Senator Bernie Sanders (I-Vt.) has for years been a champion for workers and consumers in Congress. You can check out his website which contains interesting updates and information.

Recently, he called it absurd that federal regulators put off until July 2010 new regulations that would protect consumers against credit card industry abuses. Read the article on his website for further details.

For far too long, credit card companies have imposed exorbitant interest rates and unduly harsh fees and penalties on consumers who have no means to challenge them since the industry operates in lockstep. Now is the time, with the Democrats in control of both Houses and Obama assuming the presidency, and in light of the severe recession that is hurting millions of Americans, for Congress to enact regulations that will curtail credit card industry abuses.

Bloomberg. com reports that billion dollar verdicts are vanishing from U.S. courtrooms. In 2008 no such verdict was rendered by a jury, and there was only one in 2007. But in the previous 14 years, there were a total of 26 billion-dollar verdicts.

One reason for this is that the Supreme Court and lower appeals courts have limited punitive damage awards.

The lower threat of high punitive damages has helped corporate defendants by taking away an incentive to settle out of court, said attorney Marquette Wolf of Mesquite, Texas, who won an $84 million jury verdict against U-Haul International in 2008.

“When the threat of punitives was there, the courthouse was a level playing field,” he said. “Now the threat of consequence isn’t there for billion-dollar corporations.”

Wolf’s victory, which included $63 million in punitives, was later cut to $45.7 million, half in punitive damages. It is on appeal.

Other factors leading to the decline in large verdicts is the business-sponsored campaign to create bad publicity surrounding large verdicts, the ascendancy of conservative judges through campaigns on the state level and Bush administration appointments to federal courts, and state and federal limits on damages claims.

10 of the 12 all-time biggest awards were cut or reversed by courts. Last year’s reduction of punitive damages by the Supreme Court in the Exxon Valdez case from $2.5 billion to 507 million established a ratio of one to one between punitive and actual damages.

In contrast, as trial lawyers will readily attest, when a jury unreasonably does not reach a verdict in favor of an injured plaintiff or awards an unreasonably small damages amount, courts seldom ever intervene.

Jurors have also become less sympathetic to plaintiffs, said Deborah Kuchler of Abbott, Simses & Kuchler, a New Orleans lawyer who represents corporations.

“Juries are much more cynical than they used to be,” said Kuchler, who won a defense verdict for DuPont Co. in June in the retrial of a case the company previously lost. “Now even insurance companies want juries.”  

What’s Happening

I’ve been busy as of late. My apologies for the infrequent postings. Here are are a couple of recent law-related articles worth reading:

Simon Property Group, the owner of the Crystal Mall in Waterford, Connecticut, recently agreed to pay nearly $309k to settle a lawsuit brought by the Connecticut Attorney General alleging that inactivity fees that applied to its gift cards violated state consumer law.

Most of the money that will be paid out by Simon will be in the form of refunds to thousands of customers. Attorney General Richard Blumenthal said:

“Simon brazenly devalued gift cards by hundreds of thousands of dollars. Now, the company’s actions would be beyond the state law enforcement because it has shifted to cards issued through a national bank, deemed subject only to federal law. We must close the national bank legal loophole.”

Simon charged customers a $2.50 per month “administrative” fee on cards not fully redeemed after six months.

My law firm, Trief & Olk, has brought a class action against Simon for these same violations that is currently pending in a New York state court.

New Laws Enacted for 2009

Long Island Business News recently published an article concerning new laws that are going into effect this year that will affect business and consumers. Here they are in capsule summary form, but you can also check out the article for more detail:

  • Repeal of the no-prejudice rule that allowed insurers to deny coverage if the insured failed to provide prompt notice of an accident or lawsuit, even if the insurer did not suffer any prejudice as a result;
  • Expansion of the New York State WARN Act which requires businesses with 50 or more employees to give 90 days notice inthe evvent of mass layoffs or a closing;
  • A law prohibiting employers from refusing to hire a job candidate based on a prior criminal conviction unless it is directly related to the job or a threat to public safety;
  • Expansion of the Family and Medical Leave Act (FMLA) allowing individuals to care for family members injured during military service;
  • Change in the Americans with Disability Act (ADA) to broaden the definition of “disability” by overturning Supreme Court rulings holding that a person who ameliorates the effects of her disability by the use of corrective measures is no longer disabled;
  •  Enactment of the Genetic Nondiscrimination Act barring discrimination based on the genetic background of an individual or because she is susceptible to getting some type of disease; and
  • A law restricting overtime for nurses.

Perhaps no other public agency is the butt of as many jokes as the post office. But the mailing, and alleged late receipt of, a premium payment was no laughing matter for the petitioners in a Long Island based life insurance dispute. (See Fidelity Nat’l Title Ins. Co. v. Regent Abstract Serivces Ltd., N.Y. Cty. 110144/08, Dec. 15, 2008, Lehner, J.).

The policy had been taken out by a company on the life of one of its principles. When payment was not made by the January 27, 2008 due date, nor within the 31-day grace period thereafter, the insurer sent out a notice on February 28 advising that the policy had lapsed, but allowing reinstatement if payment was received by March 30 and so long as the insured was still alive when it was received.

The insured mailed the past-due payment on February 29, but it was not received until March 6. Meanwhile, the insured had died on March 3.

The New York County Supreme Court ruled in favor of the insurer that the policy was void. The court would have ruled the other way if the policy stated that payment had to be mailed, rather than received, before the death of the insured.

As Morrissey sang: “Such a little thing … but the difference it made was great.”

The warning to consumers is to be careful when dealing with life insurance companies for they will deny coverage on any and all feasible grounds.

Businessweek photo

Businessweek photo

Starbucks, that ubiquitous high-end coffee company based in Seattle, has long tried to convey an image of corporate social responsibility. But that reputation is being put through the wringer by a messy labor dispute with workers – known as baristas – who wish to unionize. According to Businessweek:

The National Labor Relations Board found on Dec. 23 that Starbucks had illegally fired three New York City baristas as it tried to squelch the union organizing effort. The 88-page ruling also says the company broke the law by giving negative job evaluations to other union supporters and prohibiting employees from discussing union issues at work. The judge ordered that the three baristas be reinstated and receive back wages.

This ruling does not come at a good time for Starbucks which has recently seen a decline in its stock price, a loss of its customer base, and has had to close a number of stores.

A lawsuit was filed in Texas on December 28, 2008 against Southern Hardwood Company, the owner of a sawmill, by the widow of a worker who died as a result of a board edger that “shot back” a board into his chest. The worker, Jose Luis Flores Guadarrama, was pronounced dead at the hospital due to blunt force trauma to the chest.

OSHA cited the company for numerous safety violations following the accident. Those related to the accident included that the edger did not contain proper warnings and did not have a kickback feature in proper condition.

My law firm handles cases that are similar to this. Notably, in New York and New Jersey where we are licensed to practice law, a suit cannot be brought directly against the employer, as it was in this Texas case, because of what is known as the “workers’ compensation bar” – the injured worker is entitled to workers’ compensation but cannot directly sue his or her employer. (The exception is if the worker, like the one here, is killed or suffers a ‘grave injury’ which includes loss of a limb or severe disfigurement).

Workers’ compensation provides a meager weekly salary replacement benefit and covers medical expenses; as those who receive it can attest, their benefits are frequently unjustly reduced or terminated even though their injuries continue to prevent them from working.

Injured workers hoping to find adequate compensation for their injuries must rely on “third-party” lawsuits against the manufacturers and distributors of unsafe products. Known as product liability lawsuits, they are expensive to bring and not easy to win. And they are unavailable to workers who are injured because of an unsafe work environment rather than an unsafe product.

These are the types of lawsuits my firm typically brings on behalf of injured workers, since most cases do not involve deaths or meet the requirements of a “grave injury.”  

Safer worksites and safer work equipment are much-needed in this country. Workers’ compensation does not help to lead to the former, however, since it immunizes employers from their own negligence.

News Updates

Although I have been out of commission during the past week or so, seeing that it is the holidays, there have in the meanwhile been tragic accidents that have occurred as a result of unsafe products, insufficient warnings, and corporate negligence. Bringing them to your attention, I realize, is in a way Scrooge-like and the antithesis of spreading holiday cheer, but for those of us who have a platform to talk about these kinds of accidents, I think it is imperative to do so in the hope that they do not happen again ….

  • Fox News in Minnesota reported on how a 71-year old man admitted to a nursing home was carried out 21 days later suffering from severe hydration and subsequently died. The Minnesota Department of Health concluded that the nursing home was neglectful in caring for the man. The Eldercare Rights Alliance plans to ask the state legislature to impose tougher requirements on nursing homes.
  • A 2-year old spending the holidays with his parents in Maine died after becoming entangled in a mesh covering placed on top of his crib, reported The Boston Globe. Apparently, the mesh covering was not part of the crib and was purchased separately. However, between 1978 and 1985, when mesh was more commonly used in cribs, 15 children died after being left in cribs or playpens with mesh siding. The Consumer Product Safety Commission is reviewing the incident. Hopefully, the danger of using mesh siding or covering with cribs will be well-publicized after this tragic occurrence; a good idea is to place warnings on and/or in the packaging of both cribs and the mesh.

In sum, infants and elders are two of the most vulnerable segments of our population. During this holiday season, we should take a moment to reflect on how we as a society have failed in some ways to properly take care of them when it comes to, respectively, product safety and nursing home care.

The NY Times reports that Senator Charles Grassley, Republican of Iowa, has raised questions about whether pharmaceutical giant Wyeth improperly ghost-writed a medical journal article disputing a federal study linking its hormone product Prempro to breast cancer in women.

Grassley has alleged that Wyeth had medical writing firms draft articles and then lined up doctors to put their names on them. 

Wyeth is the defendant in the preemption case recently argued and yet to be decided by the Supreme Court in which it is arguing that drug manufacturers should be immune from failure to warn lawsuits if the FDA has approved the drug’s label.

This article reminds me of how in some areas of medical malpractice, doctors have authored articles that are based on questionable science that are routinely relied on by defendants at the time of trial.

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