Usually, when I hear about thousands of employees getting fired, my heart goes out to them. But when I learned about the recent firing of 5300 Wells Fargo employees, I wondered whether losing a job was a harsh enough consequence for unauthorized use of consumers’ personal information. After all, these WF employees opened up accounts that resulted in NSF/overdraft fines, fines from third party vendors (who may have billed via autopay), etc.
According to the CFPB, “Wells Fargo employees secretly opened unauthorized accounts to hit sales targets and receive bonuses.” A client had approached me several months ago, wondering why her accounts were multiplying without her recollection of signing any paperwork. Today’s CFPB press release clears up the mystery. Below is an excerpt.
Wells Fargo’s violations include:
- Opening deposit accounts and transferring funds without authorization: According to the bank’s own analysis, employees opened roughly 1.5 million deposit accounts that may not have been authorized by consumers. Employees then transferred funds from consumers’ authorized accounts to temporarily fund the new, unauthorized accounts. This widespread practice gave the employees credit for opening the new accounts, allowing them to earn additional compensation and to meet the bank’s sales goals. Consumers, in turn, were sometimes harmed because the bank charged them for insufficient funds or overdraft fees because the money was not in their original accounts.
- Applying for credit card accounts without authorization: According to the bank’s own analysis, Wells Fargo employees applied for roughly 565,000 credit card accounts that may not have been authorized by consumers. On those unauthorized credit cards, many consumers incurred annual fees, as well as associated finance or interest charges and other fees.
- Issuing and activating debit cards without authorization: Wells Fargo employees requested and issued debit cards without consumers’ knowledge or consent, going so far as to create PINs without telling consumers.
- Creating phony email addresses to enroll consumers in online-banking services: Wells Fargo employees created phony email addresses not belonging to consumers to enroll them in online-banking services without their knowledge or consent.
For anyone wondering how the CFPB helps consumers, this action against Wells Fargo’s deceptive acts should help illuminate the importance of this agency’s work.
In Joan Longenecker-Wells v. Benecard Services, Inc., plaintiffs were employees who learned that their personal information, including date of birth, social security number, addresses, etc. which resulted in fraudulently filed tax returns. The Third Circuit dismissed the Plaintiff’s claims, stating that their negligence claims were barred by the economic loss doctrine. The Third Circuit explains:
The District Court held that because Plaintiffs’ negligence claim sounds only in economic loss resulting from the fraudulent tax returns filed with their information, the economic loss doctrine bars their claim. We agree.
Food for thought. Eh? Can we say that a plaintiff, who experiences this grave injustice of losing the benefit of a 5 figure tax return is only sustaining economic loss. I would think that the experience is emotionally draining if not traumatic to know that a fraudster has exploited your key identifying data to extract money that was owed to you.
In contrast, we have Taylor v. Spherion Staffing LLC, et al. No. 3:15-cv-2299 (N.D. Ohio 2015), Ernst v. Dish Network, LLC, et al. No. 1:12-cv-8794 (S.D.N.Y May 27, 2016); Hillson et al. v. Kelly Services, No. 2:15-cv-10803 (E.D. Mich. June 8, 2016). These cases settled and involved allegations of statutory violations. Keep in mind that Spokeo left open the possibility that a statutory violation may involve a sufficient risk of harm to satisfy the concreteness requirement. Thus, settlement may have presented a more attractive alternative than extended litigation about the sufficiency of alleged harms.
Note: This blog post is republished from my Privacy Law Diva blog.
Last week Division II Court of Appeals ruled that cities must provide safe roadways for all traffic, including bicycles. The three-judge panel found that cycling is a mode of “ordinary travel,” not just a sport. This means, Div II says, that cities must maintain roads for safe bicycle travel. What’s the big deal about calling bicycles “ordinary travel?” A lot.
In 2012, a Seattle judge dismissed the consolidated cases for injured cyclists. who argued that the South Lake Union Trolley tracks on Westlake were unsafe for cyclists because of the trolley tracks. Their bike tires too easily got trapped in the flangeways, where the trolleys’ wheels travel. However, the court in that case did not address whether bicycling was considered “ordinary travel” for the purposes of Washington Pattern Jury Instruction (WPI) 140.01. WPI 140.01 says that a municipality “has a duty to exercise ordinary care in the design/construction of its public roads to keep them in a reasonably safe condition for ordinary travel. The judge focused on the fact that the plaintiffs’ attorney in that case (not from our firm) has not provided any expert to testify to the standard of care. In other words, not expert argued that the City of Seattle failed to design and construct the road that was reasonably safe for ordinary travel. Thus, the City was let off the hook.
Plaintiff Pamela O’Neill was seriously injured while commuting home on her bike from work in Port Orchard. When her bike hit a patch of road with gaps in the concrete, her body flew onto the road. O’Neill sued the city, claiming it was negligent in maintaining the road, when it should have provided safe travel for bicycles. A Superior Court judge granted the city’s motion to dismiss the case. The appeals court overturned that dismissal and sent the case back to the lower court “for further proceedings consistent with this opinion.”
“Bicycles are an integral part of Washington’s ‘statewide multimodal transportation plan,” so cities must make roads safe for bicycles, the judges said.
O’Neill is an experienced cyclist who regularly commuted by bike to and from work and often took new routes to challenge her abilities, the court ruling said. Before July 18, 2009, she had never ridden down Sidney Avenue, the record said. As she headed down the hill, the road conditions changed from smooth to uneven. Photographs of the site of the accident showed “gaps between concrete slabs of up to 4 inches and height differentials of more than 1 inch,” the court said. At one point, Pamela’s handlebars jerked to the right, throwing her to the ground. She landed on her head and right shoulder and suffered serious injuries.
A city public works director said in his deposition that the city fixes roadways on a “complaint-based system” and the city had not received complaints about that stretch of road.
To challenge that claim, O’Neill offered testimony from an expert witness named James Couch, a U.S. Cycling Federation coach who owned a bicycle store in Tacoma. He said the breaks in the concrete slab were “enough to cause even the most skilled cyclist to lose control of their bike.”
The Superior Court found that Couch did not qualify as an expert witness and excluded his testimony, but the appeals court said Couch’s knowledge, skills and experience qualified him as an expert and the court erred by excluding his statements.
The judges also said the court erred when it said O’Neill “assumed the risk of poor roadway surface conditions” under the doctrine of implied assumption of risk.
“Falling is an inherent and necessary risk of the activity of cycling, and O’Neill assumed the general risk that she would fall off her bicycle and injure herself,” the judges wrote. “She did not, however, assume the enhanced risks associated with the City’s failure to repair an alleged defective roadway of which the City allegedly had constructive notice.”
True to my technophile self, I’ve embraced all the latest advances in automobile technology. I was driving a few friends back from lunch a few days ago, and they were aghast at how I didn’t even turn my head as my car backed into a tight space. So, the news of the fatal crash involving a Tesla-S in self-driving mode (aka “Autopilot”) broke my heart. I pictured the proud Tesla owner, Joshua Brown (a tech consulting firm owner) who had grown accustomed to trusting his car to drive him in stop and go traffic. That fateful day was sunny, exceptionally bright, when a tractor-trailer turned left in front of the Tesla driver.
The Tesla news release explained:
Neither Autopilot nor the driver noticed the white side of the tractor trailer against a brightly lit sky, so the brake was not applied. The high ride height of the trailer combined with its positioning across the road and the extremely rare circumstances of the impact caused the Model S to pass under the trailer, with the bottom of the trailer impacting the windshield of the Model S. Had the Model S impacted the front or rear of the trailer, even at high speed, its advanced crash safety system would likely have prevented serious injury as it has in numerous other similar incidents.
While my enthusiasm for autonomous cars remains in high gear, this tragedy highlights the fact that the engineers need to reexamine their algorithms to uncover any other possible scenarios where sensors may not react quickly enough to keep all of the passengers safe.
Autopilot is getting better all the time, but it is not perfect and still requires the driver to remain alert. Nonetheless, when used in conjunction with driver oversight, the data is unequivocal that Autopilot reduces driver workload and results in a statistically significant improvement in safety when compared to purely manual driving.
This begs the question: Why have an Autopilot function if an alert driver is constantly required to oversee the Autopilot? Human nature will result in drivers allowing themselves to get distracted, once putting their cars into self-driving mode. What’s the purpose of an autonomous car, if the human behind the steering wheel cannot let her mind wander for even a moment?
(Above KOMO News story aired June 20, 2016)
What does it take to make this treacherous stretch of the First Hill Streetcar tracks safer for cyclists? A few weeks ago, we mourned the tragic death of cyclist Desiree McCloud, who crashed her bike only a few blocks away from where our client, cyclist Daniel Ahrendt, crashed his bike and survived after a Metro bus ran over him. Now, we have Jessica Hicks, who crashed on her scooter a few weeks after Denise Chew, a Tukwila nurse, crashed in the same area. To add insult to injury, Denise’s scooter was auctioned off, while she was unconscious and on a ventilator at Harborview. Really. I’m not making this up.
There are a number of ways that we can make this area safer for those riding two wheels. Bicycle advocates have frequently pointed to flange-fillers (used in a less trafficked area of the First Hill Streetcar line in the International District) or a covered-track system such as VeloStrail (currently used in Europe for curved tram tracks that intersect cyclist/pedestrian paths). As much as I would love to see solutions like those embraced, we also have a number of other less dramatic options. Let’s look at what the City has done on the Second Avenue corridor, soon after the horrific death of young attorney and friend Sher Kung.
We should look at options that keep cyclists away from the tracks with bollards, signalization, bright paint, and education–among other ways. In a future post here, I will share more insights with a transportation engineer, who is well versed in the area of cyclist safety along light rail lines.
The other day, when I watched some attorneys in the courtroom, I was reminded how everyone needs to find their own style. Karen Koehler’s trademark Velvet Hammer style is now legendary. But, the reason why the name fits Karen like a glove is because it captures who she is–inside and outside the courtroom. She hammers away, but people don’t even realize it because of her delivery.
Sit back and enjoy a quick cup of coffee, while you listen to me chat for a few minutes with the Velvet Hammer.
P.S. Stay tuned for more details on how to subscribe to our podcasts via iTunes, etc.
A little over a year after my client, Daniel Ahrendt, caught his tire at the intersection where First Hill Streetcar tracks curved onto the bike lane. I’m saddened, but not surprised to learn about 27 year old Desiree McCloud’s death. She too crashed along the same tracks, close to where Ahrendt was run over by a Metro bus. Witnesses apparently saw her flip over her handlebars and hit the pavement.
The South Lake Union cyclist crash cases were dismissed because the City argued that bicycles were not considered “ordinary travel” along the South Lake Union route. In fact, the City had planned to ban bicycles there.
However, in Daniel’s and Desiree McCloud’s cases, the City included bike lanes along the First Hill Streetcar line. The argument that bicycling is not considered “ordinary travel” cannot pass muster for our injured/killed cyclists who were invited to ride their bikes on this hazardous portion of the streetcar line. We must not blame cyclists, when the City developed this new streetcar line with eyes wide open regarding the extraordinary hazard that the curved tracks pose to cyclists and those on wheelchairs.
Note, there are rubber flangeway fillers along this streetcar line in the International District by 8th Avenue. Why there aren’t flangeway fillers or something else that will prevent cyclists from unintentionally falling into these curved tracks escapes me. Excuses about the cost in replacing the rubber or maintaining them is absurd. How many lives and serious injuries does the City need to see, before it does something like it did in response to the injuries and deaths from cyclist crashes on Second Avenue?
Please visit the donation page that Desiree’s family put up, which will go to cover medical costs, etc.
The scent of baby powder is more evocative than that of coconut, chocolate or mothballs, according to Johnson and Johnson’s findings from blind tests. The multibillion dollar behomoth has apparently kept under raps any scientific studies that connect ovarian cancer with its baby powder. Instead, it persists with its marketing of the powder, which is considered “cosmetic,” and thus escapes FDA regulatory approval:
At Johnson’s®, we love babies. And we understand how to soothe and relieve baby soft skin. That’s why Johnson’s baby powder is designed to gently absorb excess moisture helping skin feel comfortable. Our incredibly soft, hypoallergenic, dermatologist and allergy-tested formula glides over skin to leave it feeling delicately soft and dry while providing soothing relief…
In the meantime, in the past several months we have seen some large verdicts against Johnson & Johnson for ovarian cancer cases. Just today, the NY Times Well blog discusses recent baby powder-ovarian cancer cases against Johnson & Johnson. Our firm is actively representing a client who has been an ovarian cancer patient for a few years, and who only realized that her decades’ long ritual of using Shower-to-Shower is linked to ovarian cancer. If you or someone you care about has ovarian cancer and has also had the routine of using talc powder, I would like to speak with you about your possible case. Email me at Catherine@Stritmatter.com or call me at 206.448.1777.
Johnson & Johnson: We have a problem. And you need to inform the public about it, rather than sweeping it under the rug.
In my hometown of Pittsburgh, Uber is working with my alma mater, Carnegie Mellon, to test its driverless cars. A little over a year ago, Uber’s Advanced Technologies Center opened in partnership with Carnegie Mellon University. Since then, Uber has been revving up its autonomous car testing team. Now, you can find its Self Driving Vehicle (SDV, a.k.a fully autonomous vehicles, i.e. driverless cars) out on the roads of the Steel City to test its real world capabilities.
While driverless cars seems like a solution for Uber, legal issues remain. Sure – SDVs may omit all of the driver-related legal issues that continues to haunt Uber. Bur new and not fully resolved issues emerge. For one, NHTSA has considers the “driver” of SDVs to be the system itself. Thus, in response to Google’s own inquiry (a different project than Uber’s) NHTSA indicated that for Google’s SDVs, the system is deemed the “driver”. This leads us back to the question of who or what is the driver of an SDV.
How might this get parsed for insurance coverage? Good question. The insurance industry will get back to us on that.
According to a McKinsey & Company report suggested how they might do so:
Car insurers have always provided consumer coverage in the event of accidents caused by human error. With driverless vehicles, auto insurers might shift the core of their business model, focusing mainly on insuring car manufacturers from liabilities from technical failure of their AVs, as opposed to protecting private customers from risks associated with human error in accidents. This change could transform the insurance industry from its current focus on millions of private consumers to one that involves a few OEMs [original equipment manufacturers] and infrastructure operators, similar to insurance for cruise lines and shipping companies.
In all probability, liability arising from a car crash with a driverless system will trace back to the manufacturer. This concern may discourage a lot of potential manufacturers from leading the race to develop the best autonomous systems. But, Google, Uber and GM–among other companies–are certainly investing a lot of time and money into developing SDVs.
Remember, too, that Google’s self-driving cars have already gotten into a few minor accidents. As we all know, technology is not perfect. And when technology fails, the SDV manufacturers will be the ones burdened with huge liabilities. Time for them to start getting more insurance, while perhaps not so much for individual consumers.