California Attorney Tom Martin’s Law Blog

Mattel Inc. announced its third major recall of Chinese-made toys in little more than a month, including Barbie doll accessories, GeoTrax locomotive line and Bongo Band toys because of excessive amounts of lead-tainted paint.

A complete list of recalled toys is available here.

675,000 recalled Barbie accessories include the Barbie Dream Puppy House, which had lead paint on the dog; the Barbie Dream Kitty Condo playset, which had lead paint on the cat; and the Barbie table and chairs kitchen playset, which had lead paint on the dog and dinner plates. The recalled Barbie accessories were sold between October 2006 and August of this year. No Barbie dolls were included in the action.

The recall covers 90,000 units of Mattel’s GeoTrax locomotive line and 8,900 Big Big World 6-in-1 Bongo Band toys, both from the company’s Fisher-Price brand. The Big Big World products were sold nationwide from July through August of this year, while the GeoTrax toys were sold from September 2006 through August of this year. (Source: AP.)

Lead can cause brain damage when ingested by young children. Under current regulations, children’s products found to have more than .06 percent lead are subject to a recall. For more information on health hazards associated with lead exposure from toys, click here.

“The only thing more frightening than these tainted toys from China falling into the hands of children is how powerless the very agency in charge of consumer protection is to stop it,” said Sen. Charles E. Schumer (D-N.Y.). (Source: Washington Post.)

If you purchased any of the recalled toys, you may have a legal claim. For further information, feel free to contact the Law Office of Thomas Glenn Martin by clicking here.

Another Mattel recall targets two categories of toys:

(1) 436,000 Chinese-made die-cast toy cars depicting the character Sarge from the animated film “Cars” because they are covered with lead paint; and

(2) 18.2 million other Chinese-made toys because their small, powerful magnets could harm children if swallowed.

About half of the toys in each recall were distributed in the United States.

In a New York Times Article, Robert A. Eckert, Mattel’s chairman and chief executive, was quoted as having said in a conference call: “No system is perfect… There’s no guarantee that we will not be here again.”

The lead-paint recall was Mattel’s second in less than a month of lead-tainted toys made in China. Together, the recalls have thrust the maker of Barbie dolls and Hot Wheels cars into the heart of rising concern over products made in low-cost factories in China. Last month’s recall of toys with lead paint included some based on characters from “Sesame Street” and “Dora the Explorer.”

The magnetic toys involved in the new recall included 63 products that, though produced in China, were recalled because of a design flaw on Mattel’s part, not a problem with its Chinese contractors.The magnetic toys had been produced since 2002 and sold before January 2007. They include 44 different Polly Pocket toys, 11 Doggie Day Care toys, 4 Batman toys, a One Piece toy, and 2 Barbie toys. (Source: NY Times.)

If you purchased any of the recalled toys, you may have a legal claim. For further information, feel free to contact the Law Office of Thomas Glenn Martin by clicking here.

Toy giant Fisher-Price announced a worldwide recall of about a million toys — including the popular Big Bird, Elmo, Dora and Diego characters — because they may contain excessive amounts of lead in their paint.

The company says the recall includes 83 types of its plastic preschool toys sold in the United States between May and August. A complete list of tainted toys can be found here.

In an interview with The Associated Press, David Allmark, general manager of Fisher-Price, said the problem was detected by an internal probe and reported to the Consumer Product Safety Commission. The recall is particularly alarming since Mattel, known for its strict quality controls, is considered a role model in the toy industry.

Fisher-Price and the commission issued statements saying parents should keep suspect toys away from children and contact the company. Allmark said the recall was troubling because Fisher-Price has had a long-standing relationship with the Chinese vendor, which had applied decorative paint to the toys. Allmark said the company would use this recall as an opportunity to put even better systems in place to monitor vendors whose conduct does not meet Mattel’s standards.

“Anytime a company brings a banned hazardous product into the U.S. marketplace, especially one intended for children, it is unacceptable,” said Nancy Nord, acting chair of the Consumer Product Safety Commission. “Ensuring that Chinese-made toys are safe for U.S. consumers is one of my highest priorities and is the subject of vital talks currently in place between CPSC and the Chinese government.” (Source: CNN.com.)

Fisher-Price and the Consumer Product Safety Commission are telling parents to keep suspect toys away from their kids and to contact the company with any questions.

The recall involving lead paint is a first for Fisher-Price and parent company Mattel.

If you purchased any of the recalled toys, you may have a legal claim. For further information, feel free to contact the Law Office of Thomas Glenn Martin by clicking here.

Proposition 64 placed certain new restrictions on standing to bring a UCL action. A private UCL plaintiff now must show she has suffered “injury in fact.” Amended section 17204 provides, in pertinent part:

Actions for any relief pursuant to this chapter shall be prosecuted exclusively in a court of competent jurisdiction … by any person acting for the interests of itself, its members or the general public who has suffered injury in fact and has lost money or property as a result of such unfair competition.

One question presented by the amendment has been whether the UCL now requires “injury in fact” AND a “loss of money or property” to establish standing, or whether the two concepts are disjunctive, i.e., “injury in fact” OR a “loss of money or property.”

Federal authority on Article III standing, on which the amendment is based, sometimes uses the two concepts interchangeably, implying that “injury in fact” and “loss of money or property” are two sides of the same coin.

In Buskirk v. Greenlight Financial Services, B189857 (Cal. App. 12/12/2006), the Second District of the Court of Appeal agreed with this latter view and provided much needed guidance regarding the UCL’s new standing requirement:

Turning to the question whether appellant demonstrated standing, section 17204 and section 17535 provide that actions may be prosecuted by a person “who has suffered injury in fact and has lost money or property.” Neither party offers any particular insight into the meaning of that phrase, and there is little in the published authority.

An indication of the proper interpretation is revealed in the “findings and declarations of purpose” contained in the introduction to Proposition 64. There, it stated that the people of the State of California had made certain findings, including: (1) the unfair competition laws [defined as both section 17200 et seq. and section 17500 et seq.] “are intended to protect California businesses and consumers from unlawful, unfair, and fraudulent business practices” and (2) “[f]rivolous unfair competition lawsuits clog our courts and cost taxpayers” and also “cost California jobs and economic prosperity, threatening the survival of small businesses and forcing businesses to raise their prices or to lay off employees to pay lawsuit settlement costs or to relocate to states that do not permit such lawsuits.” (§ 17203, Historical and Statutory Notes.) The introduction further stated that “[i]t is the intent of California voters in enacting [Proposition 64] to eliminate frivolous unfair competition lawsuits while protecting the right of individuals to retain an attorney and file an action for relief” and “to prohibit private attorneys from filing lawsuits for unfair competition where they have no client who has been injured in fact under the standing requirements of the United States Constitution.” (Ibid.)

….

Federal authorities provide guidance concerning a plaintiff’s responsibilities when issues of standing arise. A plaintiff must demonstrate (1) that he or she has suffered an injury in fact; (2) that the injury is traceable to the challenged actions of defendant, and (3) that the injury can be redressed by a favorable decision. [citation omitted] An injury in fact is “an invasion of a legally protected interest which is (a) concrete and particularized [citations] and (b) ‘actual or imminent, not, ‘conjectural’ or ‘hypothetical.’” [citation omitted] Standing is subject to attack at any point in the litigation, and the plaintiff bears the burden of supporting standing “in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation.” [citation omitted] To withstand a motion for summary judgment, the plaintiff must demonstrate that evidence exists to permit a factual finding that he or she has standing. [citation omitted] (emphasis added.)

Thus, a demonstration of an injury in fact, traceability, and redressability is sufficient to establish standing under Article III and the UCL.

The Law Office of Thomas Glenn Martin and Green Welling LLP today filed a class action suit in the United States District Court for the Central District of California against New Century Financial Corporation (”New Century Financial”) (NYSE: NEW) and certain of its officers and directors, on behalf of all persons or entities who purchased the common stock of New Century Financial during the period between May 4, 2006 and February 7, 2007, inclusive (the “Class Period”).

A February 7, 2007 New Century Financial press release announced that the Company would restate its consolidated financial results for the quarters ended March 31, June 30, and September 20, 2006 to correct errors in its application of GAAP regarding the Company’s allowance for loan repurchase losses. New Century stated that it expected the impact of the restatement to result in a reduction on net earnings for each of the first three quarters of 2006. On this news, shares of New Century Financial fell 35%, to $19.58 on the New York Stock Exchange.

If you are a shareholder who purchased stock in New Century Financial during the Class Period, you have until April 7, 2007 to move the Court to appoint you as lead plaintiff. Any member of the proposed Class may move the Court to serve as lead plaintiff through counsel of their choice, or may choose to do nothing and remain an absent class member. Lead plaintiffs must meet certain legal requirements.

If you wish to discuss this action, review a copy of the Complaint, or have any questions regarding this matter, you may contact the Law Office of Thomas Glenn Martin by clicking here.

The Long Beach Alliance for Children with Asthma (LBACA) in the Spotlight feature of its December 1, 2006 Newsletter, recognized Attorney Thomas G. Martin as a member of the community who has helped LBACA to improve the lives of children with asthma in the Long Beach community:

“Tom Martin is an active member of LBACA and proactive in raising awareness of asthma since he has a young daughter affected by asthma. A graduate of Yale University and UCLA School of Law, Mr. Martin is the founder of his own law firm. The Law Office of Thomas Glenn Martin is located in Long Beach, California, erves clients throughout Southern California, including the Greater Los Angeles area and Orange County. The firm is focused on representing individuals within three major practice areas: personal injury, toxic injury, and consumer protection.

Tom has participated at several of our asthma events and has attended coalition meetings. He has also written excerpts that have been featured in our newsletters in the community corner. Tom has generously made a contribution to LBACA to conduct asthma trainings to private local preschools. As a result of his donation, LBACA will be able to train several interested preschools in the Long Beach area. We would like Tom Martin for his generosity and passion for helping others especially children with asthma.”

In a new study, published online in The Lancet on November 8, 2006, Harvard researchers have identified industrial chemicals that are the most likely to damage children’s developing brain.

According to the researchers, this “silent pandemic” of toxic exposure helps to explain why one out of every six children has a developmental disability.

A press release from the Harvard School of Public Health reads:

Fetal and early childhood exposures to industrial chemicals in the environment can damage the developing brain and can lead to neurodevelopmental disorders (NDDs)—autism, attention deficit disorder (ADHD), and mental retardation…

The researchers found that 202 industrial chemicals have the capacity to damage the human brain, and they conclude that chemical pollution may have harmed the brains of millions of children worldwide. The authors conclude further that the toxic effects of industrial chemicals on children have generally been overlooked.

To protect children against industrial chemicals that can injure the developing brain, the researchers advocate a precautionary approach for chemical testing and control wherein it is not necessary to wait for scientific certainty to take protective action.

This “precautionary principle” has been applied in the European Union. It favors strong regulations, which can later be relaxed if the hazard proves less than anticipated.

In the U.S., the authors note, the absence of testing and the high level of proof required for chemical-control legislation are the main impediments to the prevention of developmental disorders caused by exposure to chemical pollutants.

A notable exception is California in which Proposition 65 requires businesses to notify consumers before they are exposed to a threshold level of carcinogens and reproductive toxins.

Americans spend up to 90% of their time indoors. Indoor allergens and irritants can play a significant role in triggering asthma attacks. Some of the most common indoor asthma triggers include secondhand smoke, dust mites, mold, cockroaches and other pests.

If you rent and are familiar with any of these conditions in your living space, contact your city health inspector. The inspector can identify violations jeopardizing residents’ health and safety, and has the authority to take the appropriate enforcement action to correct the violations.

Once a violation is confirmed by the inspector, written notice is sent to the landlord indicating the actions required to correct it. Next, a reinspection is conducted to see if the situation has been resolved. If not, the inspector may refer the matter to the city prosecutor for legal action.

It is unlawful for your landlord to evict you or increase your rent in retaliation for your complaint to the city health inspector. If he does so, you may have a claim against him for actual and punitive damages under Civil Code 1942.5. You may also be entitled to attorney fees.

For more information, please contact your local health inspector. For the City of Long Beach, please read this brochure regarding the City’s Housing Inspection Program.

If your landlord has retaliated against you for your complaints to a government agency regarding unhealthy living conditions, contact an attorney. Preserve your rights by exercising them.

The United States Surgeon General has issued a massive 700 page report providing undisputed evidence that secondhand smoke is a health hazard at any level of exposure.

(An executive summary of the report and webcast of the press conference are also available.)

6 Major Conclusions of the Surgeon General Report:

1. Stricter Tobacco Control Needed. Many millions of Americans, both children and adults, are still exposed to secondhand smoke in their homes and workplaces despite substantial progress in tobacco control.
2. Exposure Causes Disease and Death in Non-Smokers. Secondhand smoke exposure causes disease and premature death in children and adults who do not smoke.
3. Children Are Especially at Risk. Children exposed to secondhand smoke are at an increased risk for sudden infant death syndrome (SIDS), acute respiratory infections, ear problems, and more severe asthma. Smoking by parents causes respiratory symptoms and slows lung growth in their children.
4. Exposure Causes Immediate Health Harm. Exposure of adults to secondhand smoke has immediate adverse effects on the cardiovascular system and causes coronary heart disease and lung cancer.
5. No Risk-Free Exposure Level. The scientific evidence indicates that there is no risk-free level of exposure to secondhand smoke.
6. Elimination of Smoking Is Solution. Eliminating smoking in indoor spaces fully protects nonsmokers from exposure to secondhand smoke. Separating smokers from nonsmokers, cleaning the air, and ventilating buildings cannot eliminate exposures of nonsmokers to secondhand smoke.

Kids are especially vulnerable because their bodies are still developing. Children exposed to smoke have twice the level of a nicotine byproduct in their blood as adult non-smokers. About 22 million children are exposed to secondhand smoke.

For further information, please visit the Surgeon General’s webpage, dedicated to “The Health Consequences of Involuntary Exposure to Tobacco Smoke.”

Unintended consequences of the “zero-tolerance” movement resulted in some states requiring all medications in school to be locked away. However, in the case of children with asthma, even a brief delay in retrieving emergency medication can be fatal.

In 2005, California law was amended to ensure asthmatic students’ right to carry their inhalers and self-medicate to control their asthma.

The statute, Education Code 49423.1, requires that a student annually provide the school with a written statement from a doctor detailing the method, amount, and time schedules by which the medication is to be taken and a written statement from a parent or guardian consenting to the self-administration and releasing the school from liability.

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