Monday, February 16, 2009

Personal Injury Attorney - Injuries On, Or While Embarking Or Disembarking From, International Flights

Airline safety has been in the news a lot lately.  I had an interesting case about a year ago involving an injury that occured while the plaintiff was changing planes in New York for the second leg of an international flight.  I thought I'd share a little of what I learned.
For injuries related to international flights, the Warsaw Convention (as modified by the Montreal Convention) imposes strict liability upon Air Carriers, making them responsible for any injury that happens on board an aircraft, or while embarking or disembarking.  Article 17 of the Convention states:
The carrier shall be liable for damage sustained in the event of the death or wounding of a passenger or any other bodily injury suffered by a passenger, if the accident which caused the damage so sustained took place on board the aircraft or in the course of any of the operations of embarking or disembarking.
This insurer-like liability, however, is limited to approximately $150,000 (the equivalent of 100,000 international monetary fund units, SDRs).  For injuries that exceed that amount, such as a wrongful death case, the plaintiff must prove that the airline was negligent.   Additionally, the Warsaw Convention only gives claimants two years to initiate a suit, which may be shorter than some states allow for an ordinary negligence suit. 

To determine whether an injury occured while "embarking or disembarking" an aircraft, the Second Circuit (the Federal Circuit encompassing New York and Connecticut) examines four factors – activity, location, control, and imminence of actual boarding.  The purpose of the "embarking or disembarking" language was to make clear that the convention does not apply to every accident that occurs in an airport, or every accident tangentially related to international air travel. 

* The Warsaw Convention (49 Stat. 3000, 49 U.S.C. § 1502).


Day v. Trans World Airlines, Inc., 528 F.2d 31 (2d Cir. 1975).
Buonocore v. Trans World Airlines, Inc., 900 F.2d 8 (2d Cir. 1990)
* King v. American Airlines284 F.3d 352 (2d Cir. 2002)
* Ehrlich v. American Airlines360 F.3d 366 (2d Cir. 2004)


* The New York Times, "Icing Played Down in Buffalo Crash," (February 16, 2009)
* ET Online, "Travis Barker Files Lawsuit Against Airline," (November 21, 2008).


New York Personal Injury Blog, "Buffalo Plane Crash Will Test New York's New Anti-Solicitation Rules," (February 13, 2009)

The Consumerits, "U.S. Airways Flight Makes Surprise Landing In The Hudson," (January 15, 2009). 

*  Video Of Hudson River Landing (January 15, 2009).

* Pilot of the Century - Belly Landing on Beach ," (May, 2008).  (a fellow law blogger posted this video several months ago; I remembered the video, and was able to find it on Youtube, but cannot remember which blog it was on).  

Saturday, February 14, 2009

Happy Valentine's Day

I have been married for three months. I am by no means an expert on the topic, but I am doing my best. Stephanie and I met during my last year of law school. She was there when I was still a hopeful student; she was there, and struggled by my side, when I first started out; she is there when I come home, stressed and tired; and hopefully she will be by my side forever. So Stephanie, thank you.

Luckily, Stephanie is not a lawyer, so I have not completely lost contact with humanity. My hours aren't bad for an attorney, but between work and commuting I am still gone more than 60 hours per week. She is understanding, and I usually come home to a smile and a warm dinner. Even when she's not so understanding, it's nice to have someone who wants you home. Her insights are always invaluable, and I trust her opinion more than anyone's. 

Steph, I love you. Happy Valentine's Day.

Sunday, February 8, 2009

Bank of America Settles Closson Class Action Over Illegal Non-Sufficient Fund and Overdraft Fees

Bank of America, the largest bank in the United States, has agreed to settle a Nationwide Class Action related to its overdraft and non-sufficient fund fee practices. For class members in this settlement, the time period has begun running to accept or decline the offer, which will then to to the assigned judge for approval.

The legality of nationwide banking practice regarding overdraft and non-sufficient fund fees has been challenged for nearly twenty years, with little success. Banks nationwide, while encouraging frequent debit card use for small items, use a non-common sense accounting method to maximize overdraft fees. The banks -- in contrast to the generally accepted first-in-first-out accounting method -- re-calculate account balances each night by sorting the transactions from highest to lowest. That way, if you overdraw your account, the smaller transactions will be processed after the overdraft, thereby generating more fees for the bank. Some banks also approve debit transactions even when you already have a negative balance. The banks call this a "courtesy overdraft," even though no-one in their right mind would pay their bank $35 for the "courtesy" of lending them $4 for a cup of coffee.

The list of banks includes, I believe, Citigroup, Chase, Wachovia, Wells Fargo, HSBC, U.S. Bank, SunTrust, Washington Mutual (WAMU), Liberty Bank, and Capital One. [contact your banks for information regarding their curent practices].

The U.S. banking industry earns approximately $10 Billion per year from this practice, and Bank of America has nearly 10% of the total U.S. market share for consumer accounts.

The banking industry is subsidized by the U.S. Government. Over the last year, Bank of America has received $45 Billion in bailout money from U.S. tax payers, and is slated to receive a substantial amount more. We, as citizens, should have a say in the practices that affect us, and this practice should be illegal.

The amount, $35,000,000.00, will be divided amongst an unknown number of class members, with each class member receiving a maximum of $78 (there is no minimum).

The settlement will render pending motion practice moot, meaning that the court will not reach a decision regarding whether Bank of America's practices were illegal. As discussed in my prior posts, the bank has a strong possibiltiy of winning this case because, through political maneuvering, U.S. banks pushed through federal legislation in the 1980's and early 1990s that, in essence, allows banks to charge whatever fees they want and makes them immune from state usury laws. The argument for plaintiffs, however, is that the issue is not whether these fees are interest (thus triggering the usery laws) but, rather, whether the banks are engaging in a fraudulent or deceptive practice; i.e. it is not the return the banks receive on these overdrafts per se but, rather, the deceptive manner in which the fees are generated that makes them illegal.

Whether to accept a settlement is an individual decision to be determined by each client, and the Court will decide whether to approve the settlement, in part, based on the response from the class members. Nothing on this blog, of course, should be relied upon as legal advise.

I have four concerns. First, this is an opt-in settlement, meaning that you will only be included if you submit a claim form. The settlement, however, is on behalf of all Bank of America customers who have been affected by this practice, nationwide, between the years 2000 and 2007. It has an opt-out exclusion provision, so if you do nothing, you still lose your rights (but get nothing). Thus, if approved, this settlement may be the last word in this litigation. I do not know what notice was sent to current bank of America customers, but in my opinion notice should be given, at bank of America's expense, to everyone whom their files suggest are class members; second, the process should be equally easy for claim acceptance and/or objection.

Second, there is no guaranteed minimum. This unfair practice has likely hurt millions of people over the years. If everyone who has been hurt by this practice actually submits a claim, the amount each class member receives could be reduced to pennies. The settlement could have included a minimum payment, and if the number of claimants grows to the point where the pro-rata share is less than that amount (at $35, this would be 685,000 people), then Bank of America could either increase the settlement to cover the minimum amount or the settlement would be void. The judge has the right to do this by refusing to approve the settlement after the opt-in period, but there is no guarantee that the judge would halt the settlement under those circumstances.

Third, the settlement does not require Bank of America to stop its unfair practices. Thus, Bank of America will continue to reap billions of dollars in profit from those who can least afford it, and the settlement will pay for itself within a few weeks. There is the possibility that the practice will be outlawed. In fact, the Federal Government is considering that right now. This practice, however, is so immoral that a voluntary change in practice should be insisted upon. It may seem like small amounts, but this practice can be truly devistating. In one of my prior posts on this topic, a commenter wrote that they had been charged $240 in overdraft fees in a single day due to the bank re-sequencing their transactions. If, hypothetically, that person were making minimum wage, the bank would have taken their entire weekly paycheck.

Fourth, under the agreement, any remainder from the settlement fund will go to as-yet unnamed charities, so long as those charities do not engage in political activity against the banking industry. This is fairly standard, and it makes sense that Bank of America would insist that the funds not be used to lobby against them. But it irks me nonetheless. Bank of America spends approximately $3 - 4 million per year on lobbyists, while the entire consumer rights lobby is a small fraction of that. (So small that I cannot find statistics on it). This practice would never have been permitted at all if it had not been for a concerted effort by the banking lobby in the 1980s and early 1990s. I think a better solution would be to give the money, in increments of $10 or so, to Bank of America's account holders with the lowest average daily balances.

Despite these concerns, the settlement may still be a good idea for many, if not most, people have been aggrieved by these practices because the challenges to these practices have not faired well in the courts in the past, for many people they may have only lost a small amount, and this may be your only opportunity to receive something back. If you decide not to accept the settlement because you think it is unfair, you should nonetheless submit an objection.

If you do decide to accept the settlement, you should be aware that you still have a right to object. You can accept the settlement by filling out the form, here, and you can object by writing the Court and counsel, here.

It is my understanding that most banks engage in similar practices, and I am interested to know how much interest there is in additional litigation. If there is a large interest in pursuing this issue against other banks, I would consider pitching the idea to my firm. If you are someone who has been aggrieved by this practice, send me an e-mail. Comments, of course, are also welcome.

If you would like more information, please see my other related posts:

* June 27, 2008, "
Week In Review," (the Federal Reserve is now considering a rule to curb abusive overdraft fees by banks).

* May 7, 2008, "Debit Cards and Overdraft Protection: The US Allows Banks To Steal 10 Billion Dollars Per Year From The Poor."

* August 31, 2007, "The UK Takes Steps to Curb Illegal Overdraft Fees, But US Efforts Have Not Been So Well Received."

Also, consider the following outside sources:

* Settlement Administrator's Website,

* The Washington Post, Bailout recipients also major lobbyistsashington Post Article, (1/23/2009)

* USA Today, FDIC: Bank overdraft fees hit young, low-income customers, (12/3/2008)(Overdraft fees are boosting banks' profits at the expense of consumers, especially young and low-income people, finds a new Federal Deposit Insurance Corp. study.")

* USA Today, Good news in the works on overdraft charges, 6/3/08.

* USA Today, Banks' check-clearing policies could leave you with overdrafts, (11/19/2006)

* USA Today, Banks' check-clearing policies could leave you with overdrafts ; USA Today 11/20/06

* Wikipedia, Overdraft

Tuesday, February 3, 2009

Legal News Around Long Island -- January 2009

It has been a busy month on Long Island.    


Suffolk County has made international news as a focal point of racism in the United States.  In November, the Suffolk County District Attorney's Office began prosecuting a group of seven Patchogue teens who are accused of beating an equadorian immigrant to death.  Apparently, these teens were part of a much larger group of teens who would roam the streets and randomly assault hispanic residents.  Several news outlets have criticized Suffolk County Law enforcement for failing to pick up on the pattern for more than a year.  The County's handling of the situation is under investigation by the U.S. Justice Department's Civil Rights Division, the FBI, and the U.S. Attorney's Office. (here and here).  

Unfortunately, this is merely one example of a larger trend of discrimination.  Twice last year, nooses were found hanging in the woods near Sag Harbor, (here and here), and a Ronkonkoma mortgage broker recently settled a suit brought by the State Attorney General's office accusing it of charging higher mortgage rates to black and hispanic applicants than to whites. (here).  

The Suffolk County Legislature is debating a bill that would form a special task force to examine the problem and draft a report within the next year suggesting solutions.  


State and Federal authorities are contemplating criminal charges against Agape World, a Happauge based investment firm that uses investor capital to fund short-term high-interest loans to developers and builders. (here). The goverment says it may have been a Ponzi scheme, but the firm's president, Nicholas Cosmo, claims that he stopped paying the investors because of loan defaults, and is in the process of taking legal action to collect on the loans.  


* On February 2nd, the Federal District Court in Central Islip began a trial in Francarl Realty v. Town of East Hampton.  The plaintiff, Francarl Realty, owns the Montauk ferry terminal, and claims that the Town of East Hampton violated the U.S. Constitution by unduly restricting interstate commerce when, in 1997, it enacted a local law that prohibits "car ferries" and "fast ferries" in Montauk Harbor. (Coverage here and here). 

* The Town of Southhold continues to fight with Cablevision over free public access. (here).  Cablevision's contract with the town requires that it provides public access channels free of charge.  With the conversion to digital, however, Cablevision is now charged $6.50 per month for a converter box.  This effects approximately 300,000 of Cablevisions subscribers, mostly older residents, who have only the bare-minimum access package that provides broadcast stations via cable.    

* The Unkechaug Tribe, of Suffolk County's Poospatuck Reservation, has filed a suit against Suffolk County and the Suffolk County Police Department for civil rights violations.  (here).  In September, Suffolk County and NYC Mayor Michael Bloomberg sued the tribe to halt the sale of tax free cigarettes.  Now, the tribe claims, Suffolk County police are standing guard at the entrance to their reservation and harassing residents and guests as they attempt to enter or leave.  

* The Peconic Baykeeper is continuing its years-long fight to end mosquito spraying in the Peconic Bay.  (here


* A personal injury suit against the Town of Huntington has led to the town correcting a dangerous condition on 25A.  The segment of roadway in question, a curvy portion of 25A in Centerport, is known for flooding and freezing over during the winter, but the Town has now hired a contractor to improve the drainage situation.

* The Court of Appeals has dismissed child endangerment charges against a group of Suffolk County nurses and their lawyer.  (See coverage, here and here). The group of 10 nurses quit in April 2006, on advice of counsel, in connection with a pay and benefits dispute.  The abrupt departure left the Avalon Gardens nursing home, in Smithtown, terribly understaffed and unable to care for the chronically ill children who reside there.  The Court of Appeals, however, found that it was improper to criminally charge the nurses with child endangerment.  

* A Manhattan Judge has thrown out a wrongful arrest suit by John Clifford, who was taken into custody in October, 2007, after throwing a fit on a LIRR train and yelling at a passenger to stop talking on their cell phone.  

* A new detail in the Wal-Mart trampling case.  As more suits are filed, it has been revealed that the worker who was trampled to death was trying to protect a pregnant woman, who was also being stampeded by the crowd.  

* Hamptons resident Paul McCartney is now officially divorced. 

* A Mineola attorney has settled charges in connection with the Attorney General's probe of attorneys who may be improperly receiving pensions from various school districts throughout the state.  

* According to the Daily News, a 28 year old Long Islander has sued his former employer, a French financial firm, for sexual orientation discrimination, alleging that -- although he is heterosexual and married -- he was terminated due to being a vegitarian because his bosses perceived it as a homosexual trait.    

A Riverhead family has filed a lawsuit against a real estate developer for knowingly selling a defective home.  (here).  According to the suit, although the home was a new construction, there were cracks in the foundation, resulting in severe water leaks.  

* Former state Senator Carol Berman has settled her lawsuit against the LIRR, alleging that she broke her ankle after falling into an overly-wide gap, for $150,000.  (here). 

* An attorney has been suspended from practice for soliciting a sexual act from a minor (who, in reality, was an undercover police officer) through the internet.  Their chosen rondevous: the Ronkonkoma train station. (here). 

* Two of President Bush's lame-duck pardons were Long Island real estate developers convicted of fraud. (here). 


* Blogger Eugene Volokh asks, rhetorically, whether the Nassau County DA's policy of prohibiting hand gun ownership by Assistant district attorneys violates N.Y. Labor Law 201-d, which prohibits discrimination based on recreational activities (i.e. non-profit generating activities engaged in off-hours, off-premises, and not involving the employer's property). (here). 

* Above The Law's Lawsuit of the Day, January 8, 2009, was a divorce case in Long Island where a Long Island man has sought the return of the kidney he donated to his ex-wife (or 1.5 million in compensation).  The piece's author, Elie Mystal, comments, "If you grew up on Long Island, home of Lorena Bobbit, this story makes perfect sense." (here).