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Arbitration Clauses Under Attack
By: Charles R. Gallagher III
Minnesota's Attorney General, Lori Swanson, recently filed suit against the National Arbitration Forum, an allegedly independent body that is the forum for resolution of credit card disputed. The suit charged that the dispute-resolution company engaged in "deceptive practices" in hiding its ties to the debt-collection and banking industry.
Most credit card companies (as well as cell phone providers and employers) include language in their agreements that disputes must be referred to arbitration and the consumer has waived the right to file a lawsuit. Most credit card disputes are handled each year through arbitration. Ironically, Congress is presently considering whether to ban mandatory arbitration clauses in contracts, and credit card companies.
The National Arbitration Forum is one of the largest providers of arbitration services for the credit card industry. The lawsuit alleged that the company "actively encouraged" issuers to place mandatory arbitration clauses in their contracts and sometimes "assist(ed)" issuers in arbitration claims against consumers.
The National Arbitration Forum, claims that its contractors are "independent," ensuring the "impartiality" of arbitration. NAF further responded stating that "at no point does any minority shareholder or fund have any role or influence" over the arbitration process. The lawsuit could serve as a catalyst for national reform of the arbitration process. |
St. Petersburg's Homeless Fight Back
By: Tracy M. Evans
A Federal law suit was filed on May 21, 2009 by the Southern Legal Counsel (SLC),Florida Institutional Legal Services(FILS), and theNational Law Center on Homelessness & Poverty (NLCHP) on behalf of several St. Petersburg homeless individuals. The law suit calls into question several city ordinances that have been passed since 2007 in addition to police practices in dealing with the homeless. The plaintiffs in the suit have faced citations and arrests for several activities they must do to survive including sleep, panhandle for money and food, and find shelter. The complaint alleges a violation of several constitutional protections including equal protection, the right to be free from cruel and unusual punishment, the right to travel, free speech, and the right to be free from unreasonable searches and seizures. The plaintiffs are seeking an injunction that will put an end to enforcement of the ordinances and practices in addition to a declaration of the unconstitutionality of these practices.
Possibly adding fuel to the fire is a recent report published by the National Law Center on Homelessness & Poverty (NLCHP) and the National Coalition for the Homeless (NCH) which focuses on the growing trend in the United States of the criminalization of homelessness. According to the report, St. Petersburg, Florida ranks as the number two meanest city towards its homeless in the United States. Other Florida cities making the top ten include Orlando, ranked number three, Gainesville, ranked number five, and Bradenton, ranked number 9.
However, while it is easy to see the position of the homeless involved in the suit, sometimes it is difficult to sympathize. A recent Tampa Bay Times article took at an in-depth look at the individuals who stand on virtually every busy intersection in St. Petersburg. Interviews with several of these seemingly "homeless" people revealed they were not homeless at all. Most paid weekly rent in advance to live in hotels. One man boasted about his success in using two different signs depending on the day of the week or the driver in the car-one sign reading "God Bless" was used on Sunday mornings, while the other, which expressed his need for beer money proved effective on younger-looking clientele. One woman's sign stated she was homeless with children, but the number of children she has varies daily. In addition, several people claiming to be disabled veterans were found to be neither disabled nor veterans-all just ploys to gain sympathy and money. It was found that these street corner sign-holders bring in on average between $80 and $100 a day. Do the math, and that is over $30,000 a year-an amount that is well above the poverty line and not to mention, tax free. While there still remains a significant population of truly homeless individuals in St. Petersburg, those impersonating the homeless may be causing sympathy to wane.
A homeless count that was conducted in early 2009 revealed there are over 6,200 homeless men, women, and children living in Pinellas County. Thus, the fact remains that homelessness in St. Petersburg is a serious problem. Whether the plaintiffs in the recent federal suit will succeed will likely depend on their ability to procure the necessary public sympathy and establish their desperate situation apart from those who only pretend to be needy.
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G&A Clients Featured on BayNews 9
Clients Christina Taylor and Sheila Brettnacher were featured on BayNews 9 with regard to their mortgage fraud suit. The story discussed the effect of the new law which increased court filing fees, in some cases up to $1900.
The story also sought commentary from Charles Gallagher on the long term effects of the this new law. Taylor and Brettnacher stated they were fortunate to have filed their suit prior to the enactment of the new law, which would have required they pay a court filing fee of $1900 as opposed to the $295 court filing fee they paid.
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Medical Error Disclosure=Good Medicine
By: Douglas Hall & Amy E. Cuykendall
On July 21, 2009, an article was published in the St. Petersburg Times about a man who claims the VA hospital lacerated his heart during a procedure and failed to tell him about it. The man says that he continues to suffer from health problems as a result of the laceration and the hospital refuses to discuss it.[1]
As we all know, medical errors can (and do) take place at hospitals. Unfortunately, in such events patients are often left wondering what happened and may be unable to get information from their healthcare providers.
However, Florida law requires healthcare professionals to inform a patient, or a representative of that patient, in person of any adverse incidents that result in serious harm.[2] Conscientious, law-abiding providers disclose such adverse outcomes, but patients and their families may still feel unsatisfied.
Currently, there is movement toward a form of alternative dispute resolution referred to as Collaborative Law, which focuses more on amicable solutions than placing blame. In the event of an adverse incident, a representative from the medical facility meets with the patient and/or the patient's family in an informal and confidential settlement meeting. The ultimate goals of the meeting: answer the patient's and family's questions, make any necessary disclosures, preserve the reputation of the medical facility, and avoid costly litigation. Often, the patient and family just want a sincere apology.
"Collaborative Law is a 'natural fit' in the medical error context, encouraging immediate participation of the parties, in consultation with their attorneys, once medical error has been alleged", according to Dr. Kathleen Clark, PhD, JD, MAM.[3] Collaborative Law provides solace for the patients and their families, and it relieves providers from fear of liability for saying "the wrong thing."
For more information, contact:
Douglas Hall
PULSE of Florida
Amy E. Cuykendall, Esquire
Patient Advocates, LLC
[1] Navy Veteran's Family Says VA Kept Mum About Heart Laceration, St. Petersburg Times, July 21, 2009.
[2] 395.1051 Duty to notify patients.--An appropriately trained person designated by each licensed facility shall inform each patient, or an individual identified pursuant to s. 765.401(1), in person about adverse incidents that result in serious harm to the patient. Notification of outcomes of care that result in harm to the patient under this section shall not constitute an acknowledgment or admission of liability, nor can it be introduced as evidence.
456.0575 Duty to notify patients.--Every licensed health care practitioner shall inform each patient, or an individual identified pursuant to s. 765.401(1), in person about adverse incidents that result in serious harm to the patient. Notification of outcomes of care that result in harm to the patient under this section shall not constitute an acknowledgment of admission of liability, nor can such notifications be introduced as evidence.
[3]Clark, Kathleen, PhD, JD, MAM, The Use of Collaborative Law in Medical Error Situations, The Health Lawyer, Volume 19, Number 6, June, 2007. Available at website, www.servantlawyership.com |
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More Work for the French By Erika Mariz
A The French way of life may be set to come to an end according to critics of proposed legislation supported by President Sarkozy. Since becoming president, one of the reforms Sarkozy has been pushing is a proposed bill which seeks to allow more shops to open on Sundays.
In 1906, a French law established Sunday as a mandatory day of rest. Sunday was to be a day for the French to enjoy time with their families. Essentially, Sunday has traditionally been a mandatory day off from work. However, there are a number of loopholes that permit work on Sundays in tourist zones if the shops meet specific criteria.
As France plows through its worst recession since the 1940s, politicians believe that working on Sundays may help the nation come out of the economic crisis. Proponents of the bill say the law aims to legitimize a situation that already exists in which many shops are open on Sunday. Proponents of the law argue it will help decrease unemployment, increase revenues from tourism, and boost the economy by allowing consumers to shop on Sundays.
Opponents, however, believe that it will end the French way of life. France's unions, leftists, and opposition Socialist Party are very vocal about their opposition to the bill. Socialist lawmaker Jean-Marc Ayrault claims that they oppose the bill to defend "Sunday as a rest day, the only day people can relax with their families, play sports, express spirituality." Furthermore, the opposition believes that this bill will lead to the generalization of Sunday as a day of work. Others believe that eventually employees would be forced to work on Sundays, and a seven day work week would come into existence. Even some members of the president's own ruling party opposed the law as they believed it would deprive families and church groups of their day.
The new law would fix some of the loopholes in which currently permits some shops to open on Sundays and excludes others from opening. Furthermore, some stores illegally open on Sundays and pay the penalties because their Sunday sales more than make up for the fines. The new law would legitimize shops like these.
Under the proposed law, shops in Paris, Marseille, and Lille, (France's three largest metropolitan areas) would be allowed to open on Sundays. Employees would be given the choice to refuse to work on Sundays, and employers would have to pay those who agree to work on Sundays double overtime. In addition, shops in 29 zones in 500 other towns deemed to be tourism destinations, could also open on Sundays. Some of these small towns have shops which currently meet an exception and already have economic activity on Sundays.
The bill already passed the National Assembly by a vote of 282 to 238. It will go to the Senate for debate where it is expected to be approved.
It will be interesting to see if the law goes into effect and if the fears of the opposition come to life.
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Dent in Jupiter?
By Jeri Ostuw
With the recent anniversary of one of man's greatest accomplishment of landing on the moon, our conception and knowledge of space is still substantially limited. It's ironic the anniversary of the moon landing occurred in tandem with an Earth-size dent carved into Jupiter.
In Australia, an amateur astronomer noticed the new spot on Sunday and proceeded to inform NASA's Jet Propulsion Laboratory (JPL) in Pasadena, California. From there, NASA confirmed the Earth-sized scar is new.
NASA is uncertain as to what created of the mystery mark on Jupiter. One theory is a wandering comet struck Jupiter and another is a block of ice. Whatever the source of the mark, astronomers were still able to witness the impact despite the inability to identify the object. This was only the second time scientists have witnessed an impact on Jupiter, the largest planet in our solar system. |
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G&A Summer Happy Hour 
G&A will be hosting a summer happy hour on Wednesday, September 2 from 5:00-7:30 p.m. at our Party Deck and Tiki Bar at the firm. Please join us for this opportunity to enjoy some time fun with clients and friends of the firm. Guests are welcome and feel free to pass along the invitation to others.
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G&A News & Notes
-Ginny Keeter Bodkin celebrated her two year anniversary with G&A and was awarded a plaque to commemorate her service to the firm.
-On September 22 Charles Gallagher will present a talk on Bald Faith Insurance Claims at the NBI Seminar in Tampa.
- May Moser celebrated her one year anniversary with G&A and was awarded a plaque to commemorate her service to the firm.
-Chris Heise celebrated her one year anniversary with G&A and was awarded a plaque to commemorate her service to the firm. |
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G&A Email Directory
Charles R. Gallagher III crg@attorneyoffices.org
Erika Mariz
Joseph F. Milligan
Tracy Evans
Eileen C. McGee
Cynthia Corder
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Gallagher & Associates Law Firm, P.A. accepts cases throughout the Tampa Bay area. Our main practice areas include: insurance litigation, real estate & business litigation, accident/injury litigation, consumer law, and employment litigation. www.attorneyoffices.org |
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The hiring of a lawyer is an important decision that should not be based solely upon advertisements. Before you decide, ask us to send you free written information about our qualifications and experience. This web site is designed for general information only. The information presented at this site should not be construed to be formal legal advice nor the formation of a lawyer/client relationship. | |
