Nidel & Nace, P.L.L.C.

Category: Consumer Protection

  • Nidel & Nace Secures Supreme Court Win in CareFirst Data Breach

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    On February 20, 2018, the Supreme Court denied CareFirst’s petition for a writ of certiorari that Nidel & Nace and two co-counsel firms opposed.  The decision by the Supreme Court signals that the D.C. Circuit appropriately applied standing jurisprudence in the “landmark” Attias v. CareFirst opinion.  Jonathan Nace wrote briefs in the D.C. Circuit and argued the case therein.

    The Attias case stems from a data breach announced in 2015.  At the time, CareFirst reported to its insureds that hackers had stolen personal information, including names, addresses, email addresses, birthdays, and identification numbers from its servers.  CareFirst insureds from D.C., Maryland and Virginia joined in a complaint against CareFirst alleging negligence, breach of contract, and deceptive trade practices for CareFirst’s failures to properly secure this information.  The trial court dismissed the case for lack of subject matter jurisdiction, finding none of plaintiffs’ allegations demonstrated “injury-in-fact” under the Constitution’s Article III standing analysis.

    Plaintiffs appealed to the D.C. Circuit Court, however.  The federal Court of Appeals applied the motion to dismiss standard of review, requiring plausible allegations of a case or controversy, and ruled “…portions of the complaint would make up, at the very least, a plausible allegation that plaintiffs face a substantial risk of identity fraud, even if their social security numbers were never exposed to the data thief.”  Attias v. CareFirst, Inc., 865 F.3d at 628.

    CareFirst petitioned the Supreme Court, warning of the threat of a “flood of lawsuits” if the Supreme Court did not overturn the Circuit Court.  But the named plaintiffs responded, pointing out that there is not a circuit split on the legal requirements for standing.  The opposition to the petition for writ of certiorari further pointed out that cases commonly relied upon by big businesses and the Chamber of Commerce found a lack of standing at the stage of summary judgment, where plaintiffs have a burden of producing admissible evidence.

    Nidel & Nace and the plaintiffs’ attorney issued a statement on the significance of the opinion:

    Obviously we are pleased with the Court’s decision to deny cert. The D.C. Circuit’s opinion was thorough and was based on a long line of standing jurisprudence. We don’t believe that the Supreme Court needs to spend its time developing unique standing jurisprudence in the data breach field.  The fact is that data breaches are happening all the time. The D.C. Circuit’s opinion and the Supreme Court’s decision to deny cert simply indicates that our courts will permit citizens to hold corporations accountable when they fail to take reasonable precautions to protect our data. When you consider all of the Americans who have had their data exposed, it is important that corporate America understands that if they do not take reasonable steps to protect data, they will be held responsible.

    As far as where the case goes from here, we are prepared to immediately proceed to discovery and move the case forward.

    These plaintiffs now have an opportunity to head forward in their litigation, and similar plaintiffs will find reliable precedent in the D.C. Circuit’s opinion.
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  • There is No Such Thing as a “Safe Tan”

    Skin cancer has been on the rise, particularly in young adults.  A number of dermatologists and other medical experts have attributed this increase in skin cancer, at least in some part, to the increasing popularity of indoor tanning.  This is despite the fact that the American Academy of Dermatology has been calling for a ban on indoor tanning beds for years.  Consumer Reports has also been a vocal critic of tanning salons, primarily due to the risk of cancer and many salon’s flagrant violation of state regulations regarding tanning duration and tanning by minors.  The U.S. Surgeon General also sent out a new warning urging teens to avoid indoor tanning beds.

    Teenagers face the greatest risk from tanning.  In fact, in 2007, the World Health Organization recommended that no one under the age of 18 should use a sunbed for tanning.  A study, “Use of Sunbeds or Sunlamps and Malignant Melanoma in Southern Sweeden” published in 1994 in the American Journal of Epidemiology demonstrates that tanning at an early age significantly enhances the risks:

    The odds ratio for developing malignant melanoma after ever having used sunbeds or sunlamps was 1.3. Considering all age groups, the odds ratio was significantly elevated after exposure more than 10 times a year to sun beds or sunlamps (odds ratio (OR) = 1.8). When the study was restricted to patients and controls younger than age 30 years because the use of tanning devices is much more common among young persons, the odds ratio was higher (OR = 7.7 for more than 10 times a’ year vs. none).

    This shows that tanning under the age of 30 at the same rate carries roughly 4X the risk, simply as a function of age.

    Nidel Law, P.L.L.C. is very concerned about the increase in this otherwise largely preventable cancer and is actively looking into whether there may be claims against those companies that have violated state regulations applicable to indoor tanning salons and failed to warn of the substantial risks posed by indoor tanning.  The reality is, there is no such thing as a safe tan.  Despite this fact, the tanning industry has been hiding the true risks of tanning and insisting that the “controlled” radiation exposure from indoor tanning is safer, and in fact, does not come with the same risk of cancer.  This is simply false.

    If you or a loved one has suffered an injury that you believe may be the result of using tanning beds, please submit your response to the following brief questionnaire.

     

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  • Surgeon General Urges Teens to Stop Indoor Tanning

    Skin cancer is the most commonly diagnosed cancer in the United States.   In response, the U.S. Surgeon General issued a call to action to prevent skin cancer.  The Surgeon General noted that despite the fact that most skin cancer is preventable, the rates of skin cancer are on the rise.  This is particularly troubling because it is the most common cancer among teens and young adults.  The Call to Action states:

    “While many other cancers, such as lung cancer, are decreasing, rates of melanoma — the deadliest form of skin cancer — are increasing,” said Assistant Secretary for Health Howard K. Koh, M.D., M.P.H. “As a skin oncologist who worked in this field for many years, I have cared for both the young and old with skin cancers. Almost all of these cancers were caused by unnecessary ultraviolet radiation exposure, usually from excessive time in the sun or from the use of indoor tanning devices.”

    Melanoma is the deadliest form of skin cancer. Each year, more than 63,000 new cases are diagnosed in the U.S. and nearly 9,000 people die from this disease. Rates of melanoma increased more than 200 percent from 1973 to 2011. Melanoma is also one of the most common types of cancer among U.S. teens and young adults.

    According to research cited in the Call to Action, more than 400,000 cases of skin cancer, about 6,000 of which are melanomas, are estimated to be related to indoor tanning in the U.S. each year. Currently, as many as 44 states plus the District of Columbia have some type of law or regulation related to indoor tanning, but nearly one out of every three white women aged 16 to 25 years engages in indoor tanning each year.

    The fact is that tanned skin is damaged skin and there is no good that can result from indoor tanning.  The risks of a sun tan are well established, whether that tan is results from sun exposure outdoors or from “controlled” radiation exposure in a tanning salon.

    If you or a loved one have been diagnosed with skin cancer and have a history of indoor tanning, please contact an attorney with Nidel Law today.

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  • Slack Fill – Deceptive and Illegal

    Transparent Packaging
    Transparent Packaging

    Slack Fill – Filling Up Space in Packaging – Is Deceptive and Illegal

    Companies looking to sell their goods for higher prices and greater profit margins have been preying on consumers’ inability to determine the better bargain by misleading customers by including wasted space in their packaging and filling it with air rather than the purchased goods. Consumer reports has been pointing this out for the last several years as can be seen here.

    This empty space is referred to as slack-fill.  The federal regulations define slack-fill as:

    Slack-fill is the difference between the actual capacity of a container and the volume of product contained therein.

    Furthermore, according to Title 21 of the Food and Drug Laws (21 C.F.R. 100.100) if a consumer cannot determine the amount of air filling up space in the container, then according to the relevant federal laws the product is deemed misbranded and sold illegally.  The law provides for limited exceptions:

    Nonfunctional slack-fill is the empty space in a package that is filled to less than its capacity for reasons other than:

    (1) Protection of the contents of the package;

    (2) The requirements of the machines used for enclosing the contents in such package;

    (3) Unavoidable product settling during shipping and handling;

    (4) The need for the package to perform a specific function (e.g., where packaging plays a role in the preparation or consumption of a food), where such function is inherent to the nature of the food and is clearly communicated to consumers;

    (5) The fact that the product consists of a food packaged in a reusable container where the container is part of the presentation of the food and has value which is both significant in proportion to the value of the product and independent of its function to hold the food, e.g., a gift product consisting of a food or foods combined with a container that is intended for further use after the food is consumed; or durable commemorative or promotional packages; or

    (6) Inability to increase level of fill or to further reduce the size of the package (e.g., where some minimum package size is necessary to accommodate required food labeling (excluding any vignettes or other nonmandatory designs or label information), discourage pilfering, facilitate handling, or accommodate tamper-resistant devices).

    None of these apply to the vast majority of product sold in misbranded packaging under this provision.  Perhaps the greatest offenders are found in the vitamin aisle or at the health food store.  This can become high-dollar deception as these products are often costly and the idea that bigger packaging means a better value can be very tempting for the unwary consumer.

    If you have unwittingly purchased a product with excessive and unreasonable amounts of empty space (air), please contact an attorney with Nidel Law today.

    Misleading Packaging
    Misleading Packaging