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Seeger Weiss Blog: Legal News and Analysis

Charter Bus Crash in Roslyn Heights New York Leads to Fatality and Injuries

April 3rd, 2014

On April 1st, in Roslyn Heights, New York, a charter bus collided with a pick-up truck. The collision caused the Coach USA Charter bus to careen into a nearby tree. The driver of the pick-up truck was killed instantly on impact. The driver of the bus was rushed to a local hospital. A passenger on the bus was treated for minor injuries. There has been no word on what may have caused the accident. If you have been injured please contact Seeger Weiss, LLP for a free legal consultation.

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Seeger Weiss, LLP is a leader in consumer class action lawsuits. With experienced attorneys and locations throughout the United States, our firm strives to provide the highest quality of service to our clients. We treat each case with careful attention to ensure that consumers get the justice they deserve. Seeger Weiss has office locations in New York, New Jersey, and Pennsylvania.

General Motors Recall Update: 303 Deaths due to Failed Airbags

April 2nd, 2014

In 2001, General Motors (GM) engineers noticed the ignition switch would wander from “run” to “off” during the productionGM airbag ignition lawsuit development of the Saturn Ion. In 2003, another report stated too many keys weighing down the key chain caused the ignition switch to become worn out. Again, in 2004, GM ran into the same problems while test driving the Chevy Cobalt, but never issued a recall.

On February 7th 2014, General Motors finally issued a recall of two of their models, the Chevy Cobalt and the Pontiac G5. The recall was due to faulty ignition switches. The defected ignition switch would slide from “run” to “off” while the vehicle was moving. GM initially reported 12 deaths which were linked to the faulty ignition switch.  Then on Febuary 25th, GM added 748,024 more vehicles to the recall this recall.

Friedman Research, a company that specializes in analyzing vehicle safety data, reviewed accidents in which air bags had failed to deploy, but did not try to evaluate what caused the crashes. The Center for Auto Safety, a private watchdog group, commissioned the study. An investigation discovered the crashes caused 303 deaths due to the failure of the airbags to deploy. The deaths occurred in the two vehicles subject to the recall, the 2005-2007 Chevy Cobalt and the 2003-2007 Saturn Ion.

In March, a criminal investigation against GM was launched by the U.S. Department of Justice. The company is also under investigation by Congress, the FBI, and the Transportation Department. An individual investigation put on by a Congressional Committee is looking into the events over the last 10 years leading up to the recall of over a million GM vehicles. The New York Times reported that there have been nearly 2 complaints every month since 2003 about GM vehicles which stopped or stalled while being operated. On March 28th, General Motors further expanded the ignition switch recall to include 824,000 of the newer models of cars that were previously recalled. For a complete timeline of what General Motors knew before and after the recall click here (See More).

If you or someone you know was involved in a crash or sustained injuries involving one of the GM recalled models, please contact us for a free legal consultation.

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Seeger Weiss, LLP is a leader in consumer class action lawsuits.  With experienced lawyers and locations throughout the United States, our firm strives to provide the highest quality of service to our clients.  We treat each case with careful attention to ensure that consumers get the justice they deserve.  Seeger Weiss has office locations in New York, New Jersey, and Pennsylvania.

References:

New York Times 3/9/14
New York Times 3/14/14
LA Times 3/13/14
USA Today 2/18/14

Jury to Roche: You Failed to Properly Warn Physicians of the Risk of Ulcerative Colitis with Acne Drug Accutane; Roche Ordered to Pay $1.59 Million to Former Accutane User, according to Seeger Weiss LLP

March 17th, 2014

Attorneys are satisfied with the outcome of the re-trail for Kamie Kendall Rees as a jury in New Jersey rules in favor of the plaintiff for $1.59 million. Ms. Kendall Rees filed a lawsuit against Hoffman La-Roche Inc. and Roche Laboratories after suffering severe complications from being prescribed Accutane to treat her acne. She began treatment at age 12, undergoing several cycles with the medication but shortly after developed ulcerative colitis, a severe, debilitating disease. UC forced Ms. Kendall Rees’ to have life altering surgery to remove her colon in order to manage her condition.

Trial team leaders, Michael Hook (Pensacola, Florida) and David Buchanan (Seeger Weiss, LLP New Jersey/New York), are pleased with the verdict as they believe Ms. Kendall Rees received the justice she deserved. The trial team also included Mary Jane Bass and Jake Lurton of Beggs & Lane LLP, and Bill Cash and Troy Rafferty of Levin Papantonio.

This trial was the seventh New Jersey lawsuit surrounding Accutane to reach a settlement. Like the preceding six trials, Accutane users allege that Roche Laboratories did not provide adequate warning to physicians and therefore the users of the medication. More than 7,000 cases are currently pending in New Jersey and across the country for users that developed gastrointestinal disease post-treatment.

“Though the jury’s verdict only formally applies to Kamie,” claims Hooks, “it’s an extremely positive result for plaintiffs in the remaining approximately 7,000 inflammatory bowel disease cases pending in New Jersey and elsewhere.” Positive insight for future trials has many victims rightly hopeful as they pursue justice for their injuries.

Further noted was Roche’s apparent negligence to strengthen warnings for Accutane and the associated risks from its market release until 1998. Information was becoming readily available in that time that suggested Accutane was the direct cause for inflammatory bowel disease a related risks.

Mr. Buchanan noted that, “At this point, Accutane’s role as a cause of ulcerative colitis is a settled issue. Roche’s continued denials in the face of seven juries in New Jersey, and one in Florida, stating otherwise is a continuing insult to the many who have already suffered so much due to this drug.”

General Motors Recalls 1.4 million GM Vehicles Due to Ignition Switch Defect

March 13th, 2014

Recent reports allege a link between General Motors (GM) ignition switches to crashes, serious injury and even death. On February 13, 2014, GM recalled over 700,000 Chevrolet Cobalts and Pontiac vehicles. These models have a malfunction which allegedly cause the key to unintentionally slip from the run position when a car hits a bump or if the keychain is too heavy. This malfunction can cause the engine to shut off along with loss of power in steering, breaks and safety systems.

Later on February 25, GM broadened the recall to include additional Chevy, Pontiac and Saturn models. The total number of cars in the recall has reached over one million. The company has urged people not add any key chains to the key until the switches are replaced completely to ensure the ignition will not shut off.

Since then, there have been several lawsuits against GM. The lawsuits claim that the manufacturers at GM knew about the defect in its Chevrolet Cobalt in 2004. GM employees allegedly were told about most of the crashes, but failed to consider them a major problem until this year. GM said it would offer a free loaner car and up to $500 towards a new GM vehicle for those effected by the defect. If the owner of the vehicle is not replacing the car entirely, GM has offered to replace the ignition when new parts arrive on the expected date of April 7th.

Due to an increase in deaths and injuries linked to General Motors, the U.S Attorney’s Office in New York has opened a full criminal investigation and claim surrounding the GM ignition switch recall. If you or someone you know was involved in a crash or sustained injuries involving the aforementioned models, please contact us for a free consultation.

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Seeger Weiss, LLP is a leader in consumer class action lawsuits.  With experienced lawyers and locations throughout the United States, our firm strives to provide the highest quality of service to our clients.  We treat each case with careful attention to ensure that consumers get the justice they deserve.  Seeger Weiss has office locations in New York, New Jersey, and Pennsylvania.

Bucks County prisoner mug shots no longer publicly available through the county’s website

August 14th, 2013

Seeger Weiss LLP represents the Plaintiff, Daryoush Taha and the class in Taha v. Bensalem Township Et al., Eastern District of Pennsylvania, Case No. 12-06867.

The lawsuit alleges that Mugshots.com, which does business under Harvard Business Services Inc., mugshotsonline.com and bustedmugshots.com, along with Bucks County and the Bucks County prison continued to post information about inmates even after their cases were expunged.

The full story can be found (Here).

American Express v. Italian Colors Ruling

June 26th, 2013

In American Express v. Italian Colors, the Supreme Court last week, in a 5-3 decision, dealt an immense blow to consumer interests.  The court’s recent ruling is going to lead to serious long term consequences for many individuals who should legally be able to join together and form a class.  Writing for the majority opinion, Justice Scalia notes, “Antitrust laws do not guarantee an affordable procedural path to the vindication of every claim.”  Justice Scalia believes, along with the rest of the majority, that an arbitration clause in the contract trumps the right of a plaintiff to join a class-action suit and seek affordable and meaningful restitution.  Typically and often, firms with extensive market power are able to leave consumers with no option but to accept lopsided arbitrations that are impractical and impervious.  If a consumer wished to enter litigation against these behemothly large corporations, they would need to spend millions in legal fees only to see monetary rewards numbered in the thousands.  The consequence of the decision by her conservative colleagues is excellently explained by Justice Kagan, “So if the arbitration clause is enforceable, Amex has insulated itself from antitrust liability—even if it has in fact violated the law.”  She goes on to explain, “The monopolist gets to use its monopoly power to insist on a contract effectively depriving its victims of all legal recourse.” Now that the court has made it abundantly clear that they are going to unabashedly favor big business, even if it means allowing them to escape the grasps of Antitrust legislation that has been in place for decades, the only place the consumer can turn is to Congress.

A Win for Consumers in Mandatory Arbitration Cases: Recent Decision in Toyota Hybrid Brake Case Refuses to Follow Concepción When a Party is a Nonsignatory

April 5th, 2013

On January 30, 2013, the U.S. Court of Appeals for the Ninth Circuit affirmed the lower court’s decision in the multidistrict Toyota Motor Corp. Hybrid Brake Marketing Sales Practices and Products Liability Litigation, holding that the plaintiffs’ consumer fraud claims against Toyota, relating to faulty brakes in 2010 Prius models and 2010 Lexus hybrid HS 250h models, were not subject to arbitration.

Citing the U.S. Supreme Court’s decision in AT&T Mobility LLC v. Concepcion—which overturned state laws that categorically preclude enforcement of class action waivers in certain arbitration agreements—Toyota moved to compel arbitration with the plaintiff car-buyers, based on an arbitration clause in the purchase agreements with their dealers. Toyota filed the motion only after failing in its effort to obtain dismissal of the plaintiffs’ lawsuit on the merits. The district court, however, refused to order arbitration because Toyota was not a signatory to the purchase agreements. In other words, the district court said that the arbitration clause was limited to the plaintiffs and the dealerships, not Toyota.

On appeal, Toyota argued that even though it was a nonsignatory, plaintiffs should nevertheless be compelled to arbitrate their consumer fraud claims because the claims are intertwined with the purchase. The U.S. Court of Appeals for the Ninth Circuit rejected this “equitable estoppel” argument, agreeing with the plaintiffs that their consumer fraud claims against Toyota, which relate to the faulty brakes in their vehicles, are not intertwined with the purchase agreements with the dealers, which dealt with matters of financing and insurance.

In particular, the Court of Appeals noted that no court would need to examine the purchase agreements in order to resolve the plaintiffs’ claims. It also rejected Toyota’s argument that a provision in the arbitration clauses required that the issue of whether the claims belong in arbitration be addressed, in the first instance, by an arbitrator rather than the district court, pointing out that Toyota could not rely on that jurisdictional clause because, as a non-signatory to the purchase agreements, it lacked standing to do so. Having rejected Toyota’s contention that the plaintiffs’ claims are intertwined with the agreements, the Court of Appeals saw no need to address the plaintiffs’ alternative argument that, even if their claims were subject to arbitration, Toyota had forfeited any right to seek arbitration by playing a game of “heads-I-win/tails-you-lose” and filing its motion to compel arbitration only after failing in its bid to seek dismissal of the case on the merits.

Toyota marks a significant victory for consumers, especially in cases involving consumer fraud. This decision further signifies that the Supreme Court in Concepcion did not articulate a bright- line rule in deciding cases where mandatory arbitration clauses are in dispute. As we predicted in our previous blog, which examined Concepcion in detail, mandatory arbitration clauses will continue to be a hot-button issue in the courts and hopefully more cases like Toyota will arise giving more protection to consumers.

The case was argued before the Ninth Circuit Court of appeals by Seeger Weiss partner Diogenes P. Kekatos. The court’s decision is published at 705 F.3d

How Companies Break the Law and Escape Liability Through Mandatory Arbitration Clauses

April 3rd, 2013

Supreme Court decisions are often puzzling. The Court’s decision in AT&T Mobility v. Concepción is particularly baffling in the world of consumer rights law. In Concepción, Justice Antonin Scalia held that the Federal Arbitration Act (FAA), which favors contractual arbitration clauses, preempts state consumer protection laws. Let’s break down exactly what that means…

Concepción in a Nutshell

In Concepción, customers of AT&T brought a class action suit in a California district court alleging that AT&T’s offer of a free phone for new cell phone customers was fraudulent because the customers actually had to pay sales tax on the “free”phone. AT&T argued that their cellphone contract with their customers contained a clause that provided for arbitration of all disputes and barred any class action lawsuit. Relying on California state law, however, the District Court found the arbitration clause unconscionable because it did not allow for class wide actions. The 9th circuit agreed, and held that the Federal Arbitration Act, which makes arbitration clauses enforceable, did not preempt the California state law. The case went up to the U.S. Supreme Court on appeal.

In a landmark decision, Justice Scalia, overturned the lower court’s decision and held that the FAA preempts California’s law regarding the unconscionability of arbitration waivers. Scalia’s decision is momentous for two reasons. First, it limits a consumer’s rights to take action against a company who breaks the law. Also, Scalia uses Congress’s power and decides that the FAA, which clearly favors companies and disadvantages the consumer, trumps the California law which was enacted to protect consumers.

The Alliance for Justice Speaks Out

There are many reasons why arbitration agreements are unconscionable, and that’s what makes the Court’s decision so troubling. Alliance for Justice does a masterful job highlighting obvious instances where companies have broken the law, but have relied on Conceptión to escape liability by having their arbitration waivers enforced. The complete line of cases can be found here:http://www.afj.org/connect-with-the-issues/the-corporate-court/att-aftermath-stories.pdf.

Why Mandatory Arbitration Clauses Violate Consumers’ Rights

  • Arbitration clauses are often hidden in fine print and contain confusing language which the average consumer has trouble comprehending.
  • Arbitration clauses are judicially inefficient. They require each consumer to go through the process of filling out paperwork and completing the necessary calls while foreclosing all class action proceedings. This process is difficult to comprehend (and time consuming!) for a consumer who has no legal training. Whereas, a class action suit allows for multiple consumers to bring a single action against a company and lets the attorney do the legal grunt work, not the consumer.
  •  Arbitration clauses allow companies to cheat and win. A company who violates the law and strategically adds an arbitration clause to its contract is allowed to settle disputes with individuals “behind closed doors.” But class action suits are public knowledge, and settlements are widely reported in the main stream media. When the public knows companies cheat, companies are more likely to be deterred from continuing to break the law.
  • Arbitration clauses create contracts of adhesion which are unreasonable because of the strong bargaining power that large companies possess. These “take it or leave it” deals further weaken the consumer’s position at the time of sale.

What Concepción Means for the Future of Class Action Litigation

Mandatory arbitration clauses should continue to be a hot-button issue for the Supreme Court if articles like these continue to be published. There could be hope for the consumer and the future of class action lawsuits, despite the presence of a contractual arbitration clause, due to of the slim 5-4 ruling in Concepción. Perhaps the Court, in the future, might be swayed by Justice Breyer’s dissent, where he asks this yet to be answered question:“Where does the majority get its contrary idea—that individual, rather than class, arbitration is a ‘fundamental attribut[e]’ of arbitration?” Consumers and class action attorneys, alike,hope that the Court will answer this question sooner than later (if at all).

Background Check Errors Prompt Talk of Further Legislation

February 28th, 2013

Companies strive to hire honest employees with strong credentials. In an effort to make informed decisions, employers conduct background checks prior to hiring an employee. These background checks might examine a prospective employee’s employment history, driving record, criminal records, and credit report.

Various laws have been enacted to ensure that the employee is protected throughout this process. The Federal Trade Commission (FTC) enforces the Fair Credit Reporting Act (FCRA), which protects a job applicant’s information found in a credit report and ensures that the information is accurate. The extent to which an employer can legally analyze a job applicant’s criminal history varies on a state-by-state basis. The U.S. Equal Employment Opportunity Commission (EEOC) enforces Title VII of the Civil Rights Act of 1964, which bars employers from using job-screening standards that have a disparate racial impact.

Despite these legal safeguards, job applicants are often treated unfairly during the employment hiring phase. Take, for instance, Green Mountain Coffee Co., who allegedly rejected job applicants after examining unauthorized consumer reports (per FCRA guidelines), which they obtained from a consumer-reporting agency. The Judge agreed to dismiss the suit after the parties resolved the dispute in an undisclosed nature. Another example is Dominoes, who also allegedly violated the FCRA by running employee background reports without proper authorization and by not sharing the reports with applicants and employees before terminating employees or denying job applicants of employment. The case is currently in litigation. LexisNexis agreed to settle their dispute for more than $1.3 million. The company was accused of failing to notify timely thousands of individuals about negative background reports because of a computer glitch.  In light of these cases, it is fair to anticipate similar suits being filed in the near future.

When companies violate laws or make errors in the background check process, perfectly eligible candidates are denied jobs. Common mistakes include multiple reports of a single offense, the inclusion of convictions and arrests that were legally expunged, and even the inclusion of another person’s criminal offenses. Job applicants can contest any mistake made by employers, but what happens when employers don’t even share the information (like the alleged behavior of Dominoes)? Worse, even if a prospective applicant contests the mistake, the appeal process usually takes about thirty days. The position is often filled by the time the appeal process ends, and the candidate is left without a job even if the appeal succeeds.

As stories of companies acting negligently during employment background checks continue to brew, new legislation will continue to pass limiting the employer’s access to job applicants’ personal information. In May 2012, Vermont became the 8th state to restrict the use of credit reports for employment purposes claiming that the results of a credit report have “no correlation to job performance” and do not provide “meaningful insight into a candidate’s character, responsibility, or prospective job performance.” Vermont joined California, Connecticut, Hawaii, Illinois, Maryland, Oregon and Washington to enact such a law. At the federal level, the EEOC is currently investigating the use of credit reports for employment purposes, but has yet to rule on the issue.

Employee Rights When Applying for a Job
It’s become clear that legislative bodies are recognizing the risk of error associated with companies conducting employment background checks. Therefore, it is important that you know your rights when applying for a job.

First, the Fair Credit Reporting Act enables you to get a free copy of your credit report through each of three national credit reporting companies: TransUnion, Equifax and Experian. Each company must provide one free copy of your credit report every twelve months. It might be a good idea to have a current copy of your credit report for your reference before applying for a job.

Second, an employer must get your authorize before obtaining any credit information from third parties. You should probably get this authorization in writing.

Finally, if you have unfortunately been denied employment or had your employment terminated because of a failed background check, an employer must provide you with a written report of the information used to make their decision and a document called “A Summary of Your Rights Under the Fair Credit Reporting Act.” You should carefully analyze the information used in their decision, and you have the right to contest any information you believe to be erroneous.

Background Check Lawsuits
Unfortunately, not all employers will follow the law when conducting employment background checks, and Green Mountain and Dominoes are only a sample of how companies might be acting negligently when making employment decisions. Sometimes it takes a legal proceeding to hold large companies accountable and provide employees with a voice to speak out against the wrongdoings associated with background check errors. As such, we are sure to see class action lawsuits develop against more companies

Let’s See if the Supreme Court Means What it Says

January 31st, 2013

Consumer and plaintiffs lawyers know that there have been a long string of cases where the Supreme Court has enforced arbitration clauses much to the detriment of consumers.  In the course of doing that, though, the Court  has always said that enforcing arbitration clauses won’t cause any harm, because arbitration is a forum where anyone with a valid legal claim can be heard fairly.  The Supreme Court has also maintained that arbitration is only acceptable where parties can “effectively vindicate their substantive rights.”

In In re American Express Merchants Litigation, we’ll learn if the Court actually MEANT any of those promises.  This is the most important and most pro-consumer case involving a challenge to an arbitration clause that has come down in several years.   In the case, a number of small business merchants brought a class action in court alleging that Amex is violating the Sherman Act with a Tying Arrangement (using its monopoly power over charge cards to force merchants to take all Amex-branded credit cards — and pay higher fees). AmEx moved to force the case into individual arbitration (with no class action possible). The plaintiffs PROVED, with admissible evidence that was never controverted, that it would be impossible for them to pursue their antitrust claims, in court or arbitration, if they had to go forward on an individual basis. It would cost them hundreds of thousands of dollars to prove their cases in each case, even though their claims are typically only worth about $5,000.

But AmEx, backed by the Chamber of Commerce, wants the Court to abandon the “effective vindication” doctrine, or more likely to re-define it in a way that would make it completely meaningless. They want the Supreme Court to enforce AmEx’s arbitration clause, and class action ban, even though it means that small business plaintiffs will lose all their substantive rights under the antitrust laws.

We support the efforts of organizations such as Public Justice which  filed  an amicus brief objecting to AmEx’s radical position. The brief explains that if the Court severs the link between arbitration and the opportunity to be heard and obtain justice, then statutes that Congress enacted to protect consumers, small businesses, and workers from more powerful corporations will be gutted.   As the brief explains, AmEx’s proposal would change the underlying statute from the Federal Arbitration Act to the Federal Corporate Immunity Act, and would rob it of its legitimacy.”

The brief may be found here.