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With cancer being one of the biggest health scares in our country, it is frightening to think that something as seemingly innocent as a local park might be the cause of it. Whirlpool Park in Clyde, Ohio, so named because it was built by Whirlpool Corp. for its employees and their families, has been accused of being the cause of the numerous recent cancer cases which have led the Centers for Disease Control and Prevention to designate the eastern Sandusky County as a cancer cluster.

Tim Lagrou’s wife was diagnosed with non-Hodgkin’s lymphoma in 2005 and died in October 2006 at the age of 23, leaving Tim and their one-year-old son. Lagrou and two other families have now filed a $750 million class action lawsuit in Sandusky County Common Pleas Court against Whirlpool Corp., the original owner of the park, and Grist Mill Creek, the company which has owned the park since 2008. The lawsuit alleges negligence on the part of the two companies which allegedly handled, disposed, and concealed toxic waste.

The U.S. Environmental Protection Agency (EPA) tested soil in Whirlpool Park and found PCBs, carcinogenic toxins, buried under the basketball court and what used to be the tennis court.

The park closed in 2006 (the same year Lagrou’s wife died) as interest in the park waned. It was bought by Jonathan and Robert Abdoo of Grist Mills Creek in 2008 with the intention of building on the site.

Thomas Bowlus, an attorney for Grist Mills Creek, said the Abdoos were first made aware of toxic materials on the site after the EPA launched its investigation in 2012. According to the lawsuit though, Grist Mills Creek either already knew, or should have known about the toxic chemicals. The lawsuit alleges that the company breached its duty of ordinary care to neighbors by permitting the toxic materials to remain in the park.

The class action includes people who visited or used the park between 1953 and 2008 and anyone who owns property within 4,000 feet of the park. Information from Whirlpool is needed to determine the exact number of potential class members but the plaintiffs believe there could be as many as 1,000.

The lawsuit is seeking $25,000 for the named plaintiffs (the Ohio state maximum for compensatory damages) and $750 million in punitive damages for the entire class. Joseph Albrechta, who represents the plaintiffs in the suit, said that the $750 million number “was thought about very carefully”. According to Whirlpool’s website, they make $19 billion annually in sales, meaning the $750 million would comprise just two weeks of sales for them. For the families however, that amount would go a long way in helping them restore the financial losses incurred by the park’s toxicity.

The lawsuit is also seeking the instigation of a medical monitoring fund and a park cleanup fund.
Whirlpool has announced that it will further test the land in the spring.
At least 35 children within a 6.7 mile radius in eastern Sandusky County have been affected by cancer since 1996. Four of those children have died, although the Ohio EPA has been unable to determine a cause.

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Car manufacturers provide warranties for their vehicles, promising to pay for most repairs and replacements that the vehicle requires within a certain number of years of purchase of the car or up to a certain mileage. However, if enough cars experience failures of a particular variety after the warranty expires, the manufacturer could still find themselves in trouble.

Audi has found itself in that situation when a class-action lawsuit was filed against it on behalf of U.S.A. consumers who leased or bought a 2002-6 A4 or A6 model with a continuously variable transmission (CVT). The lawsuit, which was filed in January 2011, alleges that the CVTs had manufacturing and design flaws that caused them to fail and left owners with thousands of dollars in repair bills. The lawsuit also alleges that Audi knew about these flaws and intentionally concealed them from consumers.

In the preliminarily approved settlement, Audi denied the allegation that the CVTs were defective and insisted that it had “acted properly and in compliance with applicable laws and rules.” However, they also said that the expense of extended litigation “may not be in the best interests of their consumers.” Hence Audi’s settlement offer.

The settlement includes reimbursement “for certain C.V.T. transmission repairs” that occurred or will occur within 10 years or 100,000 miles of the original sale or lease of the vehicle. The original warranty covered only four years or 50,000 miles. The owners will be reimbursed for the replacement of various parts, depending on which model year they had.
The transmission control module is covered for 2003, 2004, 2005 and 2006 model year A4s and A6s. The valve body is covered for 2003-4 model A4 and A6. Replacement of the transmission without the valve body and transmission control module “is covered for the 2002, 2003, or 2004 model year Audi A4 or A6.” The settlement does not say whether it includes reimbursement of another transmission part or replacement of the entire transmission.

Some of the 2002 and 2003 models are probably beyond even the extended warranty by now, but the settlement will still reimburse the owners if the specified repair occurred within 100,000 miles or 10 years. The settlement further provides a “trade-in reimbursement cost” to make up for lost value of a 2002, 2003, or 2004 A4 or A6 that needed “a complete replacement of a C.V.T. transmission” after the normal warranty expired but the vehicle was sold or traded without repair.

The settlement does not specify whether owners in that group who had a major component fail, but did not need to replace the entire transmission, are eligible for reimbursement. It also did not indicate why the 2005-6 model year was not included in this part of the settlement.
The settlement, which covers about 64,000 Audi vehicles, was preliminarily approved on March 11 by Judge A. Howard Matz of the United States District Court for the Central District of California. The hearing for final approval has been scheduled for September.

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Our Chicago class action and consumer rights attorneys fight for consumers rights in Illinois and throughout Illinois and the country. Our Chicago class action law firm pursue breach of contract and consumer fraud cases for consumers all over the country and in Kane, DuPage and Cook County Illinois as well as throughout the states of Illinois, Indiana, Wisconsin, Iowa, and Michigan.

Our Naperville and Aurora, Illinois consumer rights private law firm handles individual and class action predatory lending, unfair debt collection, lemon law, and other consumer fraud cases that government agencies and public interest law firms such as the Illinois Attorney General may not pursue.

The Chicago consumer rights attorneys at DiTommaso Lubin are proud of our achievements in assisting national and local consumer rights organizations obtain the funds needed to ensure that consumers are protected and informed of their rights. By standing up to consumer fraud and consumer rip-offs, and in the right case filing consumer protection lawsuits and class-actions you too can help ensure that other consumers’ rights are protected from consumer rip-offs and unscrupulous or dishonest practices.

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In class actions, the plaintiffs have long had the power to determine whether the case gets tried in state or federal court and they have most often chose to keep the cases in state courts. In 2005, Congress adopted the Class Action Fairness Act (CAFA) in order to limit the plaintiff’s power in that decision. CAFA imposed restrictions on the kinds of cases which the plaintiff would be able to prevent from getting moved to the federal courts. Among those restrictions are if the proposed class consists of at least 100 members, minimal diversities exist between the parties, and the aggregate amount involved in the dispute is at least $5 million.
In Standard Fire Insurance Co. v. Knowles, the lead plaintiff promised not to ask for more than $5 million in damages on behalf of the absent class in order to prevent the case being moved to federal court. The issue reached the U.S. Supreme Court, which then rendered its first decision on CAFA.

In the case of Standard Fire Insurance Co. v. Knowles, it is universally acknowledged that the claims of the putative class add up to more than $5 million. However, the lead plaintiff promised that the class will not ask for more than $5 million, in order to get around CAFA’s restrictions.

Although CAFA does not specifically prohibit artificially lowering the damages sought by a class action lawsuit in order to keep the case in the state courts, the Supreme Court still sided with the defendants. In its unanimous opinion, the Supreme Court reasons that, because the class had not yet been certified, the lead plaintiff was unable to make any promises regarding the value of the claims of the entire class. Until the class attains certification, the lead plaintiff can only make promises regarding the level of claims he, as an individual, seeks.
The Supreme Court pointed out that CAFA specifies that “to determine whether the matter in controversy exceeds the sum or value of $5,000,000,” the “claims of the individual class members shall be aggregated.”

The Supreme Court made sure to point out that it believed that this decision was in line with CAFA’s primary objective of ensuring “Federal court consideration of interstate cases of national importance.”

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Two shareholders and former officers of a closely-held New Jersey company, DAG Entertainment, Inc., sued two fellow shareholders, the company, and a new company formed by the defendant shareholders in U.S. District Court. The suit, Egersheim, et al v. Gaud, et al, alleged eighteen causes of action related to alleged usurpation of corporate opportunities. The defendants moved for summary judgment as to fifteen of the eighteen causes of action, and the district court ruled that those causes of action amounted to a single cause of action under the Corporate Opportunity Doctrine. The court granted summary judgment on the fifteen causes of action, allowing three causes to proceed.

Plaintiff Kathleen Egersheim owned a three percent shareholder interest in DAG and was its former Vice President and Assistant Secretary. Plaintiff Christopher Woods owned 22.5% interest and was the former Creative Director. Defendants Luis Anthonio Gaud and Philip DiBartolo owned or controlled most of the remaining stock of the company. According to the plaintiffs, DAG began exploring an opportunity to partner with the media conglomerate Comcast in 2001. The plaintiffs claim they developed characters and show ideas for children’s television programming through 2004.

In 2005, the defendant shareholders allegedly began excluding the plaintiffs from meetings and decisions regarding DAG’s activities, and also allegedly created a new business entity called Remix, LLC without plaintiffs’ knowledge. Remix entered into a formal joint venture with Comcast. The defendants proposed ceasing DAG’s major business operations, according to the plaintiffs, and the defendants voted them out of their officer positions when they objected to this plan in September 2007. DAG essentially stopped operating at that point.

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This blog has recently discussed the matter of Johnson & Johnson’s faulty hip implants. The Articular Surface Replacement (ASR) was released in the United States in 2005 and recalled in 2010. It is now the subject of more than 10,000 lawsuits filed against Johnson & Johnson. The first of these to go to trial was in Los Angeles, California and the jury recently decided in favor of the plaintiff.

Loren Kransky, a retired prison guard, was not supposed to be the first of the 10,000 cases to go to trial. He was diagnosed with terminal cancer though, and his case was moved up. The jury deliberated for five days before finding the device faulty and awarding Mr. Kransky $338,000 for his medical bills and $8 million for his pain and emotional suffering. They decided against issuing punitive damages because they did not believe that DePuy acted with fraud or malice.
Johnson & Johnson says it will appeal the ruling and it disputed the decision that the device had a flawed design.

The all-metal device’s design caused the cup and ball to strike against each other as the patient moved, shedding metallic debris into the body as it did so. The debris inflamed and damaged the surrounding tissue and bone, causing pain and, in some cases, permanent injuries.
All-metal implants have become mostly obsolete because most of them suffered from similar flaws. However, data suggests that the ASR was much worse than competing products. An internal Johnson & Johnson document for example, showed that close to 40% of patients who received the ASR would need to undergo a second operation within five years to have the device removed or replaced.

Traditional artificial hips on the other hand, made of metal and plastic, are expected to last at least 15 years before needing replacement. The normal replacement rate for early unexpected failures after five years is about 5%.

Experts have speculated that Johnson & Johnson will spend billions to resolve all of these lawsuits. If juries continue to award damages in amounts similar to the one they gave Mr. Kransky, the speculations will no doubt prove accurate enough. Thousands of the individual cases have been consolidated into one large proceeding in a Federal District Court in Ohio. That should simplify matters somewhat and speed up the process. A resolution of that action could also provide a framework for settling the bulk of the cases and determining awards to patients.

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The age of emails has made it more difficult to get away with certain things. One might find it more difficult for example, to insist on one belief or attitude if he has been found to have said the opposite in an email. Such is the case for Ron Johnson, the former head of retail at Apple and now the chief executive of J.C. Penney. He has said that, because he believes in “perfect integrity” he would never ask a person to breach a contract.

However, he engaged in discussion with Martha Stewart to sell some of her items in J.C. Penny stores, despite Ms. Stewart having an exclusive contract with Macy’s. Mr. Johnson has reportedly tried to get around the contract by claiming that there would be independent Martha Stewart stores within J.C. Penney stores.

While independent stores are allowed under the Macy’s contract, J.C. Penney has not moved to lease space to Martha Stewart Living Omnimedia (MSLO). Instead, Mr. Johnson testified in court that J.C. Penney, and not MSLO, would set prices for the merchandise, decide when it would be promoted, employ the people who sold the goods, own the goods, source the goods, book the sales, bear the risk and own the shop, J.C. Penney nonetheless insists that any space displaying the Martha Stewart mark and containing Martha Stewart merchandise qualifies as an MSLO store.

Despite his insistence that he is not inducing Ms. Stewart to breach her contract with Macy’s, Mr. Johnson admitted in an email to Ms. Stewart that her contract with Macy’s was “a major impediment” to their deal to sell her goods in J.C. Penney stores. In another email, he said, in reference to Ms. Stewart, “the ball is in her court now to talk to Macy’s about a break in a tight, exclusive agreement they have with her.” He also reportedly said that the “Macy’s deal is key. We need to find a way to break the renewal right in spring 2013.”

One person was apparently key to bringing about the J.C. Penny deal. That person was William Ackman, the activist investor whose hedge fund is J.C. Penney’s largest shareholder. After the deal was announced, Mr. Johnson wrote to Mr. Ackman, “We put Terry in a corner. Normally when that happens and you get someone on the defensive, they make bad decisions. This is good.”

The emails emerged in a New York courtroom where Macy’s has accused J.C. Penney of inducing Martha Stewart to breach her contract with Macy’s. Macy’s is also attempting to block its competitor from opening Martha Stewart stores in J.C. Penney locations.
Legal experts have been surprised that this case has made it to trial at all, since the contract itself seems fairly straightforward. Martha Stewart herself told the judge, Justice Jeffrey K. Oing of New York State Supreme Court, “I keep looking at this entire episode of this lawsuit wondering why it isn’t – it’s a contract dispute. an understanding of what is written on the page, and it just boggles my mind that we’re sitting in front of you.”

The judge agreed and ordered the parties to pursue mediation to resolve the matter.
Macy’s continues to promote Martha Stewart products with the tag line “Only at Macy’s.”

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It is widely accepted that the Internet is not a safe place for private or confidential information. Yet, when sensitive information gets leaked, people look for someone to blame. In some instances, they are correct and can bring a privacy claim especially when they can show direct injury due to the privacy breach. In other instances where they suffer no injury they have no claim.

In June of 2012, LinkedIn experienced a security breach and the passwords of 6.5 million users were posted online. A few days later, two premium LinkedIn users, Katie Szpyrka and Khalilah Wright, filed a class-action lawsuit against LinkedIn on behalf of all users.

The lawsuit alleged that LinkedIn had failed to store passwords in salted SHA1 hashed format. According to the lawsuit, this is basic industry standard security practice and, by failing to adhere to them, LinkedIn had failed to abide by its Privacy Policy.

What the Privacy Policy actually states is:
“In order to help secure your personal information, access to your data on LinkedIn is password-protected, and sensitive data (such as credit card information) is protected by SSL encryption when it is exchanged between your web browser and the LinkedIn website. To protect any data you store on our servers, LinkedIn also regularly audits its system for possible vulnerabilities and attacks, and we use a tierone secured-access data center.

“However, since the internet is not a 100% secure environment, we cannot ensure or warrant the security of any information you transmit to LinkedIn. There is no guarantee that information may not be accessed, disclosed, altered, or destroyed by breach of any of our physical, technical, or managerial safeguards.

“It is your responsibility to protect the security of your login information. Please note that emails, instant messaging, and similar means of communication with other Users of LinkedIn are not encrypted, and we strongly advise you not to communicate any confidential information through these means.”

LinkedIn’s Privacy Policy does not promise industry standard security practices and, in fact, warns the user that, despite their efforts, breaches can occur. In court, the plaintiffs admitted that they had not even read the Privacy Policy, which no doubt weakened their argument.
The lawsuit also filed for damages based on the allegation that the premium users had paid LinkedIn in order to access the premium membership status of the social networking site. The plaintiffs expected this to include enhanced security measures but the premium membership offers no such thing. Rather, it merely offered more advanced tools and usage of LinkedIn’s services. Heightened security measures were never offered as part of the premium membership and, as such, the plaintiffs could not prove that they received any financial harm or injury.
The plaintiffs also failed to prove that the injuries they suffered as a result of the breach were “concrete and particularized” or “actual and imminent”. No one stole their identities or got into their accounts and, on these grounds, the judge dismissed the lawsuit.

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