HB Litigation News

Author: Tom Hagy

  • Congressional Cannabis Proposal Would Can Criminalization

    Could this be the thing that brings the parties together?

    Here is a quote from an article written for Forbes.com by freelance writer Janet Burns.

    [Jolene Forman, staff attorney at the nonprofit Drug Policy Alliance] called the bill a “first step,” and noted, “This bipartisan proposal clears the way for states to develop their own marijuana policies without fear of federal intervention. This will give states more opportunity to restore communities that have borne the brunt of the drug war and mass criminalization.”

    So far, 30 states, Washington, DC and the U.S. territories of Guam and Puerto Rico have enacted medical marijuana legislation, while estimates suggest that 63 million Americans reside in areas where anyone over 21 may now legally possess the plant.

  • Miller Friel: Opioid Suppliers Are Right to Expect Insurance Coverage

    An excerpt from a post by Bernard Bell of Miller Friel PLLC

    “Because insurers are facing a difficult time evading coverage for opioid claims, they are raising all sorts of non-contractual defenses to avoid coverage, including a ‘social insurance’ argument they have raised in the past.

    “If past public health crises are prologue, these arguments will run something like this: Holding insurers responsible to pay for the costs of public services, including health care, will transform private party liability insurance into social insurance to underwrite public health epidemics caused by all manner of ills.  According to insurers, this will, at a minimum, increase the cost of liability insurance, and financially harm liability insurers, who have not priced this risk into their premiums.  Moreover, holding insurers liable to pay will shift costs away from those best equipped to address the social problem; the companies that supply the opioid products.

    “These arguments are inconsistent with insurance law, which permits parties to freely contract to cover risks, and which place the burden on insurers to pay for insured risk, even if they made an error in underwriting.  Courts interpret insurance contracts according to their language and construe them against insurers if they are ambiguous, and in favor of an insureds’ reasonable expectations of coverage.

    “Moreover, to the extent courts are inclined to look past contract language when construing insurance policies, the social arguments cut in favor of coverage, not against it, because  liability insurance is designed to perform risk management, and deterrence and compensation functions of insurance are important to the social functioning and ordering of society. … These social purposes are especially easy to grasp in the context of pharmaceutical companies that develop and bring to market countless products, including opioid pain medicine, that can relieve human pain and suffering. These companies bought and paid for liability insurance to manage the risks inherent in their business. They are entitled to enforce the promises made to them by those insurance companies that accepted their risks and their premiums.”

  • Insurance Coverage and GDPR: What’s Your Financial Exposure? –Linda Kornfeld, Blank Rome

    In her recent article — GDPR Is Finally Here: It’s Time to Make Sure Your Current Cyber Policy Will Protect against New Financial Exposures — Blank Rome insurance coverage partner Linda Kornfeld wrote:

    Companies can face large financial exposure for GDPR “fines or penalties.” Are they covered under currently worded cyber policies? The answer is, maybe not if your policy, e.g., covers regulatory proceedings addressing only failures to protect private information, as opposed to GDPR proceedings that may address broader noncompliant data collection and use practices. Additionally, coverage for GDPR fines or penalties may be more restricted under the laws of many European countries than the laws of certain states in the United States. Your insurer may agree to choice of law language in your policy that will increase the chances of coverage.

    On behalf of all of us at HB — Congratulations to Linda on her move to Blank Rome! 

    Now Vice Chair of the firm’s Insurance Recovery Practice Group, Linda is one of the nation’s most prominent insurance recovery attorneys, representing corporate policyholders in high-stakes litigation for more than 25 years. Using strategic, creative approaches in her trial and appellate practice, Linda assists her clients in the recovery of hundreds of millions of dollars in insurance assets. She is a strategic adviser to senior executives and in-house counsel on mitigating risk and maximizing insurance recoveries.

    Linda has been a valued contributor to HB programs and, before that, to Mealey’s Conferences and Mealey’s Litigation Reports.

  • Class Actions Weekly Roundup from Top Class Actions

    This roundup is prepared exclusively for HB Litigation Conferences by:

    Walmart Class Action Claims Glucosamine Tablets are Mislabeled

    Walmart has been hit with a class action lawsuit claiming that their store brand glucosamine tablets are mislabeled. Plaintiffs Cynthia Parker, Reba Garth, Margaret Herrin, and Shirley Reinhard allege that Walmart misrepresents its store-brand glucosamine sulfate dietary… Read More

    Sorin 3T Heater Cooler Lawsuit Alleges Serious M. Chimaera Bacterial Infection

    An Indiana man has filed a Sorin 3T heater cooler lawsuit against LivaNova PLC, alleging their cardiac heater cooler device had caused him to develop a potentially fatal infection. The claimant filed the Sorin 3T heater cooler… Read More

    Coca-Cola Seeks Dismissal of Diet Coke Class Action Lawsuit

    Coca-Cola asked a New York federal court to toss a class action lawsuit alleging the company’s use of the name “Diet Coke” is misleading. The company argues that claims against its use of the word “diet” in… Read More

    Couple Files Stryker Hip Recall Lawsuit Over Metallosis Complications

    Thousands of hip implants were affected by a Stryker hip recall after they were linked with serious complications, including metallosis. Some patients affected by these major side effects have turned to litigation, hoping to regain some… Read More

    Facebook Class Action Challenges Facial Recognition Technology

    Facebook faces a new class action lawsuit alleging that the social media site captured and stored biometric information of non-users in violation of Illinois state law. Plaintiff Clayton Zellmer argues that Facebook broke state law by… Read More

    Woman Alleges Bleeding While Taking Xarelto in Lawsuit Against Drug Makers

    A woman who allegedly suffered bleeding while taking Xarelto has filed a lawsuit against the makers of the anticoagulant drug. Plaintiff Emmy L. filed the Xarelto lawsuit in Louisiana federal court, joining a growing multidistrict litigation (MDL) against… Read More

    Arthrex Knee Replacement Causes Injuries, Patients Claim

    Knee replacement surgery is one of the most common surgical procedures in the U.S., but some patients who have received a knee device like the Arthrex knee replacement alleged that they suffered serious complications. In some cases, Arthrex… Read More

    United Industries Can’t Escape Spectracide False Ad Class Action Lawsuit

    Last week, a California federal judge denied a bid by herbicide maker United Industries Corp. to dismiss a false advertising class action lawsuit after finding it possible that reasonable consumers would be misled by the labeling… Read More

  • Top Class Actions’ Top Trends Affecting Class Actions in 2018

    Editor’s Note: This article was written by Kim Gale at Top Class Actions and is reprinted here with the permission of the publisher. Scott Hardy, the company’s President & CEO, is one of the speakers featured at HB’s Class Action Mastery conference May 9-11, 2018 in New York. Top Class Actions is sponsoring that event and its companion program, Mass Tort Med School, the same week. 

    As we come close to rounding out the first quarter of 2018, it is clear that several class action lawsuit trends from 2017 will continue to ripple through the court system this year.

    Class Action Lawsuit Stats
    Did you know three areas are responsible for a third of all class action lawsuits filed in the U.S.? The federal courts in California, Southern District (Miami) of Florida, and the Eastern District (Brooklyn) of New York keep lawyers and judges the busiest.

    In the initial nine months of 2017, a total 3,136 federal class action lawsuits were filed in those areas alone, according to an article published Dec. 9, 2017 by PorterWright.com.

    These statistics are apt to change because new Supreme Court decisions (Bristol-Myers Squibb v. Superior Court of California and BNSF Railway Co. v. Tyrrell) rein in a court’s jurisdiction and ability to litigate matters when residents from outside the court’s state make claims.

    These new decisions mean a defendant will need to be sued in the state where the business is incorporated. Another option could be for individual states to file class action lawsuits and then seek to have them consolidated through multidistrict litigation (MDL).

    Marketing Tactics Under Fire
    Makers of everything from washing machines to mascara faced allegations of product misrepresentation. Advertising claims such as “organic,” “preservative free” and “virgin” can land a company in hot water with multiple class action lawsuits if these claims can be proven false.

    In 2017, class action lawsuits started challenging the way some products are made because consumers possibly paid more for such proclamations.

    For example, extra virgin olive oil is the highest quality available, which consumers often pay a premium to receive.

    To earn the title extra virgin, the oil must be free of defects, taste like fresh olives, and be produced using no solvents. Extra virgin olive oil has to be manufactured by a mechanical process and in temperatures that will not allow the oil to degrade. Finally, the oil must be sold in darkly tinted bottles to keep the product from degrading on the shelf.

    In one olive oil case that led to a class action settlement (Kumar v. Safeway Inc.), olive oil labeled extra virgin was allegedly mixed with refined oil and packaged in clear bottles, ruining any chance at truly being “extra virgin.” To add further insult, the olive oil was labeled as imported from Italy, but contained olive oil from a variety of other countries not particularly known for their brilliantly tasty olives.

    Consumers do not take kindly to paying a premium for false enhancements, which has led to multiple class action lawsuits against companies that tout their product as better than the rest due to refinements that don’t exist.

    Class Action Settlements Under Scrutiny
    In 2013, Subway was hit with a class action lawsuit after a foot-long sandwich that fell short at 11 inches was posted on social media. Subway explained away the one-inch discrepancy by saying the dough is a foot long, but after the bread is baked, the natural action of the dough rising can cause impact on the length.

    A class action settlement was reached in 2015 in which Subway agreed to make sure all locations adopted a uniform practice to guarantee each unbaked loaf measured 12 inches.

    In the settlement, Subway also agreed to pay the class counsel’s $520,000 fees but offered no monetary compensation to consumers.

    In September 2017, the 7th Circuit Court in Chicago reversed the Subway settlement on appeal because consumers would see the settlement as “utterly worthless.” The court expressed disgust over the settlement terms, indicating that any settlement that pays the class counsel, but provides no relief to the Class Members, “is no better than a racket.”

    The court’s reversal of the settlement will force future defendants to make sure any settlement offer they consider includes a true benefit to Class Members and not just to their counsel.

    Opioid Manufacturer Litigation
    In 2017, more than 100 cases were filed against opioid manufacturers by individuals, health insurance companies, state governments, county governments and city governments. These opioid lawsuits seek to hold manufacturers accountable for the epidemic of opioids in the country that have led to overworked and under-financed ambulance services, hospital services, EMTs, police officers, rehabilitation facilities and other providers of care to people who overdose on opioids and need life-saving intervention.

    The judicial panel on multidistrict legislation is considering motions to centralize these pending lawsuits. Whether or not the cases are processed separately or as an MDL, outcomes from these opioid epidemic cases will set new precedents, affecting the medical community and the law.

    “Small” Data Breach Litigation
    Even though high-profile data breach cases make the news, many smaller data breach class action lawsuits are filed every day. Large and small businesses collect data on customers and employees. Disgruntled current or former employees can cause big headaches by allowing a small data breach.

    Employees who aren’t particularly computer savvy can accidentally save sensitive information where hackers could access it. As technology to enhance computer security has advanced, so have the skills of potential hackers who constantly look for weaknesses in firewalls.

    A Look Forward
    In 2018, class action lawsuits will continue to address claims regarding baby powder cancer, Roundup cancer, medication dangers, airbag recalls, whistleblower cases and other consumer-related issues.

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