The Jere Beasley Report, Oct. 2011

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October 2011

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I. CAPITOL OBSERVATIONS

Protection For U.S. conSUmerS in Peril

The battle escalating in our Nation’s Capitol over regulations—the rules that are supposed to help keep our air and water clean, the food and products we buy and use safe, and things like children’s toys from being lethal—is critically important. This is a battle that the American people can’t afford to lose. Big business is pushing a duplicitous narrative about regulation impeding job growth and that’s just flat wrong. The safeguards that are afforded by good and effective regulation have huge benefits for consumers and also for the businesses that follow the rules. The America people should be up in arms over what is happening on the regulatory front, but unfortunately, the message doesn’t seem to be registering. I attribute that to the simple fact that most folks don’t under-stand the regulatory system. In fact, while many believe that the government actually does a good job of regulation, others have accepted the myth that there has been too much regulation.

While our regulatory efforts haven’t been the best, at least there has been regulation that really benefited the public. For example, a recent analysis by Public Citizen showed that five major worker health and safety rules have saved thousands of lives, prevented tens of thousands of injuries, and, in many instances, improved productiv-ity. That’s the message that the media and our elected leaders getting out to the public.

Big business, led by the National Chamber of Commerce, its powerful lobby group, has been spending tremendous sums of money to get members of Congress to accept their “too much regulation” views. As a result, we are already hearing a number of Representatives and Senators parroting the claims that regulation hurts our economy and causes us to lose jobs. But all Americans have seen what happens when the govern-ment fails to do its regulatory duty. Exhibit One is the BP oil spill, with all of the misery it has caused, and it was caused in part by a failure to regulate. We badly need to improve our regulation of the powerful oil industry, but there are others, such as the pharmaceutical and chemical industries, that are poorly regulated, as well. Hopefully, folks are beginning to wake up and will put pressure on members of Congress to support strong, effective and fair regulation.

Federal JUdge rUleS alabama can enForce immigration law

U.S. District Judge Sharon Lovelace Black-burn has now ruled in the cases challeng-ing Alabama’s new immigration law. On September 28th, she rejected broad federal claims of authority and said that Alabama can begin aggressive immigration law enforcement. Judge Blackburn refused in her ruling to block much of Alabama’s far-reaching immigration law from going into effect. The judge’s orders were in response to three related, but separate, lawsuits attempting to block the law. The suits were brought by the U.S. Department of Justice, by bishops of Alabama’s Catholic, Episcopal and United Methodist churches; and by a coalition of civil rights groups, unions and private citizens who said they would be harmed by the law.

The Justice Department argued, as it had over a similar law in Arizona, that immigra-tion law enforcement rests with the federal government, and that states could not set up their own systems. Blackburn disagreed, saying Alabama’s efforts mirrored the federal government’s or at least were com-plementary. She blocked parts of the law in the few areas where she found differ-ences. The group of plaintiffs led by the His-panic Interest Coalition of Alabama said it will seek an emergency delay of Black-burn’s order pending an appeal to the U.S. Court of Appeals for the Eleventh Circuit.

Similar and less far-reaching laws in Arizona, Georgia, Indiana and Utah have been temporarily blocked by the federal courts, but Judge Blackburn found that Ala-bama’s laws were generally consistent with the intent of Congress, which she said gave the states a supporting role in immigration law enforcement.

Judge Blackburn refused to block Ala-bama’s authorizing police to conduct immi-gration checks during routine traffic stops. She left in place Alabama’s sanctions against employers for hiring undocumented workers. She also refused to block a new system requiring public schools to check students’ immigration status upon enroll-ment and endorsed a ban on enforcing con-tracts made with illegal immigrants. Judge Blackburn blocked a measure that sought to bar harboring, transporting, encouraging or renting to illegal immigrants.

Judge Blackburn also blocked parts of the law barring illegal immigrants from seeking work, and she blocked the creation of a new traffic penalty for motorists who stop in the roadway to hire day laborers. She also stopped the state from banning illegal immigrants from enrolling at Alabama col-leges. While the judge refused to block most sections related to business, she did stop a

measure that sought to take away tax bene-fits for employers who paid salaries to illegal immigrants. Also, Judge Blackburn struck down a provision allowing sanctions against employers who had illegal immi-grants on their payroll rather than hiring Americans or legal immigrants.

Judge Blackburn emphasized in her order that blocking a law before it is implemented is a drastic step and requires clear evidence that the Constitution and will of Congress would be violated. In her order dealing with school registration, Judge Blackburn said no individual showed they had been harmed by the law. Since the court’s ruling came down just as this issue was being sent to the printer, I haven’t been able to read the lengthy opinion and have accepted media

IN THIS ISSUEI. Capitol Observations . . . . . . . . . . . . . . . 2

II. A Report On The Gulf Coast Disaster . . . 4

III. Drug Manufacturers Fraud Litigation . . . 8

Iv. Purely Political News & views . . . . . . . . 8

v. Settlement Of The Month . . . . . . . . . . . . 9

vI. Court Watch . . . . . . . . . . . . . . . . . . . . . . 9

vII. The National Scene . . . . . . . . . . . . . . . 10

vIII. The Corporate World . . . . . . . . . . . . . . 12

Ix. Congressional Update . . . . . . . . . . . . . 14

x. Product Liability Update . . . . . . . . . . . 15

xI. Mass Torts Update . . . . . . . . . . . . . . . . 16

xII. Business Litigation . . . . . . . . . . . . . . . . 17

xIII. An Update On Securities Litigation . . . . 19

xIv. Insurance And Finance Update . . . . . . 19

xv. Employment And Flsa Litigation . . . . . . 21

xvI. Predatory Lending . . . . . . . . . . . . . . . . 21

xvII. Premises Liability Update . . . . . . . . . . . 22

xvIII. Workplace Hazards . . . . . . . . . . . . . . . 23

xIx. Transportation . . . . . . . . . . . . . . . . . . . 24

xx. Healthcare Issues . . . . . . . . . . . . . . . . 25

xxI. Environmental Concerns . . . . . . . . . . . 26

xxII. The Consumer Corner . . . . . . . . . . . . . 26

xxvIII. Recalls Update . . . . . . . . . . . . . . . . . . . 29

xxIv. Firm Activities . . . . . . . . . . . . . . . . . . . 35

xxv. Special Recognitions . . . . . . . . . . . . . . 36

xxvI. Favorite Bible verses . . . . . . . . . . . . . . 37

xxvII. Closing Observations . . . . . . . . . . . . . . 38

xxvIII. Parting Words . . . . . . . . . . . . . . . . . . . 39

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reports as being gospel. Hopefully, what I have reported is consistent with the content of the court’s rulings. There is one thing that I can say with certainty, however, and that is, this important issue is far from being resolved. I also realize fully there are many problems that Alabama citizens will have to encounter and deal with because of this law’s passage.

Source: AL.com

alabama iS one oF toP three StateS in the nation For doing bUSineSS

Governor Robert Bentley announced last month that Alabama was selected as one of the top three states in the nation for doing business. Area Development, a leading pub-lication covering site selection and facility planning, announced the results of its 2011 Top States for Doing Business survey. It was no big surprise that Alabama was a top site selection choice. The state also tied for first place in incentive programs and was number two for labor costs and workforce development programs.

According to the results, the top ten states for doing business are Texas, Georgia, Alabama, South Carolina, Indiana, Louisiana, North Carolina, Tennessee, Mississippi, and California. Governor Bentley observed:

Alabama has a unique blend of excel-lent sites, quality infrastructure and incentives that make us attractive to c o m p a n i e s t h r o u g h o u t t h e world. These consultants have recog-n i z e d w h a t w e k n e w a l l along. Alabama is the best place in the nation to open or expand a busi-ness.

Area Development asked a select group of highly-respected location consultants who work with a nationwide client base to name their top-5 state choices in 12 sepa-rate site selection categories. Alabama did well in all categories across the board. According to Alabama Development Office Director Greg Canfield, consultants are cur-rently looking at sites across Alabama for potentially large and smaller projects. A full review of this year’s Top States for Doing Business is presented in the Fall 2011 issue of Area Development and is posted online at http://www.areadevelopment.com/top-states. It’s interesting how our state keeps coming out on top in terms of business site selection in spite of all the so-called “Tort Reformers” claiming no company wants to do business in our state. They can’t have it both ways!

Source: Montgomery Advertiser

alabama coUld gain 15,000 JobS with trade deal

Alabama’s agriculture commissioner believes that the State of Alabama could gain 15,000 jobs if Congress ratifies three free-trade agreements that President Barack Obama will be sending to the U.S. Senate. Commissioner John McMillan is urging support for free-trade agreements with Colombia, Panama and South Korea. Unlike some earlier international trade agreements that resulted in lost jobs for American workers, the Commissioner believes these agreements could mean significant job growth in Alabama.

The U.S. Senate must ratify the agree-ments with a two-thirds margin for them to take effect. As we know all too well, free trade agreements weren’t very popular after passage of the North American Free Trade Agreement in 1994. Millions of U.S. jobs were sent overseas and, with good reason, Congress became hesitant to ratify any new trade agreements with other coun-tries. But I believe the trade agreements mentioned above are needed.

International trade would mean job cre-ation, especially for farmers and agribusi-nesses. Every $1 billion generated from exports means 15,000 jobs, according to Commerce Department figures. Alabama is in a good position to generate another $1 billion in exports, with much of it coming from the state’s $5 billion agriculture indus-try. Many of us forget that agriculture is our state’s largest industry. According to Com-missioner McMillan, about 15% of manufac-turing sector jobs also depend on exports.

The trade agreements would make U.S. products cost less in the countries involved. Alabama products are in demand in those countries, including poultry, wood products, peanuts, pecans and medical sup-plies and equipment. The U.S. previously had a trade agreement with Colombia that expired. Trade to that country dropped during the past ten years because high tariffs made U.S. products too costly. Even so, Colombia is the 21st largest trade partner for the U.S.

Former Agriculture Commissioner Ron Sparks had pushed sale of Alabama prod-ucts to Cuba. Alabama still sells to Cuba and is ready to expand exports to Latin America and the Caribbean. The Port of Alabama in Mobile is very important to the exporting of Alabama agricultural products. Also, the Panama Canal is being widened. That project should be complete in 2014 and it will be good for Alabama’s export business.

Source: Agriculture Department News Release

alabama haS to take the water warS caSe to SUPreme coUrt

Now that a federal appeals court has refused to reconsider its ruling that said metro Atlanta has the legal right to tap Lake Lanier for water, both Alabama and Florida are faced with an extremely serious problem and it’s one that will worsen in time. In mid-September, the U.S. Court of Appeals for the Eleventh Circuit rejected a request from the two states to reconsider the ruling by a three-judge appeals panel handed down earlier in the summer. This case has been in court for a very long time. I had hoped that a reasonable settlement would have been worked out by now, but for some reason that didn’t happen.

In order for Alabama and Florida to pursue the case, they must now appeal to the U.S. Supreme Court. It appears there is no choice but to appeal. Both states contend that Georgia uses too much water, hurting people, seafood and wildlife down-stream. It certainly appears that an appeal to the U.S. Supreme Court is in order. Gov. Robert Bentley has already said Alabama will appeal the decision. Hopefully, the appeal will be successful. If not, both Alabama and Florida residents and busi-nesses will suffer. If nothing else, we should have learned years ago that the availability of water would be a critical issue for all states. Unfortunately, there has been far too little attention paid to this issue in years past by our elected officials.

Source: AL.com

the Federal government mUSt crack down on FraUd

The Obama Administration recently announced a plan to cut $320 billion over ten years from the projected growth of Medicare and Medicaid. The plan would raise premiums and deductibles, lower pay-ments to hospitals and require elderly people who receive care at home to make co-payments. Kathleen Sharp wrote an excellent piece that appeared last month in The New York Times, addressing an issue that without a doubt is very important to U.S. Taxpayers. It was noted in the article that before charging consumers more and eliminating valuable services, the govern-ment should “be much more aggressive in recovering money stolen from these tax-payer-supported programs.” According to some estimates, health care fraud is a $250 billion-a-year industry. Significantly, about $100 billion of that is said to be stolen from Medicare, the health care program for the elderly, and Medicaid, the insurance program for the poor and disabled.


It was pointed out that there are many ways to defraud taxpayers. For example, a hospital chain can buy drugs at a steep dis-count and then bill Medicare for high sticker prices. Doctors can bill for proce-dures that never happened, or for drugs that were supplied to them by pharmaceu-tical companies free of charge, or pharma-ceutical companies can promote a drug for risky, unapproved uses. There is also massive cheating by drug manufacturers in the Medicaid program.

We have seen first hand, in our firm’s han-dling of actual cases, how a number of drug companies have cheated the state Medicaid programs. The Times’ article mentioned how state Attorneys General have gone after drug companies that were cheating the Medicaid program. This type cheating is being litigated in what has become known as the “AWP litigation.” Drug companies, over a period of years, over-changed for drugs in the Medicaid programs. The com-panies would furnish false prices to the states for reimbursement purposes and the states would act on the false information and pay out excessive amounts. This has cost the states billions of dollars. Alabama was one of the first states to get involved in this litigation and our firm has been involved since the beginning.

Source: New York Times

albert brewer right PerSon to lead conStitUtional reviSion commiSSion

Former Gov. Albert Brewer has been elected to head up the Constitutional Revi-sion Commission. He was chosen by Gov. Robert Bentley, top-ranking legislators, and other folks serving on the Commission to chair the group. In my opinion, they couldn’t have chosen a better or more qual-ified person. The Commission will propose piece-by-piece changes to Alabama’s Consti-tution. The 16-member commission was created by a joint resolution introduced by the Senate Pro Tem Del Marsh and passed by the Legislature in April. Members held their first working meeting on September 21st and will meet again on October 5th and 26th. While I favor a constitutional conven-tion approach, I realize the commission concept is better than nothing.

Alabama’s constitution, excluding its over 800 amendments, is divided into 18 arti-cles. The commission, over three years, will suggest changes to 11 of those articles. Any change suggested by the commission could be accepted or rejected by the full Legisla-ture. Any changes approved by the lawmak-ers would then face acceptance or rejection by state voters. Unfortunately, the commis-sion won’t address Article 11, which deals

with taxation. Neither will they make any changes to Article 6 on the judicial depart-ment, which voters revised in 1973.

Under a schedule set out by the joint res-olution and adopted by commission members, the group could recommend to the Legislature changes to as many as five articles by February. Those include:

• Article12,oncorporations;

• Article13,onbanking;

• Article3,ondistributionofpowers;

• Article9,onrepresentation,and

• Article4,onthelegislativedepartment.

Without any doubt, a change to Article 4, which strictly limits the power of county governments, such as the power to assess and collect taxes, is badly needed. Jefferson County’s current fiscal problems are a prime example of why this change is needed. Commission members elected state Rep. Paul DeMarco, R-Homewood, to be vice chairman. Paul hopes the group will be able to propose changes to the constitution that could win the support of Legislators and voters alike. Hopefully, the Commission will resist the opposition to change by certain special interest groups and be able to do its job!

II. A REPORT ON THE GULF COAST DISASTER

an UPdate on the bP oil SPill litigation

I had intended to write a detailed update this month on the BP oil spill, but I didn’t have to do it. That was because Parker Miller, a lawyer in our firm, gave a presenta-tion to a group of Georgia lawyers in Atlanta last month, and it was exactly what was needed for this issue. Parker has been working virtually full time on oil spill-related claims for the past year. With Park-er’s permission, I am including his paper in this issue for the edification of our readers. Parker did a very good job of giving both a historical perspective, as well as laying out projections for the future.

Seminar Paper Presented by J. Parker Miller

I. Introduction—Technology vs. Human Error

By all accounts, the Deepwater Horizon oil drilling rig was a magnifi-cent creation. It was enormous. Costing about $365 million to build, it was designed to drill some of the deepest wells ever drilled. It rose 378 feet from top to bottom, and if you can believe it, was able to automatically position itself directly over the Macondo well drilling site using satel-lite positioning and advanced com-p u t e r t e c h n o l o g y. I t w a s a technological marvel, and the pride of Transocean’s fleet.

II. What Happened—The Spill was Devas-tating

But no matter how advanced the tech-nology was on that drilling rig—it could not make up for the decisions humans made aboard the rig. You see, for weeks, the Deepwater Horizon oil rig was running weeks behind on its work. It was costing BP, who was leasing the vessel, millions every day it was late. It was nearing completion of its responsibility on April 20, 2010, and only had to go through a couple more steps to safely insure completion.

Instead of doing the right thing and undertaking fundamental industry-accepted principles in completing the well—such as accounting for methane gas in the well, taking the time to ensure the cementing job was com-pleted, accounting for intense pressure variations in the well, and so on—BP cut corners at almost every critical part of the safety process. Around 9:50 PM on April 20, 2010, after ignoring obvious pressure and gas readings, dan-gerous gas shot up the riser that con-nects the drilling rig to the well, and the rig exploded. Witness reports say that you could see the explosion from almost 35 miles away. Eleven people were burned alive and countless others were hurt. The rig burned out of control for two days, sunk into the ocean, and set off what is most assur-edly the largest environmental disaster in United States history. In total, 200 million gallons of oil spilled into the Gulf over an 87 day stretch, BP dumped 1.8 million gallons of toxic chemical dispersant to cover up the oil, 85,000 square miles of fishing terri-tory was closed at the peak of the spill,


and over 600 miles of coastline was oiled. Businesses and families were devastated from the disaster—all because profits were more important than people.

III. Beasley Allen’s Involvement

A significant amount of litigation has ensued since the Deepwater Horizon oil spill occurred. Beasley Allen envi-ronmental Section Head Rhon Jones, along with 16 other lawyers selected by the court in Louisiana, was selected by the Court in Louisiana to be on the steering committee. I am second chair to Beasley Allen’s steering committee position. In addition, we have two other lawyers that are working full time in New Orleans—Chris Boutwell is working hard with the MDL’s envi-ronmental impacts team. John Tomlin-son , another a t tor ney in our environmental section, is involved with the MDL’s economic damages commit-tee, which is tasked with assessing the total economic damage to folks along the Gulf Coast. In Montgomery, our firm has about 20 lawyers working around the clock to assist clients along the Gulf Coast who are suffering as a result of this disaster.

IV. Litigation Status

The MDL formed in the fall of 2010, and since that time, a total of 20 million pages of documents have been produced. Since January, lawyers for the Plaintiffs have taken 188 deposi-tions, and that number will grow by another 44 over the next couple of months. There are roughly 5,600 exhibits to depositions. And imagine guys—this is just for the first phase of the litigation. There are two other phases of the litigation that have really not even started yet. One thing is for sure though—we believe the facts are going to show systematic cost cutting by BP and others that led directly to the explosion that killed so many people and ruined so many businesses.

Given how massive this case is and the complexity that is involved, you, and the Defendants as well, would proba-bly think that I was crazy if I told you when all of this started that the Plain-tiffs would be trying a case a year and a half after the disaster occurred. I am pleased to report that is exactly what is going to happen. On February 27, 2012, trial begins and the Plaintiffs will be ready. From what I hear, this case could be the quickest “incident to trial” case of this magnitude in history. And

in these cases, nothing is more effec-tive than a Steering Committee that is unified and is constantly pushing the Defendants. I am pleased to report that is exactly what is happening, and that will continue to happen through trial.

V. The Trial

I talked a little bit about Phase One of the oil spill trial that is set to begin on February 27, 2012. Phase One will cover the actual blowout liability. In other words, not only will it determine who is at fault, but it will also appor-tion fault amongst all of the Defen-dants. Transocean actually did us a favor when it filed an action to limit its liability as a vessel owner last summer. In doing so, it has tendered in all of the other Defendants to determine who is actually at fault, by how much, and whether Transocean can limit its liabil-ity under maritime law as a vessel owner.

In the end, we believe BP is going to bear a significant amount of the responsibility, but we also believe that Transocean is not going to be able to limit its liability because it knew about the problems and risks aboard that rig. There will be other companies that will bear responsibility as well, and all of that will be worked out in a couple of months when trial begins.

The Phase Two trial will take place after the Phase One portion is com-pleted. Phase Two is going to cover how much oil actually spilled into the Gulf. In addition, Phase Two will focus on the conduct of the parties in trying to stop the oil from gushing. Discovery is just getting kicked off for the Phase Two portion of the trial. When it comes to quantifying how much oil was actu-ally spilled, Phase Two will be very important to the federal government and state claims because of civil penal-ties.

Phase Three is going to cover efforts to contain the oil, like the spraying of dis-persant, controlled burns, and the use of boom. I like to think of this as the “everything else” trial.

VI. Important Rulings and Federal Inves-tigation Status

I also want to update you on some of the rulings from the Court. This case is mainly governed by two sets of laws: the Oil Pollution Act of 1990 (which was a federal statute that was con-cocted back in 1990 after the Exxon Valdez disaster), and general maritime

law (which is federal common law that governs cases at sea). The Defendants moved to dismiss the Plaintiffs’ mari-time law claims because they said that the Oil Pollution Act displaced mari-time law claims. And, because the Oil Pollution Act does not provide for punitive damages and because it dis-places maritime law (which provides for punitive damages), the Defendants argued in their motion to dismiss that the Plaintiffs were not entitled to puni-tive damages.

The Court disagreed with the Defen-dants. First, Judge Barbier said that the Plaintiffs get to keep their maritime law claims. Second, he ruled that the Plaintiffs would have their punitive damage claims as well. I think Judge Barbier got it right here—plaintiffs have had these remedies for decades, and it’s hard to fathom that a statute that constantly tries to save maritime law claims would bar them. Third, Judge Barbier said that a strict proxi-mate cause standard for proving damages would not apply. Instead, he said it would be a “due to” or “resulting from” the oil spill standard. These were significant victories for us, and are going to increase the pressure on BP and the other Defendants as we move further.

The Defendants also argued that Judge Barbier would have to analyze whether each Plaintiff met presentment under the Oil Pollution Act. The presentment requirement is a legal technicality similar to what you would see under the Federal Tort Claims Act where the Plaintiff has to present his claim first to a designated party before he could sue. If the Defendants had their way—they would have Judge Barbier look at over 125,000 claims that are filed in the MDL to figure out whether all of them have satisfied presentment. The effect of this would be to bog down the liti-gation for years. Thankfully, Judge Barbier said no to the Defendants—ensuring that the cases would progress forward quickly and efficiently.

There have also been some significant developments in the many federal and state studies. Just yesterday, a federal report was released that said the Defendants ignored serious problems aboard the rig that led to the explo-sion. In fact, the federal report—which was not the first of its kind since the explosion occurred—pointed the finger directly at the people that were calling the shots aboard the rig. Studies continue to roll in that say the same


thing. We just heard another report where BP withheld critical information from the Federal Government about dangerous methane deposits around the well. You couple this with a scath-ing complaint filed by Halliburton in Texas Court accusing their business partner BP of intentionally withhold-ing important information about the well, and what you find is a very unsta-ble situation for BP and others making the decisions on that rig.

VII. Victims Of The Spill

You can only imagine what folks along the Gulf Coast have been through. As you probably know, BP set up the Gulf Coast Claims Facility and selected Kenneth Feinberg as the claims czar to man the facility. From my experience, the GCCF is operating to help BP with its liability at the grave expense of folks on the Gulf Coast. They are delaying and stalling legitimate claims filed by folks that need those funds to pay their bills and keep their businesses open. Predictably, what we are starting to see are desperate claimants willing to take any final settlement—no matter how much it under-compensates them—to pay their bills. We are trying to help our clients not only cope with the disaster, but to deal with the problems the GCCF creates. I can tell you that we are doing everything we can to protect their rights, and the PSC has filed a motion in Eastern District of Louisiana requesting Judge Barbier appoint a special master to supervise the GCCF. The GCCF should be paying claims quickly and efficiently, as the Oil Pollution Act requires. Instead, it is delaying payment until folks become desperate and are forced to accept a cheap settlement. I am confident that the Court will grant our motion, and that folks will get their money in a prompt fashion.

BP keeps spending millions of dollars in advertising to convince everyone that things are fine on the Gulf Coast and that the oil is gone. But as Tropical Storm Lee revealed when it came ashore—the oil is not gone. Tar balls continue to wash up on shore. You may have read reports about the hundreds of dolphins that have washed ashore, many of which were coated in oil. You may have also read about the large plumes of oil that have collected around the wellhead and just off the coast. A report also came out a couple of weeks ago about new oil that may be collecting around the wellhead—which is very disturbing if true. My

clients tell me that there are disturbing trends happening right now in the shrimp, fish and crab populations that they have never seen before. There are hundreds, if not thousands, of cleanup workers that are now very sick because they were not given the appropriate protective gear. As you can probably tell, it is baffling how much heartache and damage this disaster has caused.

VIII. Closing Remarks

In closing, I am young, and I haven’t been at Beasley Allen a long time. But one thing I have learned very early on—and it is something that I think makes Beasley Allen stand out in these massive cases—is that we think it is so important that your clients have direct communications with lawyers, not sec-retaries and paralegals. Ultimately, you are never going to have a successful attorney-client relationship unless you have lawyers talking to clients.

As we progress towards trial, there are a lot of unresolved claims still out there. Keep in mind that folks and busi-nesses don’t have to be on the Gulf Coast in order to have a claim. For example, a Georgia seafood processor that relies entirely on Gulf seafood could have a valid claim under the law. Our firm is still talking to new claim-ants almost every day. These claimants include restaurants, fishermen, hotels, people that were injured cleaning up the oil, and others across the Gulf.

If you have any questions about any of the matters discussed by Parker, or about anything else related to the oil spill litiga-tion, you can contact him at 1-800-898-2034 or by email at [email protected].

oil SPill victimS can Seek PUnitive damageS and maritime law remedieS

In a major turn of events, Judge Carl Barbier ruled recently that Plaintiffs in the Deepwater Horizon oil spill litigation will be allowed to seek punitive damages and maritime law remedies against BP and other companies responsible for the catastrophic explosion and oil spill that occurred in April 2010. Previously, BP had filed a motion in court seeking to dismiss thousands of eco-nomic damage claims pending in the Louisi-ana Court.

To determine whether certain claims should remain in the litigation, Judge Barbier had to wade through the Oil Pollu-tion Act of 1990, the Outer Continental

Shelf Lands Act, federal maritime law, as well as state laws. Lawyers defending BP and other Defendants argued that oil spill victims could not seek punitive damages because the federal Oil Pollution Act was silent, and because the Oil Pollution Act dis-places federal maritime law, which provides for punitive damages.

Judge Barbier disagreed with the Defen-dants and ruled that fishermen and those with direct physical property damage from the oil spill can pursue punitive damages against the Defendants, as traditional Plain-tiffs have been able to do for years under maritime law. Moreover, Judge Barbier determined that the case properly falls within maritime law and the Outer Conti-nental Shelf Lands Act. Maritime law allows for claims of negligence, gross negligence and strict liability for manufacturing or design defects.

The Defendants also argued in their briefs that claims should be limited to only those that meet a strict “proximate cause” requirement. Again, Judge Barbier ruled for the Plaintiffs, stating that

[t]he Court notes that OPA does not expressly require ‘proximate cause,’ but rather only that the loss is ‘due to’ or ‘resulting from’ the oil spill. OPA causation may lie somewhere between traditional ‘proximate cause’ and simple ‘but for’ causation.

The Court did rule, however, that state law claims were preempted by maritime law. But because the Oil Pollution Act greatly expands the eligibility of Claimants to pursue economic damages resulting from an oil spill, it’s unlikely that the Plain-tiffs will be adversely impacted by the ruling. I believe the Court’s ruling puts sub-stantial pressure on BP and others responsi-ble for the Deepwater Horizon’s demise and subsequent oil spill. Currently, there are well over 100,000 individual and business claims in the litigation. In addition, federal, state and local government claims remain active in the litigation. On behalf of our clients, we were extremely well satisfied with the Court’s order. If you would like more information on the order, contact Rhon Jones or Parker Miller at 1-800-898-2034 or by email at [email protected] or [email protected]. If these lawyers are unavailable, you can contact Sandra Walters at 1-800-898-2034 and she will put you in touch with a lawyer who will be familiar with the BP litigation.

Source: The Times-Picayune


Final rePort From the government PUtS moSt oF the blame on bP

Even though Parker’s seminar paper covers the Gulf Oil Spill extremely well, I do want to mention the final report by the federal government. The United States has now put the lion’s share of blame for the country’s biggest-ever offshore oil spill on BP. The government issued its final assess-ment of last year’s Gulf disaster in mid-Sep-tember. This report could play a huge role in BP’s decision-making as it relates to set-tlement. It could also set the stage for crimi-nal charges. The Coast Guard and the offshore oil regulator said in the report that BP was solely to blame for 21 of 35 contrib-uting causes to the Macondo well blow-out that led to the leak, and shared blame for eight more. That was not good news for BP.

After the most definitive look yet at the disaster, investigators said BP focused exces-sively on containing costs and speeding up operations, and made a series of decisions that complicated cementing operations, which they said were the central cause of the disaster. While the findings were broadly in line with several previous investigations, this report offered the most comprehensive look at the government’s official view on the causes of the Gulf oil spill, including analysis of the recovered blowout preventer and violations of federal regulations by the companies involved with the well. It was significant that the report said: “BP’s cost or time saving decisions without considering contingencies and mitigation were contrib-uting causes of the Macondo blowout.”

BP took a most interesting position when it said it agreed “with the report’s core con-clusion—consistent with every other offi-cial investigation—that the Deepwater Horizon accident was the result of multiple causes, involving multiple parties, including Transocean and Halliburton.” The report highlighted a litany of errors that preceded last year’s explosion on the BP-leased Deep-water Horizon rig that killed 11 workers and poured more than 4 million barrels of oil from the well into the Gulf. The other companies sharing the blame to some degree all seemed pleased that BP was hit the hardest in the report.

The report said that BP failed to commu-nicate decisions regarding the cementing that increased operational risks to Trans-ocean, the contractor that owned and oper-ated Deepwater Horizon. The cement’s failure to maintain the integrity of the well was the central cause of the blowout. BP worked with Halliburton to design the cement job. Because the well was over budget, “BP sought to minimize these losses by reducing the volume of cement it pumped into the well” and a key analysis

recommended by a Halliburton engineer was skipped, according to the report.

As we have previously reported, the Justice Department has already sued the well’s owners, BP, Anadarko Petroleum Corp and Mitsui & Co, as well as Trans-ocean. These civil claims are now before the federal court in New Orleans, where a trial allocating blame for the spill will begin in February. Many believe the report increases the likelihood that BP, Transocean, and Halliburton will face criminal charges for their roles in causing the Gulf oil spill. That is the belief of David Uhlmann, a professor at University of Michigan Law School, who formerly was the top environ-mental crimes prosecutor for the Justice Department. In June 2010, Attorney General Eric Holder announced that the Justice Department had opened criminal and civil investigations into the causes of the disaster.

The findings from the report could cause BP to put over $30 billion on the table to settle all of the claims against the giant oil company, according to a story by Tom Bergin. The joint Coast Guard and Bureau of Ocean Energy Management, Regulation and Enforcement probe into the Macondo well blow-out resulted in this report. It cer-tainly appears that this report was even more damning of BP’s behavior than the Presidential panel’s findings, which were issued in January and February. But each report also highlighted mistakes made by BP’s contractors, driller Transocean and cement specialist Halliburton.

BP has said it estimates the cost of the oil spill will end up at around $42 billion, including all environmental costs, compen-sation, legal claims and fines. I believe the total payment from BP—whether by court action or settlement—will be much greater. While BP has allocated $3.5 billion for Clean Water Act fines, if the oil giant is found to have been grossly negligent, which is very likely, it will be fined much more than $21 billion.

Even before the conclusion of the highly-critical official investigations, the govern-ment indicated it would push hard for the higher level of fines associated with gross negligence. Thus far nothing has happened to change that position. In my opinion, a huge fine is a certainty and I believe BP knows it. BP’s provision for payouts also excluded punitive damages, but Judge Carl Barbier has now ruled these damages can be claimed. That ruling is very important and will result in BP paying much more in damages than it “wants to pay.”

Source: Insurance Journal

bP oil not degrading on gUlF Floor

Researchers believe the tar balls that washed on to Gulf of Mexico beaches by Tropical Storm Lee prove that oil left over from the BP Oil Spill isn’t breaking down as quickly as BP and others want the public to believe. The study by Auburn University shows the tar that hit Alabama beaches in September “appeared relatively fresh and unchanged from when oil first poured into the Gulf during the spill.” The study con-cluded that mats of oil are still submerged on the seabed, and it says the material could pose a long-term threat to coastal ecosys-tems. BP hasn’t commented on the study to my knowledge. Instead, the company is cleaning the beaches and doing so with as little media attention as possible.

A separate study by researchers from LSU confirms that new oil being found in the beaches in several states came from BP’s well. Based on what we have learned, it’s almost certain that we have not seen the last of oil coming ashore from this spill. Also, we must remember that there was also a huge quality of chemicals pumped into the Gulf waters by BP and that could wind up being a more serious problem than the oil.

Source: Associated Press

legiSlation woUld FUnnel FineS Paid by bP to gUlF StateS

A key Senate committee has approved legislation, introduced by Sen. Mary Landrieu, a Democrat from Louisiana, that will direct a significant portion of federal fines paid by BP for the Deepwater Horizon oil spill to Mississippi and other Gulf Coast states. The Senate Environment and Public Works Committee reported S.1400, the Restore the Gulf Coast Act, out of commit-tee. The legislation now goes to the floor for consideration by the full Senate. Sen. Thad Cochran, a Mississippi Republican and a co-sponsor of the bill, had this to say:

The Deepwater Horizon tragedy will continue to affect Gulf Coast states for some time. This carefully negoti-ated measure is intended to ensure that Mississippi and the other states have resources to overcome those eco-logical and economic challenges. Communities on the Gulf Coast were directly impacted by the Deepwater Horizon oil spill, and the Clean Water Act fines that will be assessed should go to help those communities. Members across the Gulf Coast devel-oped a balanced solution. I urge Sena-


tors on the committee to approve this important legislation.

The Senate bill would establish the Gulf Coast Restoration Fund to be made up of 80% of all civil penalties paid by BP and other parties held responsible for the April 2010 Deepwater Horizon explosion and oil spill. The fund would be distributed to Alabama, Mississippi, Louisiana, Florida and Texas. The remaining 20% of the fines assessed for Clean Water Act violations would revert to the U.S. Treasury. The bill follows the recommendations of Gulf Coast restoration groups following the April 2010 Deepwater Horizon tragedy.


III. DRUG MANUFACTURERS FRAUD LITIGATION

JUdge awardS $38.2 million to the State oF miSSiSSiPPi

Judge Thomas L. Zebert found in favor of the State of Mississippi in its lawsuit against pharmaceutical company Sandoz, Inc. in the Chancery Court of Rankin County, Miss., a n d awa rd e d $ 3 8 , 1 9 1 , 4 2 7 . 0 0 i n damages. The case, referred to as Mississippi Medicaid Pharmaceutical Average Whole-sale Price Litigation involves allegations that Sandoz caused to be published inflated “Average Wholesale Prices” for the drugs manufactured by Sandoz, which resulted in the Mississippi Division of Medicaid reim-bursing pharmacies at an inflated price, in violation of the Mississippi Consumer Pro-tection Act; and the Mississippi Medicaid Fraud Control Act. Common law fraud was also alleged.

Mississippi Attorney General Jim Hood authorized the filing of these lawsuits against the pharmaceutical companies. Dee Miles and Clay Barnett, lawyers in our firm, along with former Mississippi Governor Ronnie Musgrove from Copeland, Cook, Taylor and Bush, located in Jackson, tried the case for three weeks in April. At the conclusion of the trial, Judge Zebert took the case under advisement and he now has made his ruling.

Judge Zebert ruled in favor of the State of Mississippi on the Consumer Protection Act and common law fraud claims. Mississippi was awarded $23,661,618.00 in compensa-tory damages and $11,830,809.00 in puni-tive damages. The judge also awarded $2,699,000.00 in civil penalties, for a total

judgment of $38,191,427.00. In addition, Judge Zebert entered an injunction against Sandoz prohibiting the company from using false AWPs when reporting drug prices to Mississippi, which is very important.

This is a huge victory for the State of Mis-sissippi for a number of reasons, not the least of which is, this is the first of some 54 cases Mississippi has filed against the phar-maceutical manufacturers to go to trial. A win for the State in the first case is huge. Pharmaceutical companies overcharging for drugs to the state’s Medicaid program—a program designed to assist the State’s neediest citizens—is egregious conduct. We had reached settlements previously with several other drug companies which made this trial, in effect, a benchmark trial. Also assisting in the preparation and trial of the case were Roman Shaul, Chad Stewart and Alison Douillard, all lawyers from our firm.

other State awP SettlementS

We were in settlement negotiations at press time on behalf of several of the states we represent in the AWP litigation. To date, we have settled state claims with a number of drug manufacturers for the states of Mis-sissippi, Hawaii, Alaska, Kansas, Utah and South Carolina bringing in for these states collectively an amount in excess of $300 million. In Alabama, settlements totaling approximately $130 million have been reached so far. In addition to the other states, we are still in settlement negations with several drug companies in Alabama on behalf of the state’s Medicaid program.

IV. PURELY POLITICAL NEWS & VIEWS

hoStile takeover oF the national rePUblican Party

From all accounts, it appears the Tea Party has literally taken over the National Republican Party and did it without having to even break a sweat. In fact, it has been so easy that even the Koch brothers, who got the so-called movement started, had to be surprised. All of the candidates who are seeking the GOP nomination for President have been forced to retreat from prior posi-tions taken on such issues as climate change, the economy, healthcare and immi-gration and now carry the Tea Party banner. Using the Tea Party, the hostile takeover of

the GOP was engineered largely by the oil and pharmaceutical industries.

The takeover led by Koch Industries, the conglomerate owned by Charles and David Koch, was so carefully planned and carried out that the old guard in the party was unable to stop it. They simply turned over the reins of the party to politicians like Rep. Alan Cantor who is against everything that most folks in America are for. For example, he wants to abolish the Environ-mental Protection Agency and pretty much do away with any type effective regulation of Corporate America.

As mentioned above, this takeover didn’t just happen without prior planning. A great deal of work had been done by oper-atives of the politically powerful compa-nies in Corporate America. For example, the think tanks funded by the Koch broth-ers have been hard at work for years, attempting to change public opinion on such things as climate change and tax cuts for the super rich.

An event that hasn’t gotten the media attention it deserved involved the U.S. Supreme Court. The High Court ruled in its Citizens United decision that a corporation had the same constitutional rights as a human being. Many believe that, as a result of this decision, the political climate in America changed overnight. A by-product of that illogical decision has been a total corporate takeover of politics on the national level. It’s impossible to understand how a corporation can have the privileges of citizens, but none of the obligations that accompany that privilege. I would like to hear a constitutional expert explain how money spent by a corporation can be equated with speech.

The bottom line is that the Tea Party now controls the GOP. As a result, the Presi-dential candidate who survives the prima-ries and the convention will have had to bow and scrape to the Tea Party bosses in order to become the nominee. Having a nominee in the general election controlled by the Koch brothers and the Tea Party is a scary thought for working men and women, small business owners, seniors and minorities. But for the super rich, it’s just more good news.


V. SETTLEMENT OF THE MONTH

the Ford Settlement

Our firm recently settled two wrongful death claims against Ford Motor Co. The case involving the claims was brought on behalf of the estates of Jacob Tolver and Henix Hardy, who were both killed in a single vehicle rollover crash involving a 1992 4 door 4x2 Ford Explorer. The owner and driver of the vehicle, Mr. Hardy, was driving about 45 mph when a deer darted out from the right side of the road. He hit his brakes and performed an evasive maneuver in an attempt to avoid the deer by steering left. As he steered to avoid the deer, the Explorer went into a clockwise yaw and rolled over. Both Mr. Hardy, the driver, and Mr. Jacob Tolver, a front seat pas-senger, were ejected and killed. At the time the Explorer rolled over, it was going approximately 27 mph.

Ford Motor Co. has had a policy in place since 1973 that vehicles should not rollover in an emergency maneuver on dry flat pave-ment. In 1986, Ford sent one of its most influential executives, Ms. Helen Petrauskas, to testify before Congress about the high rate of rollovers that were occurring in Ford Explorers. Ms. Petrauskas, in response to intense questioning, confirmed that Ford’s internal standard was that a vehicle should not roll over even in severe handling maneuvers.

Ford internal documents revealed that Ford knew before the first Ford Explorer ever left the assembly line that this vehicle would roll over on dry flat pavement in emergency avoidance maneuvers. Ford engineers, prior to the sale of this vehicle, ultimately concluded that there were four fixes required to make the vehicle more stable. The target date for this Explorer to hit the market was February 1990. Since the fixes required to make this vehicle more stable could not be implemented by that date, Ford chose to take the risk and sell it anyway.

When other employees at Ford ques-tioned that decision, management decided to go forward and took the position that they would assume the risk. In this case, Ford gambled and as a result Mr. Hardy and Mr. Tolver died. Numerous others have also died because early model Ford Explorers had a propensity to roll over on dry flat pavement during emergency avoidance maneuvers. Incidentally, the early model Ford Explorers, such as the 1992 model

involved in this case, became the best selling SUV in the world. LaBarron Boone and Greg Allen from our firm handled this case and they did a very good job for the two families.

Litigation and the court system have brought about Ford making needed changes in the Explorer. It’s my belief that our firm, along with others, were able to get Ford’s attention. In any event, something definitely caused Ford to make significant design changes for the Explorer. The new Ford Explorers are wider and lower to the ground, and as a result, less prone to roll over than earlier models. If you need more information relating to the rollover poten-tial of the Ford Explorers, or any other similar vehicles on the road, you can contact Greg Allen or LaBarron Boone at 1-800-898-2034 or by email at [email protected] or LaBarron.Boone@ beasleyallen.com.

VI. COURT WATCH

alabama’S new chieF JUStice will rUn For FUll Six-year term in 2012

Alabama’s Chief Justice Chuck Malone has announced that he will seek a full six-year term in office. The new Chief Justice, who served as a Circuit Court judge in Tus-caloosa from 2000 until he became Chief of Staff for Gov. Robert Bentley in January of this year, will run in the 2012 election. A top priority for the Chief Justice in his new role will be addressing the finances of a judicial system badly hurt by state budget cuts. Chief Justice Malone said in a state-ment:

Many of the challenges we face in the judicial system can be resolved with a fiscally conservative budgetary approach. We can cut unnecessary expenses and budget conservatively without sacrificing justice.

The Chief Justice made a major announcement that was good news for Ala-bama’s court system. He said a full slate of jury-trial weeks will be reinstated statewide. In May, Sue Bell Cobb, the former Chief Justice, canceled about half of the weeks set aside for jury trials in the state, citing several state budget cuts to the trial court system. Circuit judges and court officials across the state were greatly concerned that the reduction would slow the adminis-tration of justice, especially in criminal

cases, and would hurt those who had civil claims awaiting trial.

JUStice lyn StUart will Seek re-election to the SUPreme coUrt

Alabama Supreme Court Associate Justice Lyn Stuart has announced that she intends to run for re-election. Justice Stuart, a Republican from Baldwin County, has served on the High Court for two terms. Her first six-year term on the Court began in 2000 and she was re-elected in 2006. Her current term expires in January 2013. Justice Stuart served as a circuit judge in Baldwin County prior to coming to the Supreme Court.

JUdge tommy bryan to rUn For SUPreme coUrt

Alabama Court of Civil Appeals Judge Tommy Bryan, a Montgomery Republican, announced last month that he too is running for a spot on the Alabama Supreme Court. Judge Bryan announced his inten-tions on September 21st at the state’s judi-cial building. The Crenshaw County native is currently serving his second term on the civil appeals court. He will run for the seat held by Justice Thomas Woodall, who is not running for another term.

Judge Bryan has served as a special sitting state Supreme Court justice and was a staff attorney for the Alabama Court of Criminal Appeals. His experience includes serving as Assistant Attorney General in the environ-mental department. Judge Bryan is a former member of the State Republican Executive Committee and the Montgomery County Republican Executive Committee, having served as president of the Montgomery Republican Club from 2002 to 2003.

lawSUit contendS Political contribUtionS Swayed JUdge’S deciSion

An interesting lawsuit has been filed against State Farm in Tennessee. The case arises out of a $1 billion class action lawsuit, involving some most serious charges against a judge. It’s alleged in the lawsuit that State Farm and its lawyers got an Illi-nois Supreme Court Justice elected by pumping $2.5 to $4 million into his cam-paign through PACs. It’s further alleged that six months later the judge cast a deciding vote to reverse on appeal a $1.05 billion class action consumer fraud judgment against State Farm involving bogus replace-ment parts for wrecked cars.


The Plaintiffs in the case seek to have the reversal vacated and the original judgment restored to correct a judgment allegedly obtained “through fraud and concealment.” The Plaintiffs contend that “State Farm’s extraordinary financial and political support for the Justice’s 2004 campaign created a constitutionally-unacceptable risk of bias such that his participation and vote to reverse the $1.05 billion judgment deprived the Plaintiffs of their ‘due process rights.’” The Plaintiffs had previously requested the judge to recuse himself from the case, but that request was refused. Gorden Bell, a lawyer from Nashville, and former U.S. Senator Fred Thompson are rep-resenting the Plaintiffs in this case. They have made some very serious charges against both State Farm and a judge in the case. It will be most interesting to see how all of this plays out.

Source: Knoxnews.com

alabama SUPreme coUrt SayS woman can SUe over FetUS death

In a decision handed down last month, the Alabama Supreme Court ruled that a woman can sue over the death of her fetus. The wrongful death claim arose out of a car wreck in 2007 and involved the death of an unborn child who couldn’t have lived outside the womb. This decision expands the legal rights for people to sue over the death of fetuses before they are viable. The car in which the Plaintiff was riding was involved in a crash in 2007 and a lawsuit was filed that involved a wrongful death claim. The Plaintiff was badly injured and suffered a miscarriage. She settled her indi-vidual claims, but the trial judge dismissed her wrongful death claim against one of the drivers last year. The judge said the Plaintiff couldn’t sue because her unborn child couldn’t live outside the womb. The jus-tices overturned that ruling and in a case of first impression allowed the case to go forward.


VII. THE NATIONAL SCENE

the texaS vaccine order by gov. Perry waS wrong

Four years ago, Gov. Rick Perry signed an order requiring Texas girls to be vaccinated against the human papilloma virus. Gov.

Perry said he was trying to “curb cancer,” but many are questioning his real motiva-tions. In any event, the Texas Legislature put a stop to the measure and they did the right thing. But it now appears that Gov. Perry, the Presidential candidate, hasn’t backed down from his stance that girls should be vacci-nated against the virus. He now claims it wasn’t really a mandate, saying he included the right for parents to opt out of the vacci-nations. Minnesota Rep. Michele Bachmann, who also wants to be President, jumped her Texas opponent, saying: “To have innocent little 12-year-old girls be forced to have a government injection through an executive order is just flat out wrong.”

Rep. Bachmann also said that Merck & Co., the company that makes the vaccine, employed Mike Toomey, Perry’s former chief of staff, as a lobbyist in Texas, and that the drug company had donated financially to Gov. Perry’s campaigns. These are two factors that will result in this issue not fading away. The recent exchanges mirror the criticism Gov. Perry took in 2007. It all began when Merck, which won approval for the first HPV vaccine a year earlier, was spending millions lobbying state legislators to require girls to be vaccinated with the new product, Gardisil. The company also was donating money to a national organiza-tion called Women in Government, which in Texas was led by state Rep. Dianne White Delisi, who chaired the House public health committee. She was also the mother-in-law of Perry’s chief of staff at the time, Deirdre Delisi—the same woman who now is one of Perry’s top Presidential campaign aides.

Gov. Perry signed an executive order on February 2, 2007, requiring the vaccination. It surprised even his allies who acknowl-edged that it was out of step with his so-called limited-government stance. It was reported that Texas parents didn’t like the idea of the government telling pre-adoles-cents they had to be vaccinated against a sexually transmitted disease. A statewide requirement for the three-shot vaccine in Texas at a cost of $360 per vaccine, could have earned millions for Merck, at the time the only company with a HPV vaccine on the market. GlaxoSmithKline’s Cervarix was approved in 2009.

It’s my opinion that the serious adverse effects of Gardisil are much more important to the public than Gov. Perry’s ill-advised executive order. Over 23,000 adverse events have been reported, many of these serious injuries resulting in young girls developing chronic and debilitating condi-tions such as multiple sclerosis, rheumatoid arthritis, lupus, and Guillain Bar re Syn-drome. Our firm is representing a number of young girls who have experienced serious health problems, all of which we are convinced resulted from the Gardasil

vaccine. Moreover, though Gardasil has been marketed for the prevention of cervi-cal cancer, the vaccine will not prevent cer-vical cancer unless the effectiveness of the vaccine lasts for the lifetime of the girl. The vaccine has not been proven to last more than five years. Many scientists believe that Gardasil will neither prevent cervical cancer nor reduce the rate of cervical cancer in the U.S. Governor Perry’s comment that he erred on the side of “life” when attempting to mandate Gardasil vac-cination appears to be a glib answer from a politician—not one based on scientific data. If you want more information on Gardasil, contact Leigh O’Dell, a lawyer in our Mass Torts Section, at 1-800-898-2034 or by email at [email protected].

U.S. weather diSaSterS have coSt billionS in 2011

As we know, all too well, the U.S. has been hit very hard by weather disasters over the past year. A record ten weather disasters around the country have each caused at least $1 billion in damages. For example, while damages and deaths from Hurricane Irene are still being tallied, the estimates are running more than $7 billion with close to 50 deaths from Vermont to North Carolina. There will be more hurri-canes since the “season” has just started.

We have also seen unparalleled flood-ings across the country. The Missouri and Souris Rivers overf lowed in Montana, North Dakota, South Dakota, Nebraska, Iowa, Kansas and Missouri, resulting in over $2 billion in damages. During the spring and summer, Mississippi River f looding resulted in near $4 billion in damages as the river flooded from Tennes-see south, and spillways were opened to flood rural areas to save cities along the river.

Drought and heat waves have hit Texas, Oklahoma and neighboring states very hard, with damages already exceeding the $5 billion mark. Unfortunately, this disaster is far from over. The damage totals don’t take into account the wildfires that have devas-tated many states, especially Texas. The wildfires in Texas in late August and early September destroyed over 2,000 homes and killed a number of people.

Tornadoes that hit the Midwest and Southeast in May killed 177 and resulted in more than $7 billion in losses. One tornado alone killed more than 140 people in Joplin, Mo., making it the deadliest single twister since records were started in 1950. Torna-does also hit hard in the Ohio Valley. The City of Tuscaloosa, Alabama, was hit hard in


April resulting in 32 deaths and more than $9 billion in damages.

In mid-April, tornadoes hit from Okla-homa to Pennsylvania resulting in $2 billion in damage and 38 deaths, mostly in North Carolina. There was an outbreak of 59 tor-nadoes in the Midwest and Northeast in early April. The damages were $2.2 billion. Fortunately, there were no deaths. Outbreak of 46 tornadoes in Central and Southern states on April 4th–5th, resulted in nine deaths and $2.3 billion in damages.

Tropical storm Lee, while not a hurricane, caused a great deal of damage all the way from Texas to Florida and on up the East Coast to North Carolina. The damage from Lee will be huge. A blizzard stretching from late January until after Groundhog Day, Feb-ruary 2nd, paralyzed cities from Chicago to the Northeast. The toll was 36 deaths and more than $2 billion in damages.

I wonder how any thinking person can say that we are not witnessing the effects of climate change that has occurred and con-tinues around the world, and certainly in the U.S. Our political leaders on the national level, with few exceptions, have sat on their collective hands and let the powerful oil and gas industry dictate national policy on environmental issues and especially the policy that deals with the causes of climate change. Many in the scientific community have been warning us for years, but those warnings have fallen on deaf ears. We had best wake up and deal with the most serious environmental issue facing this country, as well as other parts of the world. Instead of further weakening our already weak regulation of the oil and gas industry in the U.S., regulation must be made stron-ger and enforcement more effective. There must be a similar effort in other countries, all of whom have a duty and obligation to get actively involved, and that has to happen if we are to survive long-term.

Source: ClaimsJournal.com

more americanS believe the world iS warming

More Americans than ever believe that the world is warming. In fact, there are many more this year than last who share that belief. Some say the opinion swing has been influenced by the Republican Presi-dential debates. Regardless of what has caused the shift in opinions, the changes were found by a Reuters/Ipsos poll in mid September. The percentage of Americans who believe the Earth has been warming rose to 83% from 75% last year in the poll conducted Sept 8th–12th.

U.S. Republican Presidential candidates, other than Jon Huntsman, have mostly

blasted the idea that emissions from burning fossil fuels and other human actions are warming the planet. The current GOP front-runner, Texas Governor Rick Perry, has accused scientists of manipulat-ing climate data. Rep. Michele Bachmann, another of the candidates and a Tea Party favorite, has said climate change is a hoax. Both of these candidates ignore science and act as if they are still in the dark ages and on this subject they really are. It’s difficult to believe that candidates for President would make such irresponsible statements.

Reports this year reveal that global tem-peratures in 2010 were tied with 2005 to be the warmest year since the 1880s. This is causing the public to be concerned about the issue. We can no longer sit back and ignore what is happening to our planet. Republican candidates denying climate change science is actually causing ordinary folks to realize we have a most serious and life-threatening problem.

This year has been a record year for the kind of costly weather disasters—including Hurricane Irene, which raked the East Coast—that scientists have warned would be more frequent with climate change. Unlike many other issues that divide Repub-licans and Democratic voters, such as healthcare or how to deal with the deficit and debt, a majority of Americans from both m a j o r p a r t i e s a g r e e o n g l o b a l warming. According to the poll, some 72% of Republicans believe global warming is happening and 92% of Democrats do, it found.

Global warming could be an important issue in next year’s election, because some 15% of voters see it as their primary concern. President Barack Obama hasn’t really defined himself as “the environmental candi-date.” If he is able to do this it could have a large influence on next year’s election. On the other hand, if a Republican softens his or her stance on climate change, and the Presi-dent, who has failed to pass a climate bill in his first term, moves more to the center, it won’t be a major factor in the election. There must be a contrast between the Democratic and Republican candidates for climate change to be the issue it should be.

Some 71% of the Americans who believe warming is happening think that it is caused either partly or mostly by humans, while 27% believe it is the result of natural causes, the poll found. While more Ameri-cans believe in global warming, the skeptics are becoming more entrenched in their belief that it is not happening. In 2010 the certainty of skeptics was 35%, while it was 53% in 2011.


accentUre SettleS lawSUit with U.S. dePartment oF JUStice

Accenture, a global company, has agreed with the U.S. Department of Justice to settle a lawsuit for $63.68 million. The lawsuit, originally filed in 2006, claimed that in work for the U.S. federal government, Accenture received payments, resale revenue or other benefits through alliance agreements with technology vendors that were not suffi-ciently disclosed and that were not allowed on federal contracts. Interestingly, Accen-ture was originally based in the U.S., then in Bermuda, and since September 1, 2009, the company has been “incorporated” in Ireland.

airline SettleS nation’S laSt 9/11 lawSUit

After nearly ten years of litigation in a wrongful death lawsuit, the family of Mark Bavis, a professional hockey scout killed in the Sept. 11th terrorist attacks, reached a set-tlement with United Airlines and its security contractor. The family was the lone holdout among the thousands who either accepted money from the $7 billion Victim Compen-sation Fund or settled their individual law-suits. Until now, the Bavis family had refused to settle its suit. Instead, the family wanted a trial so it could reveal “how woefully inade-quate airport security measures were on the day the hijackers boarded at Logan International Airport.”

Family members attributed their change of heart about settling to “frustration over the legal system” that they say “gutted their case by limiting its scope.” Mike Bavis, Mark’s identical twin brother, had this to say about the settlement:

For almost ten years, my family never even considered the word ‘settle.’ We were always going to trial. How that changed has everything to do with the court, the legal system, and the rulings from Judge [Alvin] Heller-stein. The lawsuit was about wrong-ful death, gross negligence, and a complete lack of appreciation for the value of human life. Instead, the judge changed it to a case about federal regulations.

The trial had been set to begin on November 7th in a federal court in Manhat-tan. Mark Bavis was one of the 56 passen-gers who departed Logan International Airport on United Flight 175, the second plane to hit the World Trade Center. The 31-year-old Newton resident was headed to a Los Angeles Kings training camp in Los Angeles.


The settlement came 12 days after Judge Hellerstein ruled on September 7th that United Airlines and its security contractor, Huntleigh USA, had to prove only that they adhered to federal aviation safety standards, and didn’t have to meet the state standards of wrongful death that the Plaintiffs believed applied in their case. The Defense had asked the judge to dismiss the case. In response, lawyers for the family filed a brief with 127 exhibits outlining the evidence they intended to present at trial. That included depositions obtained from more than 200 screeners working on September 11, 2001, at Logan, their supervisors, chiefs of security for the airline, and Federal Avia-tion Administration officials.

The testimony revealed that the five ter-rorists who boarded Flight 175 passed through screeners at United Airlines who did not speak English (one even required a translator for her deposition), did not know who Osama bin Laden was, or what Al Qaeda was, and were both inexperienced and underpaid. In addition, many of the screeners on duty that day “did not know what Mace and pepper spray were.’’ It was shown by the documents, filed by the family, that the screeners and their supervi-sors failed to act on the suspicious behavior of two of the hijackers, who were let through security even though they didn’t speak English and could not even respond to security questions. Additional screening, the Bavis lawyers allege, would have included a hand search of their carry-on bags, which contained knives, Mace, and pepper spray. If that’s good security, airline passengers were being put at tremendous risk of harm and even death.

The family felt it had won a victory with the release of the depositions. The family was able to accomplish a major goal, according to Mike Bavis. The family worked to make public the airline’s failure to screen passengers adequately, hoping to help improve security and save lives in the future. On the morning of the attacks, at least nine screeners were unaware that the threat level had been raised to a level which meant terrorists with a known capability to attack civil aviation were likely to carry out attacks against U.S. Targets.

The victim’s mother, Mary Bavis, and her six surviving children filed the wrongful death lawsuit in 2002 against United, Hunt-leigh, and Massport (which runs Logan Airport). Judge Hellerstein dismissed the claim against Massport in July. The family’s lawyer, Donald Migliori of the Motley Rice law firm, says that the settlement was the result of the family’s frustration with court delays and rulings, and its relief when the depositions were finally released. Mike Bavis said the easiest way to have prevented the “tragedy and horror’’ of 9/11 would have

been “to have an airline industry that made a reasonable effort to provide security for its passengers.” He says “the evidence shows that they most certainly did not.’’ The amount of the settlement is confidential. Incidentally, the judge had limited the trial to three weeks.

Source: Boston.com

VIII. THE CORPORATE WORLD

more than a SlaP on the corPorate wriSt iS needed

All too often those in government believe a slap on the corporate wrist is enough when a company commits a massive wrongdoing. Many believe a settlement now being pushed by Treasury Secretary Tim Geithner with the big banks and Wall Street firms that caused the mortgage crisis may result in just that—little more than a slap on the wrist of the corporate offend-ers. To this day, Wall Street bankers haven’t faced any serious punishment for the wide-spread fraud that crashed our country’s economy. When you consider that they were peddling bad loans, lying to investors, forging foreclosure documents—all of which deserves severe punishments—it’s difficult to understand why more harsh punishments haven’t been handed down. Now these very same banks are making huge profits again, while homeowners con-tinue to suffer.

Geithner now is asking state Attorneys General to agree to a sweetheart deal under which the offending banks would pay only $20 billion—a fraction of what they would owe if they were really prosecuted—and get immunity from investigation and prose-cution. The criminal greed, wrongful conduct, and outright fraud by the large banks that caused this crisis shouldn’t be passed off with a slap on their corporate wrists. The proposed settlement would eliminate any leverage regulators have to pressure banks to “bail out” the homeown-ers they hurt so badly by their misconduct.

The reason this settlement is possible may be because it has been flying under the national radar screen. Very little about the settlement has been mentioned by the national media which in itself is “newswor-thy.” I don’t believe Sec. Geithner and the Obama Administration should let Wall Street have a “get-out-of-jail free card.”

What these huge corporations did was wrong and they should be punished

severely. It’s estimated that by pushing bad loans and peddling risky mortgage-backed securities as safe investments, these banks cost the world economy over 7 trillion dollars. Their widespread fraud and corrup-tion also cost millions of hardworking Americans their jobs and their homes. Instead of making the wrongdoers pay a real price for their actions, they are being protected by our government. Wall Street was given nearly $2 trillion in loans for the banks to get back on their feet. That came as ordinary folks were still struggling to make ends meet, which just doesn’t seem right in a country like America. The victims of the corporate wrongdoings should be at the top of the list for governmental assis-tance, but that hasn’t been the case.

There are a number of state Attorneys General who are standing up to Sec. Geithner and Wall Street, and are refusing to settle with the banks until a full and real investigation exposes the role these banks and their executives played in the crash of our housing market and economy. For example, Eric Schneiderman and Beau Biden, the Attorneys General of New York and Delaware, respectively, are holding strong despite enormous pressure from the Administration to accept the settlement. I am told that General Schneiderman’s insis-tence that these crimes be investigated and prosecuted resulted in his being kicked off the settlement committee. Owning a home is part of the American Dream, and justice for homeowners is part of the American Dream movement. If you agree that the wrongdoers should be prosecuted and their victims protected, let your state Attorneys General know how you feel.

U.S. SUeS big bankS over SaleS oF bad inveStmentS

In what I believe is a step in the right direction, the U.S. government has filed suit against 17 financial firms, including the largest U.S. banks, for selling Fannie Mae and Freddie Mac billions of dollars worth of mortgage-backed securities that turned toxic when the housing market col-lapsed. Among the Defendants in the law-suits are Bank of America Corp., Citigroup Inc., JPMorgan Chase & Co., and Goldman Sachs Group Inc. Large European banks including The Royal Bank of Scotland, Bar-clays Bank and Credit Suisse, were also sued by the government.

The lawsuits were filed by the U.S. Federal Housing Finance Agency (FHFA), which oversees Fannie and Freddie, the two agencies that bought mortgage loans and mortgage secur it ies issued by the lenders. The total price tag for the mort-


gage-backed securities sold to Fannie and Freddie by the firms named in the lawsuits is $196 billion. The government says it wants the securities sales canceled and wants to be compensated for lost principal and interest payments, as well as for FHFA’s attorneys’ fees.

Bank of America bought Countrywide Financial Corp. in 2008 and Merrill Lynch in 2009. All three are being separately sued by the government for mortgage-backed secu-rity sales totaling $57.5 billion. After Bank of America, JPMorgan Chase was listed in the lawsuits with the second-highest total at $33 billion. Royal Bank of Scotland followed at $30.4 billion.

Bank of America has already paid $12.7 billion this year to settle similar claims. Last month, insurer American International Group Inc. sued the bank for more than $10 billion for allegedly selling it faulty mort-gage investments. In a statement, Bank of America has rejected the claims in the gov-ernment’s lawsuits, saying Fannie and Freddie invested heavily in the mortgage-backed securities even after their regulator said they didn’t have the needed risk-man-agement capabilities. The bank said Fannie and Freddie are now seeking to hold other market participants responsible for their losses.

Residential mortgage-backed securities bundled pools of mortgages into complex investments. They collapsed after the U.S. real estate bust and helped fuel the global f inancia l cr i s i s beg inning in la te 2008. According to FHFA, the mortgage-backed securities were sold to Fannie and Freddie based on documents that “con-tained misstatements and omissions of material facts concerning the quality of the underlying mortgage loans, the creditwor-thiness of the borrowers, and the practices used to originate such loans.” Also sued by the government were Ally Financial Inc. (formerly known GMAC LLC), Deutsche Bank AG, First Horizon National Corp., General Electric Co., HSBC North America Holdings Inc., Morgan Stanley, Nomura Holding America Inc., and Societe Generale.

There has been some criticism over the filing of these lawsuits. According to FHFA, it decided to file the lawsuits because the firms misrepresented the mortgages in securities filings. The agency said in a state-ment:

At the heart of the suits is FHFA’s con-clusion that the actual mortgages backing many of the securities had characteristics that differed in a material way from what had been represented in securities filings.

FHFA said in its statement that the amount that might be recovered would be

determined by the courts, and that it was “premature” to estimate recoverable damages. But, it did say that the amount would be below $200 billion, since that figure represents the original amount of securities purchased, not the actual losses incurred. The agency takes the position that under the securities laws at issue in the case, it does not matter how “big” or “sophisticated” a security purchaser is, “the seller has a legal responsibility to accu-rately represent the characteristics of the loans backing the securities being sold.” According to the lawsuits, the securities should have never been sold because the underlying mortgages did not meet inves-tors’ criteria.

Source: Claims Journal

higheSt-Paid ceoS oFten earn more than comPany PayS in income taxeS

Twenty-five of the 100 highest paid U.S. CEOs earned more last year than their com-panies paid in federal income tax, accord-ing to a study by the Institute for Policy Studies (IPS), a Washington think tank. The study also found many of the companies spent more on lobbying than they did on taxes. At a time when lawmakers are facing tough choices in a quest to slash the national debt, the report has some very interesting observations.

Rep. Elijah Cummings, ranking member of the Committee on Oversight and Gov-ernment Reform, has called for hearings on executive compensation. In a letter to the committee’s chairman, Rep. Darrell Issa, Rep. Cummings asked “to examine the extent to which the problems in CEO com-pensation that led to the economic crisis continue to exist today.” He also asked “why CEO pay and corporate profits are skyrock-eting while worker pay stagnates and unemployment remains unacceptably high,” and “the extent to which our tax code may be encouraging these growing disparities.” In putting together its study, IPS compared CEO pay to current U.S. Taxes paid. The study made these findings:

• Compensationforthe25CEOswithpaysurpassing corporate taxes averaged $16.7 million, according to the study, compared to a $10.8 million average for S&P 500 CEOs. Among the companies topping the IPS list:

• eBay,whoseCEOJohnDonahoemade$12.4 million, but which reported a $131 million refund on its 2010 current U.S. Taxes.

• Boeing,whichpaidCEOJimMcNerney$13.8 million, sent in $13 million in

federal income taxes, and spent $20.8 million on lobbying and campaign spend-ing.

• GeneralElectric,whereCEOJeffImmeltearned $15.2 million in 2010, while the company got a $3.3 billion federal refund and invested $41.8 million in its own lob-bying and political campaigns.

Though the companies come from differ-ent industries, their tax breaks fall into two primary areas. Two-thirds of the firms studied kept their taxes low by utilizing off-shore subsidiaries in tax havens such as Bermuda, Singapore and Luxembourg. The remaining companies benefited from accel-erated depreciation. Shareholders have responded favorably when companies in which they invest keep a tax bill low through legal methods, thereby benefiting earnings.

According to Chuck Collins, an IPS senior scholar and co-author of the report, that is a mistake. He said that “it's an exposure of weakness in a company if their profitability is dependent on their accounting depart-ment and not on making better widgets." In prior reports, out-sized CEO pay was often a red flag of bigger problems to come. The IPS has been putting a pay report together for 18 years. Among those whose leaders have made the high pay list in years past, only to have their businesses falter, are Enron and WorldCom.

Source: Huffington Post

colonial bancgroUP oFFicialS Settle lawSUit For $10.5 million

Officers and directors of failed Colonial BancGroup have agreed to pay investors $10.5 million to settle a class-action lawsuit. The settlement must be approved by the U.S. Bankruptcy Court in Montgom-ery. That court will decide if the settlement money can be paid with proceeds from an insurance policy covering the bank’s direc-tors and officers. As has been widely reported, Montgomery-based Colonial failed in 2009, was seized by the government as insolvent, and sold to North Carolina-based BB&T Corp., which took over the branches and some of the assets. The shareholders’ suit was led by the Arkansas Teacher Retire-ment System and other pension funds.

Colonial was once the second-largest bank based in Alabama, with 355 offices in five states. It collapsed after lending bil-lions to developers and homeowners during the real-estate bubble, much of it in Florida and Las Vegas. All of the bank’s shareholders saw their holdings wiped out when the company was seized by state reg-ulators in August 2009 and filed for bank-


ruptcy protection a few days later. The Federal Deposit Insurance Corp. initially estimated the failure would cost its deposit fund $2.8 billion. Colonial’s failure is the sixth largest ever of a U.S. bank. At the end, 13% of loans weren’t being paid as agreed, and the company had lost money for five consecutive quarters, including a final loss of $600 million.

I understand that is an ongoing criminal probe by the U.S. Justice Department cen-tering on Colonial’s mortgage lending and accounting. The bank applied for $550 million in funds from the government’s Troubled Asset Relief Program, but the money was never paid out. Two Colonial officers, Catherine Kissick and Teresa Kelly, have been sentenced to prison terms for their work with a fraudulent mortgage orig-inator in Florida. They both admitted lying to auditors and regulators. Lee Farkas, the leader of that Florida mortgage company, is serving 30 years in prison for the fraud committed at Taylor Bean & Whitaker.

There is a lesson to be learned from this sad story and that is, persons who can’t be actively involved in running a large business should think twice before accepting a part-time position on that company’s board of directors. There were some real good folks on Colonial’s board and they unfortu-nately—because of what was done by others—got caught up in a very bad ordeal. Hopefully, this settlement will be approved and paid by the insurance money now under the control of bankruptcy court.

Source: AL.com

boSton ScientiFic to Pay $9.25 million in whiStleblower Settlement

Boston Scientific Corp.’s Guidant LLC unit will pay $9.25 million to settle a whis-tleblower’s claim that the company over-billed the U.S. And private hospitals for heart pacemakers and defibrillators. The U.S. Justice Department said the settlement ends a lawsuit filed against Guidant by a former sales agent, Robert A. Fry, in federal court in Nashville, Tennessee.

It was contended that Guidant reneged on credits owed to the U.S. Department of Veterans Affairs for replacement of units still under warranty and is accused of over-charging hospitals for the devices, causing them to over-bill Medicare. In a statement by the Justice Department, it was stated that “overcharging for lifesaving medical devices wastes taxpayer dollars.” That’s cer-tainly very true and is something that can’t be tolerated.

Source: Bloomberg News

medicare FraUd Settlement in tenneSSee whiStleblower SUit

In another whistleblower lawsuit, medical equipment supplier Hill-Rom has agreed to pay $41.8 million in a Medicare fraud lawsuit in a lawsuit brought by two Tennessee whistleblowers. This is the largest civil fraud recovery ever by the U.S. Attorney’s Office for the Eastern Dis-trict of Tennessee. U.S. Attorney Bill Killian said during a news conference that “(h)ealth care fraud or false claims have become a very serious problem.” This may well be the understatement of the month!

The two Former Hill-Rom senior account managers, Lisa Brocco and Laurie Salmons, filed their sealed complaint in Knoxville in April 2005. The women said they learned Hill-Rom was receiving Medicare payments for specialized equipment—bed support surfaces for treatment of pressure ulcers or bed sores- on patients who didn’t qualify for the program. In some cases, they said claims continued to be submitted although patients had died or were no longer using the equipment.

The settlement by Hill-Rom will compen-sate the Medicare trust fund for the moneys it paid, claimed and received from 1999 through 2007. Hill-Rom also entered into a comprehensive five-year Corporate Integ-rity Agreement with the U.S. Department of Health and Human Services, Office of Inspector General to ensure future compli-ance with federal health care benefit program requirements. Interestingly, after the suit was filed, Ms. Salmons was laid off, but Ms. Brocco is still employed and contin-ues to work for the company.

Hill-Rom, based in Batesville, Indiana, is one of the largest national medical equip-ment suppliers. It has a national presence, including offices in Knoxville and the sur-rounding area. The women were repre-sented in this case by David Burkhalter, a lawyer from Knoxville. He did a very good job. As a side note, I have to wonder what it will take to put a stop to all of the fraud and cheating by large corporations which do doing business with the federal govern-ment. Maybe we should adopt a “one strike and out” approach in dealing with the problem. Until that happens, these contrac-tors will continue to cheat, get caught and pay fines. Thank goodness the court system is open and available to deal with this problem!

Source: wate.com

IX. CONGRESSIONAL UPDATE

the PUblic’S aPProval oF congreSS matcheS record low

According to all recent polls, members of Congress face historically low approval ratings, which should come as no big sur-prise. A most recent poll revealed that just 12% of Americans now approve of the way Congress is handling its job. This matches the all-time low recorded in October 2008 at the height of the economic crisis, accord-ing to the New York Times/CBS News poll.

Voters are slightly more disapproving of Republicans in Congress than they are of Democrats, with just 19% approving of Republicans, compared with 28% that approve of Democrats. Significantly, Repub-lican voters are more dissatisfied with their party’s representatives than are Democrats. Half of Republican voters say they disap-prove of Republicans in Congress, while 43% of Democratic voters say they disap-prove of Democrats in Congress. Indepen-dents are slightly less approving of Congressional Republicans than Congres-sional Democrats.

Interestingly, only 6% of registered voters say that most members of Congress have earned re-election, while 84% say it’s time to give someone new a chance, which is said to be a historic low for the New York Times/CBS poll. Dissatisfaction with Con-gress runs deep across both parties, with more than eight in ten of both Republicans and Democrats saying it’s time to elect new representatives. In follow-up interviews, partisanship and bickering were given as major reasons for respondents’ disapproval of Congress. I believe that the leadership in both parties should get this message and try hard to work together for the common good.

When pollsters asked about voters’ own representatives in Congress, they expressed generally more positive or supportive views. But public opinion has changed, with many now saying it’s time for someone else to have a chance. Just 33% of voters say their own representative in Congress deserves to be re-elected, and 57% say it’s time to elect someone else—another record level of dissatisfaction.

According to the polls, Democratic and Independent voters are slightly more frus-trated with their own representatives, with about six in ten of each saying it’s time for a new person. This shouldn’t be too surpris-ing since Republicans are currently in control of the House. But nearly half of


Republican voters also say their own repre-sentative does not deserve re-election. That has to be very bad news for a number of Republicans who have been scared to do anything that would cause the Tea Party bosses to be unhappy.

It’s certainly possible that the current dis-satisfaction with Congress may point to another “change” election in 2012. The 2006, 2008 and 2010 elections were all con-sidered at the time to be referendums on voters’ disapproval with things in Washing-ton. The 2012 election for members of Con-gress has to be a referendum on how voters perceive the behavior in Congress over the past two years. No member of Congress—regardless of party affiliation—can feel real good about the public’s anti-incumbent feelings as evidenced by the Poll results.

Source: New York Times

X. PRODUCT LIABILITY UPDATE

hyUndai liable For PaSSenger’S death in SUv craSh

The 5th Circuit Court of Appeals ruled recently that the manufacturer of a sports utility vehicle can be liable for the death of a passenger who was ejected from her reclined seat in a rollover crash. The Appeals Court affirmed an $810,000 jury verdict. The Plaintiffs’ 19-year-old daughter died when she was ejected from the front passenger seat of a 2005 Hyundai Tucson SUV that rolled over three times in a freeway crash. The decedent had reclined her seat before the crash in order to take a nap.

The Plaintiffs sued Hyundai for design defect, alleging that the restraint system for the front seat was defective because it failed to adequately protect passengers who reclined their seat at a greater than 45-degree angle. Hyundai argued that the Plaintiffs could not show that there existed safer alternative designs for liability under applicable Texas law. The Appeals Court dis-agreed, saying:

To succeed on their design defect claim, the [Plaintiffs] must have shown that a safer alternative—limit-ing the seat recline to a 45 degree angle—would have prevented or sig-nificantly reduced the risk of [their daughter’s] injuries. … The [Plain-tiffs’] expert … testified that seats reclined more than a 45 degree angle

lead to a significantly increased risk of ejection. He further testified that ejection increases the risk of serious injury or death by six to thirteen times. The Texas statute only requires proof of a safer alternative design that ‘in reasonable probability’ would have reduced the Claimant’s injuries, which [the expert’s] testimony ade-quately provided.

This was a most significant ruling for a number of reasons. Most folks don’t realize that there is a risk of injury or death when a front passenger seat is reclined. Most believe their seat belt will protect them if for any reason the vehicle they are riding in is involved in a crash. Also, rollover incident is not a crash event that untrained people even think about. It’s not something that’s on their radar screen as a rule.

Source: Lawyers USA Online

U-haUl trailerS PUt FolkS USing them at riSk

Kendall Dunson, a lawyer in our firm, has handled a number of lawsuits involving U-Haul trailers. Recently, Kendall saw a full size SUV attached to a 6 x 12 U-Haul trailer in a parking lot. When he did it was clear to him that a safety problem had been created. Kendall says it was easy to see that the U-Haul trailer was at least as large as the towing vehicle, and probably even larger. The amount of contents inside the trailer was unknown and without that infor-mation, it was impossible for Kendall to know the weight distribution between the loaded U-Haul trailer and the full size SUV. Even without knowing the weight, his experience with full-sized SUVs towing U-Haul trailers told him the driver of the SUV would put him or herself and others in danger if the trailer began to sway or fishtail while travelling at highway speeds.

Now imagine the same 6 x 12 U-Haul trailer attached and being towed by an even smaller or Crossover SUV. The size and weight disparity is even worse. Our firm recently filed two wrongful death cases against U-Haul and other Defendants. In each suit, a mid-size or Crossover SUV was towing a 6 X 12 U-Haul trailer. In one case, the driver was travelling on Interstate 20 in Alabama heading east. In the other, the driver was travelling north on Interstate 85. In each case, the U-Haul towing Crossover SUV left its lanes of travel, crossed the median and struck vehicles travelling in the opposite direction on the highway. The I-20 accident resulted in one death when the driver of the SUV struck an 18-wheeler. The I-85 accident left three dead as the U-Haul

towing vehicle struck a Ford Explorer head on, resulting in the additional deaths of two passengers in the Ford Explorer.

Drivers and passengers of U-Haul towing vehicles are exposed to the risk of serious injury or death when the U-Haul trailer forces the towing units off the road. The occupants of other vehicles in close prox-imity are also put at risk when the towing vehicle goes out of control. Most folks who rent U-Haul trailers don’t have a clue what they are getting when it comes to safety.

In addition to the two wrongful death suits being filed, our lawyers have investi-gated reports of U-Haul trailers causing other Crossover SUVs to leave the road and crash. Fortunately for these other drivers and passengers, guard rails prevented them from leaving their lanes of travel and strik-ing vehicles travelling in the same or the opposite direction. Given our experience with U-Haul incidents, these events are not surprising. What is surprising is that U-Haul would recommend and allow its customers to attach the largest trailer in its fleet to such small vehicles. We were able to confirm in one incident that the weight of the 6 x 12 trailer exceeded the maximum towing capacity of the towing vehicle even without any items loaded into the trailer. U-Haul’s practice of recommending and allowing their trailers to be towed by such small vehicles evidences a reckless disre-gard for their customers and for innocent citizens driving on our roads. We will keep you updated on these cases. If you need more information, contact Kendall Dunson, a lawyer in our firm, at 1-800-898-2034 or by email at [email protected].

the chevy hhr iS a SUbJect oF SaFety concern

The Chevy HHR has become a subject of concern in safety circles. NHTSA has received complaints about a potential design defect in the Chevy HHR (Heritage High Roof). The Chevrolet HHR problems reportedly include difficulty turning the vehicle off. Chevy HHR complaints have been filed with the NHTSA by vehicle owners, who say they incurred high costs repairing their vehicle. The complaints typi-cally have involved HHR owners having trouble turning the vehicle off or the key becoming stuck in the ignition, which can potentially lead to highway crashes. The vehicle has not been recalled despite these reported safety issues. In order to rectify the problem when the HHR would not shut off, some HHR owners reported:

• disconnectingthevehiclebatterytoshutthe engine;


• remainingintheirparkedChevyHHRsuntil their vehicle runs out of gas, which can take several hours if not a day; and

• removingafusefromtheengine.

So far, model years affected by the igni-tion problem include the 2009 Chevy HHR and 2009 Chevy Cobalt. Various reports from Chevy HHR owners indicate that this is a known problem among car dealers and garages. So far, Chevrolet/General Motors has not addressed the problem. Reportedly, some customers, who have had to have their vehicles towed to a dealership while still running, have been informed that the repair is not covered under their warranty. It was reported that those customers paid up to $600 to repair the HHR ignition.

Some 2009 Chevy HHR vehicles have been recalled, but for completely different reasons. General Motors Corporation recalled 2009 model year versions of the HHR along with a number of others—including the Cobalt and Buick Enclave—due to a potential defect in the shift lever that could cause the vehicle to roll away. That recall took place in March of 2009. At the time, a GM spokeswoman said that no injuries or crashes had been reported as a result of the shift lever defect and that dealers had been tasked with inspecting the vehicles and replacing shift cables when necessary.


XI. MASS TORTS UPDATE

data on FoSamax Fail to SUPPort long term USe

In earlier issues, we initially reported osteonecrosis of the jaw (“ONJ”) (sudden death of jaw bone) being caused by long-term use of Fosamax. Then, in 2010 we wrote about the atypical subtrochanteric (femur) fractures being reported from long-term use of use of bisphosphonates like Fosamax. Both of these injuries are signifi-cant and almost unheard of in non-cancer patients absent bisphosphonate use.

In the course of pretrial discovery of the ONJ cases, analysis conducted by FDA reviewers of the benefit of long-term use of bisphosphonates was discovered. The con-clusion of the FDA reviewer was that women received no added benefit of taking Fosamax for more than three to five years. Interestingly, that is when the risk of devel-oping ONJ and subtrochanteric fractures

begins to increase significantly. Earlier this year the FDA required manufacturers to warn on their labels that an optimal dura-tion of use had not been established. FDA reviewers, however, concluded:

In light of the potential risks that may be associated with long-term use of bisphosphonates for the treatment and/or prevention of osteoporosis, the sum of available long-term effi-cacy data appears to suggest that bisphosphonate therapy could be safely discontinued for some period of time,

The Reproductive Health Drugs Advisory Committee and the Drug Safety and Risk Management Advisory Committee recently held a joint meeting to address these growing concerns as well as the increasing data regarding a link between bisphospho-nates and esophageal cancer. After review-ing the data the Committees avoided providing any specific guidance to the FDA, but did vote (17 to 6) that the FDA should “further clarify the duration of use” of the drugs. A new label is expected to be released in November. Hopefully, science will prevail over marketing and the drug’s use will be restricted to no more than five years. If you need more information on Fosamax, contact Russ Abney or Chad Cook, lawyers in our Mass Torts Section, at 1-800-898-2034 or by email at Russ.Abney@ beasleyallen.com or Chad.Cook@beasley allen.com.

Fda reqUireS additional warning For reclaSt

After learning of five deaths from acute kidney failure in 2009 and receiving reports of 11 additional deaths and nine cases of kidney failure which resulted in dialysis treatment, the FDA recently suggested that the manufacturers of the osteoporosis treat-ment drug, Reclast, strengthen its warning.

Reclast is a biphosphonate drug like Fosamax, Actonel and Boniva, designed to he lp inc rease bone dens i t y and strength. The difference between Reclast and its competitors is that it is administered intravenously only once a year. The FDA’s new warning suggests that Reclast should not be used in patients with significant renal impairment and that physicians should screen patients for kidney dysfunc-tion before prescribing the drug. In addition to screening, physicians should also measure creatinine clearance between Reclast doses in at-risk patients.

Risk factors that should be considered prior to prescribing Reclast include advanced age, concurrent treatment with

other kidney-damaging drugs, and dehydra-tion secondary to fever, sepsis, gastrointesti-nal losses, or diuretic therapy. The generic form of Reclast, zoledronic acid, is also sold in a different formulation under the brand name Zometa. However, Zometa already carries warnings about renal toxicity in patients with impaired kidney function. If you need more information on this subject, contact Danielle Mason, a lawyer in our Mass Torts Section, at 1-800-898-2034 or by email at [email protected].

Source: FDA

chantix inJUry lawSUitS moving Forward in the mdl

The litigation over Chantix filed by indi-viduals who allege that the smoking cessa-tion drug caused users to commit suicide or suffer serious injury due to psychological side effects, is moving forward. Hundreds of Chantix injury lawsuits are consolidated as part of an MDL, or multidistrict litigation, in the U.S. District Court for the Northern Dis-trict of Alabama, where the cases are being coordinated during pretrial proceedings by U.S. District Judge Inge Johnson.

All of the complaints involve similar alle-gations that side effects of Chantix, a popular prescription medication sold by Pfizer to help people stop smoking, may increase the risk of serious injury or death due to suicidal thoughts and other unusual, aggressive behavior that has been reported to occur in some users after taking the med-ication. According to a prior case manage-ment order, a small group of cases have been selected for inclusion in an “initial dis-covery pool,” which will be prepared for early trial dates in the MDL, known as bell-wether trials. In complex litigation involv-ing a large number of claims with similar allegations, such trials are often helpful in allowing the parties to gauge how juries are likely to respond to evidence and testimony that will be presented throughout many cases in the litigation.

While the first Chantix trials are not expected to begin until the second half of 2012 at the earliest, pretrial discovery is already underway. Judge Johnson has ordered Pfizer to turn over a number of documents to the Court for review in camera. The drug maker has claimed the documents contain privileged information. Chantix (varenicline) was approved in the United States by the FDA in 2006 as a pre-scription medication to help people quit smoking. The drug works by reducing the positive feelings that come from cigarettes, blocking the receptors in the brain com-monly stimulated by nicotine. However, the impact of the drug on the brain has resulted


in a number of reports from users who experienced sudden, unusually aggressive behavior, thoughts of self-harm and suicide.

In June 2009, the FDA added a “black box” warning to the medication about the potential risk of changes in behavior, depression and suicidal thoughts, which is the strongest warning that can be placed on a prescription medication in the United States. Most of the Chantix injury lawsuits currently filed allege that Pfizer failed to adequately research their medication or warn about the risk of these problems earlier. This year, the FDA also issued a drug safety communication about the potential risk of heart problems from Chantix, warning that the smoking cessation drug might increase the risk of certain cardiovas-cular events, including the risk of heart attack, among individuals who had cardio-vascular disease.

JUdge to PUSh For Settlement in yaz and yaSmin mdl

U.S. District Court Judge David R. Herndon, the federal judge presiding over Yasmin and Yaz multidistrict litigation, is for-mulating a plan which he believes will help the parties reach a settlement. Judge Herndon made this most interesting obser-vation in his order:

The court has no intention of presid-ing over anything into eternity, let alone this litigation, and the court is presently working on a process that will engage the parties in settlement discussions following the bellwether trials in a meaningful way.

More than 6,000 federal lawsuits have been filed against Bayer Corp. over Yaz and Yasmin birth control pills, alleging that the company failed to warn about risks posed by new ingredients in the oral contracep-tives. The Plaintiffs claim injuries that include deep vein thrombosis, gallbladder damage, kidney stones, heart attacks, pulmo-nary embolisms and strokes.

Judge Herndon, who oversees the multi-district litigation in the U.S. District Court for the Southern District of Illinois, has decided to allow case-specific discovery in up to 100 cases in addition to the 24 cases to be heard in upcoming bellwether trials. The first bellwether trial had been scheduled to begin in September, but the trial schedule was revised in a May status conference. Under the new bellwether trial schedule, the first trial will now begin in January 2012 and will involve a pulmonary embolism allegedly caused by Yaz.

Other trials are scheduled for April and June of 2012. Judge Herndon’s order, in

addition to advising the parties of his plans to come up with a settlement process, also denied a request by the Plaintiffs to consoli-date cases for the second and third bell-wether trials. The second trial will involve a gallbladder injury allegedly caused by Yaz, and the third trial will involve a venous thromboembolism. If you want more infor-mation you can contact Roger Smith or Leigh O’Dell, lawyers in our Mass Torts Section, at 1-800-898-2034 or by email at [email protected] or [email protected].


deadline aPProacheS For certain Fen-Phen claimS

There is a December 31st deadline in the fen-phen litigation for certain individuals who may be eligible for additional cash pay-ments from the $4.8 billion nationwide class settlement involving the recalled diet drug. Drug maker Wyeth has agreed to make payments to class members with certain qualifying medical conditions if those conditions occur and are diagnosed by the earlier of December 31, 2011, or 15 years from the date of their last diet drug use. Kip Petroff, a lawyer from Dallas, stated in a news release:

Unless class members see a physician to evaluate their heart health and have any necessary surgeries before the 2011 deadline, they could miss out on the money they deserve to deal with the debilitating, life-long health issues stemming from taking fen-phen.

The American Home Products Settlement Trust was created in September 2000 to resolve a nationwide class action brought by Claimants who suffer from valvular heart disease as a result of taking Pondimin and Redux, a diet-drug cocktail known as fen-phen. About six million prescriptions for the diet drugs were written before Ameri-can Home Products (now Wyeth) pulled fen-phen off the market in 1997 after reports that the drug combination caused heart valve problems. The original $3.75 billion settlement became final in 2002. The settlement trust has been swamped with claims since that time.

Wyeth later agreed to pay more than $1 billion to address certain claims left unre-solved by the original settlement. Class members who may be affected by the December 31st deadline include those who need heart valve surgery or have had valve surgery, those who are candidates for valve surgery but who may not know it, and the

relatives or heirs of fen-phen victims who have died.


more lawSUitS Filed againSt alcohol wiPeS comPany

A number of lawsuits have been filed against the Triad Group, a Wisconsin medical products manufacturer, over its contaminated alcohol wipes. The latest lawsuit, filed in federal court in Tennessee, contends Triad and its sister company, H&P Industries, knowingly distributed the con-taminated wipes. The U.S. Food and Drug Administration shut down the Hartland plant in April. The company denies the alle-gations and says it has complied with federal regulations.

The latest lawsuit was filed by a Tennes-see resident, Mitchell Gold, who says he was hospitalized after getting sick from the company’s contaminated wipes and has ongoing health problems as a result. Accord-ing to media reports, two people named in previous lawsuits have died, including a two-year-old boy in Houston, Texas.

Source: The Journal Sentinel

XII. BUSINESS LITIGATION

an overview oF antitrUSt litigation

Our firm remains actively involved in antitrust cases around the country. With the economy as tough as it is, companies are finding their competition tougher as well. As a result, companies are doing what-ever they can to remain or become compet-itive. Some of these actions cross a line and are targeted by national competition laws, such as the Sherman Antitrust Act, Clayton Antitrust Act, Robinson-Patman Act, and the Federal Trade Commission Act. Additionally, all states have their own antitrust laws, many of which are similar or identical to federal antitrust statutes and are interpreted by the state courts to be consistent with federal law.

Our firm has filed suit against Astellas US, LLC, alleging violation of Federal and Florida state antitrust laws by Astellas, a global top-twenty pharmaceutical company. We represent Lakeland Regional Medical Center, an outstanding non-profit hospital located in Lakeland, Fla. Our suit was filed as a class action and seeks to represent hos-pitals and clinics nationwide that have been


damaged due to Astellas’ anticompetitive behavior. The case is pending in the middle district of Florida.

The suit relates to the use of adenosine, a naturally occurring substance, used in con-nection with cardiac stress tests. These rela-tively routine tests are conducted daily at Lakeland Regional and at hundreds of hos-pi ta ls and cl in ics throughout the country. Astellas has violated antitrust law by illegally tying the purchase of Astellas’ unpatented adenosine drug, Adenoscan®, to the purchase of its patented method of administering adenosine to patients. In other words, Astellas will not let Lakeland Regional’s doctors use its method of ade-nosine administration unless Lakeland Regional also purchases Adenoscan® at an inflated price.

Identical generic adenosine is available at one-fourth the price of Adenoscan®, but Astellas will not allow Lakeland Regional and other hospitals and clinics to purchase the generic product. Astellas has gone so far as to threaten patent infringement litigation against Lakeland Regional and other hospi-tals and clinics that have sought to pur-chase identical, but less expensive, generic adenosine. This case is a good example of how pharmaceutical companies are driving up the cost of healthcare in this country, as this conduct by Astellas costs Lakeland Regional alone approximately $500,000 annually. The excess costs to hospitals and clinics nationwide run into the hundreds of millions of dollars!

In August, the District Court judge denied Astellas’ motion to dismiss the lawsuit, and all allegations against the company survive as we move towards class certification. Contact Archie Grubb, a lawyer in our Con-sumer Fraud Section, at 1-800-898-2034 or by email at [email protected] if you have any questions about this case, or about our firm’s antitrust litigation practice.

bank oF america SUed by U.S. bancorP over mortgageS

We have written in prior issues about the large number of lawsuits that have been filed against Bank of America Corp. And it doesn’t appear its problems are over. Cur-rently, there is much more to report. A suit filed by U.S. Bancorp against Bank of America is seeking to have the bank to repurchase poorly-written mortgages sold by Countrywide Financial in 2005. As we have reported, Bank of America bought Countrywide Financial Corp. in 2008. The latest lawsuit, filed in New York, claims Countrywide sold U.S. Bancorp a pool of over 4,000 loans originally valued at $1.75 billion. U.S. Bancorp claims that Country-

wide ignored its own mortgage underwrit-ing guidelines when issuing those loans.

According to the lawsuit, Countrywide agreed to repurchase loans within 90 days if any of the statements made in the loan con-tract wound up being untrue. Those state-ments included an assertion that the loans complied with the bank’s underwriting guidelines. U.S. Bancorp says Countrywide’s loans began to “become delinquent and default at a startling rate,” soon after it sold the loans. U.S. Bancorp has asked the court to ask Countrywide to repurchase either just the defective loans or all of the loans in the pool.

A U.S. Bancorp spokesman, Thomas Joyce, said the bank filed the lawsuit as a trustee on behalf of several investors who bought the loans, but he wouldn’t identify the number of investors the bank represents. As reported, the nation’s largest bank is facing several other lawsuits. In August, American International Group Inc. sued the bank for more than $10 billion, claiming Bank of America deceived the insurer by selling it faulty mortgage investments. Bank of America has already paid a total of $12.7 billion this year to settle similar claims.

Source: WSFA TV News

JUry rUleS For dUPont in the kevlar trade SecretS caSe

A U.S. federal jury has awarded DuPont $919.9 million in damages, ruling that a South Korean company stole trade secrets for a fiber used to make Kevlar bulletproof vests. The Richmond, Va., jury ordered Kolon Industries Inc. To pay the damages after finding the textile company willfully and maliciously stole trade secrets and con-fidential information regarding its Kevlar para-aramid fiber. In addition to body armor, the fiber is also used to make tires and fiber-optic cables.

DuPont will ask U.S. District Judge Robert Payne, who presided over the seven-week trial, to require Kolon to stop selling prod-ucts based on the trade secrets. The case was filed in February 2009 after Michael Mitchell, a 24-year DuPont veteran, left the company in 2006 to start his own fiber business, according to DuPont’s Complaint. Kolon later began working with Mitchell and extracted proprietary information about Kevlar he had taken from DuPont, the Complaint said.

DuPont sells more than 70% of para-ara-mid fibers purchased in the United States. The Wilmington, Delaware-based company also makes products used in the chemical, agriculture and biotechnology industries. DuPont said it has not tried to estimate how much it lost in sales, and is

not projecting whether sales might now rise. DuPont says “the issue was the billions of dollars we invested in developing it, and someone trying to shortcut by stealing our technology.”


alabama aircraFt indUStrieS FileS SUit againSt boeing co.

Alabama Aircraft Industries, located in Birmingham, has filed a suit against its former partner Boeing Co., claiming the defense contracting giant won a $1.1 billion Air Force contract by stealing proprietary information stemming from a joint venture between the firms. Alabama Aircraft, which is coming out of bankruptcy, filed the suit in Jefferson County Circuit Court. Alabama Air-craft, which in recent months employed about 325 people, was bought by Virginia-based Kaiser Holdings Group while in Chapter 11 bankruptcy. The new owners cut about 200 jobs from the plant, leaving a work force of about 118 people.

The Boeing lawsuit arises out of the battle for a U.S. Air Force contract to main-tain KC-135 aerial refueling tankers. During that time, Boeing and Alabama Aircraft were partners on the maintenance. Before that, Alabama Aircraft was the main contractor, going back to 1969. But for the new 2008 contract—a deal worth $1.1 billion—Boeing was the sole winner over Alabama Aircraft. Now, the Alabama company is alleg-ing unfair tactics in the bidding and award process. Among other claims, the suit alleges:

Boeing was throughout this relevant time period a lawbreaker and chis-eler of the government and its busi-ness partner, and engaged in patterns of misconduct.

These are very serious charges made against a giant in the government contract-ing business. A Boeing spokesman says the lawsuit is without merit and is only a re-hash of earlier attempts to get the KC-135 contract stripped from the Chicago-based company. The spokesman had this to say about the suit:

Allegations raised by Alabama Air-craft Industries Inc. in a state lawsuit filed on Friday against the Boeing Co. over the U.S. Air Force KC-135 Pro-grammed Depot Maintenance con-tract award are baseless. This seems to be an attempt by Alabama Aircraft to re-litigate claims that have already been denied after a thorough review over a 30-month protest of the con-tract with the Government Account-


ability Office, the U.S. Court of Federal Claims and the U.S. Court of Appeals.

Boeing is the second-largest U.S. defense contractor, with revenue last year of $65 billion. Alabama Aircraft, formerly known as Pemco Aeroplex, had annual revenue of $54 million the last time it filed Securities & Exchange Commission financial statements in 2007. Haskell Slaughter Young & Rediker, a Birmingham law firm, is representing Alabama Aircraft in the suit. Among the alle-gations in the lawsuit, which seeks unspeci-fied damages to include lost profits and punitive damages against Boeing, the company claimed:

That Boeing lied to Alabama Aircraft during their joint venture by saying Air Force budget constraints meant the government could only pay $3.25 million for the refurbishing of each KC-135, depriving the Alabama company of the opportunity to earn more from the contract. Boeing, meanwhile, billed the Air Force for Alabama Aircraft’s sub-contracting work at a higher rate and pocketed the difference. That Boeing’s promise to include Alabama Aircraft as a 50% subcontractor on a new KC-135 con-tract was a ruse designed only to get the larger company an up-close look at the smaller one’s shop techniques, and to sideline it as a competitor for the work.

That Boeing withheld parts during the joint venture on KC-135 work, to prevent Alabama Aircraft from com-pleting planes ahead of schedule and earning bonus payments. Alabama Aircraft filed for bankruptcy protec-tion in February, citing $70 million owed to a union pension plan.

Mike Rediker, a very good and experi-enced litigator, will be the lead lawyer for the Plaintiff in the case. It will be interesting to watch the developments as this lawsuit goes through the system.


hallibUrton will Pay $200 million For deFective boltS

An arbitration panel has ruled that Halli-burton Co. must pay Barracuda & Caratinga Leasing Co. $200 million. This came as a result of a claim Barracuda filed against KBR Inc., a former Halliburton subsidiary. Before KBR was spun off from the Houston oil ser-vices company in 2007, it had a contract with Barracuda & Caratinga for the develop-

ment of the Barracuda and Caratinga oil fields off the coast of Brazil.

Barracuda & Caratinga later claimed that certain subsea bolts used in the project were defective. The arbitration panel recently ruled that KBR is liable for the cost of replacing the bolts. Halliburton says it’s “pursuing all possible avenues” to appeal the ruling. It appears that when Halliburton and KBR split, Halliburton agreed to pay all the costs and expenses, cash settlements or cash arbitration awards, related to the replacement of the bolts.


XIII. AN UPDATE ON SECURITIES LITIGATION

lawSUit claimS hP execUtiveS miSled inveStorS

Richard Gammel, a Hewlett-Packard Co. shareholder, has filed suit against the company. HP, the world’s largest technology company, is accused of concealing the fact that its existing business model was not working and that webOS—the operating software it inherited after buying Palm—was no longer central to its business model. On Aug. 18th, the U.S. Tech giant announced that it was considering a spinoff of the world’s largest PC business, killing off webOS devices such as the TouchPad, and buying British software company Autonomy Corp. for $12 billion. The lawsuit seeks class action status.

Shares of the company fell 20% the fol-lowing day, marking their biggest single-day drop since the Black Monday stock market collapse of 1987. The lawsuit, filed in U.S. District Court, accuses HP executives, including CEO Leo Apotheker and CFO Cathie Lesjak, of misleading investors by making positive statements about the com-pany’s performance that later proved unfounded. The lawsuit seeks to recover unspecified damages on behalf of any who bought into HP between November 22, 2010, and August 18th of this year, arguing that the lack of disclosure about potential issues means its shares were artificially inflated.


XIV. INSURANCE AND FINANCE UPDATE

coUntrywide to Pay $108 million For overcharging StrUggling homeownerS

The Federal Trade Commission and two Countrywide mortgage servicing compa-nies have reached a settlement to resolve FTC charges. The two companies have agreed to pay $108 million to settle charges that the companies collected excessive fees from cash-strapped borrowers who were struggling to keep their homes. This settle-ment is one of the largest ever imposed in an FTC case. The settlement funds will be used to reimburse the overcharged home-owners whose loans were serviced by Countrywide before it was purchased in July 2008 by Bank of America.

The Complaint filed by the FTC alleged that Countrywide’s loan-servicing operation deceived homeowners who were behind on their mortgage payments into paying inflated fees, and in each instance those fees could add up to hundreds or even thousands of dollars. Many of the home-owners had taken out loans that were either originated or funded by Country-wide’s lending arm. This included, accord-ing to reports, subprime or “nontraditional” mortgages such as payment option adjust-able rate mortgages, interest-only mort-gages, and loans made with little or no income or asset documentation.

The responsibilities of mortgage ser-vicers include the day-to-day management of homeowners’ mortgage loans, including but not limited to the collecting and credit-ing of the borrower’s monthly loan pay-ments. Unfortunately, homeowners cannot choose who services their mortgage. In March 2008, and prior to being acquired by Bank of America, Countrywide was ranked as the top mortgage servicer in the United States with a balance of more than $1.4 tril-lion in its mortgage servicing portfolio.

In instances where homeowners fell behind on their payments and were in default on their loans, Countrywide promptly ordered property inspections, lawn mowing, and other services meant to protect the lender’s interest in the property. However, rather than simply hiring third-party vendors to perform those services, Countrywide created subsidiaries to hire the vendors. In doing so, the subsidiaries marked up the price of those services charged by the vendors—often by 100% or more—and Countrywide would then charge the homeowners those inflated fees. Countrywide’s strategy was to increase


profits from default-related service fees in bad economic times. As a result, even as the mortgage market collapsed and more homeowners fell into delinquency, Country-wide made huge profits by funneling default-related services through subsidiaries that i t created solely to generate revenue. This sort of conduct should shock even my Tea Party friends!

According to the FTC, as it relates to those default-related services, homeowners must pay for any necessary services under most mortgage contracts, but mortgage ser-vicers can’t mark up the cost to make a profit or charge homeowners for services that are not reasonable or appropriate to protect the mortgage holder’s interest in the property. Homeowners have no choice in who performs default-related services or the cost of those services, neither do they have an option to shop around for those services.

Additionally, in servicing loans for bor-rowers trying to save their homes in Chapter 13 bankruptcy proceedings, Coun-trywide made false or unsupported claims to borrowers about amounts owed or the status of their loans. Countrywide also failed to tell borrowers in bankruptcy when new fees and escrow charges were being added to their loan accounts. Lastly, the FTC alleged that after the bankruptcy case closed and borrowers no longer had bank-ruptcy court protection, Countrywide would then unfairly attempt to collect all of those fees and charges. In some cases Coun-trywide actually attempted to do this through the foreclosure process.

For more information about the case and the FTC’s refund program, you can go to www.ftc.gov/countrywide. Also, if you have any questions about predatory lending or mortgage servicing fraud, contact Bill Rob-ertson, a lawyer in our firm’s Consumer Fraud Section. Bill is currently handling cases against Countrywide and other com-panies involving predatory lending prac-tices. He is also handling mortgage servicing fraud cases involving several different com-panies. You can reach Bill at 1-800-898-2034 or by email at Bill.Robertson@beasley allen.com.

Source: FTC

lloyd’S Syndicate SUeS SaUdi arabia over 9/11 claimS

Lloyd’s of London’s Syndicate 3500 has filed a lawsuit in federal court against Saudi Arabia, several Saudi charity and financial organizations and prominent Saudi individ-uals over the 9/11 terror attacks. According to the insurer, Saudi Defendants bear primary responsibilty for the attacks and

should be responsible for $215 million it paid out in claims. The Complaint names as Defendants the Kingdom of Saudi Arabia, The Saudi High Commission for Relief of Bosnia & Herzegovina, Saudi Joint Relief Committee for Kosovo and Chechnya, Saudi Red Crescent Society, National Com-mercial Bank, and Al Rajhi Banking and Investment Company. Also included as Defendants are three Saudi citizens con-nected to these organizations: Prince Salman Bin Abdul Aziz Al Saud, Suleiman Abdel Aziz Al Saud and Yassin Al Qadi. The lawsuit was filed in the U.S. District Court for the Western District of Pennsylvania. It is alleged in the Complaint:

Each of the defendants named herein was a knowing and material partici-pant in al Qaeda’s conspiracy to wage jihad against the United States, its nationals and allies.

Pursuant to the terms of the applicable policies of insurance, Lloyd’s Syndicate 3500 made 9/11-related claims payments on behalf of its liability insureds towards the individual settlements in an amount in excess of $215 million, according to the Complaint. These liability insureds included airlines, airport authorities, security compa-nies, airplane manufacturers and other parties. Those who received settlements included individuals injured from the 9/11 attacks and families of individuals killed in the attacks, as well as businesses that suf-fered economic losses.

The insurer charges that these Saudi Defendants “knowingly” provided material support and resources to al Qaida in years leading up to 9/11. The lawsuit says without Saudi Arabia’s assistance, the terrorists would not have been able to carry through their plan. It is alleged in the Complaint:

Absent the sponsorship of al Qaeda’s material sponsors and supporters, including the defendants named herein, al Qaeda would not have pos-sessed the capacity to conceive, plan and execute the September 11 th attacks. The conspiracy among the defendants to wage jihad against the United States, its nationals and allies, included the provision of material support and resources to defendant al Qaeda and affiliated terrorist orga-nizations, persons, and entities. The success of al Qaeda’s agenda, includ-ing the September 11th attacks them-selves, has been made possible by the lavish sponsorship al Qaeda has received from its material sponsors and supporters over more than a decade leading up to September 11, 2001.

Interestingly, the insurer filed the lawsuit in Western Pennsylvania, a region where United Airlines Flight 93 crashed during the 9/11 attacks. The lawsuit attempts to estab-lish concrete links between Saudi charity organizations and al Qaida and explain how the Saudi government supported al Qaida through these charity organizations. The Plaintiff’s Complaint alleges:

Between 1998 and 2000, the Kingdom of Saudi Arabia, through Saudi Joint Relief Committee for Kosovo and Chechnya, diverted more than $74 million dollars to al Qaeda members and loyalists affiliated with Saudi Joint Relief Committee for K o s o v o a n d C h e c h n y a bureaus. Throughout this time, the committee was under the supervision and control of Saudi Interior Minister Prince Naif Bin Abdul Aziz.

The case is Underwriting Members of Lloyd’s Syndicate 3500 v. Kingdom of Saudi Arabia, U.S. District Court, Western District of Pennsylvania. We will monitor this case as it proceeds. It should be very interesting to see how it develops.


inSUrer FileS SUit to avoid Paying claim over nebraSka PaStor’S death

Church Mutual Insurance Co., an insur-ance company specializing in policies for churches, has asked a federal court to absolve it from paying a claim by the widow of a central Nebraska pastor who died of carbon monoxide poisoning in a house owned by the church he led. John Green, who had been pastor of Clay Center Christian Church for 23 years, was found dead in the home on November 19, 2009. His wife, Cheryl, was found unconscious and was f lown to an Omaha hospi-tal. According to the authorities, the pair had been poisoned by a carbon monoxide leak from the home’s heating system.

Cheryl Green had planned to file suit against the church in an effort to get its insurer to pay nearly $260,000 in lost wages, as well as more than $55,000 for medical bills incurred by the poisoning and $10,000 for funeral expenses. But Church Mutual Insurance Co. filed its own suit in federal court and is taking the position that the church’s policy excludes coverage for carbon monoxide and other pollutants.

Church Mutual claims the exclusion means the insurer shouldn’t have to pay the claims. Even the lawyers representing Clay Center Christian Church dispute that and say Church Mutual is “jumping the gun and filing this case to try and escape their


responsibility to live up to their obligations under the policy.” Jeff Downing, a lawyer who represents the Church, says that Cheryl Green is still a “loved and cared-for” member of the church who should not have to fight an insurance company to cover the costs of losing her husband. He also made this interesting observation:

Church Mutual tout themselves as the largest insurer to church congrega-tions, and their website fairly well documents that point. One of the ways they do that as by marketing themselves as a company that “at every point of contact creates a rela-tionship that’s about more than just business.” We believe they should be held to that representation.

The insurance company’s filing of its own lawsuit is a typical tactic—a pre-emp-tive strike—when an insurance company is trying to get out of paying a claim. It’s a tactic that has been utilized by a number of companies that we have dealt with. When it happens, the insured, who in many cases is dealing with an adjuster when the company files suit without warning, is shocked. In this case, Church Mutual filed its own suit before Cheryl Green and the church could file their own lawsuits against the company.


XV. EMPLOYMENT AND FLSA LITIGATION

JUdge aPProveS $1.5 million terminix Settlement

A federal judge in San Francisco has approved a $1.5 million settlement for more than 1,200 employees of Terminix, the giant pest-control company, who con-tended they were wrongfully denied over-time. The employees alleged in a May 2008 lawsuit that they worked long hours without overtime, rest breaks and meal periods while out on termite inspection calls. All of the employees were training to be termite inspectors.

Terminix claimed that since termite inspections were actually sales activities, they weren’t subject to state overtime regu-lations. Also, it said the inspections are often free. Terminix makes money if the potential customer agrees to buy follow-up services or products. U.S. District Judge Susan Illston, who rejected the company’s argument in June, has now approved the settlement. I found the Terminix argument that inspec-

tions were actually “sales activities” to be most interesting. I always thought the inspection by Terminix and other pest control companies were to find out if a structure had a termite problem.

tySon Food Paying $32 million to Settle SaFety gear lawSUit

Tyson Foods Inc. will pay $32 million to settle a long-running dispute over whether it should compensate poultry plant workers for time they spend putting on and taking off protective clothing. In a consent decree filed in U.S. District Court in Colum-bus, Ga., Tyson agreed to make payments averaging around $1,000 per worker to about 17,000 current and former employ-ees around the country. This case has been in court for 12 years.

The workers accused Tyson of violating the Fair Labor Standards Act by failing to pay them for time spent putting on and taking off gear they were required to wear to protect themselves and the poultry. The union, which helped bring the lawsuit, said that current and former Tyson workers would receive payments averaging about $1,000. A federal district judge in Georgia has approved the settlement.

Workers who sued the Springdale, Ark.-based company claimed meatpacking and food process ing employees were deprived of thousands of dollars in lost pay for time they spent donning and doffing safety gear. Tyson settled a similar dispute last year with the Labor Depart-ment by agreeing to change its compensa-tion policy. The company has 117,000 workers worldwide. This settlement was announced by the United Food and Com-mercial Workers Union.

In an effort to help workers who have been wrongly denied their overtime com-pensation, lawyers in our firm routinely pursue class action litigation under the Fair Labor Standards Act to recover unpaid over-time wages. For more information on this subject, contact Larry Golston, a lawyer in our Consumer Fraud Section, at 1-800-898-2034 or [email protected]. You can also visit our website at www. beasleyallen.com.

Source: Huffington Post

XVI. PREDATORY LENDING

ForecloSing lender may be liable For conSUmer FraUd

The New Jersey Supreme Court has ruled that a home lender may be liable for con-sumer fraud law based on its allegedly breaching of agreements to forbear on fore-closure proceedings. The Court reversed dismissal of the case by a lower court. The Defendant held a mortgage on the Plain-tiff’s home and when the Plaintiff became delinquent on her payments, the Defendant obtained a judgment of foreclosure.

Before a sheriff’s sale was held, however, the parties entered into successive agree-ments under which the Plaintiff agreed to make certain payments to eliminate her arrearage. In exchange, the Defendant promised to dismiss the foreclosure action once the Plaintiff became current on her mortgage payments. The Plaintiff sued under the state’s consumer fraud statute when the Defendant allegedly threatened foreclosure despite her alleged compliance with the terms of the forbearance agree-ments.

The Defendant argued that the state’s consumer fraud law did not apply to post-judgment settlement agreements entered into to stave off a foreclosure sale. The Court disagreed, stating:

We hold that the post-foreclosure-judg-ment agreements in this case were both in form and substance an exten-sion of credit to the plaintiff originat-ing from the initial loan. Fraudulent lending practices, even in a post-judg-ment setting, may be the basis for a Consumer Fraud Act lawsuit.

Our firm is handling a number of similar cases for homeowners in Alabama and in several other states. If you need more infor-mation on this litigation, contact Bill Robertson, a lawyer in our Consumer Fraud Section, at 1-800-898-2034 or by email at [email protected].


XVII. PREMISES LIABILITY UPDATE

america electric Power FoUnd to be at FaUlt in Fatal 2007 blaSt

A West Virginia jury has awarded $7 million in damages to the family of a worker who was killed in a 2007 explosion at an American Electric Power plant in Ohio. The jury found AEP and subsidiary Ohio Power Co. At fault in the death of Lewis Timmons. Jurors awarded $2 million in compensatory damages and $5 million as punitive damages. The decedent, a truck driver for General Hydrogen, was delivering hydrogen to the Muskingum River Power Plant near Beverly, Ohio, when an explosion occurred in the hydrogen storage area.

The jury found that General Hydrogen had no responsibility for the death. During the trial the evidence revealed safety issues at the plant. Defense lawyers said plant offi-cials were aware of the safety issues, but that they relied on General Hydrogen to maintain the hydrogen storage area. Geof-frey Brown, a lawyer with Bordas & Bordas, a firm located in Wheeling, W. Va., repre-sented the Timmons’ family. Geoff, who is a graduate of the United States Military Academy at West Point, did a very good job for the family.


treeSort SUit Settled

A couple has settled a lawsuit against a county in Washington State for $1.2 million. The Plaintiffs were injured in a fall from a suspension bridge at a bed and breakfast made up of tree houses. The suit was filed in federal court after an incident in 2008 at the “Out `n’ About Treesort” in Takilma, Wash. In July 2008, Michelle Bus-winka and Maurice Breslin, their two chil-dren and another family member, were guests at the resort and were having their picture taken on a bridge on the premises. It was alleged in their Complaint that “while holding onto the railing, it suddenly and unexpectedly broke,” causing the Plaintiffs “to pitch forward to the ground, head-first.”

The Plaintiffs contended that the Jose-phine County failed to inspect and issue permits for construction of the bridge; failed to require the design to meet applica-ble standards; and failed to stop the resort from building structures without inspec-tions and permits. Ms. Buswinka suffered spinal injuries and a fractured left wrist. Mr.

Breslin had injuries to his brain, ribs, left shoulder and arm. Each Plaintiff claimed mental anguish and emotional distress.

The resort, “Out ’n’ About Treesort,” was created in 1990, and apparently has had a history of problems. It was reported that the county’s history with the resort has involved multiple legal actions, including cease-and-desist orders and threats to tear down the tree houses over permit issues. Ultimately, the county allowed the resort to continue operating under a permit designed for bed and breakfast establish-ments. The treesort is permitted to have only five rooms, or in this case, tree houses. It appears the resort has continued to expand. On its website, 18 tree houses, rope bridges, zip-lines and rope swings are listed. The county’s insurance company agreed to settle the claim.


$44 million Settlement reached in 2007 bay bridge craSh and oil SPill

A settlement in the 2007 oil spill in San Francisco Bay was announced last month regarding the owners and operators of a ship, the M/V Cosco Busan. The settlement resolves all natural resource damages, penal-ties and response costs that resulted from the ship striking the San Francisco-Oakland Bay Bridge on November 7, 2007, and from the subsequent oil spill in the bay. California Attorney General Kamala D. Harris was joined by federal, state, and San Francisco Bay Area officials to announce the settle-ment. The event killed thousands of birds, impacted a significant portion of the Bay’s 2008 herring spawn, spoiled miles of shore-line habitat and closed the Bay and area beaches to recreation and fishing. Attorney General Harris said in a statement:

This Bay is the jewel of the San Fran-cisco region and the Cosco Busan oil spill left a lasting scar across our water, natural habitats and wild-life. This settlement will allow all of these precious resources to be restored to their original health and beauty.

The U.S. Department of Justice, the State of California, the city and county of San Francisco, and the city of Richmond, Calif. filed a consent decree that requires M/V Cosco Busan owner-operators Regal Stone Limited and Fleet Management Ltd. To pay $44.4 million for natural resource damages and penalties and to reimburse the govern-mental entities for response costs incurred as a result of the 53,000 gallon oil spill that occurred when the vessel struck the San Francisco-Oakland Bay Bridge.


bad boy enterPriSeS Fined $715,000 For Failing to rePort deFective bUggieS

The U.S. Consumer Product Safety Com-mission announced last month that Bad Boy Enterprises, LLC of Natchez, Miss., had agreed to pay a c iv i l penal ty of $715,000. The penalty settlement agree-ment had been provisionally accepted by the Commission. The CPSC staff had found that Bad Boy Enterprises failed to immedi-ately report, as required by federal law, a defect involving Classic Buggies off-road utility vehicles with Series brand and SePex brand electric motors that resulted in sudden acceleration incidents and injuries to consumers.

Federal law requires manufacturers, dis-tributors and retailers to report to CPSC within 24 hours after obtaining information reasonably supporting the conclusion that a product contains a defect, which could create a substantial product hazard, creates an unreasonable risk of serious injury or death, or fails to comply with any consumer product safety rule or any other rule, regula-tion, standard or ban enforced by CPSC.

The off-road utility vehicles with Series motors were sold between 2003 and June 2007 and the off-road utility vehicles with a SePex motors were sold between 2007 and June 2010. Both the Series and SePex off-road utility vehicles could suddenly acceler-ate during use or while the ignition is in the idle position, creating a runaway vehicle sit-uation. In 2008, Bad Boy Enterprises imple-mented a repair program for the SePex off-road utility buggies to address the sudden acceleration defect without notify-ing the Commission.

The company did not report to the Com-mission until August 2009. Bad Boy Enter-prises announced the first recall for sudden acceleration on October 21, 2009. Subse-quent investigation conducted by CPSC staff uncovered that the firm failed to notify the Commission about the sudden accelera-tion defect and incidents involving the off-road utility vehicles with a Series motor. The firm failed to give CPSC full information about the Series buggies until May 2010. The firm also reported in May 2010 that a new repair was necessary for the pre-viously recalled off-road utility vehicles to repair the sudden acceleration defect.

The second recall for sudden accelera-tion in these off-road utility vehicles was in December 2010. By that time, there were over 50 reports of sudden acceleration inci-dents, resulting in injuries such as arm and leg fractures, a fractured toe, rotator cuff injury, and sore muscles. These off-road utility vehicles were sold nationwide by authorized dealers from Spring 2003 through June 2010 for about $10,000. CPSC


urges consumers with recalled Series and SePex off-road utility buggies to call the firm toll-free at (855) 738-3711 between 8 a.m. And 5 p.m. CT Monday through Friday for a free repair.

In agreeing to the settlement, Bad Boy Enterprises actually denied CPSC staff alle-gations as to the existence of a defect or hazard or that it violated the law. That’s most interesting, to say the least. Based on our firm’s handling of cases against Bad Boy Enterprises, and its off-road utility vehicles, we consider these vehicles to be very dan-gerous. These vehicles are little more than a raised golf cart with extreme handling problems. The vehicles, which can reach 25 mph, are roll-over prone and put occupants at risk of being badly hurt or killed. We are currently handling a case where a 13-year-old girl lost a leg in a roll-over of one of these vehicles. If you need more informa-tion on the subject, contact Greg Allen at 1-800-898-2034 or by email at [email protected].

Source: sacbee.com

XVIII. WORKPLACE HAZARDS

$10.7 million verdict in a work-related lawSUit

A jury in Harris County, Texas, recently returned a $10,702,449 verdict in favor of Brady Foret, a 23-year-old derrick hand, against Stewart & Stevenson, a Texas company. The case arose out of a work-related incident that occurred in 2009. In the summer of 2008, Plaintiff’s employer, Key Energy Services, sent a mobile work-over rig to Stewart & Stevenson in Odessa, for refurbishment of the mast. Key paid nearly $100,000.00 for disassembly, inspec-tion, repair, maintenance, reassembly, rein-spection and certification of the rig mast.

After the work was completed, the rig was sent back to Key Energy Services, which did not use the rig until January 2009. The rig was transported to perform workover on a drill site in Louisiana. It was rigged up, using the equipment provided by Stewart & Stevenson, which included only two of four safety pins. On the third day of use, Plaintiff was working as a derrick hand 85 feet above ground. When the rig experi-enced a catastrophic collapse, the worker fell to the ground. He suffered massive bodily and orthopedic injuries, and a closed head injury.

The work performed by Stewart & Ste-venson on the Wilson mast (112 feet tall) was to certify it for hook weight of 300,000 pounds. The mast fell with less than 200,000 pounds of weight on the hook. Normal operations were underway at the time of the collapse. The Defendant con-tended that there were serious problems with alignment of the rig that ultimately caused the mast to collapse when the rig fell off the main beam. The only Defendant at time of trial was Stewart & Stevenson, LLC. Key Energy Services, Plaintiff ’s employer, was designated by Stewart & Stevenson as a responsible third party.

The Plaintiff sustained a number of serious injuries in the fall. He suffered multi-ple fractures of the spinous processed in his back, compression fractures to his verte-brae, a torn posterior cruciate ligament in the left knee, fractured jaw, torn rotator cuff, fractures of almost all ribs, left shin lacera-tion, fractured right scapula, traumatic brain injury, left eye swelling, scalp hematoma, kyphosis and vision problems. After surgical repair of his jaw, Plaintiff was treated with multiple courses of physical therapy. He was sent for neuropsychological testing on three separate occasions. Neuropsychologi-cal testing revealed memory problems, vision problems, deficits in language, defi-cits in processing speed and deficits in executive function. Two separate MRI scans of Plaintiff’s brain showed no abnormalities.

Closed head injuries are very serious. The Plaintiff also suffers from anxiety and worry. He was sent by the workers’ compensation carrier to Houston to attend Mentis, a facil-ity specializing in the care of individuals who have suffered traumatic brain inju-ries. After two weeks of intense training, he was discharged with significant neuropsy-chological deficits. Neuropsychological testing confirmed that Plaintiff sustained neuropsychological deficits as a result of the traumatic brain injuries. He struggles every day with short-term memory loss, frustration, anxiety, and is unable to return to competitive employment. Plaintiff incurred approximately $120,000.00 in medical bills which were paid by the workers’ compensation carrier at a reduced rate of $69,678.53. At the time of the inci-dent, Plaintiff was making $53,000.00 annu-ally. He sustained loss of earnings in the past of $135,145.00. The entire verdict was com-pensatory, with no punitive damages being considered.

John W. Stevenson, Jr., and Mark T. Murray, lawyers with the Houston-based firm, Ste-venson & Murray, represented the Plaintiff and they did a very good job. Incidentally, the pretrial offer in the case was only $750,000 in response to a settlement demand of less than $3 million.

exxon loUiSiana reFinery cited For SaFety breacheS

Exxon Mobil Corp’s refinery in Baton Rouge, La., exposed workers to possible fires and explosions among other safety vio-lations, the U.S. Occupational Safety and Health Administration said in a report released last month. “It is fortunate that in this case that no one was injured,” the federal worker-safety agency’s Baton Rouge area director, Dorinda Folse, said in a state-ment. The 502,000-barrels-per-day refinery, the country’s second largest, faces $126,000 in fines for the 20 serious and two other-than-serious violations found by the agency in a March 14th inspection.

Exxon, the world’s largest company by market capitalization, reported a second-quarter profit of $10.68 billion. The viola-tions found by the agency included failures to investigate incidents as related to process safety management, failure to repair equip-ment and failure to address inconsistent thickness measurements found in pressure vessel inspections. While the fines are large, not all interested parties agree that the amount is enough. For example, USW Inter-national Vice President Gary Beevers said in a statement:

The proposed penalties are a drop in the bucket for a company that reported a second-quarter profit of $10.68 billion. Exxon Mobil should be glad it got off cheaply. If workers had been killed as a result of the compa-ny’s health and safety violations it would have cost the company a whole lot more.

The agency began a program of inspec-tions at the country’s 150 refineries in 2007, following a federal investigation of a 2005 explosion at BP Plc’s Texas City refin-ery that killed 15 workers and injured 180 other people. In its final report issued in 2007, the U.S. Chemical Safety Board found fault with refining industry stan-dards and OSHA’s oversight while assign-ing most of the blame to BP management for the blast. One failing the safety board cited in the BP explosion was not seeing malfunctions as near-misses of cata-strophic failures at the refinery.

Source: MNN.com

oSha citeS loUiSiana comPany over worker’S death

OSHA has also cited New Iberia-based Estis Well Service LLC for alleged safety vio-lations stemming from the death of a worker near Bayou Sorrel. More than $132,000 in penalties were proposed, fol-


lowing a probe of the worker’s death. OSHA said a rig mounted on a barge tipped over and crushed the man to death on March 9th.

OSHA says the alleged violations include the company’s failure to provide systems to protect employees from falling while working on an elevated drill floor. Accord-ing to an OSHA official, Estis Well Service, a company that employs about 44 workers, “willfully jeopardized the safety of its employees.”


man SerioUSly inJUred at PePSi Plant in Florida

A man’s leg was crushed in a machine at a Pepsi-Cola plant in Tampa recently. The worker had been trapped in a conveyor rail system at the plant near the University of South Florida. According to the St. Peters-burg Times, this was the third major casu-alty at the plant in six months. The 39-year-old man was cleaning the system when co-workers heard him scream. It took members of Tampa Fire Rescue’s heavy equipment team nearly 90 minutes to free the man from the machinery. The man was taken to a local hospital with life-threaten-ing injuries. According to the Times, a man was killed and another injured in March when a lift failed in the plant’s warehouse.

Source: St. Petersburg Times

XIX. TRANSPORTATION

an UPdate on heavy trUck wreckS

The media reported last month that the National Transportation Safety Board wants those drivers who maintain a commercial driver’s license to stop using cell phones while driving a heavy truck or bus. The ban would be for hand-held and hands-free cell phones. The Board endorsed the ban after it ruled that a heavy truck driver was dis-tracted by his hands-free cell phone before causing a wreck that killed ten people. The specific incident occurred in Kentucky.

The truck driver had made a short phone call, but it caused him to become distracted and lose control of the truck. As a result, his 38-ton truck crossed into oncoming traffic and crashed head on into a van carrying a family traveling to a wedding. The impact as well as the subsequent fire from the crash killed ten people in the van as well as the truck driver. The truck driver had been

texting and making phone calls throughout the day prior to the wreck.

I am sure that all of us have seen people distracted by their cell phones while driving. For some reason, drivers are unable to avoid the temptation to respond to the buzzing or ringing of a cell phone while they are driving. Yet, all drivers, not just heavy truck drivers, can be distracted. Many initiate the calls which are both busi-ness and personal. Even a momentary dis-traction from a cell phone can result in tragic consequences.

There is a responsibility on all drivers to pay attention while driving. There is an additional responsibility for professional truck and bus drivers to pay attention. These professional drivers are on the road all day and night. They are paid to transfer cargo and people on our highways. The weight of heavy trucks and buses means that even a minor collision with a passenger vehicle can turn deadly or result in serious injuries. Sadly, distracted professional drivers are becoming more commonplace. The most recent statistics show an increase in fatalities and injuries as a result of heavy truck related wrecks. In 2010 there were approximately 5,000 fatalities and 100,000 serious injuries.

I believe the proposal by the NTSB is a good one. Unfortunately, the NTSB does not have the regulatory power to ban cell phone use for professional drivers. The rec-ommendation though has been forwarded to the Federal Motor Carrier Safety Adminis-tration and all 50 states for action. In the meantime, our firm continues to prosecute cases against distracted professional drivers. Fortunately, litigation also plays an impor-tant role for companies to ensure that their drivers are properly hired, trained and mon-itored. If someone you know is involved in a wreck with one of these professional drivers, or you need more information on this subject, have them contact Cole Portis or Julia Beasley at 1-800-898-2034 or by email at Cole.Portis@beasleyallen,com or [email protected].

U.S. SaFety board PUSheS For trUcker cellPhone ban

I will give a little more insight into the reasons for the NTSB wanting to ban cell phone use by truckers. Safety investigators firmly believe that the U.S. government should ban truckers from using cellphones while driving except in emergencies. Deborah Hersman, who chairs the NTSB, had this to say:

Distracted driving is becoming increasingly prevalent, exacerbating the danger we encounter daily on

our roadways. It can be especially lethal when the distracted driver is at the wheel of a vehicle that weighs 40 tons and travels at highway speeds.

Transportation Secretary Ray LaHood has campaigned against distracted driving and last year his agency banned commercial truckers from sending text messages while at the wheel. Transportation regulators have also proposed prohibiting hand-held cell-phone use by truckers, and the NTSB rec-ommendation is seen as an important endorsement. While trucking groups support texting and cellphone bans, they don’t support any prohibition of hands-free devices. Currently, more than half of the 50 U.S. states ban texting while driving, but far fewer outlaw cellphone use. I believe cell-phone use should be banned by drivers not only of commercial vehicles, but also of all other vehicles on our highways.


$3.8 million Settlement in motorcycle craSh caSe

When most folks learn about a single vehicle motorcycle crash, they usually are pretty quick to form an opinion. Most gen-erally believe the driver must have been going too fast and not driving safely. On the other hand, some believe there must have been something that caused the crash that the driver couldn’t prevent. Unfortunately these types of motorcycle crashes do occur and many times the driver is in fact free from fault.

In one such recent case, a 50-year old nurse was badly injured in Portsmouth, Va., while riding as a passenger on a motorcycle. It was determined that a manhole cover that was raised nearly three inches above the surface of the street caused the crash. The road had recently been re-sur-faced, but the contractor failed to repair one manhole cover. It was determined that the negligence of the contractor caused this crash, and that the driver did nothing wrong.

The Plaintiff, a nurse who had taken care of others for years, was seriously injured in this horrific motorcycle crash. She suffered a traumatic brain injury, a fractured sacrum, a fractured pelvis, and two fractured ribs. She will have a painful and slow recovery from her injuries. Her case was settled for $3,817,500. Amberly Gibbs Hammer, a lawyer with the law firm Bertini, O’Donnell, & Hammer, and O.L “Buzz” Gilbert, who is with Giblert, Abiston & Keller, represented the Plaintiff and they did a very good job


for her. Both of the firms are located in Norfolk, Va.

Source: John Cooper, Injuryboard.com

$11.7 million JUry verdict againSt a caliFornia coUnty

A California jury returned an $11.7 verdict recently in favor of a woman and her daughter in a lawsuit against Contra Costa County. The case arose out of a failure by the county to keep a road safe for drivers during road resurfacing work, resulting in the death of a 56-year-old man, William Tindall. The incident occurred on a public road in unincorporated Brentwood on August 20, 2008. This was one of 15 serious accidents that occurred on the stretch of highway in 21 days of resurfacing work. Mr. Tindall, the decedent, left a wife and daughter.

Tindall, a journeyman plumber and long-time Contra Costa resident, was on his way to a job at a hospital early that morning when he pulled over to help an Army reservist whose SUV ran off the roadway and overturned after losing control on a curve that was covered with gravel. Tindall had exited his own vehicle when a second car ran off the road in the same spot and fatally struck him. Five days earlier, a woman was killed when she lost control of her vehicle in the construction zone.

Tindall’s wife, Laura, and daughter, Erin, who was ten when her father died, filed a wrongful-death lawsuit against Contra Costa County and the California Highway Patrol. The jury found the CHP free from fault. The county erected 25 mph speed limit signs during resurfacing, but it failed to cover permanent higher speed limit signs that were more prominent to motorists, as per state guidelines. The situation was made more dangerous due to the county’s prac-tice of keeping excess gravel on the roadway overnight in lieu of the industry practice of sweeping at day’s end.

The county resurfaced the road in ques-tion in 1994, 2001 and 2008, totaling 21 days of roadwork. During those 21 days there were 15 accidents on the roadway. A county employee testified that after Tin-dall’s death, covering signs and sweeping excess gravel became a standard practice during its resurfacing projects. The verdict calls for $1.5 million in economic damages, and $10.2 million for emotional pain and suffering based on the widow and daugh-ter’s close relationship to Tindall. The family was packed and ready to go on vacation in Yosemite the week of the accident. Luke Ellis, a lawyer from Orinda, Calif., repre-sented the family, and did a very good job.

Source: Mercury News

Settlement in Fatal indiana craSh reSUltS in caUtion lightS being inStalled

It was announced last month that the Indiana Department of Transportation will install new caution lights at a southern Indiana intersection where three teenagers were killed. This change was the result of a settlement with the families of two of the teens. The settlement came during the third day of a trial in Scott Circuit Court in Scotts-burg, Ind., in a lawsuit filed by the families of 18-year-old Cory Emerson and 19-year-old Timothy Brunmeier. The two youngsters were killed in the August 2007 crash. Juliane Kraus, a 19-year-old, was also killed in the crash. The Volkswagen Jetta they were in was broadsided by a Chevy Blazer shortly after midnight at the intersection of U.S. 31 and a state road. The agreement also includes an undisclosed monetary settle-ment which is confidential.

XX. HEALTHCARE ISSUES

Fda qUeStionS SaFety oF blood thinner drUg

The U.S. Food and Drug Administration has recommended against the immediate approval of Xarelto, which is Bayer AG and Johnson & Johnson’s anti-clotting drug, as a treatment to prevent strokes in patients with atrial fibrillation. The FDA said data from a late-stage study of more than 14,000 patients, known by the acronym ROCKET, doesn’t make it clear how safe Xarelto is, or whether it’s as effective as the widely-used Warfarin. Xarelto was approved in July for reducing the risk of deadly blood clots in patients getting knee and hip replacements, a small part of the potential patient pool. The approval followed a delay of about two years due to FDA concerns about the “internal bleeding risk.”

FDA officials said that an additional patient study could be done, which would cause a long delay before the drug-makers could again seek approval. Bayer Healthcare already markets Rivaroxaban, a daily pill which works by blocking a clotting protein, in 110 countries around the world. Researchers said Xarelto is one of several experimental drugs being developed as a replacement for Warfarin, a medicine origi-nally derived from rat poison that has been used safely and effectively for seven decades to prevent strokes.

It appears that the newer drugs are all meant to be more convenient than Warfa-rin. That drug must have its dose adjusted using frequent blood tests, and, potentially, to cause less bleeding. Of the three new drugs, only Xarelto is given once a day, with the other drugs requiring twice-a-day dosing. The Alabama Legislature must take action at the earliest opportunity to address this most serious matter.

Source: ibtimes.com

e. coli victimS helPed bring aboUt change in USda rUleS

Federal agriculture officials have con-firmed that inspectors next spring will begin testing samples of beef trim for six strains of E. coli capable of producing toxins that cause infection and death. The move expands long-standing federal rules that ban the better-known E. coli O157:H7 strain linked to illnesses from undercooked meat. Dr. Elisabeth Hagen, under secretary for food safety, stated in a news conference: “This is a really significant step forward for American families. This is about preventing illness. This is about saving lives.”

A small group of victims and family members petitioned the United States Department of Agriculture in 2009 to clas-sify six strains of so-called shiga-toxin pro-ducing E. coli, known as STECs, as adulterants subject to testing and ban. The strains include E. coli O26, O45, O103, O111, O121 and O145, known as “the big six,” which collectively are estimated to cause about 113,000 infections and 300 hospitalizations each year. In 2010, the non-O157 STECs caused more infections than the dominant strain of E. coli, and CDC offi-cials estimate that the bugs might cause food-borne illness at twice the rate of E. coli O157.

When the USDA didn’t respond in a timely fashion, Marler Clark of Seattle, a food safety law firm in Seattle representing the group, threatened to sue the agency for denying the petition. It’s not clear how the petition and other efforts by food safety advocates to pressure USDA into expanding its rules about non-O157s figured into the long-delayed decision. The new rules were reportedly drafted as early as January, but for some reason were held up for review at the Office of Management and Budget. Con-sumer advocates say the change will make the food supply safer. Jean Halloran, Direc-tor of Food Policy Initiatives at Consumers Union, had this to say:

By classifying these dangerous patho-gens as adulterants, the USDA is adopting a ‘zero-tolerance’ policy


toward E. coli in meat that we have long fought for. These strains of E. coli have been identified for years as causing serious illness and even death. This higher standard will help to ensure that disease-causing food is kept off store shelves and out of con-sumers’ homes.

Some meat producers and retailers had already implemented the testing. Beef Products Inc. of Dakota Dunes, S.D., started testing for the “big six” non-0157 E. coli strains in mid-July. Since then, the company has held back 63,000 pounds of beef, about two-tenths of one percent of its product. The firm sells about 400 million pounds of beef annually. Retail giant Costco also requires its suppliers to test for the non-O157 E. coli strains. Craig Wilson, the company’s assistant of food safety, praised the USDA’s new rules, calling it “a pretty big step.” Hopefully, other compa-nies will now follow their lead and will abide by the new rules.

Source: MSNBC

health dePartment holdS hearing on SPice USe in alabama

According to State Health Officer Don Williamson, an herbal and chemical com-pound that mimics marijuana has become a growing and most serious problem in Alabama. Dr. Williamson said the product is sold in stores under a variety of names, including “Spice,” ‘’K2” and “Yucatan Fire.” It’s a blend of herbs coated with a chemical compound similar to the natural substance in marijuana that gives users their “high.” The Regional Poison Control Center at Chil-dren’s Hospital of Alabama reports receiv-ing 67 calls from people exposed to the substance since October 2010. The Depart-ment of Public Health held a public hearing about “Spice” on September 19th in Mont-gomery. The hearing focused on the extent of the problem and possible solutions. It appears this is a massive problem that has gone virtually unnoticed by parents.


XXI. ENVIRONMENTAL CONCERNS

trial iS in ProgreSS in tenneSSee on tva aSh SPill lawSUitS

The first federal trial on lawsuits seeking damages from the Tennessee Valley Authori-ty’s huge coal ash spill started on Septem-ber 19th in Knoxville and was still going at press time. The bench trial (no jury), involv-ing six lawsuits, is before U.S. District Judge Thomas Varlan. The lawsuits seek damages from the TVA dam collapse in 2008 that spi l led 5.4 mil l ion cubic yards of sludge. This trial will establish the issue of liability in the case and is very important. Hundreds of lawsuits have been filed. The spill ruptured a natural gas line, disrupted power and transportation, ruined a number of homes and forced a nearby residential community on the Emory River to evacuate.

It’s contended in the lawsuits that TVA, the nation’s largest public utility, was negli-gent in constructing, maintaining and inspecting the earthen dam at the coal-fired Kingston Plant. Hundreds of people were hurt from the spill and have filed lawsuits. David Byrne and Brantley Fry, lawyers from our firm, are among the lawyers represent-ing the Plaintiffs in this case. Other lawyers on the trial team are Jeff Friedman from Bir-mingham and Joanne McLaren, Paul Brandes, Gary Davis and Beth Alexander, all from Tennessee.

more on hydraUlic Fracking

The oil and gas industry says hydraulic fracturing, or fracking, is safe. Environmen-tal Working Group wants more science to make sure it’s really safe. The oil and gas industry claims that hydraulic fracturing has never contaminated drinking water wells. EWG’s recent study, “Cracks in the Façade,” uncovered documents showing that in 1987, the Environmental Protection Agency concluded that fracking could—and did—contaminate a water well used by a West Virginia family.

But the oil and gas industry insists that this controversial drilling technique is safe—even though the EPA also concluded that the incident in West Virginia was repre-sentative of contamination from oil and gas drilling. Fracking is escalating as drilling companies seek to exploit gas deposits trapped in untapped shale formations. But scientific understanding of the technology’s hazards hasn’t kept up with the expansion

of drilling. EPA must step up and protect our drinking water and land by intensifying its investigations of the potential risks to air, water and the environment.

Fracking injects a mix of water, sand and chemicals into underground shale forma-tions under high pressure to free embedded deposits of oil and gas. It has been associ-ated with drinking water contamination and property damage across the nation, from Pennsylvania to Wyoming, but the industry has always denied that the process can contaminate groundwater. Yet EWG’s investigation turned up a long-forgotten EPA report that said that in 1982, Kaiser Gas Co. drilled and hydraulically fractured a natural gas well on private property in Jackson County, W. Va. In a 1987 report to Congress, the EPA concluded that the process had contaminated the landowner’s well. The EPA called this contamination “illustrative” of the types of pollution associ-ated with natural gas and oil drilling.

The EPA might have included other examples of groundwater pollution from fracking, but the agency’s investigation was hampered by confidentiality agreements between industry and affected landowners. For almost 25 years neither the industry nor the EPA itself has mentioned this study or followed up with more research to deter-mine how fracking fluid might seep into well water. That’s way too long to leave our drinking water at risk.

Source: action.ewg.org

XXII. THE CONSUMER CORNER

chrySler ceo aSked to recall JeeP grand cherokee

The Center for Auto Safety has requested a recall of the Jeep Grand Cherokee. In a letter sent to Chrysler CEO Sergio Mar-chionne last month, the Center for Auto Safety released a comprehensive analysis of fires in 1993-2004 Jeep Grand Cherokees showing that the Grand Cherokee with the fuel tank behind the rear axle had a fire death rate 20 times higher than the Ford Explorer with a fuel tank in front of the rear axle. The analysis revealed how Chrysler’s own crash tests disclosed the deadly design details including a fuel filler hose that pulled loose.

Crash tests at FHWA and KARCO Engi-neering have confirmed that survivable rear impacts produced massive fuel leaks which would result in fires. The 1993-2004 Jeep


Grand Cherokee was designed by the old Chrysler Corporation. The fuel tank was relocated in 2005 by DaimlerChrysler. The design problem has and will continue to claim a terrible toll of burn victims. The CEO of the new Chrysler Group LLC has repeatedly spoken out about the social responsibility of leaders not to close their eyes to problems but to find solutions. The Center for Auto Safety and the families of victims have called on this CEO to recall all 1993-2004 Jeep Grand Cherokees.

Source: autosafety.org

PUblic citizen SeekS ban on Pelvic SUrgical meSh

Public Citizen, the consumer advocacy group, has called on government regulators to ban a type of surgical mesh used to treat pelvic collapse, saying it exposes patients to serious risks. A petition was sent recently by Public Citizen to the Food and Drug Administration asking the agency to ban pelvic surgical mesh inserted through the vagina. About 75,000 women had prolapse surgery with forms of the mesh last year, according to the FDA.

The FDA announced recently that com-plications with mesh are higher than previ-ously estimated, with many women experiencing pain, bleeding and infec-tion. According to Public Citizen, mesh offers no benefit over traditional surgery with stitches. Public Citizen’s Dr. Michael Carome, in making his request, had this to say: “Even the FDA seriously questions the safety and effectiveness of these mesh prod-ucts, so they should be removed from the market immediately.”

I agree with Public Citizen and commend them for taking on this needed action. Our firm is currently evaluating a number of serious claims resulting from use by the sur-gical mesh. If you need additional informa-tion on this litigation, contact Melissa Prickett, at 1-800-898-2034 or by email at [email protected].

Source: AJC.com

whiStle-blower SUit accUSeS hoSPice comPany oF medicare FraUd

A Wisconsin lawsuit alleges that South-ernCare, an Alabama-based hospice company, fraudulently enrolled Madison-area patients in hospice care and charged Medicare for the services. The federal lawsuit was unsealed on September 14th. SouthernCare, based in Birmingham, paid the federal government $24.7 million in January 2009 to settle similar claims in Alabama. Karina Christensen, the former

clinical director of SouthernCare’s Madison, Wis. office, filed the new suit in February in U.S. District Court in Wisconsin. It was unsealed after the federal government declined to intervene.

In the new suit, the Plaintiff alleges that SouthernCare charged Medicare for care the company provided to patients who didn’t have terminal illnesses. Medicare, the main payer for hospice care, or comfort care preceding death, requires patients to have six months or less to live as deter-mined by a doctor. The whistle-blower suit is the first known Medicare fraud case against SouthernCare since the $24.7 million settlement, according to Ms. Chris-tensen’s lawyer, Nora Hitchcock Cross of Milwaukee, who also had this to say about the latest suit:

It does appear that the lesson was not learned. We believe this is a nation-wide practice, and we’re talking large sums of money.

SouthernCare, a for-profit company with 75 offices in 15 states, opened its Madison office in 2007. It also has an office in Green Bay. The Plaintiff, Ms. Christensen, claims her supervisors encouraged enrollment of patients who weren’t terminally ill and dis-missed her complaints that the practice was illegal. The Plaintiff was fired shortly after sending the board of directors and the regional director a letter about her con-cerns in August 2010. In many cases, the suit alleges, Ms. Christensen didn’t receive medical information about patients until several days after they had been enrolled and Medicare had been billed. The suit also alleges that:

SouthernCare encouraged the prac-tice of admitting and falsely billing for unqualified patients by setting goals based on the number of new admissions and the average daily census of patients.

Examples of a dozen unnamed patients are included. One person admitted as a “cancer patient” was free of cancer accord-ing to her medical records, the suit says. Another, listed as having heart disease, “showed no signs or symptoms of heart disease.”

Source: Madison.com

JUry awardS victimS oF Salmonella oUtbreak $1.4 million

The victims of the 2008 salmonella out-break at the International House of Pan-cakes in Amarillo, Texas, have won their case. A jury awarded the Plaintiffs more

than $1.4 million in damages. The jury returned a verdict of $140,000 for each of the ten Plaintiffs. Dean Boyd, one of the victims’ lawyers, said in closing arguments that the compelling, graphic testimony should be a warning for other Amarillo res-taurants to keep their facilities clean.

Two of the Plaintiffs almost died and all others had very bad injuries. While the res-taurant took responsibility, its lawyers asked the jury to assess “a fair compensation” to the Plaintiffs. IHOP agreed to pay the victims’ medical bills and lost earnings, but the food chain’s lawyers challenged the victims’ pain and suffering claims.

The victims and their spouses testified during the trial about the severe stomach pains and extended hospital stays after they ate at the restaurant. Other Plaintiffs in the case had settled nearly half of the claims originally a part of the lawsuit before trial. The suit, filed in May 2010, included 24 IHOP patrons as Plaintiffs. The settlement amounts were confidential.

The case arose from three separate sal-monella outbreaks that sickened the restau-rant’s patrons, starting in June 2008. From the first known poisoning case in June to a city health review in September, more than 125 people who ate at the IHOP location were victims of salmonella poisoning. IHOP employees said the syrup pitchers were not washed or sanitized before they were refilled. During that time, the restaurant closed its doors three times in response to potential salmonella outbreaks. The clo-sures were prompted by a June 2008 city review in which 11 IHOP employees tested positive for the salmonella toxin. In the last case, which prompted the September 2008 closure, city officials determined the cause was an infected water bath used to warm bottles of syrup.

Source: Amarillo.com

diSh tv to Pay $125,000 to State oF vermont to Settle letter wording

DISH Network will pay $125,000 to the State of Vermont to resolve a complaint about a letter sent to some subscribers that including wording the State considered unfair and deceptive. The State says that, in July 2010, the satellite television provider sent 310 letters to Vermont consumers that included phrases such as “Urgent Action Required” and “Please read immediately to avoid service interruption.” The letter went on to claim that “replacement” of consumer equipment was “necessary” and “free.”

In settling with the State of Vermont, DISH admitted no immediate equipment upgrade was necessary. According to Attor-ney General William Sorrell, under Ver-


mont’s Consumer Fraud Act, words like “urgent,” “immediately,” “necessary” and “free” have significant meanings. General Sorrell says using such language to trigger unnecessary action won’t be tolerated by his state.

Source: Forbes

mobile-baSed comPany SUeS credit rating Firm

A local disaster cleanup company has sued a credit rating agency for $3 million, accusing it of failing to correct mistakes that have resulted in lost business. DRC Emergency Services contends that Experian Information Solutions listed a pair of bank-ruptcies and multiple tax liens on DRC’s credit report. As a result, DRC was denied credit in June, according to the lawsuit filed in federal court in Mobile. DRC contends the bankruptcies and tax liens appear to belong to an unrelated company that uses the initials DRC as an abbreviation for its own name.

According to the lawsuit, it’s “undisputed that the information Experian had was incorrect” and that no other credit agency included the black marks on their reports. The civil Complaint contends that DRC disputed the information via email on June 17th, according to a process set up by Experian. The Plaintiff has alleged that the ratings firm took no action and did not respond to a request on July 6th for an update, and that Experian also failed to respond to a follow-up request on August 17th. The bad report has had real conse-quences, according to the suit.

The Complaint contends that DRC was denied credit in June and July when it attempted things like negotiating contracts to rent apartments for employees and estab-lishing leasing accounts. The suit seeks $1 million in compensatory damages and $2 million in punitive damages. Founded in 1989 after Hurricane Hugo, DRC has worked extensively cleaning after natural disasters, from Hurricane Katrina to last year’s Haiti earthquake to recent tornadoes in Alabama and Missouri. Kip Sharpe, a lawyer from Mobile who is a graduate of Cumberland School of Law, represents DRC in this most interesting case.

Source: AL.com

cPSc warnS oF drowning dangerS

Now that the summer months are over, drowning threats aren’t on the radar screens of most folks. When most of us think of the danger of drowning, we nor-mally think only of pools, lakes, or rivers.

But the danger of drowning for young chil-dren is still a real one, all year long. Drown-ing is the leading cause of unintentional death among children ages one to four years. With Labor Day representing the tra-ditional end of the pool season, parents and caregivers need to know that drowning risks inside the home are still present. In fact, bathtubs are the second leading loca-tion, after pools, where young children drown. Buckets, other containers, and even landscaping features, also can present a danger of drowning.

A new report from CPSC on submersions related to non-pool and non-spa products indicates that from 2005 to 2009, there were 660 submersion incidents involving children younger than five years old. There were 431 fatalities, 212 injuries and 17 inci-dents with unknown injuries. The majority of the victims were younger than the age of two and most of the incidents involved bath or bath related products. CPSC’s analy-sis of the fatalities found that 92% occurred in residential settings. Chairman Inez Tenen-baum stated:

Young children can drown in just a few inches of water. I urge parents and caregivers to constantly super-vise young children around bathtubs, bath seats and buckets. There are simple steps that every family can take to prevent drownings in the home.

Many of the reported incidents involved a lapse in supervision, such as a parent or caregiver leaving the bathroom while the child was in the bathtub to answer the phone or door, or to retrieve a towel. In other incidents, an older sibling was left to watch a younger sibling. CPSC’s drowning prevention safety tips include:

• Never leaveyoungchildrenalonenearany water or tub or basin with f luid. Young children can drown in even small amounts of water.

• Alwayskeepayoungchildwithinarm'sreach in a bathtub. If you must leave, take the child with you.

• Don't leaveababyoryoungchild inabathtub under the care of another young child.

• Neverleaveabucketcontainingevenasmall amount of liquid unattended. Tod-dlers are top heavy and they can fall headfirst into buckets and drown. After using a bucket, always empty and store it where young children cannot reach it. Don't leave buckets outside where they can collect rainwater.

• Consider placing locks on toilet seatcovers in case a young child wanders into the bathroom. Learn CPR (cardiopul-monary resuscitation). It can be a life-saver when seconds count.

Hopefully, this information from the CPSC will get the attention of all parents and caregivers. If so, it can help save lives.

Source: CPSC

conSUmerS not reqUired to arbitrate warranty claimS with car dealerS

A federal appeals court handed car owners a victory by striking down a requirement that they arbitrate warranty disputes with dealers. Reversing a lower court ruling, the 9th U.S. Circuit Court of Appeals agreed with a Porsche 911 Turbo owner that her sales contract requiring her to submit warranty claims to mandatory arbitration violated the federal Magnuson-Moss Warranty Act, which governs con-sumer product warranties. “Written warranty provisions that mandate pre-dis-pute binding arbitration are invalid,” Judge Stephen Reinhardt wrote for a two-one panel of the 9th Circuit.

This decision is at odds with rulings by two other federal appeals courts that upheld similar arbitration clauses. That raises the prospect that the decision may be reconsidered by the 9th Circuit, or appealed to the U.S. Supreme Court. The Plaintiff, Diana Kolev, said Porsche refused to repair her $92,000 Porsche under warranty after it began suffering from a stalling engine, sus-pension problems, a loose shifter and a foul smell coming from its interior vents.

In his opinion, Judge Reinhardt wrote that Congress authorized the Federal Trade Commission to adopt rules governing war-ranties, and that it was “reasonable” for that agency to strike down binding arbitration under a different law. The law’s purpose is “to protect consumers from predatory war-rantors” and shield them from “involuntary agreements that they cannot negotiate,” the judge wrote.

Citing this and other factors, Judge Rein-hardt also rejected decisions by the U.S. Courts of Appeals for the Fifth and Eleventh Circuits that the warranty law does not interfere with another federal law, the Federal Arbitration Act, that encourages courts to enforce arbitration agree-ments. The judge distinguished an April ruling by the Supreme Court in favor of AT&T Inc. That upheld arbitration agree-ments under the FAA. Judge Reinhardt said that ruling was intended to enhance effi-ciency rather than promote consumer inter-ests. The Ninth Circuit returned the Kolev


case to the federal district court in Santa Ana, Calif., for further proceedings.


SerioUS health riSkS PoSed by the ShoUlderFlex maSSager

The FDA has notified health professionals and consumers of serious health risks posed by the ShoulderFlex Massager. The FDA says it’s aware of reports to the Con-sumer Product Safety Commission of one death and one near-strangulation associated with the ShoulderFlex Massager. These inci-dents occurred when a necklace and cloth-ing became caught in a piece of the device that rotates during use. Two other reports involved clothing and hair that were caught in the device.

The ShoulderFlex Massager, distributed by King International, is a personal massage device designed for home use to provide deep tissue massage to the neck, shoulder and back while the user lies on a f lat surface. King International has distributed 11,934 devices since October 18, 2003. The devices were sold at various stores and online retailers in the United States. The CPSC says not to use the ShoulderFlex Mas-sager and to dispose of the device compo-nents separately so that the massager cannot be reassembled and used. The FDA is evaluating King International’s plan for recall of the ShoulderFlex Massager, which may lead to additional action or communi-cation by the FDA or King International.

FoUrteen rePorted deathS From contaminated cantaloUPeS

As this issue was being sent to the printer, we learned that the number of deaths caused by a contaminated batch of cantaloupes had reached fourteen. The Center for Disease Control and Protection (CDC) confirmed that number in an update. Also, it was reported that as many as 75 people across fourteen states were also reported to have been made sick. Almost all victims consumed listeria-infected canta-loupe originating in Colorado. Health offi-cials are concerned that more victims are likely to appear due to the long incubation period of the bacteria. Four outbreak-associ-ated strains of listeria have been traced to Rocky Ford cantaloupes produced by Jensen Farms in Holly, Colo.

The FDA confirmed that listeria was found in samples taken from a Denver-area store and the Jensen Farms’ packing facil-ity. The melons were shipped to at least 17 different states across the US between July 29th and September 10th. Jensen Farms

issued a nationwide recall of its canta-loupes on September 14th, following news of the multi-state outbreak. The fruit company is collaborating fully with federal authorities to remove all potentially con-taminated melons from general sale. But, some of the produce could still be on sale in grocery stores.

At press time Colorado had reported the highest number of infections, followed by New Mexico, Texas, and Oklahoma. Other states affected by the outbreak include Cali-fornia, Colorado, Illinois, Indiana, Maryland, Montana, Nebraska, Virginia, West Virginia, Wisconsin, and Wyoming.

Listeria outbreaks, which affect around 800 people a year in the U.S., are not typi-cally associated with produce, but bacteria were found in sprouts in 2009 and celery in 2010. The bacteria can cause fever, muscle aches, stiff neck, confusion and diarrhea or other gastrointestinal problems, according to the CDC. It is often most deadly among high-risk groups, such as the elderly. The median age of those infected in the recent outbreak is 78.


nhtSa inveStigating PoSSible JeeP air bag Problem **SePtember 27, 2011—aSSociated PreSS—wSPa.com

The National Highway Traffic Safety Administration says it is investigating reports that the air bags on some Jeep Liberty sport utility vehicles are suddenly going off without a crash happening. The agency says on its website that in four of seven confirmed cases, the front driver-side air bag went off, while in three both the driver- and passenger-side air bags deployed. The investigation involves an esti-mated 387,356 vehicles made during the 2002 and 2003 model years. Five of the seven reports involved injuries. Some owners said they saw the air bag light come on, or intermittently come on, before the air bags went off.


reebok to Pay $25 million over toning Shoe claimS

Reebok International Ltd. will pay $25 million to customers to settle charges by the Federal Trade Commission that it made deceptive claims in ads that its toning shoes would measurably strengthen the legs and buttocks of those who wear them. Reebok, based in Canton, Mass., has centered much of its business on toning shoes, which

include its EasyTone walking shoes, RunTone running shoes and EasyTone flip flops. The company claims the shoes, which have a rounded, slightly unstable sole, encourage strength by engaging more of a wearer’s muscles.

Reebok made a number of claims in its advertising and marketing materials that the FTC said it could not support. That includes claims that its EasyTone footwear had been proven to lead to 28% more strength and tone in the buttock muscles and 11% more strength and tone in ham-string and calf muscles than regular walking shoes. Under the settlement, Reebok is also barred from making any claims that the shoes add strength unless they are backed by scientific evidence. Reebok, based in Canton, Mass., is owned by German shoe company Adidas. Consumers seeking a refund will be paid either directly from the FTC or through a court-approved class-action lawsuit.


XXVIII. RECALLS UPDATE

Each month we hope to have fewer safety-related recalls to write about. But again there have been a very large number of product recalls over the past weeks. Serious safety-related recalls have become commonplace. The following are some of the more significant recalls since those reported in the September issue. Automak-ers recalled more than 800,000 cars and trucks during a single week last month for defects including faulty airbags. Readers are encouraged to contact Shanna Malone, the Executive Editor of the Report, if more information is needed on any of the recalls. We would also like to know if we have missed any safety recalls that should be included in this issue.

bmw recallS 241,000 carS in the U.S.

Bayerische Motoren Werke AG (BMW) has recalled 241,000 3-Series cars in the U.S. because of a rear-light defect it says may cause crashes. The recall is for model years 2002-05 of the 325i, 325xi, 330i and 330xi cars. BMW told NHTSA that lights including tail, brake and turn signals may only work inter-mittently on the cars. This “reduces the ability to warn other motorists of the driver’s intentions” and “could cause a vehicle to crash without warning,” the company said.


BMW also recalled 120,000 diesel cars worldwide because of a defect that could cause filter heaters to keep running after engines are turned off. The rear-light problem affects cars only in the U.S., according to Andreas Lampka, a BMW spokesman, who says the defect has been fixed in 20,000 vehicles as part of regular maintenance.

There have been no accidents as a result of the problem, according to BMW. The diesel-filter issue risks drain-ing the batter y dur ing winter months. About 2,000 X5 sport-utility vehicles are affected by the filter-heater issue in the U.S. The SUVs were built between September 2008 and April 2009. In other markets, some 1-, 5- and 7-Series cars are affected as well as X3 and X6 SUVs.

chrySler modelS recalled

Chrysler/Town and Country 2008, Chrysler Voyager 2008, and Dodge/Grand Caravan 2008 have been recalled. These vehicles may have a heating and air conditioner leak. If the leak affects the occupant restraint control, the airbag warning light may be illuminated, which can cause the air bag to be accidentally deployed. Owners may contact Chrysler at 1-800-853-1403. Dealers will replace the affected air bag free of charge. Only some cars or trucks recalled are affected. Contact a dealer for your model to see if it is included in the recall. The dealer will tell you what to do.

honda recallS 310,773 PilotS in the U.S.

Honda Motor Co. has recalled 310,773 Pilot vehicles in the U.S. To inspect and potentially replace the front seat belts due to problems with the belts’ stitch-ing. The recall is for Pilots from the 2009 through 2011 model years. The driver and front-passenger seat belts may have been manufactured improp-erly, according to Honda.

The stitching connecting the lap section of the belts to the outboard anchor webbing may be incomplete or missing. That means the belts may potentially come loose in a crash, increasing the risk of injury. Honda says there have been no injuries because of the defects. Owners of the recall-affected Pilots should take them

to an authorized dealer for inspection when they receive the recall notice.

honda recallS vehicleS becaUSe oF Power window iSSUeS

Honda Motor Co. has also recalled a total of 962,000 cars worldwide to fix power windows and computer systems. Honda will recall 936,000 units of the Fit subcompact, CR-V crossover and Fit Aria in North America, Asia, Europe and Africa. The Fit is called Jazz in some overseas markets, while the Fit Ar ia is a lso known as City. According to Honda, the recall was prompted by defects in driver’s-side power window switch units, which could potentially melt and catch fire.

hyUndai iSSUeS recall on SUvS dUe to airbag ProblemS

Hyundai has recalled 205,233 of its Santa Fe and Veracruz crossover vehi-cles, citing problems with their airbag systems. NHTSA says the 2007 and 2008 model year cars were built between December 26, 2006, and March 21, 2008. The clock spring contact assembly for the driver’s airbag may become damaged through usage over time, according to NHTSA. That could keep the airbag from deploying and protecting the driver in the event of a crash. Hyundai dealers will replace the clock spring assemblies as needed for free. The recall is expected to begin this month.

vw recallS JettaS over tailPiPe bUrn concernS

Volkswagen has recalled more than 30,000 Jetta sedans from the 2011 and 2012 model years because the tailpipes can stick out too far and burn people. According to the National Highway Traffic Safety Administration, stainless steel exhaust pipe tips installed at the point of importation can stick out farther than the factory-installed tailpipes. If the tips are hot, people could be burned on the legs. According to the agency, Volkswa-gen received complaints of burns in July and began investigating. Dealers will inspect the cars to see if the exhaust tips are too long and replace them free of charge if necessary.

SUbarU recallS vehicleS

Subaru issued three separate recalls last month. One was a recall of almost 70,000 Outback and Legacy models from 2011 because the glass portion of the moonroof might fly off. The auto-maker told NHTSA there wasn’t enough adhesive applied to the glass portion of the moonroof on the vehi-cles assembled from Aug. 3, 2010 to July 1, 2011.

Two earlier recalls covered almost 500,000 vehicles. One of these recalls affects 195,000 Legacy and Outback models from the 2010-11 model years. This recall was to fix a wiper motor that may overheat and catch fire.

The third recall, covering about 295,000 vehicles, includes the 2002–07 Impreza, 2003–08 Forester and 2005-06 Saab 9-2x, which is based on the Impreza. Subaru says a front control arm may break if corroded, making the vehicle difficult to control.

kia recallS

Kia has recalled more than 10,000 2007-08 Sorento passenger cars because of a computer glitch that could turn off the front passenger airbag when an adult is in the passen-ger seat. After an investigation that lasted nearly two years, Kia has agreed to recall about 10,600 of its 2007-08 Sorento crossover S.U.V.’s because the passenger air bag may not work. In November 2009, the NHTSA began investigating reports saying that when an adult sat in the front passenger seat, a sensor would conclude that a small child was sitting there and subse-quently turn off the air bag.

deere recallS aboUt 15,500 lawn tractorS

Deere & Co. has recalled about 15,500 lawn tractors sold since last December due to a problem involving mower blade brake assemblies that increases chances that the operator can be cut by the spinning blades. The recall affects tractors sold at John Deere dealers, Lowe’s and Home Depot stores across the country, according to a state-ment from the U.S. Consumer Product Safety Commission. The tractors are green, with yellow seats, and they have model numbers D100, D110, D120 and D130. All have a 42-inch Edge Cutting System mower deck.


The statement said hardware used to hold blade brake assemblies on the mower decks can break, and that can cause blades to spin longer than normal after the operator stops power. The Commission said custom-ers should stop using the recalled products immediately. Deere, based in Moline, Ill., is the world’s largest maker of agricultural equipment. It also makes construction, forestry and land-scaping equipment, such as backhoes, excavators, riding mowers and leaf blowers. Consumers with questions can contact Deere at 800-537-8233. Its shares rose 36 cents to $76.92 in midday trading Wednesday.

ktm north america recallS oFF-road motorcycleS

KTM North America Inc., of Murrieta, Calif., has recalled about 6,117 Off-Road Motorcycles. The motorcycle handlebar clamp can develop cracks during normal use causing the handle-bars to move from their set posi-tion. This can result in the rider losing control of the vehicle, posing a fall or crash hazard. KTM says it received a report of one incident in which the consumer was hospitalized from inju-ries received in a crash after the han-dlebar clamps cracked and failed to secure the handlebars.

This recall involves all 2011 KTM and Husaberg off-road/competition motor-cycles. The affected KTM bikes are orange and black in color with the model name and KTM™ logo located on the right and left shrouds. The affected Husaberg bikes are blue, yellow and white in color with the model name and Husaberg logo located on the r ight and lef t shrouds. Authorized KTM and Husa-berg dealers sold the motorcycles nationwide from April 2010 through May 2011 for between $6,200 and $9,500.

Consumers should immediately stop using the recalled motorcycles and contact authorized KTM and Husaberg dealers to schedule a free repair. For additional information, consumers should contact authorized KTM or Husaberg dealers. Authorized dealers can be located by going to www.ktm.com or www.husaberg.com. Consum-ers may also call KTM North America Inc. customer relations at (888) 985-6090.

cleanFUel USa recallS hoSe FittingS on blUe bird ProPane viSion School bUS

CleanFUEL USA, a leading supplier of alternative fuel infrastructure and liquid propane engine systems, has recalled the fuel hose fittings on the Blue Bird Propane Vision school bus. The company determined a poten-tial safety-related condition exists with a faulty conical hose fitting. No acci-dents have been reported associated with this recall, according to the company. CleanFUEL USA says that the supplier of the failed components was notified and acknowledged this issue. These parts will no longer be used in future models.

CleanFUEL says that, during an inde-pendent quality review, it found evi-dence of the hose fitting separating from the fuel line, which could poten-tially cause a small amount of propane fuel to be released. The company says there are several mechanisms in place to safely stop the fuel flow. But the cutoff of fuel from these safety mecha-nisms may result in a vehicle stall. In partnership with Blue Bird, CleanFUEL is pursuing a 100% recall of all Propane Vision school bus products issued before August 2011 within the affected population. CleanFUEL will replace faulty conical hose fittings with a new crimp hose fitting design at no charge.

weehoo recallS bike trailerS

Weehoo Inc., of Golden, Colo., has recalled about 2,700 Weehoo iGo Bicycle Pedal Trailers. The receiver on the trailer’s seat post hitch can crack and cause the trailer to detach, posing fall and crash hazards to the child in the seat. CPSC and Weehoo have received one report of the trailer’s receiver cracking while in use. No inju-ries have been reported. This recall involves 2011 Weehoo iGo bicycle trailers manufactured between April 2011 and July 2011. The trailer has a steel frame with an adjustable seat for passengers 38 to 52 inches tall, two pedals with straps, an enclosed sprocket and chain, a 20-inch wheel, two pannier pockets, a flagpole and a flag. The seat, pannier pockets, and flag are made of red, heavy-duty nylon. The pannier pockets and the flag have the word “Weehoo” and the logo printed on them in reflective material. The serial numbers for the recalled trailers contain the letter “D” and can be found on the underside of the iGo frame, by

the pedals. They were sold at bicycle retail stores nationwide between April 2011 and July 2011 for about $390. Consumers should immediately stop using the recalled iGo trailers and contact Weehoo for the repair. Con-sumers will receive a steel reinforce-ment sleeve to be installed over the receiver. For additional information, contact Weehoo at (800) 538-6950 anytime, or visit the company’s website at www.weehoobicycletrailer.com.

Petzl america recallS belay deviceS dUe to Fall hazard

Petzl America Inc., of Clearfield, Utah, has recalled about 18,000 GRIGRI 2 belay devices with assisted braking in the U.S. Excessive force on the handle can cause the device to become stuck in the open position. When stuck open, the assisted braking function is dis-abled, posing a fall hazard to consum-er s . Seven devices worldwide, including one in the U.S., were returned after the users noticed that the handle could become stuck in the open position. No injuries have been reported, according to the company.

The GRIGRI 2 belay device is used by rock climbers to control the climber’s safety rope during a fall or while being lowered on the rope. The first five digits of the serial numbers of devices affected by this recall range from 10326 to 11136. The serial number is engraved on the body of the product underneath and protected by the folded handle. The belay devices are four inches in length and two inches in width, and come in grey, blue, and orange colors. Sports and recreation stores sold them in the U.S. And Canada from February 2011 to June 2011 for about $95. Consumers should stop use of the affected GRIGRI 2s immediately, and contact Petzl America for a replacement. For additional infor-mation, contact Petzl America at (800) 932-2978 or visit http://www.petzl.com/us/outdoor/us/recall-replace-ment-grigri-2.

Second wiPe-maker iSSUeS recall aFter bacteria detected

A second company that makes and dis-tributes alcohol prep wipes to prevent infection has issued a large recall because of potential bacterial contami-nation. The company shares a common supplier with a Wisconsin wipe-maker whose products have been blamed for


illnesses and death. Professional Dis-posables International Inc., (PDI), of Orangeburg, N.Y., has recalled all lots of five different kinds of packages of non-sterile alcohol prep pads because of what a company spokeswoman called “very low levels” of detection of Bacillus cereus bacteria.

Interestingly, that’s the same organism that has triggered massive global recalls, a plant shut-down and at least eight lawsuits against the Triad Group and H&P Industries of Hartland, Wis. The lawsuits claim that contami-nated alcohol prep products led to dangerous infections in folks using the products for medical care. The recall announced on Sept. 16th came after FDA inspectors visited the plant and tests showed the presence of Bacillus cereus.

PDI has confirmed that the company buys padding material from Tudor Con-verted Products Inc. of Summerville, S.C., the same company that supplied pad material to the Triad Group and H&P Industries. In at least one lawsuit, H&P Industries officials have claimed that the bacteria found in their prod-ucts came from contaminated padding from Tudor. Both Tudor officials and PDI have dismissed that claim.

qUaliteSt PharmaceUticalS recallS oral contracePtiveS

Qualitest Pharmaceuticals has issued a nationwide, retail-level recall of multi-ple lots of oral contraceptives. The recall was because of a packaging error. Select blisters were rotated 180 degrees within the card, reversing the weekly tablet orientation and making the lot number and expiration date no longer visible. This packaging error and the potential for this error to have affected other oral contraceptive prod-ucts resulted in the company issuing the recall of multiple lots.

As a result of this packaging error, the daily regimen for these oral contracep-tives may be incorrect and could leave women without adequate contracep-tion, and at risk for unintended preg-nancy. The company says these packaging defects do not pose any immediate health risks. However, it says consumers exposed to affected packaging should begin using a non-hormonal form of contraception immediately and consult their health care provider or pharmacist.

Pharmacies are being instructed to contact consumers who have received the affected product. The source of the error is currently under investigation and the company says it’s committed to rectifying the issue in a timely manner.

The affected products and lot numbers can be found at the following URL: http://www.qualitestrx.com/pdf/OCRecall.pdf. You may also contact Shanna Malone for this information at [email protected]. Doctors, pharmacists or women seeking additional information on this recall, or consumers who have affected products, should contact Qualitest toll free at 1-877-300-6153 between the hours of 8:00 a.m. And 5:00 p.m. CT Monday through Friday for information or to arrange return of any affected product. The lot numbers can be found on the bottom of the box or the indi-vidual blister card. Adverse reactions or quality problems experienced with the use of these products may be reported to Qualitest toll free at 1-877-300-6153 or to the FDA’s MedWatch Adverse Event Reporting program either online, by regular mail or by fax.

FiSkarS brandS recallS SmartPower String trimmerS

About 2,200 Fiskars® SmartPower™ String Trimmers have been recalled by Fiskars Brands, Inc., of Madison, Wis. Engine vibration during use of the trimmers can cause wear on the fuel line, leading to a propane fuel leak. The Straight Shaft Trimmers’ propane canis-ter can crack at the neck during use. In addition, high temperatures may develop near the Curved Shaft Trim-mers’ plastic cutting guard, causing the guard to deform and fall off. These issues pose burn, fire and laceration hazards to the user. This recall involves the Fiskars® SmartPower™ Propane 4-Cycle Straight Shaft String Trimmer Model 67016935 and SmartPower™ Propane 4-Cycle Curved Shaft String Trimmer Model 67036946.

Both trimmers use propane fuel. “SmartPower™” is printed on the lower shaft and near the pull-start handle. “Fiskars®” is printed on the engine cover and on the plastic cutting guard. The trimmers are black, silver and orange. The trimmers were sold at The Exchange stores, also known as the Army and Air Force Exchange Service or AAFES, and online at Amazon.com, Walmart.com, Pow-erequipmentdirect.com and Sure-

Source.com, from January 2011 to July 2011 for between $220 and $280. Con-sumers should immediately stop using the recalled trimmers and contact Fiskars® to receive a full refund. For additional information contact Fiskars Brands toll-free anytime 24 hours a day at (877) 495-6645, or visit the compa-ny’s website at www.fiskars.com

home FireS PromPt dehUmidiFier recall re-annoUncement

LG Electronics Tianjin Appliance Co., in cooperation with the U.S. Consumer Product Safety Commission, is urging consumers to check to see if they have recalled Goldstar or Comfort-Aire dehumidifiers. The company has re-announced the recall of about 98,000 of the dangerous dehumidifiers that pose a serious fire and burn hazard, and are believed to be responsible for more than one million dollars in prop-erty damage.

The power connector for the dehu-midifier’s compressor can short circuit, posing fire and burn hazards to con-sumers and their property. The dehu-midifiers were first recalled in December 2009 following eleven inci-dents, including four significant fires. Since that time, the company has received sixteen additional incident reports of arcing, smoke and fire asso-ciated with the dehumidifiers, includ-ing nine significant fires. No injuries have been reported. Fires are reported to have caused more than $1 million in property damage to seven homes in six states.

Because of the severity of the risks, CPSC and LG Electronics are con-cerned with the lack of consumer response to the recall. Only 2% of the 98,000 consumers who purchased these units have received a free repair, which means that consumers and their property remain at serious risk. Anyone who has the recalled dehumidifiers is strongly encouraged to immediately stop using them, unplug them, and contact LG Electronics for the free repair.

The recall involves the 30 pint porta-ble dehumidifiers sold under the Gold-star and Comfort-Aire brands. The dehumidifiers are white with a red shut-off button, controls for fan speed and humidity control, and a front-load-ing water bucket. “Goldstar” or “Com-fort-Aire” is printed on the front. Model and serial number ranges included in


this recall are listed in the table below. The model and serial numbers are located on the interior of the dehu-midifier, and can be seen when the water bucket is removed. The recalled dehumidifiers were sold at The Home Depot, Walmart, Ace Hardware, Do It Best, Orgill Inc., and other retailers nationwide from January 2007 through June 2008 for between $140 and $150. They were manufactured in China. For additional information about the recall and for the location of an authorized service center for the repair, contact LG toll free at (877) 220-0479 or visit the company’s website at www.30pintdehumidifierrecall.com.

target recallS embark reSiStance cordS dUe to inJUry hazard

About 447,000 Embark Resistance Cords and Cord Kits have been recalled by Target Corporation, of Min-neapolis, Minn. A black plastic ball attached to the resistance cord’s door anchor can unexpectedly release and strike the user, posing an injury hazard to consumers. Target has received three reports of incidents in which consumers were struck in the eye by the door anchor ball. Two incidents resulted in permanent vision loss, and the severity of the injury in the third incident is unknown. This recall involves Embark brand individual resis-tance cords and cord kits listed below. The resistance bands are made of green, blue or black rubber with black foam handles and a door attach-ment. A strap of nylon webbing is looped onto the band with a plastic ball attached or encased that serves as a door anchor.

“Embark” is printed on either the black strap attached to the foam handle or on the middle of the rubber cord itself. Style Description Embark Light (tension) Resistance Cord (green) Embark Medium (tension) Resistance Cord (blue) Embark Heavy (tension) Resistance Cord (black) Embark Resis-tance Cord kit (set of 3 cords in green/blue/black stored in a mesh bag). The lights were sold exclusively at Target stores nationwide and Target.com from July 2009 through August 2011 for between $10 and $20. Consumers should immediately stop using the resistance cords and remove the door anchor strap before resuming use or contact the company to receive instructions on how to repair the cords to eliminate the hazard. For addi-

tional information, contact Target Guest Relations at (800) 440-0680, or visit the company’s website at www.target.com.

target exPandS recall oF SteP StoolS with Storage

Target Corporation has also recalled about 341,000 Step Stools with Storage. 206,000 were recalled on August 4, 2011. The wooden step stools can break apart or collapse under the weight of the user, posing a fall hazard. Target has received 27 reports of the stools breaking or col-lapsing. Fourteen incidents involved children, eight involved adults, and five were incidents where the user’s age was unknown. Two adults fractured their wrists, and of those victims, one also fractured her hip and pelvis. Addi-tionally, six children and one adult suf-fered scrapes and bruising. The wooden step stool has two steps and comes in various colors, including natural, natural and red, white, pink, blue and honey. The Circo step stool has a lid on the bottom step that lifts to provide storage. The Do Your Room (DYR) step stool has a lid on the top step that lifts to provide storage. The step stools measure approximately 13” H x 13 5/8” W x 14 1/8” D. The Circo brand name or DYR brand name and UPC numbers are printed on a label found underneath the step stool.

The stools were sold exclusively at Target stores nationwide and online at Target.com from January 2007 through October 2010 for between $25 and $30. Consumers should immediately stop using the step stools and return them to any Target store to receive a full refund. For additional information, contact Target at (800) 440-0680, or visit the company’s website at www.target.com.

target recallS cheFmate blender

Also, Target Corporation recalled about 304,000 Chefmate® 6-Speed Blenders. While in operation, the plastic pitcher can separate from the blade assembly, leaving the blade assembly in the base and exposing the rotating blades. This poses a laceration hazard to consum-ers. Target and the U.S. Consumer Product Safety Commission have received 11 reports of the blade assem-bly separating from the pitcher, seven of which reported serious lacerations to consumers’ fingers and hands. This

recall affects all Chefmate® 6-Speed Blenders, model BL-10. The model number is located on the bottom of the base.

The blender consists of a six-inch tall, white electrical base with five, white speed-selector buttons labeled 1 through 5, one gray button labeled “Pulse/Off” and the word “Chefmate®” in black letters on the front; a clear plastic pitcher with a handle with U.S. And metric volume measurement markings; a white plastic lid with a removable clear plastic lid stopper; and a white plastic blade assembly with two angled, stainless steel blades. The blenders were sold exclusively at Target stores nationwide from Septem-ber 2007 to February 2011 for about $14. Consumers should immediately stop using the blenders and return them to any Target store to receive a full refund. For additional information, contact Target Guest Relations at (800) 440-0680 or visit the company’s website at www.target.com.

PaciFic cycle recallS Swing SetS dUe to Fall hazard

About 5,500 Playsafe Dartmouth Swing Sets have been recalled by Pacific Cycle Inc., of Madison, Wis. The sling-style swing seats can crack or split pre-maturely, posing a fall hazard to consumers. Pacific Cycle has received five reports of the sling-style swing seats breaking during use, including reports of minor injuries involving bruises and scrapes. This recall involves Playsafe’s Dartmouth Swing Set, model number 22-PS340, with date codes FSD0115AA and FSD0315AA. The model number and date code can be found in the owner’s manual.

The swing set has six metal legs and includes two swings with yellow plastic sling-style seats, a yellow plastic sliding board, a two-person glider with yellow plastic seats, yellow plastic trapeze hanging rings and a four-per-son lawn swing with yellow plastic seats and footboard. Toys R Us stores nationwide sold them from January 2011 through May 2011 for about $270. Consumers should immediately stop using the sling-style swing seats, remove the seats from the swing set and contact Pacific Cycle to obtain free replacement seats. For additional infor-mation, contact Pacific Cycle toll-free at (877) 564-2261 or visit the compa-ny’s website at www.pacific-cycle.com


or email [email protected].

nine comPanieS recall FUel gel For FirePotS

Nine companies have recalled about two million bottles and jugs of the gel fuel used in outdoor patio decorations known as firepots because of the risk of serious burns. The Consumer Product Safety Commission says the gel fuel has been linked to several dozen cases in which people were burned when they couldn’t tell whether the flame was out. Pouring more gel on a burning pot can lead to dangerous flares or burns.

The nine companies are Bird Brain Inc. of Ypsilanti, Mich.; Bond Manufacturing of Antioch, Calif.; Sunjel Company of Milwaukee, Wis.; Fuel Barons Inc. of Lake Tahoe, Nev.; Lamplight Farms Inc. of Menomonee Falls, Wis.; Luminosities Inc. of St. Paul, Minn.; Pacific Decor Ltd. of Woodinville, Wash.; Real Flame of Racine, Wis.; and Smart Solar USA of Oldsmar, Fla. Marshall Group of Elkhart, Ind., pul led out of the public announcement at the last minute. The CPSC is continuing to talk with that company about a voluntary recall.

Folks were urged to stop using the pourable gel fuel and to contact the manufacturer or distributor for a refund. The CPSC warns that “stop, drop and roll” or trying to smother the f lames does not work. Flash fires created by the thick, alcohol-based gels are difficult to put out with water and more effectively stopped with dry powder extinguishers. The Commis-sion began investigating firepots a few months ago and issued a f lash fire hazard warning on pourable gel fuels in June. This is a dangerous product and shouldn’t be used, according to the CPSC.

american woodcraFterS recallS bUnk bedS dUe to Fall hazard

American Woodcrafters, of High Point, N.C., has recalled about 180 Wood Twin Bunk Beds and Loft Bunk Beds. The guard rails on upper bunks can crack and cause the mattress and its support rails to collapse, posing a fall hazard. The company has received two reports of cracked guard rails causing the mattresses and support rails to collapse. No injuries were reported. This recall involves upper

guardrails on twin-over-twin bunk beds and twin-over -double bed lof t designs. The beds have a permanent label attached to the headboard or the footboard with the American Wood-crafters logo; SKU numbers, 1800-977 or 1800-969; PO Numbers: 103276, 103432, or 300038; and the manufac-turing date. The beds were sold by fur-niture dealers nationwide from October 2010 to June 2011 for between $600 and $1,000. Consumers should immediately stop using the upper beds and contact American Woodcrafters or their furniture dealer to arrange for the free replacement of upper bunk guard rails. For additional information, contact American Wood-crafters toll-free at (888) 429-7265, or visit the company’s website at www.american-woodcrafters.com.

candleholderS recalled

Frosted or clear glass votive candle-holders with French vanilla-scented candles, sold at Dollar Tree, Dollar Bill$, Deal$ and Dollar Tree Deal$ stores nationwide from December 2010 through April 2011 for about $1, have been recalled. The glass votive candle-holders can shatter while in use, posing a fire and laceration hazard to consumers. Consumers should imme-diately stop using the candleholders and return them to the store where purchased for a full refund. For infor-mation, contact Dollar Tree Stores Inc. At 800-876-8077.

led night lightS recalled by camSing global dUe to bUrn hazard

About 10,000 LED night lights have been recalled by Corvest Acquisition Inc. (now Camsing Global LLC), of Largo, Fla. The LED night lights can overheat, smolder, and melt which may cause minor burns to consum-ers. The company has received five reports of the recalled LED night lights overheating, smoldering or melting. No injuries have been reported. The LED night light contains f lame retardant elements, plugs into an electrical outlet, and has a white or blue LED bulb and a clear bulb cover. “Model SBD01”, the number “E314462” and “Made in China” are stamped on the back of the night light’s plastic white base. The night lights measure about 1 3/4 inches wide by 3 3/4 inches high. The night lights were dis-tributed by various companies as a free pro-motional product, imprinted with the company’s name from December 2010

through March 2011. Consumers should immediately stop using the recalled night lights and discard them. For additional infor-mation, contact Camsing Global toll-free at (877) 924-4624 or visit the company’s website at www.camsingglobal.com.

recall oF little tikeS Play tool SetS

More than 1.7 million toy workshop and tool sets from toy-maker Little Tikes have been recalled because of choking concerns. According to the Consumer Product Safety Commission, the play tool sets have oversized, plastic toy nails that might cause young children to choke. This recall is an expansion of a 2009 recall of about 1.6 million workshop sets and trucks with the same toy nails. The new recall involves an additional 11 models.

Little Tikes of Hudson, Ohio, has reported two additional incidents in which children choked when the toy nail became lodged in their throat. Both children made a full recovery. The incidents occurred before the 2009 recall. The workshop and tool sets were sold by retailers nationwide from 1990 through 2004.


dollS recalled by Pottery barn kidS dUe to StrangUlation hazard

Pottery Barn Kids, a division of Wil-liams-Sonoma Inc., of San Francisco, Calif., has recalled Chloe, Sophie and Audrey soft dolls. This includes about 81,000 in the United States and 1,300 in Canada. The hair on the Chloe and Sophie dolls may contain loops that are large enough to fit around a child’s head and neck, and the headband on the Audrey doll, if loosened, can form a loop that fits around a child’s head and neck. These loops can pose a strangula-tion hazard. The company has received five reports of dolls with looped hair, including one report in which a loop of the Chloe doll’s hair was found around the neck of a 21-month old child. The child was not injured.

This recall involves soft dolls sold under the names Audrey, Chloe and Sophie. The dolls measure about 17 inches high and have hair made of yarn. Audrey’s hair is black, Chloe’s hair is dark brown and Sophie’s hair is blonde. The dolls are part of Pottery Barn Kids’ Girl Doll Collection. The doll’s name can be found on a tag


sewn onto her bottom. They were sold exclusively at Pottery Barn Kids stores nationwide, online at www.potteryba-rnkids.com and through Pottery Barn Kids catalogs from July 2006 to April 2011 for about $40. Consumers should take the dolls away from children immediately and cut the looped hair of the Chloe and Sophie dolls and remove the headband of the Audrey doll to eliminate the hazard. Consumers may also call Pottery Barn Kids for instruc-tions on how to return the affected dolls for a merchandise credit. For addi-tional information, contact Pottery Barn Kids toll-free at (855) 880-4504 or visit the company’s website at www.potterybarnkids.com

more groUnd tUrkey recalled becaUSe oF Salmonella

Cargill Inc. Announced a second recall of ground turkey products last month after a test showed salmonella in a sample from the same Arkansas plant tied to a recall issued in August. The second recall is much smaller than the one the company issued in August for 36 mi l l ion pounds of ground turkey. That recall followed a salmo-nella outbreak that federal health offi-cials said had sickened 107 people in 31 states, killing one person.

At press time, no illnesses had been tied to the second recall, which was initiated after a sample from the com-pany’s plant in Springdale, Ark., tested positive for salmonella, the U.S. Depart-ment of Agriculture said. Cargill halted production of ground turkey products at the plant on August 2nd in anticipa-tion of the recall announced the next day. Equipment was taken apart and steam-cleaned. Limited production resumed August 10th after the USDA approved additional anti-bacterial safety measures.

The sample that tested positive for sal-monella was taken on August 24th, according to the USDA. It was the same strain of salmonella tied to the earlier illnesses. Cargill added two additional anti-bacterial washes to its processing process in Springdale after the first recall, according to the company. Ground turkey production at the Springdale plant was suspended again. The Minnesota-based company was looking at what other safety pro-cedures might be needed. Production of other products, such as whole turkeys, continues. The second recall covers about 185,000 pounds of

ground turkey products, including trays of ground meat, patties and chubs, the USDA said. The products were distributed nationwide under the Kroger, Fresh HEB and Cargill’s Honey-suckle White brands.

All ground turkey made at the Spring-dale plant has “P-963” or “963” on the package, in a USDA seal or perhaps on the cellophane. Consumers who bought products bearing that identifi-cation number can call 1-888-812-1646 for instructions on what to do. The recall covers products made on Aug. 23rd and 24th. Cargill also is recalling ground turkey made on Aug. 30th and 31st pending a positive match with a sample, the USDA said.

SaFeway recallS JUmbo rocky Ford cantaloUPe

In cooperation with the Jensen Farms recall of Rocky Ford whole cantaloupe due to possible Listeria contamination, Safeway has recalled Jumbo Canta-loupes grown in the Rocky Ford region, supplied by Jensen Farms, and sold in Colorado, Nebraska, New Mexico (Aztec and Farmington), South Dakota and Wyoming between August 30th and September 6th. Safeway cus-tomers who purchased the recalled cantaloupe and still have it in their homes should discard it or return it for a full refund. Cantaloupes currently in stores are not subject to this recall as they do not come from Jensen Farms or the Rocky Ford region of Colorado. Jensen Farms is not a main supplier for Safeway.

The Food and Drug Administration has warned consumers to not eat Rocky Ford-region cantaloupe shipped by Jensen Farms because the product has the potential to be contaminated with Listeria and may be linked to a multi-state outbreak of listeriosis.

As we have previously reported, Liste-riosis can be fatal, especially in certain high-risk groups. These groups include older adults, people with compro-mised immune systems and certain chronic medical conditions (such as cancer), and unborn babies and new-borns. In pregnant women, listeriosis can cause miscarriage, stillbirth, and serious illness or death in newborn babies, though the mother herself rarely becomes seriously ill. Customers who have questions about the recall can contact Jensen Farms via email at [email protected] or phone

1-800-267-4561. They can also contact Safeway at 1-800-SAFEWAY.

e. coli Scare PromPtS tySon to recall groUnd beeF

Tyson Fresh Meats Inc. has recalled about 131,300 pounds of ground beef that could be contaminated with E. coli. The U.S. Department of Agricul-ture became aware of the problem when Ohio health authorities reported that a family had become ill with E. coli. Ground beef in that family’s home tested positive for the bacteria. The products being recalled include Kroger-brand ground beef and Butch-er’s Brand beef and generic label beef, all of which were produced on August 23rd. The Kroger beef was distributed in Tennessee and Indiana; the Butcher’s beef distributed in North and South Carolina. The generic beef was distrib-uted in Delaware, Florida, Georgia, Maryland, Illinois, Indiana, Missouri, New York, Ohio, Tennessee, Texas and Wisconsin.

Once again, there were so many recalls since the September issue that we were unable to get them all in this issue. If you need more information on any of the recalls listed above, or would like information on a recall that you are aware of that we haven’t listed, please visit our firm’s web site at www.BeasleyAllen.com/recalls. We would also like to know if we have missed any sig-nificant recall that involves a safety issue this month. If so, please let us know. As indi-cated at the outset, you may also contact Shanna Malone at Shanna.Malone@beasley allen.com for more recall information.

XXIV. FIRM ACTIVITIES

emPloyee SPotlightS

DAnA TAunTonDana Taunton received her law degree in

1993 from the University of Alabama. She worked as a law clerk for the Honorable Ira DeMent, United States District Court Judge for the Middle District of Alabama. Prior to joining our firm in 1998, Dana worked for a prominent Defense firm and had a brief stint with the Alabama Attorney General’s office. Since coming to work for the firm, Dana has handled complex business and commercial litigation, products liability and


personal injury litigation. Currently, she focuses her practice in the areas of product liability and personal injury. Many of her product liability cases have resulted in multi-million dollar settlements for her clients. Dana also serves as the Lead Appel-ant lawyer for the firm’s Product Liability/Personal Injury Section.

Dana is a frequent speaker at legal semi-nars on various topics relating to personal injury law. She has also given updates on tort law on behalf of the Montgomery Bar Association. Additionally, she has lectured on a variety of legal topics for several orga-nizations including the Montgomery County Bar Association, the National Busi-ness Institute, the Alabama Trial Lawyers Association, and the Alabama Bar Institute for Continuing Legal Education.

Dana is a member of the Christian Trial Lawyers Association; Alabama Association for Justice; American Association for Justice; Montgomery County Bar Association; Mont-gomery County Trial Lawyers Association; Alabama State Bar Association; and Trial Lawyers for Public Justice. She recently was selected as Chairperson for the Women’s Section of the Alabama State Bar.

Dana, who was born and raised in Butler, Ala., is married to Derrick Taunton. They have two daughters, Betsie and Abigail. The family attends Frazer Memorial Methodist Church in Montgomery. Dana is a very good lawyer, a valuable member of the firm and we are certainly blessed to have her with us.

STePhAnie STePhenS Stephanie Stephens, who has been with

the firm since April 2001, is a Law Clerk in our Personal Injury/Products Liability Section. She works directly with the Per-sonal Injury lawyers in researching, writing, and responding to various pretrial motions, orders and appellate proceedings.

Stephanie graduated Summa Cum Laude from Troy University in 2007 with a double major in Political Science and Psychology. Before law school, she worked as a Crisis Counselor with the Federal Emergency Management Agency. Stephanie also gradu-ated Summa Cum Laude from Thomas Goode Jones School of Law in May 2011. While in law school, she received ten Best Paper Awards and the Best Advocate Award in Trial Advocacy. She served as a Senior Editor on the Faulkner Law Review and as a Senior Member of the Board of Advocates. Stephanie loves music and has been playing guitar since she was 11. She also enjoys spending time with her five-year-old Pomer-anian named Stormy. Stephanie participated in “Seat Check Saturday” in a special safety project for the firm recently and was fea-tured in a news report by WAKA televi-sion. This project was to make sure parents know how to use a child’s safety seat.

Stephanie says she is fortunate to have a large family, including an older sister, a younger brother, and three step-brothers. She also has four nephews and one niece. Stephanie, according to several friends, stays pretty busy trying to keep up with all her family. Stephanie, who is currently attending Morningview Baptist Church, is a very good and dedicated employee. We are fortunate to have her with the firm.

JAke JeTeR Jake Jeter served the past two summers

as an intern before becoming a full-time employee with the firm in August. He cur-rently is a Staff Assistant in our Consumer Fraud Section. Jake works with lawyers and other staff researching various fraud cases. He is currently assisting in the Toyota docu-ment review.

Jake graduated high school from Bayside Academy in Daphne, Ala., and attended Auburn University Montgomery where he graduated with a B.S. in Finance in 2008. Jake recently completed his J.D. At Thomas Goode Jones School of Law in May 2011. While in law school Jake had the privilege of serving on the Honor Court from 2008-2011, and was the Honor Court Chief Justice from 2010-2011. He also partici-pated as a regional finalist in the ABA Dispute Resolution and Mediation Competi-tion in 2011.

During his time in law school, Jake and his service dog Phoenix were featured in a national advertising campaign for Milk-Bone, which is a major sponsor of the Canine Assistants program. Jake has a light sport pilot’s license and really enjoys flying. He and his father are currently building a Van’s RV-12 kit aircraft which they hope to finish in the near future. He also enjoys hunting and fishing. Jake is a member of the Central Alabama Gun Club and recently started reloading ammunition. You have probably figured out by now that Jake leads a most interesting life. Jake is a very good employee and we are pleased that he decided to come on as a full-time employee.

APRil WoRleyApril Worley came to work at the firm in

June 2001 as a Legal Assistant for Roger Smith in our Mass Torts Section. Currently, she is working on cases in the Actos, SSRI (Selective Serotonin Reuptake Inhibitor), and Yaz/Yasmin/Ocella cases. This mass torts litigation keeps April extremely busy. Previously, she had worked on other signifi-cant pharmaceutical litigation, including Rezulin, Serzone, Celebrex and Vioxx cases.

April holds two Masters Degrees from AUM, one in Judicial Administration and the other in Public Administration. She received her Bachelor’s Degree from AUM as well in Justice & Public Safety. Currently, April

serves on the Paralegal Studies Advisory Committee at the school.

April has one son, Micah, who recently turned 12 years old and is a sixth grader at Carr Middle Magnet. Micah was diagnosed with cancer in late April and is currently undergoing chemotherapy treatment at Children’s Hospital in Birmingham. Micah is a courageous young man and he is han-dling this challenge very well. We have all been praying for Micah and will continue to do so.

After a hectic week of work, April says she enjoys spending weekends with her son at the beach and watching SEC football, especially games involving the Crimson Tide. April is a very good employee. She is dedicated to her work and the clients’ cases that she works on. We are blessed to have April with us. She has been a real inspira-tion to everybody in the firm.

XXV. SPECIAL RECOGNITIONS

morriS deeS and the SoUthern Poverty law center are to be commended

The outstanding work by the Southern Poverty Law Center (SPLC) over the years hasn’t always been fully understood, nor appreciated. Fortunately, the SPLC has been dedicated to fighting hate and bigotry and to seeking justice for the most vulnerable members of our society. That dedication is still quite evident. Using litigation, educa-tion, and other forms of advocacy, the SPLC works toward the day when the ideals of equal justice and equal opportunity will finally be a reality. In fact, that should be the hope and prayer of all Americans. The SPLC has touched the lives of millions by seeking justice for those who badly need a cham-pion to fight their battles. Combating racist extremists has always been the main thing at the Center. But teaching tolerance to mil-lions of children is also very important and that work by folks at the Center will pay dividends in the future.

All of these accomplishments were funded entirely by SPLC supporters. It should be noted that SPLC accepts no legal fees from its clients, nor does it receive any government money. In my opinion, the SPLC is the single most effective organiza-tion in this country when it comes to fight-ing hate groups in the courtroom and teaching tolerance and acceptance in the classroom. Morris Dees and all of the lawyers and staff at the Law Center are to


be commended for their past accomplish-ments and must be encouraged to keep up their good and badly-needed work.

PUblic citizen tUrnS 40

Public Citizen’s record of achievement is a testament to the dedicated people who founded the organization, and who envi-sioned and innovated new modes of advo-cacy. Those persons include Ralph Nader, Joan Claybrook, Dr. Sidney Wolfe and Alan Morrison. Public Citizen’s record is a testa-ment, as well, to the hundreds of enor-mously talented staff who have turned the early vision into reality.

Public Citizen has succeeded by combin-ing hard work, investigative acumen, sophis-ticated advocacy strategies, and intellectual creativity, with a passion for justice and democracy and a powerful commitment to improve the lives of Americans. A distinc-tive feature of Public Citizen’s advocacy approach has been to set its sights on what it knows is right—not just what seemed politically feasible at the time and that’s good. Public Citizen has succeeded over the past 40 years by taking an “unreasonable” position and then “changing the terms of debate, so what seemed impossible becomes possible—and then winnable.”

Forty years after its founding, Public Citizen is now a public trust. The organiza-tion remains populated with gifted and enthusiastic staff who are adept at deploy-ing old and new advocacy tools. The current group is committed to carrying on Public Citizen’s grand and enduring tradi-tions as they pioneer new strategies to deepen democracy, guarantee the right to health and safety, achieve justice for all, and promote stewardship of the planet.

hall oF Fame indUctS howell heFlin

The late Howell Heflin was inducted into the Alabama Men’s Hall of Fame last month. The Tuscumbia native, who died in 2005, served 18 years with distinction in the U.S. Senate. He was described at the induction ceremony as a judge, statesman and patriot. The Hall of Fame recognizes men from Alabama who made significant contributions on a state, national or interna-tional level.

Howell Heflin was an outstanding trial lawyer who went on to become Chief Justice of the Alabama Supreme Court before being elected to the U.S. Senate. As Chief Justice, he helped pass the Judicial Article of 1973, which is the only major revision thus far to the Alabama Constitu-

tion. Howell Heflin was a great Alabamian and a good man.

new alabama State bar award honorS JUdge w. harold albritton

A new award created by the Alabama State Bar honoring leadership in providing free legal services will be presented this month to U.S. District Judge W. Harold Albritton III. Incidentally, and most fitting, Judge Albritton is the man for whom the award is named. While State Bar president (1990-91), Judge Albritton helped create the organization’s Volunteer Lawyers Program to provide free legal service to the poor and disadvantaged. Some 25% of the state’s lawyers participate in the program. Jim Pratt, the current State Bar president, said in a news release:

Judge Harold Albritton has demon-strated a selfless commitment to increasing access to justice for Ala-bamians. His extraordinary work pro-vides us with inspiring examples of what is possible and helps raise public awareness of the importance of access to justice for all, not just for those who can afford it.

Asked during his 1991 confirmation hearing before a U.S. Senate committee about the need for lawyers to provide free legal service, Judge Albritton described it as the profession’s “highest calling,” telling the Senators:

It is something that should not be done grudgingly, but should be embraced willingly. They will never receive a fee during their entire career that will make them feel more pride in being a lawyer than they will by the grateful tears on the cheek of someone who cannot afford legal ser-vices benefitting from their help.

Judge Albritton is certainly deserving of this honor. I can think of nothing better than a public official being recognized for really having a concern for the poor. Judge Albritton is to be commended for his work in this area of concern.

Source: Al.com

ProJect liFeSaver iS a good and needed Program

Project Lifesaver is a program of special-ized operations designed to locate missing individuals who have such conditions as Alzheimer’s, Down syndrome, and Autism, all individuals who are likely to wander off

and become lost. The program is called “the missing link to lost loved ones,” and it appears to be a program that is badly needed. Alabama’s total population is 4,779,736, and 933,919 of those individuals are age 60 and older, according to the 2010 U.S. Census. In fact, 75,684 of those individ-uals are 85 and older. Unfortunately, individ-uals with Down syndrome, Autism, and other cognitive issues are also prone to wandering.

The Alabama Department of Public Safety is heavily involved in this program. The Department is working hard to get the message out to Alabama citizens of its exis-tence and availability. Unfortunately, it appears many people are totally unaware of this program. One aspect of the program is the furnishing of Project Lifesaver brace-lets. About 80,000 individuals in Alabama have Alzheimer’s, but fewer than 1,000 of those individuals have received the brace-lets. Each Project Lifesaver bracelet costs $300 and it will cost about $400,000 annu-ally to fund the project in the State of Alabama. The bracelets will allow a person who has wandered away and become lost to be found quickly.

For additional information on Project Lifesaver, please contact the Alabama Department of Public Safety at (334) 242-4055. I am convinced this program will help folks and save lives. We will give a more detailed report on this program in the November issue.

XXVI. FAVORITE BIBLE VERSES

Laura Pittman, a longtime friend, sent in two of her favorite verses for this issue. Laura, one of the best cooks in Montgomery, is an avid Auburn football fan. She is also extremely well-versed in the field of music. Laura says 1 Peter 3:14 has had a special meaning for her over the years. She also wanted to include Isaiah 41:10.

And who is he who will harm you if you become followers of what is good?

1 Peter 3:14

Fear not, for I am with you; Be not dismayed, for I am your God. I will strengthen you, Yes, I will help you, I will uphold you with My righteous right hand.’

Isaiah 41:10


Karen Stanfield, who is a legal assistant at a Texas law firm, sent in the following verse for this issue. Karen says she reads the words from this verse through a lot of trou-bled days and nights—and when she knows that she has to be at her very best.

Do not be anxious about anything, but in every situation, by prayer and petition, with thanksgiving, present your requests to God.

And the peace of God, which tran-scends all understanding, will guard your hearts and your minds in Christ Jesus.

I can do ALL these things through Him who gives me strength.

Phil. 4:6,7 & 13

My very good friend Ray Warren, a Mont-gomery resident, furnished a verse that he says has brought peace and comfort to him and to his wife JoAnn over the years. Ray has had a distinguished career. After retiring as a claims representative superintendent with State Farm Insurance Co., Ray remained very active. He retired as a Colonel in the Alabama Army National Guard after 37 years of military service. Ray was then appointed as a Brigadier General in the Alabama State Defense Force.

Ray has served the State of Alabama in several roles, having served on the State Ethics Commission, the State Personnel Board, the State Health Coordinating Council, and on the Board of Trustees at Alabama State University. He also served a term as State President of the AARP. As you can see, Ray has been a very busy man. Even with all of his accomplishments, and his very busy schedule, Ray says his love for Jesus has really been the highlight of his life.

Peace I leave with you, My peace I give to you; not as the world gives do I give to you. Let not your heart be troubled, neither let it be afraid.

John 14:27

Michelle Browder, who is with the Mont-gomery Rescue Mission, sent in her favorite verse for this issue. Michelle works hard to provide for folks who are in need and she has been a blessing to many.

For I was hungry and you gave Me food; I was thirsty and you gave Me drink; I was a stranger and you took Me in; I was naked and you clothed Me; I was sick and you visited Me; I was in prison and you came to Me.

Matt. 25:35- 36

Harry Gill, who lives and works in Auburn, sent in a verse for this issue. Harry

is known as “Harry the Bug Man” in Lee County because of his many years working in the pest control industry. Harry also sent me some good information to read along with a great photo of the Toomer Corner oak trees. My daughter Bee, who lives in Auburn, tells me that Harry is a good man and a dedicated Christian, attending Auburn Methodist Church. Bee tells me that Harry is also a huge Auburn football fan and supporter.

And now the LORD says, Who formed Me from the womb to be His Servant, To bring Jacob back to Him, So that Israel is gathered to Him (For I shall be glorious in the eyes of the LORD, And My God shall be My strength)

Isaiah 49:5

XXVII. CLOSING OBSERVATIONS

reFlecting on SePtember 11, 2001

The 10th anniversary of the events of Sep-tember 11, 2001 brought about a number of special events around the country. Every person living on that fateful day has a vivid recollection of the tragic events as they unfolded. I know that I do. I first got a call from a friend telling me to get to a televi-sion quickly to see what was happening. I—like many others—thought a small plane had accidently crashed into one of the Twin Towers. But when the second crash occurred, I realized it was more than an accidental crash—my country was under attack by terrorists. As the day drug on, things progressively got worse. The country was in a panic. My wife Sara kept a message that I sent to the Beasley Allen family that morning. Just before the 10th anniversary, she found it at home and gave it to me. I am setting this message out below.

I realize the events of this day have folks upset and concerned for our Country. We are facing a crisis like we have not seen in our history. Please pray for all of the folks who have lost family members and friends and also pray to bring calm and reason to those who must lead us during the coming days. Panic is expected and that is exactly what the evil persons who planned and carried out this ter-rible series of events had in mind. At times like this it makes me realize that we have to depend on our God!! Remember He has the power to do

whatever it takes to restore order and to correct wrongs.

This will perhaps be the thing that returns our Nation and our leaders to a belief in and dependence on the Almighty—even though it involves terrific loss of life and misery that will take time to heal. We have taken much too much for granted and have forgotten what life is all about.

So now is the time to take stock of our own lives and to pray for our families, all others and especially those who must lead and direct others, and for our Country as a whole. We must unite like never before because the enemy is not like one we have fought before. Remember too, we will survive all of this—as bad as it seems now—but only if we wake up spiritually!!

Rev. Walter Allbritton, one of the pastors at St. James United Methodist Church, put everything in proper perspective when he wrote the following account of the happen-ings on 9/11. This is what Walter had to say:

The 9/11 tragedy put courage and confusion before the eyes of the world

On that fateful morning we watched with horror as the plans of evil men were carried out. In stunned disbelief we saw innocent people dying in the flames and smoke of crumbling buildings.

Told that a plane had crashed into one of the World Trade Centers in New York City, we assumed it was an acci-dent. It had never entered our minds that terrorists would hijack a passen-ger plane and use it as a weapon of destruction. But we realized it was no accident when our television screens showed us a second airliner flying straight into the other twin tower.

Both towers were burning. Both would soon crumble to the earth as ugly plumes of smoke seemed to engulf Manhattan. People blackened by the smoke and dust were running in the streets. Then the news reported that another plane had crashed into the Pentagon in Washington. The Pen-tagon was burning too. Later there was word of even another plane going down in a field in Pennsylva-nia. We remained glued to our televi-sions, wondering if we would soon see a plane flying into the nation’s Capitol or perhaps the White House.

Watching, our emotions ran wild. We were angry at those who had carried


out these fiendish attacks. We were bewildered, unsure how to respond. We felt compassion for the innocent people who were suffering and dying. Some of us cried; some of us cursed. Most of us prayed, though we were not sure what to ask God to do. We were under attack but there was no way to strike back, no one out there against whom we could retaliate. Our attackers had intentionally died in the same inferno they had created for innocent civilians. Our army, the greatest standing army in the world, did not shoulder one rifle. There was no sniper to find and shoot out of a tree. Our nation and its leaders seemed helpless. It was a terrible, ter-rible day to be an American.

Looking back after 10 years, a few conclusions may be helpful. Tragedy can unite people. For a little while, after 9/11, we were all Americans. We were family. We were not white or black or Hispanic; we were not Demo-crats or Republicans. We were not Baptists, Methodists or Catholics. We were Americans. Our new unity was symbolized by the singing of “God Bless America” at so many public events. We bonded as we sang, reach-ing out to God together, acknowledg-ing our need for divine help in dealing with terrorism. We reflected on our history, that America was founded with the help of almighty God and that we are not likely to survive these turbulent times unless we as a nation are willing to trust and honor almighty God.

On 9/11 two things were displayed vividly before the eyes of the world: courage and confusion. The courage of the first responders was remark-able. It will remain an unforgettable example of men and women at their best, willing to lose their own lives in an effort to save others. As Christians such courage reminds us of our Lord Jesus who said, “Greater love has no one than this, that he lay down his life for his friends.” The first respond-ers did just that; they sacrificed their lives for their fellow citizens. You could say that the terrorists who flew the passenger planes into buildings had courage. But it was a different kind of courage. They had the courage to die while killing innocent people. It seems a sacrilege really to give the terrorists credit for courage.

Better to call it insanity than courage. This much is certain: the courage of the first responders impacted our lives like few things we have ever experienced. That leads me to confusion. The ter-rorists left an unforgettable example also, a tragic example of warped thinking. To suppose that God is pleased by the killing of innocent people is the epitome of confused thinking. You could have more respect for the terrorists if they had removed the passengers from the planes and then committed suicide by flying the planes into their targets. The mon-strous deeds of the terrorists reveal the outrageous behavior that warped thinking can produce. While we are far from perfect, we should thank God for whatever clarity of thinking we have, not the least of which is that life is precious. We value life as a gift of God. Thus people are worth risking your life to save.

As we observe 9/11 we do well not to complain but to draw lessons from the courageous examples of those we honor today, lessons that can help us live nobler lives. Let us ask for this blessing from almighty God—that he would save us from the confusion of warped thinking and give us such clarity of mind that we will choose to live with courage and honor no matter what evil others may choose. Each of us has a choice: to live as a channel of hate and death or to live as a channel of love and life.

Ere this day ends take a moment to thank God for the courage of those whose example inspires us to do the right thing, for the right reason, every time a decision is thrust upon us. God bless America!

Rev. Walter AllbrittonSt. James United Methodist Church

monthly reminderS

If my people, who are called by my name, will humble themselves and pray and seek my face and turn from their wicked ways, then will I hear from heaven and will forgive their sin and will heal their land.

2Chron7:14

All that is necessary for the triumph of evil is that good men do nothing.

Edmund Burke

Woe to those who decree unrighteous decrees, Who write misfortune, Which they have prescribed. To rob the needy of justice, And to take what is right from the poor of My people, That widows may be their prey, And that they may rob the fatherless.

Isaiah 10:1-2

The only title in our Democracy supe-rior to that of President is the title of Citizen.

Louis Brandeis, 1937 U.S. Supreme Court Justice

XXVIII. PARTING WORDS

All of us have times when things around us seem to be overwhelming and we often-times, as a result, might even find ourselves in sort of a panic. Any person who works in litigation, or in work that involves problem-solving of any kind, deals with difficult issues, deadlines and on occasion surprises, almost on a daily basis. A friend sent me a prayer last month, which came at a time when my workload was getting a little out of hand. I must confess that I was starting to feel the pressure of what I was facing at the time. This message was most timely and it allowed me to put “my life in the fast lane” in the proper perspective. It also reminded me that what I do for a living—as a trial lawyer—helps folks who really need help. I then realized that I should consider myself blessed to be in the business of helping others. All of the stress and concern in my life suddenly went away.

Father God, with You all things are possi-ble. Thank You for the presence of Your Spirit. May Your power flow into my life today and help me impact others for Your Kingdom. In Jesus’ name, in the power of the Holy Spirit, I pray. Amen. <><

Hopefully, this prayer will help some of our readers. I know that it did help me. May God continue to bless you and your families in every way. We are all blessed to live in the United States of America!

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No representation is made that the quality of services to be performed is greater than the quality of legal services performed by other lawyers.

Jere Locke Beasley, founding shareholder of the law firm Beasley, Allen, Crow, Methvin, Portis & Miles, P.C., is one of the most successful l it igators of all t ime, with the best track record of verdicts of any lawyer in America. Beasley’s law firm, established in 1979 with the mission of “helping those who need it most,” now employs 44 lawyers and more than 200 support staff. Jere Beasley has always been an advocate for victims of wrongdoing and has been helping those who need it most for over 30 years.

No representation is made that the quality of services to be performed is greater than the quality of legal services performed by other lawyers.

Jere Locke Beasley, founding shareholder of the law firm Beasley, Allen, Crow, Methvin, Portis & Miles, P.C., is one of the most successful l it igators of all t ime, with the best track record of verdicts of any lawyer in America. Beasley’s law firm, established in 1979 with the mission of “helping those who need it most,” now employs 44 lawyers and more than 200 support staff. Jere Beasley has always been an advocate for victims of wrongdoing and has been helping those who need it most for over 30 years.

Jere Locke Beasley, founding shareholder of the law firm Beasley, Allen, Crow, Methvin, Portis & Miles, P.C. is one of the most successful litigators of all time, with the best track record of verdicts of any lawyer in America. Beasley’s law firm, established in 1979 with the mission of “helping those who need it most,” now employs 66 lawyers and more than 200 support staff. Jere Beasley has always been an advocate for victims of wrongdoing and has been helping those who need it most for over 30 years.

Documents

The Jere Beasley Report, Oct. 2011