vince@vincerabagolaw.com

Rabago tells bars: Comply with federal law and pay the business licensing fee to broadcast the fight or get sued later by the sports promotion company.

KVOA | KVOA.com | Tucson, Arizona

Vince Rabago Law Office was on the news earlier tonight about the Manny Pacquiao v. Floyd Mayweather fight on Saturday with some advice for local restaurants and bars airing the fight. Make sure you comply with all federal laws and pay the proper business licensing fee to broadcast the fight… so you and your business don’t get sued later by the sports promotion company with a potentially bankrupting lawsuit! Enjoy the fight. If you or your company need legal advice or a fighter in your corner, contact Vince Rabago Law Office!

The Arizona Court of Appeals has ruled that prescription drug companies can be sued for consumer fraud under Arizona’s Consumer Fraud Act.  The published decision is a major victory for patients and consumers, particularly in this day and age where drug company advertising has flooded television and radio advertising, speaking directly to consumers.

The case is Amanda Watts v. Medicis Pharmaceutical Corporation, Case No. 1 CA-CV 13-0358, and involves the drug Solodyn.  The drug is an oral antibiotic manufactured by Scottsdale-based Medicis Pharmaceutical Co.

In 2008, while Watts was a minor, she obtained a prescription for Solodyn to treat chronic acne.  Two years later, she got a new prescription and used the drug again.  Both times, Watts ended up using the drug for 20 weeks.

According to the decision, before using the drug, Watts received two informational publications that did not disclose a link to the potential development of autoimmune disorders. However, the company provided information available to the doctor that warned of lupus-like syndrome and autoimmune hepatitis from “long term” use and that doctors should tell patients of symptoms that might develop, which should cause them to stop immediately and seek medical attention.

Watts was hospitalized in late 2010 with drug-induced lupus and drug-induced hepatitis.

In a subsequent lawsuit, Watts alleged that both conditions are side effects of her using Solodyn.   Watts may suffer from lupus the rest of her life.

On appeal, the Arizona Court unanimously set aside a prior rule barring such lawsuits, which was based on the presumption that a drug company’s only obligation is to provide the full list of complications and side effects to doctors, and that patients do not need that sort of information.

Significantly, the decision expressly relies on the fact of how manufacturers now market such products directly to the public.

The decision points out that prescription medication is often advertised and sold to consumers in a manner similar to other consumer goods.

Although the author of the unanimous opinion, Judge Gemmill, acknowledged that patients still need a doctor’s prescription in order to get such drugs, he concluded that the situation is no longer the one-way discussion that it used to be (between a doctor and patient).

“Consumers discuss medications with their medical providers and may express preferences based on advertising,” concludes the decision.  Further, the decision explained that patients still have to decide whether to buy and actually use a drug — even after getting a prescription.

“As a result, consumers may be deceived through fraudulent misrepresentations in connection with the sale of prescription drugs just as in the sale of traditional consumer goods.” “Consumers are regularly presented with advertisements for medications to treat a variety of symptoms, prompting them to ask, encourage, and even pressure their medical providers to prescribe these brand-name medications,” the judge wrote.

Furthermore, internet sites and medical databases give consumers access to both manufacturer-provided and third-party information about drugs.

“A physician no longer is necessarily the consumer’s sole source of information about the effects, benefits, and risks of the medication.”

Accordingly, the Arizona Court of Appeals concluded that this means a manufacturer should not be shielded from liability.  “Otherwise a consumer may be left without recourse against a manufacturer in a situation where an adequate warning to a prescribing physician is undermined or negated by the flawed or incomplete representations of the manufacturer.”

Consequently, the Court held that Arizona’s Consumer Fraud Act provided a valid cause of action for Watts against the drug manufacturer, because Arizona law prohibits “any deception, deceptive or unfair act or practice, fraud, false promise or misrepresentation” in connection with “the sale or advertisement of any merchandise.”  In addition, the Court of Appeals revived Watt’s claim for punitive damages against the drug manufacturer.

A copy of the published decision can be viewed here.  Because the decision is published, it is considered precedent and may be cited and applied by lower trial courts.

Arizonan Richard Morris has been described as an “Ice Cream crusader” for his recent court battle against food giant Kroger Food Co., as the result of a small claims lawsuit that Morris filed against the grocery chain giant that owns Fry’s Food & Drug stores in Arizona.

Morris filed a small claims lawsuit in Tucson against Fry’s food stores for deceptive advertising.

According to recent news reports published by the Arizona Daily Star, Morris lost the case, but Morris believes he has won because of his effort to force Frys to change their advertising, and by also bringing attention to the alleged misleading advertising.

The case filed by Morris had alleged that the store was misleading the public in advertisements for ice cream and other frozen dairy products, but a small claims court hearing officer ruled against Morris and concluded that he failed to prove his case.

Morris declared the outcome a “consumer victory”, noting that the store’s printed advertisements have been changed to show the accurate volume of ice cream, instead of weight. The lawsuit had alleged that the use of weight in the advertising was deceptive, in that the actual amount of ice cream was different than the advertised amount.

Fry’s, and many other grocers, have advertised ice cream products with dry-ounce measurements instead of gallons, quarts, pints and fluid-ounces, etc.

According to the published news reports on the case, Kroger Vice President Kyle McKay said that the advertisements now do show the products in such terms, but he claimed that regulations allow them to use generic terms like “ounces” when referencing ice cream products if the meaning is obvious.

In the court case, McKay had argued on behalf of Krogers/Fry’s that most consumers realize that ice cream is packaged by volume and that no consumers expect to buy ice cream by the pound.

However, Morris still disagrees with Kroger and its Fry’s stores, asserting that consumers need to be sure that they are actually getting what they pay for.

Morris is considering appealing his case to a higher court, but in the meantime he plans to also continue his consumer advocacy concerning advertising of ice cream products on a blog called Icecreamconsumer.weebly.com, which is currently being developed.

Believe it or not, questions related to ice cream advertising have actually gone all the way to the United States Supreme Court, nearly 100 years ago, in a case called Hutchinson Ice Cream Co. v. Iowa, 242 U.S. 153 (1916).  There, ice cream producers challenged various state laws that specifically prohibited any advertising of ice cream as being “ice cream” if the product actually contained less than a fixed percentage of butter fat.

In that case, the Supreme Court rejected the claim that such regulations were unreasonable, concluding that the laws were reasonable and constitutional under the Fourteenth Amendment, based on the right of the state under the police power to regulate the sale of products with a view toward preventing frauds or protecting the public health.

The Supreme Court concluded:

The facts show that, in the absence of legislative regulation, the ordinary purchaser at retail does not and cannot know exactly what he is getting when he purchases ice cream. He presumably believes that cream or at least rich milk is among the important ingredients, and he may make his purchase with a knowledge that butter fat is the principal food value in cream or milk. Laws designed to prevent persons from being misled in respect to the weight, measurement, quality, or ingredients of an article of general consumption are a common exercise of the police power.

Hutchinson, at 159.

In the recent Arizona case, it appears that Morris was relying on general consumer protection laws or laws against consumer fraud such as Arizona Revised Statutes, Section 44-1521 through Section 44-1534, which generally prohibit deceptive or misleading advertising or actions in the context of selling virtually any product or service in Arizona.  See A.R.S. Section 44-1522.

Arizona’s Consumer Fraud law is enforceable by private individuals through private lawsuits, and the law is also enforceable by the Arizona Attorney General and county attorneys in the State of Arizona.

If you believe you are a victim of consumer fraud, contact Vince Rabago Law Office for a consultation.

Case source:  Hutchinson Ice Cream Co. v. Iowa, 242 U.S. 153 (1916).

Statute:  Arizona Consumer Fraud Act, A.R.S. 44-1521, et. seq.

News sources:  Arizona Daily Star, January 25, 2014:  Ice cream crusader asks court to weigh in on grocery ads

Arizona Daily Star, February 7, 2014:  I’m Lost But I’m Not Licked, Says Tucson’s Ice Cream Crusader

Hearing to be held tomorrow at ASU in Tempe, Arizona, by the National Commission on Voting Rights (NCVR), organized by the Lawyers’ Committee for Civil Rights Under Law, to collect testimony about voting discrimination and election administration challenges and successes. The hearing is one of many hearings being held nationwide.

In June 2013, the Supreme Court’s decision in Shelby County v. Holder effectively nullified Section 5, a key provision of the Voting Rights Act by striking down Section 4. Additionally, in recent years numerous states have enacted restrictive voting laws, some continue to grapple with recurring election administration challenges and others have proposed reforms to expand access.

The NCVR is the successor to the National Commission on the Voting Rights Act. In 2005, the Lawyers’ Committee established the National Commission on the Voting Rights Act to assess the record of discrimination in voting since the 1982 re-authorization of the Voting Rights Act. While the 2005 Commission focused on voting discrimination, the reconstituted Commission is also examining electoral administration and reform proposals given the increased interest concerning such matters throughout the country.

The testimony, facts, and data gathered during the hearings as well as state-specific documentary research will be compiled into comprehensive reports and made available to anyone seeking to reform or improve existing voting laws including but not limited to policymakers, advocates, and the voting public.

The goal of the NCVR is to document both what has kept voters from the ballot box as well as efforts to increase access in two reports which will be released in 2014.

More information is available at: http://www.lawyerscommittee.org/projects/voting_rights/page?id=0144

Media Contact: Vince Rabago • (520) 955-9038 • Vince@VinceRabagoLaw.com
(Tucson, Ariz. – June 14th, 2013)

Today, Arizona attorney Vince Rabago filed a Complaint with the U.S. Department of Justice requesting that the agency investigate apparent efforts to unlawfully suppress and intimidate Latino voters in Arizona during the 2012 election.  Rabago included documentation and affidavits supporting the Complaint.

Rabago, a former state prosecutor, submitted two affidavits signed by voters under penalty of perjury who received misleading “robo calls”. These Spanish speaking calls told voters to bring their identification documents in Spanish with them to the polls in order to exercise their right to vote. Both voters receiving these calls are fluent in Spanish and immediately knew the statements were false and misleading. One voter, William Risner, is an election law attorney with extensive experience. The other voter, Dr. Ted Downing, is a former elected state legislator who participated in legislative election law reform efforts in Arizona.

Rabago also provided documentation about incidents in Maricopa and Yuma Counties. This included three signed affidavits from Latino voters in Yuma County, including a former candidate for Yuma Sheriff, Ricardo Sandoval, noting specific incidents of potential voter suppression. These include:

* Latino Democratic voters improperly issued Republican Party ballots.

* Problems at polling locations serving Latino voters resulting in hundreds of voters not being able to cast their vote.

* Election officials refusing to adequately investigate or take action on complaints ranging from improper local election practices to apparent violations of the Arizona and federal Hatch Act, laws which restrict government employees from political activity in the course of their jobs;

* Armed Sheriff employees allegedly asking for Latino voters to sign the petition of the non-Latino GOP candidate for sheriff.

With regard to Maricopa County, Rabago provided news articles documenting specific instances of two different official Maricopa County documents that were provided to the public with incorrect election date information written in Spanish, but the correct information provided in English.

Rabago said that any “discriminatory efforts to suppress and intimidate Latino voters, or any voters, are illegal, despicable and un-American. The Department of Justice must investigate the evidence and reports of apparent voter suppression in order to preserve the lynchpin of our democracy – the right to vote.”

Arizona has a long a documented history of minority voter discrimination and harassment, which resulted in Arizona being required to pre-clear changes in election laws or procedures with the Department of Justice under Section 5 of the federal Voting Rights Act to protect voting rights of Latinos and other minorities. The U.S. Supreme Court is set to decide whether the federal Voting Rights Act remains federal law, after hearing arguments in March on a constitutional challenge against the law.

www.VinceRabagoLaw.com • 500 N. Tucson Blvd. Ste. 100, Tucson AZ 85716