Author: WorkCompAcademy

Three classes of current and former nonexempt employees who have various jobs at Bank of America’s California branches – challenge Bank of America’s alleged failure to pay them for their off-the-clock work, provide meal-and-rest breaks, or reimburse expenses in violation of the California Labor Code, California’s Unfair Competition Law (UCL), and California’s Private Attorney’s General Act (PAGA).

There were three separate cases, which were consolidated by the settlement order. One was filed on behalf of operations managers in California State Court in March 2019, which was then moved to federal court.

The lead plaintiff claimed BofA operations managers had to work five hours or more without meal and rest breaks, which is a violation of the California labor code. Often during breaks operations managers had to help bankers and tellers and answer customer inquiries without reimbursement. As well, employees were not paid for having to use their own cellphones for work issues.

The second case filed in 2018 on behalf of tellers, claims tellers had to fire up their computers and programs before clocking in and same went for winding down after clocking out. Both pre- and post-shift work totaled more than 30 minutes per day. And like Operations Managers, tellers also had to work through meal and rest breaks, but the bank made them record on their time sheets that they took breaks..

The third case was filed on behalf of personal bankers in March 2020 and accused BofA of the same labor violations, i.e., working off-the-clock and working through meal and rest breaks without reimbursement.

The parties settled the case following the recommendation by a mediator, and the court held a fairness hearing on October 28, 2021 and approved the settlement.

There are 20,190 class members (19,895 identified initially plus 295 omitted inadvertently because a job code was not included). They worked as tellers, personal bankers and operations managers.

The total non-reversionary Gross Settlement Amount is $11,500,000, and the Net Settlement Amount recovered by the class is approximately $7,497,202.97 after the following deductions: (1) $86,250 in PAGA penalties; (2) $30,000 in enhancement payments to the named plaintiffs; (3) $84,000 for the claims administration’s expenses; (4) $3,450,000 in attorney’s fees; (5) $54,356.17 in litigation costs; and (6) employer payroll taxes of $298,190.86.

Multiple other class action lawsuits filed before 2010 claimed the bank failed to pay overtime and violated other wage and hour laws to non-exempt (hourly) employees working at retail banking centers and in certain call centers. The cases were consolidated in 2010 as In re: Bank of America Wage and Hour Employment Litigation in Kansas federal court and the bank settled for $73 million but denied the allegations.

A big question in opiod litigation pertains to how far down the chain of distribution, from the drug manufacturer, the prescribing doctor, to the pharmacy that fills a prescription, can liability be established by plaintiffs seeking payment of the opiod litigation. A new jury verdict this week may help answer that question.

Bloomberglaw reports that a Cleveland jury concluded Walmart Inc., CVS Health Corp. and Walgreens Boots Alliance Inc. helped create a public-health crisis by failing to properly monitor opioid prescriptions, the drug industry’s latest loss in the expanding litigation over the painkillers.

The federal-court panel backed claims by northeast Ohio’s Trumbull and Lake Counties that the pharmacy chains failed to create legally mandated monitoring systems to detect illegitimate opioid prescriptions. The counties are seeking reimbursement for the costs of dealing with addictions and fatal overdoses. Similar suits are pending against drugmakers and distributors. A judge will hear arguments in May about the counties’ compensation claims.

The two Ohio municipalities want the pharmacy owners to pay a combined $2.4 billion to replenish depleted budgets for drug treatment, social services and police, with $1.3 billion for Trumbull and $1.1 billion for Lake, according to people familiar with their demands.

Walmart and other pharmacy operators argued the municipalities couldn’t prove they created a so-called “public nuisance” through lax prescription oversight when the scripts were written by licensed doctors. They also touted their systems designed to help pharmacists track patients’ visits, making it easier to spot red flags among prescriptions.

It’s the first jury verdict in the sprawling, four-year opioid litigation. Municipalities across the nation have accused opioid makers, distributors and sellers of downplaying the painkillers’ addiction risks and sacrificing patient safety for billions in profits. The jurors in Cleveland deliberated for more than five days before returning the unanimous verdict on Tuesday.

“The jury’s decision sounds a bell that should be heard by pharmacy companies around the country,” Mark Lanier, the Ohio counties’ lead lawyer, said after the verdict was announced. “Laws regarding proper monitoring of prescription drugs are be taken seriously and not ignored or downplayed.”

The companies all said they would appeal the verdict. “We look forward to the appeals court review of this case, including the misapplication of public nuisance law,” Mike DeAngelis, a CVS spokesman, said in an emailed statement. “The facts and law do not support the verdict,” Walgreen’s Fraser Engelman added.

“We will appeal this flawed verdict, which is a reflection of a trial that was engineered to favor the plaintiffs’ attorneys and was riddled with remarkable legal and factual mistakes,” Randy Hargrove, a Walmart spokesman, said in an emailed statement.

The outcome of several verdicts in litigation against the makers of the Roundup weed killer are of significance to worker’s compensation administrators who might be involved in CT claims filed b.y agricultural workers. There may, or may not be opportunities for subrogation depending on the eventual trend.

The latest development this month involved an $86.7 million damages award for a Livermore couple stricken with cancer after years of spraying Roundup weed killer. This result will now be final, after the California Supreme Court refused to hear Monsanto’s appeal.

The decision effectively upholds a 2019 jury verdict that found Monsanto was aware of the risks associated with its product and negligently failed to warn consumers, and in so doing also acted with malice, oppression or fraud.

Courthouse news reports that both Alva and Alberta Pilliod were diagnosed with non-Hodgkin lymphoma that they attributed to decades of using Roundup: Alva with systemic diffuse large B-Cell lymphoma in his bones in 2011; Alberta with diagnosed with an aggressive subset of that lymphoma in her brain in 2015.

In addition to $55 million in combined compensatory damages, the jury awarded each of the Pilliods $1 billion in punitive damages. During the course of the five-week trial back May 2019, Alberta testified that she never would have bought the popular herbicide if she had known that it was brought to market based on approval studies that were found to be invalid.

Alameda County Superior Court Judge Winifred Smith ultimately slashed the award to a total of $86.7 million, and an appellate court affirmed it in an August order where Justice Marla Miller wrote that “Monsanto’s continuing to sell Roundup after learning that the original approval studies were invalid shows conscious disregard for public health and safety.”

In other Roundup cases, two other Bay Area residents were awarded hefty damages by separate juries. In August 2018, a jury found Monsanto owed Dewayne Lee Johnson $289 million in damages – later reduced by a judge to $78 million – after finding Roundup caused his terminal non-Hodgkin lymphoma, and a federal jury awarded Ed Hardeman $75 million in punitive damages for failing to warn him about the product’s hazards, which a a judge cut down to $20 million.

Bayer AG, which bought Monsanto for $63 billion in 2016, has since appealed the Hardeman case to U.S. Supreme Court.

However, the defendants recently secured a win in Los Angeles state court, where a jury found there wasn’t enough evidence to prove Roundup was a substantial factor in causing the rare cancer that killed a young boy.

A federal judge in Georgia also found in Bayer’s favor on a plaintiff’s failure to warn claim, ruling that the Federal Insecticide, Fungicide, and Rodenticide Act requires the company to follow instructions by the EPA not to sell Roundup with a cancer warning on its label. An appeal is pending before the Eleventh Circuit.

In June 2020, Bayer announced a $10 billion agreement to settle a bevy of claims related to Roundup users who have contracted non-Hodgkin lymphoma. But this year, U.S. District Judge Vincent Chhabria refused to approve a $2 billion deal to resolve claims from Roundup users who have not developed cancer but may be diagnosed in the future.

Bayer has also vowed to remove glyphosate-based products from retail store shelves by 2023 to prevent future litigation, though the company has consistently said that it stands behind Roundup’s safety.

Physician Edmund Kemprud, 78, of Dublin, was found guilty of 14 counts of illegally prescribing opioids and other controlled substances patients. Medical Board records show that he was a 1973 graduate of the University of California at San Francisco School of Medicine. He has been licensed in California since 1974. He stipulated to the surrender of his license effective October 25, 2021, and is no longer licensed in California.

According to evidence presented at trial, Kemprud worked in several locations around the East Bay and Central Valley, including one location in a back room of a nail salon and medi-spa in Tracy.

Evidence at trial showed that Kemprud prescribed highly addictive, commonly abused prescription drugs, including Hydrocodone, Alprazolam, and Oxycodone – outside the usual course of professional practice and not for legitimate medical purpose.

He ignored indications that his patients were addicts or that they were diverting the drugs. Instead, he wrote more prescriptions for highly addictive and dangerous controlled substances, charging $79 a visit. He churned out prescriptions so quickly that he often spent less than five minutes with a patient and would see 30 patients in less than a day.

Several pharmacies were so troubled by Kemprud’s prescriptions that they instituted companywide policies to block his prescriptions.

Trial testimony of undercover officers established that on 14 occasions between Sept. 6, 2018, and March 13, 2019, Kemprud prescribed opioids without determining the patients’ medical and prescription histories, without conducting a proper medical examination, without confirming the legitimacy of the patients’ complaints, and without assessing the risk of aberrant drug behavior.

“This defendant displayed a blatant disregard for patient safety and the law,” Acting U.S. Attorney Talbert said. “Although he knew his treatment of patients was unlawful, he continued to pump dangerous drugs into the community. It took the effort of agents, investigators, undercover officers, medical professionals who practiced with the defendant and pharmacists to bring an end to Kemprud’s illicit prescription writing. The U.S. Attorney’s Office will continue our vigorous pursuit of those who fuel the opioid epidemic for their own personal benefit.”

This case is the product of an investigation by the California Department of Justice, Bureau of Medi-Cal Fraud and Elder Abuse Drug Diversion Team, the Drug Enforcement Administration, and the Office of Inspector General for the United States Department of Health and Human Services. Assistant U.S. Attorney Veronica M.A. Alegría and Special Assistant U.S. Attorney Robert J. Artuz are prosecuting the case.

Kemprud is scheduled to be sentenced on Feb. 14, 2022, by U.S. District Judge William B. Shubb. Kemprud faces a maximum statutory penalty of 20 years in prison.