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Hernia Mesh Lawsuit Update – 2022

Legal AssistantMedical Malpractice

In 2016, the Food and Drug Administration (FDA) issued a warning that they received several reports of health-related complications resulting from recalled products used in hernia repair. According to a press release, the agency stated that pain, recurrence, infection, obstruction, adhesion, and perforation were some of the prevalent complications patients reported.

For decades, surgeons have relied on mesh to help resolve various hernia conditions. Unfortunately, many of these medical devices have been at the center of repeated recalls as a result of manufacturing and design defects. These have been the root cause of painful and, in some cases, life-threatening complications.

Victims have since filed hernia mesh lawsuits seeking compensation for the severe injuries they suffered as a result of the defective devices. Here’s everything you need to know.

What Is a Hernia

A hernia is a bulge that occurs in an area of the body with torn or weakened muscles. As time goes on, these muscles continue to degenerate to the point that they can no longer support organs, tissues, and related fat. As a result, those organs and tissues begin to push through these gaps creating a bulge that can often be seen and felt. This condition is most common in the groin and abdomen.

Hernias can develop for any number of reasons, including a congenital birth defect, issues with the gastrointestinal tract, obesity, abdominal surgery, and muscle strain. Certain lifestyle habits like smoking also increase the risk of developing hernias.

What Is a Hernia Mesh

Traditionally, surgeons would simply push the bulging organs and tissues back into place and stitch the muscles together. Decades’ worth of research later proved this repair technique ineffective. If anything, it increased the likelihood of the hernia recurring.

The reason for this was that the muscles being stitched back together were already weakened and damaged. As a result, the intersection between them wasn’t strong enough to hold the organs in place. It became evident that for a hernia repair to last, it needed extra support.

Enter the hernia mesh.

A 2010 study indicates that the concept of using mesh to repair a hernia isn’t anything new. The idea was introduced more than five decades earlier, but it wasn’t until the late 80s that the procedure began to gain widespread popularity in the medical world.

Mesh devices are sterile, net-like, woven patches used by surgeons to shore up body tissue and distended muscles. Initially, they were made of hard plastic, but this later changed in favor of softer, lightweight, and more flexible materials due to the countless complications they brought on.

This mesh material was designed to integrate easily into the body’s tissues and muscles, creating a permanent repair for hernias. As it continues to stabilize and strengthen the area, offering much-needed support for the muscles and organs, it also provides a base for new tissue growth.

What Went Wrong

Several different companies manufacture a wide range of hernia mesh devices. Each product varies in size, shape, flexibility, and material. They are specially designed to offer the best possible results in hernia repair and may have unique features to cater to specific anatomical structures.

For instance, in a minimally invasive laparoscopic procedure where a surgeon makes a small incision and then uses a camera to insert the mesh, the product must be flexible enough to fit inside the tiny tube. More invasive surgical procedures can accommodate a thicker mesh product.

The findings of a 2016 study published in JAMA revealed that although the use of hernia mesh significantly reduced the likelihood of a hernia recurrence, these benefits were offset by the prevalence of mesh-related complications.

According to the study, patients who had undergone open (as opposed to laparoscopic) mesh repair had a 12-percent chance of recurrence, only 5 percent lower than those who underwent non-mesh repair.

Hernia Mesh Complications Years Later

In a five-year follow-up, researchers found that the number of patients who later developed complications had increased. Many reported bleeding, abscess, bowel perforation, and bowel obstruction.  The prevalence of patients with mesh-related complications eventually surpassed the number who had undergone non-mesh repairs.

The majority of these complications required additional surgical intervention. The study concluded that the benefits linked to the use of mesh in the repair of hernias were partially canceled out by the long-term complications that arise.

Types of Mesh for Hernia

In a 2018 statement, the FDA warned that despite the decreased rates of hernia recurrence, there are certain instances where using surgical mesh to repair hernias may not be the best approach. The agency cautioned patients, encouraging them to discuss the specifics of their condition with their surgeons and explore possible non-mesh alternatives for hernia repair.

Hernia mesh comes in many different shapes and sizes. They vary depending on the specific size or type of hernia a patient has.

Types of Hernia Mesh Based on Shape and Size

Mesh products can be classified as follows:

  • Patches – These are designed to go above or below the damaged or weakened muscles or tissues.
  • Plugs – These are designed to fit inside the hole in the muscle or tissue.
  • Sheets – These are custom cut to fit the specific hernia on the patient.

Types of Hernia Mesh Based on Function

Hernia mesh can also be classified based on their specific function in the body or the material they’re made from.

  • Absorbable – These degrade and lose their strength over time and are meant to offer short-term reinforcement to a repaired hernia while spurring new tissue growth.
  • Non-absorbable – These work as permanent implants and remain in the body indefinitely to provide lasting support to the site of repair.
  • Synthetic – These are made from synthetic materials like polypropylene and come in the form of woven or non-woven sheets.
  • Coated – Some polypropylene is coated with absorbable collagen, cellulose, or fatty acids to prevent body organs from adhering to the mesh.
  • Animal-derived – These are made from animal tissue derived from their skin or intestine and are absorbable.

How to Tell if Hernia Mesh Failed

Doctor in surgery
Source: Unsplash

Mesh failure means that the product used to repair your hernia no longer works as it should. This could happen for any number of reasons, including a design defect, defective mesh material, or the surgeon’s error.

Signs of hernia mesh failure can present anywhere from a few weeks of the procedure and several years down the line.

Hernia complications not only affect your quality of life but, if left untreated, can also be life-threatening. Here are some of the common ways to tell if your hernia mesh has failed.

Bulging

If you notice a bulge in the area where the device was implanted, it’s usually a sign that the mesh has either dislodged or is in the process of dislodging. It is often accompanied by inflammation. The size of the bulge varies depending on the severity. It could be the size of a softball or larger.

Burning

Hot or warm skin around the surgical implant site is quite common when the mesh has shrunk, disintegrated, or dislodged. A burning sensation might also be a sign of inflammation caused by an infection. The burning effect may persist for several days at a time or come and go intermittently.

Constipation

A defective mesh along the abdominal wall may press up against the stomach, intestines, or colon. This may cause gastrointestinal issues, the most common of which is constipation. This is particularly common in patients with umbilical hernias, where the intestines bulge out through the naval.

Constipation can lead to other complications such as fissures, hemorrhoids, and bloating. Straining to have a bowel movement can also cause rectal prolapse and fecal impaction.

Impotence

Sexual dysfunction is a common sign of hernia mesh failure in men, especially those with an inguinal hernia where you have soft tissue protruding through the abdominal muscles. Impotence can come about due to irritation and inflammation caused by the device. In severe cases, it might be due to the spermatic cord sticking to the mesh (adherence).

Nausea

Nausea is a symptom associated with different medical conditions. If you have a hernia mesh, it might point to something more serious. It could be the result of intestinal blockage caused by the migration of the device. It could also be due to a mesh-related infection in the stomach tissue, causing digestive problems. Either way, it’s a sign of hernia mesh failure and can cause a wide range of complications, including an electrolyte imbalance brought about by severe dehydration.

Pain

This is arguably the most common sign of mesh failure. Any form of pain or discomfort at the site of the mesh implant may be the result of irritation, inflammation, or another failure-related complication. The pain may be severe or mild, chronic or acute.

Keep in mind that experiencing pain in the days following the procedure is expected. If it persists (or develops afresh) several weeks or months on, it might point to:

  • Adhesion
  • Calcification
  • Fibrosis
  • GI issues
  • Infection
  • Inflammation
  • Organ perforation
  • Thrombosis
  • Hernia mesh rejection

Hernia Mesh Lawsuit

Thousands of hernia mesh lawsuits have been filed against various pharmaceutical manufacturers. While the legal basis of each case may vary from plaintiff to plaintiff, most of them seek damages due to the manufacturers’ negligence for failing to comply with the regulations set forth by the FDA.

When suing the manufacturer, a plaintiff can claim that the device:

  • Disintegrated in their body
  • Dislodged causing perforation or bowel obstruction
  • No longer had the laminate coating, therefore, causing organ adherence
  • It was not properly packaged

Most of these lawsuits mainly target three manufacturers whose products have been the subject of at least one FDA hernia mesh recall. They are:

  • Atrium Medical, the manufacturer of the C-QUR hernia mesh
  • C.R. Bard, the manufacturer of Kugel mesh
  • Ethicon, the manufacturer of Physiomesh

Lawsuits against these firms are still ongoing. If you’re suffering from a hernia mesh failure due to a product from any of the companies listed above, you have legal grounds to file a lawsuit against them.

Hernia Mesh Lawsuit Timeline

If you’ve decided to seek legal recourse, here’s an overview of a hernia mesh lawsuit timeline.

1. Recovery Period

Most people usually recover from a hernia surgery within six weeks. They are usually ready to return to work after that. If you notice any signs of hernia mesh failure post-recovery, visit your doctor immediately.

2. File a Claim

Once your doctor confirms that your symptoms are the result of a mesh-related complication, you can file a legal claim against the manufacturer. Keep in mind that the clock for hernia mesh lawsuit statute of limitations starts running from the moment you (reasonably) know that you have an injury or complication resulting from a mesh failure.

3. Find an Attorney

You then need to retain the best lawyer for hernia mesh lawsuit claims. They’ll help you determine the physical and financial damages you are entitled to. To help determine the extent of your injuries, some of the questions your lawyer might ask include:

  • How much time away from work is the direct result of your mesh complication?
  • Has the mesh been removed? If so, how much did the procedure cost?
  • Do you require (more rounds of) corrective surgery?
  • What has it done to your mental and emotional health?

Once you file a lawsuit, the case will proceed through the discovery process, litigation, and settlement.

What Is the Average Payout for Hernia Mesh Lawsuit

These types of lawsuits can take several years in the court system, although they can be resolved out of court at any time during the process. Hernia mesh settlements range anywhere from $1.5 million as was seen in the 2010 C.R. Bard, Kugel mesh case to $184 million+ as was seen one year later when the same company paid to settle more than 3,000 claims filed against it.

The amount you would be entitled to in damages depends on the severity of your injuries, the economic impact they’ve had (medical bills, lost wages, etc.), how the condition has affected your quality of life, and the projected medical and financial losses you’ll incur going forward.

If you are suffering from injuries resulting from your hernia mesh, get in touch with the best lawyer for hernia mesh lawsuit to get the compensation you deserve.

Do you have any legal questions for us? Chat online with a Laws101 attorney right now.

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How Do I Obtain a Work Visa in the US?

Legal AssistantBusiness Law, Immigration Law

If you are a non-US citizen looking for US-based work or you’ve received a job offer that requires you to relocate to the United States, it is entirely likely that your employer won’t be able to sponsor you for a Green Card – not right away, anyway. You would need to obtain a temporary nonimmigrant visa before you can take up your new role. Here’s a comprehensive overview of the different types of US visas and the process to obtain one.

What Is a Work Visa

A US work visa is a temporary authorization issued to foreign nationals who want to enter the United States for employment. These visas are not permanent. They are valid for a fixed duration and require a US-based employer to file a petition with the USCIS. You can only apply for a work visa once this petition is approved.

Types of Work Visas

The United States is the world’s largest economy. Immigrants are partly responsible for driving this sustained boom. If you’re a foreigner who wishes to come to the US to work, several different visa options are available. These fall into one of four main categories:

  • Temporary nonimmigrant visa
  • Permanent workers
  • Student and exchange visitors
  • Temporary visit for business

Here is a detailed overview of the different categories of work visas and the eligibility requirements for each.

1. Temporary Nonimmigrant Visa

These visas are for people looking to work in the US for a specific duration. The prospective employer is required to file a work visa sponsorship petition with the USCIS prior to the individual’s departure. Once approved, the prospective employee still has to apply for a visa in the US Embassy or Consulate in their home country.

There are several different subsets of visas that fall under this category. Below are the most common ones.

H Visas

An H1B work visa is for individuals in specified academic or professional fields. It also applies to people with special expertise with a college degree, or higher academic qualification, or its equivalent in work experience. An H1-B work visa is valid for three years. To qualify, you need:

  • An active job offer from a US-based employer for a role that calls for specialty expertise
  • Proof of a college degree or its equivalent in that specific field
  • The prospective employer needs to prove that there’s a lack of qualified US applicants for that specific role

If you intend to work as a temporary, peak load, or seasonal worker in an agricultural or non-agricultural setting, you’ll need to apply for an H-2A and H-2B visa. These are generally valid for less than a year.

If you’re training within the United States in a field other than Graduate Medical School or training to offer your services to those who need special education but will pursue your career outside of the country, you’re required to apply for an H-3 temporary nonimmigrant visa.

I Visas

If you’re an eligible member of the foreign press or represent a foreign media outlet such as film, radio, print, or any other type of foreign information media, you can apply for an I visa to the US provided the media outlet in question has an office in a foreign country. These visas are usually indefinite for the duration the individual is working with the company. Editors, film crews, and reporters all constitute foreign press.

L Visas

An individual who is temporarily transferring within the firm in which they’re already working to the company’s offices located in the United States would need to apply for an L visa. If they’re transferring at the management/executive level, they require an L1A work visa which is valid for three years. If they’re transferring through specialized experience, they would need an L1B work visa which is valid for one year.

O1 Visas

Individuals with exceptional and extraordinary achievements or abilities in different industries can apply for an O1 work visa. If their expertise lies in education, sciences, athletics, or business, they’ll need to apply for an O1A work visa. If their extraordinary ability lies in the television or motion picture industry, they’ll need to apply for an O1B work visa.

Individuals who will be traveling with the O1 individual to assist with their work, event, or performance will need to apply for an O2 visa. Children and spouses of O1 and O2 visa holders need to apply for an O3 visa to accompany them.

P Visas

These are issued to internationally recognized athletes, performers, or entertainers and the people who travel with them. P visas are valid for the duration of the event they’re taking part in or performing in.

R Visas

Any nonimmigrant religious worker, who is an active member of a religious organization holding non-profit status in the United States, will need to apply for an R work visa. They could either be working directly with the organization itself or with a non-profit associated with it.

TN NAFTA Visas

The North American Free Trade Agreement (NAFTA) formed special terms to promote trade and economic relationships between the US, Mexico, and Canada. A TN work visa allows qualified Mexican and Canadian nationals to engage in business activities in the US at professional levels. Individuals who are eligible for TN work visas include teachers, scientists, pharmacists, lawyers, engineers, and accountants.

2. Permanent Workers

The government issues approximately 140,000 employment-based visas and permanent resident cards to individuals with the right combination of eligibility, education, skill set, and expertise. These visas are also extended to their children and spouses.

The majority of these visas require the prospective employer to have a valid US Department of Labor certification, confirming that hiring the foreign national does not take a job away from a deserving US citizen and that there aren’t enough workers within the country with the skill set they require. This is known as “labor certification” and is done by filing ETA Form 9089, Application for Permanent Employment Certification.

There are five main types of visas that fall under this category.

First Preference EB-1 Visas

An E1 work visa applies to individuals with “extraordinary ability,” including researchers, academics, scientists, business professionals, and those in the arts or athletics. EB-1 work visas don’t require labor certification. Once they get their Green Card approved, their children, spouses, and close family members may also apply for entry into the United States on an E-14 or E-15 immigrant status.

Second Preference EB-2 Visas

A second preference E2 work visa is granted to professionals who are advanced degree holders, have at least 10 years of verifiable work experience in a certain field, or whose employment is of national interest to the United States. They also extend to the family members of the visa holders through E21 or E22 visas.

Labor certification is also required for all but the third subcategory of eligibility – National Interest Waiver – before the prospective employee can be granted this category of employment-based visa.

Third Preference EB-3 Visas

An individual who holds a bachelor’s degree or a skilled/unskilled worker, who has received a non-temporary employment offer from a US-based employer, can apply for an E3 work visa. Once the prospective employer gets the mandatory labor certification and the prospective employee’s Green Card is approved, their children and spouse can then apply for permanent residency.

Fourth Preference EB-4 Visas

This is a specialized category of employment-based visas that applies to retired employees of international organizations, US Foreign Service post employees, certain religious workers, and foreign citizen wards of the court. Labor certification is not required for E4 work visas. Certain family members of the Green Card holder may be eligible for admission into the country.

Fifth Preference EB-5 Visas

E5 work visas apply to the Immigrant Investor Program and are available to individuals who invest a minimum of $900,000 in a new commercial enterprise in a targeted employment area that employs 10 or more full-time American workers, or invest a minimum of $1.8 million is a commercial enterprise in any location within the US that employs at least 10 or more full-time American workers.

3. Student and Exchange Visas

Three types of work visas apply to different categories of students:

  • F Visa – This student work visa is for any academic individual enrolled at an accredited academic institution for the duration of the study. They are restricted to campus-based jobs for the first year of study.
  • M Visa – This work visa is for any student enrolled at a vocational or nonacademic institution.
  • J Visa – This work visa is available for students enrolled in work-and-study programs such as interns, trainees, camp counselors, and au pairs.

4. Temporary Visit for Business

These visas are for short-term business engagements. There are three types of visas that fall under this category.

  • B-1 Visa – This work visa is issued to individuals conducting short-term business in the US and is valid for anywhere between one and six months.
  • GB Temporary Visitor to Guam – This is a 45-day visa for individuals traveling for business or pleasure to any US territory of Guam.
  • WB Temporary Business Visitor Under Visa Waiver Program – This is a 90-day temporary visa that authorizes citizens of 40 participating countries to travel to the US for business or pleasure without a visa.

How to Get a Work Visa

Visa stamp in a passport
Source: Unsplash

Here’s an overview of the work visa application process.

1. Labor Certification

It’s important to note that some of the temporary worker visa classes need prospective employers to get labor certification or any other admissible form of authorization from the Department of Labor on behalf of their prospective employee. This has to be done before filing Form I-129 Petition for a Nonimmigrant Worker. Prospective employers first have to review the form instructions to determine whether you require labor certification.

2. Petition Approval

The other important factor to keep in mind is that some categories of workers have a cap on the total number of petitions the government can approve annually. Before you can go to your country’s US Embassy or Consulate to apply for a temporary work visa, your employer must first file Form I-129 and wait for USCIS approval. If the work visa sponsorship petition is approved, your prospective employer will receive a Notice of Action denoted by Form I-797.

3. Online Visa Application

Only after Form I-129 has been approved can you go ahead and start the visa application process. The precise order of the steps you’re required to take may vary depending on the US Embassy or Consulate you apply through. The best thing to do would be to consult your local embassy’s website and follow the instructions provided.

Certain procedures are standard, though. You will need to complete the online nonimmigrant visa application Form DS-160, and then print the application form confirmation page and take it with you to your interview. While completing the online application, you will be required to upload your photo.

4. Schedule an Interview

If the applicant is aged between 14 and 79, interviews are generally required, with some exceptions for renewals. Nonetheless, it is at the discretion of a consular and embassy officer to interview any applicant regardless of age.

You’ll need to schedule an appointment for your visa interview in your home country’s US Embassy or Consulate. The waiting period before your interview varies depending on the visa category, season, and location. It’s always a good idea to start the process as early as possible. All bookings are made online.

5. Pay the Visa Application Fee

When you apply for a US work visa, you’re required to pay a non-refundable application fee before you show up to your interview. If your visa is approved, most countries have a visa issuance fee you’ll also need to pay. The precise amount varies depending on the country.

6. Provide the Required Documentation

Before your visa interview, ensure you carry the following documents with you:

  • A passport that’s valid for a minimum of 6 months beyond your duration of stay in the US
  • Printed confirmation page of the nonimmigrant visa application Form DS-160
  • Payment receipt for the application fee
  • Printed photo if the photo upload while completing Form DS-160 fails
  • Approved petition receipt number
  • Nonimmigrant Petition Based on Blanket L Petition Form I-129S for L visa applicants

How Long Is a Work Visa Good For

It depends on the specific type of nonimmigrant work visa you have. It varies anywhere from one year to indefinitely as long as you work for the same company, which is the case with I-visas.

Even if the process seems straightforward, it is worth retaining an immigration attorney to assist you with the visa process, as a mistake in paperwork can result in steep penalties or consequences.

Do you have any legal questions for us? Chat online with a Laws101 attorney right now.

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A Timeline of Texas Chemical Plant Explosions and Legal Ramifications

Legal AssistantPersonal Injury Law, Resources Leave a Comment

Any place where hydrocarbons, natural gas, or volatile chemicals are processed, stored or used carries with it a high risk for explosions if something goes wrong. Nonetheless, chemical releases, plant explosions, and fires are entirely preventable if petrochemical companies comply with the statutory safety procedures and regulations.

More often than not, if you examine companies involved in chemical plant explosions, you’ll likely find that they’ve had a history of circumventing Occupational Safety and Health Administration (OSHA) guidelines. If you or a loved one were involved in a chemical plant accident, pursuing a negligence claim against the guilty party can be a long, arduous battle.

It requires the skills and expertise of experienced plant explosion lawyers with the uncanny ability to deconstruct the events leading up to a catastrophe and establishing the duty of care. This is what ultimately determines who is responsible for ensuring that nothing goes wrong.

This article explores a timeline of the major Texas chemical plant explosions, starting with the most recent, and their respective legal ramifications.

[BREAKING] December 23, 2021 – ExxonMobil Baytown Refinery Explosion

As the largest oil refinery in the United States, ExxonMobil’s refinery in Baytown, Texas has also had numerous fires and explosions.

At approximately 1 a.m. on December 23, 2021, a huge explosion rocked the Baytown complex and surrounding areas. Initial reports indicated that the explosion and fire occurred in the gasoline production area of the refinery complex. While all personnel were accounted for, four refinery workers were severely injured in the fire and hospitalized.

The cause of the explosion and fire are still under investigation, but the incident follows a long string of prior serious safety incidents and lawsuits against ExxonMobil for numerous environmental and safety infractions.

[This is a breaking story and will be updated as investigations on the cause of this incident continue.]

November 2019 – TPC Houston Chemical Plant Explosion – Port Neches

Explosions rocked the TPC Group-owned Port Neches chemical plant releasing more than 1,000 pounds of butadiene into the atmosphere and over 500 pounds of particulate matter. The facility manufactures petrochemicals like 1, 3 butadiene, which is known to be a highly flammable compound.

Port Neches has previously been fined multiple times by the US Environmental Protection Agency (EPA) and the Texas Commission on Environmental Quality (TCEQ) for violating air pollution emission limits. According to state data, the facility surpassed the emission caps indicated on government-issued permits approximately 70 times in the past decade and six times in 2019.

While the exact cause of the explosion is still under investigation, emergency response officials on the site indicated that the source could be traced to a processing unit in the facility that held butadiene. The chemical is a colorless gas that is known to be carcinogenic to humans. According to the EPA website, Port Neches was ranked a high priority violator of the existing federal clean air laws for more than two years in a row.

September 2019 – Celanese Corporation Pasadena Plant Explosion

Emergency crews arrived at the scene after fire and explosions erupted at the Celanese Corporation chemical plant in Pasadena. Emergency personnel employed by the company managed to quell the flames swiftly in the incident that occurred at the company’s Clear Lake Plant. There were no injuries reported, and no shelter-in-place directive was issued.

July 2019 – Baytown Plant Explosion

The Exxon Mobil plant explosion in Baytown sent a plume of smoke billowing over the Houston area. While no fatalities were reported in the incident, 37 people were left nursing burn-injuries, although no one had to be hospitalized. The fire is reported to have first broken out in the area used to purify propylene – a compound used as a fuel and in the manufacture of plastics.

industrial plant during sunrise image

Harris County filed a lawsuit against the petrochemical company alleging gross environmental violations that stem from a fire that broke out at the same facility earlier in the year. Exxon’s three Baytown plants have been cited repeatedly for multiple violations of regulations, albeit with limited consequences.

According to data from the EPA, the state fined Exxon $3.8 million in 2018 after investigations revealed that the company was not properly monitoring or operating flares at their facilities in Texas and Louisiana.

Environment Texas, an environmental advocacy organization, sued Exxon’s three Baytown area plants for being among the biggest polluters in the Houston area. A US District Judge ordered the company to pay an estimated $20 million as the outcome of the litigation.

May 2019 – Kuraray America Eval Texas Chemical Plant Explosion

Close to two dozen people sustained minor injuries after a valve-malfunction caused a fire and explosion at a Pasadena chemical plant in Bay Area Boulevard. The company specializes in manufacturing ethylene vinyl-alcohol copolymers. The fire was extinguished a short while later, and no shelter-in-place directive was issued. The plant has had no prior health and chemical safety violations.

April 2019 – Crosby Chemical Plant Explosion

This became the third major chemical plant explosion Crosby, TX, that occurred in the Houston Metro Region in 2019. The KMCO plant explosion caused a massive fire which was triggered by the ignition of isobutylene gas. Thousands of pounds of potentially toxic chemicals were released into the air forcing the nearby community to shelter-in-place for the better part of the day.

The accident led to one fatality and critically injured two employees. While the region is well-known for housing some of the largest concentration of petrochemical storage and processing facilities, it is not uncommon for occasional accidents to occur.

However, the frequency with which the three explosions happened and in such proximity to each other reveals serious gaps in regulatory oversight. The major concerns associated with any chemical plant explosion is that exposure to the toxic fumes released into the atmosphere in smoke plumes have the potential to cause serious health problems to area residents both in the short and long term.

March 18, 2019 – Deer Park Plant Explosion

On the morning of St. Patrick’s Day, two massive tanks caught fire at the ITC Deer Park petrochemical plant located roughly 15 miles southeast of Houston, TX. The fire spread to other neighboring storage tanks, which were still ablaze many days after the fire first broke out. The flames were contained more than three days later.

While no one died in the accident, at least 20 people sustained injuries as a direct result of the plant explosion. A week later, plant workers and Houston residents reported experiencing breathing issues, burning throats, itchy eyes, nose bleeds, and headaches.

The symptoms are consistent with respiratory issues brought on by toluene, naphtha, and xylene, which were the chemicals housed at the plant used in the manufacture of gasoline. These chemicals have been scientifically linked to the onset of health problems like brain damage, kidney issues, liver problems and cancer in the long term.

ITC also acknowledged that the explosion might have resulted in these chemicals getting washed into the nearby Houston ship channel which links Houston to the Gulf of Mexico. The company encouraged all who had suffered injuries or losses resulting from the fire to participate in its compensation program.

However, the claim form indicates that individuals who receive compensation from ITC effectively waive their rights to recover any other form of damages they may have suffered as a result of the explosion. These include medical expenses and/or lost wages. This means that anyone who receives monetary compensation of any amount is barred from filing a lawsuit in the future should they develop health complications further down the line as a result of the fire.

Texas Sues ITC

explosion fire image

The state of Texas filed a lawsuit on behalf of the Texas Commission on Environmental Quality (TCEQ) for violating the Texas Clean Air Act, given the air pollution released during the fires that burned for several days. The state seeks civil penalties as well as a permanent injunction to hold the petrochemical company liable for the damage it caused to the environment. The Texas Attorney General stated that the company had displayed a long history of environmental violations and would therefore not be allowed to continue to put public health and safety at risk.

March 16, 2019 – Baytown Complex Plant Explosion Houston

A fire broke out at a plant refinery at ExxonMobil Complex in Baytown. Although the fire was put out a couple of hours later, Harris County officials allege that it continued to release toxic pollutants for at least eight more days. They accuse the petrochemical company of violating the federal Clean Air Act, to which end they filed a lawsuit to hold them accountable for their gross negligence.

March 2018 – Cresson Chemical Plant Explosion

One person was killed, and two others were injured after an explosion and a large fire erupted at a Tri-Chem Industries plant 25 miles southwest of Fort Worth. Witnesses allege that the explosion was ignited when a worker dragged their feet on the door while highly volatile chemicals were being mixed.

The family of the deceased victim, alongside one of the injured victims, filed a lawsuit in which they named Tri-Chem, Access Chemicals, TR International Trading Company, and Dongying Shengya Chemical Co. as the defendants in the suit.

August 2017 – Arkema Chemical Plant Explosion

Two explosions rocked the Arkema chemical plant in Crosby, TX, after Hurricane Harvey caused a power blackout at the plant that lasted for days. Since the backup generators also failed, there was no power to sustain the coolant system to subdue the volatile chemicals produced onsite.

beach during hurricane image

Some of these included sulfur dioxide and methylpropene. If these two compounds don’t remain cool, they naturally degrade and combust. No fatalities or injuries were reported in the explosion.

April 2013 – West Texas Fertilizer Plant Explosion

The massive explosion and fire that broke out at the West Fertilizer Company plant left roughly 35 people dead, including 10 emergency responders who first arrived at the scene. 160 other individuals were critically injured in the explosion that was ruled one of the worst disasters in Texas history.

The cause of the blast was due to the presence of the highly volatile ammonium nitrate. However, an investigation by the Federal Bureau of Alcohol, Tobacco, Firearms, and Explosives revealed that the fires that had preceded the explosion on that fateful day had been intentionally set and would treat the incident as a criminal act. The blast left behind a 10 feet deep crater measuring 93 feet wide and damaged hundreds of homes, including a 50-unit apartment complex, a nursing home, and three schools.

The City of West filed a lawsuit against West Fertilizer Co. seeking damages and alleging negligence in the way they stored the ammonium nitrate. CF Industries – the company which supplied the volatile agricultural grade fertilizer was also named in the suit.

March 2005 – Texas City Plant Explosion

The BP Texas City Refinery explosion of 2005 will be remembered as one of the most notable cases of failure by a high-profile multinational company to protect the health and safety of its employees. It was the worst plant explosion in US history.

On that fateful day, company employees embarked on a particularly dangerous procedure that involved restarting a unit that was previously down for repair. The process involved filling up the tower with gasoline, which then began to overflow. The excess gas flowed into a back-up unit which also overflowed sending a geyser of gasoline into the air.

It ignited and set off the infamous gas plant explosion killing 15 workers and severely injuring at least 170 others. The daughter of two plant workers who were among those who died in the accident sued the company for the death of her parents. She initially sought damages amounting to $1.2 billion but later settled for an undisclosed amount along with $32 million donated to various causes chosen by her.

BP accepted full responsibility for the catastrophe and settled more than 1,000 lawsuits related to those who were injured, family members of the victims, and those who suffered shock from the blast. The company spent well over $1.6 billion to settle the claims. Federal authorities fined BP more than $21 million for violating more than 300 safety regulations that contributed to the Texas plant explosion.

Hold Negligent Parties Accountable

A chemical plant explosion can occur for a variety of reasons. It could start as a small fire that grows out of control or a small leak that’s ignited by a spark. The chemicals in these facilities are usually highly flammable, so it’s relatively easy for an explosion to get out of control in a matter of minutes.

As a result, severe burn injuries, bone fractures, and fatalities are not uncommon in such events. If you’ve been affected by a chemical plant explosion today or in the past, consult with an experienced personal injury attorney to help you get the compensation you deserve. Don’t wait. Act now.

If you have more legal questions, you can also chat online with a Laws101.com attorney, where you’ll be instantly connected to a lawyer who can give you legal guidance on your specific case or question.

Woman holding a black rifle

How to Set Up a Gun Trust

Legal AssistantAdministrative Law, Business Law, Regulatory Law, Resources

If you’re a gun owner, you’re likely familiar with all the benefits that come with setting up a gun trust. These are special kinds of trusts designed to hold ownership of firearms. They are subject to strict state and federal oversight and can include other types of weapons. To learn more about what a gun trust actually is, you can read our primer about this topic here. This article takes an in-depth look into how to actually set up a gun trust.

Weapons Held in Gun Trusts

Two federal laws regulate gun trusts used for weapons: The National Firearms Act of 1934 (NFA) and Title II of the Gun Control Act of 1968. The latter is a revision of the NFA. You’ll often come across weapons referred to as NFA items or Title II firearms. They are classified based on which law regulates their use and ownership.

What Is an NFA Item and How Is It Different From a Title II Firearm

Grenades, short-barreled shotguns, short-barreled rifles, silencers, machine guns, etc., are all classified as NFA weapons. Weapons in this category need to be registered with the federal Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF).

Only the person it is registered to can possess and use the firearm in question. If an NFA firearm isn’t already registered with the ATF, you cannot register it, effectively rendering its ownership illegal.

If you want to transfer your registered firearm to someone else, you first need to get authorization from the ATF and pay the $200 tax fee (although some items have a $5 tax requirement).

Several other federal gun laws apply to NFA items as well. For instance, the Firearm Owners Protection Act of 1986 outlawed the manufacture of machine guns from the date the law was first enacted. Only those manufactured before that date can be legally purchased.

How to Set Up a Trust for NFA Items

There are three main ways to set up an NFA gun trust.

1. Free Gun Trusts

Most gun manufacturers and NFA dealers usually give free gun trusts with the purchase of every firearm. It is a popular tool they use for marketing to target individuals who may not already have an existing trust.

2. Lower-Priced Generic NFA Gun Trusts

In this method, an attorney creates a standardized NFA gun trust specific to the state you live in and sells it repeatedly to different customers at a reasonable price. This gives firearm owners access to a trust without having to pay the exorbitant amounts associated with having a custom one specifically created for them.

3. Customized NFA Gun Trusts

These are created for you to accommodate multiple NFA items and multiple trustees, allowing those firearms to be “shared” among the members of the trust. These are more expensive to set up than the generic boilerplate variety.

Gun Trust Law Changes

Gun and silencer
Source: Unsplash

The ATF implemented new guidelines governing gun trust regulation. These include:

  1. “Responsible persons” are required to fill out an NFA gun trust form and submit their respective photographs and fingerprints to the ATF every time the trust acquires or makes an NFA item;
  2. Copies of the completed gun trust form and the NFA application for each “responsible person” must be submitted to the Chief Law Enforcement Officer (CLEO);
  3. CLEO certifications/signatures are no longer needed.

The first two procedural changes to the gun trust law are designed to increase the burden on using NFA trusts. It ensures that every person who can legally own a firearm is subjected to a thorough background check when buying NFA item with a trust. It also makes sure that local law enforcement authorities are aware of every new NFA item owned by a gun trust.

The third change makes it easier for individuals to acquire and own NFA items without a gun trust.

Should Schedule-A Be Included in a Gun Trust

While most gun trusts include schedules such as Schedule A to identify all the items the trust possesses, it is not always a mandatory requirement. Here’s why.

If you want to title your firearm in your gun trust’s name, the ATF requires you to submit a complete copy of the gun trust itself and every amendment made to it, along with your application. If the trust doesn’t specifically mention that it included schedules or any other attachment to identify the trust property, then Schedule A doesn’t need to be submitted.

On the other hand, if your NFA gun trust specifies that schedules are included as part of it, you will need to submit all of them to the ATF – gun trust schedule A example included.

Gun Suppressor Laws

The right to own a firearm is a constitutionally protected 2nd Amendment right. That said, different states have their own laws regulating the use and possession of weapons. These laws revolve around the limits on ammunition, open or concealed carry, and duty to inform. Other states have laws on the use of firearm accessories, one of which includes suppressors.

Suppressors are designed to minimize the flash of a firearm and muffle the sound generated when discharging a gun. Their use and regulation have been the subject of heated debate for several years and counting.

To purchase a suppressor, you need to:

  • Be at least 21 years old
  • Be a United States citizen
  • Be legally allowed to purchase and possess a firearm
  • Pass a background check
  • Pay a one-time, $200 Transfer tax
  • Live in a state where it is legal to own a suppressor

These laws are subject to change depending on the state in which they are enacted. For instance, you need to be at least 18 years old to purchase a suppressor in some states. Others require you to be at least 18 years old to possess a suppressor if you’re a beneficiary of a gun trust.

The gun suppressor laws in the following states make their purchase and use illegal:

  • Rhode Island
  • New York
  • New Jersey
  • Massachusetts
  • Illinois
  • Hawaii
  • Delaware
  • California

If you need help setting up a gun trust, get in touch with a qualified firearms attorney.

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Prison cell

What’s the Difference Between Jail and Prison?

Legal AssistantCriminal Law

The words “jail” and “prison” are often used interchangeably. While both terms generally refer to incarceration, they’re not the same.

Incarceration of any kind is a punishment. It is designed to be unpleasant. That said, the policies and rights that define the day-to-day life of inmates are quite different in the two institutions.

What exactly is the difference between jail and prison? Here’s everything you need to know.

Jail vs Prison

At the most basic level, the fundamental difference between jail and prison has to do with the length of incarceration for the locked-up inmates. Jail is usually for short-term sentences, while prison is for those serving long sentences. How are jails different than prison? Let’s explore the answer to this question in depth.

What Is Jail

A jail is a short-term lockup facility operated by counties, cities, and municipalities. A larger metropolitan area might maintain multiple jails within the cities and counties, whereas a smaller jurisdiction might have a single county facility. In some cases, you may have several smaller jurisdictions joining together to run one regional jail facility.

Jail houses contain a mix of people in various stages of the criminal justice process. You might find a freshly arrested individual housed in the same facility as someone undergoing post-incarceration supervision. Every year, an estimated 11 million people cycle in and out of jails.

A person in jail can be:

  • A defendant who’s been charged with a crime but is unable to post bail while awaiting trial; (A judge might set a higher bail amount for a repeat offender or an individual who would be considered a flight risk or danger to society)
  • A defendant who’s been convicted and awaiting sentencing
  • A defendant convicted of a misdemeanor offense and sentenced to serve less than one year behind bars
  • A defendant convicted of a felony and is either awaiting transfer to a prison facility or is serving jail term as part of their felony probation sentence
  • A defendant on hold, awaiting a determination for an alleged violation of their probation or parole terms
  • A defendant awaiting transfer to a federal facility, a different county jail, or extradition to another state’s jail facility
  • A defendant on Immigration and Customs Enforcement (ICE) hold

While defendants who’ve been sentenced to serve one year or less behind bars will do their time in jail, a pretrial offender might be incarcerated for longer depending on the time it takes for their case to go through the criminal justice process.

Complex cases heading to trial with a lot of discovery will usually have lengthy stays for individuals who are unable to post bail.

What Is Prison

A prison is a long-term lockup facility run by state and federal governments and holds about 1.5 million inmates. Each state may operate anywhere from a handful to several dozen prison facilities.

The federal government runs 122 prisons located in different parts of the country, excluding the private facilities run by private firms that hold 8-11% of the total population of inmates. These companies have long-term contractual agreements with states and the federal government.

The military also has its own prisons that house service members from all five branches convicted of various offenses under the Uniform Code of Military Justice.

Types of Prisons

Prison cell
Source: Pexels

Different prisons have different functions. Some have been designated intake facilities – specific institutions where every convicted defendant is sent to initially. The corrections department will then transfer them to an appropriate facility depending on the inmate’s sentence and security needs.

Federal and state government prisons are designed on a security-level system. They include low- to maximum-security prison facilities, work prisons, and boot camps. Other prisons are classified by the specific types of programs or services they offer, such as drug rehabilitation programs.

A person in prison can be:

  • An individual sentenced to more than a year behind bars
  • An individual serving a life sentence without the possibility of parole
  • An individual on death row unless they successfully appeal their case or get it commuted or pardoned
  • An inmate who committed a crime within that particular state or region
  • An out-of-state inmate who is no longer safe at the facility within the region or state they committed the crime
  • A pretrial detainee accused of a federal crime
  • A sentenced inmate convicted of a federal crime

An inmate in the federal system can be incarcerated in a facility located in any part of the country.

Is Prison Worse Than Jail

The short answer is – no, it is not. While most people who end up in jail hardly ever spend more than one year there, the facilities are designed for short-term stays. As a result, they tend to have fewer services and resources than you would find in a standard prison.

When you compare the conditions in a county jail vs state prison, inmates in jail houses often complain of limitations on movement, lack of nutritional food, lack of access to exercise, and inadequate medical care. It is not unusual to come across defendants expecting a conviction, to accept plea deals in order to be transitioned from the jail they’re currently being held to a prison facility.

On the flip side, while a prison may not exactly be pleasant, it does offer more services to its inmate population. You’ll find a variety of educational programs, including GED courses, allocated time outdoors in a large, open yard, medical facilities, prison jobs, and so forth. The conditions in prisons are more favorable to inmates compared to those in jails.

Alternatives to Jail or Prison

As a result of the rising prison and jail populations, lawmakers and courts are increasingly looking for alternatives to jail or prison incarceration. A prosecutor and defense attorney might negotiate a plea deal that involves fines, community service, restitution, house arrest, probation, and work release, in place of time behind bars in a county, state, or federal facility.

Courts also allow defendants with psychiatric problems, including sex offenders and those with drug and alcohol addiction issues, to serve a portion of their sentence in treatment or rehabilitation programs. These vary from intensive treatment programs funded by the state to halfway houses funded by nonprofit organizations.

Ensure you retain an experienced criminal defense attorney to help you address your sentencing options.

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A person playing a video game

Activision Blizzard Lawsuit Over Sexual Harassment Settles at $18M

Legal AssistantCivil Rights, Constitutional Law, Personal Injury Law

In July 2021, Activision Blizzard, the gaming giant behind hit franchises Candy Crush, World of Warcraft, and Call of Duty, was hit with a civil lawsuit in California. The Department of Fair Employment and Housing (DFEH) filed a complaint citing allegations of sexual harassment, gender discrimination, and other potential violations that go against the equal pay laws in the state.

In its suit, DFEH further alleged that Activision promoted a sexist culture where women were paid significantly less than their male counterparts and retaliated against them when they brought up their sexual harassment concerns to company officials.

Before the DFEH suit, the US Equal Employment Opportunity Commission (EEOC) had brought a complaint with similar allegations against the video game publisher. What is the current status of the Activision Blizzard lawsuit? Here’s everything you need to know.

Activision Lawsuit

Female workers likened their experience working at the Gaming company akin to working in a frat house. They alleged that several of their male coworkers would show up to work hungover, and many others would drink while on the clock. The sexual harassment allegations ranged from jokes about rape, derogatory comments about women’s bodies to unwelcome groping by male employees.

The complaint filed by the DFEH was a culmination of a two-year-long investigation to look into the unequal treatment of women at the organization. Women were paid significantly less than their male peers both at the time of hire and over the course of their employment. They were given lower-level positions and were consistently passed over for promotions despite having a heavier workload than their male counterparts.

One of the women stated that her manager passed her up for a promotion because “she might get pregnant,” and her focus would shift from her job to being a mom.

The investigations further revealed that gender-based discrimination was worse for women of color. In the suit, two African-American women reported being micro-managed and singled out when performing their duties at the company. Several women who spoke up about the discrimination were laid off, involuntarily transferred to other locations, or outrightly denied lucrative opportunities.

DFEH later added to its initial complaint, accusing the video game company of evidence suppression during the investigation. It also changed the wording to include contract and contingent workers.

Activision Blizzard Sued

The complaint filed by DFEH isn’t the only lawsuit the video game publisher was facing at the time. Prior to that, the EEOC sued the firm, citing allegations of pregnancy discrimination, sexual harassment, and related retaliation against the female employees who spoke up.

The EEOC lawsuit stated that the federal commission had been investigating the company for three years and that Activision Blizzard failed to take the appropriate preventive and corrective measures despite being fully aware of the complaints raised by the female employees.

Shortly after filing, the gaming giant announced that it had reached a settlement agreement with the EEOC. Activision agreed to establish a fund worth $18 million dedicated to compensating eligible claimants. Any unused funds would be channeled toward charities that promote awareness around gender equality, harassment, company equity, and diversity issues, as well as those geared toward advancing women in the video game industry.

EEOC Lawsuit Settlements

Brown wooden gavel
Source: Pexels

Aside from the recent $18 million deal reached with Activision Blizzard, several other EEOC lawsuit cases have involved unlawful employment-based discrimination. Some have resulted in settlements, while others are still ongoing. Here’s a brief overview of some notable cases.

Stan Koch Trucking

In an October 2020 ruling by the District Court of Minnesota, Koch was found liable for using a strength test that discriminated against female employees and applicants. The court found that candidates and employees who were not hired or were terminated because they failed the strength test were entitled to compensation. The trucking firm was ordered to pay $165,000.

Dollar General

In April 2021, the retail giant paid $50,000 to an assistant manager after she was repeatedly subjected to sexual harassment by her male boss – the store manager for the Rock Hall, MD, branch. When she escalated the issue to Dollar General management, they transferred her to a different store that added an hour to her daily commute. They failed to take disciplinary action against her harasser.

United Parcel Service (UPS)

In December 2018, the UPS reached a settlement agreement with the EEOC to pay $4.9 million in a religious discrimination class-action suit. Employees whose religion went against the company’s appearance and uniform policy were denied supervisory and customer-facing positions for maintaining long hair or beards.

How to File EEOC lawsuit

If you’ve faced discrimination from your employer on the basis of your sex (including sexual orientation, gender identity, and pregnancy), religion, race, color, age, national origin, or disability, you have the right to sue your employer. Before you can file a lawsuit under federal law, you first have to file a charge with the EEOC.

You have a 180-day window from the date the discrimination took place to file a charge. There are several ways to do this:

  1. Go to the EEOC’s public portal and fill the form provided with the requested information; or
  2. Visit an EEOC office in person, and a staff member will prepare a charge on your behalf based on the information you provide them with; or
  3. Get in touch with them via the phone number provided on the website; or
  4. File a complaint with your local or state Fair Employment Practice Agency; or
  5. Send a letter by mail detailing the discriminatory actions, where they took place, and what you believe you were discriminated against. Be sure to include your name, address, email address, and phone number, as well as that of your employer. Don’t forget to include your signature.

Once the EEOC concludes its investigation, it will issue you with a Notice of Right to Sue, at which point you’ll have 90 days to file a lawsuit in court. The EEOC lawsuit process can only begin once the investigation closes. If you don’t receive the Notice of Right to Sue in 180 days, you can request it through the public portal.

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Nurse holding a newborn baby

When Does a Birth Injury or Complication Warrant a Lawsuit?

Legal AssistantMedical Malpractice, Personal Injury Law

If there ever were a time when qualified medical care was critical, it would be during the birth of a newborn child. Expectant parents want their children to be born healthy. That last thing they expect to hear is that complications during birth and delivery have resulted in a birth injury. Unfortunately, these types of injuries usually cause a permanent disability in the baby.

When does a birth injury or complication warrant a lawsuit? Here’s everything you need to know.

Birth Injuries vs. Birth Defects

The main differentiator between a birth injury and a birth defect has to do with how they develop.

A birth injury occurs during the birth and delivery process. It may include physical trauma to the head and brain hemorrhage.

A birth defect is an abnormality that develops while the child is still in the mother’s womb. According to the Centers for Disease Control and Prevention (CDC), a birth defect usually develops within the first trimester of pregnancy. An untreated infection, family medical history, and drug and alcohol use are some of the most common factors that increase the risk of a child in utero developing a birth defect.

Birth Injury Causes

A birth injury can result from brain damage brought about by several conditions and risk factors that may be present during childbirth. Each cause is unique and can give rise to several different types of birth injury.

One of the most common causes of birth injuries is delayed birth. Labor that persists for more than 18 hours would constitute a delayed birth. As time goes on, pressure in the infant’s brain continues to mount. This can lead to high blood pressure and fetal distress, resulting in a stroke or other heart-related complications.

Oxygen deprivation is another common cause of birth injuries. It can result from underdeveloped lungs in an infant born prematurely or a prolapsed umbilical cord which occurs when the cord slips into the birth canal ahead of the infant. In both cases, the baby’s oxygen supply is limited or, in severe cases, cut off completely, causing a birth injury.

What Is the Most Common Birth Injury

The most common birth injuries infants sustain during childbirth include cerebral palsy and brachial plexus palsy. Here’s an overview of each.

What Is Cerebral Palsy

Every 2-3 out of 1,000 infants are born with cerebral palsy. It is a disorder that affects posture, muscle tone, and movement. Cerebral palsy symptoms include muscle spasms, weak muscles, and a lack of motor skills development.

Cerebral Palsy Causes

In most cases, the condition results from brain damage that occurred during childbirth. This stems from extreme hypoxia (oxygen deprivation) due to:

  • Failure to properly monitor the laboring mother
  • Use of improper birthing techniques
  • Failure to monitor or identify signs of fetal distress

While surgery may help the child, cerebral palsy has no cure and will require a lifetime of therapy. The condition can lead to additional health complications, including hearing, vision, and speech impairment, and learning disabilities.

What Causes Cerebral Palsy During Pregnancy

Aside from oxygen deprivation during childbirth, events that occur before birth can interfere with normal brain development while the infant is still in the mother’s womb. Some of the common causes of cerebral palsy during pregnancy include:

Infections During Pregnancy

Parasitic infections like toxoplasmosis and viral infections like cytomegalovirus and rubella (German measles) in an expectant mother have been known to cause brain damage in the fetus, resulting in cerebral palsy in both full-term and premature babies. Reproductive and urinary tract infections also increase the likelihood of preterm delivery, which is another major risk factor for the condition.

Insufficient Fetal Oxygen Supply

If the placenta tears away from the uterus pre-delivery or fails to function properly, it results in insufficient oxygen supply to the fetus. This leads to cerebral palsy.

Prematurity

Preterm infants who weigh less than 3.3 pounds are 30% more likely to develop cerebral palsy compared to full-term babies. In several of these cases, these tiny infants suffer from a brain hemorrhage which can damage the delicate brain tissue, resulting in cerebral palsy.

Blood Diseases

Rh disease – a disorder characterized by the incompatibility of blood types between a mother and her unborn child – can lead to severe jaundice. This causes brain damage and subsequent cerebral palsy.

Birth Defects

Babies with certain genetic disorders, brain malformations, or any other birth defect have a higher chance of developing cerebral palsy.

What Is Brachial Plexus Palsy

Brachial palsy in newborn infants develops from injuries to the network of nerves in the upper spine (the brachial plexus) that serve the arms, shoulders, and neck. These injuries can result in temporary or permanent disability.

Mild cases of brachial palsy result in stretching of the nerve, while severe cases involve tearing or rupturing of the nerves, which then fail to heal properly. In extremely severe cases, the nerve roots may end up getting dislodged from the spine, resulting in total paralysis.

Brachial palsy symptoms in infants include weak or limp arm, wrist, or hand, abnormal arm, wrist, or hand position, bent elbow, shoulder malformation, and problems moving the arm, wrist, or hand.

There are generally two types of brachial plexus palsy: Erb’s palsy and total or “global” palsy.

What Is Erb’s Palsy

ERB’s palsy is a form of brachial plexus palsy named after the doctor who first discovered it – Dr. Wilhelm Erb. It stems from injuries to the upper nerves in the brachial plexus. As a result, the infant cannot move their shoulder although they can still move the fingers.

If both the upper and lower nerves end up getting stretched, it becomes a more severe form of Erb’s palsy, known as total or “global” palsy. In such cases, the infant experiences complete paralysis of the affected arm.

What Causes Erb’s Palsy

The condition comes about during a difficult delivery when the baby’s neck gets stretched to one side, accompanied by downward pressure on their shoulder. In other cases, it might be due to the baby being larger than usual, making delivery difficult. This is often the result of gestational or poorly managed diabetes.

Other factors that may increase the risk of Erb’s palsy include:

  • Breech birth – This occurs when babies are born feet-first, which leaves their arms raised and outstretched. The excess pressure on the nerves in the brachial plexus during delivery increases the risk of injury.
  • Improper delivery – During a difficult delivery, the baby may be pulled forcibly from the birth canal, injuring the nerves on the neck and shoulder.
  • Larger-than-normal infant – If a particularly petite mother is carrying a larger-than-normal baby, it might result in a difficult delivery. This increases the risk of birth injury to the infant.
  • Long delivery – If the second stage of labor (the “pushing” stage) lasts more than an hour, it increases the risk of injury to the infant’s brachial plexus.

Should You File a Birth Injury Lawsuit

Lawyers in an office
Source: Pexels

A birth injury lawsuit is a form of legal action that can help families affected by Erb’s palsy, cerebral palsy, and other types of birth injuries obtain monetary compensation. These suits are filed against the parties responsible for the infant’s injuries, who in this case might be the doctors, nurses, or other medical practitioners present at the time of birth.

You can lodge different types of birth injury claims depending on the specific circumstances surrounding your case. These claims can be classified into birth injury malpractice lawsuits or wrongful death lawsuits. Here’s an overview of each.

Birth Injury Malpractice Suits

Medical malpractice occurs when doctors, nurses, or other medical personnel fail to administer quality medical care to the mother and child during the birth and delivery process. When filing a medical malpractice claim, the burden of proof rests on the plaintiff. They need to show that the child’s injury was caused by medical negligence.

It’s important to mention at this point that not all birth injuries are the result of medical negligence. The following four elements of medical malpractice law need to be applied to determine whether there are indeed grounds for legal action.

1. Duty of Care

First, the court seeks to establish the appropriate medical standard of care applicable to the situation that led to the birth injury. For instance, if the defendant in the suit is an obstetrician, the court would look into their actions and compare them to those of other trained obstetricians with similar skill levels working in a similar setting. They would not be compared to, say, an advanced practice registered nurse or an ER surgeon.

The court also considers what medical information was available to the health care worker when the injury occurred. A doctor cannot be liable for something they had no way of knowing at the time of the incident.

2. Breach of Duty

Once the proper standard of care has been established, the actions of the defendant – who in this case would be the doctor, nurse, or other medical personnel – are weighed against that standard.

The court considers what took place during labor and delivery measured against what a similarly-skilled professional would have done in the same setting, based on the facts they had at the time.

You would have to show that another medical professional would have taken a different course of action that would have prevented the birth injury.

3. Causation

This step involves proving that the legal cause of the birth injury was the result of the healthcare professional’s deviation from normal procedure.

For instance, did the obstetrician fail to recognize the signs of a difficult vaginal birth process and fail to order a medically-necessary cesarean section in a timely manner? Is it the reason the baby sustained a birth injury?

Other examples of medical negligence include:

  • Failing to detect signs of an infant in distress, such  as low heart rate
  • Failing to treat a maternal infection such as meningitis
  • Failing to treat newborn jaundice or any other condition that puts the baby at risk of a birth injury
  • Using a vacuum extractor or forceps incorrectly
  • Using excessive force when pulling the baby out of the birth canal

If the injury would have occurred regardless, then there would be no legal causation, a necessary element in proving medical liability.

4. Damages

The last element involves identifying and calculating the monetary losses (damages) and injuries the plaintiff has incurred from the malpractice. Keep in mind that you’ll need a sufficient amount of damages to justify the time, money, and resources required to file a malpractice suit.

Wrongful Death Suits

In severe cases, birth injuries can lead to the death of the newborn or intrauterine fetal demise if the healthcare professional fails to act quickly in response to the trauma. If your child died as a result of preventable mistakes shortly after, during, or before childbirth, you’re eligible to bring legal action against the responsible parties.

Birth Injury Lawsuit Settlement Amounts

A birth injury attorney will help you calculate your case value to determine what your potential payout in the suit would be. Case value refers to how much money your claim is worth, in other words, the settlement amount.

Some of the factors that may affect your case value include:

  • Loss of income due to caring for your child’s injury
  • Past and present medical costs
  • Projected lifetime costs of medical care
  • The severity of the birth injury
  • Existing state limits on settlement amounts

Compensation could be anything from $900,000 to upwards of $10 million, depending on the specific circumstances surrounding your case.

If your child has cerebral palsy, Erb’s palsy, or any other birth-related complication, get in touch with an experienced birth injury lawyer as soon as possible. They’ll evaluate your case and advise whether your claim warrants a lawsuit. If it does, they’ll help you determine how much compensation you’re entitled to and advice on the way forward.

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Is Cryptocurrency Safe

Is Cryptocurrency Safe – Are There Any Legal Protections?

Legal AssistantAdministrative Law, Criminal Law, Regulatory Law

In a May 2021 press release, the US Treasury Department announced that it had put in place various measures to crack down on fraudulent cryptocurrency transactions. It stated that it would now require individuals or business entities transferring $10,000 or more worth of crypto assets to report those transactions to the Internal Revenue Service (IRS).

According to the US Treasury, the department has been facing significant detection issues since cryptocurrency facilitates what it termed as broad “illegal activity,” including tax evasion. This new directive called into question the legality of crypto assets.

Is cryptocurrency safe? Who regulates it? What legal protections exist for crypto transactions? Here’s everything you need to know.

How Cryptocurrency Works

Cryptocurrency is a broad term that defines digital currency that exists electronically. It does not have physical bills or coins. You can, however, use a service that lets you cash in the digital currency for a physical token.

What exactly makes cryptocurrency different from mainstream legal tender? For one thing, individuals or entities transacting with one another don’t have to rely on third-party intermediaries like banks. You can simply exchange a crypto asset online directly through your smartphone or computer. Bitcoin, Ethereum, Litecoin, and Dogecoin are some of the well-known cryptocurrencies but are not the only ones. New crypto brands are coming up every other day.

Cryptocurrencies run on a technology known as “blockchain.” A blockchain is a public ledger that documents all transactions in a way that makes them difficult to alter. As a result, it provides a secure way for individuals and businesses to transact directly with each other without involving a bank, government, or any other third-party entity.

Each transaction record – also known as a “block” – is linked using cryptography. It is then verified by independent peer-to-peer computer networks before being time-stamped and permanently added as a new block to the ever-growing chain of transactional data. Once a new block is added, the information it contains cannot be modified.

What Is Cryptocurrency Backed By

Digital currencies like Bitcoin have been touted as an alternative to fiat money. How does cryptocurrency have value? What exactly gives currency – digital or otherwise – any type of value? To understand the answer to these questions, let’s first examine the history of currency, more specifically, why they have so-called “value.”

Regardless of the type, currency is only deemed useful and usable if it can be relied upon to maintain its relative value over a long duration without losing that value – depreciation. This is why it is defined as a “store of value.” Throughout history, many societies relied on precious metals or commodities as a means of payment since their value remained relatively stable.

As time progressed, lugging around huge quantities of gold, cocoa beans, and other forms of early currency proved to be cumbersome. This prompted societies to come up with minted currency, many of which were made from valuable metals that had low depreciation risks and long shelf lives.

The minted currency then evolved to take the form of paper money, and many countries around the world went on to adopt the Gold Standard. In this monetary system, the value of a country’s currency was directly linked to gold. Countries that used this system all agreed that the paper money they had circulating in their respective economies could be converted into a fixed amount of gold. In other words, gold was used to back their paper currency.

The Gold Standard was phased out by the US in 1933 and replaced by fiat money – a currency used by a country by order of the government. It is not backed by any commodity or precious metal but rather on the basis that individuals and governments will accept it as currency.

Cryptocurrency as a Store of Value

One of the major challenges cryptocurrency faces is its status as a store of value, which ultimately depends on its usefulness as a medium of exchange. This whole premise is based on the assumption that for a currency – or any commodity – to be used as a “store of value,” it needs to possess some form of intrinsic value.

Take a cryptocurrency like Bitcoin, for instance. If individuals and entities don’t use it as a medium of exchange, it effectively loses its practical usefulness. As a result, it won’t have any intrinsic value and would, therefore, not be appealing as a store of value.

In the same way that fiat currencies like the US dollar are not backed by precious metals or any other physical commodities, the same applies to cryptocurrency. Speculative interest is the primary driver of its current value.

How Do You Make Cryptocurrency

Bitcoin trader looking for opportunities
Image Source: Shutterstock

Cryptocurrency is digital, which means it is created by cryptographic code – hence the name. A new crypto coin is created when a transaction is confirmed. This process is known as “mining.”

While Bitcoin and Ethereum rely on mining to create new coins, not every cryptocurrency uses this technique. The specific method a particular cryptocurrency brand adopts to generate new coins depends on its underlying code.

For instance, a new token may be created as a reward from software developers upon completion of certain tasks of interest to the holders of the tokens in question. That being said, most cryptocurrencies create new coins when people all over the world run hardware that adds new blocks (transactions) to the blockchain.

How Do You Buy Cryptocurrency

Aside from mining cryptocurrency, there’s the option to buy it instead. Here’s how to go about it.

1. Identify a Crypto Broker or Exchange

A crypto broker or crypto exchange both allow you to buy cryptocurrency. Nonetheless, there are some critical differences between the two.

On the one hand, a crypto exchange refers to a platform that connects buyers and sellers looking to trade cryptocurrencies. While these platforms generally have low fees, their interfaces can be quite complex, which new investors might find challenging. Some of the most popular crypto exchanges include Coinbase and Gemini.

On the other hand, a crypto broker interacts with crypto exchanges on your behalf to take the complexity out of the whole process. Although they may charge higher fees, their interfaces are easy and convenient to use. Some popular crypto brokers include Robinhood and SoFi.

2. Create an Account

Once you pick a crypto broker or exchange, you’ll need to sign up to their platform to create a trading account. Depending on the platform in question and the amount you intend to invest, you will need to verify your identity as part of federal regulatory requirements.

This may involve submitting a copy of your driver’s license or any other applicable identification document and uploading a clear photo/selfie of yourself to verify that you are indeed the person who appears in the documents you submitted.

3. Deposit Funds to Your Account

Once your crypto account is up and running, you’ll then need to deposit cash in your account. You can do this by making a wire transfer from your bank account or authorizing payment from your debit or credit card.

4. Place an Order for Your Cryptocurrency

Once you’ve funded your account, you can then choose from the hundreds of cryptocurrencies available and place your order. You’ll need to indicate the number of coins you wish to purchase, although most brokers and exchanges allow you to buy fractional shares of cryptocurrency.

5. Pick a Cryptocurrency Storage Method

Keep in mind that the Federal Deposit Insurance Corporation (FDIC) does not back cryptocurrency exchanges. This leaves them vulnerable to hacking and theft. There’s also the chance of losing your investment if you forget the access codes to your account. That’s where cryptocurrency storage methods come into play.

If you buy cryptocurrency via a broker, there are three storage options available to you.

  1. Leave your assets in the crypto wallet attached to the exchange
  2. Transfer your assets to an entirely different provider
  3. Use a hot wallet that stores crypto assets online and runs on internet-connected devices like smartphones, tablets, or computers
  4. Use a cold wallet that stores crypto assets online on external, non-internet-powered devices like a hard drive or USB drive

If you purchase crypto assets through a broker, you have little choice over the storage method used.

How to Sell Cryptocurrency

How to Sell Cryptocurrency
Source: Unsplash

Cashing out on your investment is just as important as buying cryptocurrency. Aside from using a crypto broker or exchange, there are three other avenues through which you can sell your crypto assets.

1. Direct P2P Trades

There’s the option to sell cryptocurrency directly to another individual or entity online or in person. You can use a specialized and reputable crypto exchange platform to sell crypto assets online by posting a listing and indicating your desired price. Interested parties would then be able to complete the sale as per the instructions provided on the site.

Alternatively, you could meet with an interested party at a physical location and sell your crypto assets for cash.

2. Crypto ATMs

While these may look like conventional cash machines, they are not ATMs in the traditional sense of the word. They allow you to scan a QR code generated by your crypto wallet and then sell your cryptocurrency for cash.

3. Withdrawing Funds

You can also use a wire transfer service to withdraw the cash in your bank account once you sell your crypto assets on a crypto exchange.

What Can You Buy with Cryptocurrency

Although most people use crypto assets as an investment, there are several goods and services you can purchase using Bitcoin, Ethereum, and other popular digital currencies. For instance:

  • Online travel websites like CheapAir.com and Expedia.com accept cryptocurrency as a mode of payment
  • Several internet-based businesses
  • Small businesses that accept payments in cryptocurrency
  • Several gambling sites and casinos
  • Some restaurants and retail outlets
  • Purchasing other cryptocurrencies

Security Vulnerabilities of Cryptocurrency

To reiterate, cryptocurrencies run on blockchain technology. It defines the way transactions are recorded, time-stamped, and added onto the chain, making it difficult for anyone to alter this information. Before this happens, each transaction has to go through a two-factor authentication process.

This begs the question – Can cryptocurrency be hacked? Unfortunately, the short answer is – yes. Case in point: The Coincheck and BitGrail hacks of 2018, which led to more than $534 million and $195 million in losses, respectively.

How do hackers steal cryptocurrency? If a hacker can somehow decipher your personal information – which may or may not be cryptocurrency-related, they can use it to infiltrate your transactions and steal your crypto assets. By this, we mean information linked to a cell phone number or email address used to authenticate your transactions.

Cybercriminals can also steal crypto assets by bugging your computer or smart device with malware, but not in the way you might think.

What Is Cryptocurrency Malware

Mining cryptocurrency is computationally intensive. It requires significant resources from dedicated computer hardware such as processors and graphics cards. Unfortunately, there’s a growing trend of hackers infecting computer systems with cryptocurrency mining malware to use the machines’ resources to mine cryptocurrency, unbeknownst to the users. This significantly affects the device’s performance, increases its wear and tear, and drives up other associated costs such as power consumption.

Cryptocurrency Scams

One tell-tale sign of a cryptocurrency scam is being asked to pay for goods and services using cryptocurrency only, with no other payment option. Scammers bank on the fact that there’s no way of getting your money back once you pay using crypto.

Unfortunately, unlike credit cards and debit cards that come with legal protections, cryptocurrency payments do not. There’s no way to dispute a payment and have that transaction reversed. The best cryptocurrency consumer protection measures you can take to avoid getting scammed is to steer clear of individuals or companies that:

  • Guarantee big payouts
  • Make big claims with no explanation on how they achieve this
  • Offer unsolicited investment proposals and job offers
  • Promise guaranteed returns

Be On the Lookout

Cryptocurrency scams and related fraudulent activities should be reported to the Federal Trade Commission (FTC), the Commodity Futures Trading Commission (CFTC), and the US Securities and Exchange Commission (SEC).

For more information, check out the FTC cryptocurrency workshop sensitization videos exploring how scammers exploit unsuspecting crypto investors and how you can protect yourself.

Do you have any legal questions for us? Chat online with a Laws101 attorney right now.

Court legal concept of abortion law

What You Need to Know About Texas Abortion Laws

Legal AssistantCivil Rights, Constitutional Law

On May 19, 2021, Gov. Greg Abbot signed a law that outlaws abortions in Texas. The new measure went into effect on September 1, 2021. The first-of-its-kind legislation in the country makes it illegal for healthcare providers to perform or induce an abortion if an ultrasound scan can discern what the new law defines as a fetal “heartbeat.” This is usually at around the six-week mark.

The new abortion law in Texas has sparked heated debate and controversy not only because it infringes on women’s abortion rights but also its so-called “bounty system.” Its legal provisions allow any private citizen to file a lawsuit against abortion providers and other parties.

This article explores everything you need to know about the new Texas abortion laws and what they mean.

Why Did Texas Ban Abortions

When Abbot signed the new bill into law, he stated in part that the “creator” has “endowed” every human being with the “right to life.” Yet, for millions of children all over the world, that right is stripped from them. The Texas legislature worked together on a bipartisan bill to pass a law that ensures every unborn child is protected from the “ravages of abortion.”

The new law’s enactment came weeks after the US Supreme Court indicated that it would hear a case concerning a Mississippi law challenging Roe v. Wade. The law seeks to criminalize abortions carried out at 15 weeks or later. It will be the first major abortion case presented before the newly constituted, conservative-majority bench and could have far-reaching implications on Texans as well.

When Was Abortion Legalized – Roe v. Wade

In a 1973 landmark ruling, the Supreme Court held that abortion was a guaranteed right under the US Constitution. It declared that abortions could not be prohibited by state governments for fetuses considered “non-viable.” A non-viable fetus aged 24 weeks or less cannot survive outside the mother’s womb.

Texas Senate Bill 8, also referred to as the “heartbeat bill,” prohibits abortion after an embryonic heartbeat can be detected in an ultrasound. This is typically six weeks after conception and is often before a woman even realizes she is pregnant.

The Supreme Court has previously struck down heartbeat bills such as this one. Why? They are in direct contravention of constitutionally protected abortion rights, which allow a woman to terminate a pregnancy within the 24-week viability window provided by the 1973 ruling.

Texas abortion providers took to the Supreme Court to block the restrictive law, raising concerns over its constitutionality. While the 9-bench court acknowledged the seriousness of their application, they also stated it presented new and complex procedural questions that they were unable to address.

The main issues raised by the court were whether the defendants in the case (the state officials) were the appropriate targets in the suit since they are not the entities charged with enforcing the new Texas law. They also questioned the court’s jurisdiction to order state courts to reject cases under Texas Senate Bill 8.

In its conclusion, the Supreme Court stated that it was not purporting to definitively resolve any substantive or jurisdictional claim in the providers’ lawsuit; that its order was not based on whether the new abortion law in Texas was legal or not; that it was not limiting any other future “procedurally-correct” challenge to the novel Texas law both in the Supreme Court and in the state courts in Texas.

As a result of the Supreme Court’s failure to block the new law from going into effect, Texas became the first state in the country to ban abortions after the six-week mark. Although 12 other states have enacted similar early-term legislation, none have been implemented due to the pending legal challenges questioning their constitutionality.

For many women across the country, the all-important question is – When is it too late to get an abortion? The short answer is – after 24 weeks. In Texas, however, the answer to that is six weeks.

According to abortion statistics from the Centers for Disease Control and Prevention, women between 20 and 29 years of age account for 57.7% of all reported abortions every year. 92.2% of abortions occur at around 13 weeks of pregnancy, while 6.9% are performed at the 14 to 20-week mark. 38.6% of all abortions are done at less than nine weeks of gestation.

What exactly is contained in the new bill? Here are the highlights.

Civilians Wield the Power

Unlike conventional legislation, the enforcement of the new Texas abortion law rests on private citizens instead of the government. Here’s how.

A patient cannot be sued under the new law’s provisions. Instead, the abortion provider and any other entity that assists with the abortion can be held liable – and by anyone. The legislation also expands the scope of civil lawsuits to prevent providers from using the constitutional right to abortion as provided for under Roe v. Wade as a legal defense against being sued.

An excerpt from Sec. 171.207 states, in part, that the law shall be enforced exclusively through the civil actions of private citizens. It goes on to state that no enforcement of the law can be conducted or threatened by the state, an employee, an executive, or an administrative officer of the state, a political subdivision, or a county/district attorney.

It effectively means that not only is a private citizen allowed to sue a provider or any other entity aiding in abortion, but the state is also prohibited from attempting to enforce the law. In addition, the language used to craft this legislation is designed to sidestep any legal action challenging its constitutionality, a maneuver that has held up in the Supreme Court.

In its September 1 ruling, the court cited this section of the Texas law in its rejection of the emergency injunction filed by providers to block the new legislation. Part of Justice Sonia Sotomayor’s dissent stated that the Texas legislature skirted constitutional precedent by using private citizens to pursue what the state legally cannot.

Any Private Citizen Can Sue Whether or Not They Were Directly Involved

Sec. 171.208 allows “any person” other than a state or local government employee or officer to bring a civil suit against any party found to be aiding and abetting an abortion. This expands the legal concept of “standing,” where one party sues another to get monetary compensation for harm or injury they suffered.

The new Texas abortion law does not require any such relationship to exist for a lawsuit to have legal standing in court. Instead, anyone can sue for legal remedies, whether or not they suffered direct harm. This essentially means that anyone can have legal standing and, therefore, anyone can sue for “generalized grievances.”

Patients Cannot Be Sued

Sec. 171.208 further outlines the parties that can be held liable for damages under the new law. It states that anyone who carries out or intends to carry out an abortion on a patient, as well as any other person or entity that does not adhere to the new state rules by aiding or intending to aid with such abortion, can also face civil action.

While the patient cannot be held liable for their decision to procure an abortion, any other party that aids them in getting the abortion can be sued. This includes everyone from the doctor performing the procedure to the Uber or Lyft driver taking the patient to get an abortion, whether or not they are aware of their passenger’s intentions. Even a family member who helps pay for the abortion can be sued for aiding and abetting.

A “Bounty” Reward for Successful Suits

Reward for Successful Suits
Source: Unsplash

The court will award a plaintiff $10,000 in statutory damages if they successfully win the case, the costs of the suit and attorney’s fees, and what it terms as “injunctive relief” to prevent the defendant from violating the law in the future.

The $10,000 “bounty” will be awarded for every abortion the defendant performed, and the injunctive relief can be any amount the court deems appropriate to act as a deterrent. This section of the law essentially provides an incentive for plaintiffs to sue.

One Payment per Abortion

While a defendant can be in court over a single abortion several times, the court can only collect relief from the same defendant over said abortion only once. For instance, if five different plaintiffs sue a provider for a single abortion, only one of them can collect damages.

The law doesn’t prevent the defendant in a suit from defending themselves in multiple suits brought against them, whether or not damages have already been awarded in a previous suit. As a result, they still have to incur the costs associated with each instance of the suit, not to mention the time lost.

Four-Year Statute of Limitations

Any plaintiff wishing to sue a provider or any other party involved in abortion has a four-year window to bring the suit. This gives potential plaintiffs ample time to bring a civil lawsuit against a defendant long after the abortion was performed.

The law puts a cap on the number of legal arguments that can be used to defend against a suit. Some of the arguments whose use it bars include:

  • Civil action violating the patient’s constitutional rights
  • The provider receiving explicit consent from the patient to perform the abortion
  • The belief that the law is unconstitutional
  • Ignorance

Legal experts contend that barring the use of the law’s unconstitutionality as a legal defense in court might prove difficult to enforce.

A Serial Plaintiff Can Litigate Each Case Separately

If a single plaintiff brings dozens of civil suits against several clinics across the state with similar allegations, each case will be litigated regardless of the outcome of previous ones. Every case is treated independently of the others.

For instance, if a plaintiff sues multiple defendants over the same charge and they end up losing the initial case, subsequent defendants cannot use that as a basis to stop the litigation they’re currently facing. The plaintiff is protected by a legal doctrine known as “non-mutual claim preclusion.”

The Burden of Proof Rests With the Defendant

The law provides in great detail the arguments that a defendant may use. One of them includes that they had a reasonable belief the individual inducing or performing the abortion using an abortion pill Texas or otherwise, complied or intended to comply with the law. The defendant has to prove beyond a reasonable doubt that they believed the abortion was legal.

Defendants Can Never Recover the Costs of the Suit

This effectively prevents the court from awarding the defendant their costs or attorney’s fees even if they successfully defend against the suit. This section of the law is skewed in favor of the plaintiff since they are guaranteed to recover the costs of the suit if they win the case, over and above the damages, they’ll be awarded.

A Rapist Can’t Sue Over an Abortion

A provider performing an abortion on a victim of rape, sexual assault, or incest cannot be sued by the perpetrator. The law, however, doesn’t bar anyone else from suing the provider for carrying out or inducing that specific abortion, regardless of the circumstances that led to the conception.

Texas abortion laws require minors to get legal consent from their parent or legal guardian before getting an abortion. There are some exceptions:

  • Minors who are legally emancipated don’t need consent
  • In case of a medical emergency
  • If the minor receives permission from a judge

Nonetheless, based on the provisions of the new Texas laws, it would still be illegal for a minor to procure an abortion after the six-week mark. A parent or legal guardian who helps a minor get an abortion can be sued for aiding and abetting.

Do you have any legal questions for us? Chat online with a Laws101 attorney right now.

Memo sign PPP Loan Paycheck Protection Program on the black piece of paper

Get Paid for Reporting PPP Loan Fraud

Legal AssistantAdministrative Law, Business Law, Criminal Law, Tax Law

In July 2021, 22 people were arraigned in court on charges of engaging in fraudulent schemes to acquire more than $11 million in loans from the Paycheck Protection Program (PPP). The individuals used the loan proceeds to purchase jewelry, luxury vehicles, and other personal items.

According to court documents, the defendants submitted or aided in submitting loan applications on behalf of a dozen or more businesses that sought funding worth $800,000 each.

The accused individuals certified that the businesses were in operation as of February 15, 2020; that they had employees on their payroll; that they had paid the required payroll taxes; that the funding would go towards maintaining the payroll, retaining employees, making lease or mortgage interest payments, and paying for utilities; that the information provided in their applications was true. As it turns out, it was not.

What constitutes PPP loan fraud? What is the penalty? How can you report it? Here’s everything you need to know.

What Is the Paycheck Protection Program

The PPP is a loan program born out of the Coronavirus Aid, Relief, and Economic Security (CARES) Act. Initially worth $350 billion, CARES was intended to provide cash flow assistance to American businesses for eight weeks. In April 2020, the Paycheck Protection Program and Health Care Enactment Act expanded the program, injecting an additional $310 billion worth of funding.

The PPP Flexibility Act was later enacted to make some critical amendments to the original legislation. It gave individuals and businesses more time to spend the funds and made it easier to get the loans forgiven.

In December 2020, Congress enacted a second stimulus package that added $285 billion worth of funding to the PPP. Businesses that had exhausted funds from the initial Paycheck Protection Program loan they had obtained or experienced a decrease in revenue amounting to 25% or more could also apply for another round of funding.

On May 4, 2021, the Small Business Administration (SBA) stopped accepting PPP loan applications. Nonetheless, any lender designated as a Community Financial Institution (CFI) may still access funding.

Loan Eligibility Criteria

Unlike SBA economic injury disaster loans, PPP loans are far-reaching. Small businesses, independent contractors, sole proprietorships, and self-employed individuals can all apply for funding.

  • Independent contractors are required to fill and submit Form 1099-MISC alongside Schedule C from their tax return showing their net earnings
  • Sole proprietors also need to fill and submit Schedule C
  • Self-employed individuals need to submit their payroll tax filings as reported to the IRS

Businesses need to show a revenue reduction of 25% or more to qualify for the second round of PPP funding. To demonstrate this, you would need to compare the revenue earned in any quarter in 2020 against the revenue earned during a similar period in the previous year.

What PPP Loans Can Be Used For

According to the federal guidelines, 60% of the loan must fund payroll costs and employee benefits.

Under the PPP, payroll costs include:

  • Salaries, wages, bonuses, tips, and commissions, capped at $100,000 per annum per employee
  • Employee allowances including sick leave, medical, family, parental, and vacation pay
  • Insurance premiums and retirement benefits
  • Local and state taxes assessed on compensation
  • For sole proprietors or independent contractors, net earnings, income, commissions, or wages capped at $100,000 per annum per employee

Here’s what’s not covered:

  • Payments to independent contractors
  • Payments to C-corporation and S-corporation owners who are not on the payroll, such as payments to shareholders

The remaining 40% of the PPP loan can be spent on:

  • Lease and rent payments
  • Mortgage interest payments
  • Operational expenditure such as accounting and software requirements
  • Property damage not covered by insurance resulting from public disturbances
  • Supplier costs
  • Utility payments
  • Worker protection expenditure related to COVID compliance

Adhering to these guidelines allows businesses to have the full value of the PPP loan forgiven, essentially transforming it into a tax-free grant. As part of the application process, applicants are asked to certify that they will spend the funds appropriately for their intended purposes. The misappropriation of these funds is tantamount to PPP loan fraud.

The Loan Application Process

Keep in mind that the SBA itself doesn’t lend businesses the money they need. They simply back the loan provided by the lender.

Part of the PPP loan application process requires businesses and individuals to verify the following:

  • That the existing economic uncertainty makes it necessary to acquire a loan to support the business’ ongoing operations
  • That the funds will go towards maintaining the payroll, retaining workers, or making lease, mortgage interest, and utility payments
  • Documentation that indicates the number of full-time salaried staff or equivalent working in the business, payroll costs in dollar amounts, covered rent or lease payments, covered mortgage interest payments, and covered utilities for the 24 weeks after obtaining the loan
  • An acknowledgment that the lender will calculate the loan amount the business qualifies for using the tax documentation submitted along with the application
  • An affirmation that the tax documents submitted along with the application are identical to those submitted to the IRS
  • That the business or individual has used up all the funds they received in the first PPP loan if they’re applying for a second round of funding

Businesses or individuals are required to provide bookkeeping/payroll records in support of the payroll expenses listed. That could include payroll tax filings, processor records, tax forms (Forms 940, 941, and W-3) from 2019 or 2020, Schedule C for sole proprietorships, and Form 1099-MISC records.

What Is PPP Loan Fraud

customer signing loan agreement
Source: Pexels

So far, we’ve looked at the PPP loan requirements, the documentation required, and guidelines on what the loan can be used for. If a business or individual submits false or inaccurate information or documentation in their application or certification, it constitutes PPP loan fraud. Even if a business meets the eligibility criteria but fails to abide by the predefined limits and requirements on how it can use those funds, it is also considered loan fraud.

A PPP loan fraud investigation will ultimately determine whether an individual will be charged with violating one or more of the guidelines provided in the program.

A violation includes, but is not limited to:

  • Applying for loan forgiveness by submitting a false certification
  • Being deceitful to agents during a PPP loan investigation or audit
  • Loan stacking – applying for multiple PPP loans from different lenders
  • Making false statements on the loan application
  • Using the loan funds for unauthorized or improper use

PPP Loan Fraud Penalty

An individual charged with PPP loan fraud faces serious civil and criminal penalties. While a single loan fraud case may involve several criminal laws, a brief overview of the most common charges and their respective penalties is below.

Wire Fraud

This invokes 18 USC Sec. 1343 and involves using the phone or internet to defraud another party by making false promises or statements. The penalty depends on the total stolen money and could be up to 20 years behind bars.

Bank Fraud

This invokes 18 USC Sec. 1344 and is similar to wire fraud, only that in this case, it involves making false statements to a financial institution such as a bank. An individual found guilty of bank fraud could face a jail term of up to 30 years.

False Statements to a Financial Institution

This invokes 18 USC Sec. 1014 and makes it a federal crime to lie to a financial institution such as a bank. This involves providing false statements on a loan application form or falsifying documents submitted to a bank to qualify for a loan. Any individual found guilty of violating this law faces up to 30 years behind bars.

Conspiracy to Commit Fraud

This invokes 18 USC Sec. 1349. The law makes it a criminal offense to collude with others in violating or attempting to violate federal fraud laws, whether or not the individual in question actually obtains money, falsifies documents, or makes any false statement.

The penalty depends on the fraud crime the individual conspired to commit. For instance, a conviction for conspiracy to commit wire fraud carries a jail sentence of up to 20 years, while conspiracy to commit bank fraud carries a maximum jail term of 30 years.

How to Report PPP Loan Fraud

A business or an individual that engages in PPP loan fraud is in violation of the 1863 False Claims Act. The law was created to deter individuals from committing acts of fraud against the government and encourage people to report said fraudulent activities. The Act incentivizes private citizens to report instances of fraud committed against the government in what is popularly known as “qui tam” action.

The doctrine allows a False Claims Act whistleblower with evidence of fraud to bring a civil suit against an organization or individual and receive a percentage of the recovery amount. The precise amount that they can recover depends on whether the government intervenes in the suit.

The provisions of the Financial Institutions Reform, Recovery, and Enforcement Act allow the Attorney General to sue for fraud in cases that involve federally insured financial institutions. A FIRREA whistleblower can receive up to $1.6 million for information on PPP violations that result in the successful recovery of stolen funds.

Whistleblower protection laws also protect employees who report PPP loan frauds against retaliatory action by their employers. This means they cannot be terminated, demoted, or harassed for PPP whistleblowing to expose their employer’s fraudulent undertakings against the government.

PPP fraud denies eligible small enterprises of the funding they need to keep their businesses afloat. With that in mind, the US Department of Justice (DOJ) has instituted a policy dubbed “See something, say something” to help them identify instances of PPP fraud.

To report PPP loan fraud and economic injury disaster loan fraud, you can:

  • Call the National Center for Disaster Fraud Hotline: 1-866-720-5721
  • Fill the web complaint form on the DOJ website
  • File a complaint with the SBA Inspector General Office

PPP Loan Fraud Red Flags

If you’re a company board member, executive, or owner, you will be personally liable if your company is found guilty of flouting any of the PPP rules and restrictions. To avoid the stiff penalties that come with a PPP loan violation, below are five red flags to keep an eye out for during an internal compliance audit.

1. Insufficient Documentation Substantiating the Loan Application

Federal investigators don’t just assess the loan recipient’s eligibility; they also check that the representations made in the application can be substantiated. For instance, under the PPP terms, a company should:

  • Apply for the loan because it is “necessary” given the precarious economic climate
  • Be eligible to participate in SBA programs, meaning no single shareholder has more than 20% interest, nor have they been convicted of a federal felony in the last five years
  • Have less than 500 employees to qualify as a small business

2. Multiple Loan Applications to Different Lenders

The CARES Act only allows companies to obtain a single PPP loan from a single lender at a time. Obtaining or attempting to obtain multiple loans is illegal. Even if the company received only one loan, the fact that they submitted multiple applications could lead to criminal prosecution.

3. No Documented PPP Compliance Policies and Procedures

Not having documented policies and procedures to ensure ongoing compliance to PPP requirements is a red flag in fraud investigations and audits. Companies need to adhere to the CARES Act guidelines on how to use the funds and be able to account for expenditures.

4. Insufficient Documentation of Loan Expenditure

Like the compliance program, companies need to have solid documentation that demonstrates they used the PPP loan for authorized purposes only. More often than not, this goes beyond simply keeping a record of transactions. Doing so makes it difficult to defend against PPP loan fraud allegations.

5. Use of Loan Proceeds for Personal Expenses

The CARES Act explicitly prohibits the use of PPP loan funds for personal expenses. The line between business and personal expenditures can often get blurred. This opens you up to the risk of prosecution.

For instance, in cases where home-office expenses, vehicles, and travel-related expenditure, are involved, there needs to be a clear-cut line between the two.

Do you know anyone who may be committing PPP loan fraud? Chat online with a Laws101 attorney now.