California Injury Attorney Blog

As a leading California and national law firm in the area of child and infant safety, we begin our series on holiday safety -- this time our focus in on toys. As parents and grandparents, aunts and uncles go out to purchase toys for the children in their lives and as we donate toys to toy drives, it is very important to pay attention to what we are purchasing for kids.

According to the U.S. Consumer Product Safety Commission, "stronger federal rules are making a positive impact and restoring confidence in the safety of toys." Toy safety at this time of year is vital to the health and happiness of our children. The federal government cannot totally stop manufacturers from making unsafe toys that end up harming children, but they are trying to make toys safer and we applaud that effort. Most often, recalls happen because several children have already been injured and we learn that a toy or crib or crib bumper is unsafe after the fact.

The federal agency has noted that safeguards are now in place for important areas of child safety. For example, lead content has been limited, voluntary toy standards are now mandatory standards, there is now third party testing and certification required for toys designed for children under 12, there are new limits for cadmium in toys, and the agency is now working closely with Homeland Security to track and seize dangerous toys coming into the country from other countries.

The statistics show that toy recalls have declined since 2008 in which there were 172 toy recalls. In 2011, there were 34 toy recalls; in 2010 there were 46 and in 2009 there were 50 toy recalls. Choking deaths were up slightly in the past couple of years. So parents must be vigilant to ensure that their older children's toys are not within reach of their younger children. Holiday wrapping should be kept away from small children as well.

One rule that we all must remember -- keep balloons, small balls, small toys and toy parts away from small children which can be forgotten in the moment of holiday gift giving excitement. Something that parents and grandparents should also know is that non-motorized scooters are the one "toy" associated with the most injuries. These injuries range from such injuries as abrasions to lacerations. Safety, such as helmet use, is important to child safety with these scooters. Finally, be aware of battery chargers and their use. They can get warm and cause injury. Kids need to be supervised in charging batteries.

San Francisco, California's Hersh & Hersh has been at the forefront of child safety for decades. We were instrumental in the national recalls of unsafe cribs and basinettes. We have represented families whose children have been injured, or have tragically died due to an unsafe product. Please contact our law firm for a free consultation with one of our lawyers with regard to any injury or child injury matter.

This past June, the California Supreme Court ruled that Oracle employees who resided in Colorado and Arizona, were entitled to overtime pay under California's wage and hour laws. The plaintiffs, who travel the country training users of Oracle's software applications, had taken the position that they were not teachers as the company had said.

By classifying these workers as teachers, the company was not required to pay overtime to these workers. Under California law this put them in a classification of "exempt" workers. The plaintiffs sought overtime pay, claiming that they were in fact "non-exempt."

Oracle's position was that California law was not applicable to these employees. They said the home states of these employees should control their rights to overtime pay.

The software company also argued that if non-resident employees were to be classified as "non-exempt," employers would be unduly burdened by being required to apply California wage and hour laws in many employment situations. Finally, Oracle took the position that the laws of the state of residency should control and that in this case, the laws of Arizona and Colorado were in conflict with that of California's laws.

But, the California Supreme Court disagreed with Oracle and ruled against them. As a result, Oracle has now reached a settlement to pay $35 million to over 1,700 employees to resolve the class-action. This settlement has been preliminarily approved by the Alameda County Superior Court. The case has been winding its way through the courts for many years.

Employers who attempt to misclassify workers to avoid paying them proper wages eventually must pay for their failure to follow the laws of California. Often, these cases become class actions as they involve many plaintiffs. These cases involving wage and hour and related claims is an area of expertise for the lawyers of Hersh & Hersh. We have recently handled important matters involving many workers in cases involving Terminix and Marcus & Millichap. For more information about our law practice, please contact Hersh & Hersh for a free consultation with one of our litigators on your employment situation.

The Ninth Circuit Court of Appeals has just issued a decision that upholds the class certification for the plaintiffs in a 10b-5 securities fraud action. The case involves Amgen, a pharmaceutical company. In order to get certified as a class, the plaintiffs must show that the element of reliance is present and common for class members under Federal Rule of Civil Procedure 23(b).

Under United States Supreme Court decisions, this element can be shown by a "fraud-on-the-market" presumption. This means that a buyer is presumed to have relied on the truth of public information that is reflected in the market price of a security. This presumption allows a plaintiff seeking class certification to show reliance where it would be otherwise very difficult, if not impossible, to do.

The Ninth Circuit has joined two other circuit courts of appeal (the Third and Seventh) to hold that a plaintiff must show two things to invoke the fraud-on-the-market presumption. These are first, showing that the security in question was traded in an efficient market; and second, showing that the alleged misrepresentations were public. Neither of these requirements were contested in the case.

With regard to the element of materiality of the misrepresentations, the plaintiffs need only allege this plausibly, rather than prove it at this stage. This is also true, according to the court, of the rebuttal of fraud on the market.

In the case before the court, the plaintiff did properly allege that several public statements made by the defendant pharmaceutical company were false and material. In the court's view, this "coupled with the concession that Amgen's stock traded in an efficient market, ... was sufficient to invoke the fraud-on-the-market presumption of reliance. The district court did not abuse its discretion in certifying the class."

The California consumer law firm of Hersh & Hersh has handled major class action litigations over many decades. Please contact our law firm to talk with one of our lawyers at no charge to you, about any matter involving defective drugs, defective medical devices, personal injury, motor vehicle or other related injuries or matters.

The lawyers of Hersh & Hersh who sponsor the California Injury Attorney Blog served as co-counsel in a landmark win in federal court this week involving wage and hour claims. A federal jury rendered a verdict that is a victory for workers' rights.

In this case, the termite inspectors employed by Terminix (which is part of Terminix International, Inc.) presented a case to the jury that involved the company's failure to provide rest breaks, required work for greater than the number of hours per day allowed by California law and resulted in wage and hour violations. The inspectors also worked nights and weekends without additional compensation, which amounted to a failure by the company to pay overtime wages. This is not permitted under California law.

In September, we posted on a related case in which a class action was settled for $1.5 million that involved 1200 termite inspector trainees who were working in California. A United States District Court Judge approved a $1.5 million settlement, but several of the employees must make their claims in arbitration.

Overtime pay claims involving wages and hours are generally settled by companies. But when profits are carried on the backs of workers, companies might be reluctant to settle out of court and take their chances litigating the matter in court.

These cases will help all workers who are not being paid according to the laws that protect them. Such requirements as overtime pay, wage and hour issues, rest breaks and related claims will perhaps be taken more seriously by other employers who are not following the laws and regulations that ensure the protection of workers in many cases.

Hersh & Hersh is proud to continue its longstanding history of groundbreaking litigation in all areas that protect consumers, workers, patients and accident victims. If you have any questions about your employment situation and whether you are being paid properly by your employer, please contact our law firm to speak confidentially and for no fee at all, with one of our lawyers.