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Product Liability Group Of The Year: Sidley Austin
By Martin Bricketto
Law360, New York (January 18, 2011) -- Last year, Sidley Austin LLP helped AstraZeneca PLC win dismissal of a putative class action over heartburn drug Nexium and shielded Bayer Corp. from third-party payors in a multidistrict litigation over its birth control products, earning the firm a place among Law360's Product Liability Groups of 2010. Comprised of more than 125 attorneys, Sidley's product liability group represents pharmaceutical giants, auto makers, utilities and other major companies in complex litigation ranging from MDLs to mass tort and consumer fraud class actions. Michael Davis, a global coordinator for the group, said what distinguishes the practice is its scope and breadth, noting that “we don't look at [product liability litigation] as simply a matter of a confined area of space.” “We work seamlessly with our regulatory people, with our [U.S. Food and Drug Administration] people, with our appellate people and even as appropriate our intellectual property people,” Davis said. “I think that's really one of the hallmarks of our product liability practice.” Sara Gourley, also a global coordinator with the group, said the firm is able to “look around the corner” for its clients. “Our regulatory practice is often consulted with respect to issues facing our health care and life sciences clients, and sometimes those regulatory issues and questions will raise issues that have potential ramifications down the road in connection with products liability issues that may not even exist at the time the question is asked,” Gourley said. Gourley also said the people within the group are really what make it so successful. “We have such a talented group of lawyers. It really is a products liability team," Gourley said. Sidley's victories in 2010 include several on behalf of British drug maker AstraZeneca. In May, Judge Eduardo Robreno of the U.S. District Court for the District of Delaware dismissed a suit brought by the Pennsylvania Employee Benefit Trust Fund and others accusing AstraZeneca of engaging in deceptive business practices by orchestrating a misleading marketing campaign for the heartburn drug Nexium. AstraZeneca obtained approval to sell Nexium the same year its patent on heartburn drug Prilosec expired; although the company launched a large-scale marketing campaign, the plaintiffs argued the newer drug is no more effective than the old one. However, citing the U.S. Supreme Court's decision in Bell Atlantic Corp. v. Twombly, Judge Robreno said a complaint must include enough facts to state a claim for relief that is plausible on its face. While the plaintiffs may have relied on the advertising claims made by the company, those claims did not cause the plaintiffs to buy Nexium, according to the opinion. Sidley was part of a defense team in the case that also included attorneys with McCarter & English LLP. In another high-profile case, the Alabama Supreme Court in January 2010 refused to reconsider its reversal of jury decisions that had awarded the state nearly $275 million from three pharmaceutical giants including AstraZeneca, ending the bellwether prescription drug price-fixing case. “The Alabama Supreme Court's denial of the state's application constitutes a definitive denial of the state's factual and legal arguments,” Davis said. In 2005, the Alabama attorney general's office sued several companies, including AstraZeneca, Novartis Pharmaceuticals Corp. and GlaxoSmithKline PLC, alleging they knowingly provided fraudulent information to drug databases that the state relies on to make reimbursements through its Medicaid program. AstraZeneca was eventually hit with $210 million in damages, later reduced to $160 million, while GSK and Novartis were ordered to pay $113 million collectively. Overturning those decisions, the state Supreme Court ruled in 2009 that Alabama couldn't claim it was misled by the drugmakers' pricing policies because for at least 30 years it knew that the average wholesale prices did not accurately reflect the actual costs pharmacists paid for the medications. The firm is also defending AstraZeneca in litigation related to schizophrenia and bipolar disorder drug Seroquel. Bayer is another major pharmaceutical company that has benefited from Sidley's defense in a variety of cases, including several thousand product liability and consumer fraud actions related to the oral contraceptives Yasmin, Yaz and Ocella. Among the firm's successes in that litigation, Sidley helped win the toss of a class action against Bayer brought by third-party payers who alleged they paid too much for too many Yaz prescriptions because Bayer fraudulently marketed the drug. Judge David R. Herndon of the U.S. District Court for the Southern District of Illinois granted Bayer's motion to dismiss in August, saying the plaintiffs failed to establish a connection between Bayer's marketing and the alleged damages. The suit, brought by the Philadelphia Firefighters Union Local No. 22 Health and Welfare Fund, sought to represent all third-party payers that purchased, reimbursed or paid for Yaz prescriptions in the U.S. Sidley has also racked up wins helping to defend Bayer in an MDL over safety concerns related to the blood-clotting drug Trasylol, including successful bids to exclude expert testimony. In June, Judge Donald M. Middlebrooks of the U.S. District Court for the Southern District of Florida refused to allow plaintiffs to appeal an order barring one of their proposed medical experts from testifying. The judge blocked the testimony of Suzanne Parisian following a Daubert hearing in December 2009 after finding that her opinions were unreliable and inconsistent and that she wasn't knowledgeable about relevant FDA regulations. Sidley also helped persuade Judge Middlebrooks in September to exclude portions of another expert's testimony in the litigation. The judge ruled that Dr. F. Gary Toback's opinion that Bayer did not adequately test Trasylol fell outside the realm of his expertise and constituted an inadmissible personal opinion. The judge further granted Bayer's motion to nix the nephrologist's opinions on the drug's package labeling, Bayer's data reporting to the FDA, Bayer's and the FDA's motives, and events that occurred at an FDA advisory committee meeting. “The significance of these rulings is that the court made it clear that expert witnesses must stay within the bounds of areas of science or other recognized expertise and may not transform themselves into advocates or narrators for the plaintiffs' version of events,” Davis said.
Sidley's clients in the food and nutrition industry include Synutra International Inc., whom it successfully defended in a suit brought by Chinese citizens who claimed their infants were harmed by formula contaminated with melamine. In March, Judge Deborah K. Chasanow of the U.S. District Court for the District of Maryland ruled those plaintiffs couldn't sue the formula maker's American parent in the U.S. and rejected their argument that repression by the Chinese government prevents them from seeking a remedy at home. The plaintiffs originally filed their case asserting diversity jurisdiction, and Synutra moved to dismiss it on forum non conveniens grounds. Sidley has also helped reach settlements for its clients that closed out high-stakes litigation. In one such case, Tyson Foods Inc. in January reached a settlement of $5 million plus attorneys’ fees with plaintiffs in an MDL alleging the poultry processing giant lied to consumers by claiming that its chickens were raised without antibiotics. The synergy that Davis described at the firm is also apparent in its representation of American Electric Power Co. Inc. in a major lawsuit over global warming liability which the U.S. Supreme Court agreed in December to take up. States, conservation groups and others who brought the suit under a federal common-law claim of nuisance allege that power company defendants are harming the environment, local economies and public health by contributing to global warming. Power companies including American Electric asked the Supreme Court to step in after the U.S. Court of Appeals for the Second Circuit ruled against them in September 2009 and then rejected a rehearing en banc. “We have brought in to a great degree our appellate lawyers to provide assistance in that important litigation,” Davis said. --Additional reporting by Megan Stride, Abigail Rubenstein and Mike Cherney Methodology: In mid-November Law360 solicited submissions from over 300 law firms for its practice group of the year series. The more than 400 submissions received were reviewed by a committee of four editors. Winners were selected based on the number of significant wins the group had in litigation or the size, number and complexity of deals the group worked on in 2010. All Content 2003-2011, Portfolio Media, Inc. www.sidley.com
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