Business Dispute Between Sunbeam and DirecTV Almost Results in No Superbowl for Boston DirecTV Subscribers

February 21st, 2012

A business dispute between Sunbeam and DirecTV left approximately 200,000 Boston viewers without access to CW and NBC programming. In the Boston TV market, this dispute negatively impacted about 200,000 DirectTV customers.

Just days before the big game, the satellite provider, DirectTV, reached a retransmission fee agreement with Sunbeam Television. If they had not reached an agreement, Patriot fans in Boston and other fans in Miami wouldn’t have been able to watch the game.

The general manager of WHDH-TV, Chris Wayland said that the negotiations had been difficult; however, he said that he felt pleased with the general outcome.

DirecTV officials released a statement that said that they were glad that viewers would now be able to watch the Super Bowl and all of the coverage being broadcast from Indianapolis. They went on to say that they were pleased to have brought the Sunbeam blackout to an end, and that they were sorry that the customers had been negatively impacted by this business dispute.

Although hundreds of thousands of fans may not be affected by your business dispute, we realize that it does affect your business — and most importantly your life. At Abronson Law, our attorneys are well-versed and typically handle business litigation matters on an hourly basis. However, we are willing to work with clients to come to an agreement under which we can provide the representation that they require in a both manageable and cost-effective manner.  To schedule a free initial consultation regarding your business matter, fill out our on-line form or call us directly at (408) 687-9155.

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Park City Eatery Balks at Credit Card Fines in Rare Court Fight

February 21st, 2012

Cissy and Stephen McComb managed their Italian eatery in Park City, Utah, for over 25 years and had no trouble with security rules of MasterCard and Visa–until they were accused of mishandling information and opening the door to $1.26 million in fraud.

The McCombs, who started Cisero’s in 1985, are currently in a legal fight with the bank that processed their credit charges, and, indirectly, with what they claim are card networks that switch rules without notification, enforce unreasonable one-sided contracts and let money be taken from merchants’ accounts without any evidence of fault.

The McCombs claim that no MasterCard or Visa regulations were violated, that that allegations of a breach in security are false, and that there was no indication of any explicit fraudulent acts. Apparently there was no provable fraud, according to court records, in a case that is thought to be the first legal challenge to penalties assigned by the credit card industry’s security procedures.

It’s rare to see a financial institution or processor suing a merchant. This case is being highlighted because it has the potential to send the message that merchants can stick up for themselves in these relationships and demonstrate that they’re correct and the bigger opponent (the bank) has it wrong.

Park City, once a silver mining town, now it has many ski resorts and hosts the Sundance Film Festival, the largest film festival in the US. Cisero’s restaurant brings in approximately $2 million worth of business annually.

“Merchants essentially live in fear that they will be crushed by the card companies and banks if there’s ever a dispute, and therefore don’t dispute most of these things,” and Mallory B Duncan, general counsel of the National Retail Federation in D.C. He also stated that the McCombs are not the only ones criticizing the payment-card industry (PCI) rules.

When an event such as this occurs, both Visa and MasterCard expect a merchant to foot the bill for an approved forensic examiner to investigate the possibility of such a security breach.

They stated that the McCombs’ computer had collected and held information on the accounts of 8,107 patrons, although the McCombs were unaware of this situation. That was less than the 10,000 limit for a fine to be imposed under Visa’s rules. However, Visa claims that Cisero had data on 32,581 accounts stored on their computer, but Visa was unable to clarify how they had reached that figure.

Documents from the court stated that Visa determined the actual amount of the fraud to be $1.26 million and estimated that Cisero was liable for $1.33 million because of their failure to comply. In court papers the couple stated that the “total pre-cap liability” of the restaurant was placed at $511,513. Eventually, Visa stated that $55,000 was owed by Cisero’s.

“All the different changing numbers based on unknown computations indicate that the process is just a scheme to assess high financial penalties on little merchants,” Cisero’s stated in court papers.

“To survive, restaurants have to be able to take electronic payments from Visa and MasterCard ,” they stated in the complaint.

At Cisero’s, accepting customers’ cards is essential. None of the major cards such as MasterCard, Visa and US Bank have ever shown that security has been breached at Cisero’s. Additionally, no card issuer has ever suffered any fraud losses due to a data breach at Cisero’s. This assertion is borne out by the court documents.

Judge Keith Kelly of Park City received a request from the bank to deny a portion of the objections raised by the restaurant. So far, there is no ruling.

If you find yourself in business dispute with a larger opponent, know that there is help available. The quality of one’s legal arguments and their presentation can overcome significant apparent odds. A well-prepared business dispute lawyer can effectively compete against even the largest law offices. Abronson Law attorneys can handle business litigation cases with an efficiency that can be difficult for larger business firms to match.

We are happy to offer a free initial consultation to discuss your business litigation needs.

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Equipment in the Middle of the Road Results in Wrongful Death

February 21st, 2012

When logging equipment becomes dislodged from the truck on which it is being carried, things can get dangerous.

A recent accident involved forklift equipment that landed directly in the path of another vehicle when it fell off the logging truck. As this happened, forty-two-year-old Kyle Brown careened into the forklift and sustained fatal injuries. Apparently, one of the tires on the logging truck struck the guardrail of the bridge and caused the logging equipment on the trailer to fall off right in front of Mr. Brown’s BMW-SUV. Brown ran head-on into the over-sized forklift equipment.

The truck driver received a ticket at the scene for improper lane use, since he strayed from his lane and hit the guardrail. However, its now assumed that the combination of the truck and its load were actually too wide to fit on the bridge itself.

Answers will be provided in time after a more in-depth investigation has been performed. Families in this sort of situation oftentimes find themselves going through shock as well as tremendous financial challenges. Both a funeral and a burial have to be arranged. Death is one of the most difficult things to have to endure, emotionally as well as financially.

The family may question if its appropriate to ask for the help of a wrongful death attorney in this type of situation. Attorneys who focus on wrongful death cases can often help families attain better settlements than they might obtain directly from an insurance company. In addition, attorneys can handle the legal details that merely add to a grieving family’s burden. They may be entitled to medical expenses; mortgage payments; funeral and burial costs; economic damages for the financial contributions the decedent might have made to the family – and various other compensation for damages that may allude the family if an attorney is not called in to help.

If you are faced with a similar challenge as the Brown family, please call us today for a free consultation.

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Louis S. Abronson of Abronson Law Offices Designated a Recipient of the Top 1% Trial Counsel for Medical Malpractice Plaintiff Attorneys for 2012 in California

February 15th, 2012

We are proud to announce that Louis S. Abronson of Abronson Law Offices was recently selected as among The Top 1% Trial Counsel for Medical Malpractice Plaintiff Attorneys for 2012 in California. For this prestigious designation, candidates are selected from the leading law professionals across the U.S. based on Medical Malpractice Lawyers’ (http://medicalmalpracticelawyers.org ) rigorous multi-point scoring system.

To find out more information about this prestigious award, please click on this link to our recent press release.

Thank you,

Abronson Law Offices

 

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How Child Personal Injury Cases Differ from Adult Personal Injury Cases

February 14th, 2012

The fact that youngsters are more vulnerable to injury should come as no surprise; personal injury lawsuits involving children are not rare. In some ways, the legal process for a child injury case is similar to an adult injury case. However, there are a number of differences.

In this article, I’ll discuss how a personal injury claim involving a child differs from an adult personal injury claim.

It is Necessary for a Guardian Ad Litem to be Appointed

In the event that a child is injured, his interests must be represented by a guardian ad litem. This guardian must be appointed.

In California, the Court appoints the person who will serve as guardian ad litem; this is usually a person recommended by the child’s attorney with the parents’ consent. The guardian ad litem must honestly and legitimately represent the interests of the child. Typically in this situation, the court appoints a parent of the child.

A guardian ad litem has no legal right to recovery and are not parties involved in the lawsuit. Their role is merely one of acting in the interests of the youngster who has suffered an injury.

A Blocked Account is Established for the Placement of the Child’s Settlement

When a settlement is reached, the personal injury recovery of the child will be placed into an annuity or blocked account to await the child’s majority or coming of age (18). When all legal fees have been met, the remainder of the settlement is placed into a low interest bearing account by the Court. Once the minor reaches the age of 18, the entirety of the money is distributed to the young adult.

The reason for this is to ensure that the settlement is provided to the child and is not usurped for any other use.  For needed expenditures from time to time, a parent would need to petition the court. Extraction of funds is likely only allowed if its directly related to the claim of injury accident.

Posted in Personal Injury, Uncategorized | No Comments »

Construction Zones Are Hazardous When Semis Do Not Stop

February 7th, 2012

Construction zones are more dangerous than you may believe, especially when a big rig is around. When a truck somehow fails to stop and plows into the cars ahead of it, the result is a path of destruction and oftentimes major injury and/or loss of life.

Consider Wanda and John Lindsay’s experience. The couple was in a construction zone in a line of stopped cars. Out of the blue, a massive semi-truck plowed into their car’s rear end at a speed in excess of 50 mph. The outcome of this accident? The rear end of the car occupied by the Lindsays was accordioned, resulting in John’s death.

The accident left pieces and fragments littered around a 100-yard radius, and the trucker confessed to the police that his eyes had strayed from the road.

This accident raised a lot of eyebrows, as people wondered what caused the trucker to drive into the construction zone while using cruise control at a relatively normal speed. This unanswered question plagued Wanda for days on end – that is, until she learned the truth contained in a doctor’s report obtained by her attorney. Lindsay had to make a wrongful death claim, citing the trucking outfit along with the vehicle driver. As fate would have it, the vehicle operator received a sleep apnea diagnosis only weeks prior to the tragic wreck.

The trucking company ignored the issue and allowed the man to continue working, rather than allowing him to get the help and treatment he needed. This put the man in danger as well as everyone on the road around him. In this case the trucking company chose to ignore the trucker’s illness, denying its existence despite the medical record indicating otherwise.

According to the Federal Motor Carrier Safety Administration, a study was conducted proving that about one third of commercial truck drivers suffer from sleep apnea. Countless other operators of big rigs suffer with identical medical ailments.

While Wanda Lindsay is diligently working on her goal of having the trucking company implement sleep programs for its drivers, it remains to be seen how long it will be before this actually comes to pass. All is not lost, however, as the company whose driver killed Wanda’s husband is now partnering with a local hospital to screen potential workers for sleep apnea before putting them on the road.

 

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Do I have a Medical Malpractice Case?

July 21st, 2011

Answering that question turns out, often, to be less straightforward than we would wish. Healthcare providers cannot ever guarantee a good outcome, and sometimes a patient can suffer a terrible result for which no one can be held accountable. In considering each potential medical malpractice case, it is (virtually always) necessary to consult with an expert in the field who will render an opinion on:

1. Whether a prior health care provider fell below the required standard of care in something they did,
2. Whether that failure to meet the standard of care caused harm,
3. What harm was caused and what treatment has been needed,
4. What harm will be suffered in the future,
5. What treatment will be needed in the future.

Only once those questions are answered can we determine whether there is a medical malpractice case that should be pursued. Sometimes it can be difficult for an individual potential plaintiff to locate a doctor willing to provide the necessary opinion. A good medical malpractice attorney will have access to a network of such experts who can be called upon to assist in evaluating cases.

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Small Firm Business Dispute Lawyers Can Succeed in Business Litigation Cases Through Superior Tactics

April 21st, 2011

Any student of history knows about the Vandals, the Germanic tribe that sacked Rome in 455 A.D. The Vandals are in the news again, with another victory over a much larger foe. In 2004 the punk band The Vandals released an album, “Hollywood Potato Chip,” that Hollywood trade newspaper Variety claimed infringed on its own trademarked logo. The band reached an agreement with Variety‘s parent company, Reed Elsevier (known in the legal community for its LexisNexis  publishing division, a set of leading research tools) under which The Vandals changed their cover art and would be liable for $50,000 plus attorneys fees if they ever broke the agreement.

In 2010 Reed Elsevier sued for breach of contract, claiming the offending image appeared on the band’s Web site. The Vandals denied responsibility, and set out to represent themselves in the business litigation case. The band’s bassist and long-time centerpiece, Joe Escalante, is also a lawyer and hosts a radio show called “Barely Legal Radio” that covers entertainment law matters. When Reed Elsevier brought its case in Delaware’s federal court based on a venue clause in the agreement, he represented the defendants and moved to transfer the case to the federal court in Los Angeles, which had overseen the initial dispute. Reed Elsevier is represented by Fulbright & Jaworski, a law firm with hundreds of lawyers and 16 offices around the world. The firm handles business litigation cases, as well as suits that fall under other practice areas.

The Vandals have had great fun on their Web site mocking Variety over the lawsuit, and won a significant victory in obtaining the change in venue Mr. Escalante requested. The judge’s brief order finds that “the interests of justice overwhelmingly favor allowing this case to proceed” in Los Angeles for multiple reasons, including the costs of litigating in Delaware and the defendants’ limited funds. The business litigation case will move forward in California, where most of the relevant documents and witnesses are located.

This illustrates how the quality of one’s legal arguments and their presentation can outweigh significant apparent odds. Clever, well prepared, business dispute lawyer or small firm can compete effectively against even the largest law offices. At Abronson Law, our attorneys embrace and embody that point of view, handling business litigation cases with an efficiency that can be difficult for a larger business firms to match.  We are happy to offer a free initial consultation to discuss your business litigation needs.

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Truck Driver and Employer Held Partially Liable for Injury Accident Caused by Blocked View of Highway

January 13th, 2011

For the first time in California, an appellate court ruled on the question of whether a truck driver can be held liable for injuries caused to others if his or her truck is parked legally but nonetheless blocks motorists’ views of oncoming traffic.  While the court’s ruling does not apply in all circumstances, the facts in Lawson v. Safeway, Inc.clearly showed that the truck driver failed to use ordinary care to prevent others from being injured, thus making him partially responsible for an accident that seriously injured a motorcycle passenger.

The 2005 accident occurred on Highway 101, near Crescent City, at a spot where the highway is a three-lane road with cross traffic coming from intersecting streets.  The 65-foot Safeway tractor trailer was parked on the side of Highway 101 close to a T-shaped intersection, blocking the view of oncoming traffic for a driver attempting to cross and turn onto 101.  When Shawn Kite tried to turn left onto 101 from Anchor Way, he couldn’t see around the Safeway truck.  Although he carefully crept into the intersection, he couldn’t see Charles and Connie Lawson approaching on their trike motorcycle.  The Lawsons collided with the left side of Kite’s pickup when he crossed in front of them, and Mrs. Lawson was thrown from the motorcycle, sustaining serious injuries.

During the original trial, a jury apportioned 35 percent fault to Safeway and its driver, 35 percent to the State of California (for negligently failing to prohibit parking in that spot), and 30 percent to the driver of the pickup (Kite).  The appellate court upheld that decision.

In evaluating the case, the appellate court acknowledged that there was no prior California case similar enough to use as precedent, so it looked to see what other states have decided.  In the majority of cases, courts concluded that negligence could be found even if no statute or ordinance was violated.

Central to the decisions in all of these cases was the concept of foreseeability.  Although no one could foresee the particular accidents involving the particular parties involved, it was foreseeable that someone might be injured as a result of blocking drivers’ views.  The court in Lawson v. Safeway, Inc. also considered other factors, including the fact that the driver had “no shortage” of safe alternatives for parking his truck.

This case illustrates an example of third-party liability.  Even though neither Safeway nor its driver were involved in the accident, they created a hazard that foreseeably resulted in injury to another party.  Likewise, the State of California was held partially responsible for the same reason.  The potential for third-party liability is always worth discussing with an attorney if you have been injured.

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DePuy Hip System Recall: High Failure Rate Prompts Recall and Product Liability Lawsuits

December 7th, 2010

The recent recall of DePuy’s ASR™ Hip System has shone a new spotlight on medical implant failures, and an April 2, 2010, article from the New York Times revealed some surprising information that should concern anyone with an implant.

According to the New York Times article, the million or so artificial hips and knees implanted each year in the United States are normally not guaranteed. In other words, there is no product warranty to cover the cost of replacement if the implants are defective. In a world where defibrillators, breast implants, and many other medical devices come with warranties, it’s hard to imagine that manufacturers of these artificial joints wouldn’t offer similar protections. But instead, they shift the cost or replacing defective devices to taxpayers, policy holders, and patients.

They often also try to shift blame: The surgeon must have installed the implant incorrectly, the patient caused or contributed to the injuries through his or her activities post-surgery, and so forth. Additionally, many of these devices are expected to last about 15 years with the normal wear and tear we put on our joints, so manufacturers often look at early failures as a known risk that comes with the territory.

But DePuy couldn’t ignore the failure statistics. According to the company’s own web site, approximately 12% of patients (one in eight) who had received DePuy’s ASR resurfacing device and 13% of patients (one in eight) who had received DePuy’s ASR total hip replacement needed to have a revision surgery— a second surgery to replace the defective implant— within five years of the original operation. According to an article at Arthritis Today, this failure rate is about twice the industry average.

DePuy has posted recall information on its web site and states that the company intends to cover reasonable and customary costs of testing and treatment, including revision surgery if needed, but it could nevertheless be advantageous to get help from an experienced product defect attorney. The same is true with any medical implant recall. An attorney can evaluate whether a claim should be brought against anyone else in addition to DePuy, help the claim process move forward more smoothly, and will likely obtain more compensation for your pain and suffering.

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