Articles Posted in consumer protection

It was reported this week that the Center for Auto Safety has asked Ford Motor Company to recall all of its Explorer SUVs because of concerns about carbon monoxide poisoning.  While stating that its vehicles are safe, Ford has offered free inspections and repairs to deal with any potential problems.  But the National Highway Traffic Safety Administration is investigating thousands of complaints about possible problems with exhaust getting into these vehicles and the Austin, Texas police department has sidelined over four hundred Explorers because of these concerns.

Carbon monoxide poisoning is not a new phenomenon.  Sometimes called the silent killer, carbon monoxide is a tasteless, odorless gas that can make you really sick or even kill you.  Carbon dioxide is created by the combustion of carbon based fuels.  All internal combustion engines and most gas burning appliances emit carbon dioxide.  While carbon dioxide occurs naturally in the atmosphere (green plants absorb carbon dioxide and convert it to oxygen through the process of photosynthesis) it has only been through the advent of relatively modern gas and coal burning devices that this lethal substance is created in sufficient quantities that it can hurt or kill.

A long time ago, this was even a bigger problem than it is today.  Burning coal creates carbon monoxide and as we all know, coal use has diminished in favor of clean energy.  And our understanding of how appliances, cars and other devices can generate carbon dioxide has improved.  In fact, today nearly all carbon monoxide poisoning events are avoidable.  Nevertheless, this potentially fatal accident still occurs.

In 2015, 4,836 workers were killed on the job in the United States.  That means, on average, 13 workers die because of injuries on the job every day in the United States.  This is more than the numbers were in 2013 and 2014.  Further, an estimated 50,000 died from occupational diseases.  This means that, in effect, 150 workers die each and every day from hazardous working conditions.

Older workers are at a greater risk. Thirty-five percent of all fatalities occurred in workers age 55 or older, and workers 65 or older have three times the risk of dying on the job as younger workers.

Temporary workers are at an even higher risk of injury.  Temporary workers often receive insufficient training or are inexperienced with how to protect themselves on the job site, but don’t want to complain about the lack of training for fear of losing their job. Temporary workers tend to be younger, less educated and disproportionately consist of minority workers, many of whom might be immigrant workers, according to researchers with the University of Massachusetts.  At the same time, temporary workers are employed in some of the country’s most hazardous jobs, including waste recycling, fish processing and construction.

The Consumer Financial Protection Bureau (CFPB) announced a settlement with TransUnion and Equifax last week for their violations of the Dodd-Frank Wall Street Reform and Consumer Financial Protection Act. TransUnion and Equifax are 2 of the 3 largest consumer reporting agencies in the country.

The CFPB charged TransUnion and Equifax with violating the law by:

  • Selling worthless credit scores: TransUnion and Equifax told consumers that the credit scores they marketed and provided to them were the scores used by lenders to make credit decisions. The CFPB found that the scores sold by TransUnion and Equifax were not normally used by lenders to make credit decisions.

Samsung recently announced the recall of its popular Note 7 smartphone. After its batteries were shown to overheat and cause fires, the company issued a recall to replace the batteries. Unfortunately, the recall was not able to fix the overheating problem, and Samsung did the right thing and pulled the items from the shelf.

More recently, Samsung was forced to recall 2.8 million washing machines due to a defect that allows the drum to become loosened on the inside of the machine and come into contact with the user, causing significant injuries. Given the speed and force with which new washers spin clothes, the danger of the drum coming loose is severe.

Samsung has faced complaints and lawsuits about injuries from these products, and fortunately they are doing the right thing at this point by recalling the dangerous items. Sometimes companies find defects on their own and recall products. More often, it takes complaints, and often injuries, from many consumers before recalls are issued. And unfortunately, even after numerous complaints, injuries, and even lawsuits, sometimes companies still refuse to recall dangerous products.

Every year, approximately 36 million people are injured and 34,000 people are killed by using everyday consumer products.  This includes everything from falls off ladders to appliances that malfunction and catch fire.  These are staggering numbers.  While many of the injuries and deaths are the result of someone misusing a product, many also result from dangers built into the products themselves that could be prevented.

There is a concept in design engineering called the safety hierarchy.  It is also called the hazard control hierarchy.  It is supposed to govern decisions about how products are made, tested, and redesigned before they come to market and are used by the public.  It is a set of checks to eliminate or drastically reduce the number of injuries and deaths associated with using a product.  If a danger is found in a product, the hierarchy goes like this:  1. Design out the danger, 2. Guard against the danger, 3. Warn against the danger.  Unfortunately, the hierarchy is not always followed.

Design out the danger

Lawyers Render Service.  That is the motto of the Alabama State Bar and has been since Fred Gray was president of the Alabama State Bar in 2001 and continues as a lasting legacy of what lawyers do.

October has been declared Pro Bono Month by Governor Bentley.  This is in connection with the National ABA Day of Service ( which began seven years ago as an effort by the American Bar Association to spotlight the pro bono efforts of lawyers around the country. The American Bar Association has designated October 25-31, 2015 as the National Celebration of Pro Bono. This year, the ABA is holding a new event, And Justice for All: An ABA Day of Service. Not to be outdone, Alabama has declared the entire month of October “Pro Bono Month”.

Some may wonder what Pro Bono is.  Pro Bono is a Latin phrase for professional work undertaken voluntarily and without payment or at a reduced fee as a public service. Unlike traditional volunteerism, it is service that uses the specific skills of professionals to provide services to those who are unable to afford them. Continue reading

The International Council on Clean Transportation gave a grant to West Virginia University to study emission test results on diesel cars in the United States.  A group of researchers at WVU began real world testing of these cars, including Volkswagens and Audis.  They could not replicate VW’s low emission claims in actual driving time.  Eventually, this data was turned over to the Environmental Protection Agency.  That’s when it hit the fan, so to speak.

It turns out that the affected models of Volkswagen and Audi were equipped with a complex software algorithm that detects when the car is undergoing official emissions testing and turns full emission controls on during the test.  When the test ends these omission controls are disabled.  This is called a “defeat device.”  Its purpose is to evade the clean air standards required by the EPA.  As a result of getting caught committing this fraud, Volkswagen is now forced to recall eleven million vehicles.  Its CEO has resigned in disgrace.

The affected models include: Jetta (MY 2009-2015; Jetta Sportwagen (MY 2009-2015); Beetle (MY 2012- 2015); Beetle Convertible (MY 2012-2015); Audi A3 (MY 2010-2015); Golf (MY 2010-2015); Golf Sportwagen (MY 2015); and the Passat (MY 2012-2015).  Vehicle manufacturers are required to certify to EPA that their vehicles will meet the federal standards for emissions.  All vehicles sold in the United States must be certified by the EPA as conforming to the standards.  A vehicle with a defeat device cannot be certified. Continue reading

The use of social media seems to be growing exponentially.  Facebook, twitter and other sites have become ubiquitous in the lives of most Americans.  Certain sites have a more specifically defined focus.  The use of social media in any context, however, contains risk.  The recent scandal concerning the hacking of the Ashley Madison web site is one example.  Every citizen has a right to privacy.  The advent of social media, however, has resulted in the law related to the right to privacy being in a state of flux.

The right to privacy can be defined as the right of an individual to be free from unwanted publicity, from having their private affairs publicized, or the unwanted and wrongful intrusion into a person’s private activities in such a manner as to cause outrage, mental suffering, shame or humiliation.  Acts which might arise to a violation of the right to privacy can include an intrusion upon someone’s physical solitude, publicizing a person’s private business or affairs in a way that violates ordinary decency, putting a person in a false light or the taking of some aspect of a person’s personality.  A violation of the right to privacy is actionable at law, meaning that it will support a civil lawsuit.

There is a distinction between a violation of the right to privacy and defamation of character.  Defamation occurs when someone publishes false information about another person which causes shame, contumely or disgrace.  A violation of the right to privacy can occur even is what is being published is true.  Under the law, the word “publish” simply means to state or disseminate the information.  An example of this would be for someone to post something on the internet about someone else’s private business which would cause that person to be hurt, embarrassed or humiliated.

Look at this picture.  It’s called a stereogram, also known as a 3D image within an image.  They were popular in the 90s and have been around ever since.  Within the beautifully colored image is hidden the words “Happy New Year.”  It takes practice and a lot of time to be able to see the image, but it’s there.  You may have to cross your eyes and uncross them, or get real close to the screen and slowly back away, but eventually you can see the hidden image.

Being a trial lawyer can be a lot like looking at a stereogram.  Some of the greatest results we’ve ever had for clients came from cases that, on the surface, may not have looked like much of a case.  People have a natural tendency to see what is on the surface and not look much further.  They also have a natural tendency to not want to keep looking to see if the situation really is as it initially appears.  But any good trial lawyer will tell you that you’ve got to keep staring at the picture, and if you stare long enough, if you dig into the facts deep enough, you can often find another picture hidden in plain sight.*  Here are a few examples:

A car gets blindsided by a big truck, killing the occupants of the car.  The driver of the 18 wheeler says the car pulled right out in front of him, and he never had a chance to stop or put on the breaks.  The officer then writes the accident up as the car pulled out in front of the big truck.  Many families, struck with grief over the situation, will accept what the officer reports and move on.  Some, however, will hire a lawyer to look into it.  We have seen this scenario many times.  When this case comes to us, we hire a professional engineer to do an accident reconstruction to tell us exactly where the vehicles were, how fast they were going, where the impact took place on the road and on the vehicles, and what happened in the accident.  We hire a trucking expert to look at the records of the trucking company and driver to see if they have any major safety violations.  In short, we do a very thorough job of investigating the case.  And what we’ve found out many times is at odds with what was reported – the 18 wheeler was exceeding the speed limit; the driver was over his time driving and was rigging his log books so he could drive more; the big truck veered into the other lane and hit the car instead of staying in his lane and missing it; the 18 wheeler driver, had he been paying attention, had 5 or 6 seconds to see the car and avoid the collision; the truck driver was distracted and on his cell phone.  What was reported as an accident that was our client’s fault turns out to be a really good case against the trucking company.

The term “heir property” is not a legal term of art.  It is a phrase commonly used to describe the situation where, through inheritance, two or more people own a tract of land as tenants in common.  The doctrine of tenancy in common can be conceptually difficult.  Suppose a father has fifty acres and dies with five children,  leaving no will and no surviving spouse.  The five children are tenants in common with respect to the fifty acres.  They each own an undivided one-fifth interest.  They do not own ten acres each.  They own an undivided interest in the entire fifty acres as tenants in common.

The fifty acres in the above example is what is commonly known as heir property.  This can present both a legal problem and a practical problem.   Using the same example, suppose the five children die, each leaving three children of their own.  Now the grandchildren each own an undivided one-fifteenth undivided interest.  These fifteen co-owners may be spread out all over the country.  They may not have contact with each other.  If the land is not sold or otherwise disposed of, with each successive generation the problem multiplies.  I have seen situations where there are hundreds of co-owners of a piece of land, and they don’t even know the identities of all of their co-owners.

At this stage the land essentially becomes worthless, because, technically, all of the co-owners have the right to possession, but that is impractical.  This is not an unusual situation.  In the decades that I have practiced law I have counseled with over a hundred families who faced this situation.

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