Fourth Circuit Upholds Application of Government-Contractor Defense in Asbestos Suit

Featured Expert Contributor: Mass Torts—Asbestos

RobertWrightRobert H. Wright, a Partner with Horvitz & Levy LLP in Los Angeles, CA

The US Court of Appeals for the Fourth Circuit recently applied the Boyle government-contractor defense to a failure-to-warn claim in an asbestos case.  Sawyer v. Foster Wheeler LLC, 860 F.3d 249 (4th Cir. 2017).  In doing so, the court wisely rejected a narrow interpretation of the defense favored by other federal circuit courts.

The defense derives its name from Boyle v. United Technologies Corp., 487 U.S. 500, 501 (1988), which held that, in order to avoid indirectly penalizing the United States government for its discretionary decisions concerning the purchase of military equipment, contractors supplying that equipment would be immune from state product-liability claims where (1) the government approved reasonably precise specifications for the equipment; (2) the equipment conformed to those specifications; and (3) the contractor warned the government of any dangers known to the contractor about which the government was unaware. Continue reading

An Economic Reality: Uniform Regulatory Definition Needed for Who Is an “Employee”

DOLLast month, the Department of Labor (DOL) announced that its was withdrawing controversial policies that reflected how its Wage and Hour Division defined the terms “employer” and “employee” when enforcing the Fair Labor Standards Act (FLSA). DOL merited the applause its action received from regulated entities, but it is merely one small step in the direction of what franchisors, franchisees, “gig” economy participants, independent contractors, and other businesses desperately need: clear, uniform, and reliable standards that put an end to the “gotcha” game regulators and lawyers have been playing in recent years.

This part will focus here on standards for the term “employee”; a future post will address the need for uniformity in what constitutes an “employer.” Continue reading

Update: Another Instance of Drunk Suing Ushered Out of Court

fosters

A few months ago we blogged about a lawsuit where the plaintiffs alleged they were deceived by the “Hawaiian-ness” that Kona Brewing Company conveyed on their beer labels.  The case was emblematic of a series of suits alleging that because beers were seemingly marketed as “foreign,” but produced in a domestic location, the brewers tricked the public into making purchases.  In addition to Kona, the makers of Red Stripe, Sapporo, Kirin Ichiban, and Beck’s have all been dragged into court.

Luckily, those brewers who fought back have been winning.  As mentioned in that previous commentary, the makers of both Red Stripe and Sapporo successfully petitioned their respective courts to dismiss their plaintiffs’ cases.  We can now add Fosters to the list.  Because Fosters’ product labels specifically state that brewing occurred in Georgia and Texas, no consumer would reasonably believe that it was imported from Australia.

With defeats piling up, let’s hope that the plaintiffs’ attorneys behind these frivolous claims will put an end to their “drunk suing.”

FCA “Qui Tam” Relator Sanctioned for Lawyers’ Scheme to Manufacture Evidence

ethicsBy Bailey McGowan, a 2017 Judge K.K. Legett Fellow at Washington Legal Foundation who will be entering her third year at Texas Tech University School of Law in the fall.

A double agent, an undercover operation, and deceit: No, these aren’t the well-worn plot elements of the latest James Bond movie. They are some of the tactics in a law firm’s scandalous attempt to manufacture the proof needed to survive a motion to dismiss in a False Claims Act (FCA) case, Leysock v. Forest Laboratories. The elaborate scheme exhibits the lengths to which deputized FCA plaintiffs and their lawyers will go to pursue their cut of a qui tam lawsuit’s routinely lucrative recovery. The federal court’s sanction for such behavior—barring the use of information fraudulently obtained in the plaintiff’s opposition motion—was an appropriate and laudable response, one that should embolden inspire other judges overseeing big-money litigation to take similar action against such blatant misconduct. Continue reading

Forum-Shopping Plaintiffs Take a Major Hit in US Supreme Court

supreme courtForum-shopping plaintiffs’ attorneys have long sought to file their claims against large businesses in jurisdictions with reputations for favoring plaintiffs—without regard to whether the claims actually arose in those jurisdictions.  They justify their assertions of personal jurisdiction in such cases by arguing that a company that does business nationwide should be amenable to suit in any State in which it conducts substantial business.  In its 2014 Daimler AG v. Bauman decision, the US Supreme Court called into serious question the validity of such venturesome assertions of jurisdiction.  The Court’s decision last week in Bristol-Myers Squibb Co. v. Superior Court may have put such claims entirely to rest. Continue reading

Preserved Shark Repellent: Pennsylvania’s Abuse-of-Process Law Withstands a Constitutional Challenge

Shark_as_part_of_a_law_office_sign

Source: WikiMedia Commons

By Hillary Hunter, a 2017 Judge K.K. Legett Fellow at Washington Legal Foundation who will be entering her third year at Texas Tech University School of Law in the fall.

Suppose while swimming through life, innocently enough you draw the attention of an aggressive lawyer. You did nothing wrong, but still find yourself being circled by a predator. Now, like a shark sensing blood in the water, suppose the lawyer goes in for a bite. He files a baseless lawsuit, one aimed at wearing down your resources and patience to the point where you will surrender and settle. As you do your best to keep your head above water, you consider your options. Is there any shark repellent around?

Victims of lawsuit abuse in some states, in fact, do have legislatively crafted tools at their disposal to fight back. For example, Pennsylvania’s Dragonetti Act recently survived a state constitutional separation–of–powers challenge. The Pennsylvania Supreme Court’s decision to uphold the law in Villani v. Seibert reflects the shared responsibility of the legislative and judicial branches to direct a state’s legal system and govern attorney conduct. Continue reading

The Supreme Court’s “Microsoft Corp. v. Baker” Decision Restores Much Needed Sanity to Federal Appellate Procedure

supreme courtMicrosoft Corp. v. Baker is one of those cases that only a lawyer could love. At issue was whether a federal appellate court has jurisdiction to review a class-certification order if the plaintiffs have voluntarily dismissed all of their claims, with prejudice.

Class-action plaintiffs have long sought the right to immediately appeal from orders denying class certification. In the 1960s and 1970s, some federal courts of appeals began allowing such an immediate right of appeal under the so-called death-knell doctrine. Under that judicially created rule, if the plaintiffs could show that the denial of class certification—if left unreviewed—would end the lawsuit for all practical purposes, the appeals court would grant review of that interlocutory order. Continue reading