Common Law - The FindLaw Consumer Protection Law Blog

November 2010 Archives

Customers Want Refund for Comcast Cyber Monday Outage

Shopping deals don't end after Black Friday anymore. The rest of the weekend and the Monday after Thanksgiving fallunder the Cyber Monday online shopping banner. In addition to a credit card, shoppers must have an internet connection to take advantage of these highly-coveted deals.

Thus it should come as no surprise that many East Coast Comcast customers want a refund because an internet outage cost them some sweet deals.

Comcast left its East Coast customers internet-less on quite possibly the most important online shopping weekend of the year. In addition to telling customers that they had no idea why and how the internet was out, cable and telephone service was unaffected by the Comcast Cyber Monday outage -- leaving disgruntled customers a chance to tweet about their disappointment with the lack of broadband.

The problem was ultimately the result of a domain name server issue and the company did release a short apology for the outage that affected Connecticut, Maryland, Virginia, New Hampshire, New York, and Massachusetts. Customers that missed out on many of the time-sensitive deals now argue that they are due a refund from Comcast.

The refund rationale is simple -- customers pay for Comcast internet and it didn't not work when they needed it most. Whether or not Comcast will issue some type of voucher or discount is another story. Although a service provider, outages are inevitable and likely something that was written into the Comcast contract with their customers. There is however, a public relations element to the Comcast Cyber Monday outage and the company may want to save their reputation and keep existing customers. Alas, prorating a customer's Comcast bill to reflect the time the internet was down would result in a pretty small refund.

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Is Alcoholic Whipped Cream the Next Four Loko?

Out of Four Loko and hungry for your next candy-coated alcohol buzz? Perhaps you should check out the next alcoholic product that's trending: alcoholic whipped cream.

Whipped Lightning is making one such product, called Whipahol. Whipahol contains 18 percent alcohol and comes in several flavors. A company by the name of Cream is making another alcohol-infused whipped cream which contains 15 percent alcohol. According to reports, both are quickly becoming popular on college campuses. So far there have not been any suggestions that the products violate the law.

Four Loko was pulled off the shelves after the FDA found that alcoholic caffeinated drinks were not safe. According to doctors, consumers might not realize how much alcohol they have consumed because the caffeine reduces the perception of its effects.

The ban came after messy incidents on college campuses where students wound up hospitalized after consuming Four Loko. In one case, officials originally suspected a mass drugging. Instead, it was just plain old Four Loko.

Speaking of Four Loko, the company is set to launch a new line of products this week. The new drinks won't have any caffeine, but they will still pack a mean punch of alcohol.

When Four Loko was under consideration for being banned, Washington Attorney General Rob McKenna said, "[Four Loko is] marketed to kids by using fruit flavors that mask the taste of alcohol ... They're packaged just like non-alcoholic drinks, but include a dangerous dose of malt liquor."

One can only wonder whether the alcoholic whipped cream is really any different. If not, are we likely to see Whipahol bans?

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Gmail Ads Violate Federal Wiretap Laws?

Ever noticed those advertisements that surround your Gmail? Ever felt like they were just a little too related to what is in your Inbox?

It has never been a secret, but many people are unaware that for six years, Gmail has been scanning incoming emails in order to populate relevant advertisements. But just because it's being done openly doesn't make it legal, says a Texas resident who has filed a lawsuit against Google. Keith Dunbar says the Gmail ads are violating the Electronic Communications Privacy Act of 1986.

Keith Dunbar filed a complaint in U.S. District Court for the Eastern District of Texas, alleging that Google is violating federal wiretap laws by intercepting "all emails sent to Gmail account holders." One might ask: But don't Gmail users agree to their terms and conditions when the sign up for a Gmail account? Yes, they do. But what about all of the people who don't use Gmail but send a message to a Gmail user? Have they consented to scanning their messages? It will be up to the court to make that determination.

Google says their Gmail ads process is legal, automated and "involves no humans." When Gmail first introduced the feature in 2004, there was a backlash and over 31 organizations sent letters of protest to Google. But in the end, the backlash died down and it was somewhat assumed that scanning the messages to populate advertisements was legal.

Google has been dealing with a swarm of privacy issues lately, ranging from their social network, Buzz, their Street View cars and more. It will certainly be interesting to watch this case as it will have implications that will ripple across the internet.

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Fine print. Yes it is very small and usually seems to be written in a completely different language, but it is that small-sized font at the bottom of a consumer contract that is usually the most important.

Take, for example, the recent Netflix price increase. The mail order DVD movie company has increased their monthly fees by $1 a month; but has offered a streaming only plan to customers for the original pricing of $7.99 a month.

The Netflix price increase was the result of the need to subsidize the increasingly popular streaming plan and the large amount of money Netflix recently invested in their streaming service partnerships. The power to unilaterally increase the price was something Netflix customers signed up for in their membership agreement. The New York Times reports that Netflix signed a $1 billion deal with Paramont Pictures, Lionsgate, and MGM to add their content to Netflix's services.

Consumer contracts are an area of contract law that allows for unilateral changes to terms and pricing mainly because the consumer voluntarily entered into the contract. Although a lot of consumer contracts are not negotiable -- if you want the product or service then you have to agree to it -- that does not mean that all competitor's contracts will have the same terms.

Although a "staple" in the lives of many, having a Netflix account is a voluntary commitment, one that also encompasses unwanted increases in prices. Luckily for Netflix customers the $1 increase will not make too big of a dent in their experience. In the end, it pays to read the entire contract and failure to do so is not a viable legal defense.

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Top 12 Holiday Cyber Scams Revealed

For the first scam of Christmas, my true love gave to me: One free iPad.

The "12 Scams of Christmas" list has been released and a free iPad is among the top scams on the internet this year. Software security firm McAfee released the list to help educate shoppers who may get a little too carried away in their quest for bargains and fall victim to a scam.

"Every holiday season BBB hears from holiday shoppers who paid for a supposedly great deal online, but received nothing in return," said Alison Southwick of the Better Business Bureau.

Over the years, the scammers have continued to become more sophisticated. For example, they are now making use of social media to exploit their marks. However, despite their advancements, there is almost always some kind of clue or indication that something is amiss.

For the full list, check out the write up on MSNBC. Here are a few of our favorites from the list:

"Help! I’ve Been Robbed": Con artists send fake distress messages to acquaintances telling them that they have been robbed and need money sent to them. Generally they are going to want the money sent via an unsecure channel like Western Union, which is a tipoff.

Fake gift cards: Using social media, scammers "promote fake gift card offers with the goal of stealing consumers’ information and money, which is then sold to marketers or used for ID theft," says McAfee. Be wary of gift card offers on sites like Facebook. These kinds of offers are constantly scams. In addition, Facebook users rarely have any idea how much information they are signing over to a third party when they participate.

"Smishing" scams: A new term this year, smishing is when you receive spam in the form of a text message. "These texts appear to come from your bank or an online retailer saying that there is something wrong with an account and you have to call a number to verify your account information." McAfee says. When you call, the person on the other end poses as a company representative and steals your information. Remember to verify numbers before you call them, and when in doubt, only call the number on the back of your card or listed on the actual company website.

So there you have it. As P. T. Barnum said, "there's a sucker born every minute." And if you believe that, I'm afraid you're a sucker too. Barnum is well known for coining the phrase, except by all accounts, he never made such a statement.

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Collection agencies will stop at very little to contact debtors and try to get them to pay what is owed, or alleged to be owed. Just recently on FindLaw's Law and Daily Life we told the story of a Pennsylvania debt collection agency which used a fake courtroom, fake bailiffs and a fake judge to try and scare debtors into payment. That agency is now being sued the Pennsylvania Attorney General.

Now a Florida woman has filed suit against a debt collection agency for contacting her friends and family on Facebook.

Melanie Beacham is suing the debt collection agency Mark One LLC for violation of privacy and violating Florida's consumer protection law, which prohibits collectors from harassing people, reports the Associated Press. Beacham was allegedly contacted six to ten times a day by phone, sent text messages, had her neighbors contacted and was sent a letter at her workplace. Beacham is asking the judge to prohibit Mark One from contacting her or her family through Facebook or Twitter.

"It's an invasion of privacy on steroids," Beacham's attorney Billy Howard told the AP. "Normally, it takes a while for collection agencies to contact family members or friends, or co-workers, but on Facebook you have a very powerful harassment tool at your fingertips."

The actions of the agency may also have violated the Fair Debt Collections Practices Act. This act governs the behavior of debt collectors and prohibits them from making false or misleading statements to collect a debt. However, in this case, maybe Mark One just skirted the edge of the law in its attempts to contact Melanie Beacham. According to the AP, one of Beacham's family members received a Facebook message from a Mark One representative calling himself "Jeff Happenstance."

"Please Have Melanie D Beacham call me ... Thanks," the message said. The family member replied by saying he should try contacting Beacham himself. Perhaps Beacham's relative was tipped off by a "friend" referring to her as "Melanie D. Beacham," something only someone who is trying to guess which Melanie Beacham they are trying to find, would do.

Safety tips for Facebook behavior always include: beware who you friend. The AP reports Jeffrey Hyslip, a Chicago lawyer, told of one client who was friended on Facebook by a young woman in a bikini. The friend in the bikini turned out to be a debt collector, something his client found out when the "friend" posted a message on his wall: "Pay your debts, you deadbeat."

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Thanksgiving Alert: Smoked Turkey Recall

Heads up! There are recalled smoked turkeys on the loose.

New Braunfels Smokehouse of Texas has recalled 2,609 pounds of (not so) ready-to-eat smoked turkey breast. The turkey may be contaminated with Listeria. For those of you scoring at home, Listeria is a bacteria named after the English pioneer of sterile surgery, Joseph Lister. Listeria bacteria can cause listeriosis, a rare but potentially lethal food-borne infection. In addition, Listeria can cause miscarriages, stillbirths and a potentially fatal infection in those with weakened immune systems. Even in people with healthy immune systems, it can wreak havoc.

The U.S. Department of Agriculture's Food Safety and Inspection Service found the possible contamination in the course of routine sampling. The turkey products in the smoked turkey recall were made August 4, 2010 and bear the mark "P-975." The turkey was sold nationwide.

According to The Associated Press, the recalled turkey includes:

  • 1-pound packages of New Braunfels Smokehouse Sliced Smoked Turkey with package code 2210 on the label.
  • 4-to 6-pound packages of New Braunfels Honey-Glazed Spiral Sliced Smokehouse Hickory Smoked Boneless Breast of Turkey with package code 2180.
  • 4-to 6-pound whole breast packages of Stegall Boneless Hickory Smoked Turkey Breast with package code 2210.
  • 4-to 6-pound whole breast packages of Stegall Spiral Sliced Hickory Smoked Turkey Breast with package code 2180 or 2210.

If you have a turkey-related question, contact New Braunfels Smokehouse at 800-537-6932.

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The painkillers Darvon and Darvocet have been pulled from the market, according to the U.S. Food and Drug Administration. According to new data, propoxyphene, the main ingredient can cause serious or even fatal heart rhythm abnormalities.

The FDA has asked Xanodyne Pharmaceuticals Inc. to pull both Darvon and Darvocet from the market. The drugs have been banned in Britain for six years.

Dr. John Jenkins of the FDA's Center for Drug Evaluation and Research said using propoxyphene is not worth the risks: "These new heart data significantly alter propoxyphene's risk-benefit profile. The drug's effectiveness in reducing pain is no longer enough to outweigh the drug's serious potential heart risks."

Some doctors are saying propoxyphene should have been pulled in the U.S. years ago. The European Medicines Agency pulled it from the market in June 2009, Reuters reports. Dr. Sidney Wolfe of the Public Citizen's Health Research Group said that "Due to FDA negligence, at least 1,000 to 2,000 or more people in the United States have died from using propoxyphene since the time the U.K. ban was announced."

At this time, the FDA is calling for doctors to stop issuing prescriptions, but it said that patients should continue taking the recalled drugs until told otherwise and they should immediately schedule an appointment with their doctor to discuss alternatives.

The FDA does not believe that the risks of the drug will be long term. "Once patients stop taking propoxyphene, the risk will go away," said FDA's Dr. Gerald Dal Pan.

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Body Scanners can Store, Transmit Body Photos

Recently there has been a great deal of controversy over the new Transportation Security Administration full-body digital x-ray machines and their alternative, the "enhanced pat down." When the body scanners first arrived, many wondered whether the images could be saved or recorded for nefarious purposes. In order to calm the fears of many privacy advocates, federal agencies have promised that body scans cannot be stored and recorded.

However, this week, the U.S. Marshall Service admitted that some police agencies have been recording body scans and transmitting them. In fact, the images amounted to 35,000 images saved by body scanners, at a single courthouse in Florida. The images in question did have identifying features already removed.

The controversy may be a bit misleading, because the scanners being reported upon were not actually used at airports, so it is a separate issue. However, Gizmodo notes that the higher-fidelity TSA x-ray backscatter systems, may have the same image retention capabilities:

"That we can see these images today almost guarantees that others will be seeing similar images in the future ... If you're lucky, it might even be a picture of you or your family," writes Joel Johnson.

The TSA states that images are "automatically deleted from the system after it is cleared by the remotely located security officer." But can travelers take that seriously in light of these recent revelations?

Despite the media attention to the matter, Americans overwhelmingly approve the use of the new full-body digital x-ray machines. According to a CBS news poll, 4 out of 5 Americans support the new machines.

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What You Should Know About Product Recalls

At FindLaw's Common Law, we are constantly updating the public on recalls of dangerous or defective products including everything from prescription medications to window shades. It is important to keep informed about the latest actions by the many government agencies that try to keep the public safe from products that could harm them, or their families.

You may have seen posts regarding recalls from agencies such as the Food and Drug Administration, the Consumer Product Safety Commission, or the National Highway Transportation Safety Administration. These federal agencies, along with others, are responsible for working with companies to recall a product that has become contaminated. This sometimes happens with food or drugs, or an item that has a defect which makes it unsafe for its intended use, as with cars or children's toys.

And yet, there are some things even a recall notice cannot communicate to the public, according to The Washington Post. In the case of drug recalls from the FDA, the notices often do not include the exact numbers of items being recalled or which specific retail stores are selling the affected drugs. However, for products such as computers, toys or other consumer items, the CPCS can usually tell the public how many units are under recall and which stores may have sold them.

Another bit of missing information noticed by The Post is the lack of timeliness on some drug recalls. For information on recalls of over-the-counter drugs, consumers often have to rely on media reports, sift through FDA or company websites, or ask a pharmacist. However, the government has provided an online site that can be of use in tracking recalls from all of its agencies.

Recalls.gov is the new "online source for recalls," according to the site. On one website, consumers can find information regarding product recalls by all government agencies listed above and including others such as the USDA (recalls of meat products), the Coast Guard (recalls on boats), and the EPA (recalls on environmental products). There is even a mobile application for staying on top of product recalls, the Recalls.gov mobile app.

There are other, more basic things consumers can do to keep an eye out for products that might be unsafe. In the case of food or medicine, practice safe storage and preparation techniques and discard any items with a bad color or odor. In the case of consumer products, make sure you follow directions for proper use and support your representatives in Congress when they seek stronger regulations. For example, The Post reports that this summer, Rep. Edolphus Towns (D-N.Y.) introduced a bill that would give the FDA mandatory recall authority for drugs and require manufacturers to notify the agency when they believe drugs in interstate commerce are misbranded or adulterated.

Finally, if you have questions, do your research, and remember, Common Law is always here to help.

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Senator: Four Loko Energy Drink Will be Banned This Week

It seems that the wagons are circling around Four Loko Energy Drink.

According to Sen. Charles Schumer, D-N.Y., the controversial drinks will soon be banned. Four Loko, contains caffeine (like Red Bull) and alcohol (like vodka) and has been linked to a number of young adults getting wacked out of their minds and acting like fools.

Under a new Food and Drug Administration rule, caffeine will be considered an unsafe food additive, effectively prohibiting the sale of Four Loko. Then the Federal Trade Commission will join forces by notifying manufacturers of Four Loko and similar drinks that they may be engaged in illegal marketing.

All along, Four Loko has contended that their drinks are in fact safe, noting that the alcohol content is on par with some beers and the caffeine content is on par with a large cup of coffee.

But Schumer isn't drinking the Kool-Aid. “Let these rulings serve as a warning to anyone who tried to peddle dangerous and toxic brews to our children. Do it and we will shut you down,” said Schumer. “This ruling should be the nail in the coffin of these dangerous and toxic drinks. Parents should be able to rest a little easier knowing that soon their children won’t have access to this deadly brew.”

The move by the Senate is not yet official, but it certainly sounds like it is going to happen. This will no doubt be a disappointment to a number of underage drinkers (as well as of-age undergrads) who seem to love the stuff. A quick Google search showed that the term, "Four Loko party," brings in 1,490,000 results and that many are scrambling to stock up on the drink before Schumer pulls the plug.

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Four Loko is causing quite a stir. You may recall that we recently discussed a large group of Central Washington University students who threw a Four Loko party, a beverage that packs the punch of a six pack of beer and five cups of coffee. Nine students wound up in the hospital at that party.

Now, Boston has called a hearing on Four Loko, which some students have named "blackout in a can," and "liquid cocaine."

Washington already banned the beverage, after the CWI incident. Several other states has followed, including New York. "[Four Loko is] marketed to kids by using fruit flavors that mask the taste of alcohol and they have such high levels of stimulants that people have no idea how inebriated they really are. They're packaged just like non-alcoholic drinks, but include a dangerous dose of malt liquor," Washington Attorney General Rob McKenna said.

"This is a situation when you know a young person is going to die at some point if we don't get this out of the marketplace," said Boston Councilor John Connolly.

According to Connolly, the city could take several possible approaches, including banning Four Loko, calling for a voluntary ban from retailers or working with colleges and universities to get them to ban the product.

However, Four Loko says that the drink is safe, contending that the alcohol content is on par with some beers and the same amount of caffeine as a large cup of coffee. Four Loko points out that people already consume drinks like rum and coke as well as Red Bull and vodka.

So is Boston taking the proper step by possibly banning a potentially dangerous product? Or is it an example of the nanny state interfering with personal liberties?

Related Resources:

  • Boston City Council to hold hearing on Four Loko (Boston.com)
  • Will the FDA Ban Alcoholic Energy Drinks? (FindLaw's Common Law)
  • Young Adults Encountering Underage Drinking at Parties (FindLaw)
  • A class action lawsuit has been filed against Wenner Media, the publisher of Rolling Stone, US Weekly and Men's Journal. According to the complaint, Wenner Media and Consumer Benefit Services have been sending text message spam to consumers, offering free vouchers for magazine subscriptions. Karen Schrock filed suit because she found that the marketing was just a bit too aggressive.

    Schrock specifically alleges that the actions of Wenner Media violate section 227 of the Telephone Consumer Protection Act. The lawsuit, filed in Chicago, calls the unsolicited text message spam "an especially pernicious form of marketing." Under section 227, restrictions are placed upon automatic dialing systems for cell phones. Schrock filed suit in Illinois District Court, seeking a minimum of $500 per violation, which amounts to over $5 million.

    Specifically under Telephone Consumer Protection Act 47 U.S.C. § 227 (b)(1)(A)(iii):

    (b) RESTRICTIONS ON THE USE OF AUTOMATED TELEPHONE EQUIPMENT.— (1) PROHIBITIONS.—It shall be unlawful for any person within the United States, or any person outside the United States if the recipient is within the United States— (A) to make any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using any automatic telephone dialing system or an artificial or prerecorded voice— (iii) to any telephone number assigned to a paging service, cellular telephone service, specialized mobile radio service, or other radio common carrier service, or any service for which the called party is charged for the call.

    In other words, sending automated text messages to thousands of consumers' cell phones is a big no no.

    This isn't the first time Wenner has found itself in the middle of a battle over aggressive marketing. Earlier this year Wenner faced a lawsuit from several bands after placing their magazine spread next to cigarette advertising. A federal court dismissed those cases. Wenner also faced another lawsuit over using magazine covers on company schwag, such as t-shirts and tote bags. They settled that lawsuit.

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    Although the company has not yet been charged, an ex-Vice President and General Counsel for GlaxoSmithKline is facing charges today over the off-label promotion of the anti-depressant Wellbutrin. Lauren Stevens has been indicted by the Department of Justice for failing to tell the FDA that the company was indeed promoting the use of Wellbutrin for weight loss. The drug has not been approved by the FDA for treating weight issues.

    Lauren Stevens is accused of not providing the FDA with the true facts regarding GSK's off-label promotion of Wellbutrin, reports The New York Times. The DOJ charges that Stevens sent letters to the FDA saying the company did not promote Wellbutrin for any off-label use. The FDA asserts that Stevens made false statements that obstructed their investigation.

    Several major drug companies have been the focus of off-label investigations for some of their best selling drugs. During the FDA approval process, careful examination is made of both the safety and efficacy of a drug for its intended use. A drug company may not attempt to influence doctors to prescribe that drug for a use it has not been approved for.

    Some recent off-label cases include Allergan's promotion of Botox and Johnson & Johnson's alleged promotion of Risperdal, a drug approved to treat severe mental illness, for use in treating dementia in nursing home patients.

    GlaxoSmithKline itself has not yet been charged with a crime related to its promotion of the drug, reports The Times. However, the company has announced that it has reserved $400 million to pay for an expected settlement.

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    ‘Jawbone Death’: Merck Osteoporosis Drug Fosamax Blamed

    A civil trial is happening in Manhattan over Fosamax, a drug used by women with thinning bones. Judith Graves, 67, has sued drug giant Merck, claiming its drug Fosamax caused "debilitating jawbone deterioration," which required Graves to have five major operations, one of which required her to replace her jaw with bone from her arm.

    Merck, manufacturer of Fosamax, contends that Fosamax is not the cause of Graves' medical issues. The pharmaceutical company is no stranger to lawsuits. Merck argues that Graves' other prescriptions are the culprit. Graves was taking steroids for rheumatoid arthritis, among other prescriptions. Merck says the prescriptions weakened her body and caused a jaw infection and prevented her from healing properly. They dispute the claims made in the so-called "Jawbone Death" cases.

    Merck is facing lawsuits from 1,400 people who claim that Fosamax caused them to develop serious jawbone problems. According to The New York Times, Merck won an earlier case, but in another, the jury awarded a plaintiff $8 million, which a judge reduced to $1.5 million. Both sides are appealing that case.

    The Food and Drug Administration has recently been taking a closer look at Fosamax, which it first approved in the 1990's. While they have not established a clear link between Fosamax and jawbone death, they are concerned that they could be related.

    The drugs are designed to counter the loss of bone mass that accelerates in women after menopause.

    Dr. Margaret Seton, a rheumatologist at the Massachusetts General Hospital in Boston, said that before drugs like Fosamax, doctors were virtually helpless to try to counteract the bone mass deterioration. “When you have no drug and you’ve seen a patient and watched their spine crumble, that’s heartbreaking.”

    However as the lawsuits against Merck continue to mount, juries and researchers are left to answer the question as to whether Fosamax is doing more harm than good.

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    Rocking Horse Recall: Reins Wrap Around Kids' Necks

    Rocking Horse Depot has issued a voluntary recall of rocking horse toys due to a risk of strangulation. The rocking horse recall was announced by the U.S. Consumer Product Safety Commission and Rocking Horse Depot. Consumers are advised to stop using the rocking horses immediately. In addition, they should not be re-sold as that is a violation of the law.

    There are about 1,200 affected rocking horses that cause a danger due to the reins on the horse bridle which are long enough to form a loop around a child's head and neck. If the child gets caught in the loop, it can cause a serious risk of strangulation to young children.

    The CPSC has received a report of a near strangulation involving a 21-month old girl. The child became entangled in the reins at her neck. Her parents were able to free her without injury.

    The rocking horse recall involves the Rocking Horse Depot, of Buckeye, Arizona and their small, medium and large rocking horses with bridles. The horses, which were manufactured in Poland, come with a hardwood frame and a synthetic hide. The horse has a mane and tail, as well as a leather Rocking Horse Depot emblem on the right side of the saddle. The horses were sold at RockingHorseDepot.com from November 2006 through December 2009 for between $105 and $185.

    Consumers are advised to remove or cut the reins from the rocking horse to eliminate the strangulation hazard. Consumers with further questions about the rocking horse recall can also contact Rocking Horse Depot for instructions on how to remove the reins. They can be reached at (623) 302-6313 between 9 a.m. and 5 p.m. MT Monday through Friday, or at www.rockinghorsedepot.com.

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    Conn. May Sue Kirby Co. for the Hard Sell on Vacuums

    The Connecticut Attorney General's office has a little clean up work to do. The office has been asked by the state Department of Consumer Protection to sue a vacuum cleaner maker and its in-state distributors. The company, Kirby Co., has been accused by the state consumer protection agency of using aggressive, hard sell tactics and unethical business practices.

    One of the high-pressure tactics: sales reps refusing to leave a costumer's home, reports the New Haven Register. Other consumer protection violations include the failure to return the original contract when cancelled and a failure to inform customers of their right to cancel a contract within three days.

    Jerry Farrell Jr., the state Consumer Protection Commissioner, received complaints from consumers for the last two years regarding Kirby Co. and its affiliates, the Register reports. Consumer protection agencies like the Connecticut Department of Consumer Protection are often responsible for helping protect consumers. This includes accepting and investigating consumer complaints and enforcing consumer protection laws.

    "We believe it’s time for a clean sweep of their business policies and practices,” Farrell told the Register. “We also have numerous claims of consumers’ carpets that have been damaged during a sales call.”

    Kirby states it is ready to discuss the allegations with Attorney General Richard Blumenthal's office. The company denies all allegations, but says it too wants to clean up its sales standards. Kirby Co. spokeswoman Hallie Haniewich, says Kirby has proposed a plan to hold its distributors to a standard higher than required by Connecticut law. Haniewich said company officials were “disappointed to learn ... that despite this cooperation,” Farrell had asked Blumenthal’s office to sue Kirby and its affiliates.

    Attorney General Blumenthal may also take action against Kirby affiliates United Consumer Financial Services, a national sales finance company specializing in consumer retail installment sales contracts, as well as the Scott Fetzer Co., which owns UCFS, reports the Register.

    Blumenthal is still considering whether or not action against Kirby Co. by his office is necessary. In statement issued November 8, he said, “We are continuing to review these deeply disturbing allegations to determine what legal action is warranted.”

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    Rollerblade Recall: Inline Skates Need Repair

    Heads up, Rollerbladers! There is a Rollerblade recall. 

    Rollerblade USA has recalled their inline skates due to risk of injury. Apparently the frame mounting bolts as well as the wheel axle bolts may be loose when sold. This poses a risk to Rollerbladers because the wheels or frames on the skates can cause the user to fall, potentially causing serious injury. So far there have been 31 reports of loose bolts including one case involving a fall and a minor injury that necessitated medical assistance.

    Rollerblade USA and The U.S. Consumer Product Safety Commission have announced a voluntary recall of about 29,000 pair of Spark, Spitfire inline skates. The skates, manufactured in Thailand, Vietnam and China, were sold at sporting goods stores nationwide and online from September 2009 to July 2010 for between $80 and $160.

    Consumers are instructed to stop using the recalled Rollerblades immediately unless otherwise instructed. Don't turn around and put them on Craigslist either--it is illegal to resell or attempt to resell recalled products. Consumers should inspect all wheel-axle and frame-mounting bolts to ensure that they are sufficiently tight. Video instructions on bolt tightening and maintenance are available at www.rollerblade.com

    The specific Rollerblades recalled are:

    • Spark Pro, Men's (SKU# 00792200816), Black
    • Spark Pro, Women's (SKU# 007923007E2), Anthracite (Grey)
    • Spark 80, Men's (SKU# 00702800956), Black
    • Spark 80, Women's (SKU# 007029009A6), Anthracite (Grey)
    • Spitfire, Boy's (SKU# 00705500741), Black
    • Spitfire, Girl's (SKU# 007056007Y8), Silver
    • Spitfire S, Boy's (SKU# 00705700956), Black
    • Spitfire S, Girl's (SKU# 007058009A7), Anthracite (Grey)
    • Spitfire LX, (SKU# 00705000955), Silver

    For further information on the Rollerblade recall, consumers can contact Rollerblade USA at (800) 232-7655 between 9 a.m. and 5 p.m. EST Monday through Friday.

    Related Resources:

    Consumers Lose Right to File Class Actions?

    AT&T will be presenting arguments before the Supreme Court that could have a sweeping effect on a consumer's ability to file class action lawsuits. The potential victory would not be limited to cell phones but would also rope in any business that issues contracts to customers, including cable television and credit cards.

    The case is AT&T Mobility Services v. Concepcion. Lisa and Vincent Concepcion, on behalf of a class of consumers, sued AT&T alleging deceptive business practices. Specifically, the Concepcions argue that they were mislead by a promotion that offered discounted cell phones but charged sales tax on the full retail price of the phone. The cell phone contract, however, required that the dispute go to arbitration and not the courtroom. The problem with arbitration is that it does not lend itself to class-action style claims. Although a California federal district court and the Ninth circuit struck down the contract as a violation of public policy, a ruling the other way is not out of the question.

    "If the court goes down AT&T's oath, the consequences could be staggering. It could be the end of class action litigation ... virtually all class actions today occur between parties who are in transactional relationships with one another: shareholders and corporations, consumers and merchants, employees and employers. Because they are in transactional relationships, they are able to enter into arbitration agreements with class action waivers," Brian Fitzpatrick told the Wall Street Journal.

    A victory for AT&T would not extinguish the ability to resolve a dispute, but it would serve to take away the most powerful legal tool a consumer has against a large company -- joining together with other similarly interested consumers and strengthening their case. The beauty of a consumer class action also lies in its ability to bring smaller claims that would otherwise be a waste of time and resources.

    For their part in the AT&T class action, the telecom giant argues that the Federal Arbitration Act pre-empts any state contract law when the prohibition against class actions is coupled with arbitration.

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    Costco Gouda Cheese Contaminated with E.Coli in 5 States

    Everyone loves the free food samples available at Costco warehouse stores. But, according to the Food and Drug Administration and the Centers for Disease Control, there is one sample people should avoid right now: Gouda cheese. The FDA, CDC and Costco released statements November 4 warning that the Bravo Farms Dutch Style Gouda cheese, (Costco item 40654) available for sales and samples at Costco stores has been linked with an outbreak of E. coli infections.

    The Costco stores affected by the contaminated cheese include those in the states of Arizona, California, Colorado, New Mexico and Nevada. As of November 4, the FDA reports that as many as 25 people were infected with E. coli since mid-October. There have been 9 reported hospitalizations, but no deaths.

    Customers who have purchased the Bravo Farms Gouda cheese should not not eat it, directs the FDA. Anyone who has the contaminated cheese should return the cheese to the store where it was purchased, or dispose of it in a closed plastic bag and place in a sealed trash can to prevent people or animals, including wild animals, from eating it. The cheese may be returned to Costco for a full refund. Costco is also contacting customers by phone if there are records showing they may have purchased the cheese.

    Government agencies advise anyone with symptoms of E. coli infection to contact their doctor immediately. Symptoms of infection include diarrhea and abdominal cramps. Most people recover fairly quickly, but the infection can cause kidney failure, especially in young children and older adults. Healthcare providers are reminded by the FDA and CDC to report any suspected infection to state or local public health authorities right away.

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    There is a new sheriff in town. All Americans consumers now have someone watching their backs. Her name is Elizabeth Warren, aka the Consumer Czar, the head of the new consumer protection agency.

    Warren says the financial industry is putting up roadblocks. Of course she is speaking in metaphors when she says roadblocks. Warren is referring to the industry's actions to thwart recent efforts to establish an effective consumer protection agency.

    ABC News quotes the Consumer Czar at a recent speech she gave at the University of California, Berkeley, "We fought hard to get here, and those who tried to block the agency's creation have already said that they will be back. Every day, they spend money to find a way to cut back the agency's power -- even before its work has begun."

    So how exactly does Warren plan to combat these roadblocks? As chairwoman on the Congressional Oversight Panel, the purpose of the Consumer Financial Protection Agency is simple -- to simplify credit contract language and give consumers more protections. In the simplification and protection process, Warren hopes to avoid another financial crisis like the one the U.S. recently experienced. In addition to greater transparency, Warren also advocates for better data collection on the financial-sector activities as a method for identifying a problem before it gets out of hand.

    Like many other areas in need of regulation, lawsuits are also an approach promulgated by Warren to enforce fair and simple financial policies. Finally, using technology in various capacities was another avenue Warren wants to explore and employ in her battle to enforce consumer rights.

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    Chest Freezer Recall: Fire Hazard

    About 67,000 chest freezers are being recalled due to a possible risk of fire. The U.S. Consumer Product Safety Commission along with Haier and Black & Decker announced the voluntary recall after discovering that the circuitry can overheat and potentially cause a fire. So far 18 freezers have been reported as overheating, and there have been four fires reported.

    According to the recall, a capacitor in the freezer's circuitry can overheat, posing a fire hazard. There have been reports of minor property damage, consisting of smoke damage, damage to a wall, and food spoilage. No one has reported an injury from the recalled freezers.

    Consumers should immediately unplug and stop using recalled freezers immediately unless otherwise instructed. Consumers should not resell the recalled products as it is illegal to do so. They can contact the company to schedule an appointment for a free repair to the freezer.

    The recalled freezers are the Black & Decker BFE52 (sold at Walmart between January 2010 to September 2010) and the Haier ESNCM053E (sold at Amazon.com and other retailers from May 2010 to October 2010). The Black & Decker unit sold for around $150, while the Haier sold for between $220 and $290. The recalled freezers include serial numbers beginning with 1001, 1002, 1003, 1004, 1005, 1006 or 1007.

    The CPSC is interested in receiving reports that are either directly related to this product recall or involve a different hazard with the same product. Visit https://www.cpsc.gov/cgibin/incident.aspx to file a report or call one of the following numbers:

    • Firm's Recall Hotline: (877) 878-7579
    • CPSC Recall Hotline: (800) 638-2772
    • CPSC Media Contact: (301) 504-7908

    If you are seeking additional information, you can visit the firm's website at www.chestfreezerrecall.com.

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    Blue Cross Sued for Mich. Illegal Contracts

    What happens when an insurance company allegedly persuades hospitals to charge competing insurance companies higher rates?

    A class action lawsuit, of course.

    Blue Cross Blue Shield of Michigan is facing its second lawsuit over illegal contracts in the past month. The insurer is accused of using its market share for anti-competitive practices. Blue Cross allegedly used its dominant market share to get "most favored nation" status from hospitals.

    Michigan Attorney General Mike Cox and the U.S. Justice Department filed a federal lawsuit in October against Blue Cross. The suit alleged that the insurer illegally negotiated contracts with Michigan's hospitals that prevented the hospitals from charging competing insurance companies lower rates. The suit alleged that the anti-competitive acts left consumers paying higher insurance costs.

    The new lawsuit parallels the illegal contracts complaints made in October by the Michigan Attorney General and the Justice Department, The Detroit News reports. The Shane Group Inc. and Bradley A. Veneberg filed the lawsuit in federal court claiming that Blue Cross Blue Shield illegally inflated prices for health care services. Lead counsel David Fink said the lawsuit could include thousands of Michigan residents and businesses going back to 2007.

    Plaintiffs are seeking treble (or triple) damages, attorney's fees and an injunction prohibiting Blue Cross from either negotiating or enforcing "most favored nation" clauses in their contracts with hospitals. In addition, the lawsuit seeks the reformation of contracts and damages for violations of the Sherman Act. The lawsuit does not specifically detail the damages that the plaintiffs have allegedly incurred.

    Blue Cross contends that the lawsuit is without merit. "Negotiated hospital discounts are a tool that Blue Cross uses to protect the affordability of health insurance for millions of Michiganders," Blues spokeswoman Helen Stojic said.

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    Should Rental Car Companies Offer Recalled Vehicles?

    The Federal Trade Commission is under pressure to change regulations allowing rental car companies to rent out cars under recall. Consumer groups and New York lawmaker Charles Schumer want the FTC to make rental car company rules more in line with what car dealers face.

    Schumer asked the FTC to make a change in the rules, or he will address the problem with legislation, reports The Washington Post. "[I]f automotive dealers are not allowed to sell recalled vehicles without first fixing the safety issues, then rental car companies should be held to the same standard," he said.

    Consumer groups have recently petitioned the FTC to force Enterprise Holdings to change its policies that allow recalled vehicles to be part of the rental fleet. Enterprise Holdings, parent company of National, Alamo and Enterprise, is the largest rental company in America. The consumer groups say that not knowing whether a rental car is the subject of a recall is a safety threat to business travelers and other long-haul renters.

    The consistent Toyota recalls have put new pressure on this problem.

    According to The Post, Enterprise Holdings says it goes beyond what most car owners do with recalled vehicles. Unlike car owners who rarely stop driving a car that is the subject of a recall until it can be fixed, Enterprise says it grounds the cars until repairs are made. Enterprise spokeswoman Laura Bryant told The Post, "In most cases, we place a 'hold' on recalled vehicles so they are not rented until the recall work is completed."

    The requests for new regulations regarding recalled cars come after the successful suit against Enterprise for the deaths of two sisters, Raechel and Jacqueline Houck. As discussed in a prior post on FindLaw's Injured, the two rented a PT Cruiser which was under recall for a defective power steering hose that could cause engine fires. Steering problems caused the accident which killed both Raechel and Jacqueline Houck. Enterprise admitted its liability for the accident and a jury awarded the parents of the two victims $15 million.

    In their petition to the FTC, the consumer groups pushing for change claim Enterprise conducted "deceptive trade practices" by suggesting its vehicles are safe, well-maintained and reliable.

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    San Francisco Cracks Down on Happy Meals Toys

    Looks like there are going to be some unhappy meals in Northern California.

    San Francisco is cracking down on happy meals and the fast-food toys in them in an effort to combat childhood obesity. According to Reuters, the recently passed San Francisco ordinance would require the happy meal to be of certain nutritional value before being allowed to place a toy with the order. The San Francisco happy meal toys law is similar to one recently passed in nearby Santa Clara County.

    The ordinance will take effect on Dec. 1 and will only allow fast-food toys in those orders with less than 600 calories and contains fruit and vegetables and low-sugar beverages. San Francisco Supervisor Eric Mar says, "Our children are sick. Rates of obesity in San Francisco are disturbingly high, especially among children of color. This is a challenge to the restaurant industry to think of children's health first and join the wide range of restaurants that have already made this commitment."

    Whether the requirements will encourage healthy eating habits remains to be seen. Opponents of the ordinance are not happy about the meal requirement. In 2006 McDonald's spent $520 million in 2006 on happy meal toys advertising in an effort to lure children into their fast food establishments for the latest and greatest toy, Reuters reports.

    McDonald's and the National Restaurant Association aren't happy about the change to their wildly popular toy-filled kids meals, citing customer demand as their main reason for opposition. In addition to the potential financial impact, McDonald's argues that the toys are part of the overall family experience at a given chain. In the end, putting health into a happy meal is a welcome experiment, the success of which ultimately falls on the parents paying for the meals and not the children. The ordinance was passed 8-3.

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    GE Recall: 174,000 Dishwashers Recalled Due to Fire Hazard

    General Electric and the CPSC announced a recall of 174,000 GE dishwashers due to reports of a potential fire hazard. GE, which is based in Fairfield, Connecticut, is the largest maker of appliances for new homes in the country. No injuries due to the fire hazard have yet been reported.

    The fire hazard from the dishwashers occurs when water condensation drips onto an electronic control board, causing it to short-circuit, Bloomberg reports. Five fires were reported, four caused minor damage to the countertops where the washers were installed and one damaged nearby cabinets and caused minor smoke damage.

    GE also recalled dishwashers due to fire hazards in 2007.

    The GE recall covers the following models: Profile models made between July 2002 and December 2005, Monogram models made between January 2004 and December 2006. The recall covers all models in white, black, bisque, stainless steel and with some custom panels.

    The recalled dishwashers were sold in retail stores nationwide, appliance dealers and authorized builder distributors from July 2003 through December 2006 for between $750 and $1,400.

    Customers with recalled appliances may contact GE for a free in-home repair or a rebate of $200 for the purchase of a new GE Profile dishwasher and a rebate of $400 for purchase of a new GE Monogram dishwasher. For more information on the GE recall, customers can call the recall hotline at 1-877-275-6840. To check serial numbers on the machines, customers can also visit the GE website.

    A full list of the recalled GE Profile and Monogram models with serial numbers is available here.

    To report an incident or injury with this product, visit the CPSC website here.

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