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News

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.

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R. Allen Stanford’s businesses have been shut down by the Securities and Exchange Commission pending an investigation of charges that they engaged in fraudulent investment practices such as:

  • lying about historical data related to their investment products and
  • promising unrealistic rates of return.

Stanford Financial has offices in Texas and Mississippi, namely Jackson, Columbus, and Tupelo.

The Mississippi Secretary of State has subpoenaed Stanford’s records in what could be a $9 billion fraud.

If you have investments with any of the Stanford Financial businesses, please contact us to protect your legal rights. Our number is 601.376.9331. Or, you can fill out the short submission form below, and we’ll get back to you immediately.

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Hi. I’m excited about teaching a class at Solo Practice University entitled How To Litigate A Class Action. I hope you enjoy the short video and, more important, I hope to see you at Solo Practice University.

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In a 9-0 opinion, which can be found here, the Mississippi Supreme Court upheld a trial court’s denial of a motion to compel arbitration.

In Trinity Mission Health and Rehab, LLC v. Ruth Lawrence, Mrs. Lawrence sued Trinity over the death of her husband. Trinity moved to compel arbitration claiming that Mr. Lawrence had signed an arbitration agreement. Further, Trinity argued that Mrs. Lawrence had signed the arbitration agreement and had authority to bind Mr. Lawrence.

The Court rejected both arguments and found that Mrs. Lawrence’s claims can proceed to a trial on the merits in circuit court, not arbitration. The opinion is good news for those of us fighting against the continual erosion of our jury system and the emergence of arbitration.

Good job to the lawyers representing Mrs. Lawrence and who briefed the case to the Court — Trae Sims and Ben White.

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February 13, 2009 — Today, the company that caused a massive outbreak of salmonella food poisoning from peanut butter products — and may have caused numerous deaths — filed for bankruptcy. Peanut Corporation of America filed for Chapter 7 bankruptcy in the U.S. Bankruptcy Court for the Western District of Virginia.

In Chapter 7 bankruptcy, corporations liquidate their assets to create cash for creditors.

This bankruptcy will certainly affect the claims of people who have been injured by the salmonella outbreak and peanut butter recall. Injured persons need to move quickly to protect their rights.

If you’ve been injured as a result of salmonella poisoning from peanut butter, call us now at 601.376.9331 to protect your claim. Or, you can fill out the short submission form below, and we’ll get back to you within 24 hours, if not sooner — even on weekends.

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On January 20, 2009, Heartland Payment Systems, which provides payment and payroll solutions to some 250,000 businesses nationwide, announced a security breach in which private consumer information was potentially stolen. The Better Business Bureau states that Heartland processes more than 100,000,000 transactions a month.

The story is developing and Herrington Law, PA is staying current on those developments.

If you have reason to believe that your private debit/credit card and/or bank account information has been affected, please give us a call at 601.949.9456 or please fill out the short form below.

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UPDATED: January 28, 2009: CNN cites the FDA in reporting that the Peanut Corporation of America knew in 2007 and 2008 that it had a problem with salmonella at its Blakely, Georgia plant. If you have questions about the peanut butter salmonella outbreak, please give us a call at 601.949.9456 or submit a case review form here.

January 23, 2009: The information below is quoted directly from the Federal Food & Drug Administration’s website.

A combination of epidemiological analysis and laboratory testing by state officials in Minnesota and Connecticut, the Food and Drug Administration (FDA), and the Centers for Disease Control and Prevention (CDC) have enabled FDA to confirm that the sources of the outbreak of illnesses caused by Salmonella Typhimurium are peanut butter and peanut paste produced by the Peanut Corporation of America (PCA) at its Blakely, Georgia processing plant.

Peanut butter is sold by PCA in bulk containers ranging in size from five (5) to 1,700 pounds. The peanut paste is sold in sizes ranging from 35-pound containers to product sold by the tanker container. Neither of these products is sold directly to consumers.

However, through its investigation, FDA has determined that PCA distributed potentially contaminated product to more than 70 consignee firms, for use as an ingredient in hundreds of different products, such as cookies, crackers, cereal, candy and ice cream. FDA’s report on its inspection of the PCA facility is available at this link: http://www.fda.gov/ora/frequent/default.htm. Companies all over the country that received product from PCA have issued voluntary recalls of their products. FDA has created a searchable database for these products, which can be found at http://www.accessdata.fda.gov/scripts/peanutbutterrecall/index.cfm, Identification of products subject to recall is continuing and this list is updated frequently.

Product recalls now include some pet food products that contain peanut paste that was made by PCA. While the risk of animals contracting salmonellosis is minimal, there is risk to humans from handling these products. It is important for people to wash their hands–and make sure children wash their hands–before and, especially, after feeding treats to pets. Further information for consumers is located in the Frequently Asked Questions section located on this web site. The pet food products are also included in the searchable data base of recalled products.

Major national brands of jarred peanut butter found in grocery stores are not affected by the PCA recall.

FDA and CDC recommendations for consumers include:

* Do not eat products that have been recalled and throw them away in a manner that prevents others from eating them.
* To determine if commercially-prepared or manufactured peanut butter/peanut paste-containing products (such as cookies, crackers, cereal, candy and ice cream) are subject to recall, consumers are urged first to visit FDA’s website and check the searchable database of recalled products.
* For information on products containing peanut butter from companies not reporting recalls, consumers may wish to consult the company’s website or call the toll-free number listed on most packaging. Information consumers may receive from the companies has not been verified by the FDA.
* If consumers cannot determine if their peanut butter, peanut butter/peanut paste-containing products or institutionally-served peanut butter contains PCA peanut butter/peanut paste, FDA recommends that they do not consume those products.
* Persons who think they may have become ill from eating peanut butter are advised to consult their health care providers.

For Retailers

* Stop selling recalled products.

For Directors of Institutions and Food Service Establishments

* Ensure that they are not serving recalled products.

For Manufacturers

* Inform consumers about whether their products could contain peanut butter or peanut paste from Peanut Corporation of America (PCA). If a manufacturer knows their products do not contain peanut butter or peanut paste from PCA, they should inform consumers of that. For specific guidance: Guidance for Industry: Product Recalls, Including Removals and Corrections

The FDA will closely monitor these events by continuing to work with the firms on the details of their actions, conducting follow-up audits and inspections, monitoring the progress of the firms’ actions, working with state and local regulatory authorities, and notifying our foreign regulatory counterparts of products that have now been confirmed as having been distributed internationally.

Ongoing Investigation

FDA has collaborated with the Centers for Disease Control and Prevention (CDC) and public health officials in various states to investigate the multi-state outbreak of human infections due to Salmonella Typhimurium. An epidemiological investigation by the Minnesota Department of Health isolated and tested subsamples from an open five-pound container of King Nut peanut butter obtained at a nursing home where three patients were sickened by the outbreak strain of Salmonella Typhimurium. The Minnesota Health officials found the peanut butter contained the same strain of Salmonella Typhimurium associated with the illnesses linked to the outbreak.

Because it is always possible that the open container was contaminated by someone or something else in the environment, the FDA and the states began testing unopened containers of the same brand of peanut butter. King Nut distributes peanut butter manufactured by the PCA to institutional facilities, food service industries, and private label food companies in several states.

On January 19, 2009, testing by the Connecticut Department of Health of an unopened container of King Nut peanut butter showed that it too contained the same strain of Salmonella Typhimurium associated with illnesses linked to the outbreak. The fact that the Salmonella Typhimurium was confirmed in an unopened container of peanut butter indicates that peanut butter originating from the processing plant was contaminated.

FDA has initiated inspections at the direct consignees of PCA and King Nut and continues to follow the distribution points for products.

The FDA has no evidence to suggest that the Salmonella Typhimurium contamination originated with any other major manufacturing facility other than PCA. The PCA facility in Blakely, Georgia is not operating at this time and the company has recalled peanut butter and peanut paste produced from July 1, 2008 to the present.

The FDA and food manufacturers are working to identify products that may be affected, and to track the ingredient supply chain of those products to facilitate their removal from the marketplace.

For the latest information on the outbreak and the epidemiological investigation, including number of illnesses and a list of states reporting illnesses, go to the CDC web page at http://www.cdc.gov/salmonella/typhimurium/.

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With humility and eagerness, I am joining the faculty of Solo Practice University, a web-based, virtual law school where law students and legal professionals can learn the “how-tos” of practicing law. I will teach a course on class action litigation.

Class actions play a vital role not only in our civil justice system, but also in society as a whole. Numerous beneficial changes to industry practices, political governance, and civil rights have been achieved through the class action device.

It is indeed an honor to now have the opportunity to share with others all that I have learned about Rule 23 class actions. Mine will not be a theory course. From the initial client interview to trial and all points in between, we’ll discuss Rule 23 inside and out and you’ll obtain the tools necessary to successfully litigate a class action. Like all the other classes at Solo Practice University, this is a how-to course.

While class actions can be immensely complex and time-consuming, solo practitioners litigate them every day. Through this course, I hope to equip other solos, or law students thinking of going solo out of law school, to handle Rule 23 cases.

Thanks to Susan Cartier Liebel for extending this opportunity to me. I look forward to it. We’re going to learn a lot and, hopefully, have some fun while we’re at it.

Below is the video introduction to my course.

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In a welcomed move, the 2nd Circuit Court of Appeals has ruled that a party (American Express) that did not sign an arbitration agreement can not compel consumers to arbitrate their claims against that party.

Hopefully, this will help end the trend of sending consumer claims into arbitration when those claims do not arise from any contractual relationship between the parties. An article detailing the ruling is reprinted below.

2nd Circuit: Plaintiffs in Credit Card Antitrust Case Cannot Be Compelled to Arbitrate

Mark Hamblett
New York Law Journal
November 11, 2008
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Plaintiffs who claim a conspiracy by American Express to cover up an antitrust plot with other major credit card companies on foreign currency transactions won a victory as a federal appeals court said they cannot be compelled to arbitrate.

The 2nd U.S. Circuit Court of Appeals ruled the plaintiffs could not be forced into arbitration because American Express was not a signatory to the MasterCard, Visa and Diners Club credit card agreements that included the arbitration clauses.

The court’s decision came in Ross v. American Express Co., 06-4598-cv, a related case to the multidistrict class action litigation, In Re Currency Conversion Fee Antitrust Litigation, 01-md-01409, now pending before Southern District of New York Judge William Pauley.

In the multidistrict currency conversion case, cardholders are claiming that card companies and major issuing banks have engaged in a Sherman Act conspiracy to fix higher fees for transactions involving foreign currency.

In Ross, the plaintiffs are the same cardholders in the multidistrict litigation, but they are not American Express (Amex) cardholders. The Ross plaintiffs charged in their complaint that American Express plotted with the other major card companies “to fix, maintain, and conceal the artificially inflated” foreign currency fees at issue in the multidistrict litigation. They alleged that American Express was part of the “collusive arrangement between and among the MDL defendants” — in part by holding a series of meetings on including compulsory arbitration agreements “in an effort to impede consumer litigation.”

In the Ross case, Pauley held in 2005 that the plaintiffs could be compelled to arbitrate their claims, but only after a trial to determine the validity of the arbitration clauses.

The judge said “a non-signatory to an arbitration agreement may compel a signatory to that agreement to arbitrate a dispute where careful review … discloses that the issues the non-signatory is seeking to resolve in arbitration are intertwined with the agreement that the estopped party has signed.”

The 2nd Circuit reversed in a decision by Judges Rosemary Pooler and Peter Hall and, sitting by designation, Eastern District of New York Judge David Trager. Pooler wrote for the panel.

“Arbitration is a matter of contract, but the plaintiffs have not entered into any contract whatever with Amex, let alone any contract containing an arbitration clause,” Pooler said.

So the question for the court was whether it would employ any one of a number of common law principles that would allow a nonsignatory to enforce an arbitration agreement, including equitable estoppel. The answer was no.

“The district court’s opinion improperly extends the principle of compelling arbitration through equitable estoppel to a situation where the requisite contractual basis for arbitration does not exist,” Pooler said.

Second Circuit cases applying estoppel against a party trying to avoid arbitration, she noted, have in common that nonsignatories have some kind of “corporate relationship” to a signatory, such as cases involving subsidiaries, affiliates and agents.

And the court has extended that concept beyond affiliated corporate entities to other situations, including where a nonsignatory to a construction contract could compel arbitration because it was explicitly required by the contract to perform certain tasks. That case was Choctaw Generation Ltd. P’ship v. American Home Assurance Co., 271 F. 3d 403 (2d Cir. 2001).

But there are limits, Pooler said, and those limits were exceeded here, because the case “utterly” lacked the “further necessary circumstance of some relation between Amex and the plaintiffs sufficient to demonstrate plaintiffs intended to arbitrate this dispute with Amex.”

Merrill G. Davidoff of Berger & Montague in Philadelphia represented the plaintiffs.

“We think some of the lower courts, including the lower court in this case were misapplying and ‘overapplying’ the doctrine of equitable estoppel to throw cases into arbitration that shouldn’t have been there and we think the court of appeals has appropriately reined in the application of that doctrine,” he said.

American Express spokesperson Joanna Lambert said the company was disappointed in the decision and was reviewing its options. Jonathan Jacobson of Wilson Sonsini Goodrich & Rosati argued for American Express.

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Pain Drugs Double Risk of Second Heart Attack, Death in Study

By Nicole Ostrow

Nov. 11 (Bloomberg) — Heart attack and heart failure patients have a higher risk of a second heart attack or death if they take painkillers including the generic drug ibuprofen and Pfizer Inc.’s Celebrex, a Danish study found.

The risk doubled within the first 90 days on the painkillers Celebrex or Merck & Co.’s withdrawn Vioxx in those who had survived a heart attack or heart failure, compared with those who didn’t take the medications, according to research presented today at the American Heart Association meeting in New Orleans. Other common painkillers, such as the generics diclofenac and ibuprofen, increased the risk between 2.1 and 1.3 times.

About 8.1 million people in the U.S. have had a heart attack and 5.3 million Americans suffer from heart failure, according to the Heart Association Web site. Based on today’s findings, doctors should avoid prescribing painkillers called NSAIDS, or nonsteroidal anti-inflammatory drugs, for these patients, or give them at the lowest dose for the shortest time, researcher Gunnar Gislason said.

“The take-home message is that we need to be careful when using NSAIDs among patients with previous heart attack or heart failure, and we need to carefully consider the balance between risk and benefit when considering starting NSAID treatment in high-risk patients,” said Gislason, a senior resident in cardiology at Copenhagen University Hospital in Denmark, in an e-mail. “Even short-time treatment with NSAIDs seems to increase cardiovascular risk among these patients.”

Painkiller Popularity

The researchers analyzed the records of 58,432 patients who had a previous heart attack and 107,092 with heart failure in Denmark. Of those, 36 percent of the heart attack patients and 34 percent of the heart failure patients said they took at least one painkiller after they were discharged from the hospital.

Patients who had suffered a heart attack and were taking the painkiller Vioxx had 2.7 times the risk of having another heart attack or dying compared with patients not taking painkillers. Heart attack patients taking Celebrex had double the risk, while those with heart failure taking Celebrex had 2.3 times the risk. Heart attack patients taking diclofenac had 1.9 times the risk, while those taking ibuprofen had 1.3 times the risk, according to the study.

Pfizer spokeswoman Shreya Jani said the company couldn’t comment without seeing the study.

“We do know there will be an increased risk of dying from a heart attack in the first year after the event, regardless of NSAID use,” she said. “Since 2005, all prescription NSAIDs, including Celebrex, naproxen, ibuprofen, diclofenac and Mobic amongst others, have boxed warnings that provide important information about possible impact of these medicines on the cardiovascular systems. Patients and doctors should discuss this and other information about medicine and the patient’s health and decide what is right for each patient.”

Celebrex Risks

A study presented in March at the American College of Cardiology meeting in Chicago found that patients taking the highest dose of Celebrex at 400 milligrams twice a day tripled their chance of a heart attack or stroke compared with people taking a placebo. Those taking Celebrex twice daily at the 200- milligram dose doubled their risk of a heart attack. People with heart disease, high cholesterol, diabetes or who smoked also had an increased risk, the researchers said.

A more definitive assessment of Celebrex risks won’t come until 2013, when a $100 million study of 20,000 patients comparing Celebrex with the pain pills ibuprofen and naproxen is expected to be completed. Jani said the safety monitoring committee met recently and noted that the study could continue unchanged.

Celebrex had $2.3 billion in 2007 sales for New York-based Pfizer.

To contact the reporter on this story: Nicole Ostrow in New York at nostrow1@bloomberg.net.
Last Updated: November 11, 2008 10:54 EST

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