Our heart goes out to these families and first responders. The horror depicted in the picture above pales in comparison to the inside of those trains, and the path forward after an event like today’s Amtrak 501 disaster involving multiple fatalities and dozens of injuries.
News is starting to break about potential causes. Amtrak President and Co-CEO Richard Anderson said Positive Train Control (“PTC”) was not activated on the tracks at the time of the derailment. PTC automatically slows the train if it senses the train is going too fast or may crash. Railroad investigator John Hiatt told CNN, “If there was no Positive Train Control in effect there, then shame on them.”
Responsibility for this tragedy is likely to be complicated. The train that derailed this morning was owned by both Washington State and Oregon Departments of Transportation. Amtrak is responsible for service and daily operations. The tracks are owned by Sound Transit. Because this was the “inaugural” trip, independent engineering and transit firms are also in the mix.
Our firm represents 39 victims–a substantial majority–of the Ride the Ducks crash, believed to be the worst mass transit disaster in Seattle history. It involves many of the same issues likely to be investigated in the Amtrak 501 disaster: product design and failure, maintenance or operator failure, and fatal public transportation flaws. With numerous parties and distinct legal theories, this is as complex as litigation gets. These cases require dozens of depositions, ten or more forensic experts, lab and engineering testing on an enormous scale, and hundreds of thousands of pages in documentary evidence.
In the Amtrak 501 disaster, the NTSB will most likely release a preliminary statement concerning potential causes in the coming days or weeks. The full NTSB investigation can take months or years. The NTSB will ultimately hold a hearing regarding the information gathered and its conclusions as to the causes and responsibility for the disaster. NTSB conclusions are not directly admissible in court, however, so the victims of a mass transit disaster still must investigate on their own.
A lot can be learned through comprehensive public disclosure requests and extensive fact-finding investigations in litigation. First responders will likely conduct a review of the crash and their response to a mass casualty incident (“MCI”). Although there are several definitions of MCI, it typically refers to an incident where the scope of the injuries and circumstances on scene force first responders to abandon the ordinary standard of care that would apply to one-to-one (or similar ratio) medical response. An incident will often be declared an MCI during the initial response on scene, which signals to medics and other authorities that they need to triage patients and coordinate the scene. From that point forward, first responders employ a chain of command with assigned groups such as Rescue Group and Operations.
In an MCI, documentation and immediate identification of victims can be impossible. We took 19 depositions of first responders in the Ride the Ducks disaster to piece together the carnage of the scene and swift MCI response by the Seattle Fire Department. After 30 more depositions, the truth reveals itself.
That is, after all, the main goal victims have–what happened to me and my family, and why? I hope the victims of the Amtrak 501 disaster get the answers they deserve.
NOTE: This blog post is excerpted from AndrewAckley.com
Dear Equifax – Your actions and conduct tell us that that the only thing you really care about is making more money. You would love for us to forget your negligent handling and safeguarding of consumer and business customer data. Over the weekend, one of the main topics of conversation that I kept hearing was about the Equifax data breach and Equifax’s absurd response to the breach. People were infuriated because–not only did Equifax screw them for failing to protect their sensitive data– but Equifax is now screwing them again for its abysmal response to one of the country’s most horrendous data breaches of its kind. Post breach, Equifax rubbed salt into the wounds of the many millions whose Personally Identifiable Information (PII) was compromised by promoting its own identity theft services. Yes – you got that right: Equifax has the nerve to profit from its own negligence.
Many of the folks who complained to me about Equifax didn’t realize that I was about to file a class action lawsuit. What they couldn’t understand was how this this multi billion dollar company could be so negligent and reckless with their valuable Personally Identifiable Information. After all, shouldn’t this company have done more given that it has over a $12 billion market cap and that it is specifically in the business with its use, collection, and brokering of “trusted unique data, innovative analytics, technology and industry expertise to power organizations and individuals around the world by transforming knowledge into insights that help make more informed business and personal decisions.” (Equifax’s own description of itself). They just knew that I had already sued Anthem for their massive healthcare data breach, and they were dying to know what I might do about Equifax’s data breach
My short reply to all of these incredibly frustrated consumers and business owners: Equifax’s actions seem to tell us that they care more about making more money and not much else. Why else would they send millions of panic stricken people to their breach incident site, which didn’t even have the proper security in place. If any diligent and skeptical visitor researched the site, one would have found that it wasn’t even registered to Equifax until some time late yesterday.
Of all companies, Equifax should have made the security of its database its top priority. But rather, it seems more interested in giving a free 12-month trial of their credit monitoring service. BTW: If you agree to this service, know that you’ll waive your right to sue them. Read more about it in the attached Class Action complaint, which I filed earlier this a.m..
Do you think that a “free” 12 month trial offer for credit monitoring and “identity theft insurance” is enough, after all that Equifax has done to allow bad actors to access your detailed PII? I hope not. If you are interested in joining other consumers and business owners to hold one of the country’s largest credit reporting bureaus accountable for its negligence and deceptive business practices, please contact my firm, Stritmatter Kessler.
Today, the parents of Charleena Lyles got a chance to tell their story following the fatal shooting of their daughter at the feet of Seattle Police. Read more about the case here. This is the first step on their long path to find justice. Although, nothing can bring their daughter back.
Karen Koehler, aka “The Velvet Hammer,” travels the country year round to give presentations to trial lawyers. For lawyers in the Pacific Northwest, mark your calendars for the upcoming Oregon Trial Lawyers Association (OTLA) Convention at Sunriver Resort (Aug. 4 – Aug.6 ). For those of you who haven’t met her in person yet, please understand why she is one of the most sought after trial attorneys in the country: She is a powerhouse in a petite package.
Here’s an excerpt from OTLA’s convention newsletter:
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.
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…
Hopefully making the most out of the extra hour yesterday, transportation workers were busy at work around Seattle yesterday. Why? They were installing 145 signs announcing the new 25 mph arterial-speed limit. The policy behind lowering the arterial speed limit is to reduce traffic related injuries and fatalities.
So…. take note:
The residential speed limit of 25 mph falls to 20 mph throughout the city, including hundreds of unmarked roads — in many cases, too narrow for drivers to exceed 20 anyway.
• The default speed limit of 30 mph for arterials drops to 25 mph citywide,“unless otherwise posted,” according to new signs at the city entrances.
This last point may confuse drivers because some outlying streets that were historically 30 mph have sporadic signs, due to abuse and neglect. The City Council unanimously approved the changes Sept. 26 and is looking to extend the program next year.
Friends at Seattle Greenways were big proponents of this change. Kudos to Cathy Tuttle and Gordon Padelford!
People walking and biking have a 90% chance of surviving if hit by a car driver going 20 MPH. But at 30 MPH there is only a 50-50 chance of survival.
You can help move Seattle towards safer speed limits, right now.
What’s the proposal? The city council is considering lowering speed limits on non-arterial streets from 25 MPH to 20 MPH, and in downtown on arterial streets from 30 MPH to 25 MPH (see the City’s FAQ).
Why should you care? If you have a young child, elderly family member, or if you are a pedestrian/cyclist in Seattle, this means safer streets for you and your family.
How will this proposal make a difference? This proposal makes sense. Our neighborhood streets are where we raise our families, talk to our neighbors, play in our front yards, and walk to school. Neighborhood streets should be quiet, calm, and safe places that enhance our quality of life. Downtown streets have the highest concentration of collisions between people walking or biking and people driving, and lowering the speed limit will help. Speed limit changes are only a small, but important, part of a comprehensive Vision Zero effort to eliminate serious injuries and fatalities on our streets by 2030. Learn more.
How you can help:
- Tell the City Council why adopting safer speed limits is important to you and your community. Or if you are too nervous to speak, hold signs in support.
- When: 2:00 (show up at 1:50 to sign up), Tuesday, September 20th
- Where: Seattle City Hall’s main council chambers. If you are having trouble finding the chambers, simply ask anyone you see inside the building.
Please let Gordon Padelford know if you can join to support the legislation on Tuesday.
If you can’t make it: Please call your city council members and let them know you are supportive:
Tim Burgess (Citywide): 206.684.8806 | firstname.lastname@example.org
Lorena González (Citywide): 206.684.8802 | email@example.com
Find your city council district here.
Lisa Herbold (Dist 1): 206.684.8803 | firstname.lastname@example.org
Bruce Harrell (Dist 2): 206.684.8804 | email@example.com
Kshama Sawant: (Dist 3) 206.684.8016 | firstname.lastname@example.org
Rob Johnson (Dist 4): 206.684.8808 | email@example.com
Debora Juarez (Dist 5): 206.684.8805 | firstname.lastname@example.org
Mike O’Brien (Dist 6): 206.684.8800 | email@example.com
Sally Bagshaw (Dist 7): 206.684.8801 | firstname.lastname@example.org
Thank you for all that you do!
NOTE: Printed with minor modifications and with permission from my friends at Seattle Greenways, specifically SG Policy Director Gordon Padelford.
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.