Happy New Year!
All the attorneys at Khorrami Pollard & Abir LLP whish you a very Happy New Year 2012.
Medical Review Articles Can Be Deceptive So Be Skeptical
A recent medical review article promoted the benefits of smoking for long-distance runners. The article argued that the increased serum hemoglobin levels, larger lung volume, and reduced body weight associated with smoking cigarettes could be beneficial for running. Although this may sound like it came from the parody newspaper The Onion, this article was published in the highly respected Canadian Medical Association Journal, which ranks 9th out of the top 40 medical journals. Of course, the article was meant to be tongue in cheek. Ken Myers, the author and a long-distance runner himself, wrote the article to point out how nearly any crazy theory can be supporting by presenting only supporting data or improperly correlating or extrapolating data.
Medical review articles can have subjective bias. Sometimes, the researcher will have a noble goal which allows his or her research to be subjectively tainted, a phenomenon known as “white hat bias.” Other times, data may be entirely fabricated to support a certain position, such as the case of medical journal publisher Elsevier publishing fake medical journals for Merck and other pharmaceutical giants. Part of the blame can also be placed on newspapers for not understanding or explaining the difference between correlation (when A happens, B also likely happens) and causation (B happens because of A) and generalizing very specific findings into sensationalized larger conclusions. Another important consideration that newspapers usually neglect is that medical studies need context and do not make sense without knowing what similar studies have shown.
Consumers do not need to be overly concerned with scientific minutiae on a daily basis, but it is important to not base important life decisions, such as which life-saving drugs to request of a doctor or avoid, off of a misunderstanding (or occasional fraud) from a medical review article. Well-informed skepticism is always a healthy choice!
Class Action against Ticketmaster Fees
The plaintiffs in a class action lawsuit filed against Ticketmaster have submitted a proposed a settlement to the Los Angeles Superior Court. The lawsuit,Curt Schlesinger et al. v. Ticketmaster, was filed by Ticketmaster customers who claim Ticketmaster wrongfully charged customers excessive UPS delivery fees and/or order processing fees in connection with ticket sales.
Thecomplaint alleges that Ticketmaster violated the California Business & Professions Code by engaging in unfair and deceptive practices.
The “Ticketmaster Fees” section found on the Ticketmaster FAQ webpage says that the order processing fee “…covers the cost to fulfill your ticket request when you purchase the tickets online or by phone.” The charge also includes “services, such as taking and maintaining your order on our ticketing systems, arranging for shipping and/or coordinating with the box office will call…”
The class plaintiffs claim that the order processing fee was deceptive because it was unrelated to the actual cost of processing tickets. According to the complaint, the fee was a “profit generator designed to maximize Ticketmaster’s overall profit by obtaining bottom-line dollar amount on deals with its clients, and had no known connection to the actual ticket fulfillment costs.”
The class plaintiffs also assert that the UPS delivery fees charged by Ticketmaster were deceptive because Ticketmaster marked up the amount it actually paid to UPS and pocketed the difference.
Ticketmaster and its parent company, Live Nation, deny any wrongdoing and the proposed settlement has yet to be approved by the court.
Wal-Mart Settles Collusion Class Action Lawsuit over Deal with Netflix
Last week, Wal-Mart settled a lawsuit with millions of current and former customers of Netflix for illegally colluding with Netflix to stay out of each other’s markets. Wal-Mart agreed to back out of offering DVD rentals by mail, and Netflix agreed to endorse Wal-Mart’s DVD sales. A group of Netflix customers filed suit against Wal-Mart and Netflix over the deal, alleging illegal collusion. Collusion is an agreement to limit competition in a market, which has the effect of guaranteeing larger market shares and keeping prices high in that market. Many, but not all, of these agreements are illegal under U.S. antitrust laws.
Wal-Mart has agreed to settle the lawsuit, but Netflix is continuing to fight. There is a website online for more details of the settlement here: https://onlinedvdclass.com/. Current and former customers of Netflix who paid a subscription between May 19, 2005 and September 2, 2011 can file a claim here: https://onlinedvdclass.com/ClaimForm.aspx.
KPA Donates Food Baskets for Thanksgiving!
With the help of the Ocean Park Community Center, Khorrami Pollard & Abir donated food baskets with a full Thanksgiving meal to 5 families.
Happy Thanksgiving!
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Partner Shawn Khorrami and Associate Bahar Dejban Published in The Advocate
Founding partner Shawn Khorrami and Associate Bahar Dejban are published in this months Advocate magazine on Product Liability; titled "New Rules: Differences between Suing Medical-Device and Pharmaceutical Drug Manufacturers"
The article can be found here
Class Action Allowed in Bedbug Suit
An Iowa judge has certified a class action filed on behalf of about 300 current and former residents of two Des Moines apartment buildings who say their landlord failed to combat a growing bedbug infestation.
The suit claimed the buildings for elderly and disabled residents first experienced a bedbug problem in late 2007, the Des Moines Register reports. Residents have complained they had to trash infested furniture and couldn’t move out because landlords and relatives shunned them. “Everybody sleeps on the floor,” one resident said in an interview last year.
Penny Auctions: Too Good to Be True
Imagine being able to win a new television set for less than 10% of the retail price just by outbidding other people online in one cent increments. If this sounds like there is a catch, there is. A big catch. The winner of the auction pays the final price that he or she bid, but each bid costs between $0.50 and $1.00 per penny bid. Each bid is non-refundable, so a bidder may spend a good deal of money bidding for a product that they never win. Further, new bids increase the time of an auction by 15 to 30 seconds, so a last minute bidding war can extend an auction by several hours past its original deadline.
Although there are a few good deals to be had with less popular auctions, many penny auction sites also have hidden traps. According to the FTC, some penny auction sites use automated computer scripts (bots and shills) to drive up the price of auctions automatically to prevent any good deals. Some sites are phishing sites that steal financial information. According to the Better Business Bureau, there are also numerous hidden costs. One such scheme involved bonus “free” offers that end up costing money.
Consumer Reports offers useful tips on how to use penny bidding sites without getting ripped off. First, verify that the penny bidding site is legitimate through user reviews and complaints to the Better Business Bureau. Next, make sure that the site allows unlimited refunds of purchased bids and allows placed bids to be used towards a purchase of the item, commonly known as a “buy it now” option. Finally, be prepared to lose the amounts that you have placed in bids. Or better yet, watch for sales online and in stores through deal hunting web sites like FatWallet and Slickdeals!
Class Action Fee Changes in New York?
The New York legislature is currently considering a proposal to increase judicial discretion in awarding attorneys’ fees in New York class actions. A bill enacted in 1975 currently only allows judges to award fees to those who represent the entire class, while the new bill would expand that definition to those who benefit the class.
The change would essentially mean that attorneys for those challenging class actions settlements may seek reimbursement. Judge Robert S. Smith’s dissent in a 2010 New York Court of Appeals case provided the catalyst for the drafting of the new law. The case, Fleming v. Barnwell Nursing Home involved an attorney representing one class member’s objection to the original class attorneys’ fees, which amounted to 47% of the total award. The attorney successfully negotiated a decrease of awarded attorneys’ fees to 44%, freeing up a half million dollars for distribution among the 242 plaintiffs, but the 1975 law disallowed the judge to award the objecting lawyer any fees.
Judge Smith argued in his dissent that allowing such awards to objecting attorneys would provide a check on unreasonably high attorneys’ fee awards. He continued by noting that, after this decision, attorneys would have no incentive to object to such specious awards, unless they agree to take the case pro bono or are confident they can collect from the class member they represent.
OnStar Begins Selling Recorded User Information
OnStar, an in-vehicle security, communications, and navigation system for GM vehicles, altered its terms and conditions this week. Formerly, OnStar only used customer GPS data for recovering stolen vehicles, providing user-requested directions, and contacting emergency services in case of a vehicle collision. The new terms and conditions allow OnStar to sell customer data, including GPS location data, speed, seatbelt use, and other information. OnStar claims that all sold data will be anonymous. Potential interested parties include law enforcement and insurance companies. Worse, this data will be transmitted even if the customer cancels his or her service. The only way to prevent the data from being transferred is to contact OnStar directly to opt out or manually disable the data transmitter.
Potentially, OnStar’s service can be useful even if the vehicle’s owner is not a subscriber. OnStar can remotely disable stolen vehicles. Their recent press release, discouraging the manual disconnection of OnStar hardware, claims that they will provide alerts to severe weather conditions and recall or warranty issues.
Some people are suspicious of the limits of OnStar’s data collection powers, claiming that OnStar could use the two-way communications in GM vehicles for nefarious purposes. Also, “anonymous” data is rarely totally anonymous, as many people use their vehicles primarily to drive between work and home. Thus, law enforcement and insurance companies could keep closer eyes on GM customers than most people would be comfortable with.
