BSCR Firm News/Blogs Feedhttps://www.bscr-law.com/?t=39&format=xml&directive=0&stylesheet=rss&records=10en-us13 Apr 2021 00:00:00 -0800firmwisehttps://blogs.law.harvard.edu/tech/rssIllinois' Predatory Loan Prevention Act Takes Effecthttps://www.bscr-law.com/?t=40&an=115784&format=xml&p=5258&stylesheet=blog09 Apr 2021Financial Services Law Blog<p>On March 23, 2021, Illinois Governor J.B. Pritzker signed into effect the Predatory Loan Prevention Act (the &ldquo;PLPA&rdquo;), which caps interest on consumer loan transactions at a rate of 36 percent. The PLPA essentially expands the interest rate caps set forth in the Military Lending Act, which is a federal law that protects active service members from usurious interest rates, to apply to all consumer loan transactions taking place in Illinois. Illinois is now one of eighteen jurisdictions to implement such a cap.</p> <p>The PLPA is part of an omnibus economic equity reform <a href="https://www.consumerfinancemonitor.com/wp-content/uploads/sites/14/2021/03/IL-SB-1792_1.pdf">bill</a> introduced by the Illinois Legislative Black Caucus. Other aspects of the bill include cannabis and agriculture equity reforms, as well as changes in how criminal convictions may be used in housing and employment decisions.</p> <p>Prior to passage of the PLPA, the average APR for payday loans in Illinois was 297%, and 179% for car title loans. Illinois residents were estimated to have paid more than $500 million per year in payday and title loan fees, and advocates of the PLPA state that these high-interest loans targeted communities of color, as well as the elderly.</p> <p>Critics of the PLPA argue that the law will eliminate jobs and make credit less accessible to Illinois citizens. Proponents of the Act counter that increased consumer spending on goods and services will actually grow jobs. The true economic impact of the new law remains to be seen.</p> <p>Lenders and financial service providers who provide credit in Illinois must take caution under the PLPA. The new law has teeth. Failure to comply with the PLPA carries statutory penalties of up to $10,000, renders the loan null and void, and requires the return of payments made toward the principal, interest, fees, or charges related to the loan. Furthermore, a violation of the PLPA may also give rise to a private right of action under the <a href="https://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=2356&amp;ChapterID=67">Illinois Consumer Fraud and Deceptive Business Practices Act</a>, subjecting lenders to liability for actual damages, punitive damages, and attorney&rsquo;s fees.</p> <p>In passing the PLPA, Illinois joins seventeen other states and the District in Columbia that have passed similar interest rate caps on consumer transactions.</p>https://www.bscr-law.com?t=39&format=xml&directive=0&stylesheet=rss&records=10Should you Shovel that Snow? The Massachusetts Rule is still the Rule in Missouri.https://www.bscr-law.com/?t=40&an=115699&format=xml&p=5258&stylesheet=blog06 Apr 2021Missouri Law Blog<p>The Missouri Court of Appeals has <a href="http://www.courts.mo.gov/file/ED/Opinion_ED108986.pdf ">ruled</a> that although abandoned by Massachusetts in 2010, the &ldquo;Massachusetts Rule&rdquo; is still the general rule in Missouri. So what is the Massachusetts Rule?&nbsp;First applied in Missouri in 1954, the Massachusetts Rule is actually an exception to the general premises liability principles that apply to owners or occupiers of property.&nbsp;Until 1954, the rule had only applied to municipalities.&nbsp;Under the Massachusetts Rule, an owner or possessor of property has &ldquo;no duty to remove snow or ice that accumulates naturally and is a condition general to the community.&rdquo; <i>Richey v. DP Props., LP</i>, 252 S.W.3d 249, 251-52 (Mo. App. E.D. 2008).&nbsp;This is especially true when snow or ice is actively falling.&nbsp;That is not to say the Massachusetts Rule is absolute.&nbsp;As with any rule, there are exceptions and even exceptions to the exceptions.&nbsp;Missouri courts have recognized two exceptions to the Massachusetts Rule: 1) where the property owner or operator assumed a duty through its course of conduct or 2) assumed a duty by agreement.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;</p> <p>The plaintiff in <i>Colleen O&rsquo;Donnell v. PNK (River City), LLC, et al.</i> slipped and fell on a patch of ice on the sidewalk of the River City Casino during a winter ice storm.&nbsp;The plaintiff had arrived at the Casino before the ice storm began and fell as she was leaving.&nbsp;The ice on the sidewalk had not been shoveled, scraped, salted, or altered in any way by the Casino.&nbsp;Shortly before plaintiff fell, the Casino had been monitoring the freezing rain and had requested Total Lot Maintenance, who the Casino had a contract with for snow removal, to treat and remove the ice.&nbsp;The Casino even warned some customers of the ice, helped some customers to their vehicles and tried to protect others from falling before plaintiff&rsquo;s fall.&nbsp;</p> <p>The Casino filed a motion for summary judgment asserting they had no duty to remove the ice that had accumulated on its property under the Massachusetts Rule, which the trial court granted.&nbsp;In affirming the trial court&rsquo;s ruling, the Missouri Court of Appeals revisited the Massachusetts Rule and the recognized exceptions to it.&nbsp;Plaintiff argued that both exceptions to the Massachusetts Rule applied to the Casino.&nbsp;</p> <p>Plaintiff first argued that the Casino assumed a duty based on its conduct leading up to her fall, pointing to the fact that the Casino was aware of the accumulating ice and was monitoring the conditions, that they specifically warned other customers of the ice, even assisted some patrons to their vehicles, and also requested Total Lot Maintenance treat the ice.&nbsp;However, the Casino&rsquo;s knowledge of the condition and warning and assisting its customers was not enough to trigger the exception.&nbsp;For the exception to apply in Missouri, the condition must be altered in some way by the landowner (or occupier), such as by shoveling, spreading salt or by some other means.&nbsp;</p> <p>As a practical matter, although Missouri courts require willful action to alter the condition of the snow or ice to trigger the exception, Missouri courts have found that active removal of snow or ice in a different area of the premises from where an incident occurred is at least enough to preclude summary judgment and may be enough to trigger the exception. <i>Otterman v. Harold&rsquo;s Supermarkets, Inc.</i>, 65 S.W.3d 553, 555 (Mo. App. W.D. 2001).&nbsp;The take away is, if the snow or ice has changed in some way since it first accumulated naturally, the exception is likely triggered and the landowner (or occupier) must then exercise ordinary care to remove the snow or ice and make the area reasonably safe. <i>Willis v. Springfield General Osteopathic Hosp.</i>, 804 S.W.2d 416, 419 (Mo. App. S.D. 1991).&nbsp;&nbsp;&nbsp;&nbsp;</p> <p>The Court of Appeals also rejected plaintiff O&rsquo;Donnell&rsquo;s argument that the Casino assumed the duty to remove the ice by virtue of its agreement with Total Lot Maintenance because plaintiff did not put forth evidence of the contract or its terms.&nbsp;Of note, the Court of Appeals did confirm that the mere existence of a snow removal policy is not enough to trigger the exception. &nbsp;&nbsp;</p> <p>The trial court granted a similar motion for summary judgment filed by Total Lot Maintenance.&nbsp;However, the Court of Appeals reversed, noting an issue of fact existed as to whether the assumed by agreement exception was triggered.&nbsp;The agreement required Total Lot Maintenance to clear snow and ice at the Casino after a certain amount of accumulation and the Court of Appeals found that this, coupled with the fact that the Casino had contacted them twice to remove the ice called into question whether their duty had been triggered.&nbsp;&nbsp;&nbsp;&nbsp;</p> <p>Importantly, the Missouri Court of Appeals rejected plaintiff&rsquo;s argument that the Massachusetts Rule should be abrogated entirely or, at a minimum, should not apply to hotel owners and operators.&nbsp;In Missouri, while hotel owners and operators may owe a heightened duty of care to its guests to warn of dangerous conditions in certain circumstances, this does not allow for circumvention of the Massachusetts Rule.&nbsp;The Rule is applied broadly and encompasses hotel owners and operators. <i>Richey</i>, 252 S.W.3d at 251.&nbsp;</p> <p>The Court of Appeals did acknowledge that the Massachusetts Rule in certain circumstances could incentivize owners and occupiers of property to not address dangerous conditions of snow or ice. &nbsp;However, they declined to void the rule, stating that is for the Missouri Supreme Court to decide.</p>https://www.bscr-law.com?t=39&format=xml&directive=0&stylesheet=rss&records=10Jurisdictional Expansion: Specific Personal Jurisdiction Just Got Broaderhttps://www.bscr-law.com/?t=40&an=115705&format=xml&p=5258&stylesheet=blog31 Mar 2021Product Liability Law Blog<p>Courts around the country have held a defendant is not subject to specific personal jurisdiction in a forum unless the claims asserted arose out of the defendant&rsquo;s contacts with the forum. In product liability cases, typically unless the product arrived in the forum through the defendant&rsquo;s actions, the courts found no specific personal jurisdiction existed.&nbsp; However, the United States Supreme Court has broadened the scope of contacts sufficient for a court to exercise personal jurisdiction over a defendant.&nbsp; In doing so, it has weakened a powerful defense.&nbsp;</p> <p>There are two types of personal jurisdiction&mdash;general and specific.&nbsp; Where general personal jurisdiction applies, a court may hear any claims against a defendant, even those unrelated to the forum.&nbsp; Barring an exceptional case, corporations are subject to general personal jurisdiction in any state in which they are incorporated or their principal place of business is located.&nbsp; Specific personal jurisdiction is more limited.&nbsp; A court may only exercise specific personal jurisdiction if the claims brought arise out of or relate to a defendant&rsquo;s contacts with the forum.&nbsp; The new decision focuses on specific personal jurisdiction.&nbsp;</p> <p>In two related cases - <i>Ford Motor Co. v. Montana Eighth Judicial District Court, et al.</i> and <i>Ford Motor Co. v. Bandemer</i> -the plaintiffs brought product liability claims against Ford arising from auto accidents that occurred in Montana and Minnesota respectively.&nbsp; The plaintiffs were residents of those states.&nbsp; However, the vehicles at issue were not originally sold by Ford in Montana or Minnesota.&nbsp; The cars were designed in Michigan, manufactured in Kentucky and Canada, and first sold in Washington and North Dakota.&nbsp; The cars arrived in the forum states through the actions of third-parties.</p> <p>Ford argued the states lacked personal jurisdiction over it because Ford did not first sell the vehicles in the forums.&nbsp; Ford claimed there must be a causal link between the contacts and the claims. The plaintiffs asserted that Ford&rsquo;s vast connections with the states, including dealerships, advertising and repair shops, provided a sufficient connection to the forums establishing that Ford purposefully availed itself of the privilege of conducting business there.</p> <p>In a majority <a href="https://www.supremecourt.gov/opinions/20pdf/19-368_febh.pdf ">opinion</a> authored by Justice Kagan, the Supreme Court rejected Ford&rsquo;s causal link argument.&nbsp; The Court held the case law did not require solely a causal link but also allowed jurisdiction when the claims &ldquo;relate to the defendant&rsquo;s contacts with the forum.&rdquo; The Court noted the significant advertisements used by Ford to urge residents of Montana and Minnesota to buy its products, including the same type of vehicles at issue.&nbsp; Similarly, the number of authorized dealers in the states along with Ford sending replacement parts to those dealerships and independent repair shops throughout the forums demonstrated Ford had purposefully availed itself of benefits of doing business there.&nbsp;</p> <p>Justices Alito, Gorsuch and Thomas concurred in the judgment with Justice Barrett taking no part in the consideration or decision of the case.&nbsp; Justice Gorsuch, joined by Justice Thomas, lamented the majority opinion&rsquo;s failure to provide adequate guidance to lower courts regarding what amount of contacts would support a forum exercising personal jurisdiction over a defendant, and a lack of clarity as to whether <i>any </i>causal link is necessary.&nbsp;</p> <p>Justice Gorsuch further questions why national corporations would not be subject to personal jurisdiction in every state in which they do business.&nbsp; He notes &ldquo;the Constitution has always allowed suits against <i>individuals</i> on any issues in any State where they set foot.&rdquo;&nbsp; <i>Id</i>. n.5.&nbsp; He posits, why should corporations receive more jurisdictional protections than individuals?</p> <p>So, how will this decision impact cases?&nbsp; First, the decision reaffirms that a nonresident plaintiff may only file suit in a forum in which there is a connection to the claims asserted.&nbsp; The majority suggests that had plaintiffs tried to file suit in some other state unrelated to the incident or the vehicles in question, personal jurisdiction would be improper.&nbsp; This reaffirmation should continue to help limit forum shopping by plaintiffs.&nbsp; However, nonresident plaintiffs may still file suit in a corporation&rsquo;s home states where it is subject to general personal jurisdiction.</p> <p>Second, regional companies would still be protected from suits in other jurisdictions in which they do not conduct their businesses.&nbsp; However, the decision will likely expand the scope of permissible jurisdictional discovery allowed by trial courts particularly in those states where plaintiff bears the burden of proving personal jurisdiction exists.</p> <p>Third, national companies may essentially be subject to personal jurisdiction in any state in which a resident plaintiff is injured.&nbsp; However, it is unclear from the opinions what limitations, if any, exist.&nbsp; For example, if a manufacturer sells its products through a national retailer, does this fact mean the manufacturer is subject to personal jurisdiction everywhere the national retailer is?&nbsp; Would the exercise of personal jurisdiction depend on how the product gets to the retailer&mdash;i.e. does the manufacturer send the product to a third-party distributor who then sends it to the individual stores or does the manufacturer deliver the products to the stores directly?&nbsp;</p> <p>Similarly, how much advertisement is sufficient? Will it matter if the advertisement is directed to the state or nation as a whole&mdash;such as television commercials or billboards&mdash;or if it is narrowly tailored to a specific type of audience such as sponsorship signs on team uniforms, at a ballpark, or in a trade magazine?&nbsp; What if the advertising is purchased in a national magazine rather than a local newspaper?&nbsp;</p> <p>Finally, there was no guidance issued for e-commerce sales.&nbsp; Will a single sale to a forum be sufficient? Is it a number of sales or the percentage of the overall business&rsquo;s sales that are relevant? Will a critical factor be whether the website accessed was the manufacturer&rsquo;s or a third-party&rsquo;s?</p> Unfortunately, the opinion leaves these questions to be sorted out in future cases with little guidance to the lower courts.&nbsp; As a result, this will not be the last time we hear from the Supreme Court on personal jurisdiction.&nbsp;&nbsp;https://www.bscr-law.com?t=39&format=xml&directive=0&stylesheet=rss&records=10Governor Pritzker Vetoed HB3360 but HA2 which imposes a 6% prejudgment interest is already close on its tail.https://www.bscr-law.com/?t=40&an=115624&format=xml&p=26 Mar 2021Illinois Law Blog<p>The saga continues over prejudgment interest in Illinois. Although Governor Pritzker vetoed HB 3360, which would have imposed a 9% prejudgment interest on person injury and wrongful death action, a modified version of the bill is already speeding its way through the system.&nbsp;&nbsp;<i><a href="/B07AF5/assets/files/Documents/Governor Pritzker's Letter Supporting His Veto of HB3360 3.25.21.pdf">See letter from JB Pritzker in support of his Veto</a>. </i></p> <p>HA2&nbsp;is in front of the Senate and would soften the blow to defendants.&nbsp; However, it still penalizes defendants for exercising their right to trial.&nbsp;For instance, in HA2 prejudgment interest would be 6% instead of 9% per annum and would not apply to punitive damages, sanctions, statutory attorneys&rsquo; fees, statutory costs, and the amount of the highest timely written settlement offer.&nbsp;Further, it would cut off interest at 5 years and toll interest if the case is voluntary dismissed.&nbsp;These are all improvements from the prior bill but still would penalize defendants who defend themselves and the interest rate is still arbitrary.&nbsp;</p> <p>In Governor Pritzker&rsquo;s letter he urges the sponsors of HB 3360 to negotiate a compromise which adds protection for health care providers while still encouraging a quick resolution to a case.&nbsp;HA2 seems to be just that, a compromise which still punishes only the defendant for a slow moving case, not considering the back log of the courts or what actions plaintiffs may take to delay a case just to make its value go up.</p> <p>Defendants need to be mindful of the pre-judgment interest accrual that results from delays in litigation caused by either side or the court. If you have questions about how this development might impact you or your organization, please contact the author or Baker Sterchi.</p>https://www.bscr-law.com?t=39&format=xml&directive=0&stylesheet=rss&records=10Order for Permanent Injunction Not Open for Interpretationhttps://www.bscr-law.com/?t=40&an=115603&format=xml&p=5258&stylesheet=blog25 Mar 2021Employment & Labor Law Blog<p>On March 2, 2021, the Missouri Court of Appeals, Eastern District, in <i>Chemline Inc. v. Mauzy</i>, affirmed in part and reversed and remanded in part, a St. Louis County Circuit Court&rsquo;s order finding a sales representative in contempt of the court&rsquo;s permanent injunction order expressly prohibiting contact with his former employer&rsquo;s customers. The trial court assessed a compensatory fine, despite plaintiff&rsquo;s failure to demonstrate that it suffered actual damages as a result of the contemptuous conduct, and attorneys&rsquo; fees.</p> <p>The case involved restrictive covenants, including a non-compete and non-solicitation agreement, between Chemline Inc. and its former sales representative Timothy Mauzy.&nbsp; Mauzy left Chemline and began working for IXS Coatings in a sales capacity.&nbsp; Seven months later, Chemline filed a petition for injunctive relief, claiming Mauzy violated the non-compete and non-solicitation provisions of his employment agreement in that he contacted customers with whom he had a relationship during his employment with Chemline.&nbsp; Both Chemline and IXS coatings are in the business of custom coating for use in industrial and commercial application and, thus, are direct market competitors.</p> <p>The trial court entered an order of permanent injunction prohibiting Mauzy from contacting five specific customers with whom he had a relationship during his employment at Chemline.&nbsp; Four months after the injunction was entered, Chemline. file a motion for contempt and to show cause alleging Mauzy&rsquo;s interactions with an employee from one of the five customers constituted a willful violation of the order.&nbsp; The trial court found Mauzy engaged in &ldquo;willful disobedience&rdquo; of the order and entered a judgment of contempt, awarded Chemline $6,000 in attorney&rsquo;s fees and $2,000 in compensatory damages for interfering with Chemline&rsquo;s business relationships.&nbsp;</p> <p>Mauzy appealed claiming the trial court erred in: 1) finding him in contempt because the conduct was not clearly, unambiguously, and expressly prohibited by the order; 2) assessing a $2,000 compensatory fine where there was no evidence of actual damage; and 3) awarding Chemline Inc. $6,000 in attorney&rsquo;s fees because he did not violate the injunction order, willfully or otherwise.</p> <p>As to Point I regarding whether the order clearly, unambiguously and expressly prohibited Mauzy&rsquo;s conduct, Mauzy claimed the order only precluded contact with the <i>companies</i> and not their <i>individual employees</i>. Mauzy did not deny being in contact with employees from former clients. He further claimed the order prohibited contacting former clients for &ldquo;business-related solicitation&rdquo; and not personal communication, though this distinction was not addressed in the order at issue, nor did Mauzy request clarification of the trial court&rsquo;s order before directly violating it.&nbsp; The Court of Appeals found no error in the trial court&rsquo;s conclusion that the order&rsquo;s prohibition on &ldquo;contacting&rdquo; former clients, encompassed all communications.</p> <p>As to Point II regarding the court assessing a compensatory fine, the Court of Appeals held the trial court erred in assessing the $2,000 compensatory fine as there was no evidence that Chemline. suffered any actual damage as a result of Mauzy&rsquo;s conduct.&nbsp; Because compensatory fines are meant to be remedial in nature, these fines must be related to actual damage suffered.&nbsp; Chemline could not demonstrate a quantified diminution in business sales for which compensatory damages would be appropriate.&nbsp; Thus, the trial court erred in assessing and remanded for reconsideration of the compensatory fine.&nbsp;</p> <p>As to Point III regarding the award of attorney&rsquo;s fees, the trial court&rsquo;s order was affirmed, as the trial court has inherent authority to assess attorneys&rsquo; fees in a civil contempt proceeding.&nbsp; The Court of Appeals will affirm an award of attorneys&rsquo; fees unless it constitutes an abuse of discretion, which was not found in this case.&nbsp;</p> Moral of the story: don&rsquo;t try to get cute with interpreting a court&rsquo;s permanent injunction order.&nbsp; &ldquo;No communication&rdquo; does in fact mean <b>NO</b> communicationhttps://www.bscr-law.com?t=39&format=xml&directive=0&stylesheet=rss&records=10U.S. Supreme Court Asked to Review Issue of Jurisdiction for Non-Resident Plaintiffs in Products Caseshttps://www.bscr-law.com/?t=40&an=115338&format=xml&p=5258&stylesheet=blog12 Mar 2021Missouri Law Blog<p>Johnson and Johnson (&ldquo;J&amp;J&rdquo;) has asked the United States Supreme Court to overturn the $2.1 billion verdict entered against it in <em>Ingham, et al. v. Johnson &amp; Johnson, et al.</em>, a talcum powder class action filed in Missouri that included numerous non-resident plaintiffs. If review is granted, the Supreme Court will rule on just how far the &ldquo;arise out of or relate to&rdquo; prong of the test for specific jurisdiction extends with respect to the claims of a nonresident plaintiff.&nbsp;</p> <p>The inconsistent way differing jurisdictions determine the existence of specific jurisdiction for non-resident plaintiffs is readily apparent.&nbsp; And the litigation involving the talcum powder products at issue in this case is a perfect example of this type of inconsistency.&nbsp; Two courts, one in Missouri and the other in New Jersey, reached two very different conclusions regarding the exercise of personal jurisdiction over the same claims involving non-resident plaintiffs.&nbsp; Missouri found that its exercise of jurisdiction was proper, while New Jersey did not.&nbsp; This did not come as a shock to Missouri practitioners, because Missouri courts have long welcomed and been a favorite for out-of-state plaintiffs.&nbsp; &nbsp;</p> <p>Following the United States Supreme Court&rsquo;s decision in <em>Bristol-Myers Squibb Co. v. Superior Court,</em>137 S.Ct. 1773 (2017), this practice of forum shopping was curtailed.&nbsp; However, the Missouri Court of Appeals for the Eastern District re-opened the door for a non-resident plaintiff to bring a cause of action in Missouri for alleged damages based upon the use of a product that he did not purchase or use in Missouri, nor suffer damages in Missouri. &nbsp;<em>See Ingham, et al. v. Johnson &amp; Johnson, et al.</em>, 608 S.W.3d 663 (Mo.App. E.D.&nbsp; 2020), trans. denied, 2020 Mo. LEXIS (Nov. 3, 2020).&nbsp; However, the holding in Ingham regarding the exercise of specific jurisdiction is the diametric opposite of the decision of the United States District Court for the District of New Jersey deciding the same jurisdictional issue on the very same facts in the same week.&nbsp; <em>See Hannah v. Johnson &amp; Johnson Inc</em>., 2020 U.S. Dist. LEXIS 113284 (D.N.J. June 29, 2020).&nbsp; &nbsp;</p> <p><b>Background</b></p> <p>In <em>Ingham, </em>plaintiffs sought recovery against two defendants:&nbsp;Johnson &amp; Johnson Consumer Companies Inc. (&ldquo;JJCI&rdquo;) and its parent company, J&amp;J. Twenty-two plaintiffs alleged they developed ovarian cancer after continued use of two of the defendants&rsquo; products:&nbsp;Johnson&rsquo;s Baby Powder and Shower to Shower Shimmer Effects (&ldquo;Shimmer&rdquo;). &nbsp;The parties agreed that defendants were not subject to general jurisdiction in Missouri because they are incorporated and headquartered in New Jersey.&nbsp;Five plaintiffs lived, purchased and used Johnson&rsquo;s Baby Powder and/or Shimmer, and developed ovarian cancer in Missouri (&ldquo;Missouri Plaintiffs&rdquo;).&nbsp;Jurisdiction over JJCI with respect to the Missouri Plaintiffs was not disputed.&nbsp;</p> <p>Jurisdiction was disputed with respect to the other seventeen plaintiffs who lived, purchased and used Johnson&rsquo;s Baby Powder and/or Shimmer and developed ovarian cancer outside Missouri (the &ldquo;Non-Resident Plaintiffs&rdquo;).&nbsp;Two of these Non-Resident Plaintiffs only used Baby Powder, while the remaining Non-Resident Plaintiffs used Shimmer or used both Shimmer and Baby Powder.&nbsp;</p> <p>The Non-Resident Plaintiffs alleged that defendants were subject to specific jurisdiction in Missouri because JJCI had two long-term contractual relationships with Pharma Tech Industries, a Missouri corporation for the manufacturing, packaging and supply of Shimmer and Johnson&rsquo;s Baby Powder.&nbsp;&nbsp; Fifteen of the Non-Resident Plaintiffs asserted that jurisdiction was proper in Missouri because they used Shimmer, which was manufactured, labeled and packaged by Pharma Tech Industries&rsquo; sister company, Pharma Tech Union, located in Union, Missouri, under defendants&rsquo; direction and control.&nbsp;The other two Non-Resident Plaintiffs claimed the defendants were subject to specific jurisdiction in Missouri because they used Johnson&rsquo;s Baby Powder that was manufactured, labeled and packaged by Pharma Tech Industries&rsquo; sister company, Pharma Tech Royston, located in Royston, Georgia, under Pharma Tech Industries&rsquo; direction and control.&nbsp;</p> <p><b>Trial Court&rsquo;s Findings on Jurisdiction</b></p> <p>The trial court held that it could exercise specific jurisdiction over defendants on the Non-Resident Plaintiffs&rsquo; claims because their alleged conduct satisfied the Missouri long-arm statute.&nbsp;Specifically, the court opined that defendants transacted business in Missouri, allegedly committed a tortious act in Missouri, owned real estate in Missouri, and contracted with Pharma Tech Industries in Missouri to manufacture packaging materials and to manufacture, label and package both products.&nbsp;The trial court further found that these activities constituted sufficient minimum contacts to subject defendants to specific jurisdiction in Missouri.&nbsp;</p> <p><b>The Appeal</b></p> <p>On appeal, the defendants did not challenge the trial court&rsquo;s finding that the long-arm statute extended to them.&nbsp;Instead, with respect to jurisdiction, the defendants only appealed whether they established sufficient minimum contacts with Missouri that enabled the trial court to exercise specific jurisdiction over them.</p> <p>The Missouri Court of Appeals recognized that it can only assert specific personal jurisdiction over the defendants if the defendants had certain minimum contacts with Missouri <u>and</u> if plaintiffs&rsquo; cause of action arose from those alleged minimum contacts.&nbsp;&nbsp;Because of this requirement, the question of whether specific jurisdiction exists must be determined separately for each individual plaintiff&rsquo;s claims.&nbsp;</p> <p><b>The Missouri Court of Appeals&rsquo; Holding Regarding Jurisdiction over the Non-Residents&rsquo; Claims Related to the Use of Shimmer</b></p> <p>Citing the United States Supreme Court decision in <i>Bristol-Myers Squibb Co. (&ldquo;BMS&rdquo;), </i>the Missouri Court of Appeals held that the trial court properly exercised specific jurisdiction over JJCI for the claims of the Non-Resident Plaintiffs associated with Shimmer because JJCI &ldquo;engaged in a host of significant activities in Missouri related to the Non-Resident Plaintiffs&rsquo; use of Shimmer.&rdquo;&nbsp;Specifically, JJCI contracted with Missouri-based Pharma Tech to manufacture, package and label Shimmer pursuant to JJCI&rsquo;s specification at Pharma Tech&rsquo;s facility in Missouri.&nbsp;</p> <p>Defendants argued that its contract with a Missouri corporation alone was insufficient to subject defendants to personal jurisdiction in Missouri.&nbsp;For as the United States Supreme Court&rsquo;s held in <i>BMS</i>, &ldquo;[a] defendant&rsquo;s relationship with a third party, standing alone, is an insufficient basis for jurisdiction&hellip; The bare fact that BSM contracted with a California distributor is not enough to establish personal jurisdiction in this State.&rdquo;&nbsp;137 S.Ct. at 1783. (citations omitted.)&nbsp;</p> <p>However, the Missouri Court of Appeals, apparently realizing that JJCI&rsquo;s contract with Pharma Tech was insufficient to confer jurisdiction over JJCI, stretched further to justify its exercise of personal jurisdiction over JJCI in Missouri.&nbsp;To do this, the appellate court held that JJCI&rsquo;s contacts constituted more than a &ldquo;mere contractual relationship with a third party.&rdquo;&nbsp;&nbsp; Because JJCI engaged in activities related to the manufacture, packaging and labeling of Shimmer in Missouri, the Court of Appeals found that it was reasonable to require JJCI &ldquo;to submit to the burdens of litigation&rdquo; in Missouri.&nbsp;Instrumental in this finding is that the Non-Resident Plaintiffs&rsquo; claims alleged negligent manufacture, production, packaging and labeling of Shimmer.&nbsp;&nbsp; Therefore, according to the Court of Appeals, JJCI&rsquo;s activities with Pharma Tech in Missouri were a &ldquo;direct link in the production chain of Shimmer&rsquo;s eventual sale to the public &hellip; [and] &hellip; firmly connect JJCI&rsquo;s activities in Missouri to the specific claims of the Non-Resident Plaintiffs&rdquo; related to Shimmer.</p> <p>This decision is in stark contrast to holding in <i>Hannah.</i>&nbsp;In <i>Hannah, </i>the United States District Court for the District of New Jersey held that it could not exercise jurisdiction over the J&amp;J defendants for the claims of the non-Missouri residents because J&amp;J&rsquo;s contracts with Pharma Tech &ldquo;to produce some of its products does not confer jurisdiction.&rdquo;&nbsp;2020 U.S. Dist. LEXIS 113284, at * 103 (D.N.J. June 29, 2020).&nbsp;As the District Court explained:</p> <p style="margin-left: 40px;">While those contacts might well constitute purposeful availment of the benefits and protections of the State of Missouri in a contract action, these contacts are irrelevant in this products liability action.&nbsp;Indeed, Plaintiffs have not demonstrated that their injuries in any way arise out of those specific agreements.&nbsp;In other words they neglect to allege a connection between their injuries and those specific distribution agreements.</p> <p><i>Id. </i>(citations omitted).</p> <p><b>The Missouri Court of Appeals&rsquo; Holding Regarding Jurisdiction over the Non-Residents&rsquo; Claims Related to the Use of Johnson&rsquo;s Baby Powder</b></p> <p>The Court of Appeals, however, found that the trial court erred in exercising specific jurisdiction over JJCI on the claims of the two Non-Resident Plaintiffs who only used Johnson&rsquo;s Baby Powder because the Petition &ldquo;did not sufficiently allege JJCI engaged in significant activities in Missouri related to their use [of] Johnson&rsquo;s Baby Powder.&rdquo;&nbsp;Non-Resident Plaintiffs argued that because Pharma Tech in Missouri controlled and directed the manufacturing, processing, bottling, labeling and distribution of Johnson&rsquo;s Baby Powder in Georgia from its headquarters in Union, Missouri, JJCI was subject to jurisdiction in Missouri for the claims involving Johnson&rsquo;s Baby Powder.&nbsp;</p> <p>The court rejected the Non-Resident Plaintiffs&rsquo; claims.&nbsp;Specifically, the Court of Appeals explained that the &ldquo;record is devoid of evidence that JJCI engaged in any activities related to Johnson&rsquo;s Baby Powder, beyond the executing of &hellip; [the contracts] with a Missouri-based corporation, in Missouri.&rdquo;&nbsp;Therefore, the contract JJCI executed with Pharma Tech in Missouri regarding Johnson&rsquo;s Baby Powder was not sufficient to confer jurisdiction over JJCI in Missouri for the claims solely related to Johnson&rsquo;s Baby Powder.&nbsp;This part of the decision by the Missouri Court of Appeals is in line with the Supreme Court&rsquo;s holding in <i>BMS</i> because &ldquo;contracting with an out-of-state party alone cannot automatically establish sufficient minimum contacts in the out-of-state party&rsquo;s forum.&rdquo;&nbsp;</p> <p><b>Conclusion</b></p> <p>To the surprise of many observers, the Missouri Supreme Court declined to review the Court of Appeals ruling, which upheld an historically large verdict, in a case that seemed to collide rather sharply with the U.S. Supreme Court decision in <i>Bristol-Myers Squibb. </i>The Missouri Court of Appeals holding in <i>Ingham </i>allows a court to exercise jurisdiction over a company that contracts with a third party to make a product according to the company&rsquo;s specifications.&nbsp;According to the <i>Ingham </i>court, jurisdiction in this situation is based on more than a mere contractual relationship.&nbsp;However, this reasoning was squarely rejected by the United States District Court for the District on New Jersey in <i>Hannah.</i>&nbsp;Should the United States Supreme Court grant review, it should follow the sound reasoning of <i>BMS </i>and <i>Hannah </i>and hold that Missouri courts cannot exercise jurisdiction over the claims of non-resident plaintiffs when they did not purchase, use or suffer injury in the State of Missouri.</p>https://www.bscr-law.com?t=39&format=xml&directive=0&stylesheet=rss&records=10Get Woke: Millennials and Age Discriminationhttps://www.bscr-law.com/?t=40&an=115217&format=xml&p=5258&stylesheet=blog04 Mar 2021Employment & Labor Law Blog<p>Mmmk. Imma spill some tea.&nbsp;Some Millennials are now protected under the Age Discrimination in Employment Act (ADEA), as well as the Illinois Human Rights Act (IHRA), Missouri Human Rights Act (MHRA), and other state laws.&nbsp;Millennials &ndash; who are defined as individuals born between 1981 and 1996 &ndash; are just beginning to turn 40 years old this year (I&rsquo;m looking at you, Paris Hilton).&nbsp;Yes &ndash; you heard me right.&nbsp;This means some (but not all) Millennials now have standing to sue employers for age discrimination. It&rsquo;s offish.</p> <p>So what does this mean?&nbsp;The ADEA, IHRA, and MHRA prohibit discrimination against employees who are 40 years old or older in any aspect of employment.&nbsp;Similarly, it is unlawful for an employer to harass an employee because of the worker&rsquo;s age, if 40 or older.&nbsp;Such harassment can include derogatory or offensive remarks regarding an individual&rsquo;s age to the point where such comments are so frequent and severe that they create a hostile work environment.</p> <p>Millennials account for a majority of the workforce.&nbsp;Majority status notwithstanding, Millennial bashing is definitely a thing.&nbsp;Employers have continually expressed frustration with Millennial employees, believing (rightly or wrongful) that Millennials have a sense of entitlement, need to be spoon-fed, are glued to TikTok, and lack loyalty.&nbsp;Many older employees perceive Millennials as lazy, in part due to many Millennials&rsquo; preference for texting and emailing over making phone calls.&nbsp;Some commentators have even suggested that there is a generational war between Millennials and &ldquo;Boomers.&rdquo;&nbsp;It should come as no surprise, then, that in a 2019 survey conducted by Glassdoor on diversity and inclusion, 52% of the Millennials surveyed indicated that they had experienced or witnessed age discrimination in their careers.&nbsp;</p> <p>Although many Millennials may claim to experience age discrimination in the workplace, employers are allowed to favor older workers over younger workers, even if both employees are over the age of 40.&nbsp;For Millennials who are just turning 40, this means that an employer can favor a &ldquo;Boomer&rdquo; over you.&nbsp;Some Millennials may perceive such favoritism as discrimination against them because the Millennials are just that &ndash; Millennials&hellip;not because the older employee has seniority or is a more experienced employee.&nbsp;Because of the seemingly strong divide between the perceived mindsets of &ldquo;Boomers&rdquo; and Millennials, as well as the growing trend of additional employee protections in the workplace, it is possible that a greater push will be made for protections against favoritism against &ldquo;older employees&rdquo; over Millennials covered under the ADEA, IHRA, and MHRA.&nbsp;In addition, Millennials protected under the ADEA and state anti-discrimination and harassment laws may argue that they are harassed at work for being Millennials, which implies that the Millennials are being harassed on account of their age. All of this, however, is obv TBD.</p> <p>BTW Millennials, using the word &ldquo;Boomer&rdquo; is throwing shade on an entire generation that is older than you (and who are, therefore, a protected class under federal and state age discrimination laws).&nbsp;Dropping the word &ldquo;Boomer&rdquo; is also kinda, sorta, obvs discriminatory.&nbsp;So stay tuned for my next blog on &ldquo;Boomer&rdquo; discrimination and harassment&hellip;MTF&hellip;</p>https://www.bscr-law.com?t=39&format=xml&directive=0&stylesheet=rss&records=10Kara Stubbs Recognized by Who's Who Legal: Life Sciences - Product Liability 2021https://www.bscr-law.com/?t=40&an=115166&format=xml&p=525502 Mar 2021Recognition<p>Baker Sterchi Member Kara Stubbs is recognized as a top attorney in the <strong>Life Sciences-Product Liability</strong> section of the 2021 edition of <i>Who&rsquo;s Who Legal: Life Sciences.</i></p> <p><i>Who&rsquo;s Who Legal: Life Sciences</i> aims to identify the top lawyers practicing in the pharmaceutical and biotechnology sector in four categories: product liability, patent litigation, regulatory, and transactional. Product liability lawyers are chosen for their experience acting for product manufacturers and sellers on matters including safety regulations and risk management, as well as defending personal injury and mass tort claims.</p> <p>Attorneys listed in the publication are considered to have impressive experience in applying their legal skills to advising and representing high-profile clients operating within the life sciences industry, and are selected for inclusion only after a multi-step research process that includes vetting of nominations by previously listed attorneys; solicitation of commentary from selected groups of private practitioners and corporate counsel with a specific interest in the Life Sciences field; review of legal press, periodicals and the internet for the most recommended attorneys; and telephone and face-to-face interviews.<br /> <br /> Stubbs has extensive experience in the areas of product liability, particularly the defense of pharmaceutical and medical device manufacturers. She has been recognized in the <i>Who&rsquo;s Who Legal: Life Sciences</i> publication every year since 2016.&nbsp;</p>https://www.bscr-law.com?t=39&format=xml&directive=0&stylesheet=rss&records=10Law360 Quotes Baker Sterchi Member Paul Venker on Missouri Med Mal Cap Challengehttps://www.bscr-law.com/?t=40&an=115025&format=xml&p=544823 Feb 2021Firm News<p>Baker Sterchi Member Paul Venker, St. Louis, is quoted in a recent Law360 article &ldquo;Med Mal Cap Challenge To Decide Mo. Lawmakers&rsquo; Power&rdquo; regarding the constitutionality of Missouri&rsquo;s $700,000 cap on noneconomic damages in medical malpractice cases in light of a Feb. 16 lower appeals court ruling that the issue should be decided by the Missouri Supreme Court as an issue of first impression.</p> <p>Venker notes there is no fundamental difference between the current case and Dodson v. Ferrara, a case he argued for the defense in 2016, in which the Missouri Supreme Court found that the noneconomic damages cap, as applied to wrongful death claims, was not unconstitutional. &quot;There isn&rsquo;t any difference with Dodson because the General Assembly has abrogated the common law claim,&quot; said Venker. &quot;[They have] this power&hellip; to enact the law, and they've done it.&quot;</p> <p>Venker&rsquo;s practice has always focused on trials and appeals. He has taken dozens of trials to verdict in a variety of cases ranging from employment discrimination and medical malpractice to product liability and other serious personal injury and general liability matters. Since clerking at the Missouri Supreme Court, Venker has also been an active appellate lawyer.&nbsp;He is recognized in the 2021 edition of The Power List, a Missouri Lawyers Media publication, featuring the 30 most powerful appellate attorneys in Missouri.</p>https://www.bscr-law.com?t=39&format=xml&directive=0&stylesheet=rss&records=10Venker and Larkin Named to Missouri Lawyers Media "The POWER List" for Appellate Attorneyshttps://www.bscr-law.com/?t=40&an=115057&format=xml&p=525523 Feb 2021Recognition<p>Baker Sterchi Members Paul Venker and Lisa Larkin earned recognition in the 2021 <i>Missouri Lawyers Media </i>POWER List of Appellate Attorneys.</p> <p>The POWER List features the 30 most powerful appellate attorneys in Missouri as identified by the Missouri Lawyer Media editorial team after reviewing published appellate opinions, interviewing attorneys and other leaders around the state, and examining Missouri Lawyers Weekly archives. Venker and Larkin both received <i>Missouri Lawyers Media</i> Influential Appellate Advocate awards in 2017.&nbsp;</p> <p>Venker&rsquo;s practice has always focused on trials and appeals. He has taken dozens of trials to verdict in a variety of cases ranging from employment discrimination and medical malpractice to product liability and other serious personal injury and general liability matters. He has been an active appellate lawyer since clerking at the Missouri Supreme Court.&nbsp;</p> <p>Larkin&rsquo;s has practiced exclusively in litigation and appeals since 1996. Her practice is concentrated in appeals and complex motions, personal injury defense, medical malpractice defense and business litigation.&nbsp;She received the <em>Missouri Lawyers Media </em>Up &amp; Coming Award for her mentorship of young attorneys in 2020.</p>https://www.bscr-law.com?t=39&format=xml&directive=0&stylesheet=rss&records=10