Yes, it’s time for a flashback Friday! Remember all those great Volkswagen ads of years gone by? Simple. Witty. Dare I say…trustworthy. Best of all, they poked humor at themselves. They totally got how folks were like “wtf??” when they saw a car that resembled something you’d step on in a heartbeat. And they ran with it. Yesiree…totally ran—straight to the bank. And flower children everywhere made the VW Bug the automotive emblem of their age. Complete love-fest.
But that was then. Fast-forward to September 18, 2015 when news broke about something called a “defeat device“. It sounded like something you’d grab in Minecraft to kill the Ender Dragon—but alas, it turned out to be much more sinister. As we all now know, it’s what VW installed in its diesel autos to suppress emissions so that the cars would pass emissions testing on a dynamometer—aka a stationary “rolling road” used to test cars (and no, we didn’t know what that was either until a week ago). Those emissions, however, when on an actual road, were spewing upwards of 40x more toxic fumes than permitted. Uh-oh! Where’s the love now folks? To die-hard VW fans, it’s a jilt they’ll never get over.
And now there’s a stack of Volkswagen lawsuits piling up.
But it’s worth looking back…at some of those VW ads of yore, and imagining those same ads circa 2015. Yes, the ads on the right are totally fake–just to be clear. But it’s easy to see how they could well be art imitating life right now… so here goes…
Recently a reader (thanks Roger!) submitted a question regarding Obamacare and the possibility of a class action lawsuit. We threw the question out to our Legal News Group on LinkedIn (where a number of lawyers and legal industry types hang out) and we’ve shared their answers below…
Roger’s Question: Do you think there is a potential class action resulting from the President’s decision to allow insurance companies to continue to offer health insurance coverage that does not meet the requirements of the Affordable Care Act? Individuals whose plans were cancelled as a result of the ACA can now continue to hold such plans for another two years if their insurance company makes the plan available. However, the plans do not meet the coverage requirements of the ACA. If an individual is treated for some condition that is not covered by their non-ACA-compliant plan but would have been covered by an ACA-compliant plan, the individual should have a cause of action against their insurance company for the out-of-pocket cost for that treatment. What defense does the insurance company have? That the President allowed the non-compliant plan? The President has no authority to do so. While the cost borne by one individual under a non-compliant plan might not justify a lawsuit against the insurance company, many individuals will have the same loss. Does that not suggest a class action?
Stephen: That’s interesting. However, didn’t the Dept. of Health and Human Services actually write the regulations that determined what is and what is not a compliant plan? And since that Dept. is under the Executive Branch and the President is the Chief Executive, can in not be argued reasonably that he does in fact have the authority to decide when to implement the regulations?
Gordon: Although I like parts of the ACA, there is an internal contraction of social production of medical care and the private reaping of profits. It would have made more sense to extend medicare to all ages. There (Medicare) is a social production of medical care and any profit is returned to the public. This has been the basis of the universal health care systems in other industrialized nations. Whether there is a class action suit potential is actually an indication of the internal contradiction.
Helen: Yea, possibly for political reasons. Why would anyone sue for that? What to say that the non-compliant insurance has an unfair advantage possibly but wouldn’t that claim bolster the intent of the reform rather than hurt?
Kristin: If you’re on a non-compliant plan, could you switch out to a compliant plan with more coverage? I thought the main idea behind two-year extension was to avoid a time crunch leaving people uninsured, not to perpetuate non-compliant plans (Helen, I think this is reform intent, right?). Stephen, I agree with the idea that the President can implement the regs when he wants. Gordon, I’ve seen the US healthcare system used as an example of what not to do more than once (pre-ACA). Private healthcare seems so entrenched, do you think an alternate approach would succeed?
Kari: I agree with Gordon T. Davis, my ten cents worth: There should have been the single payer/Medicare option, as initially submitted. Simply there is no reason to kill the healthcare industry “cash cow” without a good fight (Obamacare has been repealed some 50 times, maybe only Congress work creating activity) i.e. patients are not going to travel to China for low cost treatment like many jobs have gone. Just an observation this year, I visited at my doctor in the same office, no changes from previous visits, hospitals are still where they always have been, no challenges even if there was a preexisting condition, just pay the bill …. Obamacare has not killed my healthcare rather it has provided peace in mind without concern do I have it or not. Rush Limbaugh promised to move out of country, if Obamacare will come a law ….. darn still here, can not trust on anything what he says.
Helen: It was the original intent. The problem was the latent news release that the grandfather clause had been tampered with during the passage of the legislation in Congress (note that the clause intended to allow folks to keep their preexisting plan, plans that preexisted prior to the Reform with only minor adjustments, if necessary). That delay or revelation later than sooner, plus the feet dragging to implement the Act together produced the mess. In the aftermath, it turns out most people who learned their current plan (prior to Reform) would be non-compliant were switched automatically by their insurance companies to plans that are compliant albeit possibly more expensive (but better coverage). The delays as implemented by Executive decision isn’t anything new and people have to realize that in any major reform reminiscent of others like Social Security and Medicare, the road of implementation was bumpy! It is true now that few would want those programs to vanish, let alone changed!
Kari: Expect changes/improvements Ref.: Why Employers Will Stop Offering Health Insurance
Got an opinion? Let us know what you think. Comment below, or comment on the original thread for this question at our Legal News Group on LinkedIn.
Bet you can’t guess what the top legal news story on LawyersandSettlements.com was for 2013 (and no, none of them featured former NYC mayoral hopeful Anthony Weiner…).
I’ll take that bet even further—I bet most attorneys, who you’d think would be in the know on these things, couldn’t even guess.
That’s because 2013 turned out to be a pretty interesting year in terms of the top legal news stories our journalists covered. While employment lawsuits—typically involving issues such as unpaid overtime and misclassification, on-the-job discrimination, workers’ comp, and wrongful termination—are always reader faves, in 2013 something strange happened: employment issues did not show up in our top ten news stories. At all.
Go figure, eh?
To be fair, when it came to content posted other than legal news articles (i.e., emerging issues, settlements, lawsuits filed), employment settlements drew the most readers. But it was health-related issues that drove readers’ interest when it came to articles and interviews. Here’s how the year’s top ten legal news stories played out (as measured by number of clicks the articles published in 2013 received):
1. Denied Disability: Social Security Recognizes Fibromyalgia
2. Health Canada Documents Link Yasmin and Yaz to Deaths
3. Are Fen-Phen Pills Back? You Would be Half-Right…
4. New York State Cracks Down on Illegal Internet Payday Loans
5. Mirena User Suffers Miscarriage, Now Filing Mirena Lawsuit
6. Mirena Side Effects Lead to Early Hysterectomy for Young Plaintiff
7. Monster Caffeine Levels: When Too Much Energy Isn’t Good for You
8. Junior Hockey League Player Filing Ulcerative Colitis Accutane Lawsuit
9. Yasmin Birth Control Suspected in Deaths of Canadian Teens
10. Mesothelioma Victim Awarded $8 Million
And if you’re wondering what the number one legal news story was for 2012…here’s that one (and, you guessed it, it was about a wage and hour lawsuit, the ‘Lunch Break Lawsuit‘ (Brinker Restaurant Corp. v. Superior Court))
Love it when a reader comments on one of our articles and her comment tries to defend something absurd. Like energy drinks with a sh*tload of caffeine in them. That young kids are drinking. And potentially even dying from.
This reader, who left her message with the screen name “MaureenatABA” (note, a quick gander over at the ABA site shows a Maureen Beach as their Director, Communications. Coincidence?) —and for those of you thinking that’s the American Bar Association, no, that would be the American Beverage Association—commented on a recent article we posted, “Monster Energy Drinks Attorney Weighs In“, in which attorney Kevin Goldberg with Goldberg, Finnegan & Mester provided insight on what’s wrong with how energy drinks are classified (or not) by the FDA. It’s a dubious system at best.
Needless to say, as one of the attorneys representing the family of Anais Fournier, the 14-year-old girl who drank two bottles of Monster Energy drinks and went into cardiac arrest and died six days later—Goldberg has some unique insight into energy drinks (and I imagine a hell of a lot of discovery). The Monster drink lawsuit, btw, is a wrongful death one that alleges not only dangerous levels of caffeine in the drink, but inappropriate marketing of the energy drink to children.
I should share MaureenatABA’s comment:
“Most energy drinks contain significantly less caffeine than a similarly-sized cup of coffeehouse coffee. In fact, many contain about half (http://bit.ly/11FcrFN). In addition, a Harvard study revealed that there is not enough caffeine in a standard energy drink to trigger an arrhythmia, even in a person with a pre-existing heart condition (http://1.usa.gov/16gzKXN). Energy drinks have been enjoyed safely by millions of people around the world for more than 25 years and in the U.S. for more than 15.- Maureen at ABA“
Well, Maureen, posting a link to the ABA’s chart depicting caffeine levels in a soft drink, an energy drink, and a cup of coffee is a bit lame. It’s a pretty picture, of course, though the scale of the 16-oz. soft drink icon is a bit off and the blatant green circle on the coffee clearly (and shamelessly, c’mon) targets Starbuck’s—but that’s all it is: a picture. It doesn’t cite independent sources that have tested for caffeine levels, and oddly, it shows a different story than what Consumer Reports reported back in December when it—independently—provided a different chart that listed caffeine levels in specific brand name drinks. If you missed that chart, it’s shown at right.
Oh MaureenatABA—I forgot—you’re probably then saying that there’s that Harvard study you referenced! You are so right. And here’s some interesting things about that:
1. It’s from 1989.
2. The mean age of the study participants was 61 years.
3. The drinks the study participants received had 200 mg caffeine in them.
Forgive me, but what Goldberg is dealing with is…
1. Something that happened recently. Note that you mention that these energy drinks have been in the U.S. for the last 15 years. According to my math, 2013 minus 15 years brings us to 1998—which is almost a DECADE after the Harvard study was done. The authors of the study surely did not have a supply of today’s energy drinks to test.
2. A younger population. Rather than a population reaching retirement, the lawsuit focuses on a 14-year old child (and, as a class, all children).
3. Caffeine levels that go beyond 200 mg “modest dose” administered in the Harvard study.
For those of you who want a less skewed perspective on the Monster Energy Drink lawsuit, I’d suggest reading Jane Mundy’s interview with attorney Kevin Goldberg. And stay tuned.
Was this any surprise? The one-time Hearst intern, Xuedan Wang, aka Diana Wang—who sued Hearst (Xuedan Wang v. The Hearst Corporation, U.S. District Court for the Southern District of New York, No. 12cv793) claiming that she and other interns at the various Hearst magazines were unfairly misclassified—has not been granted the class action lawsuit status she was after.
Wang’s initial lawsuit claimed that her unpaid internship at Harper’s Bazaar violated the federal Fair Labor Standards Act (FLSA) and New York state labor laws. (For the record, the U.S. Labor Department states that unpaid internships must be educational and “for the benefit of the intern.”)
Now, forget about the fact that many of us have done internships and we completely “got” what we willingly signed up for: on-the-job training for zero (or very low) pay and a nice addition to a resume. What Wang’s complaint stated was that, “Unpaid interns are becoming the modern-day equivalent of entry-level employees, except that employers are not paying them for the many hours they work.” Earth to Wang et al, internships at top magazines in NYC—as well as at many other places—have always been about entry-level tasks being performed by unpaid wannabes. It’s a tit-for-tat arrangement—the company gets some help, the intern scores experience and a credential. No one promised glamour and prestige—or any pay.
So somewhere along the path from Baby Boomer, to Gen X, to Gen Y/Millennials, it would appear the definition of “intern” has changed. Here are some (non-legal) definitions from Merriam-Webster and TheFreeDictionary.com, respectively, as the word relates to labor:
Seems an intern gets “practical experience”. No mention of a paycheck. And, might I add, if a paycheck were what Wang et al were after, here’s a tip: apply for a job. (fyi, here’s Merriam’s definition of “job”: “a piece of work; especially : a small miscellaneous piece of work undertaken on order at a stated rate” —note the words “stated rate”).
But, of course, why pay your dues in a highly competitive industry when you can try to file a class action lawsuit because, unlike the millions of interns who preceded you, YOU are special? Btw, if that sounds jaded or sarcastic—note that according to a Facebook page dedicated to Wang’s intern class action lawsuit attempt, she “worked seven unpaid internships before she got fed up.” SEVEN folks. At that rate, it’s kind of hard to point the finger at anyone else but Wang—and it starts to look like maybe she needed some career coaching.
If you don’t think living a fashion intern’s “Groundhog Day” x7 reveals enough about Wang’s (insert “misguided”?) approach to breaking into the glam world of haute couture and ready-to-wear, check out these Wang quotes from a NY Magazine article, “The Norma Rae of Fashion Interns”, that ran when the class action was initially filed (apologies to the real Norma Rae, Crystal Lee Sutton)—the quotes hint at a sad naivete about not only working in fashion, but also about work in general:
“I’d been dreaming of standing in their offices for fifteen years,” she says. “I was so ready to give everything I had. I couldn’t imagine that the dream of mine was becoming real.”
“This was going to be my only ticket to the industry,” she says. “I didn’t have unlimited resources. I was going to make the time worthwhile. I was going to be remembered by people.”
“I was so uncomfortable and stressed out,” she says. “It was hard to get people to understand how an intern could be stressed out, but the editors constantly stressed that this was a real job and if this went wrong or if that happened, it would be my fault.
Kind of makes you think of that sad sack who’s putting all his hopes and dreams on that one Powerball lottery ticket…sure you gotta be in it to win it, but you also have to have a realistic view of your chances.
Regardless of all that, this is indeed, about a class action lawsuit and as such, it needed to go through the rigorous review for certification. And that means that from a legal perspective, in order for there to be a “class” established for the lawsuit, certain requirements need to be met: numerosity, commonality, typicality and adequacy of representation.
According to Reuters, the judge who presided over the employment misclassification filing, U.S. District Judge Harold Baer, found that the “former interns failed to meet the bar set out in the Supreme Court’s landmark 2011 case Dukes v. Wal-Mart to constitute a class action. Specifically, Baer found that the interns did not meet the standards of commonality and predominance needed to be considered a class.”
How so?
Baer explained in his decision, “Here, while a close question, the commonality requirement is not satisfied because plaintiffs cannot show anything more than a uniform policy of unpaid internship.” That included the fact that the interns in the proposed class worked for different magazines and performed different tasks. Reuters reports that Baer also denied the plaintiffs’ motion for summary judgment on whether they met the definition of an employee.
So what now?
Well, Wang et al can now try to sue Hearst individually—not as a class. Though it’s unlikely that many will choose to do so as the interns were seeking minimum wage—and the cost to litigate such a case for a net return of minimum wage minus attorney fees is probably just not worth going to the mat for…