Common Law - The FindLaw Consumer Protection Law Blog

October 2008 Archives

More than $266 million in federal tax refund checks and economic stimulus payouts have not been delivered to taxpayers because of mailing address errors, the Internal Revenue Service (IRS) announced last week. The agency has issued a Press Release outlining the steps taxpayers can take to fix the problem and ensure they get their money.

The IRS reports that 279,000 economic stimulus checks have not reached their rightful recipients, and instructs all taxpayers due a stimulus check to update their addresses with the IRS by Nov. 28, 2008, because under the law, economic stimulus checks must be sent out by Dec. 31 of 2008. Taxpayers should use the "Where's My Stimulus Payment?" tool on the IRS web site to check the status of a stimulus check and learn how to update their mailing addresses (or call the IRS at 1-866-234-2942).

More than 104,000 refund checks for tax year 2007 have also been returned to the IRS as undeliverable. The agency is instructing affected taxpayers to update their mailing addresses using the "Where's My Refund?" tool on the IRS web site, and the refund checks will then be sent out (for a telephone version of "Where's My Refund?", call the IRS at 1-800-829-1954).

FDA: Bayer Illegally Marketing Two Aspirin Drugs

Two aspirin products being sold over-the-counter by Bayer Healthcare have not received U.S. Food and Drug Administration (FDA) "new drug" approval for their marketed uses, and the manufacturer has received two warning letters from the FDA, the agency announced Tuesday.

The warning letters concern "Bayer Women's Low Dose Aspirin + Calcium" and "Bayer Aspirin with Heart Advantage". Both are labeled as pain relievers, but also as reducing the risk of heart disease, a use that has not been approved by the FDA, according to an FDA Press Release (Bayer Women's Low Dose Aspirin + Calcium is also labeled for "fighting" osteoporosis, another use that has not been approved by the agency). In addition to being marketed illegally, both aspirin drugs are also considered "misbranded" by the FDA, because "use of these products for treatment of heart disease and osteoporosis requires diagnosis and supervision by a health care professional to ensure safe use", and because their labeling is misleading and carries inadequate warnings, according to the FDA.

The New York Times reports that the F.D.A. "regularly issues warning letters to companies that do not follow regulations for manufacturing and marketing. The letters are not legally binding, but the agency can sue companies if they are ignored."

FBI Releases Hate Crimes Data for 2007

Hate crimes in the U.S. saw a slight decline overall in 2007, but crimes against gay and lesbian victims increased over the previous year, according to statistics released Monday by the Federal Bureau of Investigation (FBI).

In its report Hate Crime Statistics, 2007, the FBI analyzes 7,624 hate crime incidents involving 9,006 offenses reported to the agency -- including breakdowns of each incident by victim characteristics, type of offense, characteristics of offender, and location where the hate crime was committed. Overall, the FBI reports that 50.8 percent of hate crimes in 2007 were motivated by a racial bias, 18.4 percent were motivated by a religious bias, and 16.6 percent were motivated by a sexual orientation bias. There were 5,408 hate crimes committed against people in 2007 -- including assaults and acts of intimidation. 3,579 hate crimes were classified as crimes against property, with the majority (81 percent) acts of vandalism and property destruction.

Hate crimes are acts of physical violence, threats, and property damage intended to hurt or intimidate someone because of their race, ethnicity, national origin, religious, sexual orientation, or disability. According to the U.S. Department of Justice, "Of all crimes, hate crimes are most likely to create or exacerbate tensions, which can trigger larger community-wide racial conflict, civil disturbances, and even riots. Hate crimes put cities and towns at-risk of serious social and economic consequences." If you have information about the possible commission of a hate crime, look in the "blue pages" of your local telephone book and contact your local FBI field office or police department.

Time Off to Vote: Your Employee Rights

Does your employer allow you to take time off from work to go to the polls and vote? Is your company legally required to provide such time off, according to your state's laws? And if so, is time off to vote considered paid time off? Just in time for November 4th, get up-to-date information on voters' rights to time off on Election Day, with FindLaw's State-by-State Employee Time Off to Vote Laws, compiled in partnership with JustVote.org.

An important tool for American voters looking for information on their legal voting rights as employees, State-by-State Employee Time Off to Vote Laws is easy to understand, with key information to help voters make it to the polls on November 4, including downloadable posters outlining employees' rights to take time off to cast their ballots. This feature is part of the "Voting Rights Law" content in FindLaw's Special Edition: Election 2008. Additional features include State-by-State Absentee and Early Voting Laws, State-by-State Voter Registration Information, State-by-state Voter ID Laws, and State-by-State Voting Systems Information, provided by the Pew Center on the States and the Early Voting Information Center at Reed College.

When someone asks what you're going to be for Halloween, chances are the first answer that comes to mind isn't "safe". But with October 31 just around the corner, there are a number of things you should keep in mind to make sure that costume ideas, neighborhood "trick or treating", and candy consumption are both fun and safe for you and your family.

Parents and kids should make sure costumes and accessories are flame-resistant and highly visible to motorists, remember to inspect all treats for evidence of tampering, and take steps to ensure that they're choosing safe houses to visit, according to a Halloween Safety Alert from the U.S. Consumer Product Safety Commission (CPSC). Tips on safe use of face paint and novelty makeup, and wearing of decorative contact lenses are provided by the U.S. Food and Drug Administration (FDA). Helpful Halloween safety advice for parents and kids is also available from the American Red Cross: Tricks, Treats, Costumes, and Safety and the National Safety Council.

Judge Approves $24M Tainted Pet Food Settlement

A New Jersey federal court judge has signed off on the creation of a $24 million fund to settle legal claims arising from contaminated pet food that sickened thousands of dogs and cats in the U.S. in 2007.

The settlement agreement stems from events that began in March 2007, when U.S. health officials started receiving reports of dogs and cats becoming sick after consuming pet food produced by Menu Foods, Ltd. Testing later revealed the presence of melamine-contaminated wheat gluten and rice protein in a number of dog and cat food products manufactured by Menu Foods.

The $24 million settlement fund is intended to compensate affected consumers for harm caused by the tainted pet food, including reimbursement of veterinarian treatment costs and monetary compensation for the loss of a pet. In order to participate in the settlement, affected pet owners must complete and submit a claim form must by November 24, 2008. The settlement fund will be paid into by Menu Foods and companies that sold the tainted pet food in their stores -- including Wal-Mart Stores, Inc., Target Corp., Petco Animal Supplies, Inc., and PetSmart, Inc., according to Bloomberg.com. According to the Associated Press, over 10,000 pet owners have filed claims so far, and the average dollar amount of the claims analyzed so far is $1,500. A special web site has been created to help consumers learn more about the settlement: www.petfoodsettlement.com.

1.6 Million Cribs Recalled Due to Suffocation Risk

Almost 1.6 million cribs are being recalled because two potential defects in the cribs' "drop side" mechanism pose an entrapment and suffocation hazard for infants, the U.S. Consumer Product Safety Commission (CPSC) announced Tuesday. CPSC is urging all parents to inspect their "drop side" cribs for hardware problems and missing or broken parts.

The affected cribs were manufactured by Delta Enterprise Corp. and sold at retailers throughout the U.S. -- including K-Mart, Target, and Walmart -- from 1995 to 2007, according to the CPSC. About 985,000 Delta "drop side" cribs are being recalled because missing safety pegs could pose a suffocation hazard to infants, and 600,000 more Delta cribs are being recalled because failure of the "spring peg" mechanism may present similar danger (see detailed recall information from CPSC, including affected model numbers on the recalls: Missing Safety Pegs | Spring Peg Failure). The Delta Enterprise crib recall was prompted by the suffocation deaths of two infants, and a number of infant entrapments reported to CPSC.

A CPSC Press Release issued Tuesday cautions parents and caregivers on potential problems with "drop-side" cribs: "Cribs with drop sides are the type most likely to experience hardware problems. They contain more moving parts and have more non-rigid connections than static, or non-drop side cribs. In many cases the drop side corners disengage from the tracks located on the crib ends, or safety stops become nonfunctional permitting the drop side to detach from the crib. These types of defects are often undetected by parents or caregivers and can worsen when the baby pushes or leans against the side of the crib."

Pfizer to Pay $894M to Settle Bextra, Celebrex Claims

Pfizer Inc., manufacturer of Bextra and Celebrex, has agreed to pay out $894 million to settle personal injury suits and other legal tangles involving the two pain medications.

Bextra, a non-steroidal anti-inflammatory (NSAID) pain medication, was pulled from the market in 2005. Celebrex, another NSAID, continues to be a top seller for Pfizer. Reuters reports that the $894 in settlements (announced Thursday) will be distributed as follows: $745 million to settle personal injury cases related to Bextra and Celebrex; $60 million to settle with 33 states and the District of Columbia over the marketing of Bextra; and $89 million toward resolution of consumer fraud class actions over potential financial harm caused by the promotion of the two drugs. According to Forbes, "the decision to settle follows a string of litigation that found in favor of Pfizer in federal and New York State courts over claims that Celebrex caused heart attacks and strokes in patients."

EPA Tightens Air Quality Standards for Lead

Allowable levels of airborne lead emissions will be reduced tenfold from current standards, under new U.S. Environmental Protection Agency (EPA) rules announced Thursday. The stricter regulations are intended to protect the public -- especially children -- from health problems associated with exposure to airborne lead.

The new, stricter airborne lead standards "tighten the allowable lead level 10 times to 0.15 micrograms of lead per cubic meter of air," according to an EPA Press Release, and mark the first time lead standards have been changed in 30 years. The New York Times reports that representatives of a number of industries that are major emitters of lead -- including metalworkers, recyclers, and utility companies -- had traveled to Washington D.C. in early October, to plead their case for a less strict standard for airborne lead emissions. But under the new standards, "No later than October 2011, EPA will designate areas that must take additional steps to reduce lead air emissions. States have five years to meet these new standards after designations take effect," according to the EPA.

Lead is a dangerous substance, especially for young children and older adults. Exposure to high levels of lead in the air -- or in products like lead-based paint -- can lead to nervous system damage, behavior and learning problems, hearing problems, and headaches.

Social Security Benefits to Increase 5.8 Percent in 2009

Monthly Social Security and Supplemental Security Income benefits will increase 5.8 percent beginning in 2009, and maximum annual incomes that will be subject to Social Security taxes will also increase, the Social Security Administration (SSA) announced Thursday.

The 5.8 percent increase will enhance the monthly Social Security benefits of more than 55 million Americans, and is the largest benefits boost since 1982, according to the SSA. The SSA also announced that "maximum amount of earnings subject to the Social Security tax (taxable maximum) will increase to $106,800 from $102,000."

Most workers in the U.S. pay taxes that earn them social security "credits", eventually qualifying them to receive Social Security benefits that replace a percentage of income when they retire or become disabled. According to the SSA, benefits increase each year in correspondence with the Bureau of Labor Statistics' Consumer Price Index for Urban Wage Earners and Clerical Workers, which rose 5.8 percent this year.

Nissan Recalls 200,000 Vehicles Over Airbag Issue

Nissan will recall more than 200,000 of its model year 2007 and 2008 vehicles, because a problem with an airbag component in the passenger seat cushion could prevent the airbag from deploying in an accident. The recall affects 204,361 Nissan vehicles: 2007-2008 Nissan Altima, Altima Coupe, 350Z, Murano, and Rogue; and 2007-2008 Infiniti G35 Sedan, G37 Coupe, and EX35.

Reuters reports that in some Nissan vehicles identified in the recall, "the passenger side airbag could fail to receive a proper signal, and a supplemental airbag warning light could flash and a status light would illuminate to warn the driver that it is not working properly." Affected vehicle owners should be contacted by Nissan beginning on November 3, and Nissan expects that actual airbag problems will be found in less than 1 percent of the affected vehicles, according to Reuters.

International Spam Ring Shut Down

The federal government has received a court order that halts the operation of a large international "spam" ring responsible for sending billions of unsolicited -- and illegal -- emails peddling prescription medications, weight loss pills, and herbal male-enhancement pills.

In a Press Release issued Tuesday, the Federal Trade Commission (FTC) announced that a U.S. district court judge has issued an order that prevents the largest "spam gang" in the world from operating, and effectively freezes its assets. The group has used several names, including "HerbalKing", "TargetPharmacy", "Canadian Healthcare", and "Affking". The FTC has received more than 3 million complaints about spam messages connected to the ring, and stresses that the drugs offered in the emails have not been approved by the FDA and are potentially unsafe.

According to the New York Times, "to pepper internet users with its solicitations, the HerbalKing group used a botnet, a global network of computers infected with malicious software, often without the knowledge of their owners." While Tuesday's announcement is good news, the Chicago Tribune warns that "there are no guarantees that the court order will quickly shut down the ring's web sites, especially because the servers are based in China. And spam operations often create lists of e-mail addresses to sell to others, spawning more messages."

Vioxx Heart Risks Shown in Long-Term Study

A three-year study of the effects of Vioxx (rofecoxib) in 2,587 patients showed that use of the once-popular prescription painkiller doubled the risk of heart attack and stroke, confirming concerns over the drug's health risks that prompted its withdrawal from the market in 2004.

Reuters reports that the study shows the risk to Vioxx patients continuing even a year after use of the medication is stopped, quoting an author of the study: "The good news is the data suggests that the risk doesn't persist forever. The risk goes back toward normal after a year of follow up" (Dr. Robert Bresalier of the M.D. Anderson Cancer Center at the University of Texas). The long-term Vioxx study is published in the October 14, 2008 issue of the medical journal Lancet.

Beginning in 1999, Vioxx was prescribed for treatment of osteoarthritis and management of acute pain in adults. But in September 2004, manufacturer Merck & Co. Inc. announced that it was withdrawing Vioxx from the market worldwide, due to increased risks of heart attack and stroke in users of the drug. In August 2008, Merck began paying settlement claims to those injured by Vioxx, and it is estimated that 97 percent of those eligible have chosen to participate in the settlement, which could reach as much as $4.85 billion in claims paid.

October is National Domestic Violence Awareness Month

Domestic violence is usually defined as physical, emotional, and/or psychological abuse committed within an intimate or family relationship. All too often, acts of physical abuse are part of a pattern of aggression that typically includes controlling behavior, manipulation, threats, and intimidation. According to U.S. Department of Justice research, about 1.3 million women and 835,000 men are physically assaulted by an intimate partner each year in the U.S., and almost 25 percent of surveyed women said they have been physically or sexually assaulted by a spouse, partner, or date at some point in their lives. Domestic violence can occur in all types of relationships: marriages, cohabitating couples, same-sex couples, even between teenagers who are dating.

Because domestic violence affects so many people (and because it is one of the most under-reported crimes in the U.S.), October has been designated National Domestic Violence Awareness Month, focusing on the prevention of domestic violence and getting help to those who need it.

Click on the links below to learn more about National Domestic Violence Awareness Month, how to get help with a domestic violence situation, and more.

Connecticut Supreme Court OKs Same-Sex Marriage

The Connecticut Supreme Court ruled Friday that the state's same-sex marriage ban violates constitutional guarantees of equal protection under the law, opening the door for same-sex couples to marry in the state.

In Kerrigan v. Commisioner of Public Health, Connecticut's top court ruled 4-3 that the state's "segregation of heterosexual and homosexual couples into separate institutions" of marriage and civil unions "impermissibly discriminates against gay persons on account of their sexual orientation." The case was initiated by eight same-sex couples who had been denied marriage licenses in a Connecticut township. Friday's ruling means that Connecticut joins California and Massachusetts as the only states in the U.S. that allow same-sex couples to marry.

The Hartford Courant reports that Connecticut voters may have the final say on the issue of same-sex marriage in the state: "In Connecticut, a question is on the November ballot on whether to hold a constitutional convention. Supporters want to change the constitution to allow "direct initiatives," which would potentially open the door for anti-gay rights groups to seek a ban on same-sex marriage."

Unemployment Funds Dwindling in Some States

As the economic crisis lingers and job losses increase, more and more people are turning to unemployment benefits for help making ends meet. But a number of states are warning that their unemployment insurance funds are running close to empty.

CNN.com is reporting that "California, Michigan, Missouri, New York, Ohio, South Carolina, Wisconsin, Indiana, Kentucky and Arkansas have less than six months' worth of unemployment trust fund reserves, putting the funds at high risk of insolvency" -- citing data from the National Employment Law Project. In California alone, the state is paying out up to $27 million daily in unemployment benefits, and the unemployment insurance fund "could be $500 million in the red by January," according to the Sacramento Bee.

When workers become unemployed, they can usually apply to receive benefits from a state unemployment compensation fund until they find other work. Most employers must pay unemployment insurance on each employee in their organization, and these payments are then placed into the state fund. (Learn more: Unemployment Insurance Q&A)

Zyprexa Makers, 32 States Reach $62M Settlement

Eli Lilly and Co., manufacturer of the anti-psychotic medication Zyprexa, has reached a $62 million settlement with 32 states and the District of Columbia, to resolve claims that the company engaged in improper marketing and sales of the drug.

The investigation into Lilly's promotion of Zyprexa was spearheaded by the attorneys general of Illinois and Oregon, who alleged that Eli Lilly and Co. made unsubstantiated claims about Zyprexa's benefits and promoted the medication for unapproved uses, including the treatment of dementia in elderly patients. The Illinois Attorney General calls the $62 million agreement "the largest ever multi-state pharmaceutical consumer protection settlement." In a Press Release issued on Tuesday, Eli Lilly and Co. announced that the $62 million will be divided among the settling states, and that the company will undertake "certain commitments" involving "the company's promotional practices, dissemination of medical information, funding of continuing medical education and grants related to Zyprexa, and continued disclosure of Zyprexa clinical trials and their results." 11 other states that have filed Zyprexa-related lawsuits against Lilly are not covered by Tuesday's settlement agreement. According to Reuters, Zyprexa is Lilly's top-selling product, bringing in $4.76 billion in sales last year alone.

BofA in $8.4B Rescue Deal to Help Countrywide Customers

Bank of America, the new owner of Countrywide Financial, has announced an $8.4 billion settlement under which homeowners in 11 states could see mortgage relief through lowered interest rates and reduced principals. The deal -- a response to lawsuits in which a number of states accused Countrywide of questionable home mortgage lending practices -- could provide relief to as many as 400,000 Countrywide mortgage holders.

The Nationwide Homeownership Retention Program for Countrywide Customers, announced Monday, will be put in place by December 1, 2008, and will offer $8.4 billion in loan adjustments to Countrywide mortgage holders in Arizona, California, Connecticut, Florida, Idaho, Illinois, Maryland, North Carolina, Ohio, Texas, and Washington. Under the program, Countrywide mortgage servicers will undertake a "proactive loan modification process" for borrowers who are (or are likely to become) delinquent, including adjustment of total mortgage payments "targeted to equate to 34 percent of the borrower's income," and other loan modifications "to ensure annual principal and interest payments increase at levels with minimal risk of payment shock," according to a Countrywide Press Release.

U.S. Supreme Court Kicks Off New Term

Today is the first Monday in October, signaling the start of a new U.S. Supreme Court term. In the coming months, the nation's highest court is expected to hear oral arguments and hand down rulings in a number of key cases -- on issues like pharmaceutical company liability, "light" cigarette advertising, broadcast indecency, liability for detainees' civil rights violations, and more. Take a look at some of the stories and viewpoints making headlines as the new U.S. Supreme Court term begins:

Learn more about cases before the Court for the October 2008 term, its current Justices, Court history, and more, with resources from FindLaw and the U.S. Supreme Court's official site:

Financial Bailout Bill Passed and Signed Into Law

The U.S. House of Representatives voted today to pass the $700 billion financial bailout legislation that has see-sawed through Congress this week, and President Bush put his signature on the bill shortly thereafter.

Today's House vote (263 to 171) approving the historic financial rescue packages comes two days after the Senate approved the measure by a 74-25 vote. The revised bailout plan -- different from the version the House rejected on Monday -- contains "sweeteners" like over $100 billion in tax cuts and increased limits on federal bank deposit insurance. (See a Draft of the Bailout Bill, from the New York Times)

Bloomberg.com reports that "The bill's defeat on Sept. 29 caused a 778-point drop in the Dow Jones Industrial Average, prompting dozens of lawmakers to switch their vote on the legislation, the government's largest intervention in the markets since Franklin Roosevelt's New Deal." According to Reuters, "Markets pivoted on passage of the bailout, with stocks drifting from highs and the dollar slipping as the focus began to shift from the immediate response to the financial crisis to signs of a gathering recession."

New Motorcycle Helmet Safety Rules Proposed

A new set of proposed rules from the U.S. Department of Transportation (DOT) aims to strengthen motorcycle safety by making it easier for riders to identify DOT-certified helmets, and avoid "novelty" helmets that do not provide adequate crash protection.

Under the new proposed rules announced Monday, manufacturers would be required to place a bigger, tamper-proof DOT label on the backs of all certified motorcycle helmets. According to a National Highway Traffic Safety Administration (NHTSA) Press Release, "the new labels will make it harder for vendors to remove the labels on safe helmets and affix them to the unsafe novelty helmets." The proposed rules would also require stricter safety testing for motorcycle helmets. In Monday's NHTSA Press Release, U.S. Transportation Secretary Mary E. Peters stated that the new rule "will help mitigate the yearly increases in motorcycle fatalities and injuries that have plagued the nation for nearly a decade," with fatalities increasing by 144 percent since 1997. According to the NHTSA, in states with helmet laws, almost 20 percent of motorcycle riders wear a non-compliant helmet. And in 2006, helmets saved more than 1,600 lives, but if all motorcycle riders wore a helmet, another 752 lives would have been saved, according to the NHTSA.

Senate Passes Bailout Plan; 2nd House Vote Coming

The U.S. Senate voted Wednesday to pass a revised version of the $700 billion financial bailout proposal that stalled in the House earlier this week. The latest financial rescue plan contains "sweeteners" like tax breaks and increased limits on federal bank deposit insurance. The House is expected to take up a second vote on the bailout in the next few days.

In a 74-25 vote on Wednesday evening, the Senate agreed on a plan that incorporates terms of the Bush administration's $700 billion bailout, but "added $110 billion in tax breaks for businesses and the middle class, plus a provision to raise the cap on federal deposit insurance from $100,000 to $250,000," according to the Chicago Sun-Times. The New York Times reports that now, after a bipartisan alliance in the Senate "showed no hesitation in backing a proposal that had drawn public scorn," pressure is on the House to "win over at least the dozen or so votes needed to reverse Monday's outcome and send the measure to President Bush." After its initial rejection of the bailout plan, by a 228-205 vote on Monday, the House is expected to vote on the revised proposal by Friday.

Study: Some Car Booster Seats Not a Good Fit

Car booster seats should properly position child passengers so that safety belts intended for adults can provide adequate restraint in a car accident. But a number of booster seats on the market don't do an adequate job of improving the fit of lap and shoulder belts, according to a study by the Insurance Institute for Highway Safety (IIHS).

The IIHS study -- conducted with the University of Michigan Transportation Research Institute -- did not focus on crash protection, but evaluated 41 popular car booster seats based on the safety belt fit they provided. In a News Release issued Wednesday, IIHS President Adrian Lund stated "We'd expect the 10 best bets to improve belt fit for children in almost any car, minivan, or SUV. . . Likewise, it's clear that kids in the 13 boosters we don't recommend aren't getting the full benefit of improved lap belt fit. These boosters may increase restraint use by making children more comfortable, but they don't position belts for optimal protection." See the complete IIHS Evaluations of Child Booster Seats: Best Bets | Good Bets | Not Recommended.