Monday, September 26, 2011

MDL Hearing Today on Indiana Golf Course Company’s Class Action Lawsuit Alleging DuPont's New Herbicide Imprelis Causing Death Of Trees Nationwide

-- Multidistrict Litigation (MDL) Hearing to Determine Where Nationwide Class Action Cases Will Be Transferred

Logansport, IN, September 27, 2011 – Today, Indiana law firm of Starr, Austen & Miller, LLP, along with the other plaintiff’s firms that have filed class action lawsuits against E.I. du Pont de Nemours & Company ("DuPont") COMMA, charging that DUPONT'S herbicide Imprelis is causing widespread death among trees and other non-targeted vegetation across the country, will argue in a multidistrict litigation hearing to a federal panel as to where all of the cases should be transferred.

Multidistrict litigation is a procedure utilized in the federal court system to transfer to one federal judge all pending civil cases of a similar type filed throughout the United States. The decision whether cases should be transferred is made by a panel of seven federal judges appointed by the Chief Justice of the United States Supreme Court.

Generally, the transferee court (the MDL court) will set standing orders or pretrial orders informing the lawyers involved of the ground rules, deadlines and procedures the court expects the litigants to follow. Steering committees may be appointed to manage the substance of the litigation and the discovery of facts.

“This is a very important step in the litigation process," stated plaintiffs' counsel Mario Massillamany.  "The panel’s determination as to transferee court will in essence dictate which law firms will control the litigation as it moves forward."

Plaintiff R.N. Thompson Golf, LLC, owns and manages several golf courses in the greater Indianapolis area, including the Winding Ridge Golf Course and the Ironwood Gold Course. 

The lawsuit, entitled Shomo v. E.I. du Pont de Nemours & Company, was filed in federal court in Delaware, where DuPont has its headquarters.  The proposed class consists of all persons and entities who own property on which Imprelis was applied, own trees or other vegetation whose roots extend under property on which Imprelis was applied, or who own property to which Imprelis migrated between October 4, 2010, and the date of trial. 

Legal Resources for Impacted Property Owners

If you have suffered damage to trees on your property after the spraying of Imprelis, please visit   to learn more about the Imprelis class action lawsuit and report your experiences.

Trademark Notice

Imprelis is a registered trademark of DuPont De Nemours & Company and used solely for product identification and informational purposes. Plaintiffs' counsel are in no way affiliated with DuPont.


Mario Massillamany
Starr Austen & Miller, LLP

201 South Third Street
Logansport, Indiana 46947
Telephone: (574) 722-6676
Facsimile: (574) 753-3299

Tuesday, September 20, 2011

Merck & Co., Inc. v. Reynolds, 130 S. Ct. 1784 (2010)

The Supreme Court’s docket had some interesting securities cases in 2010 and 2011.  The most significant arguably was Merck & Co. Inc. v. Reynolds, 130 S. Ct. 1784 (2010), where the Supreme Court held that the two-year statute of limitations for Section 10(b) of the Securities Exchange Act and SEC Rule 10b-5 claims does not begin to run until a “reasonably diligent” plaintiff would have discovered the facts constituting the violation, and that such “facts” included the fact of scienter. 
The issue arose in an action by investors against the pharmaceutical manufacturer Merck & Co., brought under § 10(b) of the Securities Exchange Act of 1934. The investors alleged that Merck knowingly misrepresented the risks of heart attacks accompanying the use of Merck’s pain-killing drug, Vioxx. In particular, the investors cited Merck’s public statements presenting a hypothesis that troubling cardiovascular findings in a study comparing Vioxx to another anti-inflammatory drug might be due to the absence of a benefit conferred by the other drug, rather than a harm caused by Vioxx. 
Although the Court distinguished its stated standard from “inquiry notice”--it was not enough merely that a reasonably diligent plaintiff would have investigated further--the Court emphasized that facts tending to show a statement's falsity would not necessarily be sufficient to also show scienter, thereby potentially extending the period before the statute of limitations would begin to run.  As plaintiff’’ claims are often met with statute of limitations defenses, this case may prove vital for defeating defense motions for summary judgment. 

Tuesday, September 13, 2011

An interesting article on the U.S. Supreme Court ruling in AT&T Mobility v. Concepcion


By Kimberly Atkins
Staff Writer
Lawyers USA

            When the U.S. Supreme Court handed down its ruling in AT&T Mobility v. Concepcion, some predicted that the decision allowing the phone carrier to bar class proceedings in its consumer arbitration contracts would bring an end to consumer class actions altogether. 
            The justices sided with the business in that case, and soon after, they also denied class certification to more than a million current and former employees claiming job bias in Wal-Mart Stores v. Dukes.
            But don’t don black for the class action funeral just yet.
            “I’m not sure I will endorse the doom and gloom predictions,” said Robert Alt, deputy director of the Center for Legal and Judicial Studies at the Washington-based Heritage Foundation.  “I think meritorious classes will be able to go forward.” 
            Even those disappointed by the rulings say the multi-plaintiff proceedings will indeed live on.  They will just look very different now. 
            The class action “is not dead, but it certainly was injured by the Court this year,” said Suzette Malveaux, professor at the Columbus Law School at Catholic University and author of a casebook on class actions. 
            In fact, more class litigation will likely follow as lower courts try to flesh out the new requirement set out by Justice Antonin Scalia in Dukes: the “glue” standard, said Carter Phillips, managing partner of the Washington office of Sidley Austin.
            “That is a tough formulation to try to figure out,” Phillips said.

Dead cases, or limited to their facts?

            Critics of the recent rulings say that even if class actions are not dead, they have been severely wounded.
            “It was devastating to employees who are trying to pursue class actions against companies that large,” Malveaux said of the Dukes decision.
            But defenders and critics of the rulings said that in both cases the justices focused sharply on the facts presented, and that could mean a lesser impact on cases outside of the consumer fraud and employment contexts.
            “[The Dukes ruling] does really seem to be tailored to the facts” of the case, or at least “to employment claims in general,” Malveaux said.  “But it will be harder” for worker discrimination claims to be certified as a class, she added.
            Andrew Pincus, a partner in the Washington office of Mayer Brown, said that Concepcion also is “limited to its facts.”  And one of the biggest facts in the company’s favor was an arbitration agreement that seemed to go out of its way to provide consumers with a fair remedy.
            “It was an extremely consumer-friendly” arbitration agreement, Pincus said during a review of the Court’s term hosted by the National Chamber Litigation Center.  AT&T was “looking for a system that was fair, but that didn’t have the transactional costs that litigation has.”
            He noted that the costs of defending large class actions, particularly with the proliferation of e-discovery, are skyrocketing for defendants.
            But Peter D. Keisler, a partner in the Washington office of Sidley Austin, said that plaintiffs’ attorneys also bear huge costs that are not covered if they lose.
            “These cases do involve a lot of up-front money by attorneys,” Keisler said during a Supreme Court review hosted by the Washington Legal Foundation.  Cases like the Wal-Mart class action “are determined by intricate analysis of massive amounts of data.  That is an enormous effort for which there is no payoff until the end of the day.  It’s a high risk type situation if you are a [plaintiffs’] attorney.” 

Smaller, stickier classes
            For the plaintiffs in Dukes, the size of the purported class - roughly 1.5 million - was its downfall.  The Court held that the plaintiffs’ evidence didn’t demonstrate enough “glue” to hold the claims of gender-based discrimination together in a single action.
            That till leaves a lot of room for plaintiffs alleging similar claims, Pincus said.
            “We just don’t know how [smaller class claims] are going to be interpreted,” Pincus said.  “Wal-Mart is, I believe, the extreme example because of the size of the class and the… large number of decision makers involved.  Thee is real question as to how it’s going to be played out going forward.” 
            Patricia Ann Millett, who heads Akin Gump’s Supreme Court practice in Washington, said the facts in Dukes are very hard to apply widely. 
            “The Wal-Mart case was essentially a poster child for a bad class action,” Millett said.  “When you have things that are that far of the spectrum,” it’s hard to tell “what will happen in other cases.” 
            Going forward, plaintiffs’ attorneys will almost certainly be less ambitious than those in Dukes, seeking to certify smaller classes and sub-classes involving claimants with more similar claims, or more “glue,” as the Court put it.  But some say that could still work to undermine one purpose of class actions: seeking reform, particularly when the defendant is a conglomerate like Wal-Mart.
            “After this suit was filed in 2001, Wal-Mart starting changing its policies,” said Melissa Hart, associate professor and director of the Byron White Center for the Study of American Constitutional Law at the University of Colorado Law School in Boulder, Colo.  “That is one of the good consequences of class action litigation that you lose when you prevent employees from bringing these types of suits.” 
            Those denied class status also lose an important litigation tool, Hart said.
            “[Class proceedings] really open up discovery to plaintiffs so they can really see the decisions” companies make in hiring and promotions, Hart said.  “In an individual case, that type of discovery would not be available.” 
            But Richard Samp, WLF’s chief legal counsel, said class actions are often used as tools to bully corporations into settling.
            “The decision to certify a class is often outcome determinative” as to whether a company will seek to settle, Samp said.  Companies, fearing the litigation costs involved in defending class actions, almost uniformly settle once a class has been certified.
            “The plaintiffs’ [lawyers] have been bending the rules… in a manner not contemplated by Rule 23,” Samp said.  “There is at least a hint in the [cases] that the Court thought that the plaintiffs had never really intended to try the case, but were using class certification as a way to force a settlement.” 
            Evan M. Tager, a partner in the Washington office of Mayer Brown, said that class actions are not always the best way for aggrieved consumers or employees to seek redress anyway, and that the Supreme Court recognizes that.
            “Class actions principally benefit the lawyers, not the class members,” Tager said.  For example, most consumer class actions settle for pennies on the dollar and, as a result, only a tiny fraction of class members bother even to submit a claim.  While the amounts at stake in employment class actions may be higher, Wal-Mart doesn’t constitute a major change in law.”
            The Court merely rejected an over-expansive reading of Rule 23 certification rules, and required that class members have sufficient commonality to proceed.  Meritorious class claims will be able to meet those standards, he said.
            “Although that holding should prevent the certification of cases in which proof of the named plaintiffs’ claims won’t necessarily establish liability to absent class members, it should have no impact whatever on the kinds of class actions that the drafters of Rule 23 contemplated,” Tager said.

Class action alleges UPL

Class action alleges UPL

Lawyers use United
Financial decision to
make their argument.

            The gift of estate planning services that Portland, Ind., resident Jeffrey G. Corle and his wife received in 2010 seemed at first like a thoughtful and worthwhile investment in their future.

            The couple felt that way about the gift until questions about Unauthorized Practice of Law began drawing attention away from what the estate planning package offered and focused on what was not included:  adequate lawyer involvement.

            Now, the Jay County man is the lead plaintiff in a class-action lawsuit in the Northern District of Indiana that aims not only to recover the $2,495 paid to Michigan-based Estate Planning and Preservation Inc. but also alleges the company was engaged in UPL when it sold the estate planning package to Corle without adequate lawyer involvement.

            Whether those estate planning services actually constitute UPL, though, is a question that makes this case stand out as one that may break new legal ground for Indiana.  The state Supreme Court hasn’t weighed in on Estate Planning and Preservation and its activity possibly being UPL, typically the first step in actions accusing a person or business of practicing law without a license.

            The Logansport law firm Starr Austen & Miller that filed Corle’s suit is applying the Indiana Supreme Court’s decision last year in Indiana State Bar Association v. United Financial Systems Corp., 926 N.E.2d 8 (Ind. 2010), as the basis for this new class-action claim.  The lawyers content that case set the standard for what is and isn’t UPL in Indiana and that it offers guidelines that can be applied to future litigation without first obtaining that determination from state justices as required by court rule and the state constitution.

            “This is almost a mirror image of what United Financial did with their course of conduct determined to be illegal,” said attorney Mario Massillamany with Starr Austen & Miller.  “We don’t believe there’s any distinction between the two, and there’s no question now what UPL in Indiana is when it comes to this kind of conduct.  The justices were pretty detailed in their analysis, and just like any precedent you take this caselaw and apply it to the facts here.”

            In United Financial, the Supreme Court examined the Indianapolis company’s activity after the Indiana State Bar Association filed a trust mill suit in 2008.  the justices in April 2010 ruled that the company had engaged in UPL based on how it offered estate planning services:  a non-attorney salesperson contacts and sells the product, receives the money up front, then passes that information on to a panel attorney who contacts the client by phone and reviews the documents as previously written before returning them to United Financial Systems Corp. for final approval before delivery.

            Finding that to be UPL, the justices ordered that customers be notified and reimbursed, but that didn’t happen and the court has since appointed former Monroe Superior Judge Viola Taliaferro as commissioner to preside over the refund and attorney fee matters.

            USFC officials Richard and Beau Follett and Richard L. Follett II failed to appear at a hearing in late June and the commissioner issued warrants for their arrest.  But Judge Taliaferro has agreed to stay those warrants temporarily and give the Folletts another chance to appear and post a $50,000 certified check for refunds to those who purchased estate plans from the company.  Two class-action lawsuits have been lodged against USFC, which had its business license revoked in April by the Indiana Department of Insurance.  Those lawsuits are pending in state courts.  Starr Austen & Miller is one of the firms representing plaintiffs in the Fulton County action, while Cohen & Malad in Indianapolis is handling the other one in Marion County.  Both are on hold as the ISBA’s case and the Follett bench warrant issues are resolved.

            But even as the USFC case continues, Massillamany says the specific UPL decision from United Financial is precedent that can be applied to Corle’s case involving Estate Planning and Preservation, an insurance marketing agency that Marie-Dawn Joseph of southern Michigan founded in 2001.

            The business plan calls for convincing senior citizens and retirees to “avoid probate” and purchase a living trust package sold by EPP, the suit says.  Much like UFSC, this company operates by soliciting to potential clients and then having a salesperson obtain financial information and sell legal documents such as a living trust, power of attorney, pour over will, deeds and living will.  No attorney is involved when these documents are reviewed and sold, the suit says, and the standard price for a living will package is $2,495.

            After the money is obtained, information is routed through Joseph’s husband’s law firm, Joseph & Associates.  her husband, Paul T. Joseph, has been a Michigan attorney since 1982, and both he and attorney Amanda Klaiss, who handled the EPP legal services, reviewed and made phone contact with the clients, the suit says.  A client’s information is inserted into “boiler plate language” in the forms, the suit claims.

            The suit states that Corle’s father in March 2010 paid EPP a premium of $2,495 for a living trust package for Corle and his wife, Kay.  the representative didn’t ask about existing estate plans and Corle never met with Klaiss, who was assigned to the case.

            The suit asks for disgorgement of fees as a result of the UPL (which the Indiana Supreme Court  ordered in United Financial), and alleges constructive fraud, contractual invalidity, conversion, and legal malpractice claims against the law firm and attorneys.

            The question of whether the federal court applies the state justices’ UPL holding may not survive.  U.S. Magistrate Judge Roger Cosby has issued an order describing the class action and diversity of citizenship jurisdiction claims in the suit “woefully inadequate” and wants an amended complaint by the end of July.

            Whether the United Financial holding can be applied to this and future UPL actions is unclear.

            Both Article 7, Section 4 of the Indiana Constitution and Indiana Code 33-24-1-2 gives the state’s highest court exclusive jurisdiction over UPL matters, and a specific passage from the justices in United Financial says they have not previously nor would they in that ruling attempt to provide “a comprehensive definition because of the infinite variety of fact situations.”

            The Indiana attorney general’s office takes the position that United Financial would be precedential in other cases that might be factually similar to it, according to Deputy Attorney General Abigail Kuzma.  But the Indiana Supreme Court maintains original jurisdiction on any UPL action and state courts, not federal, would generally be involved.

            Indianapolis attorney don Lundberg, the longtime Disciplinary Commission leader who left that position in 2010, said the issue is complicated.  If a case is filed under diversity jurisdiction, Lundberg said it’s an interesting question whether a federal court sitting in diversity can enforce Indiana UPL as interpreted by the justices in USFC when there’s a specific constitutional provision and state court rule that limits UPL jurisdiction to original actions before the justices, and seems to limit standing to seek injunctive relief.

            Kevin McGoff, the Indianapolis attorney with Bingham McHale who represented the ISBA on United Financial, also found interesting the interplay between state court rules and procedure and this federal class-action claim.

            “I can certainly appreciate how they’d adopt that theory on how the Supreme Court has reviewed this behavior and decided it’s UPL, as support for a civil claim,” he said.  “If you look at caselaw in Indiana and the nation, you’ll find a lot of cases that define what practice of law is in various states and jurisdictions.  By the same token, you’ll find cases defining UPL and all those definitions could be dropped in state or federal court to use as precedent.  But obviously, it’s up to the court to see if they’re willing to.”

Indiana Lawyer Vol. 22 No. 10 • JULY 20 – AUG. 2, 2011