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Wing-less Plaintiffs Prevail in Preemptive Settlement

Posted on Friday, November 21st, 2014 at 3:01 pm    

icarusPopular energy drink is under fire for failing to live up to its slogan, which was “Red Bull gives you wings.”

Austria-based Red Bull GmbH which manufacture and market the energy drink Red Bull agreed to pay all U.S. claimants that purchased the drink from 2002 between $10-15 as compensation for alleged false advertising. It could be argued that the slogan was merely an exaggeration and not meant to be taken literally.

The idea that those who drink the product expected to actually develop wings may seem far-fetched. From a legal point of view, apparently, the claim had merit because the case was successfully certified for class action.

Whether the courts would continue to look favorably on the claimants’ stand will never be known though. Red Bull decided to agree to a $13 million settlement, half of which is slated for the estimated 1.4 million people who may make a claim rather than go through the litigation process although they continue to defend their position that notwithstanding the slogan their advertising was accurate and truthful.

After all, puffery is an accepted part of advertising, and in most cases the legal doctrine caveat emptor or “buyer beware” curtails the liability of companies for using flowery language to sell their products. In the case of Red Bull, however, the $13 million price tag to avoid legal wrangling was probably a smart move, considering that the product garnered billions of sales for its manufacturer over the years. Officially, drinking Red Bull does not give you wings.

The SEC and the Issue of Foreign Whistleblowers

Posted on Thursday, October 9th, 2014 at 9:20 am    

shutterstock_169965725When a whistleblower in the U.S. is terminated for exposing illegal practices of a company or organization, they have recourse to anti-retaliation provisions stipulated in the Dodd-Frank Wall Street Reform and Consumer Protection Act enacted in 2010. These regulations were part of broader efforts to make it easier for the federal government to keep an eye on institutions and enforce regulations. However, when a whistleblower is not on U.S. soil but still provides information that impacts U.S. concerns, these protections do not apply.

The global market is increasingly impinging on all parts of the world and in all industries, so it is entirely likely that important information about a company trading or doing business in the US that does not conform with standards may come from a foreign source. This is a boon for the Securities and Exchange Commission (SEC), which is the regulatory body for businesses both local and foreign, and they are willing to pay for it. In one recent case, the SEC announced that it paid $30 million to a foreign whistleblower of a publicly traded company that operates in the U.S.

In 2013, the SEC revealed that there were 404 reports made by whistleblowers, almost 12% of all reports made for that year. This is a significant contribution to the whistleblower initiative, and should be afforded due importance.

However, a recent court decision denied the applicability of the Dodd-Frank anti-retaliation statute to a foreign worker who blew the whistle on Siemens. This may eventually put a crimp in the effectiveness of the SEC to regulate overseas-based companies.

The Future of College Sports

Posted on Thursday, September 4th, 2014 at 9:44 am    

NCAAIt is no secret that colleges court the best football and basketball players coming out of high school, but they are limited by what the National Collegiate Athletic Association (NCAA) says they can offer as incentives to these budding stars. That could change, however, if Jeffrey Kessler wins his antitrust lawsuit against the NCAA to open the market in college sports.

Kessler maintains that since colleges make money from their players, the players should get a piece of the pie. He used the University of Texas, which earned more than $165 million for school year 2012-13 from its athletics programs according to its 2014 annual report, as an example.

This is not the first time that the NCAA has been accused of antitrust violations, and a federal judge has already ruled in that. As a result, five of the most influential conferences have gained more freedom about how they compensate their athletes, but Kessler wants college athletics to be as market-driven as professional sports.

It’s also not Kessler’s first time around the block in sports litigation. He was successful in negotiating for the free-agency system currently prevailing in the National Basketball Association (NBA) and National Football League (NFL). He is now bent on expanding the earning opportunities of college athletes, many of whom may never make it to professional sports. Kessler’s bid has already made it past the preliminary hearings, and if all goes well, a trial date could be set for 2015.

Trademark Infringement for a Roll

Posted on Thursday, July 31st, 2014 at 11:36 am    

When a native dish in one country is brought to another country, can the bringer claim it as a trademark?flatbread

This is the main issue in a lawsuit brought by one company that opened in 2002 against another that opened in 2014 in the same neighborhood with similar offerings. The primary one is the kati roll, a treat typically found on the streets of India, which is basically an Indian flatbread filled with meat, cheese, vegetables and egg. The plaintiff claims that the defendant had unfairly appropriated her trademark colors, recipes, and layout, including hiring former employees, to mislead customers into thinking they were one and the same company.

The defendant claims that the kati roll is common in India and similarities in taste and presentation would be inevitable, as well as many of the traditional flavor combinations and accompaniments. They further denied that the former employees were in any way instrumental in influencing the décor, layout and uniform of the new restaurant. None are in management positions and were hired after the restaurant had already been set up.

The case was brought before the Manhattan Federal District Court, and presiding judge Shira Scheindlin allowed the lawsuit to proceed after hearing the arguments from both sides. A trial date has yet to be set.

It would be interesting to see how the case will eventually go. There are many cultures in the US, and there will always be someone who will be the first to introduce their favorite native dish to the public. However, this does not give them the right to appropriate it as their own and prevent others from doing the same thing just because they are losing business, unless the similarities are such that a reasonable person would inevitably confuse one with the other.

Truck Accident Injuries, Fatalities on the Rise

Posted on Thursday, June 26th, 2014 at 10:34 am    

Truck AccidentAccording to the most recent data from the National Highway Traffic Safety Administration (NHTSA), the number of injuries resulting from a truck accident increased 18% in 2012 over the figures from 2011. A total of 104,000 people were injured in accidents involving a large commercial truck, according to the agency.

In addition to injuries, fatalities resulting from truck accidents also demonstrated an increase. 3,921 people were killed in a truck accident in 2012, compared to 3,781 in 2011, for a reported increase of 4%.

The worrying trend displayed in these numbers makes clear that truck accidents remain a significant threat to those on our nation’s roadways. Indeed, as the website for Williams Kherkher, Houston truck accident lawyers, points out, the average cost resulting from a truck accident is more than $59,000, meaning that many accident victims have to cope with large financial costs as a result of their injuries.

For this reason, truck accident lawsuits can play an important role in helping the victims of truck accidents, as well as the families of those who may have been killed in these types of accidents, to pursue much-needed compensation.

City Sued over “Excessive” Parking Ticket Fines

Posted on Monday, June 9th, 2014 at 10:59 am    

When your parking ticket fine is three times more than what you earn in a day, it is a matter of concern. But is it in violation of the Constitution? shutterstock_55735285

A resident of Los Angeles, Jesus Pimentel, started the class action ball rolling when he received a parking ticket when the meter where his car was parked expired. He is claiming that the $175 fine was excessive, and in violation of the Eighth Amendment of the U.S. Constitution as well as Article 1 Section 17 of the California Constitution. He also alleged that when he failed to pay the fine, he was not allowed to renew the registration on his car and was threatened with impoundment of his car as well as civil litigation. This, Pimentel’s lawyer says, is a violation of due process, another hit at the Constitution (Fifth and Fourteenth Amendments).

Pimentel is the lead plaintiff in a class action suit against the city, but his lawsuit is not the only one. Jeff Galfer, another Los Angeles resident who received similar treatment is also petitioning for joiners for a class action suit. In addition to the city’s Department of Transportation, Galfer also named Xerox State and Local Solutions, which handles the parking ticketing system for the city. If the court rules for the plaintiffs, it could have significant repercussions in transportation departments all over the U.S.

Stryker Hip Implant Trials Scheduled for mid-2015

Posted on Wednesday, May 14th, 2014 at 3:47 pm    

hip implantA case management order filed earlier this year for the multidistrict litigation case regarding defective Stryker Hip Implants in the District of Minnesota (MDL 2441) indicates that the cases may go to trial by next summer. MDL 2441 currently represent 616 cases but more than 1,500 cases are pending throughout the US and the number of lawsuits filed is only expected to rise.

The Stryker Rejuvenate & ABG II Hip implants and similar models were recalled in 2012 when studies revealed that the products had unacceptably high rates of failure, causing a lot of pain as well as bone and organ damage in some cases, often requiring replacement surgery. The hip implants were supposed to last at least 15 years before needing replacement, but about 13% of patients needed replacement less than two years after implant surgery. Many patients retained metal debris that resulted from a design defect in the implants.

A similar case was filed against medical device maker and Stryker Co. rival Biomet, which has agreed to settle cases under MDL 2391 in the Northern District of Indiana for its M2a 38 and M2a Magnum hip implants. Stryker likewise settled four cases on December 16, 2013.

Pier 1 Subject of Pregnancy Discrimination Lawsuit

Posted on Thursday, April 17th, 2014 at 8:40 am    

Pier 1 Imports, a national chain devoted to furniture and home décor, has become the source of a class-action lawsuit after allegedly failing to PregnancyDiscriminationaccommodate the needs of a pregnant employee. Kimberly Erin Caselman, a 31-year old employee at a San Jose Pier 1 store, has alleged that the company refused to allow her to refrain from lifting heavy items and climbing ladders, per her doctor’s recommendations, and has forced her to go on unpaid medical leave which is set to expire months before her child is due.

Fortunately for Caselman, California law does not allow for discrimination against employees because of pregnancy. This includes failing to make reasonable accommodations for the needs of pregnant workers, something which Caselman’s request clearly should have been considered, particularly in light of the fact that the store had previously granted the request for an 8 week period.

Individuals in other states, unfortunately, are not always able to receive these types of legal protections. Many states do not have specific laws protecting workers against pregnancy discrimination, and it is a sad but undeniable truth that women in these states may lose their jobs or otherwise face discriminatory treatment without any means to pursue justice.

Actos Makers Ordered to Pay $9 Billion in Damages

Posted on Wednesday, April 9th, 2014 at 2:14 pm    

PillBottleTakeda Pharmaceutical Co. Ltd. and Eli Lilly and Co. have been ordered to pay a total of $9 billion in damages to users of the drug Actos after evidence linking its use to an increased risk of bladder cancer emerged. A Lafayette, Louisiana jury ordered Takeda to pay $6 billion in punitive damages and Eli Lilly to pay an additional $3 billion for the effects that the drug may have had on patients.

Actos is a medication used to treat Type 2 diabetes and was originally developed and distributed as a safer alternative to another medication used in the treatment of Type 2 diabetes, Avandia. However, more recent studies have found that the serious risks associated with Actos may make it more harmful than beneficial for patients.

According to some legal observers, the final amount of damages that Takeda and Eli Lilly will be required to pay are likely to be lower than the jury’s $9 billion verdict, citing a Supreme Court precedent that limits the amount of punitive damages that can be imposed in cases relative to the amount of compensatory damages awarded. Nevertheless, the total damages awarded may still end up as among the largest ever assessed against a pharmaceutical company for intentional wrongdoing in U.S. history.

Johnson & Johnson Must Pay $8.3 Million after Jury Verdict

Posted on Friday, March 8th, 2013 at 4:28 pm    

Hip ImplantJohnson & Johnson has been ordered to pay $8.3 million to a 65 year old man who claimed that the DePuy ASR hip implant he received was defective. This case was the first of over 10,000 lawsuits filed against Johnson & Johnson to be brought to court.

In the jury ruling, Johnson & Johnson was ordered to pay over $300,000 to cover the plaintiff’s medical expenses, and another $8 million for pain and suffering resulting from the defective hip implant. Johnson & Johnson issued a recall of 93,000 implants back in 2010 after announcing that 12% of the devices failed after just five years.

Experts agree that the cost of resolving the over 10,000 suits against the company could cost Johnson & Johnson billions of dollars.