Wells Fargo Asks Federal Court to Send Class-Action Lawsuit Over Unauthorized Customer Accounts to Arbitration

Originally published by Beth Graham.

Last week, San Francisco-based bank Wells Fargo reportedly asked a federal judge in Utah to send a proposed class-action lawsuit that was recently filed against the company to arbitration.  In Mitchell v. Wells Fargo, No. 2:16-cv-00966-CW-DBP (D. Utah), several dozen bank customers accused the company of breach of contract, fraud, and numerous other causes of action after bank employees allegedly opened thousands of unauthorized accounts on behalf of unwitting customers.  In addition, the bank also purportedly charged many of the customers a variety of fees associated with the unapproved credit and deposit accounts.

Earlier this year, Wells Fargo received approximately $185 million in fines related to the fraudulent customer accounts and agreed to issue a refund of customer fees totaling about $2.6 million.  Additionally, the bank told lawmakers it would provide free mediation services to all affected customers.

Wells Fargo admits that about 5,300 bank employees and managers were terminated over the last five years for utilizing improper sales tactics such as opening unauthorized customer accounts.  The bank has also reportedly began an advertising campaign designed to win back customers who left over the deception.

In the bank’s motion to compel arbitration, Wells Fargo argues the dispute should be arbitrated since each customer signed a mandatory arbitration agreement when opening his or her initial account.  Because the lawsuit relates to unauthorized customer accounts, however, it will be interesting to see whether the judge will grant Wells Fargo’s motion.

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Medical Journal Says J&J Hid Problems from FDA in Xarelto Clinical Trial

Originally published by robertslawfirm.

The BMJ (formerly the British Medical Journal) has reported that Janssen Pharmaceuticals, a division of Johnson & Johnson, knew about a faulty medical device used during regulatory trials of Xarelto and withheld that information from the U.S. Food and Drug Administration (FDA). The device in question — INRation — was used to monitor patients using warfarin during the ROCKET AF trial. The INRation device was later shown to generate significantly lower results than traditional lab methods. The FDA used the ROCKET AF study to approve Xarelto, a popular anticoagulant used to treat atrial fibrillation, which is the subject of multidistrict litigation over failure to warn patients about dangerous side effects. Those side effects can include gastrointestinal bleeding, brain hemorrhages and stroke. According to The BMJ, Janssen set up a safety program to recheck data from the original trial following concerns about INRation, but did not share this information with clinical trial safety monitors. The INRation device was recalled in 2014 by the FDA. In addition, a new study published in JAMA Internal Medicine suggests that Xarelto users have a 15% higher risk of death, 65% higher risk of brain bleeds and 48% higher risk of major brain bleeds than Pradaxa users. Researchers reviewed data from almost 120,000 patients age 65 or older with nonvalvular atrial fibrillation that were using either Xarelto or Pradaxa to arrive at their conclusions. In 2013, the FDA recognized the label on Xarelto as misleading because it did not properly warn consumers of the risks associated […]

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Last-Minute Block of Overtime Rule Means Uncertain Future for Many Businesses

Originally published by Androvett Legal Media Blog.

Many employers received a last-minute reprieve from new federal overtime rules that would have gone into effect Thursday, Dec. 1, entitling thousands of previously “exempt” workers to overtime pay. But the Texas federal judge’s temporary injunction creates uncertainty for businesses preparing for the employment compliance playing field going forward.

In a client alert, employment attorney Audrey Mross of Dallas’ Munck Wilson Mandala notes that many employers had already revised workers’ pay to comply with the Department of Labor’s overtime rule. Businesses that have not yet implemented changes now have breathing room to wait for a final ruling from the courts. However, those that have already altered employee pay should think carefully before reversing already announced pay changes.

“If a pay increase was already announced or implemented, and you are considering putting it on hold, there are further considerations that may not apply such as employee relations, an angry or confused employee seeking legal counsel, state laws requiring written notice prior to reducing pay, and collective bargaining on pay issues,” Ms. Mross says.

For more information, contact Robert Tharp at 214-559-4630 or robert@androvett.com.

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How Should I Collect Evidence for an Injury Claim?

Originally published by highrank.

All personal injury cases come down to evidence – evidence of your injuries, property damages, and of the responsible party’s negligence. Without evidence, there is no way to prove your claim or take home compensation for your injuries. After any type of accident resulting in injury, take it upon yourself to collect as much evidence as possible. You may not end up filing a claim, but if you do, you’ll be glad you laid the groundwork.

Do as Much as Possible at the Scene

The best-case scenario is to gather evidence at the scene of the accident. If you suffered great property damage but not severe injuries, you can likely collect information yourself. Take photos of the accident, including damage to vehicles involved and personal injuries. Photos should include any abrasions or contusions on your body, damaged clothing, the scene of the accident, and what caused your injury. If you don’t have a timestamp on your camera, record the date of each photo on your own.

Obtain relevant information from any other party involved. In a car accident, this may be the other driver, passengers, pedestrians, and witnesses. Gather their names and phone numbers. Get a photo of the other driver’s license and vehicle plates. In a premises liability case, get the information of staff members involved. In a workplace accident, record which coworkers were there when you sustained an injury. The more information you can get from those around you at the time of the accident, the better your chances are of convincing the judge of what happened.

In many cases, it’s impossible to gather evidence at the scene of the accident. You may have extensive injuries and have to leave in an ambulance. You may be unconscious. If you cannot gather evidence at the scene of your accident, do so as soon as possible. Return to the scene and photograph the street or location of your accident. Contact people who were there when the accident happened and record their statements. Do as much as you can after the fact to strengthen your case.

Keep your medical records relating to your injuries, including paramedic reports, emergency room charts, and the results of any tests. Keep a copy of the treatment plan from your doctor and proof that you have stuck to it. Also get a copy of the official police report. Official documents serve as important hard evidence of your damages and injuries.

Keep Physical Evidence Organized

As you gather evidence for your case, it can start to pile up and become a disorganized mess. Prevent this from happening by organizing your evidence into groups. Keep a file or binder specifically for your case, with separate folders for injury evidence, witness statements, photographs, police and incident reports, clothing from the accident, public records, and your own account of the accident. Keeping your evidence carefully organized can help your attorney and other professionals involved in your case find necessary documents without incident.

Prevent Evidence Spoliation

In some cases, an at-fault party will destroy evidence to protect him or herself from liability. To prevent this evidence spoliation, seek the help of an attorney immediately following an accident. An attorney can send a letter to the defendant preventing this from happening. A spoliation letter notifies the at-fault party of the pending claim and makes it harder for them to cover up purposefully destroyed evidence. If the defendant does destroy evidence, your attorney can file a spoliation motion if your case goes to trial.

An attorney can help you collect information to support your personal injury claim, but these are things you can do directly following an accident to improve your chances of securing a settlement.

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Disciplinary notice email scam targets Texas lawyers

Originally published by Lowell Brown.

An email scam that uses false notifications of disciplinary actions is targeting members of the State Bar of Texas.

Several Texas attorneys have reported receiving an email claiming a grievance was filed against them and that they have 10 days to respond. The email invites them to “click here” for more information.

The email is not from the State Bar of Texas or the Office of Chief Disciplinary Counsel. (The State Bar of Texas does not send disciplinary notices by email.)

If you receive this type of email, delete it immediately.

In June, we reported that attorneys in other states had received similar email notices purporting to be from their state bars. In those cases, the lawyer was instructed to click on a link to view the complaint, which loaded a malicious software called ransomware that blocks computer access until a sum of money is paid.

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EPA Publishes Proposed Renewables Enhancement and Growth Support Rule

Originally published by Elizabeth S. Wheeler and Jaclyn E. Hickman.

On November 11, 2016, the EPA published a proposed rule designed to update its Renewable Fuel Standards Program and support the growth of renewable fuel use. With the stated goal of removing barriers to production and distribution of renewable fuels, the proposed rule has three main components:

(1) Updated Regulatory Structure to Address Biofuel Processing at Multiple Facilities – In some circumstances, biofuel producers can decrease the costs of production by processing feedstock at one facility and converting that material—called a biointermediary—into a biofuel at another facility. The previous guidelines did not adequately address the requirements for biofuels processed at more than one facility, so the new regulations clarify the requirements for registration, recordkeeping, and reporting for biofuels produced in multiple facilities. These new regulations will be aligned with those already in place for single-facility production.

(2) Updated Regulations Regarding High Ethanol Fuel Blends – The EPA is revising its regulations to provide expanded availability of high ethanol fuel blends for flex fuel vehicles. Flex fuel vehicles can operate on a gasoline-ethanol mixture with an ethanol percentage as high as 83 percent. In an effort to make these high-ethanol fuels more readily available, the updated regulation clarifies the standards that E16-83 fuel blends—now known as “ethanol flex fuel” —must meet. The EPA’s intention is that imposition of these clarified standards will allow producers to make ethanol-gasoline blends from sources other than certified gasoline blendstock, thereby increasing the supply of these fuels.

(3) Approval of New Feedstock for Cellulosic Biofuels – The EPA aims to increase the use of cellulosic biofuels, the fuels with the lowest carbon emissions. To that end, the EPA has approved the use of short-rotation poplar and willow trees for feedstock in biofuels, the use of cellulosic diesel made from the co-production of cellulosic feedstock and petroleum, and the use of renewable diesel and biodiesel produced from separated food waste.

The proposed rule also covers various miscellaneous items such as registration requirements for generation of renewable electricity that is used as transportation fuel and requirements for facilities that could potentially use carbon capture and storage with respect to emissions from renewable fuels in the future. The public comment period on the proposed rule ends January 17, 2017, though it is currently unclear how these regulations will be impacted by changes to current EPA leadership as result of the recent election.

For more specific information please contact Elizabeth Wheeler or Jackie Hickman.

Disclaimer: This Blog/Web Site is made available by the law firm of Liskow & Lewis, APLC (“Liskow & Lewis”) and the individual Liskow & Lewis lawyers posting to this site for educational purposes and to give you general information and a general understanding of the law only, not to provide specific legal advice as to an identified problem or issue.  By using this blog site you understand and acknowledge that there is no attorney client relationship formed between you and Liskow & Lewis and/or the individual Liskow & Lewis lawyers posting to this site by virtue of your using this site.  The Blog/Web Site should not be used as a substitute for legal advice from a licensed professional attorney in your state regarding a particular matter.

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What Is Proximate Cause?

Originally published by highrank.

Throughout your personal injury case, you may come across the term “proximate cause.” Proximate cause is, in essence, the primary cause of an injury. In a personal injury lawsuit, the plaintiff bears the burden of proof to show that the defendant’s actions or inactions were the proximate cause of injury. Understanding proximate cause and how it may come into play during your case can help you know how to best pursue your claim.

Defining Proximate Cause

A proximate, or legal, cause is an act from which an injury is the direct or natural consequence. Without proximate cause, the injury would not have occurred. The proximate cause of an injury doesn’t have to be the first event that sets a sequence into motion that eventually causes the injury – nor is the proximate cause always the thing that occurred closest in time or space to the injury. To be the proximate cause, an element only has to produce a foreseeable negative consequence.

To determine proximate cause, the court uses the “but for” rule, which asks whether the plaintiff would have been injured but for the defendant’s negligence. If the answer is no, the injury would not have occurred, the court can assign proximate cause. Proximate cause alone, however, is not enough to determine liability since a number of other factors could have also contributed to the accident. In most jurisdictions, the courts look at how substantial a defendant’s conduct was in producing the injury, and use this knowledge to determine liability.

Occasionally, there is an intervening cause that comes in between the defendant’s initial act of negligence and the plaintiff’s injuries. For example, a defendant may have inadequately trained his or her employees to work with heavy machinery. Due to inadequate training, an employee accidentally ran over and injured another employee. While the defendant did not directly cause the plaintiff’s injuries, the defendant’s inadequate training regime was still the proximate cause since it was the main, foreseeable reason for the accident.

Proximate Cause and Personal Injury Cases

The question of proximate cause is an important one in all personal injury lawsuits, since not every cause of an injury is legally liable. For example, an icy roadway may be the cause of a harmful car accident, but the accident victim cannot take the ice to court. Proximate cause is a way for the court to determine if it can hold the defendant liable for damages. Proximate cause deals largely with foreseeability – did the defendant know or reasonably should have known that his/her actions would result in injury? If so, then proximate cause exists.

Identifying whether a type of harm should have been foreseeable is possible by looking at whether the harm that occurred was likely under the circumstances. For example, a reasonable person can foresee that texting and driving can cause a harmful car accident. In the famous Palsgraf v. Long Island Railroad case of 1928, on the other hand, the courts held that there was no proximate cause.

In this case, two railroad workers helped pull a man onto a moving train. By doing so, the workers made the man drop a package of fireworks, which exploded and scared the crowd of people on the train platform. A woman injured because of the scare tried to sue the workers. Since the workers could not have reasonably foreseen that helping the man would cause Mrs. Palsgraf harm, however, the court dismissed her case for lack of proximate cause.

Proximate cause is one of the most important elements in proving a personal injury case. Without proof of proximate cause, a judge and jury cannot hold the defendant liable for injuries. Protect your rights by always trusting an experienced attorney to help you with your personal injury case in Houston.

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