Sunshine in Litigation Act introduced in the District of Columbia

By Sally Greenberg, NCL Executive Director

Here in the District of Columbia, we have a chance to stop the problem of secret settlements with the introduction of the DC Sunshine in Litigation Act (SILA).

The bill, which is scheduled for a hearing before Councilmember Allen’s Judiciary Committee on December 8, would require DC judges to consider public health and safety before granting a protective order, sealing court records, or approving a settlement agreement. Introduced by consumer champion and DC Councilmember Mary Cheh, the bill will ensure that injuries caused by dangerous or unhealthy products do not any longer get sealed away from the public through legal settlements.

As Councilmember Cheh said in her letter to the Council:

“This presumption in favor of public access is especially important in cases that have implications for individuals beyond the parties to litigation—in particular, cases that involve defective products or dangerous environmental conditions that pose a risk to the general public. Unfortunately, it has become increasingly common in cases like these for parties to undermine the public interest, often with a court’s endorsement, either through sweeping confidentiality clauses in settlement agreements or through protective orders issued by the court.

“Court-sanctioned secrecy in such cases can be a matter of life and death. Perhaps the clearest example of this comes from the high-profile litigation related to the opioid epidemic. As early as 2001, individuals and governments began filing lawsuits alleging that opioid manufacturers had misled doctors about the dangers of prescription opioids. However, because judges in these cases required that court records remain under seal, the compelling evidence of the manufacturers’ wrongdoing and of the dangers of opioids uncovered by the litigants was kept from the public for over a decade.”

This issue of secret settlements has a long and sordid history. Typically, a consumer sues a manufacturer for an injury or death that has resulted from a defect in one of the manufacturer’s products. The victim is suing a large corporation that can spend huge sums of money defending the lawsuit and delaying its resolution. Facing a formidable opponent and mounting medical bills, plaintiffs are discouraged from continuing and often seek to settle the litigation. In exchange for monetary damages, the victim is often forced to agree to a provision that prohibits him or her from revealing information disclosed during the case. While the plaintiff gets a respectable award and the defendant can keep damaging information from being publicized, the public remains unaware of critical health and safety information that could save lives.

Bipartisan federal SILA bills have been introduced since the 1990s, with Senator Herb Kohl (D-WI), now retired, being the prime champion, but sadly, none became law. So, we are left to legislate this important consumer protection matter on the state level.

The witnesses who testified before Congress in past years have developed a strong set of stories that underscores the importance of getting these bills passed. A shameful litany of products that have caused injury and death exists but without public scrutiny, the company continues to market and sell the product and keeps the hazards secret. At the hearings in 1990 and 1994, Congress heard testimony about silicone breast implants, adverse reactions to a prescription pain killer, “park to reverse” problems in pick-up trucks, defective heart valves, dangers from side-saddle gas tanks, playground equipment, IUD birth control devices, tires, and portable cribs.

Fast forward to 2011, the Senate Judiciary Committee hearing included many such stories of dangerous products whose hazards remained a secret, including the following.

  • Phenylpropanolamine – Known as PPA, in 1996 caused a seven-year-old boy in Washington State to suffer a sudden stroke and fell into a coma hours after taking an over-the-counter medicine to treat an ear infection. After three years in a coma, he died. The child’s mother sued the manufacturer of the medicine alleging that the stroke was induced by PPA, an ingredient with deadly potential side effects, which has since been banned by the Food and Drug Administration (FDA). Unknown to the public, similar lawsuits in state and Federal courts had previously been filed against the drug manufacturer, but were settled secretly, with the lawyers and plaintiffs subject to restrictive confidentiality orders.
  • Silicone breast implants – Information about the hazards of silicone breast implants was discovered during litigation as early as 1984, but because of a protective order that was issued when the case settled, the information remained hidden from the public and the FDA. It was not until several years and tens of thousands of victims later that the public learned of potentially grave risks posed by the implants.
  • “Park-to-reverse”’ malfunction – For many years, one car company was aware of problems associated with “park-to-reverse”’ malfunction in its pick-up trucks and quietly settled cases stemming from this alleged defect. It was not until years later that the company made a minimal effort to notify original owners by sending stickers alerting them that there was a problem. The stickers made no mention of the potential risks of severe injury or death. Unfortunately, 2.7 million of these truck owners did not receive the warning. One victim was Tom Schmidt. His parents Leonard and Arleen Schmidt testified before the Subcommittee on Courts and Administrative Practice. During their lawsuit they learned that the company had known about the problem as early as 1970 and had quietly settled cases with strict protective orders concealing information about the problem.
  • Bjork-Shiley heart valve – Over the course of several years, Bjork-Shiley heart valves were linked to 248 deaths. The manufacturer insisted on secrecy agreements when settling dozens of lawsuits before the FDA finally removed the valves from the market. The Subcommittee on Courts and Administrative Practice heard testimony from Fredrick Barbee about how court-endorsed secrecy prevented him and his wife from learning about the potential heart valve malfunction and prevented her from getting the appropriate and life-saving treatment she needed when her valve malfunctioned.
  • Dalkon Shield – In 1974, the FDA suspended use of the Dalkon Shield, a popular intrauterine birth control device. The device was linked to 11 deaths and 209 cases of spontaneous abortion. Prior to the FDA’s action, the maker of the device had settled numerous cases with strict confidentiality agreements. The manufacturer even attempted to include agreements with the plaintiffs’ lawyers that would have prohibited them from taking another Dalkon Shield related case.
  • Side-saddle gas tanks – Over the course of several years, one car company quietly settled more than 200 cases brought by victims of fiery truck crashes involving the automaker’s side-mounted gas tanks before the defect became known. It was not until 1993, when General Motors sued Ralph Nader and the Center for Auto Safety for defamation, that lawyers discovered records showing that GM had been sued in approximately 245 individual gas tank pick-up truck cases. The earliest cases had been filed as far back as 1973. Almost all cases were settled and almost all the settlements required the plaintiffs to keep the information secret.
  • Playground equipment – Miracle Recreation Company manufactured and sold a piece of playground equipment called Bounce Around the World. Dozens of lawsuits were brought against the company alleging that it was dangerous and caused serious injuries to young children, including severed limbs and crushed bones. For 13 years, the public and regulatory agencies remained in the dark about the potentially crippling equipment because the company insisted on settling lawsuits conditioned by confidentiality agreements. Approximately 80 children between the ages of four and five were seriously injured before the CPSC learned about the magnitude of the danger and the company recalled the merry-go-round
  • Collapsing decks – On June 16, 2015, shortly after midnight, five Irish J-1 visa students and one Irish-American died and seven others were injured after a balcony on which they were standing collapsed. The group was celebrating a 21st birthday party in Berkeley, California. One of those injured died of her injuries later that year. Building inspectors later found that the wooden supports holding up the balcony had been eaten away by dry rot, even though the structure was less than 10 years old. It subsequently emerged that the contractors who built the complex, Segue Construction of Pleasanton, California, had paid $26.5 million in settlements for previous defect cases, but that this information had not been available to the state construction licensing authority or to clients.

What needs to be done

Time is of the essence in getting this bill enacted in the District of Columbia. Residents of DC will not know what hazards are lurking out there until this bill passes!

Business interests have typically opposed these bills in other states and in Congress. They claim that the Sunshine in Litigation legislation will slow down the courts, discourage settlements, and launch fights over production of documents. In fact, AK, FL, LA, MT, NV, NC, OR, SC, TX, VA, and WA, have all adopted some form of SILA laws and there has been no such collapse of the legal process.

As Councilmember Cheh noted in her letter introducing the bill, “according to the legal advocacy organization Public Justice, there is no evidence that these anti-secrecy laws have discouraged settlements, exposed proprietary interests or trade secrets, or imposed burdens on the courts.”

We look forward to the December 8 hearing and having residents of the District come forward to tell members of the City Council how especially important the Sunshine in Litigation Act is to their families and communities.

Consumer groups call for moratorium on smaller airplane seats pending FAA safety review

November 2, 2022

Media contact: National Consumers League – Katie Brown, katie@nclnet.org, (202) 207-2832

Advocates caution that out-of-date emergency evacuation testing standards could put flyers at risk 

Washington D.C.— A coalition of six consumer advocacy organizations yesterday filed comments in response to a Federal Aviation Administration’s (FAA) inquiry regarding minimum passenger seat dimensions. The groups called for the FAA to prohibit airlines from installing smaller seats in commercial jets while the agency reviews and updates its decades-old emergency evacuation testing standards.

“Airlines have a profit incentive to cram more people on their planes,” said Sally Greenberg, Executive Director of the National Consumers League, which organized the letter. “This trend has created a dangerous environment that could impede safe evacuation in the event of an emergency. The FAA has looked the other way for decades as the airlines have increasingly prioritized their bottom lines over passenger safety.”

U.S. law requires air carriers to ensure that they can evacuate their aircraft in 90 seconds or less. In an alarming number of real-world emergencies in recent years, evacuations took between two and five minutes, even though every airline has certified that their planes comply with federal standards. Despite this, the FAA continues to rely on emergency evacuation testing standards that reflect what flying was like in the 1990’s, not the environment that passengers encounter today.

To address the insecurity of current flying conditions, the consumer groups called on the FAA to take immediate action, including:

  • Instituting a moratorium on the further shrinking of passenger seats. Airlines have reduced the sizes of seats to record lows, having shaved off several inches from when the federal government last updated U.S. evacuation standards.
  • Updating federal evacuation standards to reflect the modern cabin environment, accounting for smaller seat sizes, increased baggage around the cabin, and the proliferation of personal electronic devices.
  • If necessary, provisionally requiring that airline seats be no smaller than 32 inches in pitch (commonly referred to as legroom) and 20 inches in width. These dimensions would ensure that seat sizes are not smaller than the typical minimum dimensions that airlines utilized in the early 1990s.

“In addition to hampering evacuation speeds, it’s important to consider how diminished seat sizes impact traveler health, even when there is not an emergency,” said John Breyault, Vice President of Public Policy, Telecommunications, and Fraud at NCL. “Cramped airline seating increases the risk that passengers will experience deep vein thrombosis and pressure sores. Current seat sizes make flying more dangerous and often embarrassing for many passengers, particularly those with disabilities or those who are too large to safely fit into the seats.”

In addition to NCL, the letter was signed by the American Economic Liberties Project, Consumer Action, Consumer Federation of America, Ed Perkins on Travel, and U.S. PIRG.

To read the coalition’s full comments to the FAA, click here.

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About the National Consumers League (NCL)

The National Consumers League, founded in 1899, is America’s pioneer consumer organization. Our mission is to protect and promote social and economic justice for consumers and workers in the United States and abroad. For more information, visit https://nclnet.org.

Debt cancellation is not Biden’s only aid to borrowers

By Eden Iscil, Public Policy Associate

If you’ve got student loans like I do, you were probably waiting on President Biden’s student debt cancellation since January 6, 2021. And in late August, President Biden delivered on this promise and announced up to $20,000 in relief for borrowers. While the one-time debt relief has dominated headlines (and rightfully so), Biden’s Department of Education (ED) has implemented a few other noteworthy changes to the federal student loan system—reforms that could save thousands of dollars for millions of borrowers.

Here is a brief (and non-exhaustive) overview of recent modifications to US student loan infrastructure that consumers should keep in mind.

One-Time Debt Cancellation

The application for one-time debt relief is live and can be accessed at https://studentaid.gov/debt-relief/application. The process is 100% free and it takes less than five minutes to complete. This is the only website to which consumers should be providing information to receive debt cancellation. Filers do not need to go digging for old forms, IDs, or income receipts as the only information the application requires is name, date of birth, email, and Social Security number. The ED may contact select borrowers to verify eligibility or request further information, but unless you are contacted, you are good.

Borrowers who earn less than $125,000 a year are eligible for up to $10,000 in debt relief on federally held student loans. This amount increases to $20,000 in cancellation for Pell Grant recipients. Student loans eligible for cancellation must be held by the federal government and disbursed on or before June 30, 2022.

Student loans eligible for Biden’s debt cancellation include:

· Federal Direct Loans (including Direct Subsidized Loans, Direct Unsubsidized Loans, Direct PLUS Loans, Direct parent PLUS Loans, and Direct Consolidated Loans)

· Federal Family Education Loans (FFEL) held by ED

· Federal Perkins Loans held by ED

· FFEL and/or Perkins loans that were privately held but the borrower applied for these loans to be consolidated into a US ED consolidation loan before September 29, 2022

Student loans not eligible for the federal, one-time debt cancellation include:

· FFEL loans not held by ED

· Perkins Loans not held by ED

· Federal loans that were consolidated into a commercial loan

· Student loans held by a private lender

· Student loans held by a state government

Refunds for Loan Payments Made During the Pandemic

If you had paid off your federal loan balance after the pandemic began, you can request a refund for those payments to receive your debt relief. This should be done before applying for the debt cancellation. Also, this should only be done if you paid off your entire balance and would otherwise be unable to claim debt relief. If you still have an outstanding balance equal to or greater than the amount of debt cancellation you are eligible for, you likely do not want to request a refund for your payments.

To get your money back, call your loan servicer directly to ask for a refund on payments you made since March 13, 2020. You should figure out the specific amount of money you are requesting back before contacting your servicer. Additionally, you should have your payment confirmations and receipts nearby throughout this process to ensure that you get a refund for every payment that you want refunded. Then, you should apply for the one-time debt cancellation.

Will Debt Relief Be Taxed?

The one-time debt relief will not be taxed by the federal government, thanks to a provision within the 2021 American Rescue Plan. States, however, can tax debt cancellation as income. This is something that a small number of states have weirdly said they intend to do, while a handful of others may also end up taxing their residents on debt relief by failing to pass legislation in time to exempt the debt cancellation. Most states though will not tax the relief for borrowers.

Federal Payment Pause Ending

President Biden coupled the sweet with the sour by announcing the end of the federal payment pause on student loans alongside the debt cancellation. Since early 2020, student borrowers have not had to pay a cent toward their federal student loans. Now, that payment pause (AKA administrative forbearance) is set to expire on December 31, 2022, it is unclear what the impact will be of an added monthly expense to tens of millions of borrowers (especially as recession worries grow). The two-and-a-half-year pause made clear that these payments are not necessary—Biden, there’s still time to change your mind!

A New Income-Driven Repayment Plan

While receiving a significantly lesser share of the headlines, the new income-driven repayment (IDR) plan will have a significant impact. As opposed to standard repayment plans, which are calculated only from the principal loan balance, the interest rate, and the length of repayment, ED’s IDR plans put a cap on a borrower’s monthly payments proportional to the borrower’s income. Although a few IDR plans have been available for some time, President Biden’s newly announced IDR plan includes enhanced provisions to help prevent debt from becoming unmanageable.

The new IDR plan will place a payment cap at 5% of a borrower’s discretionary income (half of the previous 10%). Additionally, it will raise the threshold for non-discretionary income to 225% of the federal poverty level (the equivalent of $15/hr); borrowers earning less than this amount will not have to make a monthly payment. Furthermore, borrowers with original loan balances of $12,000 or less will have their debt wiped out in 10 years of enrollment in this IDR plan. Lastly, if monthly payments are made, the ED will cover the added interest, ensuring that borrowers’ outstanding balance does not grow, even if their monthly payment is $0 due to their income level.

To enroll in the new IDR plan when it becomes available, or to switch to any of the four existing ones, visit https://studentaid.gov/idr/.

Fresh Start for Borrowers in Default

When the federal payment pause ends on December 31, 2022, the federal government will open their Fresh Start program for one year, allowing borrowers who were previously in default to enter repayment in good standing. The program will not require anything like a lump sum payment or consolidation, but it will remove the many penalties associated with default, such as wage garnishment and the denial of further student aid.

More details on how to enroll when this program opens on January 1, 2023 can be found at https://studentaid.gov/freshstart.