Class Action Lawsuits
Judge Coughenour said although a private agreement may have been reached between the parties before the start of the litigation, no deal has been presented to the court. Further, Nordstrom has only offered “vague” privacy concerns related to the release of the information that don’t trump the strong presumption that judicial documents be made public.
“It is possible that Plaintiff violated a private agreement by filing this lawsuit and converting non-public information into a judicial record,” Judge Coughenour said. “However, the Court is not presently tasked with interpreting or enforcing any promises made by Plaintiff to gain access to Nordstrom‘s records.”
Although the complaint was originally filed last month, specific figures detailing the approximate costs of the operation and other information is redacted in the complaint. Nordstrom, which sought to keep the data secret, argued that details related to the board’s “travel habits” should be kept private. The company said Burbrink, who obtained the information through a formal request for company records, agreed to keep the information a secret.
Nordstrom has maintained in SEC filings that the company charges the family market prices for services it provides them. Moreover, the company has stated that payments it receives from the family exceed the estimated costs of providing those services. It has denied the allegations in the complaint and said it will be vindicated in court.
However, the lawsuit claims that contrary to those filings, Nordstrom’s board “has never conducted any analysis of the costs of providing the services to the Nordstrom family.”
The complaint goes on to say that Nordstrom has been operating a “bloated and costly” flight department to manage company planes, as well as personal aircraft for the Nordstrom family. Burbrink claims the flight department has cost shareholders millions of dollars.
Nordstrom and an attorney representing Burbrink declined to comment on the order.
Burbrink is represented by Brad J. Moore of Stritmatter Kessler Whelan, Hung Ta, Natalia Williams and JooYun Kim of Hung G. Ta Esq. PLLC, Peter Safirstein and Roger Sachar of Morgan & Morgan PC and Konstantine W. Kyros of Kyros Law Offices.
Nordstrom is represented by David S. Keenan, Robert P. Varian and M. Todd Scott of Orrick Herrington & Sutcliffe LLP.
The case is Judith Burbank v. Phyllis J. Campbell et al., case number 2:15-cv-00377, in the U.S. District Court for the Western District of Washington.
We are actively investigating a class action lawsuit against Anthem for Washington State consumers. We have spoken with a few individuals who have already received a notice of the data breach. If you know of someone in Washington who was insured with Anthem and who has received notice of the breach, please contact me at Catherine@stritmatter.com or Counsel@stritmatter.com.
Each week gets busier at our offices at Stritmatter Kessler Whelan. In today’s Seattle Times, one of the two* articles about SKW’s cases focuses on a senseless tragedy arising out of a routine procedure that 53 year old Lisa Miller had at Virginia Mason Medical Center in June 2013. Ms. Miller was the mother of two children and wife to Allen Miller. A VMMC doctor recommended to Lisa that she have a routine procedure (endoscopic retrograde cholangiopancreatography or “ERCP”) to get to the bottom of her recurrent pancreatitis. But, a few weeks after her second “routine” procedure, she died of acute necrotizing pancreatitis. The autopsy report points to Virginia Mason contaminated duodenoscope made by medical device manufacturer Olympus.
For several years, Olympus America had known that its instructions for cleaning its duodenoscopes were ineffective and had resulted in severe infections and death. But it had not timely disclosed this critical, life-threatening detail to medical centers around the country, which used its scopes.
Then, once VMMC learned (the news came out earlier this year) that Olympus America scopes had caused illness and death to some of its patients, it chose to sit on this information. VMMC, contrary to its well-publicized policy of “transparency,” chose not to tell the family that Ms. Miller died due to an infection caused by a contaminated Olympus duodenoscope.
When Allen read the initial news story in the Seattle Times, he reached out to our firm to pursue justice against the scope-maker, Olympus and against Virginia Mason Medical Center (VMMC). VMMC had never informed Lisa or Allen about the superbug outbreak or concerns about the routine procedure that was tied to a superbug outbreak among at least 32 VMMC patients.
*See previous blog post to learn about the other Seattle Times article that appeared on today’s front page.
Today’s Seattle Times front page article reports on the case against Nordstrom that I blogged about a couple weeks ago. Big corporations have perpetuated the myth that shareholder lawsuits are simply to line the pockets of attorneys. Let me address that head on: Shareholders like Judith Burbrink (the Nordstrom shareholder-plaintiff in this case) are smart to look out for their own interests rather than cast a blind eye to the company’s financial reports. Because of cases like this, corporations that have a family legacy will hopefully think twice about allowing extravagant travel expenses for executives and their relatives.
There are many individual investors that simply trust that their interests as shareholders are well guarded. After all, only a few like Ms. Burbrink have the patience or time to sift through details about how a company’s fleet of planes is used. Does it make sense to side with the corporations or with the investor? Retail investors should thank her. Aren’t you glad for some checks-and-balances that Washington lawmakers put in place for the rare shareholder who cares enough?
Full disclosure: Consumer protection/class action attorney Brad J. Moore of Stritmatter Kessler Whelan is local counsel on this case.
Washington State Insurance Commissioner Mike Kreidler is not the only one who is wondering why it took Premera so long to act, after realizing that at least 11 million individuals’ information were exposed to a data breach. We are too and want to see the large class of Premera customers find justice.
Hackers had unauthorized access to approximately 6 million in Washington and the other 5 million in Alaska and Oregon whose information. There are possibly other markets associated with this breach that extends beyond Washington, Oregon, and Alaska.
Our firm is pursuing a class action to obtain a meaningful recovery for all of the victims involved as the result of Premera’s lack of vigilance over their customer’s data. Please contact PremeraClass@Stritmatter.com, as our attorneys want to speak with you ASAP. Our own Brad J. Moore, who is at the helm of the country’s largest public interest law firm (Public Justice) has a long track record of success with some of the largest consumer protection class action lawsuits.
According to KUOW, after Premera called Kreidler to inform him about the data breach that had occurred over a month before, he asked his staff to find out why it took the health insurer so long to inform everyone about this significant news.
He’s launched a multistate investigation of Premera, explaining: “We would have been heavily engaged in this activity weeks ago if we’d been afforded the opportunity to know in a more timely basis. It was clear once we were notified. Which is part of the irritation right now. It took six weeks.”
The class action/consumer protection attorneys are all for Kreidler’s idea about establishing rules that would have compelled Premera to reveal the information within hours, not weeks.
Again, if you or someone you know was or is a Premera insured and believe that sensitive information was accessed in an unauthorized manner, contact us at PremeraClass@Stritmatter.com
Many questions ran through my head about Premera’s information security, when news came out earlier this week about its massive data breach involving at least 11 million customers first hit the news. Initially, some praised Premera’s response to the sophisticated cyber attack that reportedly occurred in May 2014. However, it turns out that before the breach ever occurred, a federal watchdog agency (Office of Personnel Management’s Office of Inspector General) notified Premera of at least 10 ways that it should address a range of security weaknesses that the audit of their systems revealed.
Among the weaknesses found by the Office of Personnel Management’s Office of Inspector General’s audit were issues related to patch management, insecure server configurations and weakness related to password history configuration settings
Pop. With the news about the fed audit and findings, the bubble of hope in my mind burst: Looks like Premera had not done everything possible in securing its customers’ data before the May 2014 cyberattack. In fact, Premera had “respectfully disagreed” with some of the recommendations related to patches “as it believe[d] deployment of critical security patches is in compliance with the documented patch management policy provided to the OPM audit staff.”
OIG didn’t agree:
The results of the vulnerability scans performed during the fieldwork phase of this audit indicated that Premera was not in compliance with its policy for deploying patches within a specific timeframe based on criticality. As part of the audit resolution process, we recommend that Premera provide OPM with evidence that it has adequately implemented this recommendation. [emphasis added]
The onsite portion of the audit was conducted during January and February of 2014, with additional offsite audit work performed by OIG before and after the on-site visit. The draft report that OIG issued to Premera on April 18, 2014, was based on Premera’s security controls as of March 2014, according to a final version of the report that OIG issued publicly in November 2014.
In a statement earlier this week, Premera, based in Mountlake Terrace, Wash., said that on Jan. 29, it discovered that cyber-attackers had gained unauthorized access to its systems, exposing information on 11 million individuals. An investigation by forensic experts hired by Premera shows that the initial attack occurred on May 5, 2014, the insurer says. That’s less than a month after OIG issued its draft audit report. What unfortunate timing for Premera and all of its insureds…
Granted, no one is yet saying that had Premera timely compliance with OIG’s recommendations would have thwarted the May 2014 cyberattack. The facts should illuminate all of us at some point down the road*. In the meantime, privacy experts such as Kate Borten point out that “failure to patch and unsecure configurations are vulnerabilities we’ve known about for decades…Regardless of whether they contributed to this latest attack, every organization – large and small – should pay attention to such common issues… Make it a priority to keep up with patches. Run vulnerability scans and respond to them by correcting security problems. Make sure your tech and infosec staff understand these security risks, and train them if not.”
NOTE: Stritmatter Kessler Whelan is researching a potential class action against Premera. If you or someone you know had an individual plan (not on a company sponsored plan), please contact me at Catherine@Stritmatter.com.
Yesterday, a court order to unseal the entire court file in the massive whistleblower case against Trinity Guardrails (maker of now infamous ET Plus guardrails) will likely save many lives. This file contains literally hundreds of sealed pleadings and exhibits relating to a dangerous highway guardrail that’s been linked to dozens of deaths and injuries. The court also held that all of the testimony and exhibits from a recent trial of the case must also remain open to the public, effective immediately.
Below is an excerpt from the Public Justice website*:
The [court order to unseal all of the files for public access] is so important in this case. A major highway guardrail manufacturer, Trinity, will not be able to hide the fact that it kept its changed guardrail design from the federal government and that that guardrail design is unsafe. The victory also means that the public has access to facts that will be critical for making the case that the federal government should withdraw its approval of these guardrails. And it’s ammunition for states seeking to phase out and remove these lethal guardrails from our highways.
Trinity was sued for defrauding the federal government by changing the design of its guardrail end terminals, not conducting appropriate crash tests on the new design, and not telling the federal government about the changes—meaning that the guardrails remained on the Federal Highway Administration’s list of approved guardrails. A jury found that Trinity defrauded the government to the tune of $175 million.
Because of the design change, when the terminal is hit by a car, instead of absorbing the energy of the crash and slowing the vehicle, the guardrail jams and turns into a potentially lethal spear. Drivers and their passengers have been decapitated, their limbs have been severed, and they have been stabbed by these guardrails. A study by Public Justice client, The Safety Institute found that the redesigned Trinity guardrail was 2.86 to 3.95 times more likely to be involved in a lethal accident and 1.36 to 1.95 times more likely to be involved in an accident with serious injury than Trinity’s older design.
In the case against Trinity, huge swaths of court records—including crash test documents—were filed under seal. On behalf of The Safety Institute and the Center for Auto Safety, consumer protection attorneys sought to intervene to unseal the records. Although our motion to intervene was denied, our efforts to unseal the records helped to convince the court to do the right thing.
*NOTE: Stritmatter Kessler Whelan partner Brad J. Moore currently serves as President Elect of Public Justice, the country’s largest public interest law firm.
Recently, I wrote about a jaw-dropping story about the carbapenem-resistant Enterobacteriaceae (CRE) “superbug” related deaths stemming from duodedenscope procedures done at Seattle’s Virginia Mason. The news was just surfacing as I wrote about it, as the public started to learn about the details. Shortly after the news hit the airwaves, victims and their family members contacted our law firm, Stritmatter Kessler Whelan, to hear their tragic stories. As we delve into their stories, it is unfortunately not a surprise to see that the FDA just issued a warning addressing those including gastroenterologists, gastrointestinal surgeon, endoscopy nurses, as well as patients considering endoscopic retrograde cholangiopancreatography (ERCP) procedures.
The FDA’s purpose in issuing this February 19, 2015 warning:
The FDA wants to raise awareness among health care professionals, including those working in reprocessing units in health care facilities, that the complex design of ERCP endoscopes (also called duodenoscopes) may impede effective reprocessing. Reprocessing is a detailed, multistep process to clean and disinfect or sterilize reusable devices. Recent medical publications and adverse event reports associate multidrug-resistant bacterial infections in patients who have undergone ERCP with reprocessed duodenoscopes, even when manufacturer reprocessing instructions are followed correctly. Meticulously cleaning duodenoscopes prior to high-level disinfection should reduce the risk of transmitting infection, but may not entirely eliminate it. [emphasis added]
The ERCP endoscopes or duodenescopes are apparently quite difficult to clean, despite the detailed reprocessing instructions. This detail, however, is little comfort to those who have lost a family member or who themselves have had to battle the CRE. At the UCLA Health System at least two deaths related to the “superbug” endoscopic procedure occurred at its facility. Additionally, over 100 patients are thought to have likely been exposed to the “superbug” at the UCLA facility during endoscopic procedures between October 2014 and January 2015.
According to the AP, an 18-year-old student now hangs on by a thread after he was infected by a “superbug” outbreak tied to contaminated medical instruments at the Ronald Reagan UCLA Medical Center.
Between the beginning of 2013 to the end of 2014, the FDA received 75 device-related reports relating to 135 patients linked to possible microbial transmission from reprocessed duodenoscopes. More troubling news is that the agency states that it’s possible more cases went unreported. The FDA it’s working with the Centers for Disease Control and Prevention and the manufacturers of the devices in order to find solutions to the problem.
On my way to work a few days ago, I heard an astonishing news story on NPR about how at least 35 patients at Virginia Mason grew ill and 11 of whom died after contracting a superbug infection. The part that stunned me the most was that Virginia Mason did not disclose to the patients or patients’ family any details that would have clued them in on the fact that they had contracted this superbug. The rationale was that there was nothing that the patients could do to reverse the damage already done. Wow. There are no known medical malpractice/negligence lawsuits against Virginia Mason–not yet. As the NPR interview of JoNel Aleccia, Seattle Times Health reporter, emphasized, this information has just surfaced from publicly disclosed reports.
According to a recent Seattle Times article, dozens of patients at Virginia Mason Medical Center were infected with a drug-resistant bacteria known as carbapenem-resistant Enterobacteriaceae (CRE) between 2012 and 2014. This was as a result of contact with contaminated endoscopes.
Hospital and public health officials in Seattle did not disclose to patients and their families the cause of the infection at the time of illness, according to the Seattle Times. Nevertheless, public health officials point out that no one is yet certain what role the bacteria had> After all, these patients who underwent the procedure were already critically ill with colon or pancreatic cancer.
“We discovered a problem more than a year ago, we responded quickly to investigate potential causes, and we worked to fix the problem,” the hospital said in a statement to CBS News. “The few patients who were affected by this bacteria received appropriate and timely medical treatment.”
The specialized endoscopes — known as a duodenoscopes — are used to treat patients with pancreatic cancer and other gut illnesses. Hospital personnel say the devices were cleaned in compliance with the manufacturer’s instructions but they still carried traces of the bacteria. The bacteria found on the endoscopes matched cultures taken from ill patients, according to officials investigating the case.
According to a CBS website article, CRE is resistant to a majority of antibiotics and, on average, kills 50% of those infected. Similar cases of patients contracting superbugs in Pittsburgh and Chicago via contact with endoscopes have emerged recently.
“We determined that the endoscope manufacturer’s, as well as the federal government’s, recommended guidelines for processing the scopes are inadequate,” the hospital statement said. “This is a national problem. We’ve developed and implemented a better and more thorough process for preparing scopes that is the most rigorous in the nation. We believe our method for preparing endoscopes for medical procedures should now become the national standard.”
Some experts are blaming the device’s design for causing the infection. The end of scope contains “elevator wire channels,” which are essentially small flaps that hold stents and other components of the device. These channels may harbor hidden bacteria that’s difficult to thoroughly clean. Commenting on the case, the U.S. Centers for Disease Control and Prevention say the design “makes them difficult to clean with the potential for contamination persisting following reprocessing and subsequent transmission of pathogenic bacteria to patients.”
The CDC has contacted the U.S. Food and Drug Administration about the case. However the FDA, the agency tasked with reviewing and approving all medical devices used in the U.S., has not yet issued a warning or recall for this particular model of endoscope.
A spokesperson for the FDA told the Seattle Times that the agency believes the infection rate from the device is very low, and it is critical for performing a life-saving procedure on as many 500,000 patients in the U.S. each year.
Dr. Michael Gluck, Virginia Mason’s chief of medicine, said the hospital is joining forces with patient advocate groups to urge the FDA and manufacturers of duodenoscopes to change the design and make it easier to thoroughly clean. (UPDATE March 4, 2015 For more recent news about this issue, read “Could the FDA Have Done More?“)