go down in German business history as dummkopfs.
  5. If Bayer is delisted from DAX or if the Roundup Litigation continues unabated, Bayer’s bond rating could be negatively impacted. At the moment, Bayer is in a position to finance a settlement through low interest bond offers; however, if the major rating services downgrade Bayer’s bond rating over concerns related to the litigation, the opportunity to finance a settlement at low interest rates paid out over a decade or more, could vanish.
  6. Although ousting executives is more difficult under German regulations as compared to U.S. regulations, it can be done and the current executives have already seen action taken in this direction. Bayer stockholders have already entered “no confidence” votes relevant to the current slate of executives. A “no confidence” vote is one of the steps required to oust a panel of executives under German regulations.

Although a Corporate takeover is far more difficult under German regulations, MTN has been following “major stock acquisition” filings for Bayer stock for the past two years. A triad of investors, including the French Ministry of Finance, has made significant headway in acquiring the 30% stake required to “take over” the German company.

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The New Arizona Rule for Alternative Business Structure Law Firms vs. Multidisciplinary Law Firms; What This Means for You!

“Multidisciplinary Law Firms” vs “Alternative Business Structure Law Firms”

If your firm is involved in Mass Tort Litigation, you are most likely aware that DC Bar Rule 5.4(b) allows for non-lawyer ownership in DC Law Firms. These types of law firms formed in accordance with DC Bar Rule 5.4(b) are generally referred to as “Multidisciplinary Law Firms”.

As of August 27th, 2020, the State of Arizona has, via an order handed down by the Arizona Supreme Court amended the States Bar Rules to allow for non-lawyer ownership in law firms. The new Arizona rules are arguably more liberal than the DC Rules and should be viewed by Plaintiffs co-counsel as an event worth celebrating. Several other States are likely to follow Arizona’s lead over the next year.

Although there are a number of differences in what is and is not permissible under DC Bar Rule 5.4(b) which allows for non-lawyer partners in Multidisciplinary Law Firms and Arizona’s newly revised rules allowing for Alternative Business Structure Law Firms, the difference most Plaintiffs’ attorneys are likely to be interested in centers around the allowance of passive investment by non-lawyers.

DC Bar Rule 5.4(b) DOES NOT allow for passive” stockholder” investment. Although a plain reading of DC Bar Rule 5.4(b) might lead one to believe that the DC rule does permit passive investment, the DC Bar has explicitly opined on numerous occasions to the contrary.

In contrast, Arizona’s newly adopted rules allowing for “Alternative Business Structures” explicitly permits Arizona firms to raise capital from passive investors under a typical “stockholder” type arrangement. Arizona’s new rules specifically state that a Law Firm may exist as a Corporate Entity (a Corporation), which is not allowed under DC’s rules. DC rules restrict law firms from forming as Corporations as well as LLCs. The DC rule allows for non-lawyer partners, not members (LLC) nor stockholders (Corporation), therefore firms established under DC rules that wish to function as an entity are limited to one of the various types of Partnership Structures allowed by the DCRA (The DC equivalent of the Secretary of State).

All State Bar Associations have enjoyed ample time to evaluate DC Bar Rule 5.4(b) and opine on the propriety of attorneys governed by their State rules fee sharing with a DC Firm, which includes non-lawyer partners. MTN research of the various “other” states’ opinions on this matter reveals no state which has opined in a manner that would place a blanket restriction on attorneys governed by their State Bar Rules from co-counseling with, as well as sharing fees with a DC Firm that includes non-lawyer partners.

Although each State Bar that has opined on this matter has worded their opinions in various and differing ways, it is fair to summarize these opinions as concluding:

“When an attorney governed by the Bar Rules of the given State enters a fee sharing agreement with a DC firm that’s members or partners consist of attorneys as well as non-attorneys, the firm governed by that specific States rules is not fee sharing with the non-lawyers in the DC firm but instead is fee sharing solely with the DC Attorney(s) named in any co-counsel/fee sharing agreement. Once the DC attorneys receive their fee share, those attorneys, as permitted by DC Bar rules may share those fees with their non-lawyer partners however, the firm governed by the Rules (other than DC rules) would not have fee shared with the non-lawyers and therefore would not be in violation of their governing bar rules.”

More simply stated, every State Bar appears to have green lighted (via official opinions) attorneys governed under their specific State’s rules fee sharing with DC Multidisciplinary firms, with various caveats and minor restrictions that stop far short of a general prohibition.

None of the various State Bars (and Courts) have yet had time to consider Arizona’s new rules allowing for “Alternative Business Structure Law Firms” and therefore have yet to opine on the propriety of attorneys governed under their State’s rules fee sharing with Arizona firms which may include non-lawyer partners as well as passive “stockholders”.

The various States Bar Opinions related to fee sharing with firms formed in DC under DC Bar Rule 5.4(b) may reasonably appear to cover fee sharing with an Arizona “Alternative Business Structure Firms” however, acting on such an assumption might present unacceptable risks. Each State Bar that has opined on the matter arising from the DC Rule has specifically referenced the DC Rule in their opinions. Until such time as the Specific State Bar any non-Arizona attorney is governed by, issues an opinion specially referencing the new Arizona Rules, it may be unwise for any firm to assume that that specific Bar will opine on the new Arizona Rule in the same manner that Bar has previously opined on the DC rule. There are simply too many differences in the respective rules (DC vs AZ) to make any assumptions based on Bar opinions specific to the DC Rule.
The most reasonable course of action for Mass Tort firms, given the fact that fee sharing among firms governed by multiple States’ Bar rules is common in the practice area, would be to form a coalition for the purpose of informing and guiding the various State Bars outside of Arizona in the formation and issuance of opinions regarding non Arizona firms fee sharing with Arizona firms that include non-lawyer stakeholders, including passive investors. Please fee free to reach out to our staff if you wish to be part of such a coalition.

MTN will remain active and informed in this new and exciting development which promises to help level the “financial” playing field between Mass Tort Plaintiff firms and Mass Tort Defense firms and defendants. As a general rule, Mass Tort defendants already finance their legal fees via funds provided by passive investors in that most Mass Tort defendants are themselves corporations owned and funded primarily by passive investor stockholders. Historically, Mass Tort defendants and the firms that they pay (with stockholder funds) to represent them, have enjoyed a significant advantage that allowed the “defense side” to engage in wars of attrition against the Plaintiffs their products and actions injure, the change in Arizona’s rules may well be the first step in reducing this advantage previously enjoyed by the “wrong doers” in these matters.

Disclaimer: This article was written by John Ray. John Ray is not an attorney nor a legal ethicist. Nothing in this article should be construed as legal advice nor legal ethics advice.

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CEO of Opioid Distributor Ordered to Testify in Bellwether Trial

AmerisourceBergen Drug Corp. CEO Steven H. Collis must give a deposition in the second bellwether trial in federal multidistrict litigation set to start in October.

Virginia Special Master Christopher C. Wilkes in the US District Court for the Southern District of West Virginia wrote a nine-page order, rejecting the drug maker’s argument that the testimony would be inconvenient and burdensome for Collis.

The opioid epidemic in West Virginia is documented in a Pulitzer Prize-winning newspaper series, triggered a Congressional investigation, spawned lawsuits brought by all 55 counties in West Virginia (including the Attorney General) in federal and state court.

The ruling came on June 29, 2020, in The City of Huntington and Cabell County Commission v. AmerisourceBergen Drug Corporation, Civil Action No. 3:17-01362. A bench trial before US District Judge David A. Faber starts October 19, and distributor Cardinal Health Inc. is also a defendant.

AmerisourceBergen (ABDC) is one of the big three opioid wholesalers and is facing 2,811 lawsuits before US District Judge Dan A. Polster in MDL 2804 IN RE: National Prescription Opiate Litigation in the Northern
District of Ohio

Wilkes said the importance of the issues in the case are “paramount and unparalleled,” and the amount of money at stake is potentially hundreds of millions of dollars and “unquestionably significant.” Therefore, the benefits of his testimony outweigh any burden.

“When the scales of justice are balanced, the tragic backdrop of this potentially momentous litigation justifies the deposition of ABDC’s chief executive officer,” the order says.

ABDC and Collins tried to hide behind the “apex doctrine,” which applies to a specific subset of deposition notices that demand the appearance of high-level executives or high-ranking government officials to prevent harassing or burdening top execs.

That argument went nowhere because the Fourth Circuit has not adopted the apex doctrine, nor commented on its validity.

Besides, Collis voluntarily testified before the Congressional Subcommittee on Oversight and Investigations of the US House of Representatives on May 8, 2018.

“It received sworn testimony from and posed written questions to ABDC Chairman, President, and CEO, Steven H. Collis. The purpose of the hearing was to “examine the role that [ABDC] may have played in contributing to the opioid epidemic as well as distribution practices specific to West Virginia,” the order states.

“Mr. Collis’ written and verbal answers to Congress which demonstrate core competence, personal involvement and direct knowledge of the factual issues the Court must decide during the bench trial,” says the order.
Further, “Collis has not submitted an affidavit indicating that he doesn’t have personal knowledge of the facts, or explained why sitting for the deposition would place “extraordinary demands on his time,” the order states.

The City of Huntington is represented by Anne McGinness Kearse, Joseph F. Rice, Linda Singer, and David I. Ackerman of Motley Rice LLP and by Charles R. “Rusty” Webb of The Webb Law Centre PLLC.
Attorneys for the Cabell County Commission include Paul T. Farrell Jr. of Farrell Law, Anthony J. Majestro of Powell & Majestro PLLC, and Michael A. Woelfel of Woelfel & Woelfel LLP.

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For “Outrageous Conduct” and “Evil Motive,” court Upholds $2.1 Billion in Verdict against J&J in Baby Powder Case

A Missouri appeals court upheld a jury verdict against Johnson & Johnson over cancer caused by its baby powder, but the court reduced the award from $4.7 billion to $2.1 billion.
“Plaintiffs proved with convincing clarity that defendants engaged in outrageous conduct because of an evil motive or reckless indifference,” the court said. “There was significant reprehensibility in defendants’ conduct.”

The court said in an 83-page opinion that the plaintiffs had proven that J&J concealed for decades that the talc products contained asbestos, “worked tirelessly” to ensure that testing protocols would not detect asbestos in all talc samples and, published articles downplaying the safety hazards of talc.

See Attacking and Lying, Johnson & Johnson is Battered by Talcum Powder – Cancer Litigation.

“The harm suffered by plaintiffs was physical, not just economic,” Judge Hess wrote. “Plaintiffs each developed and suffered from ovarian cancer. The plaintiffs underwent chemotherapy, hysterectomies, and countless other surgeries. These medical procedures caused them to experience symptoms such as hair loss, sleeplessness, mouth sores, loss of appetite, seizures, nausea, neuropathy, and other infections. Several plaintiffs died, and surviving plaintiffs experience recurrences of cancer and fear of relapse.”

22 plaintiffs

The unanimous decision by the Missouri Court of Appeals’ Eastern District came on June 22, 2020, in the case of 22 women who developed ovarian cancer from using J&J’s talc-based baby powder. The case is Robert Ingham v. Johnson & Johnson, Case No. No. ED107476, with Presiding Judge Philip M. Hess.

The court rejected Johnson & Johnson’s bid to throw out the 2018 jury verdict in favor of women. Facing 19,000 lawsuits, J&J stopped selling its cancer-causing baby powder in the US and Canada.

Chief US District Court Judge Freda L. Wolfson in New Jersey is overseeing 17,609 cases MDL 2738, IN RE: Johnson & Johnson Talcum Powder Products Marketing, Sales Practices, and Products Liability Litigation.

Slashing the jury award down from $4.69 billion, the court revised it to $500 million in actual damages and $1.62 billion in punitive damages.

J&J said it would appeal to the Missouri Supreme Court.

Mark Lanier, the lead lawyer for plaintiffs, called the decision “a clarion call for J&J to try and find a good way to resolve the cases for the people who have been hurt.”

Plaintiffs’ attorney Eric Holland added, “I’m pleased that all three judges agreed. I’m also pleased that they so carefully looked at the evidence, and I was so impressed with how they were able to dive into what amounted to a 6,000-page record in what was a six-week trial and come up with what happened here. Very impressive work.”

J&J a bad actor for 50 years

J&J has faced intense scrutiny of its baby powder’s safety following a 2018 Reuters investigation that found it knew for decades that asbestos lurked in its talc.

• Internal company records, trial testimony, and other evidence show that from at least 1971 to the early 2000s, J&J’s raw talc and finished powders tested positive for asbestos.

• Its talc supplier Rio Tinto Minerals warned that there was no safe level of asbestos exposure

• J&J has been the target of a federal criminal investigation into the safety of its talc products, as well as an investigation by 41 states of its baby powder sales.

• The company has also faced an investigation by a congressional subcommittee on the health risks of asbestos in consumer products containing talc.

11 of the 22 women plaintiffs did not live to see the ruling.

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Emerging Mass Tort: Women Sue After the Bladder Pain Drug Elmiron Causes Eye Damage

Litigation is building against three major drug companies that make Elmiron, which treats painful bladder syndrome. Studies show it damages the retina in the eye and causes severe vision loss, particularly in women.

Shockingly, the drug label contains no warning about eye damage.

A major study released on October 12, 2019, found that about 25 percent of patients taking the drug show signs of retinal damage. As a result, plaintiffs have filed vision loss lawsuits against Janssen Pharmaceuticals, Teva Branded Pharmaceuticals, and Ortho-McNeil Pharmaceuticals. The lawsuits focus only on brand-name drugs and charge that the manufacturers failed to warn the public about the risk of vision problems properly.

For many years, pentosan polysulfate, known by its brand name Elmiron, is the most commonly prescribed drugs for patients suffering from interstitial cystitis (IC), a rare and extremely painful bladder condition. Currently, it’s the only oral drug approved to treat bladder pain and discomfort associated with IC, and it’s not available in generic.

Elmiron causes pigmentary maculopathy, or macular degeneration, affecting the retina, resulting in:

● Blurry Vision
● Night blindness
● Difficulty Reading
● Dark Spots in Vision
● Loss of Detailed Vision
● Blurred vision
● Seeing dark spots
● Color blindness
● A change in eye color
● Blindness

Elmiron was approved in 1996 by the FDA to treat IC, a chronic, progressive, and debilitating urinary bladder disease. The sickness causes severe bladder and pelvic pain and the urge to urinate constantly. According to the Mayo Clinic, IC can cause complications, including reduced bladder capacity, lower quality of life, sexual intimacy problems, and emotional troubles.

Toxic to retina

Research presented in October 2019 to the American Academy of Ophthalmology linked Elmiron to retinal damage. Researchers concluded that Elmiron “appears to be toxic to the retina,” which is a thin layer of tissue at the back of the eye that receives light and allows us to see. The study, conducted by three ophthalmologists at Kaiser Permanente in California, reviewed 140 patients who had taken an average of 5,000 pills each for 15 years. They found that the rate of toxicity rose with the amount of drug consumed.

The first to raise the alarm about Elmiron eye damage was Dr. Nieraj Jain of the Emory Eye Center in Atlanta, GA. In 2018, he reported that six patients who had been taking Elmiron for about 15 years had developed unusual changes in their macula, the central part of the retina responsible for delivering clear, crisp, central vision. Because nothing in the patients’ medical history or diagnostic tests explained the subtle, but striking pattern of abnormalities, Dr. Jain and his colleagues raised a warning flag that long-term use of Elmiron may damage the retina

Health Canada announced in October 2019 that that pigmentary maculopathy would be added to the warnings and precautions on the drug label. However, the FDA did not add this change to the label.

Multiple lawsuits

Plaintiff demographics involve mostly women between the ages of 37 to 79 years. Common presenting symptoms include blurred vision, prolonged dark adaptation, and metamorphopsia (which is a type of distorted vision in which a grid of straight lines appears wavy and parts of the grid may appear blank).

Levy Konigsberg LLP and Napoli Shkolnik PLLC filed a product liability lawsuit against the manufacturers for failing to warn plaintiff Valerie Hull of the serious eye and vision injuries. Plaintiff Valerie Hull, a South Carolina resident, was documented as “patient zero” in the 2018 study by Emory Eye Center. The complaint, case No. MID-L-003646-20, was filed on June 9, 2020, in the Superior Court of New Jersey, Middlesex County, naming Janssen Pharmaceuticals and Teva Branded Pharmaceutical Products R&D as defendants.

Johnson // Becker, PLLC filed Pelczar v. Teva Branded Pharmaceuticals R&D, et al. was filed in the United States District Court for the District of Connecticut on March 26, 2020. Defendants include Teva Branded Pharmaceuticals and Janssen Pharmaceuticals.

The firm also filed the case Allen v. Janssen Pharmaceuticals, Inc. et al. in the US District Court for the Eastern District of Pennsylvania on May 6, 2020. It seeks class certification to establish a fund to be used for medical monitoring of patients using Elmiron to monitor the status of their vision.

Plaintiff Tina Pisco filed an Elmiron lawsuit on May 4, 2020, against Janssen and Johnson & Johnson, charging the medication caused her to develop maculopathy. Pisco started taking Elmiron in 2012 to treat interstitial cystitis. In 2018 she noticed that her vision was rapidly deteriorating. By March 2019, she was diagnosed with permanent retinal injury in both eyes, according to her lawsuit.

Pisco claims that the “dangerously defective prescription drug” was “designed, marketed, and distributed . . . while knowing significant risks that were never disclosed to the medical and healthcare community.” Pisco alleges that Janssen “withheld material adverse events” and “failed to disclose the serious link between Elmiron use and significant visual damage, including pigmentary maculopathy.”

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9th Circuit Kicks Dicamba Weed Killer Off the Market

Three kinds of Dicamba weed killer, embroiled in litigation for drifting to neighboring farms and killing crops, have been kicked off the market. The 9th US Circuit Court of Appeal revoked the Environmental Protection Agency’s (EPA) approval of the herbicides made by Bayer AG and its German rival BASF.

“American farmers have been using Dicamba, a chemical herbicide, to combat weeds for more than 50 years. Dicamba is an effective weed killer, but its toxicity is not limited to weeds. It can kill many desirable broadleaf plants, bushes, and trees. It also has a well-known drawback. Dicamba is volatile, moving easily off a field onto which it has been sprayed,” the court said.

The ruling cost Bayer $34 million in lost earnings.

BASF has filed an emergency motion to intervene in the decision blocking the sale of three Dicamba-based herbicides, including BASF’s Engenia herbicide. The June 3 ruling also bans herbicides XtendiMax and FeXapan.

BASF said, “The Ninth Circuit’s decision has caused immediate chaos among the agricultural community and threatens the livelihood of countless US farmers.” Ironically, US farmers are the plaintiffs against BASF.

Bayer settles

Instead, Bayer announced a mass tort settlement of the dicamba drift litigation on June 24, 2020. Bayer will pay up to $400 million to resolve the litigation in MDL 2820 pending before US District Judge Stephen N. Limbaugh, Jr., in the US District Court for the Eastern District of Missouri and claims for the 2015-2020 crop years.

Bayer said it expects a contribution from its co-defendant, BASF, towards this settlement.

Bayer did not include the Bader Farms verdict in its settlement. In the first bellwether trial, the jury awarded $15 million in compensatory damages on February 14, 2020, to Missouri peach farmer, Bill Bader and his family-owned Bader Farms. The following day, they added another $250 million in punitive damages against Bayer and BASF.

A three-judge panel of the 9th Circuit ruled that the US Environmental Protection Agency (EPA) substantially understated the risks related to the use of Dicamba, a chemical in herbicides used on genetically engineered soybeans and cotton. The herbicides are known to drift away and damage other crops that are not resistant.

Environmental groups – including the National Family Farm Coalition, Center for Food Safety, Center for Biological Diversity and Pesticide Action Network North America — have long sought cancellation of the EPA’s approval of Bayer’s Dicamba herbicide and BASF’s Engenia and Corteva.

EPA follow-up action

The EPA issued a cancellation order that says growers and commercial applicators may use existing stocks of Dicamba that were in their possession on June 3, 2020, the effective date of the 9th Circuit decision. This use may not continue after July 31, 2020.

EPA Administrator Andrew Wheeler said, “the cancellation and existing stocks order is consistent with EPA’s standard practice following registration invalidation and is designed to advance compliance, ensure regulatory certainty, and to prevent the misuse of existing stocks.”

The 9th Circuit ruling concerned the agency’s 2018 registration decision to approve Dicamba. Bayer had been seeking a new EPA registration for the herbicide for 2021 and beyond.

Arkansas farmer Reed Storey told Reuters he was encouraged by the ruling after his soybeans suffered damage from Dicamba sprayed on neighboring fields from 2016 to 2018.

“It’s a move in the right direction in getting the in-crop use of it stopped,” he said.

Some farmers and seed dealers said the ruling could drive a shift away from Bayer’s dicamba-resistant Xtend soybean seeds to Enlist E3 soybeans sold by Corteva.

Xtend soybeans account for more than half of US soy plantings. Farmers turned to the product to protect themselves from Dicamba sprayed by neighbors and after some weeds developed resistance to glyphosate.

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Mark O’Mara to Speak on Civil Rights vs. Police Brutality at Mass Tort Nexus Course on June 13th

Mark O’Mara will be speaking on the topic of “Civil Rights vs. Police Brutality” litigation at the Mass Tort Nexus course on Saturday, June 13th in Ft. Lauderdale. Mark will speak on cases involving violations of individuals’ civil rights under the color of authority, committed by Law Enforcement Officers or Correctional Officers, leading to the injury and often death of the victims of these acts.

The George Zimmerman case thrust Mark into the national consciousness, where he remains today due to his frequent appearance on CNN, HLN, Court TV and all the major networks. A fact not as well known to the non-legal community is that Mark, prior to the Zimmerman case and after, has been the “go to attorney” for many individuals, often African Americans and other people of color, who have been victims of civil rights violations.

Mark’s experience in MDL leadership, from his work on the Benicar MDL to his co-lead position in the CenturyLink MDL, combined with his broad experience in civil litigation in the representation of those who had their civil rights violated by law enforcement, are accolades on Mark’s resume which the public and the legal community at large are often not aware. Mark represented the estate of Sam DuBose, an African American man stopped for a tag violation by an off-campus University of Cincinnati police officer, Ray Tensing. As can be seen in a widely published body cam video, Sam was executed by Tensing, who then created a story of self-defense, even though it was belied by all the evidence. Mark also represented the estate of Mathew Ajibade, a 20-year old black college student beat up, held in a restraint chair and tased in the crotch by officers at the Chatham County Jail. Mathew succumbed to his abuse and died while still in the restraint chair.

He is presently representing the estate of 17-year old Adrein Green, shot in the back and killed from 20 feet away by a homeowner who was already in his home and on the phone with police. This shooting occurred about two miles from the shooting of Trayvon Martin, in Sanford, Florida. While the investigation is still underway, no charges have been filed.

Given the sea change in public attitude towards police brutality, we offer the unique opportunity to learn from an expert on the front lines, and get his insight on the recent cases of Ahmaud Arbery, George Floyd, and the now infamous Central Park dog walker, Amy Cooper.

We would like to believe that the “sea change in public attitude towards police brutality” and the increase in cell phone videos and body cams might alter the behavior of those police officers with a tendency towards excessive and unnecessary use of force, but the Floyd homicide tells us we have a long way to go.

Unfortunately, while these horrific acts could lay the foundation for some positive change in the way we police each other, recent reactions to the protests have already demonstrated a willingness to use tear gas and force against those peacefully protesting, are troubling.

In order to rebuild the tattered trust that our minorities have for the criminal justice system, we must be willing to tear down the Blue Wall code of silence, and hold those that are silent as accountable as those who act. Only when we accomplish that can we bring about a day when a young man of color can walk or drive down the street, see a police officer and not automatically feel fear.

Politicians, as well as Local, State and Federal Governments have clearly failed to stem the tide of excessive police violence. Plaintiff civil rights lawyers are the country’s last and best hope to bring about the change that will maintain the viability of our justice system.

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Litigation Starts over Diet Drug Belviq, Yanked from Market Because of Cancer Risk

After being on the market for 8 years, the marginally-effective diet Drug Belviq, made by the Japanese drug company Eisai, has been pulled off the market because it may cause cancer.

Eisai, based in Woodcliff Lake, New Jersey, voluntarily withdrew Belviq from the market in February 13, 2020, at the behest of the U.S. Food and Drug Administration.

Earlier, in January 2020, the FDA had alerted the public about a possible risk of cancer associated with lorcaserin, the active ingredient in Belviq, based on preliminary analysis of the data.

A range of cancer types were reported, including pancreatic, colorectal, and lung. The FDA instructs patients to stop taking the drug.

Litigation underway

Plaintiff law firms are actively marketing to Belviq patients now. Lawsuits against Eisai began to be filed in March 2020, considering it may have a high average case value litigation.

Barbara Zottola of White Plains, NY, filed a class action complaint in March 2020 against Eisai Inc. in U.S. District Court in White Plains, accusing the drug maker of pushing the product to market, despite evidence that it was defective. Zottola is represented by Manhattan attorneys Andrew J. Obergfell and Joseph I. Marchese and Miami attorney Sarah N. Westcot.

The lawsuit also names Arena Pharmaceuticals Inc., the San Diego company that developed and licensed lorcaserin, the active ingredient, and CVS Health Co., the pharmacy chain from which Zottola purportedly bought the drug.

In April 2020, Barbara Zottola of New York filed a class-action lawsuit against Eisai, Inc., claiming it knew about Belviq’s cancer-causing potential for years, yet kept pushing it to market.

The complaint by Saunders & Walker of Pinellas Park, Florida, asks the federal court to certify a class of hundreds of thousands of people across the country who purchased Belviq. The suit seeks damages for alleged breach of an implied warranty, deceptive acts, false advertising, unjust enrichment, fraud, and conversion.

Risk of cancer

Eisai Co., Ltd. is a Japanese pharmaceutical company headquartered in Tokyo, Japan. It has offices in New Jersey, Massachusetts, and Pennsylvania. Eisai, originally a marketing partner on Belviq, acquired the sole rights to the drug from Arena Pharmaceuticals for only $23 million in cash in January 2017.

Belviq revenues for 2017 totaled $21.3 million. The company promoted prescriptions for the weigh-loss drug for $40 with savings cards for commercial-insured patients. Ordinarily, it costs approximately $300 a month and is not covered by most insurance companies.

Belviq was approved by FDA on June 27, 2012, for use with a reduced-calorie diet and increased physical activity to help weight loss in adults who are obese or are overweight and have weight-related medical problems. Belviq is a serotonin 2C receptor antagonist indicated for chronic weight management in adults who are obese, or overweight, and who have at least one weight-related condition, such as high blood pressure, type 2 diabetes, or high cholesterol. It is supposed to work by increasing feelings of fullness so that less food is eaten. It is available as a tablet (Belviq) and an extended-release tablet (Belviq XR).

A four-year study, requested after Belviq’s approval in 2012, showed a possible link to increased cancer risks in patients with either an established cardiovascular disease or multiple risk factors.

In December 2012, the US Drug Enforcement Administration proposed classifying lorcaserin as a Schedule IV drug because it has hallucinogenic properties at higher than approved doses and users could develop psychiatric dependencies on the drug. On May 7, 2013, the US Drug Enforcement Administration classified lorcaserin as a Schedule IV drug under the Controlled Substances Act.

Interestingly, back on September 16, 2010, an FDA advisory panel had voted 9–5 against approval of the drug based on concerns over both efficacy and safety, particularly the findings of tumors in rats. On October 23, 2010, the FDA at first decided not to approve the drug. This was not only because cancer-promoting properties could not be ruled out, but also because the weight loss efficacy was considered “marginal.”

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Imerys Settles 14,000 Talc Cancer Lawsuits for Up to $102.5 Million

Imerys SA agreed to sell off its North American talc mines to pay for a settlement of up to $102.5 million, working with representatives of 14,000 existing and potential future claimants who got cancer from asbestos-laden talcum powder products.

Imerys is the primary supplier of talc to Johnson & Johnson, whose Baby Powder and Shower to Shower products are the target of 17,058 lawsuits consolidated before US District Chief Judge Freda L. Wolfson in MDL 2738, IN RE: Johnson & Johnson Talcum Powder Products Marketing, Sales Practices, and Products Liability Litigation.

The Imerys settlement does not affect the Johnson & Johnson cases in the MDL because, on February 13, 2019, Imerys Talc America, Inc., Imerys Talc Vermont, and Imerys Talc Canada filed a voluntary petition under Chapter 11 in the US Bankruptcy Court for the District of Delaware. The automatic stay in Bankruptcy Court halted the lawsuits against Imerys, which have been in Bankruptcy Court since then.

Approval possible in June

The Imerys bankruptcy cases are pending before the Judge Laurie Selber Silverstein, and are jointly administered under Case No. 19-10289. Judge Silverstein may approve the settlement as early as June 2020. The French-based J&J talc supplier is expecting to receive confirmation of the plan and emerge from bankruptcy protection by the end of 2020.

Assets of the 3 Imerys companies will be sold at auction with the proceeds going into an independent trust to compensate talc victims, the company said in a statement. In return, plaintiffs will drop their suits, allowing the businesses to emerge from Chapter 11.

The deal aims to end six years of litigation over Imerys’s role as the sole talc supplier for J&J. Imerys agreed to make a minimum $75 million payment. An additional amount of up to $102.5 million, subject to a reduction mechanism proportionate to the sale price of the assets.

An April 2018 verdict by a New Jersey jury ordered Imerys to pay a $25 million in punitive damages award to Stephen Lanzo and his wife. Then in June 2018 Imerys agreed to pay $5.5 million before trial to settle claims from 22 women, who alleged that its asbestos-contaminated talc caused them to develop ovarian cancer.

In the same case, J&J was ordered to pay $4.7 billion in damages to the plaintiffs. For more details, read Johnson & Johnson is Battered by Talcum Powder – Cancer Litigation.

Talc and Asbestos

“It is unlikely that any naturally occurring talc deposit would not also contain some asbestos. Combine the foregoing with the fact that there are no practicable and economical means by which to separate asbestos from talc, it is reasonable to conclude that, it is more likely than not, that all talc contains asbestos,” writes John Ray, who has been a leading consultant to the Mass Tort industry for more than a decade.

Talc and asbestos often occur in the same geological formations together. Before the dangers of asbestos were publicly revealed, many companies neglected to check for asbestos in talcum powder products.

Imerys said the bankruptcy settlement was a “Significant step for Imerys towards a permanent and final resolution of historic talc-related liabilities.” It will produce a “favorable outcome for the Group allowing to move forward and focus on its current operations, free of historic talc-related liabilities.

Imerys operates hundreds of industrial sites across 50 countries around the world, supplying about 15% of the world’s talc. It operates mines and processing facilities in Europe, North America, Asia, and Australia. Its open-cast mine in Three Forks, Montana, is the largest talc operation in the United States.

The company did not play a major role in the asbestos industry during the 20th century. Rather, Imerys’ liability for asbestos exposure came with its acquisition of the Luzenac Group, a major talc supplier.

Imerys Talc America is liable for diseases caused by asbestos-contaminated talc mined by the Luzenac Group during the 20th century. Imerys disputes its talc has ever caused cancer, but recent lawsuits involving the company have been successful for plaintiffs.

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