ThePopTort

The Fox Guarding the Pig House

The U.S. Department of Agriculture says it exists to do things like "help rural America to thrive” and “promote agriculture production that better nourishes Americans” and “preserve our Nation's natural resources through conservation, restored forests, improved watersheds, and healthy private working lands.” Let’s see what their mission actually means to them!

On October 10, more than 84,000 petition signatures were delivered to the agency following the USDA’s Spring announcement that it intended to weaken anti-trust laws and rights that family farms have over the livestock and poultry industries. Said Joe Maxwell, Executive Director of the Organization for Competitive Markets:

“USDA has a responsibility to work with America’s farmers and ranchers and not the monopoly corporations. USDA is the regulator over monopolies. [Agriculture] Secretary Perdue needs to keep with USDA’s long held position and stand with farm families. Farmers need the ability to bring an action against monopolies under the Packers and Stockyards Act when they have been financially harmed without having to show the whole sector was harmed."

Coincidently, this was just as Perdue was waxing poetic in Wisconsin about family dairy farms, saying “that he doesn’t know if the family dairy farm can survive as the industry moves toward a factory farm model. ‘In America, the big get bigger and the small go out.’”

But hey, why stop at demoralizing just family dairy farmers? According to a story in Politico today, climate catastrophe for farmers is just around the corner and the USDA is doing nothing about it:

American farmers are reeling after extreme rains followed by a “bomb cyclone”— an explosive storm that brought high winds and severe blizzard conditions — ravaged the heartland, turning once productive fields into lakes, killing livestock and destroying grain stores. The barrage of wet weather across the country this spring left a record-shattering 20 million acres unable to be planted — an area nearly the size of South Carolina. Other weather-related disasters, from fires in the West to hurricanes in the Southeast, have converged to make the past year one of the worst for agriculture in decades.

But the Agriculture Department is doing little to help farmers adapt to what experts predict is the new norm: increasingly extreme weather across much of the U.S. The department, which has a hand in just about every aspect of the industry, from doling out loans to subsidizing crop insurance, spends just 0.3 percent of its $144 billion budget helping farmers adapt to climate change, whether it’s identifying the unique risks each region faces or helping producers rethink their practices so they’re better able to withstand extreme rain and periods of drought.

Even these limited efforts, however, have been severely hampered by the Trump administration’s hostility to even discussing climate change, according to interviews with dozens of current and former officials, farmers and scientists.

Meanwhile last month, the USDA “published a final regulation that privatizes and deregulates swine slaughter inspection, ignoring repeated calls by food safety, labor and animal welfare groups to include better safeguards for consumers, workers, and animals.” In addition, “the agency is also pressing forward without a commitment to issue new federal testing standards for monitoring Salmonella or other pathogens in meat.”  And as if this couldn’t get worse, the Office of the Inspector General is also investigating whether agency “concealed worker safety data during the rulemaking.” We should all be concerned about this because the Centers for Disease Control estimates that more than half a million get sick - and 82 die each year – “from foodborne illness attributable to pork.”

Fortunately, the United Food and Commercial Workers (UFCW), has now sued over this rule “on behalf of 30,000 pork plant workers nationwide, not[ing] that meatpacking workers are injured more than twice the average for all private industries.”

“Thousands of our members work hard every day in America’s pork plants to help families across the country put food on the table. Increasing pork plant line speeds not only is a reckless giveaway to giant corporations, it will put thousands of workers in harm’s way,” said Marc Perrone, president of UFCW. “This new rule also would dramatically weaken critical protections that Americans depend on to be able to select safe, healthy food to feed their families every day.”

So how’s the USDA doing? For helping rural America to thrive, better nourish Americans and preserve our Nation's natural resources? Grade “F” (for Fox) seems about right.

Dangerous Transportation Oddities

Oh, there are all kinds of dangers we could be talking about this holiday. Imagine the following not-so-hard-to-imagine scenario. You drive to the airport, under the influence legal weed. (We’re talking to you, Massachusetts.) Then you get your boarding pass at a germ-infested self-service kiosk, aka the dirtiest place in an airport. (And don’t get me started on bathrooms.) Once you arrive at your destination, you eat some salmonella-poisoned turkey. Still on your feet?

Yet it could be worse.  Let me warn you about two additional transportation hazards that could ruin your holiday, indeed your life.

1. Electric scooters.  If you’re in a city where these hazardous modes of transportation are allowed, good luck. As one California doctor described it, “Since scooters launched in Santa Monica, I’ve seen a large number of people who’ve lost their teeth, who come in with broken bones, head injuries, skull and facial fractures. … And I’ve seen a lot of tears, because it’s a really big deal to need surgery or new teeth.”  They’re also seeing traumatic brain injuries and death. 

Companies like Bird and Lime, which make boatloads of money off these 15 mile-an-hour-city-sidewalk-death-traps, are trying to escape legal accountability by forcing users to “accept lengthy terms of service agreements that exempt scooter companies from legal liability if riders are hurt using them.” But what if you’re a pedestrian who gets hit, and who never agreed to anything?

That’s one theory behind a new class action lawsuit filed in California against these companies for “’dumping’ scooters on public streets without an appropriate warning.” It includes three plaintiffs who “were walking when e-scooter riders crashed into them from behind, resulting in severe injuries. The suit alleges that e-scooter companies knew their riders were injuring pedestrians and –– by failing to stop the collisions from occurring –– assisted and encouraged scooter riders as they committed ‘assaults.’”

2. Stretch Limos.This week, the first lawsuit was filed by the estate of one of the 20 people killed in that terrible limo crash in upstate New York last month, considered “the nation's deadliest transportation-related incident in nearly a decade.” It was filed on behalf of the estate of 29-year-old Amanda Rivenburg: 

The family is claiming negligence, gross negligence and wrongful death. It names the Gansvoort-based limo service, Prestige Limousine & Chauffeur Service, owner Shahed Hussain and operator Nauman Hussain. …

The Rivenburg family attorney said on Monday that he expects the state to be named in future lawsuits related to the Route 30-30A intersection where the crash happened and because of the state's oversight of the limo company.

This might be a good time to mention that New York's wrongful death law is one of the most archaic in the nation. It will be interesting to see if this law is raised as a defense against substantial damages in some of the cases that might be filed.

Specifically, unless a family member is financially dependent on the person who has been killed, compensation is essentially unavailable to them. That includes, for example, the anguish and heartache a parent would experience over the loss of their child. (This FAQ explains in more detail.)

The other issue, of course, is the out-and-out perils of stretch limos. As the New York Times wrote shortly after the upstate New York crash, 

[M]any stretch limousines might be considered a kind of automotive zombie: They are former cars or sport utility vehicles that have been transformed after they leave the factory, and exist in a regulatory limbo. They usually do not have to meet arduous federal safety requirements, and they face a haphazard inspection system that varies from state to state.

“Without sufficient safety standards in place, it is nothing but a fine line between a stretch limousine and a hearse,” Thomas Spota, the former Suffolk County district attorney, said in 2016.

Stay safe, America.

Healthy Smelshy: Foods That’ll Kill You

One step up, two steps back for the healthy food movement. This week, you may have heard that the FDA has issued “draft guidance for public comment that provides practical, voluntary sodium reduction targets for the food industry.” In other words, the agency is trying to get the food industry to cut down the amount of salt in foods. Sorta. This is no minor matter. 

Nine out of ten Americans consume too much salt, putting them at risk of high blood pressure, heart disease, stroke, and kidney disease. According to the CDC, if the average American decreased their daily sodium intake by 400 milligrams, 32,000 heart attacks and 20,000 strokes could be prevented annually.…

So, considering the FDA’s confidence in the science, why didn’t the agency make the guidelines mandatory?

Critics argue the government chose to avoid a costly confrontation with the food lobby. “I’m upset with the White House,” Sen. Tom Harkin (D) told Reuters. “They went wobbly in the knees. When it comes to kids’ health, they shouldn’t go wobbly in the knees.”

If the wobbly government isn't doing enough to ensure that you are making healthy choices in your diet, you might want to take matters in your own hand. But good luck with that! A bunch of companies are recalling their “health bars” out of concern that they might poison or kill you. The culprit – possibly listeria-contaminated SunOpta sunflower seeds. (Is nothing sacred anymore?)

The Toronto-based, self-described organic/non-GMO company announced its own expanded recall for more products — including Planters brand sunflower seeds — the same day it resumed operations at the facility that produced the problematic sunflower kernels. The sunflower kernels may be contaminated with Listeria monocytogenes, which can cause serious illness and sometimes death in young children, the elderly, pregnant women and people with suppressed immune systems.

We’re talking “CLIF BAR® Nuts & Seeds energy bars, CLIF BAR® Sierra Trail Mix energy bars, and CLIF® Mojo® Mountain Mix® trail mix bars," Nature Valley Protein Chewy Bars and Nature Valley Simple Nut Bars, some Kashi Trail Mix Chewy Granola Bars and certain Bear Naked Soft Baked Granola. Maybe once healthy but not today!

Also unhealthy (to say the least)? The packaged salad produced by Dole in a plant shut down because of a listeria outbreak. A family has just filed a new wrongful death case against the company.

Information from the Centers for Disease Control and Prevention shows the outbreak affected at least 19 people in the U.S., including one man from Michigan who died. The Public Health Agency of Canada has also reported 14 cases in five provinces, including three deaths, although it hasn’t been determined if listeria contributed to the cause of those deaths.

The new lawsuit, filed in Clark County Common Pleas Court last week, says Ellen H. DiStefano, 79, became ill on Jan. 17 after eating a salad she bought in Belmont County that was packaged in Springfield. She was taken to a hospital, diagnosed with an infection caused by the listeria monocytogenes bacteria and died on Feb. 27.

And if you think that’s bad, check out this article. Guess it’s back to McDonald’s for me!

How Ordering From Grubhub Could Weaken Your Constitutional Rights

Last week I ordered Chinese food from an online delivery site I often use- Grubhub. When the meal ended up taking a little longer than expected, I decided to look through my emails and check for any alerts or updates.

Instead of a notification that my food “was taking longer than expected,” I was surprised to open an email alerting me to Grubhub’s new “Terms of Use.” Usually I would skim right over this type of email, but the message promised new “features” that I would “love,” so I decided to check it out right then.

So as of April 6, if Grubhub allows your personal data to be stolen, releases damaging computer viruses through its software, misidentifies ingredients causing you harm, repeatedly overcharges, or is responsible for any other kind of harm, you won’t be able to take them to court. Instead, you will be forced to resolve your dispute in a private, secretive, rigged arbitration system controlled by Grubhub, with no right to appeal. What’s more, even if thousands of customers suffer the same kind of injury as you, you’ll have to bring and pay for your case all alone. You’ll be prohibited from joining with others in a class action.

As the Consumerist put it,

If you have a legal dispute with online food delivery portal GrubHub (or its Seamless subsidiary), you will soon lose the ability to resolve that matter in a court of law. And if there are others out there with the same problem as you, you’ll each have to fight GrubHub on your own because the company has decided to view all of its customers as potential litigants.

What’s not to love?

Yet Grubhub isn’t the only corporation forcing people to give up their legal rights like this. It’s happening all over the place. Buried in the fine print of many contracts are, what consumer advocated have dubbed, “rip-off clauses” that strip individuals (and often times small businesses) of their right to go to court if they are harmed by a company.

These forced arbitration clauses and class action bans are so harmful to consumers, that the Consumer Financial Protection Bureau is working on drafting a rule to address these clauses in consumer financial products, like bank accounts and credit cards. And last Friday, the Department of Education issued a proposal that “would protect from the use of mandatory arbitration provisions in [college and university] enrollment agreements.”

But while these new rules will be a step toward creating a fairer system for students and financial product consumers, there are still many areas – like food delivery- where companies continue taking away the right to jury trial, which the framers of the U.S. Constitution thought they were preserving with the 7^th Amendment.

And you may ask yourself, “What can be done other than not using these goods and services completely?”

Being informed about what is in your contract is a good starting point. But the law allowing these clauses to exist must be changed. So please contact your U.S. Senator or Representative and tell them to support legislation that works to end unfair forced arbitration, like the “Arbitration Fairness Act of 2015” or the “Restoring Statutory Rights and Interests of the States Act of 2016.”

Whatever the solution, diners should know that, like the extra soy sauce they requested, their 7^th Amendment right to jury trial many not be included with their meal.

Flint, Porter Ranch, and Legal Accountability for Communal Poison

In April 2014, in an effort to save money, Flint Michigan’s unelected emergency manager (appointed by Michigan Governor Rick Snyder) switched the city’s water source to the polluted Flint River. The drinking water immediately started sickening its largely poor- African American residents, including poisoning 27,000 children with lead, which causes permanent brain damage.  And to make matters even worse, many now believe the contaminated water source is also responsible for the recent outbreak of Legionnaires’ disease which has sickened at least 87 people and killed nine. State officials, with full knowledge of what was happening, refused to do anything as the community got sicker and sicker. In a recent editorial called “Depraved Indifference Toward Flint,” the New York Times wrote:

… 274 pages of emails released under pressure on Wednesday by Gov. Rick Snyder of Michigan show a cynical and callous indifference to the plight of the mostly black, poverty-stricken residents of Flint, who have gone for more than a year with poisoned tap water that is unsafe to drink or bathe in. …

On October 23, 2015, a gigantic, man-made volcano of methane began spewing from a Southern California Gas Company underground natural gas storage facility in Porter Ranch, California, home to 30,000. The leak has been sickening them ever since. Thousands of families have been forced to relocate (although many more are seeking relocation) entire schools have been closed, well- established businesses are shuttering, and the FAA even created a no-fly zone over the area due to fears the leak could be ignited from the air- and there is not clear end in sight. As to its cause, “experts are pointing to an old and leaky safety valve,” which “Sempra (SoCalGas’ parent company)— whose annual revenues exceed $12 billion — opted not to replace the valve because it was not deemed a ‘critical well.’” 

“SoCalGas’ response to this disaster is almost as alarming as the impact on the community.” The company’s plans for stopping the leak have failed more than half a dozen times and a new strategy for plugging up the well is likely to take months. 

In recent days, there have been a number of articles and blogs comparing these two catastrophes. (See here, here.) The New York Times wrote this week:

Health officials have tested the [Porter Ranch] air and deemed it safe. Yes, the awful smell from a huge natural gas leak near the Porter Ranch neighborhood may cause vomiting, nosebleeds and other short-term symptoms, they say, but they have assured residents that it does not pose long-term health risks.

Many people here, however, simply do not buy it. And now they look warily toward Flint, Mich., where the switch to a new water supply, which state officials insisted for months was safe, has left children with high levels of lead in their blood.

With Flint as a potent warning, confidence in public agencies has collapsed here after the gas leak. Unconvinced by health department reassurances, residents have turned for guidance to lawyers who are spearheading lawsuits.

But that’s where the legal comparisons may end.

In California, writes the Los Angeles Times, Erin Brockovich and Robert F. Kennedy Jr. are among those involved with at least 25 lawsuits that have been filed so far on behalf of residents and businesses harmed by the gas leak. They have been filed against “Southern California Gas Co and its parent company Sempra Energy, the non-government operators of the leaking gas storage facility.” And they are suing for “negligence, hazardous activity, nuisance and trespass and seek compensation for emotional and physical injuries, as well as for diminished property values.” 

But the challenges of filing lawsuits on behalf of Flint, Michigan residents are, sadly, more complicated. Some lawsuits have been filed. But as Reuters explains, 

What's holding [other attorneys] back, several lawyers said, is not the facts or the victims, but the prospective targets: The State of Michigan, the city of Flint, and officials at various levels of government. Special legal protections make it difficult to hold governments liable for damages, they said.

Federal and state governments and employees engaged in their official duties are shielded from most private lawsuits by a legal doctrine known as sovereign immunity. The doctrine, enshrined in the laws of many countries, stems from the centuries-old principle that the government itself cannot commit a legal wrong, though exceptions have evolved.

While cities in the U.S. are not technically considered to have sovereign status, they are similarly protected by state and federal laws.…

Sovereign immunity … may not apply if the plaintiff can show there was gross negligence. Michigan law, however, shields the state's topmost officials - including the governor, agency heads and Flint's emergency manager - even in cases of gross negligence.

As to the few lawsuits that have been filed so far, the attorneys “are pushing relatively novel theories designed to circumvent immunity. The financially troubled city was governed by a state-appointed emergency manager at the time of the change to the river water.” Reuters notes:

One of the Flint lawsuits, filed in November against the state and local governments and various officials in U.S. district court in Ann Arbor, makes a federal constitutional argument. It contends that the decision to switch the water source denied residents their civil rights to bodily integrity and to be free from state-created danger. The state's response is due next month.

We hope other firms step in to help. As “Robin Greenwald of New York plaintiffs’ firm Weitz & Luxenberg, which is also representing plaintiffs in California,” put it, “’I really believe there must be something to do here … There must be an opportunity for that community to be compensated. They poisoned kids.’”

Our Top 10 “Wet Hot PopTort Summer” Recommendations

Well as usual, we’re about to embark on a long overdue summer vacation. But before we do, we thought we’d share our Top 10 List for a fun time this summer. OK maybe not exactly “fun.” But safe.

1. If you own a Ram pickup truck, or a Dodge or Chrysler SUV, your vehicle might have defective steering!  Fear not. Under a government deal that Fiat Chrysler just struck with regulators (including a record $105 million fine), the company has to buy back your vehicle. So get on that right now! 

2. Speaking of defective cars, rental car companies can rent you one that’s defective and under recall (as we’ve noted many times before but check out this week’s disturbing Today Show piece.) If you go to this website with the car’s VIN number, you can check if it's been recalled. And then – ask for another car!

3. Speaking of the Today Show and cars, this morning the program featured a segment about your rights in a traffic stop. Apparently you do have to turn over license, registration and insurance information. You do have to get out of the car if asked. You don’t have to let police search your car without cause. On the other hand, if you are “driving while black,” a whole set of other terrible things can happen. Here’s an interesting App, to provide those "targeted for traffic stops [with] helpful information and tools to improve traffic stop experiences, safety, accountability and justice.”

4. Meanwhile, if you find yourself in need of a hospital this summer (hopefully not due to a car crash or excessive police force), Consumer Reports’ new hospital ratings might provide some guidance – at least if you have any choice of hospital! But also know that you’ll have a hard time finding out whether your hospital has enough nurses, a major safety indicator. Indeed, a new report “by New Yorkers for Patient & Family Empowerment found Syracuse's Upstate University Hospital is the only major hospital in the state that posts nurse-to-patient ratios for its various units on its website.” I’m sure New York isn't unusual. 

5. Nurses don’t get the respect they should. Nor do Uber drivers. (See our earlier piece.) During your next Uber ride this summer, ask they driver if he or she receives any benefits from the $50 billion company they work for. Hint: they don’t.  No benefits, no days off. No wonder protests against Uber continue worldwide. 

6. And whether you prefer Uber or taxis, if you find yourself in New York City, don’t let either of them take you to New York’s LaGuardia Airport – at least until 2021 when the new $4 billion makeover is complete.  It’s a mess over there.  Find another airport.

7. Switching topics – be careful what you - and your dog - put in your mouth(s). 

8. Who knows how many will be flocking to Winsted Connecticut for the September 26 opening of the American Museum of Tort Law.  Better buy your bus ticket now! 

9. And if you are looking for a good read, we can’t recommend enough this page-turner: Watchdogs and Whistleblowers: A Reference Guide to Consumer Activism. It's an $89 book but here you can read the most important chapter – the one about the role (and history) of consumer activism fighting “tort reform.”

10. Can’t think of anything else.  So just have fun. We’ll be back before you know it. 

Congress, Go Home

It’s time for Congress to go home, stand in the corner and think about what they did (or maybe almost did). (I'm paraphrasing here our new national crusader and peacemaker, the all-powerful Taylor Swift. Maybe she'll have some influence.) With only a week or two left before the summer recess, Congress’ time-out cannot come soon enough. Let’s just mention a couple reasons why. 

Bloomberg reports in detail today about widely-condemned Senate highway legislation that would, among other things, allow teenagers to become truckdrivers – as if truck safety wasn’t already problem enough. Guess the logic goes something like this: since kids generally can’t rent cars until they’re 25, let’s give them 80,000 pound trucks to drive.

Notes Jackie Gillan, president of Advocates for Highway and Auto Safety, “Many states permit 18-year-olds to drive the big trucks, but federal law prohibits them from operating across borders. In those states, younger truck drivers are four- to six-times as likely as 21-year-olds to be involved in fatal crashes.” The Insurance Institute for Highway Safety, which also opposes the idea, said that there was “unequivocal scientific evidence of a markedly elevated crash risk among people younger than 21 who drive large trucks.” Who would even doubt this?  Says Gillan, “Look at the figures. Now we’re saying let’s take a really bad idea and expand it? Who else other than the trucking industry could get by with that logic?”

(If you want to read something scary, check out this report called, Teen Unsafe Driving Behaviors. I especially enjoyed the Appendix, “Additional Thoughts on the Teenage Brain.”)

Incredibly, this provision has already been approved by the Senate Commerce Committee and “Democratic Senators Richard Blumenthal of Connecticut and Edward Markey of Massachusetts say they are trying to get the provision removed from the six-year highway bill when it is debated by the full Senate.” Which raises the question - why is this insane bill even being debated?

Now food, and an equally crazy bill that’s coming up fast in the House. H.R. 1599, the “Safe and Accurate Food Labeling Act” (known as the “DARK Act” by opponents) would overturn and preempt (i.e., invalidate) all state consumer GMO and natural food labeling laws while replacing them with nothing. It would wipe out all state law even if federal regulations are never promulgated. Notes CNBC,

One of H.R. 1599's critics, Rep. Jim McGovern of the House Agriculture Committee, a Democrat of Massachusetts, said he finds ‘it ironic that so many of my Republican colleagues espouse state’s rights, but the bill before us does just the opposite. It preempts states from establishing their own labeling laws and it would invalidate laws already passed in states like Vermont, Maine and Connecticut.

And that’s not the half of it. The preemption language in this bill likely will be interpreted to throw out and prevent all litigation over inaccurate labeling, as well. One section of the bill says, for example, “No State or political subdivision of a State may directly or indirectly establish under any authority or continue in effect as to any food in interstate commerce any requirement with respect to genetically engineered plants for use or application in food that is not identical to the requirement of section 461 of the Plant Protection Act (as added by section 111 of this Act)."

This is exactly the kind of language the Robert’s Supreme Court often reads as preempting lawsuits – not just state regulations. See more about federal preemption here.

(So Taylor, can’t you do something about this?)

The Summer Ice Cream Blues

Nothing says summer fun like eating ice cream especially when it's one of those entertaining Ben & Jerry’s flavors like Chunky Monkey, Cherry Garcia, or Stephen Colbert’s AmeriCone Dream. I’ll even go with more socially conscious brands like John Lennon’s Imagine Whirled Peace, although I have to admit that one reason I enjoy eating ice cream is that it distracts me from the world’s troubles for a couple minutes while I focus on not making a mess. That’s why I’m not so sure about this:

As if you didn’t feel guilty enough curled up in your bed watching “Hoarders” and downing a pint of Ben & Jerry’s at 8 p.m. on a Saturday night, now you can feel even worse. The famous ice cream brand has released a new flavor of its comfort dessert called “Save Our Swirled.” Now in addition to feeling bad about calorie counts, you can also worry about climate change while you eat your ice cream.…

“SOS” is intended to inspire ice cream eaters to support the reduction of global greenhouse gas emissions. In addition to the new ice cream flavor, Ben & Jerry’s has a webpage and petition devoted to climate change education, as well as extensive details on the ice cream manufacturer’s long history of environmental leadership.

B&J says, “If it’s melted, it’s ruined” and we'd have to agree.  However, we would add this: "If it’s contaminated with listeria, it’s also ruined."

Earlier this month you may have heard about the “Multistate Outbreak of Listeriosis Linked to Blue Bell Creameries Products.”  Blue Bell recalled all of its products from supermarket shelves “including ice cream, frozen yogurt, sherbet, and frozen snacks.”

Writes the Food Poisoning Bulletin, “Blue Bell shipped contaminated products across state lines to vulnerable populations in hospitals, nursing homes, schools and retirement communities.” This is particularly disturbing because “Listeria generally only affects the elderly, people with compromised immune systems, and pregnant women and their newborn infants.”

Some have sued, like David Philip Shockley who worked at a retirement community.  Mr. Shockley,

repeatedly ate single-serve Blue Bell ice cream products while he was at work. Because he suffers from ulcerative colitis, Shockley had been taking immunosuppressive medications since 2012 rendering him particularly vulnerable to food contaminated with Listeria monocytogenes. According to the complaint, the Listeria meningitis infection he contracted was so severe, he nearly died.

At Via Christi hospital in Wichita, five patients who were unknowingly served contaminated Blue Bell products got Listeria infections. Three of them died.

Yet this was not the only ice cream listeria outbreak this summer – actually, it’s not even summer yet!  According to this Associated Press article:

A government investigation of Ohio-based Jeni's Splendid Ice Creams found inadequate testing and cleaning in its Columbus plant that had become contaminated with listeria.

The company recalled all its products last month after listeria was discovered in some pints of Jeni's ice cream, and listeria was also found in the plant. There are no known illnesses connected to the recall, and Jeni's says it is making ice cream again and re-opening its shops [last] Friday after intensive cleaning.

Let’s hope that works.  Meanwhile,

The FDA also released results of 2009 and 2012 inspections of Blue Bell's plants in Texas and Oklahoma. Those inspections showed some early evidence of problems at those facilities, including condensation dripping into containers before they were filled with ice cream and residue on some food receptacles.

According to results released earlier this month from an FDA investigation, Blue Bell knew there was listeria in the Oklahoma plant from private testing as far back as two years ago.

The FDA said Blue Bell had not notified the government about the listeria findings. Companies are only required to report to the FDA if they find a "reasonable probability" that a food could make people sick.

(Idea for Ben & Jerry’s next ice cream: Yes, We Have No Listeria. At Least We Are Reasonably Probable About That.)

What Elections? Let’s Talk About Supplements!

Spiritual guru and Oprah BFF Eckhart Tolle, author of The Power of Now: A Guide to Spiritual Enlightenment, says, “now is all there ever is; there is no … future except as … anticipation in your mind.”  What a relief!  That means I can get rid of all of my dreadful “anticipatory” thoughts about the kind of country we might have tomorrow and instead focus on dietary supplements! Quite the mental detour.

You know Herbalife, right?  It's that "global nutrition and weight management" company, which “recruits individuals as distributors who sell its products to friends, family, and other consumers.” This pyramid-scheme sounding business model led the company this week to agree to pay $15 million to settle a class-action lawsuit for, well, running a pyramid scheme. Writes Slate,

The allegation that Herbalife (founded in 1980) is a pyramid scheme is not limited to this case. An Federal Trade Commission investigation of the company is ongoing (Herbalife just hired a former FTC official to run its legal compliance operations), as is a public relations campaign by hedge funder Bill Ackman, who has said he's shorted the company's stock because he believes its sales system involves several scams. …

One irony in all of this, of course, is that even if there are millions of Herbalife fans paying for and using the company's "Cell Activators" and "Male Factor 1000" pills, those people might just be paying for the placebo effect. As a manufacturer of supplements, Herbalife's products are not required to undergo Food and Drug Administration–regulated clinical trials, and are sold with the warning that they are not intended to “treat, prevent, or cure disease.”

The failure of the FDA to protect supplement consumers speaks loudly for the need for class actions, but unfortunately the lack of regulation in this area also means that cases can get easily tossed. For example, also this week, “a federal judge dismissed a proposed class action against SanMedica International for its so-called human growth hormone booster” which the plaintiffs bought “after seeing ads for its 'SeroVital' product on the Dr. Oz show and in Shape magazine.”

Even though SanMedica made all kinds of crazy claims, the judges granted SanMedica's motion to dismiss (with leave to amend by Dec. 1.) 

Notes Courthouse News, “Diet supplements, as opposed to drugs, are virtually unregulated in the United States, unless consumers can show they contain regulated drugs. Congress has refused to regulate them.” 

But perhaps there’s hope on the horizon!  Writes The Hill today,

The Food and Drug Administration is moving forward with new recommendations to the manufacturers of dietary supplements that have drawn increasing scrutiny for their miracle weight loss claims.

The FDA already prohibits pharmaceutical companies from making misleading claims about their dietary supplements. To help manufacturers comply with these rules, the agency has issued voluntary guidelines for companies making dietary supplement claims.

The FDA on Monday requested public comment on the guidelines.…

This comes as Dr. Mehmet Oz, who hosts "The Dr. Oz show," has been under pressure from federal regulators and members of Congress for endorsing dietary supplements that make controversial weight loss claims, despite what critics say is a lack of definitive scientific evidence.

The public has 60 days to comment on the new guidelines.

Besides voting, do that today.  No use sitting around worrying.

Class Actions Provide First Class Relief!

Today, the Center for Justice & Democracy at New York Law School released a brand new study, “First Class Relief: How Class Actions Benefit Those Who Are Injured, Defrauded and Violated.”  The study is a compilation of more than 150 recent class actions that have been litigated and settled since 2005.  It's an examination of a wide array of cases, and I mean wide: cases involved predatory and discriminatory lending, like illegal auto finance and mortgage loan mark-ups, payday loans, unlawful practices targeting Servicemembers, and Ponzi schemes.  Many race and gender employment discrimination class actions.  Nine antitrust class action settlements that distributed over $1 billion to tens of thousands of consumers and small and medium-sized businesses from companies who participated in criminal price-fixing cartels!  Wow. 

Plus car defects and repossessions, sports tickets, film and television residuals, tainted pet food, contaminated drinking water, home decks and furnace defects, nursing home deficiencies, and health insurer abuses.  CJ&D found overwhelming evidence that class actions have not only helped victims of corporate law-breaking but also led to changes in corporate behavior that protect us all from many types of illegal conduct. 

The study comes in the midst of a great deal of activity aimed at fighting back against the increasing use of forced arbitration clauses and class action bans in consumer and employment contracts.  Alliance for Justice has released a new film about this problem, entitled “Lost in the Fine Print,” narrated by former U.S. Secretary of Labor Robert Reich.   And a new petition effort asking five Wall Street banks to stop using forced arbitration clauses has already gathered tens of thousands of signatures in its first week. 

We always knew that class action lawsuits were among the most important tools that cheated and violated individuals and small businesses have to recover stolen money, hold large corporations and institutions accountable and deter future misconduct.  At last, the evidence – all in one place!