Recall Roundup: 65,000 Hyundai Elantras

Posted by Sergei Lemberg, Esq. on October 5th, 2008

According to the National Highway Traffic Safety Administration (NHTSA):

Hyundai is recalling 65,000 MY 2008 Elantra vehicles with 2.0 liter beta engines. The fuel pump motor may not have the proper uniform internal electrical surface contact. This may cause the fuel pump to produce less pumping pressure than required to supply the fuel injection system. Fuel leakage, in the presence of an ignition source, could result in a fire. Dealers will replace the fuel pump subassembly free of charge. The recall is expected to begin during September 2008. Owners may contact Hyundai at 1-800-633-5151.

Right to Sue for Data Privacy Breaches?

Posted by Sergei Lemberg, Esq. on October 5th, 2008

William Morriss, who blogs about law-related information security and data privacy issues over at EphemeralLaw discusses the new frontier of consumer rights for privacy breaches. Thanks, William!

If you are one of the millions of Americans who has his or her personal data exposed in one of the seemingly endless streams of data security breach incidents, your chances of getting some kind of compensation are pretty grim. As a general rule, courts have been extremely reluctant to find that consumers are entitled to compensation, simply because they are at a higher risk of identity theft - the 7th Circuit decision is but one example.

With that having been said, the following are facts that courts have mentioned in previous cases that you should consider if your data has been exposed in a security breach. First, have you put a fraud alert on your credit card? This is something that the plaintiff failed to do in the case of Kahle v. Litton, 486 F.Supp.2d 705 (S.D. Oh. 2007) and the judge explicitly mentioned it when dismissing her case.

Second, have you actually been the victim of an identity theft? While it might seem like consumers should be able to get companies who have had security breaches to pay for credit monitoring, in general courts have refused to grant compensation for the cost of credit monitoring services, and instead have said that consumers must show actual damages - i.e., identify theft. A good example of that approach is Pisciotta v. Old National Bancorp, 499 F.3d 629 (7th Cir. 2007), which is the only federal appellate court case on the subject.

Finally, check your state’s security breach notification act to see if it authorizes suits by individuals. While this will only be useful if the company that suffered the breach hasn’t complied with the law by, for example, failing to notify you, or by delaying beyond the specified period, if it fits the facts of your case, it can put you in a very good position going to court.

Of course, none of the above guarantees that your case will even make it to trial (most don’t). Obviously, every case needs to be evaluated on its own merits. However, considering the factors set forth above can at least help provide some perspective with respect to cases that have already been disposed of.

Texas Homeowners are H.O.T. About Lemon Homes

Posted by Sergei Lemberg, Esq. on October 5th, 2008

Homeowners of Texas (H.O.T.) are ready to put some teeth into that state’s laws governing shoddy workmanship on new home construction. They recently stormed the state capitol, calling for the dissolution of the Texas Residential Construction Commission and instead establishing consumer protections similar to those found in the state’s Lemon Law (including awarding attorney fees). According to an organizational press release:

The TRCC, established by the Texas Legislature in 2003 to help resolve disputes between homebuilders and homeowners, instead has become a puppet of the homebuilding industry and a roadblock to relief for wronged homeowners…. Two of the biggest complaints against the TRCC are that it requires one of its own inspectors to visit a home in dispute, a process that can take five months or longer, and the fact that if builders are found guilty of poor or unsafe work, the TRCC has no authority to compel them to correct the problems.

Because a home is likely the largest investment a person makes in his or her lifetime (and particularly in light of declining home values and the current economic crisis), it makes sense to make homebuilders accountable for their products. Consumers need an avenue of redress - and an assurance that, as with auto lemon laws, they don’t have to spend money out of pocket for a lawyer - to get their voices heard.

Divorce and Contingent Marital Assets

Posted by Sergei Lemberg, Esq. on October 5th, 2008

Pamela Wynn, an attorney specializing in collaborative divorce, is guest blogging for us today. Thanks, Pamela!

Half of all marriages end in divorce these days. As your lemon lawsuit winds its way through the court system, life happens. If you end up in divorce court before your lawsuit is finished, you could have a contingent marital asset. How a lawsuit settlement is treated in your divorce case depends on the law of your state.

Marital assets are those that are obtained during marriage and are divided in divorce. Contingent assets are those assets that are likely to come into existence but are not certain yet. So, if your lawsuit is in progress at the time of the divorce, you will need to report the case as a contingent marital asset and ask the court to divide it.

In general, community property states will evenly divide the contingent asset. In equitable distribution states, treatment usually depends on what the award represents. If the judgment is for lost wages or past earning capacity, it will be considered a marital asset because it replaces marital earnings that would have been made during the marriage. If the judgment is simply a joint award to both of you and does not specify what the damages represent, the entire award will likely be marital property.

Even if the award is considered a marital asset, portions of it may be non-marital and not subject to division in a divorce. Compensation for future losses or pain and suffering typically belong only to one spouse and are treated as non-marital assets in a divorce. If the judgment awards each of you separate amounts, the separate amounts will be considered non-marital assets. Also, awards for future losses will be considered non-marital.

If you are involved in a lawsuit and a divorce, be sure you know what the award represents. How your state will treat the lawsuit proceeds in the divorce case may well depend on what the nature of the award is.

Pamela S. Wynn has practiced family law in Florida for more than 24 years and is President of Legal Education Center of Florida, Inc., home of the DIY Divorce system. For more information about Florida family law, visit http://diydivorcefl.com/

Rights Under Immigration Law

Posted by Sergei Lemberg, Esq. on October 5th, 2008

If you own a lemon car, lemon truck, or lemon motorcycle, you have rights under your state’s laws, as well as rights under federal law. If you are an immigrant, you have rights and procedures that you need to follow in order to navigate the complex immigration law system. Jacob J. Sapochnick, an attorney specializing in immigration law, offers an overview of immigration law and recent updates, as well as tips to make sure you can take advantage of your Immigration law rights.

One of the basic principles of U.S. immigration law is family unification; in principle, the system is dedicated to uniting husbands with wives, and children with parents. Unfortunately, due to understaffing, underfunding, and security concerns, cases often cannot be processed as quickly as a family would desire or as quickly as the law allows. Certain family members related to either U.S. citizens or lawful permanent residents (Green Card holders), may enter the U.S. and stay. The best category to be in is the immediate relative category - spouses, parents, and children under 21 of U.S. citizens.

People that qualify under the immediate relative category are not subject to visa numerical limitations. Other relationships, which are subject to a quota system, are divided into family-based “preferences.” The family preferences include four categories:

First preference: Unmarried sons and daughters of U.S. citizens.

Second preference:    Spouses and children of legal permanent residents (Green Card holders) Level 2A; and unmarried sons and daughters of legal permanent residents (Green Card Holders) Level 2B.

Third preference: Married sons and daughters of U.S. citizens.

Fourth preference: Brothers and sisters of U.S. citizens.

If a family member petitions for you in a preference category-that is, a category with annual limits on the number of visas-your wait could be several years long. Although it’s possible to estimate the likely wait in your category, this will be only an estimate. You will need to learn to track it, month-by-month, based on the Visa Bulletin published by the US State Department.

As evident from the categories described above, not all family relationships are recognized for purposes of immigrating to the United States. A person could petition for his or her own parents or siblings, but a grandchild could not petition for a grandparent, or a nephew for an aunt. A permanent resident can petition for his spouse, but the spouse will be subject to the preference system and will need to wait for a visa number to become available before obtaining the permanent residency.