Here are some brief points to keep in mind if you’re ever faced with litigating a Fair Labor Standards Act case and you think it might be appropriate to bring it as a class action.
- Technically, there is no class action mechanism in a Fair Labor Standards Act (“FLSA”) case. Per the FLSA, class actions are called “collective actions.”
- In a FLSA collective action, class members have to opt in. In Rule 23 class actions, generally speaking, absent class members are automatically in the class, but may opt out.
- The filing of a class action complaint tolls the statute of limitations for absent class members. The filing of a FLSA collective action does not toll the statute of limitations for other class members. Their statutes of limitations continue to run until they formally consent to be included in the collective action.
- In Rule 23 class actions, the court engages in a comprehensive review of the rule to ensure that the prerequisites are met. In FLSA collective actions, the threshold inquiry is rather cursory.
The full text of the FLSA’s Section 216(b) can be found here and Rule 23 of the Federal Rules of Civil Procedure is located here.
Herrington Law, PA is a consumer/personal injury litigation firm located in Jackson, Mississippi.
Recently, the United States District Court for the District of New Jersey granted preliminary approval of a class-wide settlement in a class action lawsuit over sales and marketing claims related to the prescription drugs Zetia and Vytorin.
The settlement agreement is here. Some of the details of the settlement are as follows:
- You may get some of the purchase price for these drugs back if you bought them during the period of November 1, 2002 through September 17, 2009;
- Claims related to bodily injury or death are NOT included in the settlement. So, you can participate in the settlement to receive some of your money back that you spent on Vytorin/Zetia, but your right to seek damages if you were hurt by the drug(s) remain in tact;
- All other claims are released including claims of fear of injury, medical monitoring, etc.;
- The deadline for opting out is January 15, 2010;
- The fairness hearing for final approval is February 8, 2010;
- For further details, click here.
Herrington Law, PA is proceeding with claims related to bodily injury. If you have been hurt, or a loved one has died, from taking Vytorin and/or Zetia, click here for a free, and quick, consultation. Or, you can call us at 601.376.9331.
It’s welcome news to read that “[t]he Food and Drug Administration is developing guidelines that will set tougher scientific standards for data from tests on humans that makers of medical devices submit when seeking approval of their products, a top agency official said.” [The text of the full NY Times article is here.]
Considering all the problems with everything from defibrillators to stents and the fact that medical device manufacturers whose products go through the pre-market approval process enjoy almost total immunity for injuries to consumers, it’s about time the FDA gets tougher on manufacturers.
I’ve been involved in many medical device cases. Every case has made it clear that the FDA is not set up to insure our safety. Our civil justice system has to be equipped to hold manufacturers liable when their products injure people. Hopefully, we’ll soon see passage of a medical device amendment that will allow injured consumers their day in court.
Recently, Herrington Law settled a Fair Labor Standards Act case against Mt. Fuji, Inc. d/b/a Stix Restaurant. The case involved allegations of forcing servers to (1) work off the clock and (2) engage in an unlawful tip pool. The case was settled on an individual basis.
The settlement terms are confidential.
If you think you have a wage and hour or Fair Labor Standards Act case, please give me a call at 601.376.9331. Or, fill out the form below for a free review of your case within 24 hours.
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On December 2, 2009, the Federal Drug Administration notified health care professionals that “extreme caution should be used when this drug is given to patients who have a family history of sudden death, cardiac dysrhythmias, and cardiac conduction disturbances; and that seizures precede cardiac dysrhythmias and death in some patients.”
Norpramin (desipramin) is a drug used to fight depression. The full text of the FDA letter can be found here.
Below is the text of the latest Medwatch release related to tumor necrosis factor (“TNF”) blockers that are marketed and sold under the names of Remicade, Enbrel, Humira, Cimzia, and Simponi.
According to the FDA, this medication is linked to an increased risk of lymphoma, leukemia, and other cancers in children and adolescents.
FDA notified healthcare professionals that it has completed its analysis of tumor necrosis factor (TNF) blockers and has concluded that there is an increased risk of lymphoma and other cancers associated with the use of these drugs in children and adolescents. This new safety information is now being added to the Boxed Warning for these products. FDA has also identified new safety information related to the occurrence of leukemia and new-onset psoriasis in patients treated with TNF blockers. The current prescribing information for TNF blockers does contain a warning for malignancies, but does not specifically mention leukemia. FDA is also requiring updates to the current Medication Guide to help patients understand the risks associated with TNF blocker therapy. TNF blockers are approved for the treatment of one or more of a number of immune system diseases including juvenile idiopathic arthritis (JIA), rheumatoid arthritis, psoriatic arthritis, plaque psoriasis, Crohn’s disease, and ankylosing spondylitis.
Read the complete MedWatch 2009 Safety summary, including links to the Information for Healthcare Professionals sheet with recommendations for providers and for patients, and data summaries for the lymphoma, leukemia and psoriasis analyses, at:
http://www.fda.gov/Safety/MedWatch/SafetyInformation/SafetyAlertsforHumanMedicalProducts/ucm175843.htm
If you or someone you know has suffered an injury related to the ingestion of TNF blockers, please contact us for a free consultation. Click the Call Me button at the top right part of the page or fill in the form below. We’ll get back to you within 24 hours.
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Recently, Herrington Law, PA (“HLPA”) filed a class action complaint against Mt. Fuji Restaurant d/b/a Stix Restaurant. HLPA’s client was forced to clock out on certain shifts and then continue to perform work-related tasks.
The case is proceeding in the United States District Court for the Southern District of Mississippi. We’re currently in discovery, and Plaintiff will file his motion for class certification in July 2009.
If you think that you or someone you know has a wage and hour/Fair Labor Standards Act claim, contact us for a free — and fast — case evaluation by clicking here. Or, call us at 601.376.9331.
Everyone is familiar with the term “lemon law.” However, not every car purchase is covered by Mississippi’s lemon law statute.
This article will help you tell whether you have a lemon law case or not. This article is not meant to guide you through a lemon law case. That’s what the lawyers and court system are for. This article is designed to simply lay out the general requirements for a lemon law case.
Mississippi’s lemon law statute is entitled the Motor Vehicle Warranty Enforcement Act. A complete copy of the statute can be found by clicking here.
The first thing to keep in mind is that Mississippi’s lemon law is not limited to new vehicles. The statute is about warranties, not whether a car is new or not. So, if your car is used, but there’s a warranty remaining on it, you may have a case.
Thus, first answer the question, Does my car have a warranty remaining on it?
If the answer is “yes,” you can proceed with reviewing the statute.
- The defect or malfunction in your vehicle must affect the (1) use (2) market value or (3) safety of your vehicle. The defect in your vehicle must fall into one of these three categories.
- The defect cannot be the result of something you did.
- The dealership gets a chance to fix the defect.
- But the statute kicks in once a dealership has had the vehicle in its possession for (a) 15 or more business days (doesn’t matter whether these days were in a row; can be 15 or more days total) or (b) you’ve taken the vehicle to the dealership 3 or more times to fix the same problem.
- Generally, a lemon law case needs to be brought within the earliest of (a) 1 year following the expiration of the warranty or (b) 18 months from delivery of the vehicle to you.
- The statute provides for an informal mediation process that you should use to work things out with the dealership. If the mediation isn’t successful, you should hire a lawyer to take the case if you’ve not already consulted one.
- Attorney’s fees and costs are provided by the statute should you win your case.
I hope this helps you understand Mississippi’s lemon law statute a little better. I welcome feedback via comments.
**This article is informative in nature and not meant as legal advice for your particular situation.**
Please read the story below, reprinted in its entirety from the website of the Center for Justice & Democracy. The story is about contingency fees. Simply put, contingency fees allow lawyers to front the costs of litigation for clients who cannot afford to pursue their cases. The lawyer takes all the risk and does not get paid until the client gets paid.
Contingency fees are crucial to our civil justice system because they allow the courthouse to remain open for everyone regardless of how much money they have — remember, the courtroom is the only place on Earth where the poorest individual can stand on equal footing with the richest multi-national corporation. Contingency fee contracts must be upheld. We do not need judicial activism or legislation impinging on this vital entry point into the civil justice system.
If you hear of others talking about the evils of trial lawyers, remind them that trial lawyers and the contingency fee contract are the last line of defense for most individuals.
Judge Cuts Attorney Fees in Crash Award: Future Victims Could Pay
Imagine for a moment you are James McMillan—a forty-four-year-old former Fulton Fish Market worker in New York City and victim of the 2003 Staten Island Ferry crash which killed 11 people and injured scores more. On that horrible day, while standing near the ship’s bow, you are pinned facedown by debris and several bones in your spine are crushed, rendering you permanently quadriplegic. You now require the assistance of an aide for even the most basic activities. You also suffer migraine headaches and cannot regulate your body temperature, among other complications.
You know you need the services of a reputable attorney, but unfortunately, you are unable to pay for one since you have lost the use of your arms and legs and are totally unable to work. Luckily, Attorney Evan Torgan agrees to take your case on a standard contingency basis—that is, you pay nothing up front, and Torgan agrees to cover all litigation costs (which could total thousands, and perhaps even millions of dollars). In return, if you win, Torgan’s compensation will be one-third of your award. If you lose, Torgan will receive nothing.
The city initially offers to settle for a completely inadequate sum, but Torgan knows a lowball offer when he hears one—so he advises you to go to trial, and you agree. Following the trial, you are awarded 83 percent more than the city originally offered. But most importantly, you’re in a far better position to pay for the life-long expenses you will incur as a person who is completely paralyzed from the neck down.
Now put yourself in Attorney Torgan’s shoes. By any measure, you have done a magnificent job in obtaining justice for your client. Nevertheless, following the trial, the judge (Judge Jack B. Weinstein) inexplicably decides to reduce your fee to 20 percent—leaving you with roughly the same amount you would have received had you not invested your time and resources in preparation for trial, and simply accepted the city’s lowball offer.
Unfortunately, this is exactly what happened—and it could have a very chilling effect on the ability of future injury victims to obtain justice from the courts.
Simply put, if Weinstein’s decision is allowed to stand and/or signals some sort of new trend in judges inserting themselves into attorney/client fee agreements, attorneys may no longer be able to accept the risk of representing clients on a contingency. And even if they do, they’ll be tempted to settle immediately no matter how unfair the offer may be to the client, knowing that the resources they expend in preparation for a trial may never be recouped.
Thankfully, Weinstein stayed his judgment for 20 days to allow the parties to seek relief from the 2nd U.S. Circuit Court of Appeals. In the meantime, for the sake of injured people everywhere, let’s hope the 2nd Circuit responds appropriately to Judge Weinstein’s ridiculous fee ruling—by tossing it out with the other garbage.
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