Class Action

Expediting FDA Review: Good for Corporations; Bad for Consumers

October 24, 2011 | by Broussard, David & Moroux

Last week, the Senate proposed a bill purporting to accelerate the FDA’s review times for medical devices. The proposed legislation would relax current conflict of interest rules that apply to FDA advisers, reversing an existing law. Currently, federal law prohibits an expert with a financial stake in medical device companies or competitors from serving on an FDA advisory panel.

Congress implemented these conflict of interest rules to remove corporate self-interest from FDA advisory panels. But since the implementation of these rules, critics have alleged that the current law prevents the release of new medical devices to consumers. The new legislation could benefit consumers by shortening the waiting period for cutting-edge medical devices.

This proposed legislation could also have unintended effects. Most notably, the legislation could also increase the number of dangerous medical devices on the market, endangering the health and safety of patients as biased FDA advisors could lead to the release of medical devices without adequate testing or warning to consumers.

Supreme Court Tackles Employment Discrimination

October 17, 2011 | by Broussard, David & Moroux

The Supreme Court is back in session with a full docket for the month of October. Early this month, the Court confronted the controversial question of whether the American with Disabilities Act (ADA) applied to a school teacher at a Lutheran school. The Court heard oral arguments this week, but a decision is not expected for months.

In the case, Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, a parochial school teacher claimed that she was fired out of retaliation for threatening to file a formal complaint with the EEOC after her school allegedly discriminated against her on the basis of an illness.

Congress has enacted several statutes that prohibit employment discrimination on the basis of race, sex, nationality, religion and disability. Ordinarily, the ADA prohibits employment discrimination on the basis of disability or illness. However, in light of the First Amendment, courts have carved out a ministerial exemption for church employees who carry out religious duties.

Lake Charles Refinery Crackdown

October 10, 2011 | by Broussard, David & Moroux

The Department of Justice (DOJ) filed two felony charges in a bill of information in a Lafayette federal district court against Pelican Refining Company for knowingly violating its permit issued by the Clean Air Act at its refinery located in Lake Charles.

The U.S. Attorney’s Office alleges that from 2005 to 2007, the company knowingly released pollutants into the environment. According to the DOJ, a federal investigation revealed the refinery’s substandard operating conditions, including the intentional release of hydrogen sulfide into the air, the storage of crude oil in tanks in need of repair and the use of plastic children’s swimming pools to control petroleum leaks.

The Clean Air Act is a federal statute designed to prevent and control environmental contamination through the creation of emissions standards, regulations and permit requirements. With Louisiana being home to more than 30 operating refineries, environmental contamination is a serious concern in the state.

Fired for Facebook

September 6, 2011 | by Broussard, David & Moroux

This year, the National Relations Board (NLRB) received more than one hundred charges filed by employees who were fired for an online comment or post about working conditions, according to an analysis released by the U.S. Chamber of Commerce. The recent spike in complaints raises a novel question: Is it lawful for an employer to terminate an employee for posting negative comments about their employment on social media?

The NLRB is an independent federal government organization that investigates and remedies unfair labor practices. The NLRB protects the rights of employees to unite together to improve their working conditions, with or without a union. In the context of social media, legal issues arise when an employee posts a comment about his working conditions or wages on a public online forum such as Facebook or Twitter.

The NLRB is now considering whether federal law protects employees’ rights to post these comments about their working conditions online. If the NLRB determines that such activity is protected under federal labor law, employers will no longer be able to terminate employees who post critical comments about their working conditions online. The NLRB is expected to offer employers guidance about this issue later this year.

Until then, it is important for employees to follow company guidelines and to understand their legal rights. If you believe that your workers’ rights have been violated by your employer or union, you should not hesitate to contact an experienced attorney. For questions, contact Broussard, David & Moroux at 1-888-337-2323 (toll free) or 337-233-2323 (local).

Pearl River Toxic Water Exposure?

August 29, 2011 | by Broussard, David & Moroux

A recent untreated wastewater spill in the Pearl River killed thousands of fish. State officials are not certain how the contamination will impact the surrounding community’s drinking water; however, some officials are optimistic that the damage will not affect citizens because the Pearl River is not a source of drinking water for neighboring communities.

Nevertheless, the spill highlights the need to ensure corporations take adequate safety precautions when handling hazardous toxins in our communities. Groundwater and soil contamination pose serious long-term health consequences in affected communities. The exposure of even a small amount of a toxin can lead to cancer, neurological disorders, liver and kidney damage, immune system problems, and birth defects.

High Court Orders Tobacco Companies to Pay $270 Million

August 1, 2011 | by Broussard, David & Moroux

Tobacco companies will now have to pay $270 million for the implementation of a smoking cessation program after the U.S. Supreme Court reinstated a Louisiana court order that was unilaterally blocked by Justice Scalia last September. The Court also denied the tobacco companies’ appeal.

Louisiana smokers first filed a class action lawsuit against tobacco companies in 1996. A jury ruled in favor of the class, and a Louisiana court ordered tobacco companies to make multi-million dollar payments toward programs to help smokers quit smoking.

Although Supreme Court justices have the power to block another court’s order, the justices rarely use this power. In blocking the order, Justice Scalia cited his concern for the rising abuse of class action lawsuits in state courts. The Court recently addressed this same concern in Dukes v. Wal-Mart, rejecting a class of 1.5 million female Wal-Mart workers alleging sex discrimination.

High Court sides with Wal-Mart in Class Action

July 18, 2011 | by Broussard, David & Moroux

The United States Supreme Court awarded Wal-Mart a a victory recently when the Court rejected a class of 1.5 million workers alleging sex discrimination against the company. The Court held that the workers failed to prove “questions of law or fact common to the class” under Federal Rule of Civil Procedure 23.

The female workers alleged that Wal-Mart’s corporate culture institutionalized bias against female employees in the workplace. The workers asserted that this institutional bias made every female worker a victim of sex discrimination. The Court declined to address the merits of the plaintiffs’ discrimination claims against Wal-Mart.

The Federal Rules of Civil Procedure govern civil lawsuits in United States federal courts. Rule 23 sets the requirements and procedures for class action litigation. In arriving at its holding, the Court stressed Rule 23’s “commonality” requirement, a mandate that all members of a class must have a common legal claim. The opinion stated that the Wal-Mart workers’ claims encompassed “literally millions of employment decisions at once,” requiring “significant proof that Wal-Mart operated under a general policy of discrimination,” which the class failed to show.

Baycol Class Action

July 5, 2011 | by Broussard, David & Moroux

The U.S. Supreme Court revived a West Virginian state-class action lawsuit against Bayer Pharmaceuticals, the manufacturer of the cholesterol-lowering drug Baycol. The Supreme Court held that a Minnesota federal court exceeded its authority under the Anti-Injunction Act by banning a West Virginian state-class action suit. The federal court issued the injunction to prevent the West Virginian state-class action suit after it refused to certify a federal class of West Virginian plaintiffs. The federal court stated that the injunction prevented the West Virginian plaintiffs from relitigating already decided issues. The Supreme Court reversed the federal court’s ruling, holding that the Minnesota federal court had no authority to ban the state court suit because the state suit differed from the federal case and lacked a connection to the federal suit.

The Food and Drug Administration approved the cholesterol-lowering drug, Baycol, in the late 90s. Bayer quickly removed the drug from the market upon discovering its link to several dangerous side effects, including a fatal muscle breakdown disorder. When an individual is injured from prescribed medication, redress is sometimes available under a products liability claim.

New Iberia Plant Explosion and Absolute Liability

June 28, 2011 | by Broussard, David & Moroux

An explosion occurred from a chemical fire at a Multi-Chem Corp. chemical plant in New Iberia last week, causing neighboring residents to evacuate their homes. Police reported no injuries from the explosion or its aftermath. The explosion occurred in a facility that blends chemicals for oil field operations. The accident highlights the importance of safety and prudence by Louisiana proprietors who participate in ultrahazardous activities.

Louisiana law imposes absolute liability on individuals and corporations engaging in ultrahazardous activities. Louisiana Civil Code Article 667 holds a proprietor responsible for damage without regard to his knowledge or his exercise of reasonable care if the damage is caused by an ultrahazardous activity. The Code strictly limits the definition of an ultrahazardous activity to pile driving and blasting with explosives.

Under a theory of absolute liability, the injured party can recover by simply proving damages and causation, regardless of whether the proprietor was actually negligent. Therefore, absolute liability permits liability without negligence. Louisiana courts often attach absolute liability to the storage of toxic gas and crop dusting with airplanes.