Category: Litigation

Partner Mark Boyko Quoted in Law 360

“Make no mistake, the decision is a win for workers and retirees” – BG partner Mark Boyko is quoted in Law360 commenting on the impact of a federal court appeal rejecting a management-side argument to force an ERISA lawsuit into individual arbitration, finding that an agreement tucked into ESOP plan documents blocked relief under federal benefits law. However, the panel avoided thornier questions such as whether all ERISA claims could be pushed into arbitration. As Boyko noted, the panel “hung its hat” on the arbitration provision’s block on monetary or other relief being recovered on a class basis and warns “the issues with limiting representative actions are just one of the problems.’”

To the read the full article, visit here.

“Improvidently Granted”: Supremes Decline to Wade Into Attorney-Client Privilege Dispute

Katherine E. Charonko and Elizabeth L. Stryker

This past January 11, we wrote a blog post about the Supreme Court entertaining arguments on the scope of the attorney-client privilege in the context of dual-purpose communications paraphrasing a question from Justice Kagan during the argument to Petitioner’s counsel to comment on the adage, “If it ain’t broke, don’t fix it.”

Well, turns out the Supreme Court did not want to wade into that potential quagmire, and instead turned around and entirely dismissed the writ of certiorari granted in In re Grand Jury as “improvidently filed.” Accordingly, the Ninth Circuit’s opinion which had been appealed to the Supreme Court that had held the “primary purpose” test controls when assessing attorney-client privilege for dual-purpose communications remains in full effect. In re Grand Jury, 23 F.4th 1088 (9th Cir. 2021).This opinion is important reading for reasons other than the adoption of this test because the Ninth Circuit also discussed the disparate purposes of the attorney-client privilege and the work product protection doctrine and declined to adopt but did not fully reject the “a primary purpose” test. Continue reading ““Improvidently Granted”: Supremes Decline to Wade Into Attorney-Client Privilege Dispute”

Federal Appeals Court Rejects J&J Texas Two-Step Maneuver In Huge Victory For Plaintiffs Harmed By J&J Baby Powder


Washington, D.C.: In a huge victory for individuals grievously harmed by Johnson & Johnson baby powder, the Circuit Court of Appeals for the Third Circuit roundly rejected Johnson & Johnson’s attempt to shovel all 38,000 cases into a brand-new subsidiary which then, within hours of creation, declared bankruptcy. In strong language, the federal appeals court found that the JNJ/LTL petition “has no valid bankruptcy purpose” and dismissed the bankruptcy in its entirety, reversing a ruling by a lower bankruptcy court.

The dismissal of the LTL bankruptcy now allows plaintiffs harmed by J&J’s consumer products to continue pursuing justice before a jury trial of their peers, a right afforded them by the United States Constitution.

Brian A. Glasser, founding partner of the national law firm Bailey & Glasser, LLP, was co-lead counsel to the trial team vindicated by the appeals court. Mr. Glasser states today: “J&J has no special right to put talc victims in a bankruptcy box. It now has to face these claims in front of juries around the nation.”

Specifically, Mr. Glasser argued at trial that Johnson & Johnson’s choice of bankruptcy as means to control its liabilities costs was invalid because “LTL was never in financial distress during its brief existence” because the phantom subsidiary was “eminently solvent” as it enjoyed access to more than $60 billion in Johnson & Johnson funds.

The Third Circuit agreed with Mr. Glasser in its opinion, finding that “we cannot agree LTL was in financial distress when it filed its Chapter 11 petition. The value and quality of its assets, which include a roughly $61.5 billion payment against J&J and New Consumer, makes this holding untenable.” Continue Reading

“If It Ain’t Broke, Don’t Fix It” – SCOTUS Examines Expanding the Attorney-Client Privilege for Dual Purpose Communications

Katherine E. Charonko and Elizabeth L. Stryker

The Supreme Court is currently considering a case that could expand the scope of the attorney-client privilege in the context of dual-purpose communications – such as, in this case, communications made to a law firm that also prepares tax returns. The question before the Court is: what is the appropriate test to determine whether a communication involving both legal and non-legal advice is protected by the attorney-client privilege? This case, In re Grand Jury, concerns documents that the Petitioner, a law firm specializing in tax law, claims are privileged. Petitioner asserts that these allegedly privileged materials concern tax law issues that arise upon expatriation from the United States and include legal advice regarding determining ownership of cryptocurrency assets, appropriate methods for asset valuation, and tax filing strategies. The Petitioner law firm also prepared filings for the client, an early promoter of bitcoin, including a certification of compliance with expatriation tax requirements. Continue reading ““If It Ain’t Broke, Don’t Fix It” – SCOTUS Examines Expanding the Attorney-Client Privilege for Dual Purpose Communications”
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