“Standing” to Sue: Homeowners To Have Their Day in Court Against ‘Backdrop of National Housing Crisis’

Almost two years ago several homeowners filed lawsuits accusing eight major homebuilders of causing them serious financial injuries.  These injuries came to light when the housing market crashed and these normal, responsible homeowners saw their communities deteriorate around them.  

They were traditional homebuyers who bought homes in new developments advertised as “stable” and “traditional”; they were owner-occupants in communities where homes were not supposed to be sold to investors.  But it turned out that the vision they bought into was just a glossy sales campaign:  in fact, the developers had filled the communities with unqualified buyers who stood no chance of weathering an economic downturn.  

Taking action, our clients filed lawsuits alleging that the builder/developers deceived them about the nature and quality of the communities they were developing and of the homes they were building, marketing, and selling.  Our clients overpaid for what they really got.  And now that the curtain has been drawn back on the housing crisis, it’s clear that their homes and communities are less desirable to live in and suffered home value declines exacerbated by the true nature of these communities.  Developments flooded with high-risk borrowers have yielded a landscape of foreclosures, short sales, and blight. 

But there was one problem:  the homebuilders argued that because our clients hadn’t sold their homes, they hadn’t actually suffered an injury.  Legally speaking, they argued that the plaintiffs didn’t have “standing” to bring a lawsuit – they assert that responsible people who have stayed in their homes haven’t actually lost anything in this crash.  

Last week one of the most influential courts in America disagreed, allowing the homeowners’ suit to continue and, in the process, issuing one of the most recent appellate-level pronouncements on the Constitutional doctrine of standing. 

As reported by Reuters:

Against what the court called "the backdrop of the national housing crisis," the 9th U.S. Circuit Court of Appeals in San Francisco said last Wednesday a lower court erred in concluding the homeowners lacked standing to pursue their fraud claims.

You can read the full ruling here. 

The Ninth Circuit’s opinion debunked once and for all the strained argument that homeowners somehow could not claim they were harmed merely because they had not yet “realized” a loss through sale of their homes at a loss.   As Americans know all too well, declining real estate values have an immediate financial impact on people’s lives even without a sale. 

Tracing Supreme Court precedent as well as decisions from the Ninth Circuit and other circuits, the court concluded definitively that “a present decrease in the economic value of one’s home is a cognizable and concrete injury-in-fact.”

The Ninth Circuit’s opinion also rejected the homebuilders’ argument that homeowners could not claim an injury based on being misled into paying more for their homes than the homes were worth.  No better was the argument that homeowners weren’t wronged because they had received the “benefit of their bargain” and that buyers merely paid prices in line with what the market supported.  The court noted that these homeowners allege that the market for homes in these communities was set not by competition or on the merits, but by the homebuilders’ misrepresentations about what it was they were selling.  

This is an early victory for our clients and other homebuyers who, pursuing the American dream of home ownership, became victims of opportunistic players in the housing industry.  We look forward to returning to the trial court. We intend to prove the allegations made in these cases and hold those who profited from this wrongdoing accountable. 

For more information on joining the lawsuit, click here.

Comments (0)

Justice Department Publishes Amounts Received From False Marking Settlements

False marking claims have been in the news over the past year, as most intellectual property attorneys may well know. That’s because these kinds of cases have been launched to the forefront of several high profile court decisions and, as a result, big business is lobbying Congress to change the statute.

 The interest in false marking claims is so large that numerous Freedom of Information Action requests have been issued to obtain the settlement amounts from the Justice Department.

 Until now, it appeared that a limited few had access to this information and even fewer disseminated that information to the public. Because of this, most people, including both plaintiffs’ and defense attorneys, have relied on second hand sources to get settlement information on false marking settlements.

 If you’re like me, you don’t like to rely on hearsay, and we no longer have to.

 We’ve been informed by Justice Department officials that because they’ve received so many FOIA requests, 2010 and 2011 false marking settlements received by the government are now being released online directly to the public.

 The settlements are available in the Justice Department’s Electronic Reading Room under the “Frequently Requested Records” headline. Once there, select either “2010” or “2011” from the first drop-down menu. Then select “Settlement Payments Received for Section 292 Cases” from the second drop-down menu. As of today, it’s the only option available. Click “Select” and a PDF page will load with the settlement information.

Comments (0)

What to Do if You've Been Exposed to Asbestos

Many union workers exposed to asbestos have been led to believe that they have no legal options once they are diagnosed with mesothelioma. That’s not true.

The St. Louis Labor Tribune, the country’s largest union newspaper at 90,000 paid subscribers, published an article in the May 5 edition informing their readers about this misconception. The Simmons Law Firm, and myself, were featured in the article, titled “Decades later, asbestos still haunting union workers and families.”

Thousands of Missouri and Illinois trade workers have died from mesothelioma, and, as reporter Kevin Weaks wrote, “all they did was take a breath.”

So what do you do if you believe you’ve been exposed to asbestos? There are some precautionary steps that you can take.

First, educate yourself about asbestos and mesothelioma. It is a complicated topic and the Internet has just as much misinformation as it does correct information. Some reputable places to start include the Mesothelioma Applied Research Foundation andthe Asbestos Disease Awareness Organization. I’ve included additional links below to government studies and fact sheets.

Next, make a record of any of your potential past exposures. The Many companies knew about the dangers of asbestos. In the St. Louis area alone there are dozens of jobsites where asbestos exposure could have occurred. If you have records that you worked at a jobsite and used this product that contained asbestos, that’s important information.

Third, take that record to your doctor before you do anything else. Have an open conversation about your past exposure with him or her. They can help you evaluate your medical risk and make the best recommendations about what to do next.

Mesothelioma, while one of the more deadly consequences of asbestos exposure, is not the only illness linked to these exposures. Asbestos can increase your the risk of lung cancer, asbestosis, a noncancerous lung ailment, and other cancers, such as those of the larynx and kidneys.

No amount of money will give you back your health, and as firm partner Chris Guinn said in the above article, “We tell our clients that the most important thing is to focus on their treatment.”

Finally, consider your legal options. To learn more about the process of filing an asbestos lawsuit, I invite you to browse around our web site, starting with our mesothelioma and asbestos practice area section. Comments (0)

Looking Back, Moving Forward

For me, December and the holiday season has always been a time to reflect on the past year. A time to remember the challenges we’ve overcome; the projects we’ve spearheaded; and the goals we’ve achieved. Below I’ve compiled highlights from 2010.

Throughout the year, our attorneys continued to fight on behalf of victims of mesothelioma and their families. This summer, we secured a favorable appeal in Simpkins v. CSX Transportation for all Illinois families impacted by a mesothelioma diagnosis. The Appellate Court of Illinois ruled that employers do have a duty to inform their employees’ family members about the dangers of take home asbestos exposure. The ruling established an important precedent for mesothelioma victims and their families.

The firm’s success did not stop with our mesothelioma practice. This spring the commercial litigation department secured a $32 million dollar settlement in an antitrust lawsuit. Then throughout the year, the intellectual property department secured two preliminary injunctions in separate cases, including one involving camouflage sports apparel and vampire welding helmets. This year once again proved that partnering with clients, instead of billing exorbitant hourly rates, gets better results, faster.

Our pharmaceutical litigation department gained momentum early on in 2010 by attaining leadership roles in the Yaz and Chantix cases, both examples of high-visibility litigation the firm has handled over the years. I expect momentum to only increase as our phrama team continues to advocate for consumer rights and investigate drugs pulled from the market by the Food & Drug Administration through 2011.

The mesothelioma community made great strides in 2010 by ramping up efforts to improve awareness of mesothelioma and the dangers of asbestos. We were pleased to celebrate several victories with our friends at the Asbestos Disease Awareness Organization and the Mesothelioma Applied Research Foundation. In April, the U.S. senate passed a resolution declaring the first week of April as National Asbestos Awareness Week. Then, in November, after many months of hard work educating congressional leaders about the need for more awareness about mesothelioma, the U.S. House passed a resolution making Sept. 26, National Mesothelioma Awareness Day. The mesothelioma community has also moved into the social media world. You can now fan the Simmons firm, Miles for Meso, Ban Asbestos Now! and ADAO & MARF on Facebook.

In 2010, the firm tripled our own ongoing efforts to promote awareness of mesothelioma by becoming the national sponsor of Miles for Meso, starting the Simmons Mesothelioma Foundation, and celebrating the opening of the Simmons Cancer Institute.

The firm’s non-profit endeavors did much during 2010 to help our community and cancer patients across the county. The Foundation formed critical partnerships with leading medical mesothelioma experts throughout the country, which provides mesothelioma patients with cutting-edge treatment options regardless of where they’re located in the United States. In addition, the firm hosted the Second Annual Alton 5K Miles for Meso Run & Walk, and sponsored additional Miles for Meso races in Florida, Indiana and Virginia. The three races combined raised approximately $40,000 for mesothelioma research and drew just under 1,000 participants.

I’m also proud of the work our employees, through the Simmons Employee Foundation, have done this year to improve life in our local community. This spring, they hosted their 4^th Annual Dinner Auction, which raised more than $200,000 for two area charities. Then this fall, the employee’s annual golf tournament raised just over $15,000 for two other local charities. These two events, while the most visible, represent only a portion of the work and donations the firm’s employees contributed to their communities throughout this economically difficult year.

Looking back, the firm has had a very busy 2010. Yet, looking forward, life at the firm is going to get even busier. If you haven’t heard, the firm is relocating its headquarters to Alton, Illinois. Since the summer we’ve been renovating the old Jefferson Smurfit building in downtown Alton. It’s a beautiful location surrounded by historic brick streets and stunning views of the Clark Bridge and Mississippi River.

 As we literally move into 2011 and into our new building, we’ll continue to fight for the rights of patients and their families. We’ll work to raise awareness about mesothelioma, generate funds for mesothelioma research, and call for legislation banning the use of asbestos. We are grateful for 2010 and look forward to the challenges of the coming year.

Have a safe and happy holiday, and we look forward to seeing you in the New Year! Comments (0)

Toyota Deja Vu: Automaker Issues Another Recall For Brake Concerns

Toyota once again finds itself in the crosshairs of public and media outcry. It issued its 16^th recall Oct. 22, 2010, which pushed the total number of vehicles recalled this year past the 10 million mark.

The Simmons law firm has been investigating Toyota since 2009, before the automaker recalled about 8.5 million cars and trucks worldwide over a range of problems, including unintended acceleration, and was widely criticized by the government and consumer safety groups.

Unintended acceleration is a dangerous situation caused by electronic faults or when gas pedals jam or get stuck under floor mats, causing vehicles to speed out of control. 89 fatalities have been attributed to unintended acceleration, according to the National Highway Traffic & Safety Administration.

For more information about unintended acceleration, visit my previous blog post.

The most recent recall stems from problems involving the brake & fuel pumps. In a Toyota press release, the car company explains that if consumers don’t use brake fluid made by Toyota, then part of the brake could become distorted, allowing the fluid to slowly leak and eventually causing braking performance to “gradually decline.”

Toyota is doing its best to favorably spin the reasoning for the most recent recall. A Toyota spokesperson told the New York Times last week that the voluntary recall is the company’s attempt at being “more forthcoming about potential defects.”

“Every time we announce a recall, that is a step toward increasing quality,” a spokesman for Toyota in Tokyo, Paul Nolasco, told the New York Times. The pedal-related recalls had “brought it home to Toyota that we need to refocus on quality,” he said.

I think it’s a shame that it’s taken 89 deaths, 6,200 complaints and 10 million cars for Toyota to learn that even big businesses are held accountable. Toyota should have followed Tylenol’s example during the cyanide poisoning cases and taken steps to correct the problems as soon as the first reports of fatalities occurred.

As the counsel of record in the first-filed class action complaint filed in November 2009 against Toyota, our personal injury attorneys have become adept at seeing through Toyota’s flimsy attempts at transparency. If you or a loved one were injured in a car accident due to unintended acceleration in a Toyota or Lexus vehicle, call 1-866-468-8631 to receive a free consultation.

For more information about the Simmons firm investigation into Toyota’s serious safety concerns, click here. Comments (0)

Vampire Definition Helps Settle Intellectual Property Infringement Case

Vampire pop culture recently contributed to a Simmons law firm client’s success in settling an on-going intellectual property infringement case.

Hoodlums Welding Hoods is a small business that designs creative welding helmets. One of the company’s more popular designs resembles a red skull with fangs and flames shooting out of the base of its neck. The design looks so tough it won a “Balls out Best” recommendation from Maxim Magazine. 

But that’s not all the attention Hoodlum’s design got. A licensee of Hoodlum’s had surreptitiously hired the defendant to manufacture the helmet on Hoodlum’s behalf.  The defendant then made its own red skull with flames helmet, but then marketed the helmet as its own product.

The defendant tried arguing that our client’s intellectual property was limited to a “vampire skull” with flames, while the defendant’s helmet was simply a regular (flaming) skull, and thus there was no infringement.

The Simmons law firm filed suit on behalf of Hoodlums in June 2008 alleging copyright infringement, trademark infringement and unfair competition, patent infringement, and false marking in an eleven-count complaint.

In a patent case, the plaintiff and the defendant argue the meaning of their respective patents before a judge in a hearing called a Markman hearing. The judge then interprets the definitions of the patents before the case proceeds to trial.  

 The judge faulted the defendant’s “vampire skull” argument because it provided no guidance as to how a vampire, or its skull, should look, or how it would differ from a normal human skull.  “As Bram Stoker (Dracula), Anne Rice (Interview with the Vampire), and Stephanie Meyer (Twilight) can attest, there is no single way to envision or describe a vampire. The same must be true of a ‘vampire skull,’” the judge wrote to explain why he agreed with Hoodlums’ definition.

In the end, the judge agreed with all of our team’s arguments about Hoodlums’ patent definitions. That overwhelming decision led to the firm’s recent announcement of a settlement between the two companies. Not only did the defendant agree to enter into a license agreement, it admitted it infringed Hoodlums’ designs and that Hoodlums’ intellectual property was strong—all very unusual for a settlement.

When it comes to protecting patents and copyrights, this case was very diverse. It’s not every day vampire pop culture can help a small company defend its product, but having an experienced IP lawyer who can help you navigate the nuances of patent and copyright law is something you can have everyday no matter how small your business or how big your opponent. Comments (0)

BBC's "Dangers in the Dust" asbestos investigation highlights "take home" asbestos exposure

At long last, we’re seeing some meaningful, in-depth media coverage surrounding asbestos exposure and the horrible diseases it causes, like mesothelioma.

This is all courtesy of a collaboration between the BBC's International News Service and the International Consortium of Investigative Journalists. "Dangers in the Dust" is being rolled out this week across the BBC's international services, and through ICIJ’s more than 50 partner publications worldwide, including the McClatchy publishing company, owner of over 30 daily newspapers in the U.S. The series examines the dangers of asbestos on an international level and also includes a story on victims of “take home” asbestos exposure called, "Asbestos still killing families, decades later."

When most people think of mesothelioma – if they’ve ever even heard of mesothelioma – they think of a disease that strikes retired workers. They don’t think of people like our 39-year-old client Julie Gundlach. Since her mesothelioma diagnosis, she has been a tireless advocate for mesothelioma and asbestos-related illnesses.

When I was contacted by a reporter with McClatchy’s Illinois newspaper, the Belleville News-Democrat, writing an investigative piece on the dangers of asbestos and the “third wave” of asbestos victims, Julie immediately came to mind.

Julie is a young mother living with peritoneal mesothelioma. She lives in St. Louis with her husband, and she was exposed to asbestos when her father brought it home on his clothing after working as an industrial electrician.

Fact: people like Julie who don’t work around asbestos can be exposed to asbestos by others who do.

It’s called “take home” exposure. Here’s how it works: The asbestos dust gets on an worker’s clothes and skin. When they leave to go home so does the dust, causing them to expose their spouses, children and other immediate family members. In some cases, children have developed mesothelioma or other asbestos-related diseases later on in life because they hugged their parents. In Julie’s case, her childhood playroom doubled as her family’s laundry room where her father’s asbestos-covered clothes were washed.

Helping people like Julie as they fight to be that “one-in-a-million survivor,” as she says in the article, is rewarding. Her story illustrates the important role the legal process plays in ensuring mesothelioma cancer patients receive the funding they deserve to get the best treatments available.

As the BND article accurately states, she has had three surgeries and made over 25 trips to New York for treatment. "If it were not for the legalities, I would have never been able to receive the medical treatment I received," Gundlach said in the article. "I'm still not able to work. Mesothelioma kills innocent people, asbestos kills innocent people, it's not banned, and that is the story, that is the issue."

“Take Home” Asbestos Exposure In the Courtroom

Laws affecting victims of asbestos exposure are not relics from past generations. They continue to evolve in real time. Cases involving “take home” asbestos exposure can be especially combative because the company’s defense lawyers argue “take home” exposure isn’t their client’s problem because family members aren’t employees.

The Appellate Court ruled that companies are required to take steps to prevent the deadly dust from reaching the workers’ home. This is important because some courts have gone the other way and ruled the companies have no duty to the workers’ families; even though the risk of disease in the home was completely foreseeable.

For families like Julie Gundlach’s, this is very important. If certain companies are able to change the laws, sick family members will have no legal recourse. It is our goal to continue to fight for victims and make sure they have access to the courts.

Comments (0)