Matt Bailey Published in CAALA's Advocate Magazine

In re Tobacco II Cases almost one year later:
A boon for California Consumers, or a bust?

Perhaps no opinion has had more impact on class action litigation in the last year than the California Supreme Court’s decision in the Tobacco II Cases. In less than a year, however, several of the Court’s core findings have been diminished by subsequent interpretation. Matt Bailey examines subsequent treatment of Tobacco II by lower courts, providing insight on some of the current pitfalls in pursuing a class action under the deception prong of the UCL.

 

To read the full article featured in Advocate Magazine on pages 54 - 61, click here.

 

For the latest updates on California and National Class Action developments, follow Matt Bailey's Blog: Bailey Class Action Daily.

ATTENTION YAZ®, YASMIN® or OCELLA® USERS

If you have taken YAZ®, YASMIN® or OCELLA® and suffered from:

- HEART ATTACK

- STROKE

- DEEP VEIN THROMBOSIS (DVT)

- PULMONARY EMBOLISM

- GALLBLADDER DISEASE

Contact us immediately!

YAZ®, YASMIN® and OCELLA® have been linked to these serious side effects. If you or a loved one has suffered from any of these life-threatening injuries, you may be entitled to compensation!

Call 213.596.6530 or use our Contact Us page.

 

Finding my way as a new lawyer...

Though passing the bar was one of the happiest moments of my life, it was also a frightening realization that I was a lawyer. I was a lawyer. Now I had to know everything. I had to be able to file a case, try it, win it or take it to the Supreme Court….okay so I exaggerate a little, but at the moment the pressure felt that big. I felt like a rookie at the free throw line with the game on the line and trade talks around the corner.

Despite the fact that I worked for my firm as a law clerk for a year and a half before becoming an attorney, I was still nervous and anxious about the responsibilities I would take on as a first year associate. I immediately felt compelled to print old outlines from my Civil Procedure and Torts courses, to bring out all my Examples and Explanations (a.k.a. E&E’s), and to read the Daily Journal every day to become more “lawyerly”…so that I could speak the language that my bosses spoke and actually understand them. I didn’t want to disappoint them or make them regret hiring me. I refused to be the Kwame Brown of my firm. 

Although my supervising attorneys were excellent teachers and mentors, I wanted to impress them with brilliant knowledge that I stole from someone else and passed off as my own. I wanted them to think that they signed a Kobe Bryant or a Dwayne Wade, even though I felt like an Adam Morrison. 

So, I started to search for knowledge. I began attending networking events hosted by the Consumer Attorneys Association of Los Angeles, the Consumer Attorneys of California, and the American Association for Justice. After a few events, I learned that each of these organizations provide a subcommittee or caucus that could be beneficial to me as a new lawyer. Each of these organizations provide materials, programs, and services, aimed at helping to develop new lawyers and their skills in this profession. 

The CAALA New Lawyers Committee is geared toward Consumer Attorney Association of Los Angeles members who have been admitted to practice for less than 10 years.  The committee provides "professional networking, inspiration, professional development, and political awareness of the larger issues that face our profession and the justice system as a whole."  The committee meets once a month where they host either a speaker series or a Q&A session with a judge. Speaker topics range from building your firm, to discovery, to trial preparation, to handling mass torts cases and class actions. The committee also has booklets and handouts on various topics which are beneficial to a new trial lawyer.

What I’ve taken away from this committee is that I don’t need to know it all. In fact no one knows it all. There are attorneys in this group who have been practicing anywhere from 1-10 years who still need help and aren’t ashamed to ask for it. The great thing is that everyone in this group is ready and willing to help or provide guidance. I encourage all new attorneys to consider joining this group. The next New Lawyers Committee meeting will be held on February 16, 2010 at the CAALA office. The featured speaker is Jack Denove who will be speaking on “Admitting Documents at Trial.”

The Consumer Attorneys of California Women's Caucus is another organization that has been instrumental to my development as an attorney, most importantly as a female attorney. The Women’s Caucus was formed to not only further the mission of CAOC itself but also to provide a means to leadership for women members. The goal of this caucus is to “provide a forum to assist women in forming professional relationships, create mentoring opportunities, sponsor social events, and create and implement strategies for increasing the number of women in the profession, as well as in CAOC membership.”

Though I have only recently become more involved in the Caucus, it has thus far provided me with an idea of what I can do as a female trial attorney to shape this profession to fit my goals. It has provided me with examples of women that I can look up to and reach out to as mentors. More importantly, it has shown me avenues of getting my voice heard to implement the changes I want to see in this profession. Their next event will be the Women Networking Reception on February 25, 2010, at the Ninth Circuit Court of Appeals.

During my first year as an attorney I took on Los Angeles through CAALA and California through CAOC. Now that I’ve become a second year attorney I feel like I’ve graduated to a new level and will take on the nation through the American Association for Justice (AAJ)….more specifically through their New Lawyers Division. AAJ’s ultimate goal is to promote a fair and effective justice system on a national level. “The [New Lawyer] Division works with AAJ to encourage continuing education, scholarships, and increased proficiency by developing and advancing affordable programs, materials, services, and products specifically designated to assist and benefit New Lawyers.” I expect that I will benefit from this organization the same way that I have from the aforementioned groups, but on a national level. I am most excited about utilizing the Document Library to find discovery, motions and briefs or other pleadings to guide me with my cases.

After a year and two months of practicing law I’m still not ready to go to the Supreme Court, but the difference now is that I know I don’t have to be ready. I don’t need to be Kareem Abdul Jabbar right away. I'm content with being Andrew Bynum, new to the game but with so much potential to make it my own……and these organizations will provide me with the tools necessary to do that.

Have you been charged bank overdraft fees without overdraft protection consent?

Have you been allowed to continue charging to your bank debit card, even though insufficient funds were available in your account? After being able to make a charge with insufficient funds, have you found your bank has charged an overdraft fee upwards of $35? Overdraft charges can easily add up to hundreds of dollars without you knowing it!

If you have been INVOLUNTARILY enrolled in overdraft protection services, you may be eligible to seek compensation!

You may also be eligible to seek compensation if you enrolled in overdraft protection services and found the terms of your service to be false, misleading or deceptive.

If you have been the victim of deceptive bank overdraft protection practices, contact us here or by calling 213.596.6530.

This is not an issue of banks applying current debits to your account in reverse order of their value, and not the chronological order in which they were made, this is an instance of banks using deceptive practices to apply overdraft protection to your account.
 

State Tort Reform vs. Patient Safety

The insurance industry has done an incredible job portraying medical negligence as a potential source of savings to health care costs-what a myth! A close look at the numbers reveals that insurance companies enjoy record profits while physician and patient premiums continue to increase exponentially. The reality of it is that medical negligence lawsuits hardly contribute to America’s insurmountable health care costs. Undisputedly, an analysis of data from the National Association of Insurance Commissioners (NAIC) and company annual statements shows malpractice insurer profits are 24 percent higher in states with malpractice caps. In these cap states, insurers took in 3.5 times more in premiums than they paid out in 2008. In contrast, insurers in states without caps took in just over twice what they paid in claims.

A closer look at the data clearly indicates that no correlation between the cost of malpractice premiums and health insurance premiums. In fact, with more than 30 states enforcing MICRA’s malpractice caps, insurance companies are enjoying extraordinary high levels of profit while approximately 98,000 patients are killed annually by preventable medical errors. (From To Err Is Human: Building a Safer Health System Executive Summary - Committee on Quality of Health Care in America, Institute of Medicine). Its time for America to call the insurance companies on their bluff and expose the facade that medical negligence caps as a source of savings to health care costs. Logically, the true source of any potential savings is the underlying principle of reducing preventable medical errors. It follows that preventing medical errors will lower health care costs, reduce doctors’ insurance premiums, all the while protecting the well-being of the patient. So, lets take it back to the basics. If patient safety becomes the overarching goal by focusing on reducing/preventing medical errors, don't all the related problems seem to go away?
 

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Read Bahar Dejban's KPA Newsletter Article "To know or not to know? For Merck, the answer is both."

In January 1999 Merck began their Vioxx Gastrointestinal Outcomes Research (VIGOR) study which compared Vioxx to naproxen, which is the active ingredient in some brand name pain relievers. At the conclusion of the study it was not only apparent that there was a lower incidence of gastrointestinal events in patients being treated with Vioxx , but more significantly there was a higher risk of cardiovascular events in those same patients. On March 27, 2000 Merck issued a public statement explaining those results:

Among patients treated with Vioxx, there was significantly reduced incidence of serious gastrointestinal events compared to patients treated with naproxen…………In addition, significantly few thromboembolic events were observed in patients taking naproxen in this GI outcomes study, which is consistent with naproxen’s ability to block platelet aggregation. This effect on these events had not been observed previously in any clinical studies for naproxen. Vioxx, like all COX-2 selective medicines, does not block platelet aggregation and therefore would not be expected to have similar effects.

Continue reading by clicking here.

Read Galorah Keshavarz's Article "Inmates Continue to Endure Constitutional Violations While California Struggles with Prison Reform"

The United States Constitution acts to guarantee fundamental rights concerning conditions of confinement and treatment for all criminal defendants sentenced to U.S. prisons. Pursuant to the Eighth Amendment of the U.S. Constitution, individuals convicted of a crime have the right to be free of cruel and unusual punishment while in prison. While no universal definition exists of what constitutions “cruel and unusual” punishment, it is settled that any punishment that is clearly inhumane or that violates basic human dignity may be deemed “cruel and unusual.” Typically, an inmate’s Eighth Amendment complaint regarding punishment and confinement conditions are brought in connection with federal civil rights laws, including the Prison Litigation Reform Act (PLRA), 18 U.S.C. §3626, and 42 U.S.C. §1983.

Continue reading Galorah's article as published in the January KPA Newsletter here.

Read Robert Drexler's Article "The Fuzzy Line Between Merits and Class Certification Analyses"

An often-stated principle in class certification law is that the class certification motion is not a motion on the merits; the merits of the case are distinct from the analysis of the class certification requirements. However, in practice, the line between a class certification and merits is blurred. Two recent California Court of Appeal cases illustrate this point.

In Ghazaryan v. Diva Limousine, Ltd., 169 Cal. App. 4th 1524 (2009), the employee drivers filed a lawsuit challenging Diva’s policy of paying its drivers an hourly rate for assigned trips but failing to pay for on-call time between assignments, referred to as “gap” time. The trial court denied plaintiffs’ motion to certify two overlapping subclasses, one based on Diva’s alleged failure to pay earned overtime and straight time and a second targeting Diva’s failure to provide mandatory rest breaks. The denial focused on the potential difficulty of assessing the validity of Diva’s compensation policy in light of variations in how drivers spend their gap time. Diva had submitted numerous employee declarations stating that drivers typically used unpaid gap time for their own purposes such as working out at a gym, napping or eating at home or running personal errands. The trial court’s order denying certification, however, suggested that if plaintiffs’ claims are valid, class treatment of those claims is appropriate, but stated that the court must first determine if Diva’s practices are improper and, if so, which drivers fit into the appropriate class.

Read the remainder of Robert's article as published in the January KPA Newsletter here.

Are Manufacturers using Deceptive Advertising to Capitalize on Consumer Concern over H1N1?

Kellogg, the nation’s largest cereal maker, recently slapped a label on its kid-friendly Rice Krispies and Cocoa Krispies cereal brands which tout that the product “Now Helps Support your Child’s Immunity.” While it’s true that Kellogg added some vitamin A, B, C and E to their cereal, health care professionals have been extremely critical of the leap Kellogg has made from the addition of certain vitamins to the claim that the product “helps support immunity.” One vocal critic is Kelly Brownell, director of Yale University’s Rudd Center for Food Policy who was quoted as saying “[b]y their logic, you can spray vitamins on a pile of leaves and it will boost immunity.”

Health care professionals aren’t the only consumer advocates who have taken issue with Kellogg’s claims. Shortly after the “immunity claim” plastered boxes hit shelves, , the city of San Francisco wrote a letter to Kellogg and the FDA asking Kellogg to prove its claim. “I am concerned the prominent use of the immunity claims to advertise sugar-laden chocolate cereal like Cocoa Krispies may mislead and deceive the parents of young children” said Dennis Herrera, San Francisco‘s City Attorney.

Following San Francisco’s efforts to demand substantiation of  Kellogg’s  claim, the Attorney General’s office of Oregon made a similar appeal to the company. Keith Dubanevich of the Oregon’s Attorney General’s office offered the following reasoning for seeking substantiation, “[t]he implied claim that if somebody ate Cocoa Krispies it might help them avoid getting swine flu, and given the season, that’s a pretty important claim to be making.”

It is telling that in response to the public pressure, rather than provide scientific data to support its claims, Kellogg has opted to remove the label from all cereal boxes by January 15, 2010. This response not only offers insight to the validity of Kellogg’s claims, but begs the broader questions:  to what degree should we accept manufacturer’s claims at face value, and how often are we, as consumers, unconsciously manipulated by deceitful advertising?