Indiana State Fair Collapse Lawsuit Filed Against Sugarland

Date: November 22, 2011:

Today, Mario Massillamany, of the Indiana law firm Starr Austen & Miller, LLP, announced the filing of a complaint on behalf of 47 victims of the Indiana State Fair stage collapse, which occurred on August 13, 2011.

On August 13, 2011, a large crowd of Sugarland fans gathered at the Indiana State Fair Grounds expecting a great country music concert, and instead tragedy struck. During a severe thunderstorm with very strong winds the overhead stage rigging at the outdoor concert collapsed, killing 7 people and injuring over 40 others. Among those victims were Starr Austen & Miller clients Lisa Hite, and her granddaughter Kyla-Reed Brummet, who were both in the Sugar Pit at the concert. "The injuries I sustained have left me unable to provide for my family," Hite stated. "The financial and emotional strain this has caused has left a lasting impact on my family."

The lawsuit has named Sugarland Music, Inc. and other private entities responsible for the organizing, staging and presentation of the Sugarland concert as defendants. The allegations against the defendants include that they breached their duty of reasonable care to the victims of this collapse. Specifically, the complaint alleges that Sugarland and the other private entities owed a duty to provide a safe concert environment and use reasonable care in the operation, direction, management, set-up, control, and supervision of the concert.

According to the contract reached between Creative Artists Agency (Sugarland's agent) and the Indiana State Fair Committee, Sugarland was guaranteed:

• $300,500 to perform
• $30,000 for sound and lights
• $4,500 for catering
• 85% gross box office receipts over $470,000

The contract specifies that Sugarland has the final say on whether to cancel a concert due to weather.  "This unimaginable tragedy will forever live in the hearts and minds of the people of Indiana," said plaintiffs' counsel Mario Massillamany. "Unfortunately, this tragedy could have been prevented if the responsible parties had been concerned about the concertgoers that night."

A copy of the complaint can be seen here.  If you have information regarding the litigation, please call 574-722-6676. 

Will The Dodd-Frank Wall Street Reform Act Make FINRA Arbitration Obsolete?

The Dodd-Frank Wall Street Reform Act shows a congressional dislike for mandatory arbitration provisions, to say the least. This Act, which was signed into law on July 21, 2010, by President Barack Obama, contains many provisions which could lead, after study, to the prohibition or limitation on these boilerplate clauses in consumer contracts. This includes arbitration provisions in client agreements with broker dealers that cause many securities fraud causes of action to be arbitrated at FINRA at this time.

Widespread Prevalence of These Arbitration Clauses

Statistically, just about everyone in the United States has knowingly, or unknowingly, agreed to a boilerplate mandatory arbitration clause in the contracts or agreements we enter into day in and day out. Some of the most common are those contained in credit card agreements, for example, in which you’ve agreed to take any disputes to arbitration instead of going to court.

The Problem with Mandatory Arbitration Provisions

Arbitration is an alternative way to resolve legal disputes outside the judicial system. Using this method a neutral third party is supposed to hear both sides of the story and then make a binding decision. When arbitration was first introduced in this country it held the promise of improving the dispute process by speeding it up, making it cheaper, and keeping parties from jumping through some of the legal hoops involved in going to court. Arbitration, when conceived, however, imagined two parties of approximately equal bargaining power voluntarily choosing to use the process. That is no longer the case.

Over the years big business has begun inserting these mandatory arbitration provisions in just about every contract they can think of. They’ve done this because they’ve figured out that these arbitration provisions tend to give them the upper hand over consumers in dispute resolution. For instance, there is no jury, no public trial, little to no review by the courts, and instead of going to your local courthouse the arbitration can be located hundreds of miles away from where you live. What makes this worse is that consumers cannot negotiate these provisions, but it is take it or leave it. That assumes, of course, that we even know the fine print clause is in the document, or understand its legal implications to begin with.

Mandatory Arbitration in the Context of Securities Fraud

Arbitration provisions have also creeped into many customer account agreements between customers and their brokers, often without the customer being aware of the provisions existence, and/or unaware of its legal implications. These agreements are typically signed when a customer first begins a relationship with a broker, and agrees that any future disputes between the party, meaning things that have not even happened yet, will be subject to arbitration by the Financial Industry Regulatory Authority (“FINRA”).

The mandatory arbitration provisions in these agreements have been just as controversial as those in credit card and other consumer agreements. Some of the criticisms leveled against FINRA arbitration include that it is biased in favor of the broker dealer, because one of the three arbitrators on the panel is from the securities industry. Further, the broker dealers themselves are the people who make up the membership of FINRA, so is FINRA really going to bite the hand that feeds it? There are those, of course, from the securities industry themselves who defend the FINRA arbitration process [link to SAM article: what is FINRA arbitration?] saying it is speedy, less expensive and fair. However, as hard as many brokers and securities firms fight to enforce these arbitration provisions, and avoid court, critics may just have a point about who is most favored between the brokers and the customers.

The Dodd-Frank Act’s Potential Blow to FINRA Arbitration

It seems Congress may finally be waking up to some of these criticisms, and showing a willingness to investigate the issue further. The language related to FINRA arbitrations in the Dodd-Frank Act is found in Section 921, which confers authority on the SEC to make rules that limit or prohibit these provisions between customers and broker dealers or investment advisors.

Specifically, the section states:

The Commission, by rule, may prohibit, or impose conditions or limitations on the use of, agreements that require customers or clients of any broker, dealer, or municipal securities dealer to arbitrate any future dispute between them arising under the Federal securities laws, the rules and regulations thereunder, or the rules of a self-regulatory organization if it finds that such prohibition, imposition of conditions, or limitations are in the public interest and for the protection of investors.

Currently Arbitration Clauses Are Legal and Common In Securities Fraud Cases

Of course, the Act’s language does not currently prohibit such arbitration provisions in customer agreements, and therefore the industry still includes them as standard at this time. Unless and until the SEC creates a contrary rule these mandatory arbitration provisions continue to be valid and enforceable, as a general rule.

United States Judicial Panel On Multidistrict Litigation Panel Rules On Nationwide Class Action Lawsuits Filed Against DuPont

The United States Judicial Panel on Multidistrict Litigation, agreeing with the arguments of Starr Austen & Miller, LLP, ruled that the Eastern District of Pennsylvania will be the forum to hear all of the class action lawsuits against DuPont regarding their herbicide Imprelis.  DUPONT’S herbicide Imprelis is causing widespread death among trees and other non-targeted vegetation across the country. 

The panel's basis was due to the U.S. Environmental Protection Agency office, responsible for the investigation and handling of the Imprelis, was located in Philadelphia.  In addition, the federal courthouse in Philadelphia is in close proximity to DuPont's headquarters in Wilmington, Delaware.  The panel went on to state that the location is within the geographic concentration of Imprelis damage and is a venue with a willing and experienced transferee judge.  

Multidistrict litigation is a procedure utilized in the federal court system to transfer to one federal judge all pending civil cases of a similar type filed throughout the United States. The decision whether cases should be transferred is made by a panel of seven federal judges appointed by the Chief Justice of the United States Supreme Court. The purpose of multidistrict litigation is to prevent different rulings on the same issue.  If one judge is presiding over all pretrial motions and discovery issues, there will be only one decision. 

Additional details on the ruling can be found at:

 http://www.starrausten.com/multidistrict-litigation-panel-rules-on-nationwide-class-action-against-dupont/

Does a police officer owe a duty to warn citizens of a icy road?

In Putnam County Sheriff v. Pamela Price, No. 60S01-1012-CV-665, the high court concluded that the sheriff’s department didn’t owe a duty to alleviate or warn motorists of an icy or hazardous condition on a county roadway. Citing Benton v. City of Oakland City, 721 N.E.2d 224, 230 (Ind. 1999), on which Price relies to support her negligence claim, the justices noted implicit in that case was that the governmental entity maintained and controlled the property giving rise to the injury. Price doesn’t allege that the sheriff owned, operated or controlled any portion of the county road, and absent this ownership or control, the sheriff had no duty to warn of a hazardous condition, wrote Justice Robert Rucker.

Justice Steven David wrote a concurring opinion, in which Justice Brent Dickson joined, because he was concerned the majority’s decision could be interpreted too broadly. He wrote of a scenario where a sheriff may discover a bridge had been washed away and failed to do anything. In that scenario, a sheriff may have a duty to exercise ordinary and reasonable care by warning the highway department and remaining on the scene until assistance arrives.

“… I concur in the outcome of this particular case but am hesitant for the subsequent application of this holding that the sheriff can escape any liability on the basis of non-maintenance and control of the county roadway,” he wrote. 

Janus Capital Group Inc. v. First Derivative Traders, 131 S. Ct. 2296 (2011)

This year, the United States Supreme Court addressed the viability of securities fraud claims against secondary actors.  On June 14, 2011, the Supreme Court in Janus Capital Group Inc. v. First Derivative Traders, 131 S. Ct. 2296 (2011), brought much-needed predictability to the securities markets by articulating a “clean line” separating “those who are primarily liable (and thus may be pursued in a private [Rule 10b-5] suit) and those who are secondarily liable (and thus may not be pursued in private [Rule 10b-5] suit).”  Id. at 2302 n.6.

The Court, in a 5-4 opinion, concluded that Janus Capital Management (“JCM”), a registered investment adviser, could not be held liable in a private Rule 10b-5 suit for drafting allegedly misleading prospectuses issued by its mutual-fund client, the Janus Investment Fund.  Instead, the Court made clear that the only proper defendant in a private Rule 10b-5 suit is the “maker” of the statement—“the person or entity with ultimate authority over the statement, including its content and whether and how to communicate it.”  Id at 2302.  “Without control,” the Court explained, “a person or entity can merely suggest what to say, not ‘make’ a statement in its own right,” and therefore “[o]ne who prepares or publishes a statement on behalf of another is not its maker.”  Id (quoting 17 C.F.R. § 240.10b-5(b))...

Applying this test, the Court concluded that “JCM did not ‘make’ any of the statements in the [Janus Investment Fund's] prospectuses”--even if it may have participated in the writing and dissemination of the prospectuses--because JCM’s involvement was “subject to the ultimate control” of the Janus Investment Fund.  Id at 2305.  “There was no allegation that JCM in fact filed the prospectuses and falsely attributed them to Janus Investment Fund,” the Court noted, “[n]or did anything on the face of the prospectuses indicate that any statements therein came from JCM rather than from Janus Investment Fund--a legally independent entity with its own board of trustees.”  Id  Accordingly, the statements in the prospectuses were made by Janus Investment Fund--not by JCM.  Id at 2304-05....

Even though the opinion does not expressly address the liability of persons or entities other than investment advisers who provide services to public companies, those service providers--bankers, lawyers, accountants, financial advisers, and others--should be able to invoke the decision to defend private lawsuits based on their work behind the scenes in preparing offering documents for their issuer clients.  The issuer--not the service provider--has “ultimate authority over the statement[s]” in its offering documents, and it is therefore the only “maker of [those] statement[s]”" under the Court’s rationale.  Id at 2302..

The U.S. Supreme Court's decision in Janus Capital Group, Inc. v. First Derivative Traders has left many investment company directors wondering whether they should take additional measures either to protect their funds and themselves from liability for prospectus errors or to provide their funds' investment adviser with additional incentives to ensure the accuracy and completeness of fund prospectuses.

MDL Hearing Today on Indiana Golf Course Company’s Class Action Lawsuit Alleging DuPont's New Herbicide Imprelis Causing Death Of Trees Nationwide

-- Multidistrict Litigation (MDL) Hearing to Determine Where Nationwide Class Action Cases Will Be Transferred

Logansport, IN, September 27, 2011 – Today, Indiana law firm of Starr, Austen & Miller, LLP, along with the other plaintiff’s firms that have filed class action lawsuits against E.I. du Pont de Nemours & Company ("DuPont") COMMA, charging that DUPONT'S herbicide Imprelis is causing widespread death among trees and other non-targeted vegetation across the country, will argue in a multidistrict litigation hearing to a federal panel as to where all of the cases should be transferred.

Multidistrict litigation is a procedure utilized in the federal court system to transfer to one federal judge all pending civil cases of a similar type filed throughout the United States. The decision whether cases should be transferred is made by a panel of seven federal judges appointed by the Chief Justice of the United States Supreme Court.

Generally, the transferee court (the MDL court) will set standing orders or pretrial orders informing the lawyers involved of the ground rules, deadlines and procedures the court expects the litigants to follow. Steering committees may be appointed to manage the substance of the litigation and the discovery of facts.

“This is a very important step in the litigation process," stated plaintiffs' counsel Mario Massillamany.  "The panel’s determination as to transferee court will in essence dictate which law firms will control the litigation as it moves forward."

Plaintiff R.N. Thompson Golf, LLC, owns and manages several golf courses in the greater Indianapolis area, including the Winding Ridge Golf Course and the Ironwood Gold Course. 

The lawsuit, entitled Shomo v. E.I. du Pont de Nemours & Company, was filed in federal court in Delaware, where DuPont has its headquarters.  The proposed class consists of all persons and entities who own property on which Imprelis was applied, own trees or other vegetation whose roots extend under property on which Imprelis was applied, or who own property to which Imprelis migrated between October 4, 2010, and the date of trial. 

Legal Resources for Impacted Property Owners

If you have suffered damage to trees on your property after the spraying of Imprelis, please visit http://www.starrausten.com/imprelis-class-action/   to learn more about the Imprelis class action lawsuit and report your experiences.

Trademark Notice

Imprelis is a registered trademark of DuPont De Nemours & Company and used solely for product identification and informational purposes. Plaintiffs' counsel are in no way affiliated with DuPont.

Source/Contact

Mario Massillamany

Starr Austen & Miller, LLP

201 South Third Street

Logansport, Indiana 46947

Telephone: (574) 722-6676

Facsimile: (574) 753-3299

Merck & Co., Inc. v. Reynolds, 130 S. Ct. 1784 (2010)

The Supreme Court’s docket had some interesting securities cases in 2010 and 2011.  The most significant arguably was Merck & Co. Inc. v. Reynolds, 130 S. Ct. 1784 (2010), where the Supreme Court held that the two-year statute of limitations for Section 10(b) of the Securities Exchange Act and SEC Rule 10b-5 claims does not begin to run until a “reasonably diligent” plaintiff would have discovered the facts constituting the violation, and that such “facts” included the fact of scienter. 

The issue arose in an action by investors against the pharmaceutical manufacturer Merck & Co., brought under § 10(b) of the Securities Exchange Act of 1934. The investors alleged that Merck knowingly misrepresented the risks of heart attacks accompanying the use of Merck’s pain-killing drug, Vioxx. In particular, the investors cited Merck’s public statements presenting a hypothesis that troubling cardiovascular findings in a study comparing Vioxx to another anti-inflammatory drug might be due to the absence of a benefit conferred by the other drug, rather than a harm caused by Vioxx. 

Although the Court distinguished its stated standard from “inquiry notice”--it was not enough merely that a reasonably diligent plaintiff would have investigated further--the Court emphasized that facts tending to show a statement's falsity would not necessarily be sufficient to also show scienter, thereby potentially extending the period before the statute of limitations would begin to run.  As plaintiff’’ claims are often met with statute of limitations defenses, this case may prove vital for defeating defense motions for summary judgment.