Johnson & Johnson has filed a new motion to remove Beasley Allen from leadership of the talcum powder litigation, citing “serious ethical lapses.”
Now, in an April 16 motion, Johnson & Johnson wants to remove Beasley Allen from the plaintiffs’ steering committee in the talc multidistrict litigation, citing an April 10 letter to Chief Legal Officer Liz Forminard and Erik Haas, vice president of worldwide litigation, in which Birchfield offered to set up a meeting to restart settlement negotiations. In a letter the next day, Forminard called Birchfield’s communication with her “inappropriate and unethical” and accused him of “ethical breaches.”
“It is unfathomable that you would expect us to disregard such dishonest behavior and engage with you in any negotiation, having acted in such an ethically vacuous manner,” she wrote in an April 11 letter to Birchfield. “In the event we were to engage in settlement negotiations with counsel on behalf of the talc claimants writ large, we would certainly not do so with you or your firm, but rather with one of the other counsel and firms that have not evidenced such lack of credibility, integrity and ethics.”
Johnson & Johnson’s new motion also cited Birchfield’s testimony during a key hearing earlier this year that focused on confirmation of its subsidiary Red River Talc’s $10 billion bankruptcy plan to resolve the talc litigation. Birchfield, who represented 11,000 talc clients, falsely testified that he had the consent of his clients when voting “no” on their behalf, according to Johnson & Johnson’s motion.
“There is simply no way that a firm that has engaged in such conduct can sit in a leadership position in this litigation,” Johnson & Johnson’s lawyers, O’Melveny & Myers partner Steve Brody, in Washington, D.C., and Jessica Brennan, of Barnes & Thornburg in Morristown, New Jersey, wrote. “Beasley Allen has demonstrated itself unfit to represent its own clients’ interests, let alone the interests of clients represented by other firms. Its continued presence on the PSC would be an intractable impediment to the fair progression of this litigation.”
Johnson & Johnson has insisted that more than 75% of talc claimants voted in support of its bankruptcy plan. In a statement, Haas reiterated that Beasley Allen could not represent talc clients, or their own lawyers, “whose interests, loyalty, trust and confidence he has utterly and irretrievably betrayed.”
Birchfield and Beasley Allen, in a Tuesday response, denied the allegations.
“J&J’s effort to remove Beasley Allen from leadership is nothing more than a calculated attempt to eliminate a firm that has repeatedly worked to block its bad-faith bankruptcy schemes,” wrote their lawyer, Jeffrey Pollock, of Pollock Law in Trenton, New Jersey.
He wrote that Birchfield had informed his clients about the bankruptcy plan and that he would vote “no” if he didn’t hear from them. He also noted that U.S. Bankruptcy Judge Christopher Lopez, of the Southern District of Texas, in his March 31 order dismissing the talc bankruptcy due to “significant voting and solicitation irregularities,” concluded that Birchfield did not act in bad faith. As to the letter to Forminard, Pollock said Birchfield never discussed the merits of the litigation.
“In-house counsel are not shrinking violets, they are sophisticated lawyers,” Pollock wrote. “They are not going to wilt because an outside counsel or party reaches out to them. Rather, in-house counsel are the front line of the corporation.”
He added that Leigh O’Dell, the Beasley Allen principal who is co-lead plaintiffs’ counsel in the talc multidistrict litigation, had “served with distinction.”
The motion is set for June 17, when other matters halted by the 2024 filing of the talc bankruptcy are set to restart in the talc multidistrict litigation, which is overseen by U.S. District Judge Michael Shipp, in the District of New Jersey.
Separately, Johnson & Johnson also has moved to set aside judgment in a lawsuit against leading plaintiffs’ expert Dr. Jacqueline Moline, whose 2020 report tied cosmetic talcum powder to mesothelioma. U.S. District Judge Georgette Castner, of the District of New Jersey, dismissed its 2023 lawsuit against Moline last year.