Drug Injury Lawyer Blog

HughesNet Canadian Class Action? Xplornet, C-Com, and Galaxy Broadband

2008-11-18T17:35:17Z

Following the HughesNet Class Action lawsuit filed by the law firm of Pogust, Braslow & Millrood, LLC, which in part asserts claims by subscribers for unlawful early termination fees (ETF) and fraudulent business practices involving slow-broadband service, lack of Internet accessibility and connectivity, there have now been a number of inquiries from Canadian residents with similar Complaints.

]]> In Canada, HughesNet broadband satellite Internet service is sold and distributed through third-party companies such as Xplornet, C-Com and Galaxy Broadband.

Described as “Authorized Channel Providers” HughesNet has recently sought to obtain Internet Satellite market share in Canada. Such efforts by HughesNet to further exacerbate the number of subscribers beyond the capability of its network satellite system is significant where the pending class action against HughesNet involves allegations that it intentionally “oversold” its bandwidth, whereby "thousands of HughesNet subscribers and consumers were subjected to limited Internet broadband accessibility, speed, functionality, and connectivity.”

If you or someone you know is a Canadian resident, subscriber of a HughesNet authorized channel provider and have experienced similar service related complaints, please contact our law firm for a free evaluation.

Overtime Pay for Interstate Drivers

2008-11-17T22:46:44Z

The Fair Labor and Standards Act, which establishes rules for employers concerning maximum hours and overtime wages, has several clauses that excuse some employers from having to pay time and one-half for overtime wages. One such exemption provides that getting paid time and one-half for overtime hours is not required for any employee with respect to who the Secretary of Transportation has power to establish qualifications and maximum hours of service pursuant to the provisions of the Motor Carrier Act (“MCA”).

]]> Those employees that fall under the MCA include motor common carriers (those who publicly provide motor vehicle transportation for compensation) and motor contract carriers (those who provide transportation of persons or property pursuant to some agreement). See 49 U.S.C. § 10102. Additionally, the MCA also covers private motor carriers, who are those that are neither common nor contract carriers, and who (1) transport property by motor vehicle in interstate commerce; (2) own or have been given custody by the owner of the property being transported; and (3) are transporting the property in order to sell, rent or otherwise further a business goal. See 49 U.S.C. § 10102.

It is not just drivers who are covered by the MCA, but also those who affect the safety and operation of the vehicles being driven. Therefore, courts have found that the MCA covers nearly all (1) drivers of motor vehicles operating in interstate commerce; (2) drivers’ helpers on such vehicles; (3) mechanics who repair and service such vehicles; and (4) loaders of such vehicles. See 29 C.F.R. § 782.2(b)(3).

The most important question in determining whether the MCA applies is the character of the employer’s business, not necessarily the specific acts performed by the employee. Therefore, any person within that business that has the opportunity to affect interstate commerce through actual transportation on a vehicle or to affect the safe operation of that vehicle through maintenance and loading, or the supervision thereof, will also be considered exempt from getting paid time and one-half for overtime hours worked. However, if the business not does participate in interstate commerce, then the MCA exemption is unlikely to be applicable, and those employees should still be getting paid time and one-half for those overtime hours worked.

Here at Pogust Braslow & Millrood, we are actively involved in litigation based on violations of federal and state overtime laws. If you are uncertain whether your employer is paying your overtime wages correctly, then contact us on our webpage at www.pbmattorneys.com so that we can work to protect your rights.

ADT Alerted to its Own Overtime Violations

2008-11-14T00:27:04Z

On August 28, 2008, a group of current employees sued ADT Security Services, Inc. for failing to pay time and one-half for overtime hours worked, as required by the federal Fair Labor and Standards Act. The employees include those with positions as service and maintenance technicians as well as commercial and residential installers also known as installation technicians.

]]> The class action was filed in Eastern District of Texas, which is the federal district in which most if not all of the named employees reside. The employees allege that ADT failed to pay them time and one-half for those overtime hours spent traveling to and from commerical locations and residences or those hours spent at the office prior to their first job of the day or subsequent to their last job of the day.

It is possible that ADT misclassified such employees as exempt from the FLSA standards for maximum hours, however, the employees claim that they were not exempt under the FLSA guidelines and deserved to be paid time and one-half for both their travel time to job locations and for all other work hours over 40. Simply because an employer misclassifies employees as exempt, accidental or otherwise, does not prevent those employees from recovering lost wages and other damages from their employers, and in fact, similar lawsuits have been filed around the country alleging overtime violations against employers in a variety of fields.

If you work for ADT or any company and believe that you have been misclassified an an employee exempt from receiving overtime wages, then please contact our firm at www.pbmattorneys.com so that we can help protect your rights. Pogust Braslow and Millrood LLC is actively involved in such lawsuits, and we would be happy to provide you with a free consultation for this or any of your legal needs.

Forest Agrees to Settle Securities Class Action for $65 Million

2008-11-12T16:09:57Z

On Monday, November 10, 2008, Forest Laboratories, Inc. filed a quarterly report with the Securities and Exchange Commission, revealing that it had agreed in principle to a settlement amounting to $65 million in In re: Forest Laboratories, Inc. Securities Litigation, 05-cv-02827 (S.D. NY).

]]> Specifically, Forest represented in the “Legal Proceedings” section of its form 10-Q, which is available here, Forest Form 10-Q (Nov. 10, 2008), that it has entered into a “Memorandum of Understanding,” dated September 22, 2008, agreeing in principle with the plaintiffs to settle all claims for $65 million.

As we discussed in an August 2008 blog, Celexa/Lexapro Securities Case Blog (Aug. 27, 2008), the plaintiffs in the case are alleging that Forest committed securities fraud, driving up the price of its stock, by misrepresenting the safety of its antidepressant drugs, Celexa and Lexapro, for use in the pediatric population. Of course, the labeling for both drugs now bears a conspicuous black box warning advising of the risk of suicidality posed by the drugs to those under the age of 25. Lexapro Prescribing Information (Aug. 2008)

U.S. Consumer Product Safety Commission Report Highlights Yamaha Rhino Related Injuries

2008-11-10T16:35:21Z

Oct. 15, 2008, the U.S. Consumer Product Safety Commission released the 2007 Annual Report of All-Terrain Vehicle (ATV)-Related Deaths and Injuries, which compiled ATV-related fatality information available to CPSC staff as of Dec. 31, 2007, and ATV-related injury data for emergency-room-treated injuries occurring through Dec. 31, 2007.

]]> The report comes just months after Yahama reported a nation-wide recall of its Rhino All-Terrain Vehicle (ATV) Side-by-Side Vehicles due to risk of brake failure. The recall involves model year 2008 Rhino YXR450 and YXR700 Side-by-Side Vehicles.

The recall sets forth in pertinent part that "consumers should immediately stop using the recalled Rhinos and contact any authorized Yamaha Rhino dealer to schedule a free repair."

Such recall also follows a recent incident involving two-eleven year girls killed in a Rhino roll-over.

If you or someone you know has been harmed as a result of a Yamaha related accident, please contact our law-firm for a free-consultation.

FDA Mulls a Ban on Avandia

2008-11-07T21:56:18Z

The FDA recently announced that it would consider whether to pull GlasxoSmithKline’s former top-selling drug, Avandia, off the market or allow it to stay on the market with stronger warnings after discovering evidence indicating that the drug may cause liver toxicity, resulting in liver failure and death.

]]> This pronouncement comes after notable medical groups in the U.S. and Europe, including the American Diabetes Association and the European Association for the Study of Diabetes, asked doctors worldwide to no longer prescribe Avandia.

Furthermore, on Thursday, October 30, 2008, the consumer group Public Citizen specifically asked the FDA to ban the diabetes drug, indicating that in addition to increasing the risk of heart attack by 40%, there were many other life-threatening risks that far outweigh its benefits, including bone fractures and now the risk of liver toxicity. Public Citizen cited fourteen cases of Avandia-induced liver failure, twelve of which were lethal, that were discovered in the FDA Adverse Event Reporting System.

Although Avandia sales have fallen sharply since May 2007, Public Citizen said about 10,000 prescriptions are still being filled daily for Avandia. GlaxoSmithKline said Avandia and a related product that combines Avandia with another diabetes drug recorded world-wide sales of $313 million in the third quarter of this year.

Unsurprisingly, GlaxoSmithKline continues to claim that Avandia is safe and effective when used appropriately. However, safer and more effective drugs for Type 2 diabetes including Glucophage and Glucotrol remain on the market.

If you or a loved one were taking Avandia and have since been diagnosed with liver problems, please contact our office via our website at www.pbmattorneys.com for a free consultation so that we can work with you to protect your rights.

HughesNet Early Termination Fees Revisited? The Sprint-Nextel Case

2008-11-06T16:33:49Z

]]> Specifically, the suit is seeking ETF refunds for a nationwide class of subscribers, with the plaintiffs alleging that the cell phone giant has, since 1999, charged approximately $1.2 billion in ETFs.

This suit results from a recently completed trial in which Sprint-Nextel was found to be violating California state law with its termination fees. That suit established that the fees were arbitrary, and designed to prevent unhappy customers from dropping their Sprint-Nextel services.

If you or someone you know have incurred an early termination fee (ETF) relating to your subscription of HughesNet, please contact our law-firm for a free evaluation.

Preemption Update: Wyeth v. Levine

2008-11-05T19:29:37Z

On Monday, November 3, 2008, the United States Supreme Court heard oral argument in Wyeth v. Levine, and we have the full draft transcript available for you here: Wyeth v. Levine (Oral Argument Transcript)

]]> Diana Levine developed gangrene and lost her arm to amputation following intravenous injection of Wyeth’s drug, Phenergen, which was administered to treat her nausea. She sued Wyeth alleging, inter alia, that the company failed to adequately warn her physician that Phenergen should not be administered intravenously. Following trial, she won a verdict of approximately $6.7 million, and the trial court denied Wyeth’s motions for summary judgment and judgment as a matter of law based upon preemption. The Vermont Supreme Court affirmed, and Wyeth petitioned the United States Supreme Court for certiorari.

For consumers and plaintiff lawyers, the oral argument started out well, with Justice Kennedy challenging Wyeth’s lawyer, Seth Waxman, on Wyeth’s claim that it would have been unable to comply both with federal law and its Vermont common law duty to warn. Justice Kennedy interrupted Mr. Waxman at the very beginning of his argument, commenting: “You argue that it’s impossible for Wyeth to comply with the State law and at the same time the Federal label. … But as a textual matter, as a logical matter, as a semantic matter, I don’t agree with it.” Transcript, at 3-4.

Justices Ginsburg, Alito, and Chief Justice Roberts each followed with their own challenges, with the Chief Justice noting the distinction between the Medical Device Act, which contains an express preemption provision, and federal prescription drug laws, which contain no analogous provision. When Mr. Waxman responded to the Chief Justice’s comment by pointing out the similarities between the FDA’s processes for device approval and the drug approval, the Chief Justice pressed further: “If that’s true, you would have expected the Federal Drug Act to have a similar express preemption provision. And one reason perhaps that it didn’t is that when the Drug Act was passed you had an established background of State actions; when the Medical Device Act was passed you didn’t.” Transcript, at 10.

Perhaps the capstone to the Justices’ challenge of Wyeth’s position came from Justice Souter, who posited that Wyeth could have done precisely what the Plaintiff’s Vermont lawsuit called for – i.e., strengthen its warning – without any federal impediment. Justice Souter harkened back to Justice Kennedy’s original question: “[W]here is the conflict?” Transcript, at 12.

The United States, as amicus curiae on behalf of Wyeth, was represented by Deputy Solicitor General of the Department of Justice, Edwin Kneedler, who fielded questions from the Court following Mr. Waxman. Mr. Kneedler conceded that the FDA does not believe, as a general matter, that all tort remedies for prescription drug injuries are preempted. Justice Scalia queried what sort of claims would survive, eventually cornering Mr. Kneedler’s position:

JUSTICE SCALIA: … [W]hat if you brought [a risk] to the FDA's attention and the FDA just hasn't acted on it? You would be authorized to change the label on your own.
MR. KNEEDLER: You would be authorized, but if FDA then … rejects the labeing –

JUSTICE SCALIA: I understand, but in the interim, you could – could you be subject to a State tort suit for not changing the label when – when you had the power to do so?

MR. KNEEDLER: … [I]f FDA has taken no action at all, then I think … you could be.

Transcript, at 17-18. Certainly, it would not be surprising if this exchange portends the outcome and holding of the case.

Of course, the day was not all sunshine and roses for Diana Levine’s position, as Justice Scalia charged hard at Levine’s lawyer, David Frederick, concerning, inter alia, the Plaintiff’s position that holding manufacturers to a duty to warn promotes public safety. Justice Scalia insisted: “It would not promote public safety if you believe the name of this game is balancing benefits and costs. … And if you are simply eliminating certain drugs which people who – who have real desperate need for … could be benefited by, you’re not benefiting the public.” Transcript, at 35-36.

All in all, the transcript reveals that the Court, although unlikely to reach a sweeping holding that will eliminate all prescription-drug-based tort suits, may divide closely on where the line is to be drawn.

Preemption May Spell Tragedy for Women

2008-10-30T18:21:26Z

A report released yesterday by the national consumer rights group Center for Justice and Democracy entitled “The Bitterest Pill – How Drugs Companies Fail to Protect Women and How Lawsuits Save Their Lives” revealed the devastating consequences that the regulatory failures and inadequacies of the FDA have had, specifically on women.

]]> The history of death and serious injuries that women have faced over the years from under-researched and misjudged drugs is unnerving, as drug companies continue to produce drugs for otherwise healthy women to control their reproductive systems (i.e. birth control, hormone replacement therapy, etc.). Furthermore, a large majority of drugs are released into the market without first understanding the possible effects that they can have on a pregnant woman and her fetus. Sometimes, it is not until a larger population of patients is exposed to the drugs that these more infrequent and potentially life-threatening side-effects are recognized. And even though they are recognized, it is not until litigation is brought by injured women, that the potential side-effects are addressed by the companies.

This report has been released at a crucial juncture in time, as the Supreme Court is set to hear the case of Wyeth v. Levine on Monday, November 3, 2008, regarding the issue of whether drug companies can be sued by injured consumers due to the negligent or reckless behavior of the companies. If the Court were to find in favor of the drug companies, then the most effective means of regulating the pharmaceutical industry could be lost, inevitably leading to only more injuries and deaths. Civil actions against drugs companies have been the source for increased warnings on the labeling for drugs and even for the removal of drugs from the markets. Furthermore, lawsuits provide those injured by such drugs with a means of obtaining compensation for their pain and suffering. Without personal injury actions available to these injured people, not only will their individual stories of suffering go largely ignored, but their fates and the fates of all patients taking pharmaceutical drugs is left up to the FDA, who, up until recently, readily admitted to being undermanned and under-funded to fully evaluate all of the information provided to them by the pharmaceutical companies when evaluating a drug for release on the market.

If you or a loved one were injured by the serious side-effects of a pharmaceutical drug, please contact our office via our website at www.pbmattorneys.com for a free consultation so that we can work with you to protect your rights.

Brief Primer on Predatory Lending --- What Every Borrower Should Know

2008-10-29T15:55:29Z

There are a number of key concepts and principals every borrower should know concerning the issue of predatory lending, including what it is, and what relief is available to those adversely affected by such illicit practice.

]]> What is the formal definition of a subprime loan?

Subprime loans are granted to a borrower at a higher rate than current prime interest rate because of the borrower's conventional credit history. Generally, subprime loans are 3 points higher than conventional loans and have much higher costs and fees. As set forth in an article published in the Banking Law Journal, the benefits of such loans comes at a great cost "because the borrowers of subprime loans are being charged excessive interest charges that will eventually place them in default." In 2006, the Wall Street Journal found that "61% of subprime loan holders actually had credit scores high enough to qualify for loans at prime rates."

Predatory Lending: A Brief Case Study

Wells Fargo, is one of America's largest subprime lenders, making real estate and consumer finance loans to borrowers with less than perfect credit. Wells Fargo, a relatively newcomer to the sub-prime lending industry, has already run into significant controversies in California, Maryland, Illinois and New York. As expressed by Responsible Lending, a non-profit organization, despite Wells Fargo's success there are several "trouble spots in its subprime mortgage lending" including the victimization of "low-weath consumers." A review of Wells Fargo's lending practices, dating back to 2004, shows "a host of practices ... including excessive fee and high interest rates, deceptive marketing and consumer steering, loan 'flipping' and sham 'open-end' loans and credit cards.

What Can Be Done?

There are a number of remedies available to individuals adversely affected by predatory lending, including but not limited to filing a formal complaint and legal claim against the lending institution. According to the American Bar Association's website, individuals may assert claims for predatory lending by way of "active consumer law bars." Other resources include the National Consumer Law Center (NCLC) and the National Association of Consumer Advocates (NACA)

If you or someone you know has suffered as a result of predatory lending practices, please contact our law-firm for a free consultation.

Decoy Indication: New Hybrid Method for Off Label Promotion of Medications?

2008-10-28T19:13:40Z

A recent article published by the Public Library of Science Medicine (PLoS Medicine), has highlighted new innovative ways in which pharmaceutical companies are promoting medications for off-label use.

]]> Specifically, the article sets forth that a new practice referred to as "decoy indication" occurs where "a company may seek approval for just a narrow indication in order to speed a drug to market ... In other words, a drug may be approved for [a] very narrow 'decoy indication' while an extensive off-label campaign is not disclosed to drug regulators."

Additionally, the article highlights the extent in which pharmaceutical companies are turning to Medical and Graduate education programs as venues to promote off-label uses. According to the article and as expressed in a recent Parke-Davis business plan, "Medical education drives this market!"

The article concludes by setting forth that "pharmaceutical marketing has distorted the discourse on off-label uses and encouraged the unmonitored, potentially dangerous use of drugs by patients for whom risks and benefits are unknown."

Consumers Fight-Back Against Slow Internet Service, Limited Bandwidth, and Egregious Customer Fees --- Comcast, HughesNet and Qwest

2008-10-22T15:46:07Z

This past year has been a “bellwether” year for consumer advocacy groups with respect to reform and Internet Service Providers (“ISPs”).

]]> First, as PBM highlighted back in August of this year, the Federal Communications Commission (FCC) issued a monumental decision, ordering Comcast to “end discriminatory network management practices.”

Specifically, the FCC determined that Comcast had in fact “unduly interfered with Internet users’ right to access the lawful Internet content and to use the applications of their choice … [by deploying] equipment throughout its network to monitor the content of its customers’ Internet connections and selectively block specific types of connections.”

The FCC is now requiring that Comcast disclose the details of its discriminatory network management practices to the Commission, submit a compliance plan describing how it intends to stop these discriminatory management practices by the end of the year, and disclose to customers and the Commission the network management practices that will replace current practices.

Second, on September 22, 2008, PBM filed a class action lawsuit in the U.S. District Court, Eastern District of Pennsylvania, on behalf of consumers against satellite broadband company, Hughes Communications, Inc. and HughesNetwork Systems, LLC, alleging breach of contract and frauduluent business practices involving the marketing of the HughesNet® Satellite Broadband Network System. Specifically, it is alleged that the satellite broadband Company's nationwide advertisement of "Highspeed Internet by Satellite: Wherever Whenever" was materially false and misleading. Although the class action is still in its early stages, it is anticipated that such class may eventually involve thousands of HughesNet users.

Last, and most recent, another class action lawsuit was filed on behalf of consumers in the U.S. District Court, Western District of Washington, against Qwest, involving Early Termination Fees (“ETFs”) for Internet Service. The lawsuit alleges that Qwest was involved in abusive practices in the administration, processing, and collection of ETFs. It is anticipated that thousands of Qwest subscribers were unlawfully charged an ETF for cancellation of their Internet Service before the end of an alleged term.

If you or someone you know is a current or former subscriber to an Internet Service Provider (ISP), and have experienced similar Internet broadband related issues with respect to speed, accessibility, and/or connectivity please contact our law-firm for a free consultation.

Bard® Perfex® Hernia Plug --- Increased Risk of Nerve Entanglement?

2008-10-21T14:00:20Z

The Bard® PerFix® Plug, introduced by Davol, Inc. and C.R. Bard, Inc., in 1993, is a medical device used to repair “primary and recurrent inguinal hernias.”

]]> According to C.R. Bard, the PerFix Plug “requires less overall dissection” and a “tension-free” surgical technique which “results in increased patient comfort, faster rehabilitation and fewer recurrences.”

Despite this, there have been numerous concerns raised by both patients and physicians, that the PerFix Plug increases the risk of various health related complications, including but not limited to Post-Herniorrhaphy Pain Syndrome and possible nerve entanglement, resulting in chronic pain and often the need for extensive treatment and surgical replacement of such medical device.

If you are someone you know has received a Perfix Hernia Plug and have suffered injuries as a result, please contact our law firm for a free consultation.

Pfizer Will Agree to Pay $894 Million to Settle Celebrex and Bextra Claims

2008-10-20T14:00:38Z

Pfizer has recently announced that it will "resolve substantially all of the personal injury cases, consumer fraud cases and state attorneys general claims involving its non-steroidal anti-inflammatory (NSAID)" pain medications Bextra and Celebrex, which Pfizer voluntarily withdrew from the U.S. market in 2005.

]]> Pfizer, the world's biggest drugmaker, was being sued over allegations that the drugs increased the risk of heart attacks or strokes after a similar pill, Merck & Co.'s Vioxx, was pulled from the market over the same side effects in 2004.

Despite this, Celebrex is still sold, generating $2.3 billion for Pfizer last year, while Bextra was recalled over a rare skin condition in 2005. Additionally, Pfizer still claims there "is no evidence that Celebrex, when taken at lower doses, poses a risk to the heart."

According to a study though recently presented at the American College of Cardiology, "patients taking the biggest Celebrex dose of 400 milligrams twice a day tripled their chance of a heart attack or stroke, compared with people taking a placebo."

PBM has represented clients in Vioxx and Celebrex claims. If you are someone you know has been injured as a result of a medication, please contact our law firm for a free consultation.

Psoriasis Drug Raptiva Gets “Black Box” Warning - Associated Risk of Infection and PML

2008-10-19T17:55:44Z

Just this week, the psoriasis drug Raptiva received a “black box” warning, the FDA’s strongest, regarding progressive multifocal leukoencephalopathy (PML) and other potentially fatal infections. Raptiva, manufactured by Genentech, is a medication given via weekly injection to treat moderate to severe plaque psoriasis in adults only. Raptiva is a biologic drug that works to suppress the immune system with the goal of fewer psoriasis flare-ups. However, as with any immunosuppressant, the use of Raptiva compromises the immune system to such an extent that it increases the risks of serious infections, some fatal, and other malignancies.

]]> Most of these infections are opportunistic ones, meaning that they lay dormant in the body until precisely that time when the immune system is severely weakened before attacking the body.

While the warning label for Raptiva previously made mention of the risk of infections, the addition of the “black box” warning is a significant admission as to the severity of the risks presented by the drug. Additionally, the “black box” warning also includes new information regarding the risk of PML associated with the drug, never before disclosed on the label. PML is a very serious, rare, and progressive neurological disease. The brain infection steadily worsens, attacking multiple locations in the brain simultaneously, until the patient dies. The most common presentation of PML included visual problems, loss of coordination, and other mental impairment. Currently, there is no effective treatment for PML, only the possibility of slowing its progression, primary by attempting to strengthen the immune system by discontinuing the patient’s use of all immunosuppressants.

This is not the first instance where an immunosuppressant has been liked to serious infections and PML, so the delay by Genentech in providing this “black box” warning on Raptiva is questionable at best. If you or a loved one were taking Raptiva and have since been diagnosed with PML or have since been experiencing the early symptoms of the disease as described above, please contact our office via our website at www.pbmattorneys.com for a free consultation so that we can work with you to protect your rights.