February 14th, 2017

Class Action Action, Here We Come…

Alison Frankel

We may be in for some serious action on the class action front, due to two big items:

First, legislation has been introduced in the House by Representative Bob Goodlatte that would eviscerate class action law suits. Those suits, started under Federal Rule of Civil Procedure 23 allow numerous people with small claims to group together to bring suit. Because one can’t realistically hire counsel to sue for getting screwed on a defective $10 widget, but if 1,000,000 people get screwed, justice has a good shot at being served.

Or, perhaps, if someone wants to create a phony university about selling real estate with phony promises, the class action is the way that the group can come together for justice against a grifter.

Make no mistake about it, the class action suit is a major factor in empowering the little guy to keep Big Business honest in consumer dealings, and I’m a big fan of them when used right.

As Alison Frankel points out in a Reuters column, however, those class actions are now under a new assault. With Republicans now controlling both houses of Congress and the White House, there is the potential for the courthouse doors to get slammed shut in the faces of consumers.

Since Frankel has already done a great job writing the story up, no need for me to do it again. Read it here.

Next up on the class action front is a potential showdown in the United States Supreme Court on how legal fees are calculated when class actions settle.

Prof. Josh Blackman

In Blackman v. Gascho, the court will face this issue regarding the computation of legal fees: Should a trial court look to the full value of the settlement, as if every person redeems a coupon that may be offered? Or should it be based on how many people actually redeem those coupons (if coupons are used). In other words, on a claims-made basis.

Regular readers know I have been down this path before having been screwed on a class action once. I then proceeded to hire Ted Frank to represent me as an objector, despite him being a tort “reformer.” As Scott Greenfield once pointed out, Frank had now become a plaintiff’s lawyer of sorts, by standing between members of the class and lawyers that he felt (in certain cases) had over-reached on the legal fee.

The issue arose when law professor Josh Blackman — who has been producing constitutional commentary regarding the Trump administration on his blog, twitter and cable shows like a fire hose going full blast — was a class member regarding a gym contract. The gym was sued and the matter settled.

But rather than simply mailing checks to the class members on a pro rata basis, postcards and emails were sent with directions on how to redeem the funds. This, Blackman argues, was designed to lower the actual payout to class members with a low response rate, and thereby give a disproportionate share of the recovery to the lawyers.

While the gym argued that the entire class settlement was $15.5M, thus justifying a $2.39M award of costs and fees, Blackman and Frank contend that they anticipate less than 10% response, and that therefore the funds were paid disproportionately to lawyers instead of class members.

The case is set to be conferenced by the Supreme Court this coming Friday, February 17th, to decide if cert should be granted.

If cert is granted, and the Goodlatte bill moves forward, expect class action discussions to come to the forefront of legal discussion.

May 4th, 2016

Dunkin’ Donuts Sued Over “Meager” Jelly in Doughnuts

Dunkin’ Donuts finds itself in sticky trouble today as suit was filed against it for failing to put enough jelly in its jelly doughnuts. The class action, filed on behalf of all similarly aggrieved individuals, was filed by local attorney Harlan Wittenstein.

Charging that the doughnuts are no longer “jelly filled” as they used to be, but are now merely “jelly flavored,” Wittenstein said, “Consumers are sick and tired of being short-changed on the jelly.”

Wittenstein admitted that the recent Starbucks lawsuit over putting too much ice in the iced coffee was the inspiration for going forward with the food-fleecing lawsuit. “If Starbucks can be sued for putting too much ice in the iced coffee,” he continued, “then certainly Dunkin’ can be sued for not enough jelly.”

“I mean, let’s face it,” Wittenstein said comparing the two suits, “you can always ask for less ice in the coffee cup, but how the hell are you going to get more jelly in the doughnut?”

For the past 10 years, plaintiff Beignet Sinker has purchased jelly doughnuts from Dunkin’ and found herself repeatedly chagrined by the diminished jelly, according to the suit. So rather than buying her doughnuts elsewhere, Sinker decided to take legal action.

The class action lawsuit in New York’s Supreme Court accuses the doughnut maker of false advertising, fraud, and unjust enrichment. It calls Dunkin’s jelly doughnuts “defective and deficient due to their skimpy, scanty, paltry, pitiful, meager and otherwise insufficient quantities of jelly within each said doughnut unit.”

The suit calls for $42 million in damages on behalf of herself and the millions of Americans who have purchased a Dunkin’ jelly doughnut over the past 10 years.

The defective jelly issue is very well known to Dunkin’, as this NSFW viral 2012 video from Angry Grandpa makes abundantly clear.

In an email to me, a Dunkin’ spokesman said he was aware of Sinker’s suit, but that they had not yet been served with the papers. He went on to say, “We put exactly the amount of jelly in our donuts that we think they deserve. If Sinker doesn’t like it, she can start her own donut store. We’ll be happy to open a franchise next door to see who is favored by the public. We’ll even give away free samples for awhile to make sure people taste ours.”

The Dunkin’ spokesman also insisted that if he was being quoted, that doughnut be spelled “donut.”

The suit looks to me like a good one. It’s about time, after all, that consumers spending hard-earned money get what they paid for — more jelly in our doughnuts.

While some may want to demonize this suit as part of the problem of overzealous lawyering, perhaps we should step back and salute this woman for her courage taking a stand and risking her name and reputation taking on this giant food conglomerate.

Dunkin’ Brands, after all, also owns Baskin-Robbins, which has been rumored to face accusations of diminishing chip size in its legendary chocolate chip ice cream. A success with either Starbucks or Dunkin’ would seem to benefit millions of consumers in a wide variety of claims against food-fleecing companies affecting the quality of their purchases.

Addendum: The Great Jelly Donut Parody (Hey, why’d you do dat?)

Addendum 2: Starbucks Iced Coffee Lawsuit – A Rebuttal

December 23rd, 2014

Will Google Cars Eviscerate the Personal Injury Bar?

Google’s prototype released on December 22, 2014.
Image credit, Google.

I hadn’t given much thought to Google’s self-drive cars until they unveiled a prototype yesterday. They call this vehicle “the first real build of our self-driving vehicle prototype.”

And it occurs to me that these drivable computers will result in both many lawsuits regarding them, and simultaneously eviscerate a significant portion of the personal injury bar.

First off, some of these cars will crash and people will get injured. And you can bet your last dollar that there will be lawsuits and some class actions regarding that, with many fingers pointed Google’s way.

The potential for error in such heavily software-dependent systems is extraordinary when combined with the limitless potential for collisions. There will be new meaning to the idea of computer crashes.

Google is working hard on that problem, having driven its test vehicles 700,000 miles already in the Bay Area to prevent this.

But.

The issue of lawsuits regarding the cars will, I think, be vastly overwhelmed by a huge reduction in collisions that result from the most common forms of human error. Each year about 30,000 people will die in the U.S. from car crashes, and about two million are injured, and that is after considering a significant drop in fatalities from safer cars and seat belts over the prior decades.

Aside from the role that alcohol plays in being a cause of collisions (not accidents), many are the result of a simple failure to stop in time that results in a rear-endng, or sideswipes from changing lanes without looking, or hitting the unseen pedestrian.

The last generation’s distractions of radio-tuning, cigarette lighting, and screaming back-seat kids has now been supplemented with email, texts, phone talk and GPS devices. Calling distracted driving an epidemic seems like a cliché, but if you’ve glanced into the windows of your fellow drivers, which my kids tend to do and point this out to me — “multi-tasking” drivers is another phrase for distracted and inattentive.

And what will those new-fangled cars do? They will see the other cars/pedestrians and slow down or stop despite the driver being lost in thought elsewhere. Or drunk. Or asleep.

With human error crashes reduced by software that automatically stops or slows the car, the number of broken bodies and cars will be reduced. The number of deaths will be reduced. Your insurance premiums will be (theoretically) reduced.

And that means the need for my services as a personal injury attorney will be reduced. (Likewise reduced will be the need for trauma health teams and emergency rooms, not to mention car body shops.)

Has anyone ever cheered being put out of business? I am. Because I drive, too.

I’ve been hit in the rear at least four times in the last few years. Every one no doubt the result of an inattentive driver. Thankfully, all of those were minor and they never resulted in an injury. But my lack of injury is simply my good luck.

This is not to say that there won’t be downsides to driving a Google car, not the least of which is the total abdication of the last vestiges of privacy. Google will know exactly where you are going and how long you have been there, and be more than happy to sell that information to anyone with the Benjamins to spend.

Or give that data to the government when it comes a’ callin’, as the government most surely will.

But from a raw safety standpoint, I am left with no other choice than to cheer the company on. Go ahead, Google, make my day by bringing on safety and putting us personal injury attorneys out of business.

OK, you won’t actually put me out of business because, by the time it becomes a mass market item, I will no doubt be retired.

But if I were fresh out of law school, this isn’t the field into which I would head.

Update 1/14/15: See The Google Car Is A Huge Threat To The Auto Industry (Business Insider)

April 1st, 2014

Knicks and Dolan to Be Sued in Class Action?

It isn’t often that you see the Chairman of a company acknowledge that he doesn’t know his company’s business. But that, it seems, is what James Dolan has done.

And now as a result, rumors are swirling around New York’s legal community about a potential shareholder class action lawsuit.

If you aren’t from New York, you might not know that Dolan’s father, Charles Dolan, is the billionaire founder of Cablevision and HBO. Cablevision owned the NY Knicks before being spun off in 2010 as The Madison Square Garden Company. And the MSG Company owns the Knicks (as well as the Rangers, Madison Square Garden and MSG Networks).

Both Cablesvision (CVC) and MSG Co. (MSG) are publicly traded, which is to say, legally accountable to their shareholders.

Now Charles’s son James has been running the Knicks for close to two decades, during which the team has no championships, much misery, and one lost sexual harassment lawsuit. Through the years he’s said little to nothing publicly, sometimes going years between press conferences.

The times of saying little have apparently changed, however, as Dolan has turned into a chatterbox with his recent introduction of Phil Jackson as the team’s latest savior.

Of course, when someone who hasn’t been giving interviews for years suddenly opens his mouth, it might be wise to get a little practice first. Dolan didn’t, as he apparently spoke the truth when he said:

“That I don’t know basketball.”

Yet he’s running the team and still holds the title of Executive Chairman.

Now let us ruminate on that concept for a moment. The guy who runs a pro basketball team, that is publicly owned, admits that for nearly two decades he doesn’t know basketball. And lest you think it was an off the cuff joke, the Knicks’ performance over those years back that statement up. The team’s front office is ranked dead last by ESPN.

And then he goes on to say that in two hours with Phil Jackson, the Zen Master taught him basketball. So, will any of the protesting fans contact counsel (not me) regarding a class action lawsuit? Well, they might try, but they need to be a deceived shareholder also.

Knick fans are pissed. A group calling itself Knick Fans 4 Life, has set up a Facebook page to organize its activities (with 2,658 likes and growing). Part of its mission statement regards Dolan’s failure to allow knowledgeable basketball people the autonomy/power to make basketball related decisions.

Of course, today is April Fool’s Day, and long-time readers know I have, shall we say, a bit of a history with running April Fools gags (SCOTUS and fantasy baseball, official white house law blogger, and more).

So the question the reader might ask: Are today’s rumor of a shareholder class action suit real or did Turkewitz make it up?

And the answer: Does it matter?

November 2nd, 2012

Legal Implications for Cancelling NYC Marathon? (Updated)

I assume that my readers know already, as this is the type of news that flies quickly around the web, that the NYC Marathon was cancelled. And that this cancellation came just hours after Mayor Michael Bloomberg had reiterated his position that the marathon would go forward. Will there be legal fallout (a/k/a lawsuits) over that decision?

When the decision was first made about the race going forward, there was one key point in my mind: Would any resources be diverted from those hit hard by the tsunami of water that was Hurricane Sandy? If the answer is yes, then you don’t run the race. You just don’t let people struggle any longer than necessary to put on the event. An emergency had been declared, the race would be cancelled and that would be that. Those that paid money for airlines, hotels and whatnot would have to fend for themselves with any trip insurance that they might have had, if any, but that is life for things we lawyers like to call Acts of God. This certainly qualifies.

But if the answer was no, that the city had sufficient resources to cover the race logistics and handle the areas most badly affected, then you can consider putting on the event. Reasonable minds may differ over whether it should go forward, but logistically it could take place.

Mayor Bloomberg, however, has now done something odd. He said New York City had enough resources to put the race on, and said repeatedly that it would go on, and then reversed course.

But he didn’t reverse course because the city needed those extra cops, according to this statement. He cancelled because it was politically unpopular. His statement was released jointly with the New York Road Runners Club, but whether there are sufficient police to staff the marathon and handle the disaster is obviously a city decision, not a Road Runners decision. The joint statement read (and note my highlights in the middle):

“The Marathon has been an integral part of New York City’s life for 40 years and is an event tens of thousands of New Yorkers participate in and millions more watch. While holding the race would not require diverting resources from the recovery effort, it is clear that it has become the source of controversy and division. The marathon has always brought our city together and inspired us with stories of courage and determination. We would not want a cloud to hang over the race or its participants, and so we have decided to cancel it. We cannot allow a controversy over an athletic event — even one as meaningful as this — to distract attention away from all the critically important work that is being done to recover from the storm and get our city back on track.

So what of those that relied on his comments to come to the city from overseas, of which they anticipated about 20,000? And those that traveled here from distant states?

If he canceled because he underestimated the needs of the police, that would be one thing. Things can change in a state of emergency as officials try hard to gain as much information as possible from broken information systems. If there was an understaffing possibility, he could have, and should have, hedged. He should have ‘fessed up that he messed up when it came to resources.

It’s also worth noting that the ability to staff the race may not be as certain as the mayor said. Patrick J. Lynch, president of the police officers’ union said staffing was too low, with many members of the department suffering the effects of Hurricane Sandy, to hold the marathon. “We are spread far too thin fighting crime, terrorism and the effects of this disaster,” Mr. Lynch said in a statement.

I’ve never heard of such a circumstance before, and the lack of precedent opens the door to the inevitable: Those that spent money relying on assurances the event would go forward only to have it canceled because it was a politically unpopular decision, may be angry.

Finish line, 2010, with my kids

Long time readers know, of course, that this is one of my favorite races, I currently appear in ads for one of the sponsors, once did a Blawg Review based on it and had a letter published in the New York Times regarding it. If you have an interest in suing, in other words, don’t call me. I’m not your man and that isn’t what I use this blog for.

But I have to think that, due to the way Bloomberg fumbled this situation and people lost money relying on his assurances, that someone may try to hold him (or the New York Road Runners, of which I’m a member) accountable.

Donations to those in need can be made here:

Red Cross, Greater New York Region

New York Road Runners

Updated 11/7/12 – Two articles worth mentioning: The first is from Runner’s World discussing the potential legal implications of canceling the event, whether this represents a breach of contract, and whether the “no refund” policy was prominent and clear:

While runners wait to hear what the New York Road Runners will do regarding entry fees for this year’s canceled marathon, some have wondered how a court of law would view the matter.

(In that same vein, I just created a page on the no refund policy for my own race on the Paine to Pain site that will be linked to the home page for next year’s event.)

The second article comes from the New York Times, discussing the hostility that exists for some runners over the late cancellation of the race. It should be noted, of course, that while some are hostile, many others agreed with the decision to cancel. And some who had planned to run with mixed feelings were actually relieved at the decision.