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September 2014 Archives

Serious Personal Injury: Wrongful Death Lawsuit Claims Negligence By Cal Athletics

Ted Agu's family and attorneys claim that Cal Athletics' negligence led to his death during a training run. 

Ted Agu wrongful death lawsuit complaint filed, claims negligence by Cal Athletics

August 7, 2014 On Tuesday, the attorneys of Ted Agu's family officially filed a wrongful death lawsuit against the UC Regents. Attorneys are alleging that Cal was negligent in its supervision of his fatal training run on February 7th. The attorneys are alleging that the university did have prior knowledge that Agu carried the sickle cell trait and did not do their best to respond accordingly. Protocols are supposed to be kept with regards to players who are known to carry the trait; the complaint contests that these protocols were not followed and resulted in serious personal injury. Mentioned in the case is Robert Jackson, the supervising athletic trainer. Jackson is still on staff with the Bears. He was also a trainer at UCF when Ereck Plancher collapsed and died in 2008. Also involved in the Plancher case is attorney Steve Yerrid, who also claims that Cal was negligent in hiring Jackson. Here is more of the statements from Dennis Dodd at CBS Sports. Agu, a fifth-year senior, died Feb. 7 following an offseason conditioning drill. The Alameda County (Calif.) coroner later determined Agu died of hypertrophic cardiomyopathy, an excessive thickening of the heart muscle. However, the lawsuit alleges Cal coaches and trainers subjected Agu to a "lethal conditioning drill for a player with known sickle cell trait." The response from Cal Athletics: Cal released this statement: "The members of our football family and our entire campus community remain deeply saddened by the loss of Ted Agu. We recognize how difficult this must be for the Agu family. We will continue to honor Ted in all we do. He will forever be a beloved member of our Golden Bear family. "When Cal's medical staff on scene saw Ted show signs of problems, they reacted promptly. But as the Alameda County Coroner's report states, the cause of death was hypertrophic cardiomyopathy, which suggests there was little anyone could have done to save him. "While we cannot discuss any student's specific medical history, we follow all recommended protocols, including those outlined by the NCAA, for all student-athletes with identified medical conditions. We want to make clear that we are committed to ensuring the care and safety of all our student-athletes, and we have great confidence in our athletic department's staff's ability to do so." We will try and breakdown the lawsuit in further detail once we can obtain a copy of the full complaint. Originally posted on californiagoldenblogs.com by Avinash Kunnath

CEO and CFO of Public Company QSGI, Inc Charged with Fraud

 Business Litigation: Is a $23,000 fine from the SEC enough of a deterrent for the most senior executive officers engaged in fraud with a public company

SEC charges CEO and CFO with fraud and violations of Sarbanes-Oxley

September 22 2014

On July 30, 2014, the Securities and Exchange Commission (the “SEC”) announced enforcement actions against Marc Sherman and Edward Cummings, CEO and former CFO, respectively, of QSGI, Inc., a publicly traded computer equipment company (“QSGI”), for misrepresenting to external auditors and the investing public the state of its internal controls over financial reporting.

Business Litigation Claims: SEC Not Doing Enough?

Corporate CEO and CFO were the subject of cease-and-desist orders for financial fraud and facilitating the company's misconduct. The SEC did little in the eyes of one Commissioner.

Stinging dissent by Commissioner Aguilar: is the SEC making fraudulent behavior look like an innocent mistake?

September 2, 2014 Following on the heels of a case, discussed in this post, in which a CEO and CFO were charged with internal control and books and records violations (but no typical financial statement fraud allegation), comes another case against a CEO and CFO that likewise concluded with violations of the books and records, internal controls, reporting, and certification provisions of the federal securities laws. In this case, the CEO and CFO were alleged to have engineered fictitious transactions (resales without economic substance) to falsely inflate their company's revenues by $125 million, just enough to meet revenue growth guidance for several quarters. As result, the company misreported revenues in its periodic reports and the two officers signed false certifications, provided false information in earnings releases and on analyst conference calls and received higher bonuses based on the falsely inflated numbers. The SEC order states that the company violated section 13(a) by filing false reports, as well as the books and records and internal controls provisions of the Exchange Act, which violations the CEO and CFO caused. In addition, the order states that the CEO and CFO filed false certifications. As a result, they were the subject of cease-and-desist orders and agreed to collectively disgorge portions of their bonuses totaling $569,327, plus $104,000 in penalties. But what's interesting here is the rare occurrence of a published Commissioner dissent, providing some unusual insight into the SEC's preparation of orders, with the implication that there was a lot more to this case -- as well as other business litigation -- than meets the eye, at least in the settlement order. In this stinging dissenting statement, Commissioner Aguilar vents his frustration that, in light of "the egregious conduct," the CEO and CFO are getting away with only "a wrist slap at best." In his view, the CEO and CFO engaged in a series of actions that facilitated the company's misconduct, notwithstanding their roles as gatekeepers. Particularly with respect to accountants who engage in fraudulent misconduct, Commissioner Aguilar argues, the SEC "must be willing to charge fraud and must not hesitate to suspend the accountant from appearing or practicing before the Commission [under Rule 102(e)]....This is true regardless of whether the fraudulent misconduct involves scienter. The Commission instead chose to charge [the CFO] with limited, narrow non-fraud charges, comprising... violations of the books and records, internal controls, reporting, and certification provisions of the federal securities laws. In the past, respondents with the same state of mind and similar type of misconduct as [the CFO] have been charged with violations of the antifraud provisions of the Securities Act, in particular, Sections 17(a)(2) and/or (3), as well as the books and record and internal control violations. In addition, where CPAs engage in this type of egregious securities fraud--especially misconduct that relates to the CPAs' core expertise of financial reporting--the Commission has rightly required such persons to forfeit their privilege to appear and practice before the Commission by imposing a suspension under Rule 102(e) of the Commission's Rules of Practice." Commissioner Aguilar is concerned about more than just this one case. Rather, he is concerned that the case reflects an increasing trend toward "accepting settlements without appropriately charging fraud and imposing Rule 102(e) suspensions against accountants in financial reporting and disclosure cases. I am also concerned that this reflects a lack of conviction to charge what the facts warrant and to bring appropriate remedies." To support his case, he cites statistics showing a year-by-year decline in financial reporting and disclosure cases against issuers and individuals, as well as in Rule 102(e) suspensions, from 117 in fiscal 2010, with 54% subject to Rule 102(e) suspensions, to only 68 of those cases in fiscal 2013, with Rule 102(e) suspensions imposed in only 41% of those cases. It will be interesting to see if this dissent has any impact on SEC enforcement decisions going forward. Originally posted on lexology.com by Cydney Posner Business Litigation Attorney - Ball & Bonholtzer Trial Lawyers

Pharmaceutical Litigation, New Class Action Lawsuit Against Lannett Company, Inc.

Lannett Company, Inc. reportedly made false claims and inflated stock trade prices. Did this pharmaceutical company mislead customers and investors as alleged in a new class action lawsuit?

New Class Action Lawsuit Against Lannett Company, Inc.

Sept , 2014 Ryan & Maniskas, LLP announces that a class action pharmaceutical litigation lawsuit has been filed in United States District Court for the Eastern District of Pennsylvania on behalf of investors who acquired Lannett Company, Inc. ("Lannett" or the "Company") LCI, +.92% securities during the period from September 10, 2013 through July 16, 2014 (the "Class Period"). Lannett develops, manufactures, markets and distributes generic versions of brand pharmaceutical products. The Complaint alleges that throughout the Class Period, defendants made materially false and misleading statements, and omitted materially adverse facts, about the Company's business, operations and prospects. Specifically, the Complaint alleges that the defendants concealed from the investing public that: (1) the Company was fixing, maintaining, and controlling prices of digoxin, a drug used to treat congestive heart failure, in violation of Connecticut antitrust laws; (2) the Company was allocating and dividing customers and territories with competitors relating to the sale of digoxin in violation of Connecticut antitrust laws; (3) the Company's anti-competitive practices subjected Lannett to heightened regulatory scrutiny, including possible investigation by the Connecticut Office of the Attorney General ("CTAG"); and (4) as a result of the foregoing, Lannett's public statements were materially false and misleading at all relevant times. As a result of defendants' alleged false and misleading statements, the Company's stock traded at artificially inflated prices during the Class Period. According to the Complaint, on July 16, 2014, the Company issued a press release and filed a Form 8-K with the U.S. Securities and Exchange Commission announcing that the Company received interrogatories and a subpoena from the CTAG concerning its investigation into pricing and customer/territorial division of digoxin. On this news, shares in Lannett plummeted more than 17%, closing at $39.04 per share on July 16, 2014, on unusually heavy trading volume. If you are a member of the class, you may, no later than October 27, 2014, request that the Court appoint you as lead plaintiff of the class. A lead plaintiff is a representative party that acts on behalf of other class members in directing the litigation. In order to be appointed lead plaintiff, the Court must determine that the class member's claim is typical of the claims of other class members, and that the class member will adequately represent the class. Under certain circumstances, one or more class members may together serve as "lead plaintiff." Your ability to share in any recovery is not, however, affected by the decision whether or not to serve as a lead plaintiff. Originally posted on marketwatch.com by PR Newswire. Los Angeles Pharmaceutical Lawyer - Ball and Bonholtzer, Trial Lawyers

Drug Marketing & Invented Diseases: Pharmaceutical Lawyer Los Angeles

Are pharmaceutical companies and doctors collaborating in a culture of disinformation and medical malpractice?

Are diseases being "invented" so that drug companies can consistently increase their sales?

Disease mongering and drug marketing

By Howard Wolinsky

Does the pharmaceutical industry manufacture diseases as well as drugs?

Most people may not have heard of metabolic syndrome, but that is likely to change. Once known mysteriously as Syndrome X, the condition, a precursor to heart disease and type 2 diabetes, is about to be transformed into a household name by the US pharmaceutical industry and its partners in the medical profession. A society dedicated to addressing the condition has been organized, a journal has been started, and an education campaign launched. Patients are already being tested for metabolic syndrome. As the trade publication Pharmaceutical Executive said in its January 2004 issue: "A new disease is being born" (Breitstein, 2004).

...industry has found itself under fire from detractors who contend that, in the pursuit of profits, companies are in league with medical doctors and patient advocacy groups to 'disease monger'...

The situation is reminiscent of the attitude towards cholesterol. Twenty years ago, physicians were not concerned about the effects it might have on heart disease. Today, thanks to efforts by pharmaceutical companies, high cholesterol levels are now recognized as a major health problem. In fact, IMS Health, a global healthcare information company, reports that the two best-selling drugs in 2004 were statins: Lipitor® (atorvastatin calcium) from Pfizer (New York, NY, USA)--valued at US$10.6 billion with growth of 13.9% over the previous year--and Zocor® (simvastatin) from Merck (Whitehouse Station, NJ, USA). Pharmaceutical Executive noted: "The emergence of cholesterol reduction as a market was a major event for pharma. Metabolic syndrome promises to be as big or bigger" (Breitstein, 2004).

Traumatic Brain Injury: Clemson Women's Soccer Player Files Hazing Lawsuit

Reportedly an assistant coach tried to cover up a potentially life changing traumatic brain injury sustained by a player during a hazing incident. Now the courts will decide.

Sept. 9, 2014 A former Clemson women's soccer player has filed a lawsuit charging that she suffered a traumatic brain injury while being hazed. The original story appeared here. The lawsuit names the following people as defendants: coach Eddie Radwanski, former athletic director Terry Don Phillips, two assistant coaches, 14 members of the team and other school officials. Haley Ellen Hunt alleges that she was ordered to perform rituals that are "humiliating and demeaning", and that the head injury occurred when she ran into a brick wall. Here are more details surrounding the head injury, which allegedly occurred on the night of Aug. 18, 2011​. Fitsnews.com uploaded a copy of the lawsuit.

Part of Legal Malpractice Verdict Against Lawyers and Firm Reversed

Take care in structuring a case against a lawyer for legal malpractice as the case will be tried in a very technical manner and it must hold up to intense scrutiny.

The Fourth Court of Appeals reduced a legal malpractice judgment against San Antonio lawyer Oscar Gonzalez and his firm, Law Office of Oscar C. Gonzalez Inc, holding that some claims were based on an "improperly fractured professional negligence claim."

A Joan Rivers Medical Malpractice Lawsuit Could Be Worth Millions

The death of Joan Rivers may trigger a medical malpractice lawsuit that  could be worth millions because of her considerable ongoing income.

September 6, 2014 This article was originally posted by Barbara Ross on the nydailynews.com website Since Joan Rivers was still earning a substantial income from her books, TV gigs and stand-up, there could be a lot of money at stake. To win a suit, the family would need to prove negligence by the Yorkville Endoscopy Center, where the 81-year-old went into cardiac arrest during a procedure Aug. 28. Joan Rivers' family could have big bucks coming their way if they file a lawsuit and can prove negligence in the death of the 81-year-old comedian. The last legal laugh in the shocking death of Joan Rivers could go to the comedian's family. A veteran negligence attorney said millions of dollars would be at stake if daughter Melissa Rivers opts to file a negligence suit in her mother's tragic passing. Rivers -- unlike most women her age -- was still earning a substantial income from her stand-up, books and television gigs. "Normally an 81-year-old widow with grown children is not expected to be working," said lawyer Edward Steinberg. "However, she was still a very big earner and in otherwise good health. There could be millions at stake." To win a suit, Rivers' family first would need to prove negligence by the Yorkville Endoscopy Center. Rivers went into cardiac arrest there during an unspecified Aug. 28 procedure on her throat. Millions could be at stake since, unlike most women her age, Joan Rivers was still earning significant money when she passed away. The family's attorney will closely examine the findings of the city medical examiner's office. Results were inconclusive, although the coroner's office said Friday that additional testing was planned. Former Chief Medical Examiner Michael Baden said the coroner has already seen Rivers' heart and probably knows if she had coronary artery disease that could have caused her heart to stop. Additional microscopic studies will help provide an answer to that question. Toxicology studies could tell pathologists if her heart stopped because of drugs administered by an anesthesiologist, he said. Baden said a microscopic exam of Rivers' organs will determine how long her brain was deprived of oxygen before doctors restarted her heart. That could give the medical examiner -- and family lawyers -- insight into how fast clinic staff reacted to her emergency.

Pharmaceutical Litigation: Class Action Lawsuit Filed Against Impax Laboratories And Officers

Class action lawsuit claims Impax Laboratories and its' officers violated federal security laws under the Exchange Act. 

August 13, 2014 via Newswire A class action lawsuit has been filed against Impax Laboratories, Inc. ("Impax" or the "Company") (Nasdaq:IPXL) and certain of its officers. The class action, filed in United States District Court, District of New Jersey, and docketed under 14-cv-03673, is on behalf of a class consisting of all persons or entities who purchased Impax securities between May 20, 2013 and July 28, 2014, inclusive (the "Class Period"). This pharmaceutical litigation lawsuit seeks to recover damages against Defendants for alleged violations of the federal securities laws under the Securities Exchange Act of 1934 (the "Exchange Act"). If you are a shareholder who purchased Impax securities during the Class Period, you have until October 13, 2014 to ask the Court to appoint you as Lead Plaintiff for the class. A copy of the Complaint can be obtained here. Impax is a specialty pharmaceutical company engaged in the development, manufacture and marketing of bio-equivalent pharmaceutical products, referred to as generic products, in addition to the development of proprietary branded products. The Company operates in two segments, referred to as the "Global Pharmaceuticals Division" ("Global Division") and the "Impax Pharmaceuticals Division" ("Impax Division"). The Complaint alleges that throughout the Class Period, Defendants made materially false and misleading statements regarding the quality control at the Company's Taiwan production facility. Specifically, Defendants made false and/or misleading statements and/or failed to disclose that: () the Company failed to maintain proper quality control and manufacturing practices at its Taiwan facility in violation of current Good Manufacturing Practices ("cGMP"); () the manufacturing deficiencies at the Taiwan facility could have a material adverse impact on the Company's ability to successfully launch its new drug, RYTARY; (3) the manufacturing deficiencies at the Taiwan facility jeopardized the Company's ability to manufacture, sell, and distribute generic pharmaceutical products; and (4) based upon the above, Defendants lacked a reasonable basis for their positive statements about the Company and its outlook, including statements about its ability to launch RYTARY. On July 29, 2014, Impax announced that the FDA completed an inspection of the Company's Taiwan facility. The FDA's inspection covered two areas. First, it covered a Pre-Approval Inspection for RYTARY, given the critical importance of the Taiwan facility to the manufacturing processes of the Company's drug candidate. Moreover, it included a general good manufacturing practices inspection. Based on its inspection, the FDA issued a Form 483 (a form used by the FDA to document and communicate deficiencies in a company's manufacturing quality-control system), stating that it had found "ten inspectional observations," or deficiencies, at the Taiwan facility. On this news, the Company's shares fell $4.27, or over 15.23%, to close at $23.76 on July 29, 2014. Originally posted on money.cnn.com

Traumatic Brain Injury: Eleven More NFL Players Join Lawsuits

Former NFL players claim NFLPA concealed risks and awareness of concussion dangers. 

More Players Join Concussion Lawsuits Against NFLPA

August 13, 2014 Eleven former NFL players have joined in concussion lawsuits against the NFL Players Association - NFLPA. These players join the original plaintiffs in the lawsuits, which allege that the NFLPA was aware of concussion dangers (traumatic brain injury) to players for decades but ignored those risks and concealed them from NFL players. Copies of the amended complaints can be found here and here.

Personal Injury Lawsuit Filed By Passenger Injured In Chicago Train Crash

A woman reportedly suffered back and neck injuries after a Chicago Transit Authority train on which she was riding derailed and crashed into a subway station.

Personal Injury Lawsuit Filed Over Chicago Transit Authority Train Crash

August 7, 2014 A personal injury lawsuit has been filed against the Chicago Transit Authority by a passenger in the subway train that jumped the tracks and careened up an escalator at Chicago O'Hare International Airport in March. The derailment, caught on a surveillance video, propelled the train up an escalator toward two men standing at the top. Due to the early morning hour of the accident, the platform was deserted and no one was killed. However, more than 30 passengers on the train were injured, including plaintiff Dalila Jefferson, who was on her way to work as a security guard at the airport. Jefferson suffered back and neck injuries, according to the lawsuit. "While it is fortunate that no one was killed in this incident, the people who were injured deserve compensation for the harm they suffered," said Robert Briskman, a Chicago personal injury attorney not involved in the case. The National Transportation Safety Board investigated the March 24 incident. A union official told the Canadian Broadcasting Corporation that the train operator had worked a string of overtime shifts and was fatigued. The operator reportedly admitted that she fell asleep before the crash. Although the train did not exceed the safe speed guidelines, the emergency brakes and bumper at the end of the tracks failed to stop the train. The crash happened at approximately 3:00 a.m., and the few passengers waiting to depart were waiting in another, stationary train. Jefferson was riding in the first car of the Blue Line train when it crashed. She claims to have suffered a broken foot and other injuries, and she lost time from work. Jefferson also filed a motion seeking the personnel file of the train operator. Originally posted on lawfuel.com by LawFuel Editors

No Breach Of Fiduciary Duty For Corporations

A corporation apparently cannot be successfully sued for a breach of fiduciary duty

Corporations Don't Independently Owe Fiduciary Duties to Stockholders

September 3, 2014

On Aug. 7, Vice Chancellor Sam Glasscock III issued a letter opinion in the matter Buttonwood Tree Value Partners LP v. R.L. Polk & Co., C.A. No. 9250-VCL, that is not attention-grabbing because it wrestles with some nuanced topic de jure of Delaware corporate law, but rather because it deals nearly entirely with the rather pedestrian, but not often explicated, principle that a Delaware corporation does not independently owe its stockholders fiduciary duties. Rather, fiduciary duties are owed to the stockholders (and the company) by the directors and officers who are the actual actors on behalf of the company.

Medical Malpractice Lawyers: California Measure Would Raise Medical Malpractice Cap

Major Political Force Barbara Boxer Puts Support Behind Proposition 46. 

Former medical malpractice cap of $250K  would be raised under new Prop., which is opposed by doctors, teachers, the ACLU and powerful unions

SAN FRANCISCO (KCBS)-- Senator Barbara Boxer came out swinging Wednesday on behalf of Proposition 46 in a new ad campaign. Boxer (D-CA) is hoping that her considerable political clout and the emotional case made by grieving parents can offset huge campaign spending by the measure's opponents. The first 'Yes on 46' ad stars the senator herself. In it she asks viewers to look at pictures of children flashed on the screen and points out that all of them lost their lives due to medical malpractice. Boxer also appeared at a news conference, to say Prop 46 is just what California's initiative process was designed for.

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