CALL YOUR MEMBER OF CONGRESS AND URGE SUPPORT FOR THE ARBITRATION FAIRNESS ACT OF 2009

Dear Colleague,

One of our indelible rights is the right of a jury trial.  Guaranteed by the Constitution, this right has been gradually ceded by citizens everyday as they purchase a new cell phone, buy a home, place a loved one in a nursing home, or accept a new job.  Once used as a tool for businesses to solve their disputes, arbitration agreements have found their way into employment, consumer, franchise, and medical contracts.

The Federal Arbitration Act (FAA) was enacted as an alternative to resolve disputes between businesses on equal footing.  Today, these agreements have entered the consumer level.  In order to receive service, businesses have imposed mandatory pre-dispute arbitration agreements on consumers.  Citing it as a cheaper, informal, expedited process, these contracts of adhesion leave consumers, employees, and small businesses at a disadvantage.

Ordinary Americans overwhelmingly do not support mandatory arbitration clauses when they are explained to them.  However, millions of Americans have unknowingly received mandatory arbitration clauses in contracts for a wide range of consumer goods and services.  Oftentimes, they are enforced without a signature, and are announced in hundreds of lines deep in fine print, written in dense legalese, often on the backside of a document or buried in a mailer along with other pieces of advertisements or solicitations.  If and when a dispute does arise, high administrative fees, a lack of a discovery proceeding, and no meaningful judicial review of an arbitrator’s decision amount to a stacked deck against the consumer, making it harder for individuals to prevail. 

Although states have tried to address this problem through their consumer protection laws, the courts have interpreted the Act to trump state laws leaving consumers very little recourse.  This legislation would return the FAA to its original intention and omit consumer, medical, franchise, and employment agreements from these pre-dispute agreements.  Americans are entitled to a trial by jury; pre-dispute mandatory arbitration agreements give only one side the upper hand.

Please become an original cosponsor of this important legislation. 

Sincerely,

Henry “Hank” Johnson
Member of Congress

Another ATV Death

Bradford County, Pennsylvania has a new website

No conflict of interest between Bradford County, Pennsylvania's new Judge and new District Attorney, despite them cousins

Made in America: Corporate Gall

By Andrew Cohen
© MMVIII, CBS Interactive Inc. All Rights Reserved.

One in three toys contains toxic chemicals according to report

CNN (12/4, Clifford) reports, "One in three toys tested was found to contain toxic chemicals such as lead, flame retardants and arsenic, according to a report issued Wednesday by an environmental group." The Ecology Center's Jeff Gearhart led the research and said, "Our hope is that by empowering consumers with this information, manufacturers and lawmakers will feel the pressure to start phasing out the most harmful substances immediately, and to change the nation's laws to protect children from highly toxic chemicals."

The Long Island Newsday (12/4, Damiano) reports, "The new Consumer Product Safety Commission's regulations would make some products currently being sold illegal to sell two months from now. Experts insist the new regulations, while a good first step, do not go far enough to protect our children." The Los Angeles Times (12/4, Kozlowski) also covers the story.

DOJ study finds plaintiffs won state court civil trials over half the time.

Jury finds Unum committed fraud in some long term disability cases

The New York Times (10/24, B2, Walsh) reports, "A federal jury in Boston found that Unum, the nation's largest disability insurer, had committed fraud in some cases by requiring customers to apply for Social Security benefits even though it knew they were not eligible. But the verdict...contained enough ambiguity to leave both sides declaring victory in the case, filed on behalf of the Social Security Administration."

In a release, Phillips & Cohen LLP claimed that Unum "had been trying to 'enrich itself' by telling thousands of claimants that it would cut their private disability benefits in half or more if they didn't apply for Social Security disability benefits, despite customers often telling Unum they were not eligible under Social Security's stricter criteria," according to the Wall Street Journal (10/23, Kardos). In response to the Phillips & Cohen release, Unum said "the Boston jury actually sided with Unum on the majority of claims. The insurer said the two claims that were decided in favor of the plaintiff resulted in an award of less than $3,000." Unum's U.S. general counsel Chris Collins called the release "a blatant attempt...to try to influence public opinion in a situation where they were unable to claim victory in a court of law."

The AP (10/23) adds that "in 2003, whistleblower Patrick Loughren filed a lawsuit under the federal False Claims Act." For the trial, Unum "produced 1,600 claim files that the plaintiffs then narrowed down to 101 claims that they said should not have been submitted to the Social Security Administration. This number was later reduced to 61 as it was revealed that many of these claims were actually awarded Social Security disability benefits, and in other instances there was no proof that an application was ever made to the government."

The Chattanooga Times Free Press (10/24, Lazenby) notes, "Court records show the jury reviewed seven insurance claims. In four of those claims, the jury said Unum acted appropriately. Of the remaining three, the jury was unable to reach a unanimous verdict on one and ruled in favor of the plaintiff in the other two."

Web site rates hospitals on specific medical procedures

First female Judge in Bradford County History

No cough or cold medicine for kids under 4

"The best thing a parent can do is comfort their children," said Laura Herrera, a Baltimore family practitioner and mother of two. "Keeping them as comfortable as possible is certainly better than giving cough and cold medicines."

In a concession to pediatricians, who doubt the drugs do much good for children and worry about risks, the companies that make over-the-counter remedies like Dimetapp and Pediacare announced they had changed their advice to parents for the second cold season in a row.

Besides recommending against cold medicines off drugstore and grocery shelves, the companies say not to give antihistamines to kids to help them sleep. The new instructions are on packages that started hitting stores this week.

Last year, the industry went against cough and cold medicines for children under 2. The latest changes came after discussions between drug companies and the Food and Drug Administration. The talks were kept quiet for months as federal health officials debated how to respond to a pediatricians' petition seeking to ban the medications for children under 6.

At a public hearing last week, neither industry officials nor regulators gave any hint of an impending announcement.

Cough and cold products have been given to children for decades, but it turns out the medicines were never scientifically tested to see how well they work in children. And recent research has found some untoward side effects, such as accidental overdoses.

Pediatricians who support a ban for children under 6 nonetheless said they were pleased with the industry announcement.

"It's a huge step forward," said Joshua Sharfstein, Baltimore's health commissioner. "There is no evidence that these products work in kids, and there is definitely evidence of serious side effects."

Problems with over-the-counter cough and cold medicines send 7,000 children to emergency rooms each year, with symptoms including hives, drowsiness and unsteady walking. Many children overdose by taking medicines when their parents are not looking.

"The 2- and 3-year-olds are definitely the highest risk," Sharfstein said. "More than 50 percent of the problem is with these kids. If they don't have this stuff around the home, they're less likely to grab it and ingest it."

The question of merit selection of appellate Judges in Pennsylvania

Whole Foods recalling possibly contaminated beef

Study finds settling is better than going to trial

The following link is to a New York Times article regarding a comprehensive study of civil lawsuits that has found that most of the plaintiffs who decided to pass up a settlement offer and went to trial ended up getting less money than if they had taken that offer.  The study was co-authored by Randall Kiser, who is an analyst at DecisionSet which is a consulting firm that advises clients on litigation decisions.  When measuring how much money was recovered, 61% of the plaintiffs were wrong in deciding to not take a settlement and go to trial.  However, defendants made the wrong decision by proceeding to trial only 24% of the time. 

Approximately 80-92% of cases settle before they go to trial, however.  The study was based upon a review of 2,054 cases that went to trial from 2002 to 2005. 

Significantly, however, for plaintiffs who made the wrong decision and went to trial, it cost them about $43,000.00 on average.  But, the defendants who made the wrong decision about going to trial were hit in a much greater amount, on average of 1.1 million dollars.  Therefore, the errors that the defendants make are much more costly, despite the fact that the errors are made less often.

Also, the study indicated that factors such as rank of a lawyer’s law school and the size of a law firm were not dispositive in determining whether or not the lawyer and/or client made a mistake in going to trial.  Therefore, as per the study, it does not really matter if you come from a big city firm or a small local firm, the same mistakes can be made.

Because we are experienced trial lawyers here at C&C Law, I immediately spotted a few defects with the study.  First, the study stated that 15% of the cases the plaintiff received more than what was offered by the defendant, but less than what was demanded by the plaintiff before trial.  This points out a fallacy in the ‘study’.  A demand is a number to be worked from to reach an agreement.  The fact that a plaintiff received less than their demand means NOTHING, if that demand did not represent what a client would accept as settlement, i.e., I demand $100,000.00 on a case I wish to settle for $50,000.00.  After the trial, a jury awards met $57,000.00.  I may have received $43K less than my ‘demand’, but I still resolved the case for what I thought was ‘full value’.

Also, a study like this, which gets printed in the NY Times is dangerous as it misinforms clients and potential clients and suggests that the problem is that the attorney is operating under a contingency fee agreement.  (This has been a new ground for attack by tort (d)eformers; if they can’t prevent lawsuits and/or cap damages, then they will try to get limitations on contingency fee agreements, so people without money, who can’t pay hourly for an attorney, won’t be able to find an attorney because contingency fees have been curtailed or limited such that the claim is not worth the attorney risking his time and costs to prosecute.)

To see the entire article, go here.

New Consumer Safety Legislation

Emergency Unemployment Compensation

I just posted over at the Work Injury Law blog about the recent enactment of the Emergency Unemployment Compensation law.  See the details here to see if you're eligible.

Anyone who is currently out of work and is not receiving unemployment compensation or their currents comp. benefits are about to stop, call the unemployment office to ask about an extension.

Top Pa. judge: Counties to get longer jury lists

From The Associated Press:

Starting this fall, the odds of being picked for jury service are likely to increase for some Pennsylvanians and decrease for others, Chief Justice Ronald Castille said Monday.

The state court system is compiling a statewide master list of prospective jurors based on voting records from the Department of State, tax records from the Department of Revenue, motor-vehicle data from the Department of Transportation and welfare records from the Department of Public Welfare under a state law signed last year.

Sub-lists for individual counties will be provided upon request starting in October or November.

"If you vote, pay taxes, drive or receive welfare or food stamps, your name will be on that list," Castille told a Pennsylvania Press Club luncheon at a Harrisburg hotel.

Currently, counties use different public records to identify residents eligible for jury duty, including voter-registration and driver's license lists. But those exclude people who do not vote or drive, often resulting in jury pools with a racial and gender makeup that does not reflect the county's population.

Toymakers Frustrated by Patchwork of Safety Rules

From The WashingtonPost.com:

In an attempt to avoid a repeat of last year's wave of tainted-toy recalls, lawmakers in eight states have imposed restrictions on potentially toxic substances in children's products such as lead, cadmium and phthalates. Phthalates, chemicals used to make plastics, have been linked to reproductive problems.

Children's product manufacturers such as Hasbro and Mattel and toy retailers such as Toys R Us are echoing Tucker's sentiments. They argue that having different state regulations on children's products will keep safe toys off the market.

Athens attorney Maureen T. Beirne nominated by governor for county judgeship

Congrats to Maureen.  She'll make a great Judge!

http://www.thedailyreview.com/site/news.cfm?newsid=19814893&BRD=2276&PAG=461&dept_id=465049&rfi=6

Health "Insurance Jive": Do you speak insurance?

This YouTube video is funny....and sad...all at the same time.

http://www.youtube.com/watch?v=etYBATGDtU4&eurl=http://www.crooksandliars.com/2008/06/20/insurance-jive-do-you-speak-insurance/

Do you "speak insurance"?  We do.

U.S. Supreme Court deals with ERISA disability determinations

From The New York Times:

The Supreme Court issued its 6-to-3 ruling in favor of Wanda Glenn, an Ohio woman who worked for 14 years as a supervisor in the women’s department of a Sears store. She suffered from heart disease and took a leave of absence in 2000, providing extensive documentation from her doctor that she could not return to work.

Sears offered employees long-term disability insurance as a benefit, but the plan administrator, MetLife, said Ms. Glenn did not qualify. She sued, and the trial court rejected her complaint because she had not shown that MetLife behaved arbitrarily.

But the Appellate Court for the Sixth Circuit found in Ms. Glenn’s favor, saying that MetLife had acted under a conflict of interests. The Supreme Court’s affirmed that ruling, and Ms. Glenn will receive her benefits.

Until now, employees who felt wrongly deprived of benefits could expect little help in court unless they could show that their plan administrators had behaved in an arbitrary, capricious or unprincipled way.

Justice Stephen G. Breyer, writing for the majority, eased that requirement, but stopped well short of setting out specific new rules for when and how employees could challenge adverse benefits decisions.

It pays for defendants to settle quickly and easily

A study of court settlements of personal injury lawsuits against businesses estimated companies could save an average of $114,000 per claim, or $670,000 for severe injuries, by promptly settling cases instead of fighting them in court.

See the full story at Daily report (free registration required).

Spotlight on: Carla K. Weldy-- Paralegal Extraordinaire

Many of you know and have worked with Carla, C&C Law’s Paralegal Extraordinaire.  You’ve met Carla to discuss the basis facts of you case, you’ve called Carla to update her on you medical status and you’ve spoken to Carla when Jim is out of the office.

Paralegals are more that just legal assistants—through formal education , training and experience, paralegals have knowledge and expertise regarding the legal system and substantive and procedural law which qualify them to do work of a legal nature under the supervision of an attorney. 

Carla has been in the legal field for over thirty years and earned her Paralegal Degree from Penn State University fifteen years ago.  Carla made the switch from legal assistant to Paralegal because “the additional formal education added to my knowledge and experience.  I consider myself one of the lucky “paralegals”.  I have the pleasure of working for two attorneys who respect and use my knowledge and education as a paralegal and not as a “glorified secretary”.

Carla enjoys being a Paralegal because “everyday on the job brings something different.”

Carla describes her job as “being there to help your clients when they need it most.  Most people need attorneys when they are facing some of the most difficult situations in their lives.”

While Paralegals work hand in hand with attorneys, it is important to understand that Paralegals cannot give legal advice.  Legal advice may only be relied upon if given by an attorney.

3rd Circuit: Woman Cannot Be Fired for Having Abortion

From Law.com:

A woman who has an abortion cannot be fired for doing so because the federal Pregnancy Discrimination Act also protects the decision to terminate a pregnancy, the 3rd U.S. Circuit Court of Appeals has ruled in a case of first impression.

The decision by a unanimous three-judge panel in Doe v. CARS Protection Plus Inc. revives a suit brought by a woman who claims she opted to have an abortion after tests showed that her baby had severe deformities and that she was fired three days later -- the day she attended the funeral for the baby.

In the lower court, U.S. District Judge Maurice B. Cohill Jr. granted summary judgment for the defendant, finding that the plaintiff -- who is referred to in court papers only as "Jane Doe" -- failed to show that her firing was connected to her abortion decision.

The 3rd Circuit disagreed, finding that Doe's boss remarked that "she didn't want to take responsibility," and that Cohill erred in labeling it a "stray remark" because a jury could infer from that statement that Doe's abortion was a factor in the decision to fire her.

Cohill also found that Doe could not show that her employer's stated reason for firing her was a "pretext" for discrimination.

A lawyer for CARS contended that Doe had "abandoned" her job, because she failed to notify the company on a daily basis of her intention to take sick or vacation leave.

But Doe's lawyer, Gary M. Davis of Pittsburgh, insisted that his client's husband had telephoned on a Friday, the day of the abortion, he notified the company that his wife would be taking one more sick day and would use vacation time to take off the following week.