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PVC and Dangerous Chemicals in Children’s Toys

Polyvinyl chloride (PVC) is a soft vinyl plastic that often contains lead and phthalates, and the production or destruction of PVC releases cancer-causing dioxins into the environment. Products that contain PVC include flexible plastic toys (e.g., rubber duckies, dolls, beach balls, infant bath books), bibs, rest mats, inflatable swimming pools, garden hoses, raincoats, wall paneling and flooring, window blinds, cosmetics, shower curtains, crib bumpers, imitation leather, and food packaging. Health concerns associated with PVC include cancer, birth defects, reproductive and developmental disorders, low sperm count, undescended testes, premature puberty, and liver dysfunction. Despite the dangers of these chemicals, they are not required to be approved for safety before they are placed in products that can end up in children’s mouths, schools, and homes.

According to a Daily Mail article, a recent German study revealed that many armbands used to help children swim, contain cancer-causing chemicals. The article delved into a German study, where tests were conducted using an inflatable beach ball, a pair of swimming armbands and two bathing rings, all of which are made with PVC. A small piece of material from each sample was analyzed using a variety of material analysis techniques. The researchers then investigated the molecular make-up of the distinctive smells emanating from the pool toys. They extracted detectable odors from each sample using solvent extraction and high vacuum distillation methods, and then identified the main odorants using a combination of sensory and common analytical approaches. Between 32 and 46 odors were detected in each sample, of which up to thirteen were quite intense. The researchers also found many dangerous organic solvents such as Cyclohexanone, Isophorone, and Phenol. These chemicals have significant dangers: Cyclohexanone can be harmful if inhaled, Phenol has been shown to affect hormone balance and affect genes in a way that could fuel tumor growth, and Isophorone is a category two carcinogen, which means that this is a suspect substance in the development of cancer in humans. The study further revealed that children can be affected simply by smelling the arm bands’ rubbery odor. The more pungent the smell, the higher the risk. This also holds true for other strong-smelling products such as inflatable beach balls and bathing rings.

The United States Department of Health and Human Services has determined that PVC is a known carcinogen. Studies show that people who have inhaled PVC demonstrated an increased risk of liver, brain, lung cancer, and some cancers of the blood have also been observed. Children are likely more susceptible to PVC-induced cancer than adults. In addition, PVC contains a hormone disrupting chemical called phthalate, which has been linked to asthma, obesity, and lowered IQ in children. Phthalates migrate out of PVC products when they are exposed to heat and can be absorbed through one’s skin or taken in orally—such as when kids handle plastics and then put their hands in their mouths. Producing PVC pool toys also takes a toll on the environment. PVC factories release cancer-causing dioxin as a by-product, and a recent CNN documentary, reported that residents in one Louisiana town near a PVC-production facility had dioxin levels three times higher than the national average. As a result, residents were suffering from higher rates of cancer, kidney problems, and reproductive disorders.

If you or a loved one has been harmed by a defective product or device, please contact Kershaw, Cook & Talley at (916) 779-7000.

Help Avoid a Motorcycle Accident With These Riding Safety Tips

While fun to ride, motorcycles present a heightened risk of injury due to a relative lack of protection. According to the Insurance Institute for Highway Safety, motorcyclists face a risk of crashing 30 times greater than drivers of cars.  Moreover, nearly half of all motorcycle-related fatalities result from single-vehicle crashes.

Many motorcyclists nevertheless manage to ride their entire lives without injury. The key is to be prepared in order to minimize risk. Consummerreports.org offers the following tips for avoiding injury while riding motorcycles:

  • Pick a motorcycle that fits your skill level and body type. An ultra high-performance motorcycle might not be the best fit for beginners due to their increased power and speed. Further, when seated, you should be able to rest both feet on the ground and the handlebars should be easily within reach. If the motorcycle feels too heavy for you to get on and off the center stand, it probably is.
  • Buy antilock brakes. A proven lifesaver, antilock brakes have shown to reduce the risk of a fatal crash by 37 percent. According to Bruce Biondo of the VA Dept. of Motor Vehicles, “[n]o matter what kind of rider you are, ABS can brake better than you.”
  • Take a Course and Practice. A Motorcycle Safety Foundation (MSF) course can teach you the basic and advanced techniques that minimize risk on the road, such as evasive emergency maneuvers. Also, an approved safety course might make you eligible for an insurance discount. In fact, some manufacturers of motorcycles offer credits toward the cost of new motorcycles if the rider signs up for an MSF course.
  • Wear a helmet. Riders without a helmet are 40 percent more likely to suffer a fatal head injury in a crash and are three times more likely to suffer brain injuries than those with helmets.  When Texas repealed its helmet law, the State saw a 31 percent increase in motorcycle fatalities.  Arkansas suffered a 21 percent increase when it repealed its helmet law.  In addition to cutting down on wind noise and fatigue, most modern helmets are lightweight, strong, and comfortable.  When choosing your helmet, a full-face option is the best choice and should be replaced every five years or sooner if it’s been in a crash or damaged, according to The Snell Memorial Foundation which tests helmets and recommends standards for the industry.
  • Avoid bad weather. Slippery conditions increase the risk of danger by reducing a rider’s margin for error. If you absolutely have to ride in the rain, remember that the time just after the beginning of precipitation is often the most dangerous.
  • Ride on the defensive. With the today’s common phone use and texting behind the wheel, you must remain extra vigilant. A recent study by the University of South Florida’s Center for Urban Transportation Research found that car drivers are at fault in 60% of collisions involving a car and a motorcycle. Watching closely for irregular movements in surrounding cars can be the difference between safety and severe injury.

While prevention is obviously preferable, sometimes accidents happen regardless of how careful and alert one may ride. If you or a loved one has been harmed in a collision while riding a motorcycle, please contact Kershaw, Cook & Talley for a free case evaluation at 888-997-5170.

Our office is located in Sacramento and we serve clients throughout California.

Unfixed Recalled Vehicles on the Roads in the United States

According to an article on Mlive.com, a recent Carfax study reports that one in four vehicles within the United States is operating with an unaddressed safety recall. The report stated that the number of recalled vehicles on the road today totals over 63 million vehicles, a figure approximately 34% greater than the number of recalled vehicles on the road in 2016.

In the event of a safety recall, the protocol is for the manufacturer to alert the National Highway Traffic Safety Administration (NHTSA), which then notifies vehicle owners that their vehicles are defective and that their local authorized dealership may perform the necessary repairs at no cost to the owner.

Recent Notable Recalls:

A significant portion of the recalled vehicles on the road are attributable to the 2016 Takata airbag recalls, which spanned 22 brands, 19 automakers and 42 million vehicles. Other notable recent recalls include:

  1. 978,000 2011 Hyundai vehicles due to the propensity for vehicle seatbelts to detach;
  2. February 2017 recall of more than 363,000 Nissan Altima vehicles, 2015-2017 models, due to the tendency for one of the back door latches to open when the rear window is lowered;
  3. Volkswagen’s recall in January 2017 of over 600,000 Audi vehicles for either a) the tendency for the 2013-2017 A5s, A5 Cabriolets and Q5 SUVs to overheat and catch fire due to the risk of blockage of an electric coolant pump (involving approx. 350,000 vehicles) or b) the tendency of 2011-2017 of G5 SUVs to sustain sunroof damage that allows water to soak into foam around the inflaters of the G5’s airbags, creating a risk of airbag rupture that sends shrapnel flying inside the vehicles (involving approx. 235,000 vehicles); and
  4. BMW’s recall of model years 2011-2013 X5 SUVs, 2011-2014 X6 SUVs, and 2011 X6 Active Hybrid due to the risk of driveshaft joints failing, which may cause the vehicles to stop moving and subject drivers to increased crash risks.

If you or someone you know has been harmed as a result of a defective vehicle or product, please contact our office at (916) 779-7000.

Plaintiffs’ Case Moves Forward in Lumber Liquidators Litigation

On April 21, 2017, Judge Trenga in the United States District Court for the Eastern District of Virginia entered an order denying in part summary judgment in In re: Lumber Liquidators Chinese-Manufactured Flooring Products Marketing, Sales Practices and Products Liability Litigation, which involves Lumber Liquidators’ alleged marketing and sales of Chinese-manufactured composite laminate wood flooring products (“Products”) that contained excessive levels of formaldehyde.  The California Air Resources Board (“CARB”) lists formaldehyde as a toxic air contaminant with no safe level of exposure and has set comprehensive and strict formaldehyde emission standards.  Under the CARB-approved Airborne Toxic Control Measure to Reduce Formaldehyde Emissions from Composite Wood Products (“ATCM”), Cal. Code Regs. tit. 17, § 93120, regular medium density fiberboard (“MDF”) and “thin” MDF products, which are at issue in the Lumber Liquidators case, should emit no more than 0.11 ppm and 0.13 ppm of formaldehyde, respectively.  Cal. Code Regs. tit. 17, § 93120.2.  While CARB standards are only applicable in California, Lumber Liquidators represented on a nationwide basis that its Products were CARB-compliant.  It represented on its website that “NO formaldehyde” was in its hardwood floors.  In re Lumber Liquidators Chinese-Manufactured Flooring Prods. Mktg., Sales Practices and Prods. Liab. Litig., MDL No. 1:15-md-2627 (AJT/TRJ), 2017 U.S. Dist. LEXIS 61362, at *42-43 (E.D. Va. Apr. 21, 2017) (“Lumber Liquidators”).  In addition, even after CARB notified Lumber Liquidators that certain tested Products had failed CARB’s emission testing in October 2013 and a 60 Minutes segment on March 1, 2015 alleging that Lumber Liquidators’ Products contained dangerous levels of formaldehyde, the CEO of the company represented that Products were “100% safe” and complied “‘with applicable regulations . . . including California standards for formaldehyde emissions for composite wood products . . . .’”  Id. at *43-44 (citations omitted).  Lumber Liquidators ultimately removed its flooring Products from the market in May 2015.

Lumber Liquidators filed a motion for summary judgment motion on August 1, 2016 and it was heard by the Court on September 13, 2016.  The Court found that “the evidence is sufficient for a fact finder to conclude that Lumber Liquidators knowingly misrepresented within a nationwide marketplace that its flooring had ‘NO formaldehyde’ and was CARB compliant,” which, under Plaintiff’s theory of the case, “allowed [Lumber Liquidators] to charge a higher price for its Product than the Plaintiffs would have otherwise had to pay.”  Lumber Liquidators, 2017 U.S. Dist. LEXIS 61362, at *52.  Plaintiffs are asserting a “price distortion” theory of injury, arguing that Lumber Liquidators would not have been able to sustain prices charged for its Products had it told the truth about them and Plaintiffs are entitled to the difference in value between the amount charged and what they actually received.  Id. at *48.  In addition, while the Court also found that, with the exception of two Florida Plaintiffs, reliance was not satisfied because none of the other Plaintiffs saw or heard Lumber Liquidators’ misrepresentations regarding formaldehyde or CARB-compliance before purchasing the Product, id. at *53-55, it held that Lumber Liquidators’ misrepresentations were material.  Id. at *58 (“Even though a Plaintiff may not have actually relied on Defendant’s misrepresentation, he or she may still have attached significance to the formaldehyde levels in the Products and, in fact, Plaintiffs’ depositions indicate that most of them did.”)  The Court distinctly analyzed issues of standing, reliance and materiality.

The Court also rejected Lumber Liquidators’ arguments that only CARB can determine if a product violates the ATCM and found that Plaintiffs’ testing evidence, if admissible, is “probative of whether, as a matter of fact, Lumber Liquidators’ Products contained more formaldehyde than Defendant publicly represented.”  Lumber Liquidators, 2017 U.S. Dist. LEXIS 61362, at *62 (emphasis in the original); see also id. at *65-66.  According to the Court, each Plaintiff had his or her flooring tested by third party certifiers and “each Plaintiff’s flooring exceeded the 0.11 ppm limit established by the ACTM, including some that were 300% of that limit . . . .”  Id. at *66.  The Court further determined that there is sufficient evidence to establish that Lumber Liquidators failed to comply with its obligations under the ATCM to take reasonable prudent precautions to ensure that its Products complied with ATCM emissions standards.  Id. at *66-67.

Based in part on this analysis, the Court granted summary judgment as to Plaintiffs’ California, Texas and Illinois statutory consumer protection claims.  However, it denied summary judgment as to certain Plaintiffs’ class claims under Florida and New York consumer protection statutes.  In addition, the Court denied summary judgment as to:  Florida, Texas and two of the California Plaintiffs’ fraudulent concealment claims; certain Florida Plaintiffs’ negligent misrepresentation claims; Plaintiffs’ breach of implied warranty claims; and Plaintiffs’ Magnuson-Moss Warranty Act claims.

This decision represents a significant victory for Plaintiffs and means that the Lumber Liquidators action will continue to move forward.  Kershaw, Cook & Talley is counsel for plaintiffs in Flores v. Lumber Liquidators Holdings, Inc., et al.  If you have any questions about the Lumber Liquidators litigation, or if you or someone you know have been harmed by a defective product, please call our office at 916-779-7000.

McGill v. Citibank: Arbitration Clauses

On April 6, 2017, the Supreme Court of California issued an opinion in McGill v. Citibank, N.A., No. S224086, 2017 Cal. LEXIS 2551 (Apr. 6, 2017) that opens up new possibilities for consumers to hold defendants that are engaged in wrongful business practices accountable even where an arbitration clause is at issue.

After opening an account with Citibank, the plaintiff’s account agreement was amended to include arbitration provisions.  The plaintiff sued Citibank in part to enjoin its allegedly deceptive business practices (“public injunctive relief”).  Citibank argued that the plaintiff could not sue for injunctive relief because the U.S. Supreme Court’s decisions in Concepcion and Italian Colors held that such claims are preempted under the Federal Arbitration Act (“FAA”).  However, the California Supreme Court found that the arbitration agreement in McGill was invalid and unenforceable under California law because the agreement limited the plaintiff’s right to obtain public injunctive relief under the Unfair Competition Law (“UCL”), Consumers Legal Remedies Act (“CLRA”), and False Advertising Law (“FAL”) in any forum, not just within the arbitration context.  It cited Civil Code section 3513, which provides in part that “a law established for a public reason cannot be contravened by a private agreement.”  McGill, 2017 Cal. LEXIS 2551, at *23, 25, 30 (quoting Civ. Code § 3513).  Significantly, the California Supreme Court held that “the FAA does not require enforcement of a provision in a predispute arbitration agreement that, in violation of generally applicable California contract law, waives the right to seek in any forum public injunctive relief under the UCL, the CLRA, or the false advertising law.”  McGill, 2017 Cal. LEXIS 2551, at *28 (emphasis in the original).

The end result of McGill v. Citibank is that arbitration clauses may not be enforceable if they expressly or effectively prevent statutory claims for “public injunctive relief” (i.e., relief that by and large benefits the general public) in court and arbitration.  Post-McGill, there is now a chance for consumers in California to bring public injunctive relief claims against businesses even where an account or customer service agreement includes an arbitration clause, depending on the terms of the arbitration clause.  However, this case and the questions addressed by the California Supreme Court could find their way to the U.S. Supreme Court soon, prompting further analysis under Concepcion and Italian Colors.

If you are a consumer who has been the subject of potential unlawful, deceptive or fraudulent business practices, please contact our office.

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