Wal-mart really is evil.

[Valkenar]

What seems unconscionable to others is a no-brainer to them.

I think that's a pretty good summary of Wal-Mart in particular, and big business in general. And I don't think "duty to shareholders" is a valid excuse.

[cxt]

"And the executives kids don't have to go get killed in Iraq."

And here I thought that the draft was over----not only does there seem to be a draft I was not aware of--but there seems to be a specific exemption for the children of "executives."

[cxt]

Val

"I don't think duty to shareholders is a vaild point"

Why not?

Surely they have at least some duties to those that invest in them.

I take my hard earned money and invest it in your new business--I provide you with capitol when and where you need it to grow and eventually earn me a return on my investment.

My grandfather funded his retirement (partially) on his investment/stock holdings.......he sure was not going to get much from his pension and SS.

Not fond of robber barons of any stripe....but Bill is right, its a lot more complex than big company= bad.

[Valkenar]

Not fond of robber barons of any stripe....but Bill is right, its a lot more complex than big company= bad.

Of course it's more complex than that and big business isn't always bad.

Two reasons why fiduciary responsibility isn't a valid excuse.

First, it's seldom the case that they absolutely have to do something unconscionable or be faced with breech of fiduciary responsibility. You don't have to outsource and you don't have to keep your foreign sweatshops as similar to forced labor camps as you can get away with, for example.

The second, and to me more important reason is that the decision-makers take the job knowing full well what it entails. You don't get to be big CEO at big tobacco without knowing that you're going to be doing a lot of lying about scientific evidence. You don't get to be CEO at Wal-Mart without knowing you're going to be suing families like the one in this story. You don't get to be CEO of Nike without knowing that you'll be overseeing sweatshops. Now maybe it isn't the CEO, maybe it's someone else, but somewhere in the company someone took a job knowing that they're going to be tasked with doing these things.

Fiduciary responsibility isn't an excuse because they don't have to take on that responsibility. At the end of the day, every free individual is responsible for what they do. They can always quit the job or not take it to begin with.

"I was just doing my job" is only a valid excuse if you didn't know what the job was going to be like and you don't have any reasonable alternatives.

[cxt]

Val

Ok, now I get it, your assuming that they must something "unconscionable" in order to meet that duty.

Ok, I agree, don't think it should be an excuse if they are really doing something "unconscionable" either.

Not sure that just because its overseas its a "sweatshop"--by the standards of the place they might be really great places to work.

(On that note---its IMO kinda of a catch-22---the USA is constantly being excorated for "cultural imperialism"--yet isn't that precisely what we are doing by demanding that working standards etc be the same overseas as they are in the USA?
Should other nations be forced to bow to "our" standards only when it certain ideolocial factions deem it that it should be so...but otherwise...then "native" traditons should be respected and followed??????)

I agree "doing ones job" should in no way be an excuse for lying.

Wal Mart takes a lot of flack--and argueably so for many reasons---but they also make it possible for a lot of people that don't make money to buy things that make their lives more full..and in some case to afford needed items.....resonably priced clothing for example.

Interesting you should mentioned Niki---companies like that often are used in B-school as examples of just how complex the situation really is overseas.

They or someone like them opened a plant---the only doctor withen 50 miles could make a lot more cash working on the line than he could as a MD---the question becomes whom "owns" this guy and his talents/skills?

Does a person have the right to make indivudual choices or do they "belong" to the collective---the man involved asked if he was some sort of "slave"--if memory serves.

The Niki (or whomever it was) solution was to appoint the guy the "Niki Plant" MD and paid him to treat the workers and their familes and anybody else in the region--ended up with a better supported clinic than they had prior to Niki putting a plant there.

Its not always bad and big business is not always the bad guy.

[Van Canna]

Interesting case and very complex. In my office this situation came up constantly.

Let’s look at it.

Defendant broad sides plaintiff _injuries are serious_ and case reaches trial.

Why? Even in cases of questionable liability [we don’t know if this applies here] _ with serious personal injuries, liability insurance carriers always try settle before trial to avoid large awards and or choking defense costs.

Why did it reach trial? Was the case being tried on liability or damages only?

And why did it not settle during the mandatory pre-trial conferences?

Let’s talk about ‘damages’

A plaintiff’s damages are always as follows:

1. Special damages are your medical and other out-of-pocket expenses incurred that include your hospital and doctor bills, ambulance, medicine, lost wages, future medical expenses, rehabilitation costs, possibly home care, etc.

2. "General" damages are those that cannot be specified by a certain number and are also called non- economic damages. These damages include pain and suffering, emotional distress, loss of bodily function and loss of consortium.

3. The last type of damages is punitive damages. These damages are used by the legal system as a way to punish especially egregious behavior.

OK…

Collateral sources… read this …

http://amsir.home.isp-direct.com/Conten ... rimer.html


When suit is filed _ the complaint will also contain a claim for medical expenses. But if, as is most often the case, the plaintiff's health insurance has already paid this sum, suing for medical expenses is no longer such a good idea; there is no way the plaintiff can recover for these already-reimbursed expenses at trial.

Why?

CPLR 4545 (c), effective in 1986, provides that "n any action brought to recover damages for personal injury, injury to property or wrongful death, where the plaintiff seeks to recover for the cost of medical care, dental care, custodial care or rehabilitation services, loss of earnings or other economic loss"_

proof of collateral source payments "such as insurance (except for life insurance), social security (except those benefits provided under title XVIII of the social security act), workers' compensation or employee benefit programs (except such collateral sources entitled by law to liens against any recovery of the plaintiff)" will be admissible_

and the court is required to reduce the award by the amount already reimbursed. As a small concession to plaintiffs, the cost of the premiums for whatever policy has paid these sums is added back in to the award.

. If the case is settled before trial, though, CPLR 4545 does not apply. The result will turn the nature of the settlement.

Plaintiffs' awards are not reduced for collateral source payments; but if some of the settlement money is allocated for medical expenses the medical insurance company has a right to claim it.

So the allocation of the settlement money is paramount.

However ….
A substantial number of health insurance policies provide for a contractual lien on the recovery of medical expenses already paid by the insurer.

Even if the contract does not specifically state that the insurer has a lien--and such provisions are strictly construed--the insurer can usually proceed under a contractual right of reimbursement

(see, Teichman v Community Hosp. of West Suffolk, 87 NY2d 514, 520).


But the medical insurer cannot force its insured [plaintiff] to protect the insurer's rights.

All the Appellate Divisions that have considered the issue have now held that plaintiffs are free to settle cases on any terms they wish, allocating all of the damages to pain and suffering, for example, so that there are no medical damages to be recovered.

The most recent case on point is the Fourth Department's Independent Health Association v Grabenstatter (254 AD2d 722, lv den 93 NY2d 804).

What is more, the Third Department had earlier held that "the failure to allocate a portion of the settlement to medical expenses" would not vitiate the agreement, and insurers could not intervene in the hopes of negotiating an arrangement that compensated them for the benefits they had paid (Berry v Lazaro, 250 AD2d 63, 68).


The Second Department has agreed with this reasoning (McGuire v Long Island Jewish-Hillside Medical Center, 237 AD2d 417), having earlier noted in Humbach v Goldstein (229 AD2d 64) that the insurer has a lien only on sums "specifically identified as amounts paid for health care services or benefits attributable to the plaintiff's injuries" (229 AD2d at 69).


So has the First Department, which cited both Berry and Humbach with approval in denying an insurance company's application to intervene (Halloran v Doni's 47 West 44th St. Rest. Corp., 255 AD2d 206).


What if the settlement agreement is silent on the allocation? That is the worst scenario from the plaintiffs' point of view, because, following the Court of Appeals' ruling in Teichman, the insurer then has a right to intervene "to establish its right to recoup covered medical payments, if any, made to plaintiffs by defendants as part of the settlement" (87 NY2d 514, 519).

Having negotiated a settlement over some period of time, the plaintiff now has to negotiate or even try aspects of the case with its own insurer.

In a majority of cases, then, it would obviously be unwise to throw in the usual claim for medical expenses. At the very least, there ought to be no settlement that does not clearly articulate the heads of damages that are being compensated for.


Plaintiffs have no duty to bargain for their insurers' benefit, and have nothing to gain by doing so. But what about the insurer's rights?


The company has paid the plaintiff for medical expenses caused by the defendant's negligence, and cannot recover anything from its insured--assuming that the plaintiff has settled for pain and suffering only, or has prevailed at trial, and thus was not compensated a second time for those expenses.



These are classic subrogation situations, where the insurer, having paid its insured for damages caused by a third party (the defendant), stands in its client's shoes, seeking to recoup its payments.

• When repayment is required, the victim's attorney usually is successful in obtaining a reduction of the amount that must be repaid, for the simple reason that the insurance company has profited from the attorney's services in obtaining the settlement or judgment, and therefore fairness dictates that the insurance company must give the victim a credit equal to the attorney's fee (and a proportionate share of the costs of recovery).


Another reason would pertain to liability: if the chance of proving liability is only 50%, then the claim might settle at 50% of its value, and therefore the insurer should reduce its lien by the same 50%.

Mull this over and give reasons as to what you think might have gone wrong in the handling of this case.
Maybe John Page can give his legal opinions.

And now this :

http://www.classactionconnect.com/?q=node/612

[Valkenar]

Val

Ok, now I get it, your assuming that they must something "unconscionable" in order to meet that duty.

I don't think every act a CEO takes is unconscionable. All I'm saying is that fiduciary responsibility is not an excuse for unconscionable acts. What is or is not unconscionable is a large and complex issue.

[cxt]

Val

I understand and agree.

[jorvik]

you know in the UK I get to see the totally opposite argument ......I know folks who get as much money as a junior doctor..and they are on benefits ..and they get this just because of the number of kids they have.......Now this poor women has given her young son for her country....what is America going to give back?

[cxt]

jorvik

I have no idea wha your talking about......lets just say its my fault...but could you be a little more specific?

[Bill Glasheen]

• When repayment is required, the victim's attorney usually is successful in obtaining a reduction of the amount that must be repaid, for the simple reason that the insurance company has profited from the attorney's services in obtaining the settlement or judgment, and therefore fairness dictates that the insurance company must give the victim a credit equal to the attorney's fee (and a proportionate share of the costs of recovery).

This is most certainly fair. All along I have implied that would be happening.

- Bill

[Bill Glasheen]

All I'm saying is that fiduciary responsibility is not an excuse for unconscionable acts. What is or is not unconscionable is a large and complex issue.

Remember that I was the person that brought up the word "unconsionable."

Emphasis provided so that Justin will see how he misused my language.

What seems unconscionable to others is a no-brainer to {those operting the Wal-Mart health plan}.

Perception and reality can be very different.

- Bill

[Valkenar]

Perception and reality can be very different.

They sure can...

Is this particular thing unconscionable? Well, I'm not equipped to judge that nor interested enough to read up on it. The general point stands and there's no shortage of actions I would consider unconscionable.

The way Monsanto has conducted its legal battles and basically strong-armed independent farmers out of existence because cross-pollination makes it impossible to grow non-Monsanto soy in some places.

The way DeBeers invented a guilt-based obligation for people to spend 1/6 of their yearly salary on an artificially scarce commodity gemstone.

The way the vast majority of apparel manufacturers keep people in working conditions that would be illegal here.

The way industry in virtually every sector lobbies government for subsidies, tax breaks and legislation that is favorable to their profit margin but are very bad for consumers.

The way the RIAA uses the legal system to browbeat consumers into costly settlements because there's no way it's worth defending (guilty or not) yourself against their lawsuits unless you're willing to bankrupt yourself on principle.

The way advertisers very intentionally enhance people's sense of inadequacy so that they can fill the newly-created void.

The way consumer safety is often no more than a cost-benefit analysis and if it's cheaper to pay lawsuits than fix problems then people are harmed for
the sake of profit.

Etc, etc.

All (or at least most) of these things are perfectly legal, they just seem unconscionable to me. I'm sure some people think these are all lovely and admirable examples of business acumen and that anyone who is harmed by any of this deserves it for being so stupid. Me, I think it's callous greed and grossly unethical.

[Bill Glasheen]

Justin

That's a lot of bashing for one post.

There are things I don't like. The way food manufacturers get subsidies for cramming high fructose corn syrup into everything bothers me. The way processed and fast food companies put lots of hydrogenated and saturated fat in most food that America eats bothers me. Why? Because I see the obesity epidemic and metabolic syndrome in my data. (I even catch crap from some in our Uechi community for caring. Go figure...)

But... What are you going to do about it? Therein lies the question that separates the men from the boys, the women from the girls, the libertarians from the populists, the body Nazis from the doughboys, etc., etc.

It would be nice if we could protect all our freedoms and do good at the same time.

- Bill

[Valkenar]

Justin
That's a lot of bashing for one post.

It is. By listing several many things I was hoping to cut off nitpicking of the individual items. The point is the pattern, not the threads. If you don't see the pattern, well okay maybe I'll address that sometime but for now I'm focus on the general idea.

There are things I don't like. The way food manufacturers get subsidies for cramming high fructose corn syrup into everything bothers me. The way processed and fast food companies put lots of hydrogenated and saturated fat in most food that America eats bothers me.

Yup, that's part of the lobbied legislation that benefit industry at the (literal and figurative) expense of the consumer.

But... What are you going to do about it?

What am I going to do as in what am I, Justin Powell doing to stop it? Not a lot, quite honestly. I live in accordance with my beliefs, which basically means personally boycotting products I don't like (Like you, I avoid products made with corn syrup, I also won't buy diamond jewelry). I also try to at least make people aware of these issues, even if I may not always actually sway them to my side. And then I'm a member/regular giver to a few organizations and causes that are working (lobbying, mostly) to address these issues. What do you do?

It would be nice if we could protect all our freedoms and do good at the same time.
- Bill

I don't think that's too hard. Repealing the mountain of subsidies and ridiculous USDA rulings wouldn't limit anyone's freedoms and would go a long way. Forcing companies to comply abroad with the labor laws we have here isn't a limitation of freedoms. After all, it's a crime to go to another country and murder someone why should it be legal to go to another country and have children working 12 hours a day? Sure, some of the things I fantasize about I wouldn't actually do because it's too much a limit on free speech (e.g. forcing advertisers to stop marketing empty sugar treats to kids) but there's a lot of good we can do just be taking back some of the corporate handouts .