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Archive for October, 2009

A default judgment award of 1.26 Billion was handed down on Sept. 30 by a Wisconsin state court in a case alleging that PepsiCo stole the idea to bottle and sell purified water from two Wisconsin men. PepsiCo filed motions to vacate the order and dismiss the claims on Oct. 13, saying it wasn’t even aware of the lawsuit until Oct. 6.

Administrator mistake costs PepsiCo $1.26 Billion in default judgment

Charles Joyce and James Voigt sued PepsiCo in April plus two of its distributors, alleging they had misappropriated trade secrets from confidential discussions the plaintiffs had with the distributors in 1981 about selling purified water. The information was illicitly passed to PepsiCo, which used it to develop and sell Aquafina bottled water, the plaintiffs allege in the case filed in the Circuit Court of Jefferson County before Judge Jacqueline Erwin.

In court documents, PepsiCo argues it was improperly served with the Wisconsin lawsuit in North Carolina, but also asks the court to excuse the corporate bureaucracy that buried a legal document for weeks. While plaintiffs say they served the lawsuit in June on PepsiCo’s registered agent in North Carolina, where the company is incorporated, PepsiCo says its law department at the company’s Purchase, N.Y.-based headquarters was not notified until September.

“The bottom line is there was a defect in the process for us, but also for” the plaintiffs, said PepsiCo spokesman Joe Jacuzzi, who called the case “highly dubious.”

In seeking to dismiss the case, PepsiCo argues that the statute of limitations should preclude the lawsuit, brought 15 years after the company started selling Aquafina and more than two decades after the alleged confidential talks. Moreover, “the $1.26 billion judgment that has been entered is unprecedented in size and justice requires that PepsiCo have a chance to defend itself,” the company said.

The lead plaintiffs lawyer, David Van Dyke of Chicago-based Cassiday Schade, said Wisconsin courts have been “pretty clear that they don’t like” vacating default judgments. “There is a possibly that a judge may say we’re going to litigate the damages aspect of it,” Van Dyke said. Read full story

Maritime lawyer, Steve Gordon

Maritime injuries and accidents can occur in a myriad of situations. Depending upon the location of injury and the nature of the situation, e.g., whether it was a commercial accident or a non-commercial situation, governs whether you need a maritime lawyer or just a regular personal injury lawyer.  Clearly, injuries on a jet ski, or a party pontoon boat can be very injurious, but they do not require a maritime lawyer. A maritime injury lawyer is a specialized lawyer versed in the legal principals of General Maritime Law and the Jones Act.

General Maritime Law is a body of law developed by the federal courts through jurisprudence. The federal courts have an Admiralty “side” bestowed upon them from the United States Constitution. This Admiralty side is a court of equity as well as court of law.
The Jones Act was enacted by Congress in and around 1916. It actually is a culmination of a series of three laws passes between 1916 and 1920. The Jones act was named after its principle proponent, Senator Wesley Jones (1863-1932) from the state of Washington, urged passage of a law that would support the growing merchant marine industry of the United States. In light of this, The Jones Act became law at 46 U.S.C. §688 et seq. (re-codified in 2006 at 46 U.S.C. §30104 et seq.). The Jones Act covers maritime employees that sustain an injury while in the course and scope of employment.

Is the Jones Act the Same as Workers’ Compensation?

No. It is quite different. Workers’ Compensation is available to an employee who “suffers an injury while in the course and scope of employment”. Notice in the previous sentence there is absolutely no discussion of “fault”. That is because workers’ compensation is not based upon fault. The employee could be one hundred (100%) percent at fault for causing his injuries and still collect all of his compensation benefits. In exchange for receiving those workers’ compensation benefits, the employee gives up the common law right to sue his employer and accepts the workers compensation as the sole remedy when he starts his employment relationship.

On the other hand, to qualify under the Jones Act, one has to meet the following elements:

1)    You have to sustain an in injury
2)    While working permanently assigned;
3)    To a vessel;
4)    That is on a navigable waterway; and
5)    The injury has to be caused by the:
a.    Negligence of a fellow crewmember; and/or
b.    An “unseaworthy” condition

As you can see, there is a fault element to the Jones Act claim. When the judge or jury assesses the fault, they look at all the parties’ fault including the plaintiff. For example, if a jury finds the injured employee 100% fault but yet awards one hundred dollars, the injured employee would receive zero dollars. The Jones Act claim is a “pure comparative” type claim. That is, in most states, if the injured party makes a claim and the jury finds the injured part 50.01% negligent in causing his own injuries, he receives nothing because his percentage share of his negligence is greater than fifty percent. This is a called a modified contributory negligence bar. However, there is no such “bar” in a Jones Act claim. For example, using the example of a jury award of $100.00: (a) if the plaintiff is found 30% negligent, then he would receive $70.00; (b) if the plaintiff was held to be 70% negligent, then he would receive $30.00.

What are the Economic Differences between the Jones Act and Workers’ Compensation?

The differences can be huge. Comp is governed by a statutory scheme in the state that you work in. It is generally governed by a “Table of Injuries”, e.g., a lost foot is worth a certain amount of weeks disability; an injured back so many weeks and so on and so on.  Under comp, you give up your common law right to sue your employer when you take the job.

On the other hand, a Jones Act claim can be asserted for medical bills, lost wages, loss of earning capacity, physical suffering, mental anguish, physical disfigurement, physical impairment and other damages. It is not unusual to have a spine injury that is worth six or seven figures depending upon the earnings of the injured seaman at the time of his injury.

Is Maintenance & Cure the Same as a Jones Act Claim?

“Maintenance” is a daily payment due and payable to an injured seaman while he has not reached “maximum medical improvement”. It is similar to workers compensation in that it is regardless of fault. In other words, you can be hurt as a seaman and you may have totally caused your injuries but you are still entitled to “maintenance”. The amount of “maintenance” is governed by how much it costs to “house” and feed the injured seaman on board the vessel before the injury occurred. It has been as low as $8.00 a day and as high as $60.00 a day. Practically, $30.00 a day or $600.00 a month is usually paid.

“Cure” means medical care. When a seaman sustains an injury, he is entitled to reasonable and necessary medical care. Like “maintenance”, it too is owed by the maritime employer regardless of fault.

Both “maintenance” and “cure” are, in the law, considered “quasi-contractual” debts in nature. That is, unlike the Jones Act which sounds in tort and is only paid when fault has been established, maintenance and cure is paid because it arises out of the employment relationship between the seaman and the maritime employer.

Finally, in June, 2009, the United States Supreme Court decided the Atlantic Sounding Co., Inc. et al. v. Edgar L. Townsend case which held that punitive damages are, in fact, recoverable when the Jones Act employer unreasonably withholds payment of maintenance and/or medical cure.

What Type of Seaman is Covered & What is a Vessel?

Captains, engineers, able-bodied seaman [A/B], wipers, deckhands, roustabouts and many other types of seaman are covered. The beauty about the Jones Act is that it is the same law whether you are hurt fishing off Alaska; working on a tow boat on the Mississippi or you work in the “oil patch” of the Gulf of Mexico.

With the constant innovations of extracting oil from the sea-bed floor, what is a vessel is still being litigated. The general belief is that rule enunciated in Stuart v. Dutra that if it is capable of transporting property of persons upon water, then it is considered a vessel.

Why Do You Need a Maritime Lawyer?

Making a Jones Act claim is quite different from a workers’ compensation claim. The Jones Act employer is usually insured by maritime insurers that have been insuring in the maritime industry for at least a hundred years. When an injury occurs, they have investigators that immediately go out to take statements to build a case against you. Their goal is to show that the injury is the fault of the injured employee and the injured employee is not that hurt.

An injured seaman needs an experienced  maritime lawyer to get him to a doctor so that all of his injuries can be documented properly; to get his maintenance and cure started and to build his negligence and/or “unseaworthiness” claim. This would be impossible for a seaman to effectively and successfully try to “go it alone”. Most Jones Act lawyers work on a contingency fee. That is, the seaman pays nothing to the lawyer unless he recovers money. Fee percentages range from 33 1/3% to 45%.

Finally, making a claim takes time and you will need money to pay your bills while the maritime litigation is pending. Maintenance is usually insufficient to pay the bills. Some Jones Act attorneys, depending upon the state they practice in, are ethically permitted to advance funds to their client so they do not have to go back early to work and when they are not medically ready to go back to work.

According to a legal action filed yesterday in New York, Bernie Madoff’s  prison associates are quite cast of characters. Right now Madoff shares a jail cell with a 21-year-old drug dealer and hangs out with a former crime boss and an Israeli spy.

Complaint lodged against Bernie Madoff in New York Supreme Court by California Law Firm

Attorneys who interviewed Madoff in jail in July used information obtained from him to file a series of claims against major banks and accountancy firms, in an action that also throws light on Madoff’s life behind bars.

The 272-page complaint was lodged with the New York Supreme Court by the Californian law firm Cotchett, Pitre & McCarthy.

According to the document submitted to the court: “Madoff now shares a cell with a 21-year-old inmate convicted of drug crimes. Madoff sleeps in the lower bunk and he eats pizza cooked by an inmate convicted of child molestation.”

The document describes how Madoff’s recreation time “consists of walking around the prison track at night”.

“He now spends time with former Colombo crime family boss Carmine Persico and Jonathan Pollard, who was convicted of spying for Israel,” the complaint said. “Most of his fellow inmates are in prison for drug crimes or sex crimes and Madoff will spend the rest of his life in prison with them.”

The legal action was brought by Cotchett, Pitre & McCarthy on behalf of Jay Wexler, a New York resident who invested in Rye Select Broad Market Prime Fund, a fund managed by Tremont Group, the hedge fund business of Massachusetts Mutual Life Insurance.

Atlanta truck accident lawyer, Steve Gordon of the Law Firm of Gordon & Elias, has launched an educational video explaining how driver fatigue kills.

“Driver fatigue is a pet issue of mine because I believe a truck driver is caught between a rock and a hard place”, says Steve Gordon,  a well respected authority and renowned nationwide truck accident lawyer.

“He has got to make his route and make his deliveries on time. He’s got to get from point A to point B.”

Steve goes on to say in the video that the company expects the truck driver to do it in a certain amount of time. There are federal regulations that govern how much time a trucker can drive. A long haul trucker has a cab in the back and they’re suppose to after so many hours get off duty and sleep.

More times than you can imagine, the trucker has driven more than he should and that it’s fatigue that has caused his responses to be slow. When that happens there are people who get injured and worse yet killed.

A trucker is suppose to be an expert. They have a commerical driver’s license and this is the field they have chosen to be their career. They have a duty being an expert to do their job right just like a lawyer.

“We can’t just take a case and halfway work on it or do it a little. And a trucker shouldn’t either”, Gordon goes on to say. ” So when a driver has driver fatique and if that causes an accident, then the depositions of that trucker are not pretty.

Atlanta Truck accident lawyers explain how driver fatigue kills. Watch video

There are driver logs that we can look at and some drivers even go as far as to falsify those logs. When that happens, not only is that a crime, but it upsets a jury very much and high awards are seen in driver falsification log issue cases.

There are two things:
1. The trucking company making unreasonable demands on the truck driver
2. The truck driver gives in to the demand of the trucking company instead of following the law by getting proper rest.

Therefore accidents occur, many times resulting in critcal injuries and often times death.

When this happens. both the truck company and the truck driver are at fault.

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