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Class action

A class action is a lawsuit brought by a group (or "class"), instead of a single person. It requires everyone in the group to have been wronged in the same way.

Timothy L. Miles | Jul 22, 2019

IMPORTANT THINGS FOR CONSUMERS AND SHARHOLDERS TO KNOW ABOUT CLASS ACTION LAWSUITES

The Benefits of a Class Actions A class action lawsuit allows thousands of claims to be litigated at one time that would otherwise be too impractical to litigate individually. Because a class action allows for the aggregation of many small claims, it lowers the often-high cost of litigation. As a result, class actions can provide restitution to plaintiffs who would otherwise not receive anything because it would not be financially prudent to bring an individual lawsuit. Moreover, class actions make the judicial process much more efficient by reducing the number of suits clogging the courts since one suit is filed instead of many small suits. Finally, class actions are usually brought by attorneys who are particularly trained and experienced in litigating and managing complicated lawsuits. Class actions require much more work than the typical civil lawsuit, and class action attorneys have what it takes to represent the plaintiffs in the class action. The Number of Class Members Makes a Difference While there is no set number required for a class action lawsuit to proceed, most cases that are certified have hundreds of plaintiffs or even fewer. Generally, a class with more than forty members will suffice to meet the numerosity requirement. However, having a large number of participants gives the case validity in court. When a small group of people sue a company on behalf of a larger group with similar claims, these cases usually end in settlement instead of going to trial. How You Get Paid in A Class Action Settlement All Participating Class Members who submit valid and timely Claim Forms as described in the Notice of Class Action Settlement are entitled to receive settlement payments. If you return the Claim Form, but it is defective, you will be mailed a cure letter by the Claims Administrator within a certain date. The Court will hold a final hearing on a dated provided in the Notice to decide whether to finally approve the settlement. If the Court finally approves the settlement, and there are no objections or appeals, settlement payments will be mailed to all Participating Class Members within a few months. If you stay in the Class, as opposed to opting out, you become a Class Member, and you will automatically release the Defendant from any claims as set forth in the Notice, which includes your right to sue the Defendant for injunctive relief beyond the relief that has been agreed to in the Settlement Agreement, or any form of monetary relief other than personal injury claims, and you will give up your rights to pursue or continue any action against the Defendant based on the Released Claims described in the Notice. Option to Stay in the Class Action or Opt-Out The first thing to do if you receive a class action notice is to read the notice very carefully. Notices are sent at various times in a class action lawsuit. The first notice is sent at the time the lawsuit is certified as a class action. In most cases you will be automatically included in the class if you fit within the description of the class and if you do nothing when you receive the notice. You have essentially 3 possible options when you receive a class action notice: (1) Participate as a class member; (2) Not participate in the lawsuit at all (Opt-out); or (3) Participate as a named plaintiff in the lawsuit. In most instances you will automatically be included as a member in the lawsuit if you fit the description of the class and do nothing when you receive notice of the lawsuit. However, participation in the class action lawsuit in this way will mean that you are giving up any right you might have had to pursue a remedy for your injury in a private lawsuit. If you do not want to participate in the lawsuit as a member of a class, you will need to opt out of the class. The notice you receive will explain how to do that. There will also be a cut-off date, and you must send your notice to opt out of the class by the date specified or you will be included in the class and lose any rights to file a lawsuit on your own. However, timely opting out means that you can sue the defendant on your own, instead of being part of a class. You have one other option if you qualify as a class member. You can hire your own attorney and participate in the case as a named party. You might want to do this if your damages are large and you want the advantage of playing a more active role in the lawsuit. If you have a great deal at stake in a class action lawsuit for example, if you have suffered a serious injury from a defective product or have lost a large amount of money because of illegal market manipulation in a securities case you should consult with an experienced class action attorney before you decide whether to participate as a class member, opt out, or participate as named plaintiff. You Often Give up Your Rights to Sue Individually In a class action lawsuit, you often give up the right to bring an individual action. As a result, this means that you may have to live with whatever the settlement or verdict of the lawsuit is even if it does not satisfactorily address your situation or damages. Thus, all participants need to consider their individual situation carefully before signing onto a class action lawsuit. In some cases, you may have a better chance at a meaningful recovery if you file a suit on your own or opt-out of the settlement. In a class action lawsuit, you often give up the right to bring an individual action. As a result, this means that you may have to live with whatever the settlement or verdict of the lawsuit is even if it does not satisfactorily address your situation or damages. Thus, all participants need to consider their individual situation carefully before signing onto a class action lawsuit. In some cases, you may have a better chance at a meaningful recovery if you file a suit on your own or opt-out of the settlement. Class Action Suits Take Time to Settle Every class action lawsuit is different; therefore, it is impossible to say how long a class action lawsuit will take. There are very specific steps in the class action process that must be taken, irrespective of the nature of the claims or damages or how large the class. All class action cases must go through each of these steps. Some class actions take nine months to a year; however, most take longer than a year. Some can take two years or even longer, depending on appeals. Factors that play a role in how long a class action lawsuit takes include procedural delays, the court’s docket, and the complexity of the case and number of class members. Higher Likelihood of Financial Recovery Lawsuits brought by individuals usually are governed on a first-come, first-served basis. For example, if many individuals sue the defendant at the same concurrently, those who filed earlier claims have more chances to get recovery, if the event the defendant or business goes bankrupt. Onn the other hand, a class-action lawsuit eliminates the ‘’first-come, first-served’’ risks and enables all the injured parties to get recovery at the same time in equal proportions. How the Recovery Is Divided Once a class action settles, the parties will ask the Court for final approval of the settlement including approving a plan of distribution to class members. If the Court approves the settlement, the attorneys will be awarded their fees and costs, the Lead Plaintiff(s) will receive an amount partly determined by their participation in the lawsuit, and the rest of the recovery is divided among the class members.

Paul J Molinaro | Mar 26, 2019

ESSURE - Approved - 2002; Black Box - 2016; Off Market - 2019; Damaged Patients - Forever

Essure "Essure is a permanent sterilization device intended for women who have decided against any, or any more, pregnancies. The aim of the permanent implant is to trigger tissue growth that blocks the fallopian tubes and prevents sperm from entering the ducts." (https://www.medpagetoday.com/washington-watch/fdageneral/77134). "Conceptus Inc., a subsidiary of Bayer AG, developed Essure which is a Class III device for permanent surgical sterilization in women. Essure was approved by the Food and Drug Administration (FDA) on November 4, 2002. The device has two metal coils made from polyester fibers, nickel-titanium, stainless steel, and solder which are placed in fallopian tubes to induce fibrosis and block the fallopian tubes to prevent fertilization. Since 2002, it is estimated by Bayer that 750,000 women have received the Essure IUD." (https://www.neuralit.com/mass-torts/devices/essure). "In an official posting, FDA Commissioner Dr. Scott Gottlieb said the FDA is working with Bayer to “revise and strengthen” its post-market study of Essure, which was ordered by the federal watchdog in 2016. The trial will now follow patients who received the Essure device for five years rather than the initially requested three years, giving the agency “longer-term information on adverse risks of the device, including issues that may lead women to have the device removed,” Gottlieb wrote in the posting." (https://www.massdevice.com/fda-updates-on-post-market-study-revisions-oversight-for-bayers-essure/). "On April 9, 2018, FDA restricted the sale of Essure device to only those doctors and healthcare facilities who use the FDA-approved “Patient-Doctor Discussion Checklist – Acceptance of Risk and Informed Decision Acknowledgement”. In July 2018, Bayer announced Essure would be wiped out of the market by December 31, 2018." (https://www.neuralit.com/mass-torts/devices/essure). "There are also currently over 16,0000 lawsuits alleging harm caused by Essure. There are serious concerns regarding the approval process of the device along with the post-approval studies, and a current study ordered by the FDA. Patient activist groups, such as the Essure Problems Facebook group, have created platforms for support and education. Before making your decision, you should consult your doctor and make sure to ask a lot of questions, such as… Why are you recommending this product after Bayer has announced pulling it from the market? How many of these procedures have you done? Do you have a copy of the current patient checklist we are mandated to review and the black box warning we can discuss? What is your failure rate in placing Essure correctly in one attempt? Do you use general anesthesia to place Essure, or will I be awake the entire time? Have you ever removed essure? If so, how?" (https://www.nwhn.org/bayer-has-recently-announced-they-will-remove-essure/). If You Are in California If you, a family member, a loved one, a friend, or anyone you know is experiencing problems with an Essure device, it may be time for you or that other person to contact a lawyer. There are statutes of limitations (deadlines), so waiting too long can mean no case. Paul J. Molinaro, M.D., J.D. offers free consultations on Essure cases for patients who reside in California.

Paul J Molinaro | Mar 19, 2019

Unsafe Mesh Was Marketed as Safe

Mesh Was Marketed as Safe “Mesh material, used to treat pelvic organ prolapse and stress urinary incontinence, was marketed by its manufacturers as a durable surgical method for repairing these challenging problems compared to other corrective surgeries with a high failure rate.” (https://healthblog.uofmhealth.org/womens-health/pelvic-mesh-safe-what-patients-need-to-know). “Early clinical trials suggested excellent efficacy and many surgeons saw advantages over traditional open-surgery procedures, which took longer to perform, involved a longer recovery for patients and were associated with their own range of complications. By contrast, a TVT procedure typically takes 3o minutes, is performed using keyhole surgery and patients often go home the same day. Meanwhile, the traditional treatments for pelvic organ prolapse, which included suturing to reconstruct and repair the affected organs and surrounding tissue, were proving less successful, with reports of up to 29%of women suffering another prolapse after treatment. Hysterectomy is another treatment option, which some women wish to avoid. “Because outcomes of using the mesh for incontinence and hernia were so good people were enthusiastic and confident it would also be good for prolapse,” said Christopher Maher, a urogynaecologist and associate professor at the University of Queensland. “That’s what the mindset was when it was introduced for prolapse around 2002.”” (https://www.theguardian.com/society/2017/aug/31/vaginal-pelvic-mesh-explainer). Mesh Was Used and Used a Lot “Millions of women over the last two decades have undergone vaginal mesh surgery, but it has recently become clear just how many have experienced severe complications.” (https://www.newscientist.com/article/2178297-the-pain-was-instant-the-devastating-impact-of-vaginal-mesh-surgery/). “About 300,000 women in the U.S. underwent surgery to repair POP in 2010. Surgical mesh was used in about one out of three procedures. About 250,000 women in the U.S. underwent surgery to repair SUI in 2010, with mesh placement being used in over 80% of the procedures.” (https://my.clevelandclinic.org/health/articles/16298-surgical-mesh-use-and-complications-in-women). Mesh Was Not Safe “We estimated that 9.8% of patients undergoing surgical mesh insertion for SUI experience a complication peri-procedurally, within 30-days or within 5 years.” (https://www.nature.com/articles/s41598-017-11821-w). “Due to reports of complications during or after surgery for POP, in 2016 the FDA changed the classification of surgical mesh to repair POP transvaginally from a moderate-risk device to a high-risk device. The FDA orders apply only to transvaginal use of surgical mesh to treat POP. The orders don’t apply to the use of transvaginal mesh for SUI.” (https://www.mayoclinic.org/diseases-conditions/pelvic-organ-prolapse/in-depth/transvaginal-mesh-complications/art-20110300). Vaginal mesh erosion “is the most common complication following the use of surgical mesh devices to repair pelvic organ prolapse and stress urinary incontinence. Non-absorbable synthetic surgical mesh, such as that made of polypropylene or polyester, can break down or wear away over time. Part of the mesh may become exposed or protrude through the vagina. (https://my.clevelandclinic.org/health/articles/16298-surgical-mesh-use-and-complications-in-women). Along with Scotland, the United Kingdom, and Australia, New Zealand had something to say about the so called safety of transvaginal mesh, even going to the point of effectively banning its use: “New Zealand’s Ministry of Health wrote letters to the manufacturers of mesh – including midurethral slings – requesting that they stop marketing their products in the country, unless they could produce evidence proving their safety and efficacy. This effectively results in a ban in all transvaginal mesh, including SUI treatments.” (https://www.augs.org/update-on-vaginal-mesh-for-prolapse-and-incontinence/).

Paul J Molinaro | Mar 2, 2019

PELVIC MESH: GOOD OR BAD?

Pelvic Mesh Surgery Whether you will read that pelvic mesh surgery is good or bad depends on the source of the words. That should be common sense. The mesh-makers say its great stuff – a wondrous material. The consumer advocacy groups say it harms a lot of women – leaves them much worse off. “In a survey of 2,220 women who had undergone pelvic mesh implants to treat stress urinary incontinence and pelvic organ prolapse, 59% said the procedure did not resolve their original issue, and 58% said they were left experiencing pain during intercourse. However, this was a consumer survey, carried out by the consumer advocacy group, the Health Issues Centre, rather than being a scientific study.” (https://www.theguardian.com/society/2017/aug/31/vaginal-pelvic-mesh-explainer). How many women are getting these surgeries? “The latest available FDA figures show approximately 300,000 women in the US undergo surgical procedures for prolapse each year and approximately 260,000 underwent surgical procedures to repair stress incontinence. According to industry estimates, approximately one out of three prolapse surgeries used mesh, and of the incontinence surgeries, over 80% were done transvaginally with mesh.” (https://www.theguardian.com/society/2017/aug/31/vaginal-pelvic-mesh-explainer). But just having a surgical complication does not mean someone did something wrong. Defense lawyers refer to something they call “acceptable risk” when saying that some patients will have unavoidable complications – even in the best of worlds. That’s true… sometimes. But what about when mesh simply disintegrates? Falls apart into many many splinter-like pieces that cause excruciating pain and other problems? What if the manufacturer knew that these complications could be avoided if they made the mesh out of expensive materials but opted to use cheap “blue shit” instead? That’s a different situation, right? If you, a family member, a loved one, a friend, or anyone you know has had pelvic surgery that involves mesh and had complications wherein the mesh fell apart, it may be time for you or that other person to contact a lawyer. There are statutes of limitations (deadlines), so waiting too long can mean no case. Paul J. Molinaro, M.D., J.D. offers free consultations on mesh cases for patients who had surgery in California. In California? When You Need a Lawyer Call the Doctor! Call 1-888-MDJDLAW

Timothy L. Miles | Sep 21, 2018

Lead Plaintiffs in Securities Class Actions

How to Become a Lead Plaintiff Pursuant to the Private Securities Ligation Reform Act of 1995 (PSLRA), the plaintiff who files a securities class action lawsuit is required, within 20 days, to publish a widely-circulated national business-oriented publication which must include a notice of the filing of the lawsuit and a notice of the 60-day deadline for class members to file a motion requesting to be designated as lead plaintiff. No later than 90 days after the notice is published, the court must consider any motions requesting appointment as lead plaintiff. The PSLRA establishes a rebuttable presumption that the movant or movant group with the largest financial interest shall be the Lead Plaintiff. The presumptive Lead Plaintiff must have also timely filed a motion, meet the typicality and adequacy requirements of Rule 23(a)(3)-(4), and be otherwise sufficient to represent the putative class. The presumption may only be rebutted upon proof by a member of the purported class that the presumptive plaintiff will not fairly and adequately represent the class or has unique defenses making it incapable of adequately representing the class. The Responsibilities of the Lead Plaintiff Once the Lead Plaintiff is appointed by the court, they may select and retain counsel of their choosing to represent the class which importantly includes negotiating the contingent fees Lead Counsel will receive in the event of a settlement or judgment. The Lead Plaintiff is encouraged to have both oversight over, and input into, the litigation of a securities class action beyond that of other class members. Responsibilities of the Lead Plaintiff include being responsible for managing the litigation principally by overseeing and monitoring the progress of the action and the efforts of Lead Counsel. A Lead Plaintiff will review, comment, and make suggestions on important court filings and other related documents pertaining to the prosecution of the class action. The Lead Plaintiff will also participate in discovery, including gathering information that may involve answering interrogatories, producing documents and other evidence, and their sworn deposition taken before a court reporter. The Lead Plaintiff also attends hearings, trials, and other court proceedings. Perhaps the most important role of the Lead Plaintiff is to consult with the Lead Counsel about any possible settlements. Once settlement discussions began, the Lead Plaintiff will have an opportunity to be active in all negotiations. This may include attending mediations and being active in all aspects of the settlement, including the amount of the financial recovery, the makeup of the consideration, the proposed plan of allocation for distribution of the recovery to the class, and any corporate governance demands aimed at deterring similar future conduct that may be detrimental to shareholders. The Lead Plaintiff must approve any settlement before it is presented to a court. The Benefits of Serving as the Lead Plaintiff Serving as a Lead Plaintiff has several advantages and important benefits. First, a Lead Plaintiff is able to negotiate more competitive attorney fees and reduce other litigation costs by actively monitoring the class counsel. Second, Lead Plaintiff has the benefit of being able to manage the litigation primarily by overseeing and monitoring the progress of the action and the efforts of counsel, and being able to review and comment on important filings and other documents pertaining to the prosecution of the action. Third, is no financial risk in serving as a Lead Plaintiff because Lead Counsel advances all costs and expenses incurred int the prosecution of the case and will be reimbursed only if there is a successful settlement or judgment recovery on behalf of the class. Fourth, Lead Plaintiff has the benefit involved and active in all negotiations relating to any settlement. Finally, Lead Plaintiffs that continue owning the stock of the defendant will enjoy the long-term benefits from governance reform resulting from the litigation. Successful lawsuits with large punishments might have a stronger disciplining effect on a defendant*s management and raise awareness of the importance of corporate governance.

Timothy L. Miles | Sep 17, 2018

What Is a Shareholder Derivative Action?

What Are the Requirements for a Plaintiff to Maintain Derivative Action? Corporations are creatures of state law, and the fiduciary duties of a corporation's directors are defined by its state of incorporation. Therefore, in a derivative action, the substantive law of the corporation's state of incorporation will apply. If filed in different state court, such as where corporation is headquartered or filed in federal court, then the procedural rules of that state or federal court will apply, but that court will apply the substantive law of the state of incorporation. State laws and federal procedures almost universally contain several of the same requirements. First, derivative action complaints should be verified, commenced in the name of the corporation, and allege the plaintiff was a shareholder at the time the challenged transaction occurred (or his interest devolved by operation of law). Second, the plaintiff must allege he made a demand to the corporation's board of directors to take the requested action, and the reasons for not obtaining the action or not making the effort. Third, a derivative action may not be maintained if the plaintiff does not fairly and adequately represent the interests of the other similarly situated shareholders. These requirements, which are expressly established by Fed. R. Civ. Ap. 23.1, are commonly known as the Standing, Demand, and Fair and Adequate Representation requirements. The Standard for Pleading Demand Futility A shareholder lacks standing to bring suit on the corporation's behalf unless the stockholder (i) has demanded that the directors pursue the corporate claim and the demand is wrongfully refused; or (ii) alleges with particularity why presuit demand is excused as futile. While the test for pleading demand futility may vary in particular states, most states will look to Delaware law for guidance given its vast body of law on the subject due to the fact a majority of company's incorporate in Delaware. Under Delaware law, there are two different standards used in determining whether a plaintiff has adequately alleged demand futility. The applicable standard depends on the composition of the board of directors at the time of the complaint and whether a specific board decision is challenged. First, in a situation where a board decision is challenged and those directors who made the decision alleged to have harmed the corporation are the same as those who would consider plaintiff's pre-suit demand, Delaware courts apply the two-pronged test articulated in by the Delaware Supreme Court in Aronson v. Lewis, 473 A.2d 805 (Del. 1984). Under Aronson, demand is excused where the complaint alleges particularized facts creating reasonable doubt that (1) the directors are disinterested and independent on the subject or (2) the challenged transaction was otherwise the product of a valid exercise of business judgment. Second, is the situation "where the board that would be considering the demand did not make a business decision which is being challenged in the derivative suit." Rales v. Blasband, 634 A.2d 927, 933-34 (Del. 1993). As explained by the court in Rales, such a situation may arise "in three principal scenarios: (1) where a business decision was made by the board of a company, but a majority of the directors making the decision have been replaced; (2) where the subject of the derivative suit is not a business decision of the board; and (3) where*the decision being challenged was made by the board of a different corporation." Under the Rales test, a complaint alleging demand futility must plead sufficient particularized facts to create reasonable doubt about the ability of the board that would be addressing the demand (i.e. the board at the time the complaint was filed) to consider the demand impartially.