Common Law - The FindLaw Consumer Protection Law Blog

December 2008 Archives

$165M Suit Filed Over Tennessee Coal Sludge Spill

Landowners in Tennessee have filed a $165 million lawsuit against the Tennessee Valley Authority over the spill of millions of gallons of coal ash sludge from a TVA plant near Knoxville. The December 22 spill "created a tidal wave of water and ash which destroyed several homes and ruptured a major gas line in a neighborhood located adjacent to the plant," according to the U.S. Environmental Protection Agency (EPA).

The $165M lawsuit was filed Tuesday by developers who claim that the coal ash sludge spill caused a number of home sales to fall through, according to Coal or "fly" ash sludge is waste byproduct produced from the combustion of coal in coal-fired power plants to generate electricity. According to the New York Times, the December 22 spill occurred when a "holding pond" containing decades' worth of coal ash sludge suddenly failed, flooding hundreds of acres of surrounding land in East Tennessee. A National Public Radio (NPR) report on the spill points out that "the disaster has raised lots of questions about whether regulations of coal ash are strict enough." The U.S. Environmental Protection Agency (EPA) does not classify coal ash as hazardous waste, so the ash is not regulated under any strict federal standard. States are free to regulate coal ash, but many do not, even though the waste may contain harmful metals like mercury and arsenic, according to NPR.

Home Prices Fall at Record Rate

Home prices in 20 major metropolitan areas in the U.S. fell 18 percent from October 2007 to October 2008, continuing a nationwide trend of plunging home values, according to a Standard and Poor's report released today.

The October 2008 Standard & Poor's/Case-Shiller Home Price Indices measure changes in residential housing values in 20 metropolitan markets across the U.S. According to, the report shows that "sunbelt cities suffered the most," with Phoenix home prices down 32.7%, Las Vegas down 31.7%, San Francisco 31%, and dramatic declines in home values in Miami, Los Angeles and San Diego. The Wall Street Journal reports that "The glut of housing remains as credit stays tight and the economic outlook remains bleak as mounting job losses have added more stress to U.S. households."

Airborne Pays $7M to Settle Investigation

The makers of Airborne have reached a $7 million agreement with the attorneys general of 32 states to settle an ongoing investigation over the labeling and marketing of the popular dietary supplement.

The manufacturers of Airborne -- a supplement that combines a number of vitamins, minerals and herbs -- claim that the product helps support the immune system. Although the agreement announced on December 16 involves marketing language that has already been removed from the product's packaging and advertising, the makers of Airborne also "agreed to certain prohibitions against making claims over the benefits of its products," and pledged to "not demand where a retailer puts its products in stores," Reuters reports.

According to a News Release from AirborneHealth, "The settlement with the Attorneys General - which involves no admission of wrongdoing on Airborne's part - is the last of three settlements involving similar claims regarding the older advertising and labeling of Airborne dietary supplements." In August 2008, the makers of Airborne reached an agreement with the Federal Trade Commission to pay a total of $30M into a settlement fund, as resolution of a class action lawsuit and related FTC charges of deceptive advertising and product labeling.

Wal-Mart Stores, Inc. and thousands of the company's workers have reached an agreement to settle 63 class action lawsuits over the retail giant's employment wage and hour practices.

According to a Wal-Mart Stores, Inc. Press Release issued Tuesday, the company will pay at least $352 million (and up to $640 million) to thousands of its current and former employees nationwide, and will "continue to use various electronic systems and other measures designed to maintain compliance with its wage and hour policies and applicable law." The New York Times reports that "[t]he dozens of wage-and-hour suits against Wal-Mart accused the company and its managers of various illegal tactics," including "forcing employees to work unpaid off the clock, erasing hours from time cards and preventing workers from taking lunch and other breaks that were promised by the company or guaranteed by state laws."

FDA Issues Warning on Weight Loss Products

More than 25 brands of weight loss pills and dietary supplements contain undeclared -- and potentially harmful -- pharmaceutical ingredients, and should be avoided by consumers, according to a warning issued Monday by the U.S. Food and Drug Administration.

The weight loss products involved in Monday's FDA Warning are promoted and sold on the internet and in stores nationwide (see the FDA Warning for a complete list of the affected products). According to the FDA, "Some of the products claim to be 'natural' or to contain only 'herbal' ingredients, but actually contain potentially harmful ingredients not listed on the product labels or in promotional advertisements. These products have not been approved by the FDA, are illegal and may be potentially harmful to unsuspecting consumers." The potentially harmful and undisclosed ingredients include controlled substances, drugs not approved for marketing in the U.S., anti-seizure medication, and suspected cancer causing agents, according to the FDA.

Nationwide DUI Crackdown Over December Holidays

Federal traffic safety officials announced last week that drivers age 21 to 24 have the highest involvement rates in traffic accidents involving alcohol consumption, as thousands of law enforcement agencies across the country prepare for a crackdown on DUI and DWI offenses over the December holidays.

The report, Fatalities in Crashes Involving Alcohol-Impaired 21- to-24-Year-Old Drivers During the December Holidays, was released last week by the National Highway Traffic Safety Administration (NHTSA), on the eve of a national law enforcement and public awareness effort that will continue through New Year's Day. According to an NHTSA Press Release, the "Drunk Driving. Over the Limit. Under Arrest" campaign involves thousands of law enforcement agencies nationwide, and is supported by more than $7 million in national television and radio advertising.

The NHTSA report on drunk driving concludes that: "In 2007, more than one-third (35%) of 21- to 24-year-old drivers involved in fatal crashes were alcohol-impaired. . . While drivers 21 to 24 constituted 11 percent of all drivers involved in fatal crashes in 2007, they constituted 18 percent of all alcohol-impaired drivers involved in fatal crashes, making them the most overinvolved age group for alcohol-impaired drivers."

New Nursing Home Rating System Launched by Fed. Gov't

Consumers and caregivers who are looking for quality nursing home care for their loved ones can now research and compare thousands of facilities nationwide, under a new website and five-star rating system released Thursday by the U.S. Department of Health and Human Services.

The new website Nursing Home Compare, from the Centers for Medicare & Medicaid Services (CMS), "provides information to help individuals, family members, caregivers, and those who assist them find and compare nursing homes, and make informed decisions about nursing home care," according to CMS. Nursing Home Compare provides users with detailed information on all Medicare and Medicaid-certified nursing homes nationwide.

CMS offers advice to consumers and caregivers who are searching for a quality nursing home: "Nursing homes vary in the quality of care and services they provide to their residents. Reviewing health inspection results, staffing data, and quality measure data are three important ways to measure nursing home quality. This information gives you a 'snap shot' of the care individual nursing homes give. One of the most important things to do is to visit the nursing homes you are considering. If possible, also contact your Long-Term Care Ombudsman or State Survey Agency before making a decision." You can also take along a copy of the CMS Nursing Home Checklist to help you when you're visiting and evaluating a nursing home.

Having a high mercury court, or having mercury poisoning, is a medical condition caused by over exposure to mercury. The element mercury is a metal which, at high levels, can produce toxic effects in humans and animals.

These toxic effects include damage to certain vital organs, such as the brain, lungs and kidneys. Over exposure to mercury can also result in acrodynia (pink disease), Minamata disease and Hunter-Russell syndrome.

Symptoms of mercury poisoning may include hair and weight loss, nail discoloration, headaches, insomnia, physical exhaustion, sensory impairment (vision, hearing, speech), and emotional disturbances.

How do people get mercury poisoning? People usually receive dangerous levels of mercury exposure from certain foods and consumer products. The main known sources of mercury include mercury amalgam fillings, cosmetics that contain mercury, certain vaccines, and fish.

Mercury poisoning is not as common as other toxic conditions, such as lead poisoning. However, although the FDA and other public health agencies/organizations have taken steps to limit consumer exposure to mercury, mercury poisoning and having high mercury count do still occur in the United States. Here are a few recent cases of mercury poisoning:

  • In December of 2008, actor Jeremy Piven quit a theater production of David Mamet's Speed-the-Plow due to high levels of mercury.

  • In January 2004, California Attorney General Bill Lockeyer filed suit against manufacturers of tuna, seeking an injunction and civil penalties for a failure to warn consumers that their products contain dangerous mercury compounds. Ultimately, the Superior Court of California found the Attorney General's suit preempted by federal law. Specifically, the FDA's prior regulatory actions took precedence over California's attempts to regulate tuna.

  • In 2007, a New Jersey woman, who ate almost nothing but tuna between 1999 and 2004, sued Tri-Union Seafoods, makers of Chicken-of-the Sea brand tuna. Her lawsuit sought damages from harm she allegedly sustained from consuming methylmercury and other harmful compounds. "Sorry, Charlie," said a federal appeals court to Tri-Union in 2008. Because the FDA has only issued a consumer advisory regarding mercury, as opposed to a full-blown rule or regulation about the subject, plaintiff's suit is not preempted by the FDA's "regulatory scheme." This case was sent back to the federal trial court for further litigation.

There is a good chance that the final outcome of the Tri-Union will impact on the viability of mercury poisoning cases brought by future plaintiffs.

If you suspect that you may have mercury poisoning or high mercury count, consult a medical professional. If your doctor confirms this condition, you may have some legal rights for any harm you have suffered.

Be sure to consult a competent toxic torts lawyer who has experience proving toxic torts and dealing with expert medical witnesses.

New Credit Card Protections Approved for Consumers

Consumers will enjoy enhanced safeguards from the deceptive practices of credit card companies -- including protection from unexpected interest rate hikes and late fees in many cases -- under new federal regulations.

The new rule announced Thursday, and expected to be approved shortly by the Federal Reserve, "bans practices often cited as unfair to consumers, such as raising the interest rate on an existing credit card balance when the consumer is paying the credit card bill on time," according to a Thursday Press Release from the Office of Thrift Supervision, a division of the U.S. Department of the Treasury. Under the new rules, consumers must also be given reasonable time to make credit card payments, and card companies are prohibited from using payment allocation methods that unfairly maximize interest.

Reuters reports that "In 2007, Americans used an estimated 694.4 million credit cards with Visa, MasterCard, American Express and Discover logos." According to the Washington Post, the new rules "hand a victory to consumer groups who have long complained of lax oversight of the $970 billion industry," and "the credit card industry was not able to beat back the most sweeping overhaul in decades."

Cheri Olvera, Brian Giles and Suing After a Breakup

San Diego Padres outfielder, Brian Giles, has been sued by his former girlfriend, Cheri Olvera. In Olvera's $10 million suit, filed in San Diego Superior Court, she alleges breach of an oral cohabitation agreement after the two broke up. 

According to Olvera, Giles was violent, and she suffered battering and abuse throughout their relationship. The abuse was so bad that Olvera claims to have had a miscarriage. A video released by Olvera's attorney, Cary W. Goldstein, purportedly shows the outfielder attacking Olvera. 

The domestic violence reportedly began when the couple began living together in a “marriage-like relationship from in or about 2002 to April 2008.” Although the two were engaged, Olvera did not marry Giles because of the violence. Although they did live together, California is not a common law marriage state.

Although there was no formal prenuptial agreement, the complaint alleges that Giles agreed to provide for Olvera and her daughter financially while she devoted herself to his needs. Olvera also maintains that they had an oral agreement that if their relationship ended, Giles' assets would be equitably divided between the former couple.

In a report of the Top 10 Legal Issues of 2008 by, distribution of assets after a relationship ends was included as a major legal issue faced by consumers this year.

Mattel, States Reach $12M Settlement on Lead in Toys

Mattel, Inc., the largest toy manufacturer in the world, and the attorneys general of 39 states have agreed on a $12M settlement over excessive levels of lead in children's toys.

The settlement agreement announced Monday relates to a consumer scare in 2007, when more than 2 million toys manufactured by Mattel, Inc. and its subsidiary, Fisher-Price, Inc. were recalled due to excessive levels of lead in the surface coating and sub-surface layers of the toys, according to a Press Release from the Massachusetts Attorney General, issued Monday.

Reuters reports that "The states will use the money to educate consumers on the dangers of lead paint and to test children for lead exposure. The United States is lowering its acceptable level of surface lead paint in toys by 85 percent, starting in August. 2009. As part of the agreement with the states, Mattel has agreed to meet that standard by Nov. 30."

Supreme Court OKs 'Light' Cigarette Lawsuits

The U.S. Supreme Court ruled on Monday that tobacco companies may be sued in state court over the allegedly deceptive advertising of "light" cigarettes.

The original lawsuit in Altria Group, Inc. v. Good was filed by Maine residents who were longtime smokers of Marlboro Lights and Cambridge Lights cigarettes, manufactured by defendant Philip Morris USA and its parent Altria Group, Inc. The plaintiffs allege that Philip Morris's advertising is deliberately deceptive in that it conveys the message that "light" cigarettes deliver less tar and nicotine to consumers than regular brands. In Monday's 5-4 decision, the U.S. Supreme Court held that the plaintiffs' claims under Maine's Unfair Trade Practices Act were not pre-empted by the Federal Cigarette Labeling and Advertising Act, and the case may proceed in state court.

According to Reuters, Monday's decision from the nation's top court "could affect some 40 suits around the country seeking billions of dollars." The Los Angeles Times reports that, although in 1998 tobacco companies agreed on a $206 billion settlement over healthcare costs associated with smoking, that agreement was with 46 states and does not prevent the filing of private lawsuits.

What is a Ponzi Scheme?

The Ponzi scheme was named after Charles Ponzi, who became notorious for using the fraudulent investment technique in the early 1900s. The recent arrest of Bernard Madoff shows that the Ponzi scheme is alive and well.

A Ponzi scheme is a sham investment operation. Although there are countless variations of fraudulent investment operations, the basic Ponzi scheme involves paying investors very high returns from of the deposits of subsequent investors, instead of paying them from the profit of a legitimate business.

According to the SEC, the Ponzi scheme uses "the 'rob-Peter-to-pay-Paul' principle, as money from new investors is used to pay off earlier investors until the whole scheme collapses." Last week, the SEC charged Bernard L. Madoff and his investment firm, Bernard L. Madoff Investment Securities LLC, with securities fraud for a multi-billion dollar Ponzi scheme that he perpetrated on advisory clients of his firm.

Looking to a Ponzi scheme's investors will not always reveal the fraud. For example, Madoff's victims included well-known people (Stephen Spielberg), Swiss banks, and charitable organizations.

Instead, you can avoid Ponzi Schemes by using these investment guidelines:

1) As with all investments, exercise due diligence in selecting investments and the people with whom you invest.

2) Make sure you fully understand the investment before you invest your money.

3) Get independent investment advice.

4) Look out for investment vehicles that offer "guaranteed profits" and/or "secret" investment formulas. Remember the old adage: If it seems too good to be true, it probably is.

Professional sports and scantily-clad women go hand-in-hand, or so it might seem if you've ever seen a beer commerical or a pro cheerleader. Apparently, when it comes to pro sports fans, however, teams prefer their women in not-so-provocative attire. Case in point: Sondra Fortunato and the New York Giants.

In Week 15 of NFL play, Sondra, the chesty self-proclaimed Miss Football, was ejected from the Giant's loss to Dallas at the Meadowlands. Ms. Football was wearing a skimpy Santa outfit and carrying a bag containing two fan sings that read "Go Giants" and "Have a No Guns Christmas".

According to a New York post columnist, Fortunato was lectured by Giant's officials, who stated that she was ejected for violating the stadium's rules prohibiting signs and baggage. They had no comment about Sondra's getup.

Which brings us to the moral of this story: Fans do not enjoy unbridled First Amendment rights of free speech in professional sporting events. Basically, any kind of expression, whether it's a sign or an article of clothing, can be reasonably regulated.

Why? A couple of reasons:

1) Pro sporting arenas are not "public forums" that are protected by the U.S. Constitution. Citizens enjoy the freedom to say just about anything in a true public forum, like a city street. However, in a sports stadium, where people have to pay $50 to get in, you have a greatly diminished right to freely express yourself.

2) Teams and their officials are not "state actors" that are obligated to protect your constitutional rights. Private entities, like professional sports teams, can make their own rules, as long as those rules serve some reasonable goal, like safety. So, a rule prohibiting signs because they may contain profanity which could be inadvertently televised or viewed by minors, are legitimate restrictions on your First Amendment rights.

Does all this lawyerspeak mean you can't wear that revealing ensemble to the next football game? It depends. 

Although the Meadowlands has no formal policy prohibiting skimpy clothing, the inference that Sondra's attire contributed to her removal from the stadium is logical. Let's face facts: provocative clothing often attracts negative attention.  Just ask the woman who was thrown off an airplane because her clothes were too sexy to fly. Or the student who was put in detention for wearing a t-shirt with an anti-gay slogan.

FindLaw doesn't have a simple answer for the skimpy clothing question, but the following insight may provide some guidance: sporting events are usually filled with children and rowdy, intoxicated men. Dress accordingly.

Highway deaths could reach their lowest level since LBJ was in the White House (the Edsel was on the road then)

The National Highway Traffic Safety Administration has reported that auto fatalities dropped almost 10 percent in 2008 through October.

Certainly, a number of factors contributed to this declining trend. The high price of gas in most of '08 meant fewer drivers on the road and fewer car accidents. Public safety groups and politicians also helped by urging people to slow down and drive the speed limit to save gas.

Although it's hard to tell precisely who or what is responsible for the reduction in auto-related deaths, state and federal lawmakers should be on the thank you list. A plethora recently-enacted car safety laws has surely made a positive impact on highway safety. Here are a few of the legislative initiatives:

Driving while phoning - California isn't the only state with driving-while-phoning laws. In fact, over a dozen states have a ban on handheld talking while driving.

Tough DUI/DWI Laws - Drunk driving, drinking while driving, driving while drinking, driving while intoxicated, call it what you want, but states are cracking down hard on autos and booze, the #1 cause of traffic accidents and fatalities.

Seat Belt and Child Restraint Violations - Seatbelts save lives, period, which is why so many states have laws on the books that require seatbelts for all auto drivers and passengers. Requiring child safety seats for kids under a certain age and weight is another trend in legislation that has helped bring down auto deaths this year.

These latest figures from the NHTSA were collected through October. With only a few weeks left in 2008, it will be interesting to see if the U.S. can stay on track with the reductions. So, buckle up, don't drink and drive, stay off the phone and you should arrive alive.

Child Obesity Studies Pave Way for Junk Food Ad Lawsuits

The United States is the fattest nation in the world. We're also the most litigious. It's time for these two giants to meet.

Two recent studies related to childhood obesity point to new hope for health-related lawsuits against "Big Fat" companies, like McDonalds, KFC and other makers of fast-food. In particular, junk food advertising may be on the chopping block.

According to a study conducted at the University of Dundee in Scotland, kids who have a gene linked to an increased risk of obesity often display a tendency to eat more fattening foods. Seems logical, but read on.

Yet another new study published in the Journal of Law & Economics reports that banning junk food commercials would reduce the number of obese young children by 18 percent. Some experts believe this is the first national study to show fast-food TV commercials have a big impact on childhood obesity. Given that one third of U.S. kids are overweight or obese, according to the Center for Disease Control and Prevention, a reduction of this magnitude would be huge in terms of promoting public health.

In the past, fast-food litigation has garnered a lot of publicity but not much success in the courtroom.

In 2002, a New York man filed a class action product liability suit against McDonalds, Burger King, KFC, Wendy's for selling fatty foods that caused obesity and a number of other health problems.  In 2006, a Maryland doctor sued Yum! Brands over their use of transfat in KFC food. Both suits were ultimately dismissed.

According to law professor Anthony Sebok, product liability lawsuits against 'Big Fat' are not effective because it is difficult to show that junk food as a product is defective. "It is also hard to convince a jury that the lack of explicit warnings is a problem; everyone knows junk food is bad for you," Sebok said.

Instead of claiming a defective product, targeting junk food advertising may be a successful legal strategy. "A theory under which youth advertising is a form of actionable fraud already exists." Sebok explains. "If the facts are there to support it, such a theory could be used against Big Fat, too. But the question is whether the facts are there."

The two new obesity studies suggest that facts are now available to support a theory that junk food ads aimed at youths is fraudulent. Here are just some of the combined facts:

  • The gene linked to obesity, named FTO, was discovered in 2007, a year after the latest fast-food suit was dismissed.

  • People with FTO gene tend to overeat high-calorie foods.

  • Fast food commercials account for as much as 23 percent of the food-related ads kids see on TV.

  • Youths are impressionable and usually receive special consideration in court.

Courts have regulated the advertising of certain dangerous products. Alcohol, firearms and tobacco products all carry some form of advertising restriction. Although further studies are necessary to fully explore the theory, the U.S. may soon bear witness to some kind of regulation of fast-food/junk food advertisements. At very least, we should expect to see someone try this tactic in court.

Commission to Obama: Step Up Cybersecurity Efforts

Cyberspace represents a major challenge for national security, and a comprehensive and inclusive cybersecurity strategy from the Obama administration is needed in order to protect the country's online infrastructure, according to recommendations from a committee of cybersecurity experts, released Monday.

The Center for Strategic and International Studies (CSIS) Commission on Cybersecurity authored the report: Securing Cyberpace for the 44th Presidency. According to the CSIS home page, "the Commission's three major findings are: 1) cybersecurity is now one of the major national security problems facing the United States; 2) decisions and actions must respect American values related to privacy and civil liberties; and 3) only a comprehensive national security strategy that embraces both the domestic and international aspects of cybersecurity will improve the situation."

The Washington Post reports that Monday's recommendations from the commission of computer security experts "follow a series of cyber security breaches at some of the nation's most sensitive computer systems," including intrusions at NASA and the departments of Defense, State, Homeland Security, and Commerce within the last year. A Forbes article suggests that the government should foster an open relationship with the private sector in order to best protect the country's critical cyber-based infrastructure.

Blackwater Employees Indicted on Manslaughter Charges

Employees of Blackwater Worldwide, a U.S. contractor hired by the Department of State to provide personal security services in Iraq, have been indicted by a federal grand jury on manslaughter charges. They are accused of killing unarmed Iraqi civilians in Baghdad at the Nisur Square traffic circle on September 16, 2007. Read the Indictment: U.S. v. Paul Alvin Slough, et al.

FDA Officials Warn on Asthma Drug Risks

Certain inhaled asthma medications may cause the risk of death to asthma sufferers, and should not be used by people under 18 years of age, according to statements released Friday by officials with the U.S. Food and Drug Administration (FDA). The agency will conduct a comprehensive review of asthma drug safety later this month.

The warnings apply to inhaled asthma drugs that contain "long-acting beta agonist" (LABA) medication. These include Advair, Foradil, Serevent, and Symbicort. Reuters reports that "Staff in the Food and Drug Administration's drug-safety office unanimously have recommended withdrawing clearance of all long-acting beta agonist drugs (LABAs) for children under 18 amid evidence of an increased risk of asthma-related deaths and asthma attacks." And the drug safety officials "urged removing the approval of Serevent and Foradil for asthma in people of all ages," according to Reuters.

The New York Times reports that "Sudden deaths among asthmatics still clutching their inhalers have fed the debate" over the safety of asthma medications,"but trying to determine whether the deaths were caused by patients’ breathing problems or the inhalers has proved difficult." In November, the FDA issued an update on the safety of asthma medications, announcing that it had asked the manufacturers of Advair, Brovana, Foradil Aerolizer, Perforomist, Serevent, and Symbicort "to provide information regarding controlled clinical studies conducted with these products to further evaluate their safety."

One in Three Toys Contain Toxins, Study Finds

About one in three children’s toys contain some level of harmful chemical substances like lead, and children’s jewelry continues to show the highest contamination levels, according to researchers with the Ecology Center, a nonprofit environmental organization based in Michigan.

In its second annual study, the Ecology Center tested more than 1,500 popular children’s toys for harmful substances like lead, cadmium, mercury, and arsenic. Among the findings, according to a Press Release from the Ecology Center: “one-third of the toys tested had "high" or "medium" levels of chemicals of concern this year. Lead was found in 20 percent of the toys tested, including 54 products (3.5 percent) that exceeded the 600 parts per million (ppm) state legal limit set last year and 164 (10.7 percent) above the American Academy of Pediatrics recommended ceiling of 40 ppm.” According to the study, children’s jewelry was five times as likely to contain harmful levels of lead, compared with other types of children’s toys and accessories. The Ecology Center has also ranked its Best Toys and Worst Toys for this holiday season.

Report: College Education Costs, Student Loans Skyrocket

Rising college tuition costs mean that higher education is getting further out of financial reach for many Americans, and the popularity of student loans has skyrocketed in recent years, according to data released Wednesday by a national public policy center.

In recent years, steep rises in the cost of a college education have well outpaced increases in salaries and family incomes, especially for middle-income and low-income families, according to Measuring Up 2008: The National Report Card on Higher Education, from the National Center for Public Policy and Higher Education. Results of the report also show that the rate of borrowing to pay for college has more than doubled over the last 10 years, and that lower-income families receive less money in grants and other financial aid that might cover the cost of college education.

The New York Times reports that, from 1982 to 2007 “published college tuition and fees increased 439 percent . . . while median family income rose 147 percent.” And according to the Wall Street Journal, “hefty tuition increases are on the drawing boards in many states, while private student lending has shrunk sharply amid a broader credit crunch. Together, the pressures are threatening to restrict access to higher education at a time when the economic crisis is driving more Americans to seek new degrees or additional training, a common reaction in a downturn.”

Medical residents' on-the-job fatigue contributes to accidents and medical errors, jeopardizing patient safety, so the work schedules of these doctors-in-training should be restricted to reduce the risk of mishaps, according to a report released Tuesday by the Institute of Medicine of the National Academies.

The report Resident Duty Hours: Enhancing Sleep, Supervision, and Safety, authored by a committee of medical and scientific experts, examines the work hours of medical residents and the resulting impact on their safety as well as the safety of their patients. An online summary of the report states that "revisions to medical residents' workloads and duty hours are necessary to better protect patients against fatigue-related errors and to enhance the learning environment for doctors in training." Specific recommendations include allowing residents to work no more than 16 hours straight, increasing the amount of mandatory off days for residents, and restricting their "moonlighting" work time.

According to a News Release from the National Academies, announcing the release of the report, the committee "also called for greater supervision of residents by experienced physicians, limits on patient caseloads based on residents' levels of experience and specialty, and overlap in schedules during shift changes to reduce the chances for error during the handover of patients from one doctor to another."

Consumers who receive prerecorded telemarketing calls (or "robocalls") must be given the chance to opt out of future calls from the soliciting business or charity, under a new Federal Trade Commission (FTC) rule that took affect Monday.

According to Monday's announcement from the FTC, "Prerecorded telemarketing messages are permitted only in limited circumstances – only when the caller has an established business relationship with the consumer being called." Now, consumers must also be offered a "quick and easy way to opt-out of receiving future calls," whether the "robocall" is answered by a person or by an answering machine.

An August 2008 FTC News Release announcing the telemarketing rule changes stated that any prerecorded telemarketing call must "disclose at the outset of the call that the recipient may ask to be placed on the company's do-not-call list at any time during the message," by making "an automated interactive voice and/or keypress-activated opt-out mechanism available during the message that adds the phone number to the company's do-not-call list and then immediately ends the call." The new rules are amendments to a federal regulation called the Telemarketing Sales Rule (see the complete text of the Federal Register Notice on the Telemarketing Sales Rule amendments [PDF file]).

The 'MySpace Suicide' Case, Social Networking, and the Law

A suburban Missouri mother has been convicted of three misdemeanors for her part in creating a phony persona on MySpace, actions that set in motion a series of events that ended in the suicide of a teenage girl. The case has raised questions about the potential dangers of social networking, and the legal limits of user and website liability for fraudulent behavior.

Lori Drew, a 49-year-old Missouri mother, was convicted on November 26 of three misdemeanor charges stemming from her role in creating a phony online identity, and using it to correspond with thirteen-year-old Megan Meier. According to Reuters, "Prosecutors say Drew and others created the fake MySpace persona of a 16-year-old boy to woo Meier for several weeks, then abruptly ended the relationship and said the world would be better off without her." Meier committed suicide shortly after the fictional suitor's last messages were posted, in October 2006. Reuters reports that Drew could be placed on probation, or may face up to three years in prison for the misdemeanor convictions.

Although Drew was acquitted of the most serious charges she faced in the federal district court trial, experts in cyberlaw and technology predict that the outcome of the case could shape the future of criminal liability for wrongdoing on social networking websites. The Washington Post reports that Drew's conviction -- essentially for violating MySpace's requirement that new users submit truthful information when signing up -- "expands the federal Computer Fraud and Abuse Act, which was passed in 1986 as a tool against hackers, to include social networking Web sites." A Chicago Tribune editorial points out that according to the verdict, consumers' violation of certain website "terms of service" could now result in jail time. And the Los Angeles Times asks whether social networks are doing enough to protect their users.

Vehicle "Top Safety Picks" for 2009 Announced

Ford and Volvo combined to receive 16 of the 72 "Top Safety Pick" Awards for 2009, announced today by the Insurance Institute for Highway Safety (IIHS). The award is given to vehicles that do the best job of protecting drivers and passengers in a variety of crash tests.

According to an IIHS News Release announcing the "Top Safety Pick" winners, the 72 awards for 2009 "is more than double the number of 2008 recipients and more than 3 times the number of 2007 winners." The IIHS's Top Safety Pick "recognizes vehicles that do the best job of protecting people in front, side, and rear crashes based on good ratings in Institute tests. Winners also have to have electronic stability control (ESC), which research shows significantly reduces crash risk," says the vehicle safety organization. (See the IIHS News Release for a list of all 72 winners of the 2009 "Top Safety Pick" Award.)

The Wall Street Journal reports that "For consumers, the longer list of top-rated vehicles means buyers have a wider range of choices. . . The main reason for the rapid improvement is that car makers have been working aggressively to turn safety into a selling point. For many car buyers, crash-test performance has moved ahead of creature comforts, styling, and horsepower on the list of must-have features."