Advice to Plaintiffs

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Why do corporations hate class action lawsuits?

Let your congresspeople and senators know that they can’t kill class actions–one of your most powerful weapons against corporate wrongdoing.

Corporations love to demonize class action lawyers. Guess why? You can likely figure this out on your own, but I’ll spell it out here: Because a class action lawsuit is one of the most powerful tools that consumers have to make corporations accountable for their negligence. But the media doesn’t like to focus on the topic of class actions much because it’s not easy to digest via 10-second sound bites. Thus, witness another week of breathtaking, frenzied stories about the Trump administration. Reporters and talking heads gravitated to discussions about the abrupt departure of Flynn and Trump’s 77 minute presser. Meanwhile, a majority in the House worked in concert to destroy consumers’ most powerful tool to hold corporations accountable. That’s right, this past Wednesday the House Judiciary Committee voted on party lines to gut consumer protection class actions.

Interestingly, the corporate lobbyists’ anti-class-action talking points are eerily similar to the proposed “Fairness in Class Action Litigation Act of 2017,” introduced last week in the House of Representatives. Coincidence? Of course, not.

Most of the proposed procedural rule changes in Representative Bob Goodlatte’s  are directly traceable to the business lobby’s anti-class-action talking points. Goodlatte – a Virginia Republican and chair of the House Judiciary Committee is seizing on the corporate-friendly climate. He’s expanded last year’s proposed changes in a similarly named bill that was approved in the House but died in the Senate. If Congress adopts Goodlatte’s bill in anything like its current form, class actions will lose much of its potency. 

The bill will make class actions much more difficult to survive the most critical milestone–certification. And, for those class actions that would survive, the bill would make those automatically appealable. Moreover, the bill seeks to strip away attorneys’ fees so that fewer plaintiffs attorneys will pursue these.

Most consumers think that class actions are big, nebulous things that have little to do with their lives. But if you talk to regular people such like my class action clients, you’ll realize that the Congress needs to stop trying to striking fatal blows to this important vehicle for justice. Like my clients, consumers throughout this country need class action attorneys to fight for them because they can’t or don’t want to spend thousands of dollars and countless hours to fight a giant corporation. My class action clients are like your neighbors, your relatives, your colleagues, and your friends. They are Republicans, Democrats, and Independents. But, for them and for me, these lawsuits are not about politics. It’s about trying to hold a massive company accountable, when an individual consumer is wronged.

We all know that corporations are focused on maximizing profits. To maximize profits, these companies will cut corners, which often result in a harm to the consumers. When a consumer finds that they have a defective product or that their most private information has caused significant harm to them and their bank accounts, they are not sure who will go to bat for them. This is why class action attorneys play a critical role in leveling the field for the citizen who’s suffered injury because a manufacturer used shoddy material, security or processes.

Please, email/call/write your representatives and let them know that they represent your interests–not the corporations who’ve donated tens of thousands of dollars to their campaign.

Still “standing” after Spokeo. Time will tell what 2017 holds in store…

For consumer class action attorneys like myself, we can continue to count our blessings for the moment.  Indeed, a number of courts across the country continue to make commonsense and carefully crafted opinions that confer Art III standing for statutory damages claims.

I have much faith in the Ninth Circuit Court of Appeals. The panel just heard oral arguments,  as the U.S. Supreme Court had remanded Spokeo (back on Dec. 13th). The 9th Cir.’s new challenge is to tackle the concreteness requirement with newfound gusto. Judge O’Scannlain found it difficult to move past her view that Mr. Robin’s allegations (the resulting inability to find work because of a grossly incorrect report about him) were ostensibly sufficiently concrete, tangible harm. However, Counsel for Plaintiff, William Consovoy kept focus on the issue that the Spokeo court harped on: Defendant was making this about an apparently intangible harm that has yet to run through the rigors of a concreteness test as the one that Alito pieced apart in his majority opinion…

Well, hang tight, as the panel will render its decision in the early portion of next year. From that, we’ll get more guidance about what that court thinks is needed to satisfy Art. III standing requirements…

We have some phenomenal judges, such as Judge Lucy Koh in the N.D. of CA in the 9th Circuit. She recently decided the Matera v. Google case, which laid out a clear, incredibly thoroughly reasoned opinion indicating why specific allegations are substantive violations. As such, these violations give rise to sufficiently concrete and particular injuries in fact. Stay tuned for a more detailed analysis of her 9/23/16 order. I hope to write more about that case here as I reflect on the year’s developments in privacy law.

I will also write more about this a couple of recent cases out of the E.D. Va, including my insights regarding Thomas v. FTS, which lays out some strong arguments that a statutory damages class action attorney may want to crib. A fun but rocky ride ahead of us is guaranteed…

5,300 Wells Fargo employees fired for opening dummy accounts

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.

Post Spokeo: Data breach class actions see vastly different results

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.

Self-Driving Cars: Why they need to be at least 2x’s better than humans.

A Tesla-S model with self-driving mode enabled was involved in a fatal crash. Photo: Bloomberg/Jasper Juinen

A Tesla-S model with self-driving mode enabled was involved in a fatal crash. Photo: Bloomberg/Jasper Juinen

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.

Tesla states:

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?

Another cyclist crash on the First Hill Streetcar tracks demands change

(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.

How many cyclist deaths/injuries along First Hill Streetcar Tracks does City need to make changes?

Desiree McCloud, 27 year old, got her tire caught in the curved First Hill Street Car tracks, close to where my client Daniel Ahrendt crashed his bike and was run over by a bus.

In the far right corner of photo is where the First Hill Streetcar tracks curve into the cyclist lane. Desiree McCloud, 27 year old, got her tire caught in the curved First Hill Street Car tracks, close to where my client Daniel Ahrendt crashed his bike and was run over by a bus.

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.

Top red arrow shows where Desiree crashed her bike. Lower red arrow shows where Daniel crashed his bike. Notice any similarities?

Top red arrow shows where Desiree crashed her bike. Lower red arrow shows where Daniel crashed his bike. Notice any similarities?

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.

Johnson & Johnson: We have a problem

Countless women believe that baby powder is safe enough for babies and for them. (Photo: Silroby80 via Shutterstock)

Unaware of decades of studies linking talc powder to ovarian cancer, countless women believe that baby powder is safe enough for babies and for them. (Photo: Silroby80 via Shutterstock)

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.

Driverless cars have a “driver” says NHTSA

Uber's driverless cars are doing real world testing already.

Uber’s driverless cars are doing real world testing already.

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.

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