Guttman, Buschner & Brooks

Reuben A. Guttman

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Mass Tort Deals: Must-Read Interviews for a Must-Read Book

In 1965, Ralph Nader published Unsafe at Any Speed, an exposé on automobile safety, and since its publication, consumer faith in product safety has never been the same.

The early efforts of Nader and his legion of young lawyers and researchers—who came to be known as Nader’s Raiders—spurred the growth of products liability litigation. Nader gave consumers and their counsel a reason to go to court: they challenged the safety of products from cars to cribs, and the courtroom provided the level playing field where even the little guy could be heard and get justice.

Now, 50 years later, a law professor at the University of Georgia is exposing impropriety in a system—known as multidistrict litigation, or MDL—that is designed to handle these types of cases.

In her 2019 book Mass Tort Deals: Backroom Bargaining in Multidistrict Litigation, Professor Elizabeth Chamblee Burch blows the whistle on MDL. She writes about a virtually unregulated system driven by deals between a limited group of plaintiff and defense lawyers involving tens of thousands of plaintiffs. Burch’s work is not just based on empirical data; she writes about victims of car accidents, misbranded drugs, and defective medical devices whose cases—purportedly consolidated only for pretrial proceedings—are resolved by court-appointed lead counsel through global settlements that give defendants finality and plaintiffs little choice but to accept the offer. Burch also raises concerns about a system that promotes, indeed at times coerces, settlements over the transparent litigation that has historically driven regulation and made products safer.

If one were to think her concerns involve only a small fraction of federal court litigation, think again. Burch writes that “from 2002 to 2017, MDL jumped from 16 to 37% of the federal court’s pending case load,” with 95 percent of those cases in the products liability arena.

The system that Burch writes about had its origins in the early 1960s, when the federal courts were flooded with nearly 2,000 lawsuits stemming from a nationwide conspiracy to fix the prices of equipment used in the transmission of electricity. With guidance from Chief Justice Earl Warren, who created a Coordinating Committee of Multidistrict Litigation, a process was created to drive efficiencies in the litigation of these cases. The work of Warren and the committee’s chair, Alfred P. Murrah—then Chief Judge of the Tenth Circuit—paved the way for the passage of the MDL statute, 28 U.S.C. § 1407, in 1968. That statute provides for the coordination for pretrial purposes of civil actions involving “one or more common questions of fact.” Cases filed anywhere in the federal court system can be transferred to a single district for pretrial purposes. The MDL statute is short and—in contrast to Federal Rule of Civil Procedure 23, which addresses class actions—provides no standards for the appointment of counsel, class representatives, or for the approval of settlements.

With Supreme Court rulings on class actions in the late 1990s making class certification more difficult for plaintiffs, mass tort actions—rolled up into the MDL system—became the go-to method for handling matters that in yesteryear might have been addressed through the more regulated class-action system. The big plaintiff firms could still litigate massive actions and the defense lawyers could still engineer settlements giving their clients global peace.

Yet, the MDL statute addresses only pretrial matters—not settlement; not global peace; not provisions for opting out; not the appointment of counsel, the compensation of counsel, or the confidentiality of and use of materials discovered in litigation. It is here that Burch does a masterful job of exposing the “Mass Tort Deals” that have evolved from an unregulated system.

To get a better sense of the problem, I posed questions to Professor Burch and Judge Nancy Gertner, who retired from the federal bench in 2011 and now teaches at Harvard Law. My interviews are below.

Judge Gertner, do we have a real problem with the MDL process and how do you view that problem from having been on the bench?

The problem is the classic one: rules and transparency. There were no clear rules with respect to who is assigned an MDL. There is no blind draw, no concrete set of procedures. After I complained about the asbestos MDL shortly after I got on the bench—late 1990s—I was never assigned a case again. My complaint was that the MDL judge, Judge [Charles] Weiner of Philadelphia, was simply dismissing the cases “subject to their being reopened by motion.” The dismissals were contrived, done for the purpose of showing that the cases were moving. I finally got an MDL when Judge Robert Keeton died and my court assigned me to one that had been assigned to him. In the last year I was on the bench, I drew a civil rights case that was headed for the MDL court. My case was the first filed, a second was in Chicago, a third in San Francisco. All of us were up to date, willing to take on the case. It was assigned to neither of us; it went to a judge in Memphis who was on the committee.

If the MDL process were “merely” procedural, it would be one thing. But the decisions made by the MDL judge profoundly affected the substantive outcomes of these cases. Under the circumstances, the failure to have a transparent judicial assignment process is critical to the fairness of the proceeding.

Professor Burch, your book raises ethical issues regarding the MDL process. Why has there not been more of an outcry?

All of the primary stakeholders—plaintiffs’ lawyers, corporate defendants, defense attorneys, and yes, judges—benefit from settlements. And it’s in aggregate settlements where ethical issues arise most prominently. To give corporate defendants the closure they demand, some “settlements” (deals between defendants and plaintiffs’ attorneys) require plaintiffs’ lawyers to recommend the settlement uniformly to all their clients and then some take the extraordinary step of requiring lawyers to withdraw from representing clients who refuse to settle. That doesn’t leave much room for genuine consent.

Those who are most impacted by ethical violations are the plaintiffs, many of whom are severely injured and have neither the time nor the resources to make a stink. In a world of repeat players, they are the one-shotters, the ones who need and deserve the most protection because their voices are so rarely heard. But therein lay the crux of the principal–agent problem: if it’s in the lawyer’s best interest to flout the rules and get the deal done, there will be no outcry, only silence.

Judge Gertner, from your vantage point, why has there not been more of an outcry about the problem?

The question is who is likely to complain and to whom? Judges are not complaining; the assignments are a plum for the Court, entitling the judge to attend a yearly conference in Palm Beach. And the skewed assignment process is usually not apparent. (It was in my case.) The lawyers are not complaining. Candidly, many of the lawyers in MDL case are competing for lead counsel; the last thing they want to do is rock the boat.

Professor Burch, many of the MDLs involve drugs or medical devices. Are the issues you raise in your book ultimately impacting healthcare standards?

The mass-torts plaintiffs’ bar is a last resort, a failsafe of sorts, for when medical drugs or devices come on the market that do more harm than good. So, yes, there is a feedback loop from the courts to healthcare and vice versa.

The FDA regulates everything from tainted spinach to cosmetics to pet food. It can’t and won’t catch everything. There will be drugs and devices on the market that shouldn’t be. We would hope that litigation opens a window into the processes that allowed that to happen so that drug and device companies would avoid those kinds of mistakes in the future. But, if the past is any indicator, the profit motive is a very strong one to overcome.

Judge Gertner, what is the process for fixing the problems?

The authorizing legislation and rules should be redone. There ought to be rules with respect to the assignment of judges—a random draw, a set of principles. And the rules along with judicial training need to make clear that some cases should not be settled; the premium in the MDL is not—as it was supposed to be—providing a mechanism for shared discovery, with a trial to follow in the jurisdictions from which the cases came. The premium is on resolving the case.

Professor Burch, who needs to read your book, and what needs to be done to begin to fix the problems you identify?

I hope the book will appeal broadly to policymakers, judges, lawyers, and plaintiffs alike. It’s empirically based, but not stodgy. I aimed to make it accessible to a diverse group—from insiders who operate in this world daily to those who are injured and experiencing the judicial system firsthand.

As for a fix, there is no single, silver bullet. But there are many things that can improve it and judges can implement the changes and reforms I suggest without waiting for rule changes or legislation. I devote an entire chapter to proposals, but I’ve boiled the key principles down to the following:

  • Appoint lead plaintiffs’ lawyers based on the same principles of adequate representation that we see in class actions. In doing so, judges should invite applications and think about building the best team by seeking cognitive diversity—people with a diverse set of tools and skills, who approach problems differently.
  • Value dissent among lawyers and create outlets for it. As plaintiffs’ aims and preferences differ, dissenters can challenge the status quo and inject undisclosed information into the discussion. Dissenters can thereby act as a failsafe (but not a substitute) for adequate representation on key motions.
  • Tie plaintiffs’ attorneys’ common-benefit fees (the fees they are paid for their work on behalf of the group as a whole rather than their individual clients) to plaintiffs’ actual outcome rather than to the “sticker price” of the settlement fund. Begin by subtracting litigation costs and administrative fees from the gross settlement amount so that lawyers don’t profit from added expense. Then tailor awards to groups of lawyers based on quantum meruit. If there’s a group of non-lead lawyers who do little but advertise and freeride on leaders’ efforts, then taxing them with a higher percentage common-benefit fee might be appropriate. Conversely, if lawyers develop and try state court cases on their own, judges should reduce common-benefit fees for those lawyers to incentivize them to develop cases on the merits.
  • Empower plaintiffs to weigh in on their settlement awards. Awarding fees on a quantum meruit basis gives judges the authority to hear about the benefits of any deal from those who are most affected. Many plaintiffs want an opportunity to be heard, even if it’s just a chance to submit a letter to the judge. Some feel victimized not only by the corporate defendant but by the litigation process itself. If plaintiffs are receiving less than 50% of a settlement award, that should be a huge red flag for the judge.
  • Remand cases episodically. When leaders decide which cases they’re going to develop and which ones they aren’t, the ones that won’t benefit from multidistrict litigation centralization shouldn’t be waylaid by the MDL process. Likewise, if discovery reveals that a block of cases is no longer benefitting from centralization or if there is a global settlement that clients don’t want to accept, judges shouldn’t be hesitant to remand those cases to the federal courts from which they came. This gives plaintiffs the ability to credibly threaten trial and the corporate defendant the opportunity to demand case-specific proof.

And now my take. Our rule of law is a work in progress. That’s what makes is special. It is a system that welcomes critique and improvement. For NITA lawyers and jurists who champion the rule of law, the Burch book is a must-read. It is a catalyst for an open dialogue and undoubtedly procedural changes in the way many of these mass tort cases are adjudicated.

Reuben Guttman is a founding partner of Guttman, Buschner & Brooks, PLLC, in Washington, D.C. Read more of his On the Rule of Law columns here.

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Effective Compliance Means Imposing Individual Liability

Deputy Attorney General Sally Yates said it in a memo dated September 9, 2015, and her successor, Rod Rosenstein, said it in remarks dated October 6, 2017: corporations act through individuals, and compliance enforcement must necessarily account for holding individuals liable for the wrongs they orchestrate under cover of the corporate umbrella.(1)

The logic is reasonable and necessary. We blame corporations for catastrophic environmental events(2), misbranded drugs that cause injury, and financial products that destroy the life savings of those who have toiled for a living; yet at the helm of the corporations—guiding their path of impropriety—are people, many of whom who have benefited handsomely from the corporate misconduct that they have captained. Unfortunately, in comparison to the guilty pleas that are taken by corporations, which cannot be put behind bars, prosecutors—both criminal and civil—barely scratch the surface when it comes to pursuing the individual human culprits.

This is not to say that there have been no criminal prosecutions of individuals for corporate crime. Insider trading cases are quite common, and when the wrongdoing has catastrophic consequences, as in Enron, Tyco, WorldCom, and the Madoff organization, prosecutors have put real people behind bars.(3)

There are, however, too many instances where individuals have put a corporation on a destructive tear, and still managed to elude personal liability. Considering that many of the large drug companies have either taken guilty pleas or paid fines to the government for conduct that has placed patients at risk by causing the consumption of powerful, unnecessary drugs, it is astounding that few, if any, pharmaceutical executives have been pursued criminally for conduct tantamount to battery.(4) Imagine, for example, if an intruder broke into your house, opened your medicine cabinet, and loaded the cabinet with bottles of pills that were either not medically necessary—or worse—could cause physical injury or illness? How far removed is this from marketing schemes that cause doctors to write prescriptions based on misinformation, that cause dangerous products to be placed in medicine cabinets and ultimately consumed? Or what about the drug companies that funnel kickbacks to doctors disguised as “speaker fees” or “consulting agreements” while monitoring prescription data to confirm that the doctors are writing the “scripts” as directed.

In 2012, Abbott Labs, one of the largest pharmaceutical companies in the world, plead guilty to illegally marketing the powerful drug, Depakote, which is a limited indication anti-epileptic. Among other things, Abbott marketed the drug to elderly patients in nursing homes for off-label purposes and for pediatric use, even though Depakote was not approved to treat anyone under the age of 18. After the entry of a guilty plea, the U.S. Attorney for the Western District of Virginia, Timothy Heaphy, noted in a Department of Justice press release that, “Abbott unlawfully targeted a vulnerable patient population, the elderly, through its off-labelpromotion.”(5) Think hard about this statement; a company that holds itself out as a manufacturer of life-saving drugs was knowingly placing patients at risk for the purpose of making a buck.

In 2013, Wyeth Pharmaceuticals agreed to pay $490.9 million in criminal and civil penalties for engaging in proscribed marketing practices regarding the prescription drug, Rapamune. Rapamune is an immuno- suppressive drug—that is, it prevents the body’s immune system from rejecting a transplanted organ. At the time of the guilty plea, Wyeth had merged into Pfizer, and was no longer a standalone entity. Wyeth plead guilty to a criminal information, charging it with a misbranding violation under the Food, Drug, and Cosmetic Act. In characterizing the case, Antoinette V. Henry, Special Agent in Charge of the Metro-Washington field office of the FDA’s Office of Criminal Investigations noted, “Wyeth’s conduct put profits ahead of the health and safety of a vulnerable patient population dependent on life sustaining therapy.”(6) Also in 2013, pharma- giant GlaxoSmithKline plead guilty and paid $3 billion to the government in order to resolve fraud allegations and the failure to report safety data. As part of a global settlement, the company also settled a series of civil claims under the False Claims Act, stemming from marketing derelictions including kickbacks.

Time and time again, large pharmaceutical companies have engaged in conduct that placed patients at risk, and, at times, caused real harm, yet, virtually no individual has been prosecuted or put behind bars.(7) The idea that misrepresentations, kickbacks, and assorted fraudulent schemes can be employed to cause patients to put drugs in their bodies at personal peril without anyone going to prison is stunning. Our jails have no shortage of inmates sentenced to long terms for selling illegal drugs and/or engaging in various batteries. Yet, when white collar executives engage in schemes to drive revenue by causing the consumption of extra drugs, or the use of drugs for improper purposes, individual liability is rare.

Consider that this nation is immersed in battling what the press now calls the “opioid crisis”(8) or the “opioid epidemic.” (9) This crisis reared its head at least a decade ago when the U.S. Attorney in the Western District of Virginia prosecuted the drug manufacturer Purdue Pharma, and three corporate executives for illegally marketing the drug Oxycontin. On July 23, 2007, the United States District Court for the Western District of Virginia (James P. Jones, Judge) issued an Opinion and Order approving a criminal plea agreement and summarizing its provisions. Among other misdeeds, during a six-year period, “certain Purdue supervisors and employees with the intent to defraud or mislead, marketed and promoted OxyContin as less addictive, less subject to abuse and diversion, and less likely to cause tolerance and withdrawal than any other pain medications.” Among an array of specific derelictions, Purdue representatives “told certain health care providers that Oxycontin did not cause a ‘buzz’ or euphoria, caused less euphoria, had less addiction potential, had less abuse potential, was less likely to be diverted than immediate-release opioids, and could be used to ‘weed out’ addicts and drug seekers.”(10) The court’s opinion noted that “Purdue has agreed that these facts are true, and that the individual defendants, while they do not agree that they had knowledge of these things, have agreed that the Court may accept these facts in support of their guilty pleas.” The plea agreement—accepted by the Court—called for Purdue to pay approximately $600 million to resolve civil and criminal claims. It also provided that no individual defendant would be incarcerated. In the absence of record proof of their culpability, the Court was left with no choice but to accept the agreement as to no prison time for individuals. Noting what we now know about the opioid problem, the Court made this ominous point:

I would have preferred that the plea agreements had allocated some amount of the money for the education of those at risk from the improper use of prescription drugs, and the treatment of those who have succumbed to such use. Prescription drug abuse is rampant in all areas of our country, particularly among the young people, causing untold misery and harm. The White House drug policy office estimates that such abuse rose seventeen percent from 2001 to 2005. That office reports that currently there are more new abusers of prescription drugs than users of any illicit drugs. As recently reported, “Young people mistakenly believe that prescription drugs are safer than street drugs. . . but accidental prescription drug deaths are rising and students who abuse pills are more likely to drive fast, binge-drink and engage in other dangerous behaviors.” Carla K. Johnson, Arrest Puts Spotlight on Prescription Drug Abuse, The Roanoke Times, July 6, 2007, at 4A. It has been estimated that there are more than 6.4 million prescription drug abusers in the United States.(11)

Fast-forward eleven years, and the opioid crisis—which commenced with pharmaceutical companies manufacturing and marketing opioids well beyond their legitimate demand—and we have a nation now addicted to drugs, with additional supplies flowing from Mexico and China. The origin of this crisis is not just the drug companies; it starts with the individuals who ran the drug companies, placing revenue generation ahead of medical need—perhaps because bonus structures and stock options made it personally advantageous.(12)

Today, legislators on Capitol Hill grouse about the cost of our healthcare system and debate what level of benefits should be reduced. Yet, few, if any, lawmakers focus on what should be a front-end question: how much money is being wasted through fraud and abuse? Few, if any lawmakers are even contemplating a second question: how much money is spent to treat injuries and illnesses attributable to drugs that should never have been taken? And few, if any, have contemplated how to change behavior by holding individuals accountable. And of course, few, if any, legislators have contemplated making drug companies pay for wide dissemination of honest information about their products as one Federal Judge in the Western District of Virginia contemplated over a decade ago.

At the end of the day, if there is a perception that only a legal fiction will be caught holding the bag (albeit a fiction impossible to imprison), corporations—and those individuals that control their conduct—will view civil and even criminal sanctions as simply the price for a license to break the law. And to company insiders—that is to say, the shareholders, officers and Directors—paying this fee for the license to break the law may be worth it if the analysis was simply a matter of dollars and cents.

In 2012, when Pfizer paid $2.3 billion to settle unlawful marketing claims involving a number of its products, it was a small price to pay for the right to engage in a history of conduct that generated a revenue stream in excess of $100 billion.(13) Moreover, it was a small price to pay for the right to poison the market for honest medical information and thus establish a standard of care that would generate a revenue stream in the years to come. Put simply, when companies engage in pervasive misbranding of their products over a period of years, they disseminate misinformation that then becomes the standard of care. While that standard may not be evidence based, it is still hard to undo. Hence, paying a mere dollar fine will not reset or correct the market for honest medical information; and so manufactures get the continued benefit of a standard of care which may encourage use of a product even though it is potentially harmful or not otherwise medically necessary.

It is not just a problem endemic to the pharmaceutical industry. An array of corporations routinely game the system seemingly calculating the penalties for non-compliance. Publicly traded big box stores routinely pollute our navigable waterways with runoffs from parking lots that aggregate toxic hydrocarbons from leaky vehicles. Similarly, manufacturing plants have created a legacy—and continue to do so—of groundwater contamination that will for centuries prevent the safe enjoyment of our aquifers and tributaries. They do so because the cost of preventing the harm may well exceed the fine.

The externalities of corporate greed are not only imposed on consumers. Labor lawyer, Jon Karmel, in his recent book, Dying to Work,(14) raises awareness of unsafe working conditions that have resulted in death and/or injury to workers. Karmel traveled the country to interview victims and their families and his book highlights how corporations have simply not placed a premium on protecting their workers from harm. Unfortunately, our laws make it too easy for employers to game out the penalty for unsafe workplaces. Workers compensation systems designed to provide injured workers with quick relief also cap liability by preventing direct causes of action for significant actual and punitive damages. There is no shortage of reports of coal miners toiling in unsafe mines replete with regulatory derelictions, who have lost life and/or limb in pursuit of company profit.(15) Yet, compensation systems cap the employer’s economic exposure and—again—at the end of the day, few, if any, individuals are held personally accountable.(16) For the corporation, the fix or preventative measures are often considered more expensive than the penalty.

Over the past year, the nation has come to realize what many have known as true for some time; that discrimination based on class, race, gender, and national origin festers in our workplaces. There may be few, if any, visible cross burnings in this century, but the internet and cyberspace are overflowing with evidence that the most vulgar forms of racism and gender discrimination are thriving even in the 21st century. Perhaps, some had thought, that the civil rights legislation of the 1960s struck a blow to discrimination, causing its demise. Although we sing the praises of this legislation, it too caps liability and limits the rights of the aggrieved. Consider Title VII of the 1964 civil rights act(17)—that statute requires that claims of discrimination be brought within six months.(18) Punitive damages are capped, and the courts have impeded plaintiffs from seeking redress on a class basis for wrongful conduct.(19) Other than damage to brand and reputation, employers can easily calculate the fee for the license to discriminate. Before the #MeToo movement, which now seemingly causes consumers to factor in a company’s compliance with laws proscribing discrimination in evaluating the integrity of a brand, derelictions of employment laws had less severe consequences for corporate wrongdoers. For years, Wal-Mart battled claims of pervasive gender discrimination without any significant impact on its brand. (20)

Against this backdrop, the regulators and those enforcing compliance routinely tout million, multi-million, and even billion-dollar settlements as evidence of efforts that change corporate behavior. But do these settlements really change behavior? The answer is no. If our laws are structured to allow corporate defendants to game out the penalty, corporate insiders will gauge the cost of noncompliance as the cost of doing business. Penalties that appear to be massive may be minimal when compared to the profits the corporation secured through wrongful conduct. If corporations can game out the price of non-compliance and individual wrongdoers can hide behind the corporate cloak and continue to collect bonuses based on unlawful corporate conduct, business will continue as usual. And this is the lesson for both regulators and lawmakers.

Reuben A. Guttman is a partner at Guttman, Buschner & Brooks, PLLC and has represented whistleblowers in cases against the pharmaceutical industry which have returned more than $5 Billion to the Federal and State governments. He is an Adjunct Professor at Emory Law School and a Senior Fellow at the Center for Advocacy and Dispute Resolution. He is also a member of the Board of the American Constitution Society. He extends thanks to his colleagues Traci Buchner, Justin Brooks, Liz Shofner, Caroline Poplin, MD, Dan Guttman, Paul Zwier, Richard Harpootlian, the Honorable Nancy Gertner, and Joy Bernstein, who have been a constant sounding board for these issues.

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  1. See “Individual Accountability for Corporate Wrongdoing,”U.S. Department of Justice (September 9, 2015) https://www.justice.gov/archives/dag/file/769036/download; Rod J. Rosenstein, Deputy Attorney General, Keynote Address at the NYU Program on Corporate Compliance & Enforcement (October 6, 2017) https://wp.nyu.edu/compliance_enforcement/2017/10/06/nyu-program-on-corporate-compliance-enforcement- keynote-address-october-6-2017/.
  2. “Deepwater Horizon,” U.S. Department of Justice: Environment and Natural Resources Division, https://www.justice.gov/enrd/deepwater-horizon.
  3. See Aaron Smith, “Madoff Arrives at N.C. Prison”, CNN:Money (stating Bernie Madoff, release date November 14, 2139, is inmate 61727-054 at the Butner Medium Security Prison) (July 14, 2009 2:19 PM) (http://money.cnn.com/2009/07/14/news/economy/madoff_prison_transfer/; Marcia Heroux Pounds, “Dennis Kozlowski, former Tyco CEO who went to prison, back in M&A business”, Sun-Sentinel (stating Tyco CEO Dennis Kozlowski spent six and one half years in prison and was released in 2015) (Jan. 11, 2017 6:26 PM) http://www.sun-sentinel.com/business/fl-dennis-kozlowski-life-after-prison-20170111-story.html;”Bernie Ebbers’ wife files for divorce,” NewsOK (Worldcom CEO, Bernard J Ebbers, release date July 4, 2028, is inmate number 56022-054 at the FMC Forth Worth Federal Prison) (April 23, 2008 4:48 AM) http://newsok.com/article/3233823; Rufus-Jenny Triplett, “Prisonworld View-Corporate CEO Gets Skimmed Sentence,” Dawah Interational, LLC (stating Former Enron CEO, Jeffrey K Skilling, release date February 21, 2019, is inmate number 29296-179 at the FPC Montgomery Federal Prison Camp) (May,15, 2015) http://prisonworldblogtalk.com/2015/05/15/prisonworld-view-corporate-ceo-gets-skimmed-sentence/.
  4. See, e.g., “Criminal Resolution”, U.S. Department of Justice: Glaxosmithkline Settlement Fact Sheet, https://www.justice.gov/sites/default/files/usao-ma/legacy/2012/10/09/Settlement_Fact_Sheet.pdf ; “Pfizer to Pay $2.3 Billion for Fraudulent Marketing,” U.S. Department of Justice: Justice Department Announces Largest Health Care Fraud Settlement in its History, https://www.justice.gov/opa/pr/justice-department- announces-largest-health-care-fraud-settlement-its-history; Megan Stride, “Wyeth Paying $491 M to End Criminal, Civil Rapamune Cases”, Law360, https://www.law360.com/articles/461203/wyeth-paying-491m-to- end-criminal-civil-rapamune-cases
  5. See “Abbott Laboratories Sentenced for Misbranding Drug”, U.S. Department of Justice (October 2, 2012) https://www.justice.gov/opa/pr/abbott-laboratories-sentenced-misbranding-drug.
  6. See “Wyeth Pharmaceuticals Agrees To Pay $490.0 Million For Marketing The Prescription Drug Rapamune For Unapproved Uses”, U.S. Department of Justice (July 30, 2012) https://www.justice.gov/usao-wdok/pr/wyeth-pharmaceuticals-agrees-pay-4909-million-marketing-prescription-drug-rapamune.
  7. See Erica Goode, “3 Schizophrenia Drugs May Raise Diabetes Risk, Study Says”, The New York Times (August 25, 2003) https://mobile.nytimes.com/2003/08/25/us/3-schizophrenia-drugs-may-raise- diabetes-risk-study-says.html.
  8. Opiod Crisis Fast Facts, CNN: Health, (March 2, 2018 9:25 AM) https://www.cnn.com/2017/09/18/health/opioid-crisis-fast-facts/index.html.
  9. M. Scott Brauer, “Inside a Killer Drug Epidemic: A Look at America’s Opioid Crisis, (Jan. 6, 2017) (according to the New York Times, “the opioid epidemic killed more than 33,000 people in 2015) https://www.nytimes.com/2017/01/06/us/opioid-crisis-epidemic.html.
  10. United States v. Purdue Frederick Co., 963 F.Supp.2d 561 (W.D.Va. 2013).
  11. Id.
  12. See Reuters, U.S. Senator Sanders Introducing Bill Targeting Opioid Manufacturers, VOA: USA, (April 17, 2018 10:24 AM) (stating the idea of imposing harsher criminal penalties on drug company executives has been championed by Vermont Senator Bernie Sanders who has proposed the Opioid Crisis Accountability Act of 2018) https://www.voanews.com/a/us-senator-sanders-bill-opioids-manufacturers/4351732.html
  13. See Gardiner Harris, “Pfizer Pays $2.3 Billion to Settle Marketing Case”, The New York Times (September 2, 2009) https://www.nytimes.com/2009/09/03/business/03health.html.
  14. Karmel, Jon, Dying to Work, Cornell University Press (2017)
  15. See, e.g., Dana Ford, “Don Blankenship, ex-Massey Energy CEO, sentenced to a year in prison,” CNN, (April 6, 2016 11:29 PM) (explaining it was the explosion at Massey Energy’s Upper Big Branch mine which killed 29 people. Massey CEO Don Blankenship was ultimately convicted of a misdemeanor with regard to the skirting of safety regulations. He served one year in prison and is now a candidate for the United States Senate in West Virginia) https://www.cnn.com/2016/04/06/us/former-massey-energy-ceo-don- blankenship-sentenced/index.html; Nicole Gaudiano, “Don Blankenship, convicted ex-Massey CEO now Senate candidate, calls for more mine safety,” USAToday: OnPolitics, (April 4, 2018 6:43 PM) https://www.usatoday.com/story/news/politics/onpolitics/2018/04/04/don-blankenship-convicted-massey-ceo- senate-candidate/487230002/.
  16. See “Dying to Work: Death and Injury in the American Workplace”, Cornell University Press (December 2017).
  17. 42 U.S.C § 2000e (1964).
  18. Dov Ohrenstein, “Limitation Periods–What’s the Limit,” Healys LLP, http://www.radcliffechambers.com/wp-content/uploads/2010/02/Limitation_seminar_-_Dov_Ohrenstein.pdf (Explaining in comparison to claims for contracts and most torts, six months is a very limited statute of limitations. Undoubtedly many claims die on the vine because they were not brought in time)
  19. See infra note 18.
  20. Wal-Mart Stores, Inc. v. Dukes, et al., 564 U.S. 338 (2011) (explaining the case is one of several cases impacting the ability to certify class action discrimination cases).

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Democracy Misconceived

By William Nettles and Reuben Guttman

There is a misconception among many that democracy and freedom are synonymous and that freedom, in turn, equates to the right to do and say anything.

The White House recently issued an Executive Order and a Memorandum setting a course toward deregulation; this misconception may explain why initiation of plans for the scrapping of rules – actually promulgated pursuant to laws passed by Congress — may seem as American as the Boston Tea Party. Yet, merely having the optics of consistency with American values does not mean that the President’s plans are – in truth – consistent with our sacred rule of law.

Read the full article here.

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Marijuana, Immigration And Private Prisons

On August 18, 2016, then Deputy Attorney General, Sally Yates, issued a memorandum directing the Bureau of Prisons (BOP) to begin to reduce – with an eye toward eliminating – the use of private prisons. Yates directed “that, as each contract reaches the end of its term, the Bureau should either decline to renew the contract or substantially reduce its scope in a manner consistent with law and the overall declines in the Bureau’s inmate population.”

Of course, when the Deputy Attorney General wrote that memo, DOJ was not in the mode of targeting enforcement of Marijuana laws or rounding up “illegal immigrants.”

Read the entire article here.

 

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A National Education on Hostile Work Environment

The US presidential election campaign has created a national dialogue about what it takes to create a hostile work environment and could change judges’ perspectives on the issue, writes trial lawyer Reuben Guttman.

Title VII of the 1964 Civil Rights Act generally proscribes employment discrimination based on an individual’s “race, color, religion, sex, or national origin.” The breadth of the law’s proscriptions, the burdens of proof and the facts needed to prove a violation have, over the years, been the subject of much litigation.

Twenty two years after Title VII’s passage, the United States Supreme Court issued its opinion in Meritor Savings v. Vinson, 477 US 57 (1986). In Meritor, the Court established a cause of action under Title VII for gender discrimination where an employee has been subject to a “hostile work environment.” In issuing its Opinion, the Court quoted the decision of the United States Court of Appeals in Henson v. Dundee, 682 F.2d 897, 902 (11th Cir. 1982):“Sexual harassment which creates a hostile or offensive environment for members of one sex is every bit the arbitrary barrier to sexual equality in the workplace that racial harassment is to racial equality. Surely, a requirement that a man or a woman run a gauntlet of sexual abuse in return for the privilege of being allowed to work and make a living can be as demeaning and disconcerting as the harshest of racial epithets.” In Meritor, the Court noted that the alleged conduct was “not only pervasive but also criminal conduct of the most serious nature.”

While Meritor established the doctrine of “hostile work environment,” it failed to establish a bright line test for liability and even today’s guidance by the Equal Employment Opportunity Commission – the Agency charged with enforcing Title VII – is ambiguous. The guidance states that “petty slights, annoyances, and isolated incidents (unless extremely serious) will not rise to the level of illegality.” The guidance also says that “to be unlawful, the conduct must create a work environment that would be intimidating, hostile, or offensive to reasonable people.”

If this guidance is ambiguous, think about its application when juxtaposed against the pleading standards established by the Supreme Court in Bell Atlantic v. Twombly, 550 US 554 (2007) and Ashcroft v. Iqbal, 556 US 662 (2009). Those cases allow a trial court judge to look at the facts and determine whether a claim is “plausible.” In Iqbal, the Court explained that in determining plausibility, the “reviewing court” may draw upon its “judicial experience” and “common sense.” The Court also explained that “the plausibility standard is not akin to a “probability standard,” but it asks for more than a sheer possibility that a defendant has acted unlawfully.”

Common sense? The plausibility standard is subjective and undoubtedly may be influenced by a judge’s experiences and personal environment. And yet, as subjective as the standard is, it is the standard that allows judge’s to be the gatekeepers for the procession of claims of discrimination to proceed to discovery and perhaps trial.

Over the past several weeks neither the courts not Congress have issued an opinion or passed any law changing the way hostile work environment cases are viewed. Yet, it may be that events outside of the court room and the legislative arena have changed forever our perspective on these claims and perhaps – maybe perhaps – provided judges with a new perspective when evaluating the “plausibility” of a claim.

The release of a tape of presidential candidate Donald Trump extolling his sexual exploits, a dialogue about this same subject during a Presidential debate watched by 80 million people and news reports of women who were allegedly groped or kissed by Mr Trump has led to a national dialogue about sexual harassment. Weighing in on the subject, First Lady Michelle Obama captured the attention of the nation when she told New Hampshire voters: “And I have to tell you that I can’t stop thinking about this. It has shaken me to my core in a way that I couldn’t have predicted.”
Whether each allegation is true, the 2016 election will go down to the wire with a national dialogue about how much – or rather how little – it takes to poison an environment with hostile language or unwanted contact. It is a dialogue tantamount to an education campaign given by alleged victims, commentators and advocacy group leaders. For those judges who are tuned into their TV sets, perhaps their perspective on the plausibility of a claim of hostile work environment will forever be changed.

Reuben Guttman is a trial lawyer and one of the founding partners at Washington, DC-based firm Guttman, Buschner & Brooks PLLC.