BSCR Firm News/Blogs Feedhttps://www.bscr-law.com/?t=39&format=xml&directive=0&stylesheet=rss&records=10&break_the_cache=1638560435en-us16 Jan 2022 00:00:00 -0800firmwisehttps://blogs.law.harvard.edu/tech/rssBaker Sterchi Appoints Practice Group Co-Chairshttps://www.bscr-law.com/?t=40&an=120191&format=xml&p=544813 Jan 2022Firm News<p>Baker Sterchi has appointed new co-chairs to several of its practice groups:</p> <p><b>Healthcare</b></p> <p>John Mahon and Brandy Simpson of St. Louis were appointed co-chairs to the Healthcare Practice Group.</p> <p>Mahon is a trial lawyer who helps clients defend medical negligence litigation, with a client base ranging from hospitals, emergency departments, ambulatory surgery centers, and urgent care centers to EMS, long-term care facilities, and home health agencies. He is the editor of the Baker Sterchi Healthcare Law Blog.</p> <p>Simpson primarily focuses her practice on medical malpractice defense.&nbsp;She has extensive experience representing physicians, hospitals, nursing homes, and insurance companies.&nbsp;She is a member of the Defense Research Institute Medical Liability and Health Care Law Committee and a 2021 recipient of the <i>Missouri Lawyers Media</i> Women's Justice (Litigation Practitioner) Award.</p> <p>Baker Sterchi Healthcare Practice Group attorneys bring a broad-based understanding of the legal, medical, and financial issues underpinning multiple aspects of the healthcare industry.&nbsp;They defend medical professionals and healthcare institutions in litigation pending in state and federal courts and before state licensing agencies and handle privilege-to-practice issues before state hospital boards.</p> <p><b>Insurance Coverage and Bad Faith</b></p> <p>Angela Clark (Kansas City) and Richard Woolf (St. Louis) were appointed co-chairs of the Insurance Coverage and Bad Faith Practice Group.</p> <p>Clark focuses her practice nearly exclusively on insurance coverage and bad faith matters.&nbsp;She has testified before the Missouri House Committee on Insurance Policy.&nbsp;She is a steering committee member of the ALFA International Insurance Practice Group, editor of the Baker Sterchi Insurance Law Blog, and recognized in the most recent edition of <i>Chambers USA</i> for her insurance work.</p> <p>Woolf concentrates his practice on third-party insurance defense and first-party insurance litigation.&nbsp;He is a national presenter on insurance litigation matters, including casualty and property topics, insurance coverage issues, and efficient claims handling practices.&nbsp;<i>Best Lawyers in America</i> has recognized him for his insurance law work in the metropolitan St. Louis area.</p> <p>Baker Sterchi Insurance Coverage and Bad Faith attorneys have extensive experience analyzing coverage issues, providing coverage opinions, and evaluating reservation of rights issues.</p> <p><b>Pharmaceutical and Medical Device</b></p> <p>Kara Stubbs and Paul Penticuff of Kansas City were appointed co-chairs of the Pharmaceutical and Medical Device Practice Group.</p> <p>Stubbs has extensive product liability experience, particularly in defending pharmaceutical and medical device manufacturers.&nbsp;She has defended pre-suit claims and individual cases and served the role of local, regional, and national counsel. Stubbs has been active on the Pharmaceutical and Medical Device Committees of several organizations, including the American Bar Association, Defense Research Institute, and International Association of Defense Counsel.&nbsp;She is a frequent author and speaker on issues of interest to the pharmaceutical and medical device industries.&nbsp;She has been recognized for her defense of product liability litigation in the Kansas City metropolitan area by <i>Best Lawyers in America</i> and her pharmaceutical and medical device work by <i>Who&rsquo;s Who Legal: Life Sciences</i>.</p> <p>Penticuff's practice focuses on product liability and complex litigation in highly regulated industries such as the pharmaceutical and medical device industry. He serves as national trial counsel for a manufacturer of insulin pumps and handles claims, lawsuits, recalls, business disputes, contract negotiation and regulatory matters from start to finish. He also has experience serving as national coordinating counsel for a major pharmaceutical company. He regularly speaks on local bar association panels regarding tort reform legislation, new developments in product liability law, and winning negotiating techniques.</p> <p>For four decades, Baker Sterchi has enjoyed nationwide success defending the interest of many of the largest pharmaceutical and medical device companies.&nbsp;Attorneys in the Pharmaceutical and Medical Device Practice Group also have significant experience guiding pharmaceutical and medical device companies through other legal and regulatory challenges, including providing advice on crisis management, internal and external communications, quality-system controls, and regulatory issues.&nbsp;</p> <p><b>Product Liability</b></p> <p>Tom Rice (Kansas City) and Meghan Kane (Belleville) were appointed co-chairs of the Product Liability Practice Group.</p> <p>Rice is an experienced trial attorney and negotiator with a civil litigation practice emphasizing product liability, pharmaceuticals, employment litigation and insurance issues.&nbsp;He is currently serving as national defense counsel for a pharmaceutical company in its opioid litigation.&nbsp;He has been recognized in <i>Best Lawyers in America</i> for his defense of product liability litigation, insurance litigation, and mass tort litigation/class actions in the metropolitan Kansas City area.</p> <p>Kane's practice focuses on trials involving complex business litigation matters, including toxic torts.&nbsp;She is national asbestos and toxic tort counsel for a leading provider of merchandise displays, refrigeration systems, and installation services to food retailers.&nbsp;She is vice-chair of the Illinois Defense Counsel Tort Committee and a member of the Defense Research Institute Toxic Torts and Environmental Law Committee. She has been recognized in <i>Best Lawyers in America</i> for her defense of personal injury litigation and mass tort litigation/class actions in the metropolitan Belleville area.</p> <p>Baker Sterchi product liability attorneys have defended manufacturers, distributors, and sellers of nearly every product imaginable.&nbsp;With extensive experience handling class action and multidistrict litigation throughout the country, Baker Sterchi attorneys are recognized widely as leaders in product liability litigation.</p> <p><b>Trucking</b></p> <p>Jim Jarrow (Kansas City) and Joe Swift (St. Louis) were appointed co-chairs of the Trucking Industry Practice Group.</p> <p>Jarrow is an experienced trial lawyer, having tried well over 100 cases in his 30-year career.&nbsp;His civil litigation practice is focused primarily on the defense of personal injury matters for the transportation and retail industries.&nbsp;He has litigated matters in courts across the United States, successfully handling cases valued from a few thousand dollars to over 130 million dollars.&nbsp;Before becoming an attorney, he was an accident reconstruction specialist. Jarrow is a member of the ALFA International Transportation Practice Group, serving as a contributing author for publications and seminar speaker for the group.&nbsp;He is also a member of the Trucking Industry Defense Association.</p> <p>Swift is a trial lawyer with a practice focused on representing several of the largest for-hire and private transportation carriers in the United States.&nbsp;He is involved with the Trucking Industry Defense Association, Trucking Lawyers Association, and the Claims and Litigation Management Alliance Transportation Committee.&nbsp;He routinely speaks to clients and industry groups on transportation and product liability matters.&nbsp;He has been recognized in The Best Lawyers in America for his defense of personal injury and product liability litigation in the St. Louis metropolitan area.</p> <p>Baker Sterchi Trucking Practice Group attorneys have defended trucking accidents and counseled clients on statutes, regulations, standards, policies, customs, and practices in various jurisdictions across the country for many years.</p>https://www.bscr-law.com?t=39&format=xml&directive=0&stylesheet=rss&records=10&break_the_cache=1638560435In 2021, a Record Setting $1 Billion Dollar Verdict was Rendered Against a Trucking Company - Demonstrating that Nuclear Verdicts in Trucking Cases Continue to Risehttps://www.bscr-law.com/?t=40&an=120162&format=xml&p=5258&stylesheet=blog11 Jan 2022Transportation Law Blog<p>The trucking industry has experienced a continuous rise in &ldquo;nuclear verdicts&rdquo; since 2011. The American Transportation Research Institute (&ldquo;ATRI&rdquo;) defines a &ldquo;nuclear verdict&rdquo; as a verdict in excess of $10 million dollars.</p> <p>In 2011, a $40 million dollar verdict was awarded to victims of a trucking accident in Georgia, where a semi-truck driver failed to stop, striking a passenger vehicle, killing two people and severely injuring a third. In 2012, a $281.6 million dollar verdict was initially handed down (reduced to $105.2 million), in a case where a drive shaft off a commercial truck went through the windshield of a passenger vehicle, killing the driver. The Court determined that the semi-truck driver was not negligent, but that the company was.</p> <p>In 2014, a $90 million dollar verdict was awarded in Texas, where a semi-truck was driving under the speed limit in inclement weather conditions, and a passenger vehicle traveling in the opposite direction lost control and veered into the truck&rsquo;s path. The trucking company denied all fault, arguing that the cause of the accident was the pickup truck that had lost control, nonetheless, the jury found the trucking company liable for the crash. The collision resulted in the death of a 7-year-old, and a paralyzed 12-year-old. In 2016, a semi-truck driver in Georgia fell asleep at the wheel, crossed over the centerline of a two-lane highway, causing a crash that killed five individuals including two young children, resulting in a $280 million verdict.</p> <p><b><u>The 2021 Landmark $1 Billion Dollar Verdict </u></b></p> <p>In 2021, a Florida jury awarded a landmark $1 billion dollar verdict in a wrongful death trucking case. The jury placed blame on two trucking companies, Kahkashan Transportation Inc. (&ldquo;Kahkashan&rdquo;) and AJD Business Services Inc. (&ldquo;AJD&rdquo;), for the death of the 18-year-old decedent, and awarded $100 million to the parents for the decedent&rsquo;s pain and suffering, and $900 million in punitive damages for negligent hiring and retention of the AJD semi-truck driver.</p> <p>The driver for AJD, was on his cell phone, driving over the legal limit of hours, and without a Commercial Driver&rsquo;s License, when he caused an accident, flipping his semi-truck, and creating a massive back up on the interstate. An hour later a driver for Kahkashan was traveling the speed limit on cruise control, and collided into the line of stopped traffic killing the decedent. Further, his truck&rsquo;s data recorder showed he did not attempt to break until one second before the impact.</p> <p>The $100 million dollar verdict to the parents was split by the jury, 90% against Kahkashan and its driver, and 10% against AJD and its driver. The $900 million in punitive damages verdict was solely awarded against AJD. However, AJD is no longer in existence, and had not participated in the court proceedings for the previous 2 years. Additionally, AJD&rsquo;s insurance was canceled in 2019.</p> <p>Even if no money is collected from AJD, this case still has a great deal of impact on the trucking industry. It shows that juries believe these high awards are acceptable, and warranted in certain cases. Further, verdicts like this continue to tarnish the public image of trucking companies, and their safety procedures and policies. Nuclear verdicts like the ones mentioned above, have resulted in skyrocketing insurance premiums, which in some instances have put trucking companies out of business. Additionally, these nuclear verdicts motivate Plaintiff&rsquo;s lawyers to take on trucking cases, and seek punitive damages against trucking companies.</p> <p><b><u>What Factors Impact the Size of Jury Awarded Verdicts in Trucking Cases? </u></b></p> <p>The ATRI analyzed data obtained from 600 cases to determine the variables that impacted verdicts in the trucking industry. <i>See</i>&nbsp;Dan Murray, &ldquo;<a href="https://truckingresearch.org/wp-content/uploads/2020/06/ATRI-Understanding-the-Impact-of-Nuclear-Verdicts-on-the-Trucking-Industry-06-2020-2.pdf">Understanding the Impact of Nuclear Verdicts on the Trucking Industry</a>,&rdquo; American Transportation Research Institute.&nbsp;Some of the variables include unfortunate outcomes that are outside of a trucking company&rsquo;s control. For example, research showed that an increase in overall verdict amounts was witnessed in cases involving the death of a minor, spinal injuries, and roll-over accidents.</p> <p>However, the research also shows that there are numerous factors which increase the value of verdicts that are within a trucking company&rsquo;s control, either in the way company is run, or the manner in which the case is litigated.</p> <p>Cases involving the following factors yielded verdicts in favor of the Plaintiff 100% of the time: a semi-truck driver being over hours of service or having logbook violations, lacking a clean driving history, driving under the influence of controlled substances, a semi-truck fleeing the scene of a crash, and/or an accident being caused by a driver&rsquo;s health-related issues. In cases that involved cell phone use, only one case yielded a defense verdict, which was the result of Plaintiff being unable prove that the phone was actually in use at the time of the crash.</p> <p>The ATRI&rsquo;s research showed that successful implementation of post-crash and pre-trial tasks such as case evaluation, mediation, and pre-trial preparation played a critical role in successful litigation results.</p> <p>During the stages of an accident investigation, and case evaluation, it is critical that attorneys and insurance professionals work together to determine the verifiable facts, and assess the potential problems in the case. A thorough examination must be conducted as it relates to factors that may have contributed to the incident.</p> <p>Next, assessing the reasonableness of an early settlement, based on the facts known at the time, generally helps promote a more reasonable settlement. Finally, pre-trial preparation is paramount. Having an attorney who is experienced, and familiar with the trucking industry will ensure that the necessary actions are being taken to combat arguments Plaintiff attorneys will raise, especially reptilian theory arguments, which lead to nuclear verdicts in trucking cases.</p> <p><b><u>Despite Nuclear Verdicts Being on the Rise, Great Outcomes in Trucking Cases are Obtainable</u></b></p> <p>In 2021 Baker Sterchi member, James R. Jarrow, secured a defense verdict in a week-long wrongful death trucking case that was tried in Missouri state court. Plaintiff alleged that the driver could have avoided the interstate accident, which resulted in the death of her husband. After significant pre-trial motion practice, and multiple experts testifying on both sides, the Plaintiff asked the jury for $3 million dollars in damages. But the jury agreed with the defense&rsquo;s position, and rendered a verdict in favor of the trucking company.</p> <p>Additionally, Baker Sterchi member, Joseph Swift also received a favorable outcome in 2021 in a challenging jury tried trucking case where liability was admitted, and the case was tried solely on the extent of damages. This case was initially filed in Cook County, Illinois state court, but was successfully removed to the federal District Court for the Southern District of Illinois. The truck&rsquo;s dash camera (capturing both inward and outward views) showed 9 seconds of driver inattention, and a violent crash. Plaintiff sought to recover over $1.65 million in general and special damages. However, the jury awarded $145,000 in overall damages for cervical and lumbar surgeries, a very favorable verdict given the circumstances of the case.</p> <p><b><u>Conclusion</u></b></p> <p>Despite the upward trend of nuclear verdicts in the trucking industry, 2021 has proven that when cases are properly investigated, prepared, and tried, trucking companies can still obtain favorable jury verdicts.</p>https://www.bscr-law.com?t=39&format=xml&directive=0&stylesheet=rss&records=10&break_the_cache=1638560435Baker Sterchi Attorney Nicholas Ruble Appointed Co-Vice Chair of KCMBA Labor & Employment Law Committeehttps://www.bscr-law.com/?t=40&an=120139&format=xml&p=544810 Jan 2022Firm News<p>Baker Sterchi attorney Nicholas Ruble was appointed to serve as 2022 co-vice chair of the Kansas City Metropolitan Bar Association (KCMBA) Labor &amp; Employment Law Committee, supporting the just and lawful administration of workplace laws through programs and activities designed to educate and train attorneys and other interested parties about substantive, procedural, and practical considerations in a manner reflecting the concerns, interests, and positions of both employees and employers.</p> <p>Ruble, located in Baker Sterchi&rsquo;s Kansas City office, is a civil litigation defense attorney with extensive experience in employment and labor, and personal injury law. He is a steering committee member of ALFA International&rsquo;s Labor &amp; Employment Practice Group and a member of Defense Research Institute&rsquo;s Employment and Labor Law Committee. Ruble received his Juris Doctor from the University of Missouri-Kansas City School of Law and is admitted to practice in Kansas and Missouri.</p>https://www.bscr-law.com?t=39&format=xml&directive=0&stylesheet=rss&records=10&break_the_cache=1638560435Year in Review: A Midwest-Focused Review of 2021 Product Liability Caseshttps://www.bscr-law.com/?t=40&an=120099&format=xml&p=5258&stylesheet=blog05 Jan 2022Product Liability Law Blog<p>With the world resuming much of its activity post-COVID-19 legal shutdowns, 2021 was an active one on the legal docket. Below, we highlight some key national product liability cases, along with top product liability Midwest cases (with a focus on Missouri, Illinois, and Kansas) decided in 2021. While not an exhaustive list, the aim is to provide you an overview of what the year held.</p> <p><b><u>Supreme Court and Other Major Cases </u></b></p> <p><b>1.&nbsp;&nbsp;</b><b>Specific Personal Jurisdiction is Expanded. </b></p> <p>Courts around the country have held that a defendant is not subject to specific personal jurisdiction unless the claims arose out of contact with the forum state. However, the United States Supreme Court recently ruled that the law does not require solely a causal link but allows jurisdiction when the claims relate to the defendant&rsquo;s contacts within the forum. In <em>Ford Motor Co. v. Montana Eighth Judicial District Court, et al. and Ford Motor Co. v. Bandemer</em>, the plaintiffs brought product liability claims against Ford in the states where the auto accidents occurred and the plaintiffs resided - Montana and Minnesota respectively.&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. 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 involved in the accidents.&nbsp;Similarly, the number of authorized Ford dealers in the states, and 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;&nbsp;<a href="https://www.bscr-law.com/?t=40&amp;an=115705&amp;format=xml&amp;stylesheet=blog&amp;p=5258">Link to Product Liability Law Blog post (March 31, 2021).</a></p> <p><b>2.&nbsp;&nbsp;</b><b>Oklahoma Supreme Court Overturns J&amp;J&rsquo;s $465 Million Opioid Judgment.</b></p> <p>In November, the Oklahoma Supreme Court overturned a $465 million opioid verdict against Johnson &amp; Johnson, entered by Judge Thad Balkman in the District Court of Cleveland County of the State of Oklahoma (<i>Oklahoma ex rel. Hunter v.&nbsp;Purdue Pharma LP&nbsp;et al</i>.). Specifically, the Court found that the trial court&rsquo;s decision rested on an improper expansion of state law concerning what a &ldquo;public nuisance&rdquo; is under Oklahoma law.&nbsp;The Court noted that it was deferring the policy-making to the legislative and executive branches and that the district court engaged in an unprecedented expansion of public nuisance law; thus, the district court erred in finding J&amp;J's conduct created a public nuisance. This opinion may foreshadow the outcome of cases pending across the nation in which companies have been accused of causing and/or contributing to the opioid crisis.</p> <p><b>3.&nbsp;&nbsp;</b><b>State Governments Win In Ohio As Other Opioid Litigation Losses Continue.</b></p> <p>An Ohio jury returned a verdict against pharmacy chains CVS, Walgreens and Walmart, finding them liable for creating a public nuisance in two counties by filling massive numbers of opioid prescriptions and contributing to the national opioid addiction crisis. This was the first win against only pharmacies, not including any drugmakers or distributors. The verdict came after back-to-back losses for local governments suing drug manufacturers over their involvement in the crisis. As discussed, above, in November, the Oklahoma Supreme Court overturned a $465 million judgment against Johnson &amp; Johnson.&nbsp;In California, Orange County Superior Court Judge Peter J. Wilson opined there was not sufficient evidence to tie a rise in opioid prescriptions to misleading marketing, therefore finding drugmakers had not created a public nuisance. The impact of the use of the public nuisance suit against drug manufacturers and distributors has yet to play out entirely.</p> <p><b>4.&nbsp;&nbsp;</b><b>GlaxoSmithKline Released from Zofran MDL.</b></p> <p>A Massachusetts U.S. District Judge ruled that over 400 state law claims consolidated in a federal Multi District Litigation proceeding, alleging GlaxoSmithKline failed to warn consumers that its anti-nausea drug Zofran causes birth defects, were preempted by federal law, because the FDA has authority over warnings to consumers, and the agency declined to add a warning for pregnant women.&nbsp;Indeed, the FDA rejected adding the requested warning label for pregnant women, even though it was aware that Zofran had been prescribed off-label to pregnant women for years. This was the first bellwether case in the MDL. This ruling by the Judge was consistent with the U.S. Supreme Court&rsquo;s ruling in <i>Merck v. Albrecht</i>, which held that the judge and not juries should analyze and apply the FDA&rsquo;s regulations on warning labels; thus, opening the door for this Judge to make the call on preemption.&nbsp;The Judge ruled that the FDA clearly had all information to make a decision as to whether to require an additional warning to pregnant women, and determined that a label change was not warranted. &nbsp;Thus, the FDA rejected the pregnancy-warning label that the plaintiffs insisted was required by state law at the time of the alleged injuries. The case is <i>In re: Zofran (Ondansetron) Products Liability Litigation</i>.</p> <p><b>5.&nbsp;&nbsp;</b><b>Roundup Delivered Multiple Setbacks.</b></p> <p>In May, the Ninth Circuit upheld a $25 million judgment against Bayer AG, making this Bayer&rsquo;s second unsuccessful Roundup appeal.&nbsp;This judgment was obtained by plaintiffs in the first bellwether trial (<i>Edwin Hardeman v. Monsanto Co.</i>) in multidistrict litigation over claims the company's weedkiller causes cancer. The Court held that plaintiff's failure-to-warn claims are not blocked or preempted by federal law under the Federal Insecticide, Fungicide and Rodenticide Act because the laws have parallel requirements. In order to avoid misbranding violations, federal law requires that a pesticide label must include a warning &quot;adequate to protect health and environment.&rdquo;&nbsp;California common law holds that manufacturers must warn about known risks or risks about which a &quot;reasonably prudent&quot; manufacturer would know. Also in May, in <i>In re: Roundup Products Liability Litigation</i>, a California federal judge rejected a proposed $2 billion settlement meant to cover claims brought in the future over Roundup, finding that it was &quot;clearly unreasonable&quot; for a group of Roundup users who have not yet developed non-Hodgkin's lymphoma to be bound by the same. In November, the California Supreme Court denied Monsanto&rsquo;s request to overturn an $87 million verdict awarded to the Pilliods who claim the Bayer AG subsidiaries weedkiller, Roundup, caused their cancer.&nbsp;In 2019, jurors originally awarded $2 billion in damages after determining that Roundup was more likely than not a contributing factor that caused the couple to develop Non-Hodgkin&rsquo;s lymphoma. The award was later reduced and Bayer AG appealed the decision, but was shot down by a California appellate court for making arguments that carried little resemblance to the trial record. This denial by the California high court let stand what was the third loss Bayer saw in trial over the Roundup product.</p> <p><b>6.&nbsp;&nbsp;</b><b>Flint Water Settlement Approved.</b></p> <p>In November, a Michigan federal judge gave final approval to the proposed settlement for the <i>In Re: Flint Water Cases</i>.&nbsp;The settlement, which was approved at $626 million, will be paid to over 100,000 people affected by the contaminated water in Flint, Michigan.&nbsp;The Sixth Circuit recently affirmed a lower Court&rsquo;s decision not to allow state court plaintiffs to intervene in the federal court settlement.</p> <p><b>7.&nbsp;&nbsp;</b><b>Boeing Pays Up to Settle Conspiracy Claims Over The Max 8.</b></p> <p>In January, Boeing agreed to pay more than $2.5 billion to settle a conspiracy claim brought by the Department of Justice accusing them of hiding information from the FAA about the safety of the 737 Max 8 airplanes.&nbsp;The planes were involved in two separate crashes, which claimed the lives of 346 people.&nbsp;In November, Boeing agreed to a settlement of the claims asserted in the<i> In re: Ethiopian Airlines Flight ET 302 Crash</i> matter, pending in the Northern District of Illinois.</p> <p><b>8.&nbsp;&nbsp;</b><b>Southern District of Texas Delivers One-Two-Three Punch.</b></p> <p>In <i>Johnson v. Novartis</i>, the plaintiff asserted claims of strict liability, negligence, fraud and warranty as well as violation of the Texas Deceptive Practices Act after claiming he contracted Peyronie&rsquo;s disease from the ingestion of a combination of two generic drugs. The<i> Johnson</i> court disposed of the multiple actions, ultimately treating the entire case as an alleged failure to warn products case.&nbsp;First, the two brand name defendants moved to dismiss the plaintiff&rsquo;s claims, which relied on innovator liability.&nbsp;In other words, this is when a plaintiff brings a claim against a brand name manufacturer for injuries caused by a generic drug. The Fifth Circuit upheld the district court&rsquo;s dismissal of the brand name manufacturers, agreeing that Texas law does not support the contention that brand name manufacturers owe a duty to consumers of generic drugs. Second, the court held that the plaintiff&rsquo;s state law claims against the generic manufacturers were preempted by federal law based on the Supreme Court&rsquo;s decision in <i>PLIVA, Inc. v. Mensing</i>, 564 U.S. 604 (2011) The district court followed both Supreme Court and Fifth Circuit precedent in holding that plaintiff&rsquo;s claims against the generic manufacturers based on failure to warn of the possible risk were preempted. Third, the Court rejected plaintiff&rsquo;s argument that the generic manufacturers had frauded the FDA. Texas law presumes no liability for FDA approved labels unless the plaintiff is able to show one of five rebuttals, including &ldquo;Fraud on the FDA&rdquo;. In<i> Johnson</i>, the plaintiff alleged the defendant&rsquo;s withheld information from the FDA related to the connection between the drugs and his disease. Finally, the Court refused to allow the plaintiff leave to amend his complaint, reasoning justice did not require leave to amend. All of plaintiff&rsquo;s claims were dismissed with prejudice.</p> <p><b>9.&nbsp;&nbsp;</b><b>Florida Jury Returns $43M Tobacco verdict against Philip Morris.</b></p> <p>In <i>Lipp v. R.J. Reynolds et. al</i>, Philip Morris was found responsible for 85% of the harm caused to Norma Lipp who died of lung cancer in November 1993. The jury found that the legal cause of Lipp&rsquo;s death was addiction to nicotine cigarettes caused by her reliance on statements made by Philip Morris and concealment of information during its promotion of tobacco.</p> <p><b><u>Missouri, Kansas, and Illinois: </u></b></p> <p><b>10.&nbsp;&nbsp;</b><b>Eighth Circuit Breathes New Life into Bair Hugger MDL.</b></p> <p>The 8th Circuit Court of Appeals reversed a decision by the district court that had excluded the testimony of plaintiff&rsquo;s expert witnesses and granted summary judgment to 3M. Plaintiffs in the MDL (<em>In re Bair Hugger Forced Air Warming Devices Products Liability Litigation</em>) claimed that 3M&rsquo;s surgical warming device is defective and caused bacteria to contaminate the sterile operating room, leading to infection. The MDL Court had excluded plaintiff&rsquo;s experts, opining their opinions to be unreliable because there was too great of an analytical gap between the literature presented and the experts general causation opinion. <a href="https://www.bscr-law.com/?t=40&amp;an=118965&amp;format=xml&amp;stylesheet=blog&amp;p=5258">Link to Product Liability Law Blog post (September 28, 2021).</a> There is another 3M MDL (<em>In re: 3M Combat Arms Earplug Products Liability Litigation</em>) being tried in other jurisdictions that, as of the middle of December, has delivered ten trials in the 3M litigation, with tied results: five defense wins and five multimillion-dollar plaintiff verdicts.&nbsp;Those claims involve veterans alleging their hearing was damages by CAEv2 earplugs made by Aearo Technologies LLC, a company acquired by 3M.</p> <p><b>11.&nbsp;&nbsp;</b><b>Pre-Judgment Interest in Illinois.</b></p> <p>Illinois governor J.B. Pritzker signed into law SB0072, which amends the Civil Code of Procedure to allow plaintiffs to collect pre-judgment interest on certain damages awarded in Illinois personal injury and wrongful death cases. Prejudgment interest will accrue at a rate of 6% annually, and it will begin to accrue when the lawsuit is filed, not when the company receives notice of the injury. The act excludes the running of interest on punitive damages, sanctions, statutory attorney&rsquo;s fees, and statutory costs. The act removed a provision that had been included in the earlier bill that allowed judges to divert a section of the funds to any state agency or department. The act also allows defendants potentially facing prejudgment interest an option to mitigate the size of a potential interest award by receiving a credit for certain settlement offers.&nbsp;<i>See</i> <a href="https://www.ilga.gov/legislation/ilcs/fulltext.asp?DocName=073500050K2-1303">735 ILCS 5/2-1303(c)</a>.</p> <p><b>12.&nbsp;&nbsp;</b><b>The Supreme Court Refuses to Hear J&amp;J&rsquo;s Talc Appeal from Missouri Case.</b></p> <p>In June of 2021, the Supreme Court refused to hear Johnson &amp; Johnson&rsquo;s appeal in a talc case decided in Missouri state court (<i>Johnson et al. v. Gail L. Ingham et al.</i>) $2.1 billion was awarded to about two dozen women who claimed there was asbestos in J&amp;J&rsquo;s talcum powder, which caused their ovarian cancer. The Missouri Supreme Court had previously also refused to review the matter after a Missouri appeals court took off about $2.6 billion from the verdict (the jurors originally awarded a combined $550 million and $4.14 billion in compensatory and punitive damages).&nbsp;J&amp;J had argued that consolidating the claims from the women was highly prejudicial and violated its due process rights, and that the Missouri trial court lacked personal jurisdiction over the plaintiffs, who did not live in Missouri and had not shown that they purchased or used the products in Missouri.</p> <p><b>13.&nbsp;&nbsp;</b><b>Inadequate Voluntary Dismissal Results in Dismissal with Prejudice.</b></p> <p>In <i>Graham v. Mentor Worldwide LLC</i>, 998 F.3d 800 (8th Cir. 2021), plaintiff sued the manufacturer of breast implants, a Class III PMA medical device, in state court, due to the rupture of one of her implants following a car accident. The plaintiff also joined as defendants the vehicle driver and the hospital in which the implantation surgery occurred. The manufacturer defendant removed the case to federal court on diversity grounds, claiming fraudulent joinder and fraudulent misjoinder &ndash; i.e., that there were no colorable claims that could be asserted against the latter two defendants, and that as residents of the same state as Plaintiff, they were added to the case solely in an attempt to defeat removal to federal court on diversity grounds. The 8th Circuit held that the hospital was fraudulently joined because there was no possible basis for strict liability against the hospital in Missouri. The Court also ruled that the auto accident claim had nothing to do with the products liability claim so the accident claim was severed and remanded to state court. Here, however, the case took an unusual turn. The Court had denied a dismissal of Plaintiff&rsquo;s claims based on an allegation by Plaintiff that she had the breast implants done as part of a clinical trial approved by the FDA. The defendant countered this by introducing records that the plaintiff was lying and immediately threatened Rule 11 sanctions. Plaintiff responded by moving to dismiss her action voluntarily without prejudice under Fed. R. Civ. P. 41(a). The Court denied this motion and dismissed the action with prejudice, ruling that Plaintiff failed to provide justification for wanting to dismiss without prejudice.&nbsp;The Court stated that the failure to provide an adequate purpose for dismissal without prejudice reflected an inappropriate purpose of finding a more favorable forum or to escape an undesirable outcome.</p> <p><b>14.&nbsp;&nbsp;</b><b>EpiPen Settlement Produces $115M for Consumer Counsel.</b></p> <p>In November, a Kansas federal judge gave final approval to the $345 million settlement of class action litigation claims against pharmaceutical company Pfizer, in <i>In re: EpiPen Marketing, Sales Practices and Antitrust Litigation</i>. &nbsp;$115 million of that settlement was designated for the plaintiff class counsel, with seven law firms splitting the $115 million.&nbsp;The class claims against Pfizer included claims of racketeering and state antitrust violations against EpiPen manufacturer Pfizer and EpiPen seller Mylan, after the price point of the EpiPen increased to $600 in 2016 from the $100 it had been in years prior. Mylan still faces certain claims by the class to be tried in front of a jury soon.</p> <p><b>15.&nbsp;&nbsp;</b><b>Illinois Officer Awarded $7.5M for Failure to Warn by Ammo Makers.</b></p> <p>In <i>Hakim v. Safariland LLC et al., </i>an Illinois SWAT officer was awarded $7.5 in damages, based on a finding that defense gear manufacturer Safariland LLC failed to warn consumers their TKO breaching rounds must be shot at metal to operate safely. The SWAT officer David Hakim was injured during a training accident when another officer shot a round of exploding ammunition at a piece of wood and the bullet traveled through the door and became lodged in Hakim&rsquo;s spine. Hakim still serves as a SWAT officer but deals with back pain from the incident. However, that judgment is now being challenged by the Ammo Makers, who are seeking to void or reduce the judgment.</p> <p><b>16.&nbsp;&nbsp;</b><b>Illinois State Court Jury Sides With J&amp;J In Talc Powder Jury Trial.</b></p> <p>The jury, in <i>Cadagin v. Johnson &amp; Johnson et al</i>., determined that the death of Elizabeth Driscoll from ovarian cancer was not caused by her use of Johnson &amp; Johnson&rsquo;s (&ldquo;J&amp;J&rdquo;) baby powder. Colleen Cadagin, who brought the claim on behalf of her aunt, claimed her aunt had used the powder regularly and habitually throughout her adolescence and that J&amp;J was aware that its baby powder was defective and dangerous for perineal use. Cadagin claimed J&amp;J knew the powder contained carcinogenic components such as asbestos, chromium, nickel, cobalt, and arsenic. However, the jury sided with J&amp;J.</p> <p><b>17.&nbsp;&nbsp;</b><b>Seventh Circuit Grants Paint Makers Reversal of $6M Verdict.</b></p> <p>The 7th Circuit reversed a $6M verdict against The Sherwin Williams Co. and two other paint makers, undoing a decision finding them liable for brain damage caused by their lead-based paint. The three-judge panel found that the trial court erroneously went beyond the scope of a previous Wisconsin Supreme Court case, <i>Thomas v. Mallett</i>, which held the makers of lead paint could only be held liable in cases in their capacity as makers of the pigment containing lead, not as makers of the paint. Of the three companies, only one of them was both a pigment and paint manufacturer at all relevant times. The district court further erred in ruling the plaintiffs had to prove their injuries were caused by the companies&rsquo; failure to warn, but then ruling post-trial that they did not have to provide such proof.</p> <p><b>18.&nbsp;&nbsp;</b><b>Actavis Drug Did Not Cause Man&rsquo;s Heart Attack. </b></p> <p>An Illinois federal jury (<i>Martin v. Actavis et al.</i>) sided with Actavis Inc. on all counts of a lawsuit brought by a man who claimed the company&rsquo;s testosterone replacement drug caused his heart attack and sought nearly $80M in damages. The claims included strict liability for failure to warn, negligence, and fraudulent misrepresentation. The Court determined that the man failed to prove the drug Androderm directly caused his heart attack. Plaintiff and his attorneys asked the jury to require Actavis to reimbursed Martin for nearly $80,000 in medical bills and additional $1.5 million for past and future medical expenses and $2 million for past and future emotional distress. Plaintiff&rsquo;s trial was set to be the first bellwether trial against Actavis over cardiovascular problems allegedly caused by its TRT drug, before the company reached a settlement in the multi-defendant MDL in 2018. Plaintiff opted out of that deal.</p> <p>As you can see, the legal docket was a busy one in 2021 &ndash; delivering a mixed bag of results for plaintiffs and defendants in various product liability settings.&nbsp;2022 is sure to deliver even more interesting and impactful results.&nbsp;We will be watching.&nbsp;</p>https://www.bscr-law.com?t=39&format=xml&directive=0&stylesheet=rss&records=10&break_the_cache=1638560435Baker Sterchi Elects Five New Members in St. Louis and Kansas Cityhttps://www.bscr-law.com/?t=40&an=120087&format=xml&p=544804 Jan 2022Firm News<p>Baker Sterchi Cowden &amp; Rice elected five new Members, effective January 1:</p> <p>Jessica Cozart (St. Louis), whose practice focuses on property and casualty litigation, insurance coverage and insurance defense involving claims of personal injury, premise and products liability, construction defects, and pharmaceutical liability. Cozart received her Juris Doctor from the Mississippi College School of Law and is admitted to practice in Illinois, Louisiana, and Missouri.&nbsp;</p> <p>Noemi Donovan&nbsp;(Kansas City), whose practice focuses on surety bond litigation matters, debtor-creditor rights, premises liability and general business and civil litigation.&nbsp;She is a steering committee member of ALFA International&rsquo;s Women&rsquo;s Initiative Practice Group.&nbsp;Donovan received her Juris Doctor from the University of Minnesota and is admitted to practice in Kansas, Missouri, and Ohio.</p> <p>Kehl Friesen&nbsp;(Kansas City), whose practice focuses on the defense of personal injury, products liability, premises liability, and general liability matters. He is a member of the Asian American Bar Association of Kansas City and ALFA International&rsquo;s Future Leaders Forum.&nbsp;He is a recipient of the 2021 Missouri Lawyers Media Up &amp; Coming Award.&nbsp;Friesen received his Juris Doctor from the University of Missouri-Kansas City School of Law and is admitted to practice in Illinois, Kansas, and Missouri.</p> <p>Douglas Hill&nbsp;(Kansas City), whose practice focuses on civil defense, including professional negligence, product liability, industrial and job site injuries, and general business litigation.&nbsp;He has been recognized by&nbsp;<i>Best Lawyers in America: Ones to Watch</i>&nbsp;for his personal injury and product liability litigation work in the Kansas City metropolitan area.&nbsp;Hill received his Juris Doctor from the Southern Methodist University Dedman School of Law and is admitted to practice in Kansas and Missouri.</p> <p>John Kellogg&nbsp;(Kansas City), whose practice focuses on commercial litigation, premises liability, construction law, and personal injury, with an emphasis on defending insurance coverage, vexatious refusal to pay, and bad faith disputes on behalf of insurance carriers. He is a member of the DRI Insurance Law committee. Kellogg received his Juris Doctor from the Washington University School of Law in St. Louis and is admitted to practice in Kansas and Missouri.</p>https://www.bscr-law.com?t=39&format=xml&directive=0&stylesheet=rss&records=10&break_the_cache=1638560435"Judicial Hellholes" - A trio of Illinois Counties Move Up the List while the City of St. Louis Remains an Honoreehttps://www.bscr-law.com/?t=40&an=120021&format=xml&p=5258&stylesheet=blog28 Dec 2021Missouri Law Blog<p>Yet again, Cook, Madison and St. Clair Counties in Illinois and the City of St. Louis are included in the 2021/2022 &ldquo;Judicial Hellholes Report&rdquo; from the American Tort Reform Foundation. This year, the trio of Illinois counties moves up from 8<sup>th</sup> place on last year&rsquo;s list to 5<sup>th</sup> place, and the City of St. Louis remains in 7<sup>th</sup> place.&nbsp;The list is rounded out with California (#1), New York (#2), the Georgia Supreme Court (#3), the Philadelphia Court of Common Pleas &amp; the Supreme Court of Pennsylvania (#4), Louisiana (#6), and South Carolina asbestos litigation (#8).&nbsp;The trio of Illinois Counties lay across the Mississippi River from the City of St. Louis and are all plaintiff-friendly venues, with a mass influx of product liability litigation (including talc and asbestos lawsuits), highlighting the need for liability reform.</p> <p>While asbestos cases decreased nationwide by 11% in 2020, both Madison and St. Clair Counties in Illinois have seen an increase in filings in asbestos litigation in the last year.&nbsp;Plaintiffs&rsquo; firms continue to seek out these venues for their overall low evidentiary standards, plaintiff-friendly judges, and persistent ability to find new and unique defendants, despite the increase in defendant bankruptcy filings over the last few years.&nbsp;Additionally, Cook County remains a hotbed for asbestos litigation.&nbsp;Despite limited resources due to the Covid-19 pandemic, Cook County has hosted 3 asbestos trials to verdict since October 2021, with more on the horizon for early 2022.</p> <p>Illinois is also flooded with &ldquo;no-injury&rdquo; Biometric Information Privacy Act (&ldquo;BIPA&rdquo;) lawsuits, a majority of which are brought by employees against their employers, due to the fact that a 2019 Illinois Supreme Court decision held that a plaintiff does not need to show any harm in order to collect damages under the Act, which requires companies to inform an individual in writing and receive a written release prior to obtaining or retaining his or her biometric data.&nbsp;This has triggered a slew of litigation for any company that uses fingerprints, voiceprints, hand or facial scanning as identifiers for specific access to its systems or for clocking in and clocking out.&nbsp;Unsurprisingly, this has been further complicated by a September 2021 Illinois appellate court decision that found that a five-year statute of limitations applies to most BIPA claims, so long as there is no dispute that the person&rsquo;s information was publicized (in which case a one-year statute of limitations would apply).</p> <p>Other factors pushing Illinois Counties back up in the rankings include various legislative enactments, including the Prejudgment Interest Act and S.B. 2406 which will break up the 20<sup>th</sup> Judicial Circuit Court and redraw the supreme court districts for the first time since 1964.</p> <p>The City of St. Louis, similar to the Illinois Counties described above, continues to draw a product liability litigation crowd, including in cases involving talc, Roundup&reg; weed killer, and asbestos.&nbsp;This summer, the United States Supreme Court got in on the action, when in June 2021, it announced that it would not review a landmark Johnson &amp; Johnson cosmetic talcum powder case which resulted in a $4.69 billion verdict ($550 million in actual damages and $4.14 billion in punitive damages) in the St. Louis Circuit Court but was reduced by the Missouri Court of Appeals for the Eastern District to $2.12 billion ($500 million in actual damages and $1.62 billion in punitive damages).</p> <p>Missouri courts continue to push the boundaries when it comes to unreasonable punitive damages awards, as can be noted in the J&amp;J talc litigation. Moreover, in March 2021, the Missouri Supreme Court affirmed a lower court&rsquo;s decision to award punitive damages in a medical malpractice case, applying a relatively lax standard.&nbsp;Specifically, the Court in <i>Rhoden v. Missouri Delta Med. Ctr.</i>, ruled that &ldquo;acting willfully, wantonly, or maliciously is equivalent to acting with a complete indifference to or in conscious disregard for the rights or safety of others.&rdquo;&nbsp;Effective and applicable to causes of action arising after August 28, 2020, newly enacted legislation - SB 591 - takes this issue head on and requires that a jury find &ldquo;the evidence clearly and convincingly demonstrated that the health care provider intentionally caused damage to the plaintiff or demonstrated malicious misconduct that caused damage to the plaintiff.&rdquo; &sect; 538.210.8, RSMo. (2020). Further, the statute explicitly states that: &ldquo;Evidence of negligence including, but not limited to, indifference to or conscious disregard for the safety of others shall not constitute intentional conduct or malicious misconduct.&rdquo; The legislation was enacted as a counter to the intermediate appellate court&rsquo;s decision in <i>Rhoden</i>, and its failure to recognize the distinction between negligence and intentional or malicious misconduct. This change reflects a return to the original common-law standard of intentional misconduct and is an effort to clarify for the courts the proper standard and prohibit the use of lesser standards. The implications of this decision have yet to be seen, but the hope is that at least for cases filed after August 28, 2020, decisions like <i>Rhoden </i>will have become a thing of the past.</p> <p>While the Missouri legislature is moving forward in enacting stricter reform related to lawsuit abuse, it remains to be seen what impact, over time, those laws will have on litigation in the City of St. Louis.&nbsp;Until then, we will likely continue to see it included on the list of &ldquo;Judicial Hellholes&rdquo;.&nbsp;</p>https://www.bscr-law.com?t=39&format=xml&directive=0&stylesheet=rss&records=10&break_the_cache=1638560435OSHA Reacts to COVID-19 Pandemic and Issues Vaccine-or-Testing Mandate: What Employers Need to Know (Update)https://www.bscr-law.com/?t=40&an=119548&format=xml&p=5258&stylesheet=blog21 Dec 2021Employment & Labor Law Blog<p><strong>Update 12.21.2021:</strong></p> <p>On December 17, 2021, the Court of Appeals for the Sixth Circuit dissolved the stay issued by the Court of Appeals for the Fifth Circuit on November 12, 2021. All of the petitions challenging the ETS filed across the country had been consolidated in the Sixth Circuit for adjudication.</p> <p>The three-member panel issued a 2-1 decision dissolving the Fifth Circuit&rsquo;s stay. The standard for OSHA to issue its ETS is whether it is (1) necessary to protect employees from (2) a grave danger. The dissent provided a preview of what arguments to expect before the Supreme Court. The dissent pointed out that &ldquo;necessary&rdquo; can mean either &ldquo;useful&rdquo; or &ldquo;indispensable,&rdquo; and which definition is applied may well decide the case. Choosing the latter definition, the dissent found that OSHA had not proved that the vaccine-or-test mandate was &ldquo;indispensable&rdquo; to solving the COVID-19 pandemic. The dissent also questioned whether OSHA could establish that COVID-19 is a &ldquo;grave&rdquo; workplace danger, as opposed to a danger encountered in all aspects of life.</p> <p>The majority countered that Congress could not have intended &ldquo;necessary&rdquo; to require &ldquo;the most narrowly tailored&rdquo; response from OSHA. The majority also credited OSHA&rsquo;s findings that traditional workplaces are particularly ripe for transmission, placing workers at heightened risk while at work, and therefore have established a &ldquo;grave danger&rdquo; of COVID-19 transmission in the workplace. Judge Gibbons wrote a separate concurrence, noting that because OSHA has been tasked by Congress with making policy, the Court should not substitute its judgment for that of the agency.</p> <p>Following issuance of the decision dissolving the stay, OSHA announced via a litigation update that it will not issue citations for noncompliance with any ETS requirement before <b>January 10, 2022</b>, except for the testing requirement. Enforcement of the testing requirements under the ETS will not begin until <b>February 9, 2022</b>, as long as the employer is &ldquo;exercising reasonable, good faith efforts to come into compliance with the standard. For more information about the specific requirements, see our original blog post below.</p> <p>No party has so far indicated that it will petition the Sixth Circuit for rehearing en banc. The deadline to do so is December 31. The challengers to the ETS may be eager for a battle before the high court, rather than to seek rehearing. The Supreme Court has already received numerous emergency applications to freeze the Sixth Circuit decision, and has asked for responses to the challengers&rsquo; requests by December 30. Justice Kavanaugh will handle referral of the case to the full Court for review. However, grant of the application is not a foregone conclusion, as the Court recently rejected a challenge to New York&rsquo;s regulation requiring healthcare workers to receive a COVID-19 vaccine.&nbsp;</p> <p>In the event the Supreme Court accepts the case for review, there is no doubt interpretation of OSHA&rsquo;s enabling act will be front and center. However, in an emergency application filed by a group of 27 state attorneys general (including Missouri and Kansas) assert that the ETS also violates the Tenth Amendment, the Commerce Clause, and the Non-Delegation Doctrine. Religious groups have likewise asserted that the religious exemptions are inadequate and violate the First Amendment and the Religious Freedom Restoration Act of 1993. The state attorneys general requested that the Supreme Court impose an emergency stay of the ETS pending review, or in the alternative, grant expedited review and strike down the ETS.&nbsp;</p> <p><strong> Original Post 11.15.2021:</strong></p> <p>Since President Biden&rsquo;s September announcement that employers with 100 or more employees must require vaccination or weekly testing of their employees, observers have waited anxiously for details from the Occupational Safety and Health Administration. The new Emergency Temporary Standard (ETS), published by OSHA in the Federal Register on November 5, 2021, contains three main components: full vaccination, or weekly testing of employees who are not &ldquo;fully vaccinated&rdquo; (with attendant recordkeeping requirements), and a face covering requirement. These components are discussed in detail below.&nbsp;As employers and practitioners begin to navigate the ETS requirements, they should keep in mind these important points:</p> ►Starting December 5, 2021, unvaccinated employees must wear face coverings.&nbsp;<br /> <br /> ►Starting January 4, 2022, companies must implement and enforce a written mandatory vaccine policy.&nbsp;<i>Alternatively</i>, a company may adopt a written policy that gives its employees a choice to either become fully vaccinated <i>or</i> undergo weekly testing and wear a face covering at work.<br /> <br /> ►An employer&rsquo;s vaccine requirement is still subject to Title VII and the Americans with Disabilities Act. Employees with a sincerely held religious belief or practice contrary to vaccination or people who cannot be vaccinated due to a disability must be accommodated, unless accommodation would cause &ldquo;undue hardship&rdquo; on the employer. The EEOC has provided detailed guidance on what constitutes an &ldquo;undue hardship&rdquo; under the ADA. [<a href="https://www.eeoc.gov/laws/guidance/enforcement-guidance-reasonable-accommodation-and-undue-hardship-under-ada">Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the ADA</a>]&nbsp;&nbsp;<br /> <br /> ►A person is not considered &ldquo;fully vaccinated&rdquo; under the ETS until two weeks after they receive the final vaccine dose (or single dose of the Johnson &amp; Johnson vaccine).&nbsp;Even employees who have received the full dosage will be subject to weekly testing requirements until two weeks has elapsed from the final dose.&nbsp;Employers should encourage workers who plan on getting vaccinated to do so now to avoid the weekly testing requirements.<br /> <br /> ►OSHA intends for the ETS to preempt all inconsistent state and local laws and regulations, including prohibitions on vaccine mandates and mask requirements.<br /> <br /> ►OSHA does <i>not </i>intend for the ETS to supplant collective bargaining agreements with terms that exceed OSHA requirements.<br /> <br /> ►On Friday, November 5<sup>th</sup>, a three-judge panel for the Fifth Circuit Court of Appeals issued an emergency stay of the ETS, citing &ldquo;grave statutory and constitutional issues.&rdquo;&nbsp;Petitioners moved for a permanent injunction and the Court is proceeding with an expedited briefing schedule.&nbsp;It is possible that the entire rule will be struck down by the Court, or that only parts of the rule will survive this permanent injunction stage. It is also unclear whether the stay applies in states outside of the Fifth Circuit (which covers only Texas, Louisiana, and Mississippi) and whether the Court will refer the case to the Multi-District Litigation Panel for consolidation with other cases filed around the country. Another U.S. Circuit Court of Appeals &ndash; the Seventh Circuit &ndash; has weighed in on COVID vaccination requirements, handing down in August a forcefully written opinion upholding Indiana University&rsquo;s vaccination requirement for its new and returning students. We will continue to update this blog as these cases develop. <p><b><br /> Counting Employees</b></p> <p>How do you know if the ETS applies to your company?&nbsp;Consistent with the ETS, counting an &ldquo;employee&rdquo; should be interpreted very broadly.&nbsp;OSHA explains that the 100-employee threshold was determined based on administrative feasibility for the employer, rather than on likelihood of community spread, with smaller businesses being less able to easily absorb additional administrative costs.</p> <p>Under the ETS, all employees must be counted, regardless of where they are located and across however many facilities.&nbsp;The ETS does not differentiate between part-time and full-time employees (independent contractors do not count toward the 100-employee threshold).&nbsp;While remote workers and employees who work exclusively outside are not subject to the vaccine or testing requirements, they do count towards the 100-employee threshold.&nbsp;For example:</p> <p>►A company with 50 full-time and 50 part-time employees at one facility has 100 employees and is subject to the ETS.</p> <p>►A company with 50 full-time employees at one facility and 50 full-time employees at another facility in a different city has 100 employees and is subject to the ETS.</p> <p>►A company with 80 full-time employees at one facility and 20 temporary employees provided by a staffing agency has 80 employees and is not subject to the ETS.</p> <p>►A company with 50 full-time in-person employees and 50 remote workers has 100 employees and is subject to the ETS even though the remote workers are not subject to vaccine or testing requirements, except when visiting an in-person workplace.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;</p> <p>►A franchisor company with 100 employees is subject to the ETS, but an individual franchisee of that company with only 25 employees is not subject to the ETS.</p> <p><b>Vaccination Requirements</b></p> <p>The most groundbreaking element of the ETS is the authority it gives employers with 100 employees or more to require each employee to reach &ldquo;fully vaccinated&rdquo; status, with few exceptions.&nbsp;</p> <p><b>a.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; </b><b>Vaccination Status</b></p> <p>Employees who are not excluded from the ETS (that is, employees who are 100% remote or exclusively outdoors) must provide proof of vaccination to the employer. Proof of vaccination may be in the form of a state issued card &ndash; which may be scanned or photographed from a phone and e-mailed &ndash; a QR Code, Apple Wallet ID, or similar electronic vaccination card.</p> <p>If the employee cannot provide proof of vaccination, the employee may provide a signed statement attesting to: (1) their vaccination status (either full or partial); (2) their vaccination card being lost or stolen, and the employee has not been able to secure a copy despite efforts to do so, (3) a description of the facility and the provider of the vaccination; and (4) a declaration, certification, or oath that the statement is true and accurate and acknowledging that providing false information may subject the employee to criminal penalties.</p> <p>Employees who do not meet one of the proof of vaccination requirements must be treated as not fully vaccinated, and they are subject to weekly testing.</p> <p>The employer is required to receive and process requests for medical or religious accommodation and provide accommodation as necessary.&nbsp;&nbsp;</p> <p><b>b.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; </b><b>Paid Leave</b></p> <p>The ETS requires employers to provide at least four hours of paid sick leave during the workday for employees to get vaccinated. Employers must also provide a &ldquo;reasonable time and paid sick leave&rdquo; to recover from the side effects of the vaccine for each dose.&nbsp;OSHA estimates the time to recover from vaccine side effects may range from zero to 1.8 days, on average. Employers may require their employees to use banked sick time, but cannot require employees to go into the negative on sick time or use vacation or other banked PTO.</p> <p>Absent a collective bargaining agreement, company policy, or state or local law to the contrary, nothing in the ETS requires employers to provide paid leave to employees who miss work due to being diagnosed with COVID-19.</p> <p><b>Testing Requirement</b></p> <p>Any employee who is not &ldquo;fully vaccinated,&rdquo; including those who decline vaccination or are exempt for medical or religious reasons, are subject to the ETS testing requirement.&nbsp;These employees must provide a negative COVID-19 test every seven days before they may enter the employer&rsquo;s facility.&nbsp;The ETS requires that tests cannot be both self-administered and self-read by the employee.&nbsp;That is, an employee may not purchase an over-the-counter COVID-19 test, perform it on herself, and then provide the results to the employer.&nbsp;An employee may provide a result from a third party (such as a drive thru or community-testing clinic) including a health care provider.&nbsp;Alternatively, the employer may conduct an approved OTC COVID-19 test on-site prior to entry.&nbsp;An approved OTC rapid test kit may be used if a manager observes the employee open the approved kit, perform the test (usually a nasal swab), and the manager observes the results.&nbsp;Employees who do not provide proof of a negative test must be kept off the premises until a negative test is provided.</p> <p>Employees who do not report to a physical workplace at least once every seven days do not need to be tested, but they must provide a negative COVID-19 test before entering the workplace.&nbsp;The test result must be within the previous seven days.</p> <p>Employers are not required to pay for any costs associated with testing, subject to a policy, collective bargaining agreement, or other law.&nbsp;However, some states mandate that employers not pass on costs for medical requirements on to employees.&nbsp;In addition, the ETS has sparked debate about whether insurance companies will cover the cost of employer-mandated testing because the Families First Coronavirus Response Act requires health plans to pay for COVID-19 testing that is deemed &ldquo;medically necessary.&rdquo;&nbsp;Thus, insurance companies will likely consider ETS testing to be a &ldquo;screening&rdquo; that is not medically necessary and thereby avoid covering the cost for the ETS tests.&nbsp;&nbsp; As a result, it is critical that employers and all non-fully-vaccinated employees understand whether an employee&rsquo;s workplace is covered by a state law that forbids an employer from passing on this cost.&nbsp;Employers should also identify locations of low or no-cost COVID-19 testing sites, to ascertain how much out-of-pocket cost may be imposed on the employee.</p> <p><b>Face Covering Requirement</b></p> <p>While the vaccine or testing requirements have dominated the ETS headlines, the ETS also includes a face covering requirement which goes into effect on December 5, 2021.&nbsp;All non-fully-vaccinated employees must wear a face covering while indoors or in a vehicle, except: when the employee is alone in a room with floor to ceiling walls and a closed door; for a limited time while eating or drinking or for security checks; while wearing a respirator or other face mask (such as surgical mask); or when wearing a mask is infeasible or creates a greater hazard than wearing a mask.</p> <p>Under the ETS, face coverings must include at least two layers of fabric, wrap around the ears or head with elastic, and fit snugly around the nose and mouth.&nbsp;Gaiters are not excluded by the ETS, but they must have at least two layers of fabric, fit snugly, and have no large gaps on the sides. The ETS neither requires nor prohibits an employer from paying for face coverings.</p> <p><b>Recordkeeping Requirement</b></p> <p>Employers must maintain a record of each employee&rsquo;s vaccination status, a copy of each employee&rsquo;s proof of vaccination, and/or copies of unvaccinated employees&rsquo; COVID-19 test results for the duration of the ETS.&nbsp;These records must be kept separate from personnel files and be treated as confidential medical records.&nbsp;The employer must also maintain a separate roster of all employee vaccination statuses.</p> <p>While employers are not required to conduct investigations or take steps to verify medical information, any employer who knowingly accepts false medical information is subject to civil or criminal penalties under OSHA&rsquo;s recordkeeping rules.</p> <p><b>Enforcement</b></p> <p>Generally, OSHA enforces its standards by assessing penalties.&nbsp;While states may operate their own Occupational Safety and Health Plans, those states are required to adopt maximum penalty levels that are at least as effective as the penalty levels of the Federal OSHA.&nbsp;OSHA&rsquo;s maximum penalty amounts are:</p> <div align="center"><br /> <table border="1" cellspacing="0" cellpadding="0"> <tbody> <tr> <td valign="top"> <p><b>Type of Violation</b></p> </td> <td valign="top"> <p><b>Penalty</b></p> </td> </tr> <tr> <td> <p>Serious</p> <p>Other-Than-Serious</p> <p>Posting Requirements</p> </td> <td> <p>$13,653 per violation</p> </td> </tr> <tr> <td> <p>Failure to Abate</p> </td> <td> <p><br /> $13,653 per day beyond the abatement date</p> </td> </tr> <tr> <td> <p>Willful or Repeated</p> </td> <td> <p>$136,532 per violation</p> </td> </tr> </tbody> </table> </div> <p><br /> While there are pending efforts, including proposed legislation in some states, to increase the penalty maximums by more than 15%, even the current penalty levels will likely deter employers from attempts to sidestep the ETS, in light of the sheer volume of potential penalty exposure based on the number of non-fully-vaccinated employees who may be considered separate and repeated violations at any given company.&nbsp;As a practical matter, however, OSHA may lack the capacity to aggressively enforce the ETS given that the standard is expected to apply to more than 100,000 companies.&nbsp;Thus, OSHA will likely conserve its resources to enforce ETS-related penalties on larger, big-name, companies that may serve as cautionary tales in the news.</p> <p><b>Final Takeaways </b></p> <p>Time is of the essence. Employers and practitioners should take the following steps <i>now,</i> to ensure ETS compliance:</p> <p>►provide employees with ample notice of the face covering mandate which goes into effect on December 5, 2021, and the January 4, 2022, vaccination deadline.&nbsp;Remember, employees who are not two weeks past their final vaccine dose are not &ldquo;fully vaccinated&rdquo; and are subject to weekly testing after January 4, 2022.&nbsp;<b>For recipients of the Moderna and Pfizer vaccines, this means the first dose should be administered by November 23, 2021, to avoid any weekly testing;</b></p> <p>►determine what will be included and administered as part of the employer&rsquo;s testing program, which should be included in the employer&rsquo;s written policy.&nbsp;When developing its testing program policy, an employer should consider whether testing will be provided at the employer&rsquo;s premises, whether employees will be required to independently schedule tests, and whether employees may bring an OTC test with them to be administered at work;</p> <p>►prepare a written policy that requires either vaccination or a weekly testing option, and distribute the policy to employees;</p> <p>►determine how employees will be required to provide proof of vaccination or negative tests (e.g., an online portal, submit to HR or a specific manager, via e-mail);</p> <p>►collect vaccination records from fully and partially vaccinated employees;</p> <p>►consult with local health officials, hospitals, or clinics about hosting on-site vaccination events or conducting on-site COVID-19 testing; and</p> <p>►prepare for receiving and processing religious and medical exemption requests and train front-line managers on how to identify and handle such requests. Exemption requests should be treated as requests for reasonable accommodation under Title VII or the Americans with Disabilities Act. The EEOC advises that an employer may deny a request for religious accommodation where the sincerity of the employees&rsquo; belief is questionable, as indicated by inconsistent past conduct, timing of the request or other factors. Employers considering denying religious requests must exercise extreme caution.</p> <p>The ETS may be modified after the notice-and-comment period, or by legal challenge.&nbsp;Baker Sterchi attorneys will continue to monitor these developments, and will update this blog on a revolving basis with the most up-to-date information available.</p>https://www.bscr-law.com?t=39&format=xml&directive=0&stylesheet=rss&records=10&break_the_cache=1638560435Significant 2021 Financial Services Industry Decisions and Legislationhttps://www.bscr-law.com/?t=40&an=119915&format=xml&p=5258&stylesheet=blog15 Dec 2021Financial Services Law Blog<p>In this 2021 year-end summary, the Financial Services Law Blog analyzes several of the most impactful financial services decisions and regulatory developments at both the national and local state level. 2021 was a year marked by several significant United States Supreme Court and other federal court decisions affecting financial servicing issues and legislation across the country and closer to home. Additionally, the impact of the CARES Act on mortgage servicing continued to play out, while the CFPB issued the important 2021 COVID Serving Rule amending Regulation X.</p> <p><b>Split Supremes Hold Concrete Injury Was Required in FCRA Class Action Case</b></p> <p>In June, the United States Supreme Court, in a split 5-4 decision reversing the Ninth Circuit Court of Appeals, affirmed the once fundamental &ndash; yet at one point, seemingly eroding &ndash; legal principle that a plaintiff must actually suffer harm before being able to sue on a federal statutory claim.&nbsp; The decision (<i>TransUnion LLC v. Ramirez</i>, 141 S. Ct. 2190, 210 L. Ed. 2d 568 (2021)) reversed a $40 million class action judgment award based upon a finding that thousands of class members had demonstrated &ldquo;no concrete harm&rdquo; and therefore no standing for two of three Fair Credit Reporting (&ldquo;FCRA&rdquo;) claims.</p> <p><i>Ramirez</i> originated from the named plaintiff&rsquo;s visit to a local car dealer.&nbsp; Mr. Ramirez had negotiated a price and even selected a color, the Court noted, before he was told that he was being denied financing because his name had showed up on an OFAC advisor &ldquo;terrorist list.&rdquo;&nbsp; He contacted TransUnion and was told that he in fact was listed as a &ldquo;prohibited Specially Designated National (SDN).&rdquo;&nbsp; Such designation was completely erroneous and was removed when Mr. Ramirez disputed it.</p> <p>He sued on behalf of 8,185 class members, asserting claims that TransUnion failed to follow reasonable procedures to ensure the accuracy of credit files and also failed to provide consumers with complete credit files and a summary of rights upon request.&nbsp; The class was certified based on all of the class members having been falsely listed as prohibited SDNs, although only 1,853 of them had had their credit reports furnished to potential creditors.&nbsp; The Ninth Circuit found all of them had standing on these claims, disturbing the jury&rsquo;s verdict and the magistrate&rsquo;s judgment only insofar as to cut in half (as excessive) the $6,300-per-class-member punitive damages award.</p> <p>But the Supreme Court reversed the judgment entirely, finding on the &ldquo;reasonable procedures&rdquo; claim that only the 1,853 class members whose credit reports had been provided to third parties actually suffered a concrete harm necessary for Article III standing.&nbsp; The Court also found that the class members other than Mr. Ramirez had failed to demonstrate any concrete harm with respect to the other claims.</p> <p>The majority decision, penned by Brett Kavanaugh, contained the sound bite phrase, &ldquo;No concrete harm, no standing.&rdquo;&nbsp; The dissenting opinion, authored by Clarence Thomas, was grounded in disagreement on whether the class members had actually suffered a concrete harm, positing that a consumer&rsquo;s receipt alone of an erroneous credit report should give rise to standing to sue on a FCRA claim.</p> <p><b><i>Ramirez</i></b><b> Decision Applied to Find No Sufficient Concrete Injury Allegation</b></p> <p>The <i>Ramirez </i>decision was applied just weeks later in <i>Grauman v. Equifax</i>, No. 20-cv-3152, 2021 U.S. Dist. LEXIS 142845 (E.D.N.Y. July 16, 2021).&nbsp; In <i>Grauman</i>, although the plaintiff&rsquo;s mortgage payments were suspended for a 2.5-month period in 2020, plaintiff continued to make his monthly mortgage payments on time.&nbsp; But his credit score suffered a 16-point drop, which he attributed to Well Fargo&rsquo;s alleged improper reporting of his mortgage payment suspension.</p> <p>Applying <i>Ramirez</i>, the court dismissed plaintiff&rsquo;s FCRA claim for lack of subject matter jurisdiction, finding that plaintiff had failed to allege any concrete injury where there was no allegation of dissemination of his credit report to third parties.&nbsp;</p> <p><b>Moratoriums and Modified Loss Mitigation Procedures under the CARES Act</b></p> <p>Early in the COVID-19 pandemic in 2020, the CARES Act became law and established a foreclosure and eviction moratorium on federally backed mortgage loans.&nbsp; Section 4022 of the Act also provided for loan forbearance for borrowers on such loans &ldquo;experiencing a financial hardship due, directly or indirectly, to the COVID-19 emergency.&rdquo;</p> <p>The federal foreclosure and eviction moratorium sunset at the end of July 2021. When Congress did not act to extend the eviction moratorium, the Centers for Disease Control purported to stand in for Congress and issue its own extension of the eviction moratorium.&nbsp; But that action was struck down by SCOTUS in August in <i>Ala. Ass&rsquo;n of Realtors v. HHS</i>, 141 S. Ct. 2485, 210 L. Ed. 2d 856 (2021), on grounds that the CDC lacked the authority to issue such an extension. However, financial institutions and their counsel are advised to continue monitoring state-and-local-level limitations on evictions and foreclosures relating to the pandemic.</p> <p><b>FHFA Structure Not Up to Constitutional Muster, Holds SCOTUS</b></p> <p>Another significant but unsurprising Supreme Court decision came down in May &ndash; <i>Collins v. Yellen</i>, 141 S. Ct. 1761, 210 L. Ed. 2d 432 (2021).&nbsp; This decision held that the single-director, terminable only-for-cause structure of the Federal Housing Finance Agency (FHFA) was unconstitutional under the separation of powers clause, similar to last year&rsquo;s CFPB decision.</p> <p>The underlying lawsuit came from Texas and was brought by shareholders of Fannie Mae and Freddie Mac who alleged injury from a recent action of the FHFA Director that amended a purchase agreement in which the Treasury provided billions in capital in exchange for shares of Fannie and Freddie.&nbsp; Addressing, <i>inter alia</i>, the shareholder&rsquo;s constitutional claim, the Court found the FHFA unconstitutional in its current form, particularly in light of the restriction in the 2008 Housing and Economy Recovery Act (which created the FHFA to oversee Fannie and Freddie) upon the President&rsquo;s removal powers with respect to the FHFA Director.</p> <p>Citing its 2020 <i>Seila Law </i>opinion regarding the unconstitutional structure of the CFPB,the Court reasoned that even &ldquo;modest restrictions&rdquo; on the President&rsquo;s power to remove the head of an agency with a single top officer/director (here, of the FHFA) were unconstitutional.&nbsp; The case was affirmed in part, but reversed in part, and remanded to the district court for proceedings addressing whether the unconstitutional structure of the FHFA caused the shareholders&rsquo; alleged injury. Within hours, President Biden served walking papers on the previous FHFA Director Calabria and named Sandra Thompson as the new acting Director.</p> <p><b>Kansas Ban on Credit Card Transaction Surcharges Found Unconstitutional</b></p> <p>A February decision of the United States District Court for the District of Kansas found, for purposes of the plaintiff and transactions at issue in that case, that the 35-year-old Kansas &ldquo;no-surcharge&rdquo; statute was unconstitutional as a violation of plaintiff CardX, LLC&rsquo;s First Amendment right to commercial speech.&nbsp; The statute, K.S.A. 16-a-2-403, provides that &ldquo;no seller or lessor in any sales or lease transaction or any credit or debit card issuer may impose a surcharge on a card holder who elects to use a credit or debit card in lieu of payment by cash, check or similar means.&rdquo;</p> <p>In <i>CardX, LLC v. Schmidt</i>, 522 F. Supp. 3d 929 (D. Kan. 2021), the court found the statute violative of the First Amendment and all three factors of the United States Supreme Court&rsquo;s test (as set forth in <i>Central Hudson Gas &amp; Elec. Corp. v. Pub. Serv. Comm&rsquo;n of New York</i>, 447 U.S. 557, 561 (1980)) for determining the constitutionality of a statute restricting commercial speech.&nbsp; The court further (1) cited the need for surcharges to protect businesses with small profit margins from bearing the cost and burden of transaction fees imposed by credit card providers and (2) reasoned that the restriction placed an undue burden on merchants given the heightened demand for contact-free transactions in the COVID era.</p> <p>While <i>CardX</i> was being decided, Kansas HB 2316 was introduced and would lift the statutory surcharge ban.&nbsp; That bill has since passed the Kansas House and has been referred to a Kansas Senate committee, where it currently sits. As noted in our<a href="https://www.bscr-law.com/?t=40&amp;an=115782&amp;format=xml&amp;stylesheet=blog&amp;p=5258"> April 2021 blog post</a>, in the event that this bill does not pass the Kansas legislature, additional challenges to the current no-surcharge statute can be fully expected.</p>https://www.bscr-law.com?t=39&format=xml&directive=0&stylesheet=rss&records=10&break_the_cache=1638560435Court Compels Arbitration where Employer's Right to Modify Terms is not "Unfettered"https://www.bscr-law.com/?t=40&an=119745&format=xml&p=5258&stylesheet=blog30 Nov 2021Kansas Law Blog<p>A number of recent court decisions have invalidated employment arbitration agreements where the employer reserves the right to modify terms. Courts have increasingly held that modification rights make the employer&rsquo;s promise to arbitrate illusory, and thus, the agreement to arbitrate lacks consideration. Bucking this trend, however, the District of Kansas, in an opinion by Judge Toby Crouse, recently affirmed that an employment arbitration agreement which does not give the employer &ldquo;unfettered&rdquo; authority to modify its terms is supported by valid consideration and is enforceable. The Court also held that an arbitration agreement which incorporates AAA delegation rules is a &ldquo;clear and unmistakable&rdquo; delegation, giving the arbitrator the authority to rule on his or her own jurisdiction and issues of arbitrability.</p> <p>The case is <i>Braden v. Optum RX, Inc.</i>, in which Baker Sterchi is serving as local counsel for the defendants. Braden sued her former employer and other entities, including UnitedHealth Group (&ldquo;UHG&rdquo;), for violations of the Family Medical Leave Act and Americans with Disabilities Act. Defendants moved to compel arbitration, because when Braden began her employment with UHG, she signed an arbitration agreement that was presented to her as a condition of employment. The Agreement covers most arbitrable employment disputes, including disputes arising under the FMLA and ADA. Importantly, the employer reserved &ldquo;the right to amend, modify, or terminate the Policy effective on January 1 of any year after providing at least 30 days&rsquo; notice&rdquo; to employees on the company intranet. The agreement incorporated the American Arbitration Association (&ldquo;AAA&rdquo;) Employment Dispute Resolution Rules, including Section 6 of the AAA Rules which states that &ldquo;the arbitrator shall have the power to rule on his or her own jurisdiction, including any objections with respect to the existence, scope or validity of the arbitration agreement.&rdquo; Finally, the agreement also states &ldquo;continuation of employment with UnitedHealth Group is deemed to be acceptance of this Policy.&rdquo;</p> <p>Braden worked for UHG for six years. Toward the end of her employment, a medical condition allegedly caused Braden to exhaust her FMLA leave, and her continued absences were counted as unexcused under UHG&rsquo;s attendance policy. UHG eventually terminated Braden&rsquo;s employment for accruing too many unexcused absences.</p> <p>Braden opposed UHG&rsquo;s motion to compel arbitration, claiming that the agreement lacked consideration based on the UHG&rsquo;s ability to modify its terms and challenging the agreement&rsquo;s delegation provision. She argued that UHG&rsquo;s promise to arbitrate was illusory because UHG reserved the right to modify or terminate the Agreement. Braden cited cases from several district courts in other jurisdictions (relying heavily on a case from Hawaii) which held that the UHG arbitration provision at issue lacked consideration because UGH&rsquo;s promise to arbitrate was illusory. As a result, Braden claimed, no valid agreement was ever formed.</p> <p>The Court granted UHG&rsquo;s motion to compel arbitration. The Court explained that under Kansas law, if a modification clause provides the employer the &ldquo;unfettered&rdquo; right to modify or revoke its promise to arbitrate, then the promise is illusory. However, if the right to modify is &ldquo;meaningfully limited,&rdquo; then a promise to arbitrate is not illusory. Additionally, under Kansas law, an arbitration agreement does not require mutuality of obligation between the employer and employee. Rather, a contract is formed as long as both parties retain some valid consideration.</p> <p>The Court held that UHG&rsquo;s right to amend the policy is not &ldquo;unfettered&rdquo; because UHG was required to provide at least 30 days&rsquo; advanced notice and could only modify or terminate the Agreement effective January 1 of the year following notice. As a result of this effective date, UHG was prohibited from immediately terminating the agreement, which could have the effect of cutting off existing claims.</p> <p>The Court also distinguished the cited cases from Hawaii, pointing out that under substantive law, Hawaii requires &ldquo;mutuality of obligation&rdquo; in bilateral contacts. The Court found that because Braden and UHG both promised to submit their grievances to arbitration, there was valid consideration on both sides.</p> <p>Next, Braden challenged the Agreement&rsquo;s delegation provision. Under Kansas law, a delegation provision is only valid where there is &ldquo;clear and unmistakable evidence&rdquo; of the parties&rsquo; intent to delegate to the arbitrator threshold issues of formation, enforceability, and other issues of arbitrability. Rather than separately attacking the delegation provision, Braden argued that because the Agreement as a whole was illusory, so was the delegation provision. Relying on Tenth Circuit precedent, the Court held that the parties had expressly incorporated AAA rules, which constitute &ldquo;clear and unmistakable evidence&rdquo; of an agreement to delegate arbitrability issues to the arbitrator.</p> <p>Finally, Braden argued the rules limiting discovery were unconscionable. The Court found that because the delegation provision was valid, the Court&rsquo;s role was limited to determining whether a contract was formed. Therefore issues such as unconscionability are left to the arbitrator.</p> <p>In conclusion, in Kansas, so long as meaningful limits are placed on an employer&rsquo;s ability to modify an arbitration agreement, courts will compel arbitration. From <i>Braden</i>, and the cases cited therein, drafters should ensure that the modification provisions include, at a minimum:</p> <ul> <li>ample notice to employees that changes to the agreement are forthcoming;</li> <li>a date certain on which changes will become effective; and</li> <li>a statement that modification or termination of the agreement will not affect claims already submitted to arbitration.</li> </ul>https://www.bscr-law.com?t=39&format=xml&directive=0&stylesheet=rss&records=10&break_the_cache=1638560435Laura Beasley Joins Prestigious Association of Defense Trial Attorneys as Prime Memberhttps://www.bscr-law.com/?t=40&an=119667&format=xml&p=525522 Nov 2021Recognition<p>Baker Sterchi Member Laura Beasley joins the Association of Defense Trial Attorneys (ADTA) as a prime member, a designation awarded to only one defense trial attorney per one million population for each city, town, or municipality.</p> <p>Established nearly 80 years ago, ADTA is a prestigious defense trial attorney organization with a mission to improve the practices of its members through collegial relationships, educational programs, and business referral opportunities while maintaining the highest standards of professionalism and ethics. Prime membership in the organization reflects the high regard peers in the defense trial bar have for those selected in their city and state or province.</p> <p>Beasley, a litigator in Baker Sterchi's Belleville office, has undertaken over 40 jury trials in state and federal courts and has represented clients at all phases of litigation, from pre-suit assessment and negotiation to alternative dispute resolution, trial and appellate level work.&nbsp; She is active in local and national bar associations, currently serving as president of the Illinois Association of Defense Trial Counsel.</p>https://www.bscr-law.com?t=39&format=xml&directive=0&stylesheet=rss&records=10&break_the_cache=1638560435