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Ethicon Media Monitoring 3/15/2018
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Critical Mass: Yahoo May Face Punitive Damages in Data Breach. Plus: Litigation Funding and State Usury Laws
Mar 15, 2018 | Law.com
By Amanda Bronstad
Yahoo now faces the possibility of punitive damages over recent data breaches, which have impacted a total more than 3 billion user accounts, after Judge Lucy Koh refused to dismiss the case. -
Floored by condition: Emily Rose O'Donovan uses yoga to deal with her hypertonic pelvic floor pain
Mar 15, 2018 | Irish Examiner
By Jacqui Corcoran
For many women, Emily Rose learned, pelvic floor dysfunction manifests in the guise of underfunctioning pelvic floor muscles, leading to urinary incontinence, often occurring after childbirth and tackled with the use of incontinence pads, sometimes physiotherapy, sometimes surgery (including the controversial ‘bladder mesh sling,’ highlighted in recent media reports and a Prime Time special).
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Mar 15, 2018 | Law.com
By Amanda Bronstad
Yahoo now faces the possibility of punitive damages over recent data breaches, which have impacted a total more than 3 billion user accounts, after Judge Lucy Koh refused to dismiss the case.
Welcome to Critical Mass, Law.com’s briefing on class actions and mass torts. I’m Amanda Bronstad in Los Angeles. Yahoo now faces punitive damages over its recent data breaches after Judge Lucy Koh refused to dismiss the case. Case law is emerging over litigation funding arrangements. And a judge is now weighing a $1.5 billion GMO settlement with Syngenta.Yahoo Faces Prospect of Punitives
Yahoo now faces the possibility of punitive damages over recent data breaches, which have impacted a total more than 3 billion – yes, that’s with a “b” — user accounts.
On Friday, U.S. District Judge Lucy Koh refused to grant Yahoo’s motion to dismiss a consolidated case brought over data breaches that occurred from 2013 to 2016 – including punitive damages claims that were added in December to their complaint. Here’s my story. The judge found plaintiffs sufficiently alleged that Yahoo’s executives knew there were problems with its security and referenced internal documents between a former chief information security officer and Yahoo’s general counsel.
The ruling isn’t all that surprising. After all, Koh refused to dismiss the case back in August. But there’s more ahead: The plaintiffs are set to file their class certification motion in July. And plaintiffs have said they plan to depose several former chief information security officers, former General Counsel Ron Bell and former CEO Marissa Meyer. Yahoo, represented by Hunton & Williams, geared up for battle last month by adding Gibson, Dunn & Crutcher to its defense team.Could NFL, 9/11 Cases Subject Lit Funders to State Usury Law?
Case law is emerging over whether litigation funding agreements are subject to state usury laws – with the $1 billion NFL concussion settlement and a fund linked to victims of Sept. 11, 2001, wading into the mix. Law.com’s Max Mitchell has this story.
Last year, U.S. District Judge Anita Brody in Pennsylvania barred third-party litigation funders from signing agreements with plaintiffs in the NFL case. Meanwhile, in a case in New York, several briefs have been filed over whether similar agreements with claimants in the Sept. 11 fund should be blocked.
Max told me there’s a “fair amount of emerging case law” finding that such arrangements aren’t considered loans. But Brody’s ruling was more complicated – in fact, one funder has already asked her to clarify her order (see Max’s story here). According to Max:
“Brody found that the NFL settlement agreement specifically disallowed ‘assignment agreements,’ and since these companies structured these advances as ‘assignment agreements,’ they violated that clause. It sounds like case law about ‘assignment agreements’ is more unsettled, and so as the issue makes it way up the appellate ladder, the defendants are going to continue raising this issue about how non-recourse agreements aren’t subject to usury laws, so their agreements should be fine in the eyes of the court, regardless of the ‘assignment agreement’ designation.”Judge Gets Earful on GMO Corn
Following months of negotiations, lawyers on Monday filed a motion to approve a $1.51 billion settlement with Syngenta AG in the multidistrict litigation over genetically modified corn seeds that China refused to import. The announcement comes after a federal jury in June awarded a $218 million verdict to 7,300 farmers in Kansas. According to the motion, the deal would provide payouts to more than 600,000 farmers, grain handling facilities and ethanol plants.
Gray Reed & McGraw announced the settlement in a press release on Monday. Firm partner William Chaney was co-lead along with Patrick Stueve of Stueve Siegel Hanson, Don Downing of Gray, Ritter & Graham, and Scott Powell of Hare, Wynn, Newell & Newton.
The motion and release didn’t say much about attorney fees. But in a statement on Monday, Syngenta said: “If the proposed settlement is approved by the Court, Syngenta will contribute a total of $1.51 billion to a settlement fund that would be used to make payments to eligible participants and to cover the costs of administering the settlement, including any court-approved award of fees to plaintiffs’ counsel.”Who Got the Work?
Steptoe & Johnson is representing L.L. Bean in a class action brought over its decision last month to end its lifetime return policy. The suit was filed by attorney Ben Barnow of Barnow & Associates on behalf of a nationwide class of customers who purchased the retailer’s products prior to the new policy, which limits returns within a year. On Feb. 28, Steptoe & Johnson partner Anthony Anscombe appeared as lead counsel, along with associate Mary Beth Buckley. Both are based in Chicago, with Anscombe also listed as a partner in the San Francisco office. On March 2, another Chicago partner, Darlene Alt, appeared, as did two members of the firm’s San Francisco office, partner Stephanie Sheridan and associate Meegan Brooks.
Here’s what else you need to know:
In Reverse: Lawyers on both sides of the 9th Circuit’s Hyundai decision have filed petitions to rehear en banc the 2-1 ruling that’s sent shockwaves throughout the class action bar for potentially threatening nationwide settlements. Here’s my story. Plaintiffs lawyers (repped by Steve Berman of Hagens Berman) and defense attorneys (Shon Morgan of Quinn Emanuel for Hyundai and James Azadian of Dykema Gossett for Kia) both argued that the 9th Circuit’s Jan. 23 decision in In re Hyundai and Kia Fuel Economy Litigation creates a circuit split.
Prolift Plaintiff Wins: A federal jury in Indiana slammed Johnson & Johnson’s Ethicon with a $35 million verdict over its Prolift pelvic mesh device. Here‘s Law.com’s story. The jury awarded $10 million in compensatory damages and $15 million in punitive damages. Plaintiffs Barbara and Anton Kaiser were represented by Thomas O. Plouff of Costello McMahon Burke & Murphy, Jeff Kuntz of Wagstaff & Cartmell and Edward Wallace of Wexler Wallace.
Cy Pres Support: Google Inc. is urging the U.S. Supreme Court to deny review of an $8.5 million class action settlement in which class members got nothing but several third parties, including groups at Stanford and Harvard, got $5.3 million in cy pres funds. Here’s Law.com’s story, which notes that the trial judge who approved the deal, upheld by the 9th Circuit, found that distribution to 129 million Google users wasn’t feasible and would result in each class member getting 4 cents. Mayer Brown’s Donald Falk, writing for Google, said all of the circuits agree that “a cy pres-only settlement is appropriate in the rare circumstance where direct distribution to class members is infeasible, and all insist on a close nexus between the cy pres remedy and the interests of settling class members.”
Another Tide Pod Lawsuit?: A woman has sued Procter & Gamble after a Tide Pod detergent capsule ruptured while stashed in her bra, causing chemical burns, according to Law.com’s story. Everyone now knows about the dangers of ingesting Tide Pods, but at first glance the suit raises the question: Why did she have a detergent capsule in her bra?
Anyone with a toddler already knows that answer–“With nowhere else to put it that was out of the children’s reach, she tucked it into her bra, then headed to the laundry room to put it away,” the story says, citing the complaint that plaintiff Dana Arevalofiled (repped by Marisa Dominguez of Ricci, Fava & Bagley). “But before she got to the laundry room, the capsule broke and spilled its contents, causing her to suffer chemical burns.”
https://www.law.com/2018/03/13/yahoo-may-face-punitive-damages-in-data-breach-plus-litigation-funding-and-state-usury-laws/?slreturn=20180215033757
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Floored by condition: Emily Rose O'Donovan uses yoga to deal with her hypertonic pelvic floor pain
Mar 15, 2018 | Irish Examiner
By Jacqui Corcoran
From the age of 11, Emily Rose O’Donovan started experiencing symptoms that felt like those of a urinary tract infection. She felt a constant urge to urinate, had a burning sensation in her vagina, and was in constant pain. Repeat doctor’s visits produced similar results: There was nothing wrong, her urine tests were clear, she didn’t have an infection, she was imagining it.
“Preparing for doctor’s visits,” says Emily Rose, “was like preparing to go into battle. It felt like I was being scolded for being troublesome.”
The symptoms eased when she was around 13, but returned in her later teens. “I was freaking. I thought, ‘Oh god, back into this nightmare’. The doctors couldn’t understand why I was upset. They told me to stop getting so worked up.”
Test after test was carried out. She was referred to specialists. No diagnosis. This pain will be in your life from now on, a doctor told her. Do you feel depressed, suicidal? Of course, she said, wouldn’t you?
Emily Rose couldn’t move much, think straight, or sleep. She was constantly crying. They tried her on IV antibiotics. She was prescribed strong sleeping tablets, which gave some relief, a break from the pain. She went to urologists, gynaecologists. They carried out cystographys, urethral dilation, she had a laparoscopy camera inserted through her belly button. They thought endometriosis was the culprit. She had surgery to “burn it off”.
“I woke from surgery, looked down at my pants. It looked like an alien had exploded there.”
Even more creepy than that experience, she says, was when a doctor told her she needed to relax. His advice? Get a copy of Fifty Shades of Grey and a vibrator.
“Back in history they used to prescribe dildos to women to help them calm down. I couldn’t believe what I was hearing.”
Time went by. Emily Rose explored alternative medicine. “I went to some witch doctor guy in a cow shed who treated people and horses. I tried herbalists, hypnosis, counselling. I tried everything.”
She tried acupuncture in her vagina and perineum. “It was so embarrassing, degrading, but I was desperate. The needles were hooked up to a machine which transmitted electricity. I felt violated.”
She was prescribed strong antidepressants. Are these going to be scary, she asked. Oh no, they said. They were scary. She had severe side-effects, borderline psychotic episodes where her skin crawled, she was terrified of sun, broke out in terrible rashes, was irrationally terrified of the world outside the house. She thought she really was going crazy.
In desperation, her mother took Emily Rose to the Mayo Clinic in Minnesota. There, one doctor co-ordinated a multi-disciplinary approach. He started their consultation by apologising on behalf of all the doctors who had failed her. Emily Rose and her mother started crying. One of the appointments he arranged was with physiotherapist Dawn Underwood. It was a turning point.
“She examined me and said my vaginal muscles were really tense. She told me to do particular yoga moves and practise some deep breathing work. She said it was a pelvic floor issue.”
For many women, Emily Rose learned, pelvic floor dysfunction manifests in the guise of underfunctioning pelvic floor muscles, leading to urinary incontinence, often occurring after childbirth and tackled with the use of incontinence pads, sometimes physiotherapy, sometimes surgery (including the controversial ‘bladder mesh sling,’ highlighted in recent media reports and a Prime Time special).
“After almost 10 years of searching for answers, Dawn Underwood gave me a firm diagnosis of hypertonic pelvic floor. It’s sort of the opposite of that underfunctioning muscles issue. Basically, my muscles were tight, but not in a sexy way. My pelvic floor was going into severe spasms which caused the excruciating pain. I wasn’t crazy.”
With a proper medical diagnosis, she thought it would all be sorted. She started doing the yoga and breathing. The symptoms didn’t go away, but she had something to work with.
Back in Ireland, Emily Rose attended Laura Carroll, a physiotherapist at the Livewell Centre in Waterford. “I arrived at her door feeling exhausted and bedraggled. I begged her to do something to help. She conducted an internal massage. She was so calm and comforting. After just one session working on releasing pressure points in my vagina, my pain was quite literally halved. I couldn’t believe it. This was the really big breakthrough. These days I have it pretty much under control. Physio, exercise, diet, and relaxation all have a role.”
GPs don’t always recognise that symptoms such as pain during intercourse, general vaginal pain, and a constant urge to urinate can be linked to hypertonic pelvic floor. The condition can often go undiagnosed.
Dr Suzanne O’Sullivan, a consultant urogynaeocologist at Cork University Maternity Hospital, agrees. “It’s really only starting to be recognised as an issue or syndrome now, so awareness isn’t widespread. The pelvic floor is really complicated, there’s a number of organs in the area, as well as the genital tract, layers of muscles, nerves. It’s just not appreciated how complex it is.”
General pelvic floor dysfunction is extremely common and 50% of women will experience stress incontinence at some time. 12% of women will undergo surgery for incontinence or prolapse in their lifetime, with 30% of those requiring further surgery. However, explains Dr O’Sullivan, while statistics are readily available for more generally known problems, the same is not the case for hypertonic pelvic floor. “We don’t have hypertonic pelvic floor statistics yet, because it is still under-recognised.”
As a specialist working and teaching in Ireland and internationally, chartered women’s health physiotherapist Michelle Lyons has worked for over two decades in pelvic health physiotherapy. She agrees that hypertonic pelvic floor, which can develop from a number of causes — various traumas, constipation, urinary tract infections, and other triggers — is common but underdiagnosed in Ireland. While her international experience would lead her to believe that Ireland is a global leader in terms of expertise at the treatment end (in particular, in the area of physiotherapy), we fall behind other countries in terms of initial diagnosis.
“GPs have to know a little about a lot. Not every doctor will be in a position to give a pelvic pain diagnosis, and we’re seeing that more than a purely medical and surgical approach is needed. A multi-disciplinary, integrated approach is most effective, where GPs and indeed the general population are made more aware. It doesn’t just affect women. Men can also experience this condition.”
Emily Rose, now in her twenties, lives a generally pain-free life. “It’s been liberating. I don’t think I knew how to be properly happy until I was that sad. To be able to sit here not feeling pain, is wonderful. I just wish it hadn’t taken so long.”
Referring to a YouTube monologue from Zosia Mamet (who also suffers from hypertonic pelvic floor) in which the actress describes her quest for diagnosis and a litany of treatments including one doctor’s radical method of killing any bacteria that might have been causing her pain, Emily Rose says:“I count myself lucky, I might have had my vagina electrocuted, but at least I didn’t have acid squirted in there.”
If there’s a darkness to Emily Rose’s humour, it’s easy to understand why. She says there have been positives, however. Because of her experience, she has gone on to study human anatomy, physiology, psychology, and active holistic massage. She is on the verge of setting up her own business. She laughs as she says her vagina has served her well in terms of relationships, too. “It’s like a metal detector for finding good men! If you’re trying to maintain a relationship while you’re in pain, it tends to go one of two ways — either you find the super boyfriend who makes you feel like a warrior princess for your bravery or the rubbish one who says nobody is ever going to love you when you’re sick all the time, quit whining.”
Her final word to anyone going through similar experiences: “Talk about your vagina, it doesn’t need to be silenced. Don’t live with pain.”
If you have similar symptoms talk to your GP or a chartered women’s health physiotherapist. See list of chartered physiotherapists at iscp.ie/ Michelle Lyons’ website is a useful resource: celebratemuliebrity.com/
Floored by condition
Doctors are only now starting to understand the issues associated with the hypertonic pelvic floor. Yoga can help ease the often chronic pain, writes
https://www.irishexaminer.com/breakingnews/lifestyle/features/floored-by-condition-emily-rose-odonovan-uses-yoga-to-deal-with-her-hypertonicpelvic-floor-pain-832530.html
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