Week Adjourned: 12.8.17 – #metoo, Xarelto, Unpaid Overtime

Top Class Action Lawsuits

#metoo. Organized sexual assault? Think organized crime. That’s the underlying allegation in a new class action lawsuit filed against Harvey Weinstein and affiliates this week. The lawsuit claims the defendants engaged in an illegal organized enterprise to conceal and further Weinstein’s pattern of sexual assault.

The six plaintiffs, namely Louisette Geiss, Katherine Kendall, Zoe Brock, Sarah Ann Masse, Melissa Sagemiller and Nannette Klatt are representing a proposed class of hundreds of actresses who suffered sexual assault, false imprisonment, battery, rape and other heinous sexual acts at the hands of Harvey Weinstein.

According to the plaintiffs bringing the case, they were lured by Miramax or TWC employees and isolated with Weinstein at industry events, hotel rooms, Weinstein’s home, office meetings and/or auditions or to discuss involvement in a project. The lawsuit filed against Weinstein, Miramax, The Weinstein Company Holdings and the members of its Board of Directors states that these entities colluded together to perpetuate and conceal Weinstein’s widespread sexual harassment and assaults.

Further, the complaint states that Miramax and The Weinstein Company (which Weinstein co-founded) facilitated Weinstein’s organized pattern of predatory behavior, equating to an enterprise that violates the Racketeer Influenced and Corrupt Organizations Act, commonly referred to as the RICO Act, the same law brought against members of the Mafia for organized criminal behavior.

Each of the lawsuit’s six plaintiffs allege they were separately and systematically lured into isolating and intimidating environments by Weinstein, under false pretenses of industry-related meetings. They were assaulted, imprisoned in hotel rooms, airplanes and his home, and faced career-ending threats if they refused his unwanted advances and requests. In the instance of plaintiff, Sarah Ann Thomas, “Weinstein conducted the interview in his underwear, embraced Thomas in a sexual manner, and did not give her the job when she did not take him up on his sexual propositions.”

“Weinstein’s widespread sexual misconduct did not occur without the help of others,” the lawsuit states. “Rather, over time, Weinstein enlisted the aid of other firms and individuals to facilitate and conceal his pattern of unwanted sexual conduct. This coalition of firms and individuals became part of the growing ‘Weinstein Sexual Enterprise,’ a RICO enterprise.”

The complaint highlights reports from The New Yorker detailing “Weinstein’s Army of Spies” that Weinstein engaged to harass, threaten, extort, investigate and mislead his victims and the media to prevent the prosecution, reporting or disclosure of his sexual misconduct. This included members posing as fake journalists, and in the case of Plaintiff Katherine Kendall, contacting her, causing significant additional distress. These enterprise members also destroyed and concealed records and other evidence, the complaint states.

The lawsuit brings various charges against Weinstein, his companies, and members of The Weinstein Company’s Board of Directors for violating the RICO Act, witness tampering, mail and wire fraud, assault, civil battery, negligent supervision and retention, and intentional infliction of emotional distress.

It also seeks retribution for class members’ loss of work opportunities and devastating damage to their careers, the damages for which can be tripled under RICO law. Plaintiffs also seek damages for the significant physical and emotional distress they endured then, and continue to endure now.

The lawsuit highlights that at all times, Weinstein’s victims and those who met to discuss projects or audition for him “operated under duress and the threat of being blacklisted” by Weinstein and major producers at Miramax if they refused, or spoke up.

Top Settlements

Xarelto settlement news… This week saw a turnaround for plaintiffs suing units of Johnson & Johnson (J&J) and Bayer AG in the fourth bellwether (Rivaroxaban) case being heard as part of a Xarelto mass tort. The plaintiffs won, in fact they were awarded nearly $28 million. This is the first Xarelto jury verdict favoring a plaintiff, in this case Lynn Hartman, who alleged she suffered a serious gastrointestinal bleed while using the blood thinning medication.

The jury found that the pharmaceutical companies failed to provide adequate warnings regarding the risks for bleeding associated with Xarelto.

Hartman’s case is one of more than 1,500 pending lawsuits, constituting a mass tort program in the Philadelphia County Court of Common Pleas to consolidate Xarelto-related product liability claims.

Those claims essentially state that Janssen Pharmaceuticals Inc. and Bayer Healthcare Pharmaceuticals Inc, failed to provide information about the significantly higher rate of bleeding among US patients compared with those elsewhere in the world, reported in a clinical trial.

Evidence provided during the trial indicated that the annual rate of bleeding in US patients was 8.1 percent compared with 3.6 percent among study participants globally.

Further, Hartman claimed that the defendants did not provide adequate warning concerning the increased risk for bleeding in patients using aspirin as well as Xarelto, and that the companies failed to tell doctors that some patients end up with significantly higher levels of the medication in their blood than others.

Hartman’s attorneys also argued that the risk of adverse events associated with Xarelto was significantly higher than that of two other popular blood thinners Eliquis (apixaban) and Pradaxa (dabigatran).

Testimony from former Food & Drug Administration chief David Kessler, added gravitas to Hartmann’s allegations, when he told jurors that he believed the warning label for Xarelto lacked key information about the severity of the potential risk for bleeding associated with its use.

Xarelto (known generically as Rivaroxaban) is a new-generation anticoagulant, in a class of drugs known as direct thrombin inhibitors. It is a blood thinner used to reduce the risk of blood clots and strokes. Xarelto has also been marketed as being easier to use than warfarin (known by the brand name Coumadin), an older anticoagulant, because it does not require medical monitoring.

The case is Hartman v. Janssen Pharmaceuticals Inc. et al., case number 160503416, in the Court of Common Pleas of Philadelphia County, Pennsylvania.

Raising the stakes for unpaid overtime violation! Four fracking crane operators in Pittsburgh, who sued a drilling company for failing to compensate them for overtime worked, have had their compensation awards doubled by the federal judge hearing their case. Now that’s gotta feel good.

The decision follows a jury finding from October, stating that Oil States Energy Services “willfully and recklessly” failed to pay overtime wages to the operators. The jury awarded each of the plaintiffs tens of thousands of dollars in compensation. The company argued they were “highly compensated” and exempt under the Motor Carrier Act.

To avoid liquidated damages, Oil States would have had to prove that it tried to reasonably comply with the act, and it argued that its payment plan did just that.

“Oil States argues paying crane operators a salary and a job bonus, instead of hourly with overtime, conformed to industry standard practice and thus shows good faith. … Oil States offered no evidence it independently researched whether the industry standard salary and job pay plan for crane operators complied with the act,” the judge wrote.

The judge also found that Oil States did not act in good faith by determining that the employees were exempt under the highly compensated exemption.

Ok Folks – That’s a wrap! See you at the bar.

Week Adjourned: 4.22.16 – Xarelto, Natural Sunscreen, NFL Concussions

XareltoTop Class Action Lawsuits

Xarelto Lawsuits Head North. Bayer Inc, is facing a Xarelto class action lawsuit filed in Canada—in Calgary to be precise—alleging its blood thinner is linked to dozens of deaths. The lead plaintiff in this class action alleges that the anticoagulant drug caused her to suffer from an uncontrollable bleeding event which nearly led her to cardiac arrest. Sadly, this lawsuit has a familiar ring to it.

According to reports published in the Calgary Sun, as of March 2015, Health Canada had received an estimated 1,100 adverse event reports from patients taking Xarelto. The article indicates that, according to a lawyer from Toronto, if the class action is successful, “…it would be in the millions of dollars.” The Calgary Sun report also discussed the likely formation of another class action suit in Ontario at this time.

This Canadian Xarelto class action lawsuit closely follows the formation of Multidistrict Litigation number 2592 in the United States by the U.S. Judicial Panel on Multidistrict Litigation. This MDL consolidated and transferred over 2,800 lawsuits filed in reference to Xarelto by plaintiffs who allege much the same. These lawsuits are additionally joined by another group of 620 Xarelto lawsuits which have been formed into a mass tort program by the Court of Common Pleas in Philadelphia, Pennsylvania. Lawsuits in these groupings have been filed against defendant Bayer AG as well as Janssen Pharmaceuticals, a subdivision of Johnson & Johnson corporation.

Not in our Nature? Where would we be without our weekly dose of consumer fraud litigation? This week, it’s Sunology Natural Sun Protection who is facing a consumer fraud class action lawsuit. The allegations are that the advertising of its sunscreen products is misleading to the consumer.

Filed by Vivian Douek, individually and for all others similarly situated, the Sunology Natural Sun complaint alleges the defendant, McNabb LLC, doing business as Sunology Natural Sun Protection, markets and advertises certain of its SPF 50 sunscreens as containing “active ingredients derived from nature”, and therefore these products are “natural.”

However, the plaintiffs contend that these products in fact contain various artificial and synthetic ingredients. Consequently, consumers paid a premium for products the defendant misrepresented, according to the complaint.

Therefore, the lawsuit states that the defendant is in violation of New York General Business Law and consumer protection statutes in every state, violation of the Magnuson-Moss Warranty Act, breach of express and implied warranties, unjust enrichment and negligent misrepresentation. 

Top Settlements

NFL Concussion Update… Heads up—and pardon the pun—this really isn’t a laughing matter. A $1 billion settlement has been upheld in the infamous concussion class action lawsuit brought by National Football League (NFL) players against the NFL.

Approved by the 3rd U.S. Circuit Court of Appeals, the revised settlement deal will resolve thousands of lawsuits brought against the league, as well as covering over 20,000 retired NFL players for the next 65 years. According to estimates by the NFL, 6,000 former players, or nearly three in 10, could develop Alzheimer’s disease or moderate dementia.

The original settlement was appealed as critics had argued that any settlement must include future payments for chronic traumatic encephalopathy (CTE), the brain decay found in dozens of former players after their deaths.

While the appellate judges acknowledge those points in the 69-page ruling, they found the settlement was for the greater good of all players.

According to the terms of the agreement, funds of up to $4 million could be paid for prior deaths involving CTE. However, a cut-off date of April 2015 has been set to avoid the encouraging suicides.

Ok –on that note – we’re done here. See you at the Bar!