Amicus Briefs
Dolin v. GSK
(7th Circuit,filed January 29, 2018): Arguing that the Court should
(7th Circuit,filed January 29, 2018): Arguing that the Court should reject the theory of innovator liability.
China Agritech Inc. v. Resh
(U.S., filed January 29, 2018): Arguing that the lower court improperly
(U.S., filed January 29, 2018): Arguing that the lower court improperly allowed stacked class actions and tolling of the applicable statute of limitations. The Court’s decision in American Pipe & Construction Co. v. Utah (1974), held that the commencement of a class action tolls the statute of limitations for all purported members of the class, but does not extend to a subsequent class action, after the denial of an initial class certification.
On June 11, 2018, the Court ruled in favor of ATRA’s position.
Juni v. Ford Motor Co.
(N.Y., Filed January 2018): Arguing that the Court should reject
(N.Y., Filed January 2018): Arguing that the Court should reject the “Every Exposure” and “Cumulative Exposure” theory in asbestos cases.
U.S. ex. rel. Campie v. Gilead Sciences, Inc.
(U.S., to be filed in January 2018): Urging the Court
(U.S., to be filed in January 2018): Urging the Court to grant the petition for cert to address the materiality requirements of the FCA in Universal Health Services v. U.S. ex rel. Escobar (2016).
Mayo v. Wisconsin Injured Patients and Families Compensation Fund
(Wis., Filed February 5, 2018): Arguing that the statutory limit
(Wis., Filed February 5, 2018): Arguing that the statutory limit on noneconomic damages in medical liability cases is constitutional.
Torres v. BNSF Railways
Torres v. BNSF Railway Company (New Mexico, filed February 12,
Torres v. BNSF Railway Company (New Mexico, filed February 12, 2018): Arguing against adoption of the theory of “take home exposure” in asbestos cases.
Quisenberry v. Borgwarner Morse Tec, Inc.
(Va., filed February 23, 2018): Arguing against adoption of the
(Va., filed February 23, 2018): Arguing against adoption of the theory of “take home exposure” in asbestos cases.
Bousamra v. Excela Health
(Pa., filed March 12, 2018): Arguing that the court should
(Pa., filed March 12, 2018): Arguing that the court should extend the attorney client privilege and work product doctrines to media consultants to allow companies to integrate legal and communications functions when needed. Responsibilities of lawyers have evolved to include advancing and protecting the legal rights of its employer or client in the media.
In re Hyundai and Kia Fuel Economy Litigation
(9th Circ., filed March 19, 2018): Arguing that settlement classes
(9th Circ., filed March 19, 2018): Arguing that settlement classes are different from litigation classes and a court can certify a class for settlement purposes that would not be appropriate for certification in contested litigation. This allows businesses to promptly and fairly resolve consumer disputes and encourages other fair consumer class settlements.
Gustavsen v. Alcon
(1st Circ., filed April 11, 2018): Arguing that the plaintiffs’
(1st Circ., filed April 11, 2018): Arguing that the plaintiffs’ speculative claim that they might have paid less for a medication if defendants had packaged it more efficiently does not describe a cognizable injury in fact, and therefore, they lack standing. Accepting plaintiffs’ theory would invite abusive class-action litigation.
O’Malley v. Hospitality Staffing Solutions
(Cal., filed April 10, 2018): Arguing that a residential maintenance
(Cal., filed April 10, 2018): Arguing that a residential maintenance worker, asked to check a guest room, does not have a duty to do more than knock on the door of that room, announce his presence, and then open the door and call out again to ascertain if anyone is in the room. Requiring more than that, would expand the scope and application of legal duty in negligence actions to a determination by the trier- of-fact based solely on “what may have been [in hindsight] reasonably foreseeable.”
Alcon Laboratories et al. v. Cottrell
(U.S., filed April 23, 2018): Arguing that the Court should
(U.S., filed April 23, 2018): Arguing that the Court should grant cert to clarify a clear circuit split. The Third Circuit’s novel theory of injury-by-inefficiency departs from fundamental principles of Article III standing, and if left undisturbed, the decision below will invite abusive class action litigation.
General Motors, LLC. V. Bavlsik
(U.S., filed March 26, 2018): Arguing that the lower court
(U.S., filed March 26, 2018): Arguing that the lower court improperly ordered a damages-only retrial when the trial record contained strong indications the jury had originally reached an impermissible “compromise verdict.” A compromise verdict requires retrial on all issues so as to not erode fundamental Seventh Amendment guarantees.
On May 15, 2018, the U.S. Supreme Court denied the petition for cert.
In Re Motor Liquidation
(U.S., filed January 17, 2017): Arguing that in a 363
(U.S., filed January 17, 2017): Arguing that in a 363 sale, the Due Process Clause does not require a seller to notify creditors of the basis for any potential claims against the debtor. By imposing a novel and unjustifiable notice requirement, the Court is hindering debtors’ ability to sell their assets quickly. And by threatening buyers with the loss of their “free and clear” protection, the decision deprives estates of a critical tool for maximizing creditor recovery. The decision will perpetuate the kind of abusive, lawyer-driven litigation that will offer little in the way of relief for the class members and will provide an enormous windfall for the plaintiffs’ lawyers who bring them.
Petition for cert was denied on April 24, 2017.
Chrysler v. Walden
(Ga., filed January 25, 2017): Arguing that the evidence and argument
(Ga., filed January 25, 2017): Arguing that the evidence and argument regarding the CEO’s compensation inflamed the jurors and improperly influenced their award. Also arguing that the plaintiffs incited the jury to punish the defendant.
The court granted cert on June 30, 2017.
International Paper Company, et. al. v. Kleen Products LLC, et. al.
(U.S., filed February 3, 2017): Arguing that it was improper
(U.S., filed February 3, 2017): Arguing that it was improper of the court to use a presumption of classwide antitrust injury based on alleged price increases that occurred in an unrepresentative price index. Also arguing that the Court should grant review to clarify when presumptions may be applied in favor of class certification.
Hyundai Motor America v. Hutton
(Filed February 6, 2017): Arguing that the court’s lax approach
(Filed February 6, 2017): Arguing that the court’s lax approach to excusing jurors violated Mississippi laws. Courts must follow the statutory procedures and standards in order to ensure proper functioning of the judicial system and fairness to litigants.
BNSF Railway v. Tyrrell
Arguing that the Montana Supreme Court improperly applied the Daimler
Arguing that the Montana Supreme Court improperly applied the Daimler personal jurisdiction requirements, which state that a “foreign corporation” is subject to jurisdiction only in states in which it is incorporated and where it has its principal place of business. Also argued that the Montana Supreme Court has repeatedly defied the decisions of the US Supreme Court and reintroduced the unfairness and uncertainty the US Supreme Court sought to eliminate.
Status: On May 30, 2017, the US Supreme Court ruled in favora of ATRA’s amicus brief. The Court held that a state court may exercise jurisdiction over out-of-state corporations when their “affiliations with the State are so ‘continuous and systematic’ as to render them essentially at home in the forum state.” BNSF was not incorporated or headquartered in Montana and its activity there was not “so substantial and of such a nature as to render the corporation at home in that State.”
Bristol-Myers Squibb v. The Super. Ct. of S.F. Cnty.
(U.S., filed March 8, 2017): Arguing that it is improper
(U.S., filed March 8, 2017): Arguing that it is improper for California courts to exercise specific personal jurisdiction over a company that has no connection whatsoever to California, except for the fact that its product is sold in the state.
On, June 19, 2017, the US Supreme Court agreed with ATRA’s amicus brief position and ruled that state courts do not have jurisdiction to hear their claims.
Conagra Brands Inc. v. Briseno et. al.
(U.S., filed May 12, 2017): Arguing that Rule 23 (b)(3)
(U.S., filed May 12, 2017): Arguing that Rule 23 (b)(3) authorizes class certification only where there is a practical method for class-wide adjudication that is consistent with due process and the “ascertainability” requirement flows directly from, and is compelled by, Rule 23 (b)(3). Also arguing that trial by affidavit and claims administrator mini-trials are not legitimate substitutes for proper ascertainability.
The Court denied the petition for cert on October 10, 2017.
Tyler v. American Optical Corporation
(2nd App. Dist. Ca., filed May 10, 2017): Arguing that
(2nd App. Dist. Ca., filed May 10, 2017): Arguing that in asbestos exposure cases that do not involve an asbestos-containing product, the traditional “but for” causation standard should be used in cases alleging a failure to protect someone from harm.
In re Lipitor
(4th Circuit, filed July 8, 2017): Arguing that under Daubert, reliable
(4th Circuit, filed July 8, 2017): Arguing that under Daubert, reliable science does not involve result-seeking statistical hacking nor does it presume that effects observable at one dose apply to all doses. Also arguing that MDL courts have the power to dismiss cases when plaintiffs fail to come forward with evidence on specific causation after being given a chance to do so.
On June 12, 2018, the Court ruled in favor of ATRA’s position.
Dziadek v. Charter Oak Fire Insurance Company
(8th Cir., Filed Feb. 21, 2017): Arguing that above-market prejudgment
(8th Cir., Filed Feb. 21, 2017): Arguing that above-market prejudgment interest should not be included in the denominator when calculating the ratio of punitive to compensatory damages. Above-market prejudgment interest overstates the actual harm suffered by the plaintiff and already serves a punitive function. If the Court concludes that some amount of prejudgment interest should be included in the denominator of the ratio, it should use a market rate for determining the amount and add the balance of the prejudgment interest- the effect of which is entirely punitive-to the numerator.
On August 15, 2017, the court ruled against ATRA’s position and affirmed the award of punitive damages.
Mayo v. Wisconsin Injured Patients and Families Compensation Fund
(Wis., Filed August 11, 2017): Arguing that the statutory limit
(Wis., Filed August 11, 2017): Arguing that the statutory limit on noneconomic damages in medical liability cases is constitutional.
Rafferty v. Merck
(MA., filed August 25, 2017): Arguing that the Massachusetts Supreme
(MA., filed August 25, 2017): Arguing that the Massachusetts Supreme Court should reject the theory of innovator liability.
On March 16, 2018, the Massachusetts Supreme Court disagreed with ATRA’s position and adopted the theory of innovator liability.
Chrysler Group v. Walden
(Ga., filed August 31, 2017): Arguing the lower court erred
(Ga., filed August 31, 2017): Arguing the lower court erred by admitting CEO pay evidence because it creates extreme unfair prejudice and provokes a jury response based on passion and prejudice. Also, arguing that considering the damages award only in isolation prevents a meaningful analysis for excursiveness.
Status: On March 15, 2018, the court disagreed with ATRA’s position and affirmed the punitive damages award.
In Re New York City Asbestos Litigation
(NY, filed October 6, 2017): Arguing that if the court
(NY, filed October 6, 2017): Arguing that if the court does not vacate the new CMO, it should, at a minimum, modify it to continue the longstanding deferral of punitive damages claims. It also should modify the CMO to require plaintiffs to file all eligible asbestos trust claims early in the discovery process and specify that trust claims materials are admissible.
On March 22, 2018, the court ruled against ATRA’s position and upheld the current Case Management Order.
R.J. Reynolds Tobacco Company v. Graham
Graham (U.S., filed October 19, 2017): Arguing that class action
Graham (U.S., filed October 19, 2017): Arguing that class action defendants have a due process right to a judicial determination of every element of a plaintiff’s claim. The “actually decided” precondition to preclusion protects this right in the context of multiple adjudications. Also arguing that the so-called “issue” classes coupled with novel applications of the preclusion doctrine can trample defendants’ due process rights.
On January 8, 2018, the U.S. Supreme Court denied cert.
Duffy v. CBS Corp.
(Md., filed November 11, 2017): Arguing that statutes of repose
(Md., filed November 11, 2017): Arguing that statutes of repose promote sound public policy by eliminating the specter of indefinite liability. Claims barred under a statute of repose cannot be revived by subsequent legislation and courts have routinely upheld the constitutionality of statutes of repose.
On March 28, 2018, the court disagreed with ATRA’s position and held that the state’s statute of repose for improvements to real property does not bar asbestos personal injury claims where the date of the plaintiff’s last exposure to asbestos-containing products occurred on or before June 30, 1970.
McNair v. Johnson & Johnson
(West Virginia, Filed December 14, 2017): Arguing that the court
(West Virginia, Filed December 14, 2017): Arguing that the court should reject the theory of innovator liability.
On May 11, 2018, the West Virginia Supreme Court ruled in favor of ATRA’s position and rejected the theory of innovator liability.
In Re Lipitor
(U.S. to be filed December 22, 2017): Urging the Court
(U.S. to be filed December 22, 2017): Urging the Court to grant the petition for cert and address whether, at the pleading stage, a compromise of a damages claim can be transformed into a “reverse payment” by focusing solely on the value transferred by the manufacturer to the patent challenger, without considering the value such a compromise provides to the manufacturer.
In Re Effexor
(U.S. to be filed December 22, 2017): Urging the Court
(U.S. to be filed December 22, 2017): Urging the Court to grant the petition for cert to address whether granting an exclusive license as part of a patent settlement can, by itself, represent a suspect “reverse payment.”
In re Zoloft Litigation
Arguing that an expert cannot premise a causation analysis on a single statistically-significant association when the larger body of epidemiological studies fails to find any such association.
(3rd Cir., filed October 18, 2016): Arguing that an expert cannot premise a causation analysis on a single statistically-significant association when the larger body of epidemiological studies fails to find any such association. Also, arguing that an expert cannot massage the data with after-the-fact analyses to create associations that were not found by the statistical methodologies originally selected by the scientists who performed the study. Trial court judges must act as gatekeepers over the reliability of expert testimony, carefully evaluating whether such testimony is based on sound scientific principles or is simply bought-and-paid for “junk science.”
Status: On June 2, 2017, the Third Circuit ruled in favor of ATRA’s position. The Court held that the lower court did not abuse its discretion when it excluded the expert witness’s testimony.
BNSF v. Tyrell
(US., filed October 28, 2016): Arguing that the Montana Supreme Court improperly applied the Daimler personal jurisdiction requirements, which state that a “foreign corporation” is subject to jurisdiction only in states in which it is incorporated and where it has its principal place of business.
(US., filed October 28, 2016): Arguing that the Montana Supreme Court improperly applied the Daimler personal jurisdiction requirements, which state that a “foreign corporation” is subject to jurisdiction only in states in which it is incorporated and where it has its principal place of business. Also argued that the Montana Supreme Court has repeatedly defied the decisions of the US Supreme Court and reintroduced the unfairness and uncertainty the US Supreme Court sought to eliminate.
Eike v. Allergan
Arguing that the plaintiffs’ speculative claim that they might have paid less for a medication if defendants had packaged it more efficiently does not describe a cognizable injury in fact, and therefore, they lack standing.
(7th Cir., filed October 18, 2016): Arguing that the plaintiffs’ speculative claim that they might have paid less for a medication if defendants had packaged it more efficiently does not describe a cognizable injury in fact, and therefore, they lack standing. Accepting plaintiffs’ theory would invite abusive class-action litigation. If plaintiffs’ novel standing theory were accepted, it would encourage lawyers to bring class-action suits over any business practice that could be portrayed as inefficient, based on conjecture that greater efficiency might have translated into savings for customers.
The Court ruled in favor of ATRA’s position on March 6, 2017. The Court reversed the grant of class certification and ordered the case to be dismissed for lack of standing.
Cottrell v. Alcon Laboratories
(3rd Cir., filed September 28, 2016): Arguing that the plaintiffs’
(3rd Cir., filed September 28, 2016): Arguing that the plaintiffs’ speculative claim that they might have paid less for a medication if defendants had packaged it more efficiently does not describe a cognizable injury in fact, and therefore, they lack standing. Accepting plaintiffs’ theory would invite abusive class-action litigation.
On October 18, 2017, the Court ruled against ATRA’s position and reversed the dismissal of the class action.
Walker v. Ford
Arguing that the“risk-benefit” test for strict product liability incorporates the “consumer expectation” test, such that the trial court reversibly erred by separately instructing the jury on the “consumer expectation” test.
(Col., filed September 27, 2016): Arguing that the“risk-benefit” test for strict product liability incorporates the “consumer expectation” test, such that the trial court reversibly erred by separately instructing the jury on the “consumer expectation” test. Colorado’s strict product liability law strikes a proper balance of interest by applying a risk-benefit analysis as the sole test for determining whether a product is “unreasonably dangerous.”
The Court ruled in favor of ATRA’s position on November 13, 2017.
Hyundai Motor America v. Applewhite
Arguing that under MS statute, evidence of a plaintiff’s nonuse of his seatbelt is admissible to refute a plaintiff’s causation theory and to understand the nature of a crash.
(Miss., filed September 19, 2016): Arguing that under MS statute, evidence of a plaintiff’s nonuse of his seatbelt is admissible to refute a plaintiff’s causation theory and to understand the nature of a crash. Also, arguing that it is improper for a circuit clerk to grant excuses for hardship outside the presence of a presiding judge or to grant medical excuses without proper document from a physician. Jurors may not be categorically excluded from serving on a jury.
Cerveny v. Aventis
(10th Cir., filed September 19, 2016): Arguing that courts must
(10th Cir., filed September 19, 2016): Arguing that courts must ask whether federal law authorized the defendant to do what the plaintiff claims state law required when assessing conflict preemption. Also argues that federal law authorizes a drug manufacturer to change its FDA-approved label only in limited circumstances.
On May 2, 2017, the Court ruled in favor of ATRA’s position and affirmed the lower court’s decision granting summary judgment. The Court held that the FDA’s rejection of a citizen petition containing arguments virtually identical to the plaintiffs’ constitutes “clear evidence” that the FDA would not have approved plaintiffs’ proposed warning.
Robinson v. Pfizer
Arguing that expansive venue laws has led to venue shopping and abuses in Missouri.
(8th. Cir., filed September 12, 2016): Arguing that expansive venue laws has led to venue shopping and abuses in Missouri. The Court must reign in the personal jurisdiction laws in Missouri in order to better protect defendants from lawsuits being filed in a state where there is no real connection to the defendant or plaintiff.
On May 1, 2017, the Court denied the appeal as moot.
State Farm Fire & Casualty Co. v. United States ex rel. Rigsby No. 15-513
(U.S., filed August 8, 2016): Arguing that the blatant violation
(U.S., filed August 8, 2016): Arguing that the blatant violation of the “seal” requirement by relator in a false claims case should result in a dismissal of the suit. ATRA filed a cert petition in this matter in 2015. Oral argument to be held in the coming term of the Supreme Court of the United States.
The Court ruled against ATRA’s position on December 6, 2016. Justice Kennedy held that automatic dismissal is not required for a seal violation. He also stated that whether dismissal is appropriate is an issue left in the sound discretion of the district court, and that the Court could explore the factors relevant to the exercise of that discretion in later cases.
In Re Dupont de Nemours and Company C-8 Litigation
(6th Cir., filed June 20, 2016): Arguing that the court improperly
(6th Cir., filed June 20, 2016): Arguing that the court improperly blended specific and general causation and that there is a vital distinction between a determination that a certain chemical can cause a disease in a general population, as opposed to a quantitative showing based upon an individual’s specific exposure and dose that the chemical did cause the disease in a given plaintiff.
Beason v. I.E. Miller
(Ok., filed June 6, 2016): Arguing that the statutory limits
(Ok., filed June 6, 2016): Arguing that the statutory limits on noneconomic damages are constitutional and does not violate a person’s right to a jury trial.
Davis v. Honeywell Inc.
(Cal., filed April 29, 2016): Arguing that the court should
(Cal., filed April 29, 2016): Arguing that the court should clarify what constitutes a “substantial factor” in contributing to the risk of developing an asbestos-related disease. Also urges the court to not adopt the “any exposure” theory.
Graham v. R.J. Reynolds Tobacco Co.
(11th Cir., filed April 22, 2016). Arguing that reliance on
(11th Cir., filed April 22, 2016). Arguing that reliance on general, non-specific verdicts to foreclose litigation of highly specific issues that may never have been resolved in a plaintiff’s favor constitutes a fundamental violation of the Due Process Clause of the Fourteenth Amendment to the United States Constitution.
Lindenberg v. Jackson National Life Insurance Co.
(Tenn., filed April 15, 2016): Arguing that Tennessee’s statutory limit
(Tenn., filed April 15, 2016): Arguing that Tennessee’s statutory limit on punitive damages is constitutional. The statutory limit does not infringe on a plaintiff’s right to trial by jury nor does it violate the separation of powers provisions in the Tennessee Constitution.
In Re Trinity Industries Inc.
Arguing that if allowed to stand, the decision below would produce deep regulatory uncertainty for manufacturers and other businesses that contract directly or indirectly with the Federal Government.
(5th Cir., filed March 28, 2016): Arguing that if allowed to stand, the decision below would produce deep regulatory uncertainty for manufacturers and other businesses that contract directly or indirectly with the Federal Government. Under the district court’s ruling, a manufacturer could receive authoritative assurances from the Federal Government that it is complying with federal regulations—and yet, when the manufacturer later certifies that it is in compliance, it can be found in violation of the False Claims Act (FCA) and subjected to hundreds of millions of dollars in damages. That distorts the FCA—which targets “false” claims to obtain money from the Government. A statement that a product is in compliance cannot be “false” when the Government itself has authoritatively decided that the product is in compliance.
On September 29, 2017, the Court ruled in favor of ATRA’s position and overturned the verdict against Trinity.
In Re Lipitor
(3rd Cir., filed March 28, 2016): Arguing that antitrust cases
(3rd Cir., filed March 28, 2016): Arguing that antitrust cases require pleadings to include sufficient facts to establish a plausible foundation for the allegations. Requiring the complaint include sufficient plausible facts will help avoid highly speculative antitrust lawsuits and unnecessary litigation costs.
On August, 21, 2017, the Third Circuit found that the district court had adopted a heightened pleading standard that exceeded Iqbal/Twombly. “Twombly and Iqbal require only plausibility, a standard not akin to a probability requirement. While Twombly and Iqbal require that factual allegations be enough to raise a right to relief above the speculative level, those cases make it clear that a claimant does not have to set out in detail the facts upon which he bases his claim.” (internal citations, alterations, and quotations omitted) “The alleged reverse payment here was ‘large’ enough to permit a plausible inference that Pfizer possessed the power to bring about an unjustified anticompetitive harm through its patents and had serious doubts about the ability of those patents to lawfully prevent competition.”
Microsoft v. Baker
(U.S., filed March 18, 2016): Arguing that a federal court
(U.S., filed March 18, 2016): Arguing that a federal court of appeals lacks jurisdiction to review an order denying class certification after the plaintiffs voluntarily dismiss their claims with prejudice. Plaintiffs should not be able to create appellate jurisdiction through the voluntary dismissal tactic.
On June 12, 2013, the U.S. Supreme Court ruled in favor of ATRA’s position and held that the lower court lacked jurisdiction under §1291 because the voluntary dismissal with prejudice did not result in a “final decision.”
Certainteed Corporation v. Fletcher
(Ga., filed in March of 2016): Arguing that manufacturers should
(Ga., filed in March of 2016): Arguing that manufacturers should not be held liable for negligence in asbestos cases involving take-home exposure.
Konstantin v. 630 Third Avenue Associates, et. al.
(New York, filed in February of 2016): Arguing that consolidation
(New York, filed in February of 2016): Arguing that consolidation of asbestos-based personal injury actions for trial violates CPLR 602(a) where the actions differ with respect to the worksites, occupations, products, durations of exposure, diseases, plaintiff health statuses, defendants, and legal theories at issue, and where the defendants are prejudiced by jury confusion and the mutual bolstering of each claim’s likelihood of success.
Exxon Mobil v. New Hampshire
(U.S. Supreme Court, filed February 22, 2016): Arguing that Exxon’s
(U.S. Supreme Court, filed February 22, 2016): Arguing that Exxon’s liability for selling MTBE-Oxygenated gasoline should be preempted by the federal Clean Air Act.
Patchett v. Lee
(Ind., filed February 19, 2016): Arguing that admissibility of “phantom
(Ind., filed February 19, 2016): Arguing that admissibility of “phantom damages” as evidence impedes the search for the truth and unnecessarily makes the trial process much less efficient. Also argues that even if the Court agrees the evidence of payment from a government insurer should be excluded, it should allow for an offset of the phantom damages against the plaintiff’s compensatory damages aware, or otherwise allow the defendant to introduce evidence of the provider’s willingness to discount charges for other patients.
Massachusetts v. Universal Health
(U.S. Supreme Court, filed January 26, 2016): Arguing that false
(U.S. Supreme Court, filed January 26, 2016): Arguing that false certification claims should not be subject to the False Claims Act and that the Supreme Court should help reign in the rampant FCA abuse occurring in the courts.
The Court remanded case back to lower court but held that “[T]he implied false certification theory can be a basis for liability, at least where two conditions are satisfied: first, the claim does not merely request payment, but also makes specific representations about the goods or services provided; and second, the defendant’s failure to disclose noncompliance with material statutory, regulatory or contractual requirements makes those representations half truths”. The Court went on to say that, “the False Claims Act liability for failing to disclose violations of legal requirements does not turn upon whether those requirements were expressly designated as conditions of payment. . . [N]ot every violation of such a requirement gives rise to liability.” The materiality requirement was intended to be “rigorous” and “demanding.” Case was decided on June 15, 2016.
In re Flonase
(3rd Circ., Filed November 2, 2016): Arguing that a State
(3rd Circ., Filed November 2, 2016): Arguing that a State cannot invoke sovereign immunity to avoid being bound by a class settlement and, instead, bring a new lawsuit making identical claims when the State was expressly included in the class, received notice of the action and settlement, and did not opt out.
On December 22, 2017, the Court ruled against ATRA’s position and affirmed the district court’s decision finding the Eleventh Amendment barred the suit. It found that GSK’s action in federal court to enjoin Louisiana’s state court lawsuit through enforcing the settlement agreement qualified as a lawsuit against the state (even through the state was acting as a plaintiff in that suit). The Third Circuit also found that a Class Action Fairness Act notice and the state’s failure to act on it was insufficient to waive Louisiana’s sovereign immunity because waiver requires a clear and unequivocal declaration that the state consents to suit.
Koninklijke Philips N.V., et. al. v. The State of Washington
(U.S., filed November 21, 2016): Arguing for the proper application
(U.S., filed November 21, 2016): Arguing for the proper application of “stream of commerce” personal jurisdiction.
Court denied the petition for cert on January 23, 2017.
TV Azteca v. Ruiz
(U.S., filed November 11, 2016): Arguing for the proper application
(U.S., filed November 11, 2016): Arguing for the proper application of personal jurisdiction.
Bristol-Myers Squibb Co. v. The Super. Ct. of S.F. Cnty.
(U.S., filed November 10, 2016): Arguing that it is improper
(U.S., filed November 10, 2016): Arguing that it is improper for California courts to exercise specific personal jurisdiction over a company that has no connection whatsoever to California, except for the fact that its product is sold in the state.
TH v. Novartis
(Cal., to be filed December 7, 2016): Arguing against the
On December 21, 2017, the California Supreme Court affirmed the lower court’s decision and adopted the theory of innovator liability.
Condon v. Advance Thermal Hydronics et. al.
(Superior Court of New Jersey, filed in November of 2015):
(Superior Court of New Jersey, filed in November of 2015): Arguing that defendants at trial should be able to allocate fault to settled defendants in the case, as opposed to the plaintiff being able to receive nearly a full recovery from settled defendants and then receive an additional, complete recovery from any judgment defendant.
State Farm Fire and Casualty Company v. Rigsby
(U.S. Supreme Court, filed in November of 2015): Arguing that
(U.S. Supreme Court, filed in November of 2015): Arguing that the U.S. Supreme Court should grant cert in the case to decide whether or not a seal violation in False Claims Act cases should require mandatory dismissal of a claim. Also urges the Court to clarify the scienter requirements under the federal FCA.
Tyson Foods, Inc. v. Bousaphakeo
(U.S. Supreme Court, filed in August of 2015): Arguing that
(U.S. Supreme Court, filed in August of 2015): Arguing that the Court needs to clarify the law and only allow class actions when all class members suffered a common injury and damages and they can be determined accurately and fairly. It was improper of the lower court to allow “common evidence” of classwide liability and damages when it was an extrapolation of a non-representative sample of the class. Arguing that the Court must reject a “trial by formula” and must consider a defendant’s right to litigate its statutory defenses to individual claims.
Spokeo v. Robins
(U.S. Supreme Court, filed in July of 2015): Arguing that
(U.S. Supreme Court, filed in July of 2015): Arguing that a bare violation of a federal statute does not confer Article III standing upon a plaintiff who suffers no concrete harm, and who therefore could not otherwise invoke the jurisdiction of a federal court.
Rains v. Stayton
(Ore., filed in July of 2015): Arguing that the state’s
(Ore., filed in July of 2015): Arguing that the state’s statutory limit on noneconomic damages is constitutional and does not infringe on a plaintiff’s right to a jury trial.
Bristol-Myers Squibb Co. v. The Super. Ct. of S.F. Cnty.
(Cal., filed June 2015): Arguing that it is improper for
(Cal., filed June 2015): Arguing that it is improper for California courts to exercise specific personal jurisdiction over a company that has no connection whatsoever to California, except for the fact that its product is sold in the state.
May v. Air & Liquid Systems, Inc.
(Md., filed in May of 2015): Arguing that a manufacturer
(Md., filed in May of 2015): Arguing that a manufacturer does not has a duty to warn with respect to asbestos-containing products manufactured, supplied, or placed in the stream of commerce by third-parties.
On December 18, 2015, the Court held that a company is not generally liable for asbestos-containing parts it does not manufacture or place into the stream of commerce, but recognize that narrow circumstances exist where a manufacturer can be liable for products it has not touched. A manufacturer will have a duty to warn under negligence and strict liability when (1) its product contains asbestos components, and no safer material is available; (2) asbestos is a critical part of the pump sold by the manufacturer; (3) periodic maintenance involving handling asbestos gaskets and packing is required; and (4) the manufacturer knows or should know the risks from exposure to asbestos. The case was remanded back to the lower court.
Scapa Dryer Fabrics v. Knight
(Ga., filed in May of 2015). Arguing that the “any
(Ga., filed in May of 2015). Arguing that the “any exposure theory” is not sufficient to be causative of mesothelioma.
Tyson Foods, Inc. v. Bousaphakeo
(U.S. Supreme Court, filed in April of 2015): Arguing that
(U.S. Supreme Court, filed in April of 2015): Arguing that the Court should grant cert in order to clarify the law and only allow class actions when all class members suffered a common injury and damages and they can be determined accurately and fairly. It was improper of the lower court to allow “common evidence” of classwide liability and damages when it was an extrapolation of a non-representative sample of the class. Arguing that the Court must reject a “trial by formula” and must consider a defendant’s right to litigate its statutory defenses to individual claims.
Lompe v. Sunridge
(U.S. Court of Appeals for the 10th Circuit, filed in
(U.S. Court of Appeals for the 10th Circuit, filed in April 2015). Arguing that it is improper to use a defendant’s wealth evidence in an unconstrained manner to inflate a punitive damages award. Also arguing that a judge must conduct a diligent post-trial evaluation of the punitive damages award in light of the nature of the conduct, the injuries, and the other factors recognized to place meaningful limits on a jury’s power to punish a civil defendant.
Kesner v. Superior Court and Haver v. BNSF Railrods
(Cal., filed in March of 2015): Arguing that the California
(Cal., filed in March of 2015): Arguing that the California Supreme Court should reject the theory of take-home exposure in asbestos cases.
In Re Longview Energy Co.
(Tex. Filed in January of 2015): Arguing that the statutory
(Tex. Filed in January of 2015): Arguing that the statutory limit on appeal bonds should apply per judgment, not per judgment per party.
Texas Supreme Court Vacated the Decision. Held that the award at issue constituted “disgorgement” rather than “damages.”
Rost v. Ford
(Penn., filed in January of 2015): Arguing that a plaintiff
(Penn., filed in January of 2015): Arguing that a plaintiff in an asbestos action cannot satisfy the burden of establishing substantial-factor causation by an expert’s ‘cumulative exposure’ theory that the expert concedes is simply an ‘any exposure’ theory by a different name. Also arguing that the Philadelphia Court of Common Pleas’ mandatory practice of consolidating unrelated asbestos cases—even where the defendants suffer severe prejudice as a result—is inconsistent with the Pennsylvania Rules of Civil Procedure and due process.
Court ruled against ATRA’s position on November 22, 2016.
In Re Urethane
(U.S. Supreme Court, filed in April of 2015): Arguing that
(U.S. Supreme Court, filed in April of 2015): Arguing that the Court must clarify the Rules Enabling Act and Rule 23 of the Federal Rules of Civil Procedure in order to ensure that they are applied consistently with longstanding Due Process principles. Arguing that the court erred in its use of “inferences,” or presumptions, of class-wide injury to justify certification of a class in an antitrust suit involving allegations of price-fixing. It was improper for the court to allow the use of sample evidence and statistical models to establish damages on a class-wide basis, even though the samples themselves demonstrated zero or negative damages for some transactions.
Case Settled February 26, 2016.
BP In Re Deepwater Horizon
(US Court of Appeals, 5th Circuit, filed in December 2014):
(US Court of Appeals, 5th Circuit, filed in December 2014): Arguing that claims administrators should be subject to the same standards of impartiality- enforced through either disqualification or disclosure rules- that apply to other adjudicators authorized by law to exercise discretion in resolving cases and controversies.
Case settled March 6, 2015
Nissan Motor Co. v. Maddox
(KY, filed in October 2014): Arguing that it is improper
(KY, filed in October 2014): Arguing that it is improper to award punitive damages to a plaintiff who was injured by a product that met government regulatory standards.
Court agreed with our brief and vacated punitive damages award in September of 2015.
Mobil Co. v. Johnson
(Fl. Distr. Ct. of Appeal of 4th Distr., filed October
(Fl. Distr. Ct. of Appeal of 4th Distr., filed October 2014): Arguing that in any toxic tort case, it is important to assess the dose received by the plaintiff, and then show that the dose received is sufficient to have caused the plaintiff’s condition. Simply showing exposure and a condition is not enough; there must be a reliable linkage.
Case settled January 8, 2016.
Bristol-Myers Squibb Co. v. The Super. Ct. of S.F. Cnty.
(Cal., filed September 2014): Arguing that it is improper for
(Cal., filed September 2014): Arguing that it is improper for California courts to exercise specific personal jurisdiction over a company that has no connection whatsoever to California, except for the fact that its product is sold in the state. Urged the state high court to grant cert and rehear the case.
Petition for cert granted on November 19, 2014.
Dummitt v. Crane Co.
(N.Y., filed September 2014): Arguing that, Defendants are only responsible for harms caused
(N.Y., filed September 2014): Arguing that, Defendants are only responsible for harms caused by their own products and do not have a duty to warn about products made or sold by third-parties.
The court held “that the manufacturer of a product has a duty to warn of the danger arising from the known and reasonably foreseeable use of its product in combination with a third-party product which, as a matter of design, mechanics or economic necessity, is necessary to enable the manufacturer’s product to function as intended.” Opinion released on June 28, 2016.
BP Exploration & Production Incorporated, et al. v. Lake Eugenie Land & Development, Incorporated, et al.,
No. 14-123 (U.S., filed September 2014): Urging the United States Supreme
No. 14-123 (U.S., filed September 2014): Urging the United States Supreme Court to hear BP’s appeal of critical class action issues stemming from the 2010 Deepwater oil spill in the Gulf of Mexico. Specifically arguing that the certification and management of the class violates Rule 23 of the Federal Rules of Civil Procedure and Article III of the Constitution.
Petition for cert denied on December 8, 2014.
Nevada v. Wyeth
(Nev., filed August 2014): Urging the Court to hear Wyeth’s
(Nev., filed August 2014): Urging the Court to hear Wyeth’s appeal of the lower court’s decision allowing for outside counsel to represent the state in a consumer protection lawsuit. Specifically arguing that the attorney general has not properly demonstrated that her office is unable to represent the state, as required by Nevada law, and that the hiring of outside counsel is not in the state’s best interest.
Case settled on November 3, 2014.
Nickerson v. Stonebridge Life Ins. Co.
(Cal., filed June 2014): Arguing that an award of attorney
(Cal., filed June 2014): Arguing that an award of attorney fees should not be included in the calculation of the ratio of punitive to compensatory damages required as part of a due process analysis.
Court ruled in favor of plaintiffs and held that attorney’s fee awards in bad faith cases can be included in the calculation of the ratio of punitive to compensatory damages, regardless of whether the fees are awarded by the trier of fact as part of its verdict or are determined by the trial court after the verdict has been rendered. Opinion released on June 9, 2016.
Antero Resources Corp. v. Strudley
(Co., filed June 2014): Arguing that Colorado courts should be
(Co., filed June 2014): Arguing that Colorado courts should be allowed to enter Lone Pine orders requiring plaintiffs in toxic tort and complicated products cases to make a prima facie showing of foundational issues like injury and exposure before proceeding.
On April 20, 2015, The court ruled in favor of the plaintiffs and held that Colorado’s Rules of Civil Procedure did not allow a trial court to issue a modified case management order (“lone pine” order) that required a plaintiff to present prima facie evidence in support of a claim before plaintiff could exercise its full rights of discovery.
Masters Group International v. Comerica Bank
(Mt., filed June 2014; ATRA’s name did not appear on
(Mt., filed June 2014; ATRA’s name did not appear on brief): Arguing that the state’s limit on punitive damages is constitutional.
On July 1, 2015, Court ruled Michigan law should have been applied to case, not Montana. Case sent back to Michigan for new trial.
Oleszkowicz v. Exxon Mobil Corp.
(La., filed both in support of review and on merits
(La., filed both in support of review and on merits in Feb. and May 2014): Arguing that res judicata does not permit a plaintiff who sought and did not recover punitive damages in a previous suit for fear of cancer to later recover punitive damages stemming from the same conduct when he brings another suit after developing cancer.
Court accepted review after receiving amicus brief and then agreed with the Exxon/ATRA position, overturning a punitive damages award of over $2.3 million in December 2014
Felix v. Ganley Chevrolet, Inc.
(Ohio, filed both in support of review and on merits
(Ohio, filed both in support of review and on merits in Nov. 2013 and Apr. 2014): Arguing that car purchasers whose contract included an invalid arbitration clause but who had no dispute with the dealer cannot each recover $200 in “discretionary” damages through a consumer class action.
Court ruled in favor of Ganley Chevrolet in August of 2015.
Allstate v. Jacobsen
(U.S., filed Mar. 2014): Urging the U.S. Supreme Court to
(U.S., filed Mar. 2014): Urging the U.S. Supreme Court to clarify that state class actions for monetary relief, however styled, must provide absent class members with notice and opt-out rights, and must guarantee defendants a full and fair opportunity to be heard on all available defenses.
Petition for Cert denied in May of 2014
GenOn Power Midwest v. Bell
(U.S., filed Mar. 2014): Urging the U.S. Supreme Court to grant
(U.S., filed Mar. 2014): Urging the U.S. Supreme Court to grant certiorari to consider reversing a Third Circuit ruling that allowed tort-based claims under state common law for emissions that EPA allows under site-specific permits pursuant to the Clean Air Act.
Petition for Cert denied in June of 2014.
Walston v. Boeing Co.
(Wash., filed Jan. 2014): Arguing caution against expansive interpretation of
(Wash., filed Jan. 2014): Arguing caution against expansive interpretation of deliberate intent exception to workers’ comp law.
Court ruled in favor of Boeing in September of 2014.
Alec L. v. McCarthy
(D.C. Cir., filed Jan. 2014): Arguing that the public trust
(D.C. Cir., filed Jan. 2014): Arguing that the public trust doctrine should not provide a means of regulating climate change through the courts.
Court ruled in favor of ATRA’s position in June of 2014. Plaintiff’s Petition for Cert denied in December of 2014.