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VOL 2012 ISSUE 1

VERDICT is a Publication of the Law Firm of Napoli Bern Ripka Shkolnik LLP

Firm news

1 Adam J. Gana and Christopher Lufrano: ABA Nomination 1 New office opening and staff growing to serve our clients 1 Attorney Speaking Engagement Recaps

Recalls and safety advisories 3 3 4 4

How to Download the Free NBRS App! Increased risk of bladder cancer with #1 diabetes drug Actos® Avaira Toric® and Sphere® contact lenses recalled due to risk of eye injury Leg fractures and jaw injuries with Fosamax® and other bisphosphonate osteoporosis drugs

Featured articles 6 6 7 8 8 9

Mass tort lawsuit filed in Costa Concordia cruise disaster 9/11 Victim Compensation Fund now accepting claim Helping 9/11 ill and injured an uphill task Firm Partners featured in New York Magazine Life insurance companies may be keeping $1 billion in unclaimed benefits NBRS files arbitration claim against David Lerner Associates for the sale of Apple REITs

2 NBRS selects MediConnect Global to handle medical record retrieval for high-profile national casework 2 St. John’s Law School Grads join NBRS through Fellowship Program 2 Pain management focus of first lecture in Firm’s professional development program

4 Failure of Zimmer NexGen® knee replacement devices 5 Have you taken the antiarrhythmic drug Multaq® and suffered liver damage or cardiovascular event? 5 Abercrombie & Fitch Involved in Gift Card Violations? 5 NuvaRing® Contraceptive Side Effects Lawsuits

9 Helping people file a Social Security Disability claim from the October 2011 issue of American Police Beat Magazine 10 Filing a Workers’ Compensation claim if you are ill or injured due to your job Excerpt: 10 Broker-dealer licensing: Understanding the role and limitations of the Series 6 license


Firm news Adam J. Gana and Christopher Lufrano: ABA Nomination

Attorney Speaking Engagement Recaps Marc Jay Bern a co-chair at HB Litigation Conference Gas Drilling Operations Conference & Live Webcast A panel of experts joined co-chair NBRS Senior Partner Marc J. Bern in Dallas, TX to discuss the latest hydraulic fracturing (fracking) information. The increased use of fracking to extract natural gas from underground rock formations raises environmental and legal challenges.

Gana

Lufrano

Nomination for The Alternative/Securities Dispute Resolution Committee Adam J. Gana, Senior Litigation Counsel and head of the firm’s Securities and Commercial Arbitration Litigation Department, along with departmental Associate Attorney Christopher Lufrano, have been nominated to the American Bar Association’s Alternative/Securities Dispute Resolution Committee. The Section of Dispute Resolution, established in 1993, is one of the ABA’s newest and fastest growing Sections with over 19,000 members. More at http://www.americanbar.org/groups/dispute_resolution/about_us.html

New office opening and staff growing to serve our clients As we begin 2012, we are proud that our national firm continues to grow, which increases our ability to service our clients in a range of practice areas on a more local level. Welcome to Steven M. Aroesty who joins our firm as the Managing Partner for our new Illinois office. Our offices in New York, New Jersey, Pennsylvania, California and Florida have also added to their team of experienced legal professionals. Napoli Bern Ripka Shkolnik LLP would also like to welcome Associates Benjamin H. Adams and Kelly McMeekin, as well as all new Legal Personnel and Staff. Additionally, we are happy to congratulate our Law Clerks who recently passed the Bar Exam in various states!

New firm office ILLINOIS 241 North Main Street Edwardsville, Illinois 62025 (618) 364-8176

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Hunter J. Shkolnik spoke at 11th Annual Class Action/Mass Tort Symposium Presented by the Louisiana State Bar Association (LSBA) Along with former New Jersey Mass Tort Judge Marina Coredemus, Hunter J. Shkolnik was a speaker on “Multi-district Litigation and the Parallel State Court Universe: A Practitioner’s Global Positioning Guide.” The conference was held in New Orleans in December. Hunter J. Shkolnik spoke at Harris Martin MDL Conference NBRS filed the first Actos case in the country Senior Partner Hunter J. Shkolnik spoke at the Harris Martin MDL Conference: Transvaginal Mesh and ACTOS Litigation in Savannah, Georgia. Mr. Shkolnik focused on the history, function and problems associated with the type-2 Diabetes Drug Actos. Hunter J. Shkolnik co-chairs AAJ Litigation Group The Actos Bladder Cancer Litigation Group Senior Partner Hunter J. Shkolnik was integral to the formation of the new AAJ litigation group, The Actos Bladder Cancer Litigation Group. Mr. Shkolnik will be cochairing this important Litigation Group. The American Association for Justice, also known as the Association of Trial Lawyers of America is a forum for attorneys to share their knowledge and experience through conventions and teleseminars while continuing their own education in order to be more successful attorneys for their clients. Mr. Shkolnik recently lead an AAJ Actos Teleseminar which focused on the Type-2 diabetes drug Actos and its link to a 40% increased risk for Bladder Cancer for those patients taking the drug for more than a year. More at www.justice.org Adam J. Gana, Esq. a Guest Lecturer at Pace Law School FINRA Arbitration Discovery Senior Litigation Counsel Adam J. Gana was a guest speaker at the Investor Rights Clinic / Seminar in White Plains, New York. The focus of the discussion centered on how to properly file an arbitration claim and the process and procedures involved with FINRA’s Discovery Process. Mr. Gana shared his experience and knowledge on how to best prepare, present and win a case for arbitration. Adam J. Gana, Esq. lectured at 2011 PIABA Annual Meeting in California Analysis of Suitability Claims in Product Specific Cases Senior Litigation Counsel Adam J. Gana was a Guest Lecturer at the 20th Annual Public Investors Arbitration Bar Association (PIABA) Meeting in Rancho Mirage, California. The focus of the discussion centered on how to properly broaden a product-based arbitration as a claim for suitability. Mr. Gana shared his experience and knowledge on how to best prosecute a product related case in arbitration with attendees.

©2012 Napoli Bern Ripka Shkolnik LLP Prior results do not guarantee a similar outcome. This publication is for informational purposes only, does not constitute legal advice and may not reflect the most current legal developments. This publication does not create an attorney-client relationship, only a written contract between the parties can establish an attorney-client relationship. Napoli Bern Ripka Shkolnik LLP and all contributing authors expressly disclaim all liability to any person with respect to the contents of this publication. Imagery used in this publication utilizes fictionalized events or scenes with participation of models. For complete details, read our Terms of Use and Privacy Policy at www.NapoliBern.com


from start to finish. Having these medical records is a critical component for the effective preparation of each case by NBRS attorneys on behalf of the many plaintiffs - in some cases tens of thousands of individuals. “Due to the sheer volume of records we require for specific cases, such as nationwide torts, it is essential to have a highly efficient solution,” says Paul J. Napoli, senior partner at NBRS. “The easy-to-use online interface allows us to submit multiple record requests at a time, which significantly streamlines an otherwise cumbersome process. MediConnect Global’s powerful technology and excellent service alleviate a tremendous burden for our team, allowing us to focus on other important aspects of each case.” MediConnect’s secure, cloud-based system enables legal professionals to manage every step of the medical record retrieval process in one centralized location. Through this simple online service, they are able to quickly order, track, download and view digitized medical records, while having access to dedicated account managers who provide one-on-one service and support. “We are honored to provide services to this respected firm on these important cases,” says Amy Rees Anderson, CEO of MediConnect Global. “The MediConnect team is committed to executing case-related medical record retrieval and management with unrivaled speed and precision, in order to free up the time and energies of our legal clients as they perform their essential casework.”

NBRS selects MediConnect Global to handle medical record retrieval for high-profile national casework MediConnect Global, one of the first and largest health information exchanges, has signed with Napoli Bern Ripka Shkolnik LLP (NBRS) to manage the medical record retrieval for high-profile national tort cases and other legal casework. By using RapidRetrieve, MediConnect’s patented record retrieval system, NBRS attorneys are able to quickly request plaintiffs relating to a specific case all at one time. This not only streamlines efforts and reduces the amount of time needed to request records for individual cases, but also allows real-time tracking and reporting on each individual record request

Cohan

Rapisardi

to place recent law graduates with a law firm that has an alumnus tie to the school. Over the past year, Napoli Bern Ripka Shkolnik LLP received numerous applications through the Fellowship Program. After careful review of resumes, writing samples and interviews, we were happy to offer positions to Mr. Michael Cohan, Ms. Daniela Rapisardi and Ms. Bettina Hollis. Each earned their Juris Doctor in June 2011 and has since passed their respective Bar Exams. Each St. John’s graduate accepted the offer to join the firm and we immediately put them to work conducting research on legal issues, drafting memoranda, complaints, drafts and briefs and assisting with court filings. All three graduates agree that the practical application of what they learned in law school has been invaluable in their development of becoming successful attorneys. ”Ms. Hollis, Ms. Rapisardi and Mr. Cohan continue to grow more confident as they learn and develop legal skills. They should feel a sense of accomplishment in knowing that they are already substantively contributing to cases,” says Senior Partner Paul J. Napoli, a graduate of St. John’s University School of Law class of 1992.

Hollis

St. John’s Law School Grads join NBRS through Fellowship Program Law school students graduate with a Juris Doctor degree and begin studying for the Bar Exams, then what? The St. John’s University School of Law Alumni Fellowship Program helps St. John’s graduates with that next step. The program endeavors

Pain management focus of first lecture in Firm’s professional development program

planning, emergency room care and biomechanical engineering. Mr. Ripka believes that this in-person lecture series offers an opportunity for Q&A and interaction that the associate attorneys and staff would not have during personal research and allows them to become accustomed to interacting with experts. The first lecture in the program focused on the science and procedures involved with pain management. In addition to traditional methods of pain management, the specialist spoke about modern options that are now available, including percutaneous diseconomies (a medical procedure for the neck and back done via a needle puncture of the skin as opposed to the traditional scalpel approach). The expert further explained the use of epidural injections and nerve blocks to alleviate injured parties pain and discomfort. While expanding their knowledge base to better prepare and prosecute cases, the attorneys have the opportunity to get to know the expert (witness) who may testify on their client’s behalf and understand the use of models and blowups associated with the expert’s field.

Senior Partner Alan S. Ripka instituted a new professional development program at the firm by inviting guest lecturers who specialize in particular fields or industries to speak to attorneys and staff. This monthly program’s goal is to provide expert explanation, presentation and demonstration of specialties ranging from orthopedics, neurology, physical therapy, life care

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Recalls and safety advisories Download Our FREE NBRS APP: Personal Injury Toolkit

Here are some of its easy-to-use features: What to Do - This will guide you through the steps you should take for the collection of information from witnesses, the injured and others involved in the accident. The information can be easily entered into fields that have already been set up.

In the event of an accident, the collection of information from the scene is vital

An Automatic GPS Location Recorder - With the click of a button, your current location, including street names, city, state and country are automatically saved and retrievable.

Accidents can occur in an instant. The shock and confusion afterward can interfere with the collection of valuable information that could help you in the event of a lawsuit.

An Accident Toolkit - This toolkit provides you with a camera, voice recorder, text notepad and drawing pad.

It’s Free. It’s Easy. It could save your life. Napoli Bern Ripka Shkolnik LLP has developed a FREE application or “App” for the iPhone and Android called Personal Injury Toolkit, a useful and informative tool that can help you during the stressful time immediately after a motor vehicle accident, slip and fall, dog bite, on the job injury or other accident.

Sometimes, there is no way to prevent an accident before it happens to you, but you can be prepared by downloading this FREE App easy as 1-2-3!

Personal Injury Toolkit App is a user-friendly step-by-step approach designed to ensure the capture of information that could influence the outcome of your case.

2) Search for “Personal Injury Toolkit App”

1) Go to the App Store on your iPhone, iPad, iPod touch (requires iOS3.2 or later) or Market for Android 3) Press “Install” and begin to use the App

Increased risk of bladder cancer with #1 diabetes drug Actos® Actos® (pioglitazone) has been linked to bladder cancer in patients taking higher dosages or taking the drug more than a year. Actos (pioglitazone), made by the Takeda Pharmaceutical Company, is in a class of medications called thiazolidinediones. Actos is the most widely used medication for the treatment of type 2 diabetes. Actos sales in the United States were $3.4 billion in 2009. Napoli Bern Ripka Shkolnik LLP is pleased to announce that Senior Partner Hunter J.Shkolnik was integral to the formation of the new AAJ litigation group, The Actos Bladder Cancer Litigation Group. In addition to co-chairing this important Litigation Group, Mr. Shkolnik also lead an AAJ Actos Teleseminar focused on Actos and its link to a 40% increased risk for Bladder Cancer for those patients taking the drug for more than a year. The American Association for Justice (AAJ), also known as the Association of Trial Lawyers of America, is a forum for attorneys to share their knowledge and experience through conventions and teleseminars while continuing their own education in order to be more successful attorneys for their clients. People taking Actos may have taken this drug without knowing or understanding the bladder cancer risk because the manufacturer may have failed to 3

One Step Telephone Calls and Emails - Immediately Dial 911 or our law firm with the press of a button. Easily email all the accident details to our law firm. Napoli Bern Ripka Shkolnik LLP’s I Need a Lawyer App also offers more information about our firm and other practice areas we focus on, such as Medical Malpractice, Defective Drugs, Product Liability, Mesothelioma, Wrongful Death and Securities Arbitration and Litigation. Download Personal Injury Toolkit App App today! The information you collect with this App after an accident could be vital to winning compensation for your injury.

warn them adequately. In September 2010, the U.S. Food and Drug Administration (FDA) announced the agency was conducting a safety review of data from an ongoing ten-year Actos study conducted by the manufacturer to determine if people taking the drug were developing bladder cancer. An increased risk of bladder cancer was observed in patients on the highest doses of Actos and those taking the drug for a long time. After another study sponsored by the French government found Actos increased the risk of bladder cancer, regulators in France and Germany felt the risk was great enough to pull the drug from the market in June of 2011. Shortly after, the FDA announced it would require the makers of Actos to update the Warnings and Precautions of the drug labeling to include a warning that Actos use for more than one year may be associated with an increased risk of bladder cancer and to provide patients with a Medication Guide stating the risk. There is currently no Actos recall in the United States. If you have questions about your Actos prescription, or are experiencing any of the following symptoms of bladder cancer, you should speak with your doctor as soon as possible. Bladder cancer symptoms: • Blood in the urine • Urinary urgency • Pain on urination • Back or abdominal pain If you have taken Actos for treatment of your type 2 diabetes and your doctor diagnosed you with bladder cancer, contact our lawyers now. Pharmaceutical companies may have failed to warn you of the bladder cancer risk associated with this drug. Our lawyers have helped thousands of people injured by pharmaceutical drugs. Let us help you too. On August 2, 2011, our office filed the first Actos case in the country, Jules Berck v. Takeda Pharmaceuticals America, Inc., et. Al. Case No. 5:11-cv-01226.


Avaira Toric® and Sphere® contact lenses recalled due to risk of eye injury

Avaira Toric and Avaira Sphere contact lenses are manufactured by CooperVision Caribbean Corp. and prescribed by eye care professionals. Many users of Avaira Toric contact lenses are reporting serious side effects, including: • Pain • Blurry Vision • Tears of the Cornea • Corneal Abrasions The U.S. Food and Drug Administration (FDA) has received reports of injury from Avaira Toric contact lenses, including one report from a user stating that they had to visit a doctor to remove the contact lenses and when the doctor did so, pieces of the eye stuck to the lenses. CooperVision has found that the manufacturing process left an unintended residue on the lenses. More than eight

Leg fractures and jaw injuries with Fosamax® and other bisphosphonate osteoporosis drugs Doctors prescribe bisphosphonate drugs to prevent or treat osteoporosis, a condition that causes bones to become weak, brittle and break easily, and Paget’s disease in which bones become soft and weak. These drugs work by slowing bone breakdown, increasing bone density and decreasing the amount of calcium bones release into the blood. While sometimes prescribed for men, doctors most often prescribe these drugs for postmenopausal women. Bisphosphonate drugs include the following brand names and their generic equivalents: • Fosamax® (alendronate) and Fosamax® Plus D (alendronate plus cholecalciferol) • Actonel® (risedronate) and Actonel® with Calcium (risedronate plus calcium carbonate)

Failure of Zimmer NexGen® knee replacement devices

Patients who have undergone knee replacement surgery with Zimmer NexGen® CR-Flex, NexGen® LPS-Flex or NexGen® Complete Knee Solution MIS Tibial Components are reporting side effects indicating failure of the device. In some cases, patients required a revision surgery to remove and replace the failed device. NBRS is reviewing cases for people affected by defective Zimmer NexGen knee implants who are suffering pain, loosening of the implant, popping, infection, difficulty walking or standing or fracture of the tibia or femur bones

million Avaira Toric contact lenses were affected with the problem residue. According to the company, only 600,000 of the affected lenses were released on the U.S. market. On August 19, 2011, the company issued a voluntary recall of Avaira Toric contact lenses due to what it said were a “small number of complaints of temporary hazy vision” resulting from the residue. The company focused its recall communication to its distributors and eye care professionals and received criticism from the FDA for a lack of consumer awareness of the recall. After FDA pressure, the company released a statement on October 12 that it was “continuing” the recall and admitted that it had received reports of some users experiencing severe pain with Avaira Toric lenses. Later the company also recalled its Avaira Sphere product for the same defect. However, news reports of the many people who have experienced painful side effects and damage to their cornea from this product show the injuries are more serious and widespread.

• Boniva® (ibandronate) • Atelvia® (risedronate) • Reclast® (zoledronic acid) • Zometa® (zoledronic acid) People taking bisphosphonates have reported leg fractures including atypical subtrochanteric femur fractures, fractures in the bone just below the hip joint, and diaphyseal femur fractures in the long part of the thighbone. The femur is one of the strongest bones in the body, yet those affected report that the break occurred during normal low impact activity, such as walking or climbing steps. Some patients also reported hip or thigh pain in the months preceding the fracture. Reports of femur fractures in people taking Fosamax began as early as 2007. In 2008, the U.S. Food and Drug Administration (FDA) contacted Merck & Co. Inc., the maker of Fosamax, about reports of femur fractures associated with the drug. However, it was not until October 2010 that the FDA announced it would require makers of bisphosphonates to warn patients of the risks. People taking bisphosphonates should also be aware that a study released in September 2010 found that people who take these drugs for more than five years might have double the risk of developing cancer of the esophagus.

surrounding the implant, and those who had revision surgery due to these problems. Senior Partner Hunter J. Shkolnik has been appointed to the Plaintiffs’ Steering Committee In re: Zimmer Nexgen Knee Implant Products Liability Litigation (MDL No. 2272) pending in the Northern District of Illinois. Zimmer Inc. did not test the safety of NexGen devices before releasing them on the market. The company gained U.S. Food and Drug Administration (FDA) clearance for the devices by claiming they were substantially equivalent to a device already approved for use. Zimmer knew about problems with NexGen knee replacement implants as early as 2006 when doctors using the devices began reporting problems. Despite hundreds of reports of failure of the NexGen devices, Zimmer denies there is a problem with the devices and they remain on the market.

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Have you taken the antiarrhythmic drug Multaq® and suffered liver damage or cardiovascular event? If you or a loved one suffered severe side effects of Multaq® (dronedarone), you may have cause for a Multaq lawsuit. Our attorneys are reviewing cases of people who suffered severe Multaq side effects or lost a loved one due to side effects of this drug. What is Multaq? Multaq, made by Sanofi-Aventis, is an antiarrhythmic medication that helps the heart beat in normal rhythm. Your doctor may have prescribed this medication to reduce the

risk of hospitalization if you have atrial flutter (AFL) or paroxysmal or persistent atrial fibrillation (AF), an abnormal heart rhythm, and suffered a recent episode but returned to a normal heart rhythm or will receive treatment to restore a normal rhythm. Your doctor may have prescribed Multaq for a use not approved by the U.S. Food and Drug Administration (FDA), called off-label use, such as the treatment of permanent atrial fibrillation (AF). People taking Multaq may have done so without knowing or understanding the risks. Multaq has been linked to potentially fatal liver damage and heart failure and death in some patients. Permanent atrial fibrillation is a condition similar to the conditions the FDA has approved Multaq to treat. Sanofi-Aventis sponsored a clinical trial called the Permanent Atrial Fibrillation Outcome Study Using Dronedarone on Top of Standard Therapy (PALLAS) to determine if Multaq could reduce incidence of stroke, systemic arterial embolism, myocardial infarction, cardiovascular death or unplanned cardiovascular hospitalization in these patients. After preliminary results showed a two-fold increase in death and a two-fold increase in stroke and hospitalization for heart failure in permanent atrial fibrillation patients receiving Multaq compared to those taking a placebo, the PALLAS clinical trial was halted early.

Abercrombie & Fitch Involved in Gift Card Violations?

NBRS is investigating claims that the popular clothing retailer Abercrombie & Fitch advertised a gift-card promotion to

NuvaRing Contraceptive Side Effects Lawsuits ®

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NuvaRing (Etonogestrel/ethinyl estradiol vaginal ring) is a combination hormonal contraceptive ring inserted into a woman’s vagina to prevent pregnancy. The U.S. Food and Drug Administration (FDA) approved it in October of 2001 as the first vaginal birth control ring of its kind, but the product did not come to the U.S. market until July 2002. Organon initially developed NuvaRing. However, the company later became part of Schering-Plough, which then merged in 2009 with Merck & Co. Inc. NuvaRing is a flexible polyethylene ring containing estrogen and a form of progestin, which works by releasing a steady dose of the hormones into the bloodstream via absorption through the vaginal wall. Women wear the ring for three weeks and then remove it for one week before inserting a new NuvaRing. Manufacturers of NuvaRing marketed, promoted and advertised

The FDA made a safety announcement in July 2011 letting doctors know that the agency was reviewing these preliminary results of PALLAS. In December 2011, SanofiAventis updated the labeling to include a black boxed warning, the FDA’s highest warning, stating that people with heart failure or permanent atrial fibrillation should not take the drug because it doubles the rate of cardiovascular death, stroke and heart failure. In January 2011, Sanofi-Aventis also updated the labeling of Multaq to warn of the risks of liver injury after reports of serious liver damage in some patients, including two patients who suffered acute liver failure requiring a liver transplant. You may have a Multaq lawsuit if you, or a family member, suffered any of these side effects while taking the drug: • Liver damage • Liver failure resulting in death or need for a liver transplant • Heart failure • Heart attack • Stroke • Death from cardiovascular event • Other serious Multaq side effects

its customers during the holidays in December 2009 as having no expiration date, but voided the cards on January 30, 2010 and has since rejected use of the cards. Abercrombie’s 2009 holiday promotion promised consumers that for every $100 worth of merchandise they purchased at Abercrombie stores, they would receive a $25 Abercrombie gift card that they could use at any time. The $25 gift cards stated “No expiration date,” yet the company voided the gift cards on January 30, 2010 by eliminating all remaining credit on the cards, making it impossible to redeem. If you have gift cards from Abercrombie & Fitch or any other retailers issued in 2009 or later that the retailer refused to honor because they say the gift card expired, please contact us. This may be in violation of recently enacted consumer protection laws.

this product to physicians and to the public as equally or more safe than oral contraceptive pills. They may have failed to warn women adequately that NuvaRing is associated with serious and potentially fatal side effects, including cardiovascular problems, cardiac arrest, blood clots and strokes. NuvaRing is a third-generation contraceptive because it contains a third-generation progestin called etonogestrel, the biologically active metabolite of desogestrel. Several studies have shown an increased risk of blood clots with contraceptives containing desogestrel rather than other types of progestins. In November 1995, the FDA stated that, “new studies indicate about a two-fold increase in the risk of venous blood clots associated with products containing desogestrel.” A 2003 study in The New England Medical Journal and a two other investigations published in the British Medical Journal in 2009 confirmed that women using contraceptives with thirdgeneration progestins were twice as likely to suffer a blood clot than women taking second-generation contraceptives. NuvaRing may expose women to increased risk of serious or fatal side effects while providing no greater clinical benefit than second-generation contraceptives. We want to hear from women who have used NuvaRing and experienced serious side effects such as blood clot, stroke or heart attack, or families of women who died from these NuvaRing side effects, who may be eligible to file a NuvaRing lawsuit.


Featured articles Mass tort lawsuit filed in Costa Concordia cruise disaster Napoli Bern Ripka Shkolnik LLP, Proner & Proner PC and the Italian consumer group Codacons filed a mass tort lawsuit in Miami, Florida against Costa Concordia and its parent company Carnival Corp. on behalf of hundreds of victims of the cruise liner disaster. Napoli Bern Ripka Shkolnik LLP, a nationally known law firm with headquarters in New York City and Proner & Proner PC, a New York law firm, and the Italian consumer group Codacons filed a mass tort lawsuit in Miami, Florida against Costa Concordia and its parent company Carnival Corp. on behalf of hundreds of victims of the cruise liner disaster. The law suit is open to passengers of all nationalities and is focused on obtaining full compensation for passengers and crew members for personal injuries, pain and suffering, emotional distress, death and property damages. “The law suit has been filed,” said Marc J. Bern, Senior

Partner at the law firm of Napoli Bern Ripka Shkolnik LLP, “We are seeking full compensation for the individuals we represent.” The Costa Concordia collided with rocks off the coast of Tuscany on January 13, 2012. At the time of the collision, the Costa Concordia was carrying 4200 people, 3200 passengers and 1000 crew members. 16 Passengers remain missing and are presumed dead. While Captain Francesco Schettino is currently under house arrest and faces possible charges of manslaughter, shipwreck and abandoning ship, the ship will most likely remain hazardously on its side

9/11 Victim Compensation Fund now accepting claims

while its removal method is determined. The law firms have been contacted by hundreds of passenger victims and crew members who describe the situation as having been chaotic. “The sheer terror of being on a ship of that magnitude going down, you cannot begin to imagine the psychological damage,” said Bern, “and adding insult to injury, the conduct of Carnival Lines in responding to this disaster has been nothing short of outrageous. We believe the reckless conduct of the Captain and the cruise line will ultimately subject the defendants to punitive damages in this matter.”

conditions listed in Title I of the Zadroga Act, or those determined by the WTC Health Program to be WTC- related, are included on the list. Like First Responders, we were disappointed to see that cancer was not included on this list. However, Special Master Sheila L. Birnbaum has vowed to add conditions subsequently identified as WTC-related by the WTC Health Program. We will do all in our power to lobby for and work towards obtaining VCF coverage for cancer claims. On October 4, 2011, the VCF officially reopened and began accepting claims. Those who currently suffer from a listed WTC- related condition have until October 03, 2013 to file a claim. Others will have two years from the date on which they know or should have known they have a WTC-related condition. We can help you file your VCF claim. The Zadroga Act also set a cap on the fees an attorney may charge to handle a VCF claim.

President Obama signed the James Zadroga 9/11 Health and Compensation Act of 2010 (Zadroga Act) into law on January 2, 2011. In the last year, we saw great progress in the administration of this law, beginning in May when the U.S. Attorney General appointed Sheila L. Birnbaum as Special Master of the September 11th Victim Compensation Fund (VCF). In June, she issued proposed regulations and reviewed public comment before announcing the Final Rule governing the fund on August 29th. The Final Rule requires the VCF to maintain a list of presumptively covered conditions that resulted from the air crashes or debris removal. Only health

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Helping 9/11 ill and injured an uphill task From the October 2011 issue of American Police Beat Despite challenges, attorneys Bern and Napoli are waging a war for justice for first responders No one was surprised when eight years ago, a police officer who had contracted cancer while working on the search and recovery effort at the World Trade Center site knocked on the doors of Napoli Bern when he had nowhere else to turn. Marc Bern and Paul Napoli met with the officer. It turns out he had gone to see several other attorneys and none of them would take his case. Marc and Paul have been friends and colleagues for a long time. Their law firm goes to bat for people who have been seriously injured by harmful drugs, chemicals and other toxic substances as well as those who have been victims of financial fraud. They have been squaring off against some of the most powerful interests in the U.S., if not the world, for tens of thousands of victims for close to 30 years. “We have represented clients who have been harmed by diet drugs, pregnant mothers who were prescribed antidepressants like Paxil and then gave birth to babies with serious deformities, and people who developed cancer after being exposed to ionizing radiation spewing out of a nuclear power plant,” Bern explains. During his career, Marc has tried more than 100 cases before a jury and has won hundreds of judgments in excess of $1 million each for sick and injured people. “We are very proud that we have been able to win generous financial settlements over the years on behalf of people who have come to us for help after suffering a wide range of injuries,” Paul Napoli says. “It’s a track record we are proud of.” “When that police officer showed up at our door the Victims Compensation Fund had been closed,” Marc explained, “people like this officer had no way to get compensation for the serious illnesses they were getting.” “We could understand why the other lawyers were reluctant to take these battles on,” Bern continued. “These cases are incredibly expensive to pursue. It’s very difficult to prove beyond a doubt that a cancer or other 7

illness was caused by exposure to a specific toxic substance. “On top of that you are going up against some formidable foes like New York City who have enormous resources at their disposal. But on September 11 our offices were half a block away from the site. We had a constant reminder of the attacks and we felt it was our duty and obligation to try and get justice for New York City’s Bravest and Finest.” Shortly after that first police officer approached Marc and Paul about representation, the flood gates opened. Eight years later the firm is representing thousands of police officers and other first responders who became ill after working at the site in lower Manhattan and the Fresh Kills Landfill in Staten Island. Their work, which both Marc and Paul agree has become more like a mission, has been costly and if they don’t win a settlement on behalf of the client, the firm does not recoup the millions of dollars – now close to $35 million – they spent on the complicated litigation. While the total monetary investment made by Napoli Bern has topped $35 million, the personal sacrifices – long hours and time away from their families – have been great as well. The legal requirements were extremely complicated. Each of the cases had to be filed separately. The firm spent $3,200,000 just on filing fees and that was just for starters. Medical records for each person had to be gathered, hundreds of expert witnesses were hired, payments for special masters had to be made, database experts worked round the clock. It was an overwhelming amount of work. But they kept at it. “What kept us going were the people we met,” Paul said. “One of our clients told us that when he was growing up he wanted nothing more than to work as a New York City cop. As a police officer he spent some time at Ground Zero. A short time later he collapsed while chasing a perp. His lungs gave out. Before September 11 this guy had been a boxer. He had an incredibly active life. “Doctors discovered his lungs had been severely impacted by the toxins he was breathing at the site and he was told he would probably need a double lung transplant. His health continued to decline and he had to retire. The sad thing is there are thousands more just like him.” The good news is that Marc and Paul have been very successful.

They were able to get compensation for people with certain types of cancers and they won a settlement of $800 million to be shared by the 10,000 people they represent. Today the firm is busy advocating on behalf of people who are entitled to compensation from the James Zadroga Act, which was signed into law by President Obama in January. Both Marc Bern and Paul Napoli say they have been continually inspired by the heroic and selfless actions on the part of the public safety personnel who responded to the attacks of 9/11, including the 3000 police officers they represent. Their desire to see that the real heroes of 9/11 would always be remembered prompted them to make a generous gift of $200,000 to the New York City Police Museum in May. “We are committed to making sure that these heroes will never be forgotten,” Paul says. “We have a great police department and the Hall of Heroes at the Police Museum will be a lasting tribute to those brave men and women who served us so well ten years ago on September 11.”

Their desire to see that the real heroes of 9/11 would always be remembered prompted them to make a generous gift of $200,000 to the New York City Police Museum in May.


and resources, as well as the integrity and work ethic of its partners. In addition to adding a new senior partner, the firm recently opened three new offices in Florida, California and Illinois. “With Hunter Shkolnik as a senior partner, and the addition of three new offices, we’ve brought greater depth to our practice, and we are now able to better serve our clients. At the same time we are expanding our team of skilled attorneys and staff, which our clients have always depended on,” Mr. Napoli says. Since Napoli and Bern founded the firm in 1997, it has settled nearly $3 billion worth of claims on behalf of its clients. Much of the firm’s success has been established by taking on difficult or unpopular cases that other lawyers would not or could not handle. Led by senior partner Napoli, the firm recently settled the groundbreaking and historic World Trade Center litigation for $817 million, after eight years of hard fought litigation on behalf of 10,000 rescue and recovery workers who developed illnesses caused by exposure to toxic dust. The firm’s impressive track record is also a product of its ambition to be at the forefront of litigation. Senior partner Bern and the firm were the first to file a lawsuit against Takeda Pharmaceuticals over the company’s diabetes medication Actos for causing bladder cancer. The firm’s securities and commercial litigation department also recently filed an arbitration claim against David Lerner Associates, Inc. for violations in connection with the Apple Real Estate Investment Trusts. The firm is active in environmental cases, having represented more than 25 municipalities and cities in New York, Rhode Island, and Florida in the MTBE litigation against most major gasoline and oil companies for contaminating underground water supplies. Currently the firm is focusing its efforts on suing gas companies for contaminating water and air from gas drilling operations and fracking. While results are important to the firm, it is also very involved in giving back to the community. Attorneys at the firm have made significant donations to the Hall of Heroes at the New York City Police Museum, the 9/11 Responders Remembered Memorial Park, the FealGood Foundation, and the Remembering 9/11 exhibit at the International Center of Photography.

Firm Partners featured in New York Magazine Napoli Bern Ripka Shkolnik, LLP is a nationally known and wellrecognized law firm that focuses on all types of catastrophic injury, consumer class actions, asbestos, and toxic environmental cases. The firm’s dedicated and hardworking lawyers are led by Paul J. Napoli, Marc J. Bern, and Alan Ripka, as well as Hunter J. Shkolnik, who joined the firm as a senior partner. All four senior partners are accomplished trial attorneys with the expertise to handle the most complex cases in personal injury, mass torts, securities, asbestos, and consumer class actions. Shkolnik has specialized in litigating significant personal injury cases involving drug, medical device, automobile, heavy truck- and aviation related product liability, and medical malpractice actions for 25 years. His decision to join the firm stemmed from his respect for its successes, legal talent,

Life insurance companies may be keeping $1 billion in unclaimed benefits Life insurance policyholders should have peace of mind that they have made arrangements providing financial stability for their loved ones after they pass away. Unfortunately, their designated beneficiaries may not be receiving the benefits they are entitled due to unfair practices by certain life insurance companies. Life insurance companies may not be doing enough to identify deceased policyholders and make payouts to their designated beneficiaries. Several state regulators, along with the National Association of Insurance Commissioners, are looking into these practices and the failure of insurance companies to turn unclaimed insurance policy proceeds over to the state as required. According to one Florida regulator, “Life insurers may be keeping $1 billion in unclaimed benefits owed to policy holders, beneficiaries or states.” Persons who are 65 years of age or older and have “whole life” or “universal life insurance” with any life insurance company may find their death benefits and beneficiaries’ rights at risk. People who have lost a loved one may not even know they are the policy beneficiaries and are entitled to these benefits. Napoli Bern Ripka Shkolnik LLP is currently investigating claims into the payment practices of these life insurance companies.

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NBRS files arbitration claim against David Lerner Associates for the sale of Apple REITS Napoli Bern Ripka Shkolnik, LLP (NBRS) filed an arbitration claim on behalf of an elderly beneficiary of a trust against David Lerner Associates, Inc. (”David Lerner”) for unsuitable recommendations, misrepresentations and other violations in connection with the Apple Real Estate Investment Trusts (REITs). Since 1992, David Lerner has earned nearly $600 million in commissions for selling the Apple REITs. NBRS is currently investigating Apple REIT Six, Apple REIT Seven, Apple REIT Eight, Apple REIT Nine and Apple REIT Ten, which almost exclusively invested in extended stay hotels. According to the complaint, the Apple REITs are alleged to be improperly valued and were sold to investors through misleading practices. On May 27, 2011, Financial Industry Regulatory Authority’s (FINRA) Department of Enforcement filed a complaint against David Lerner for the sale of the Apple REITs and alleged David Lerner targeted unsophisticated and elderly customers, recommended unsuitable investments without adequate due diligence, made material misrepresentations and omissions, and maintained unfair trade practices. According to FINRA’s complaint, David Lerner priced the Apple REITs on client’s statements at $11 per share despite major fluctuations in the commercial real estate market, net income declines, increased

Helping people file a Social Security Disability claim The process of filing a Social Security Disability claim can be lengthy and overwhelming. The complicated application process may take as long as several years and involves examination by healthcare providers and compiling all the necessary medical history documentation and paperwork

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leverage through borrowings, and return of capital to investors through distributions. The beneficiary of the trust, like many other investors, allegedly was not made aware of these risks and now sues to recover the initial investment. The law offices of Napoli Bern Ripka Shkolnik, LLP are available to represent defrauded David Lerner and Apple REIT investors. Our attorneys have successfully represented thousands of investors in claims against their brokers and broker-dealers for claims, including suitability, misrepresentation and/or omissions, churning, negligence, breach of contract, breach of fiduciary duty, and other violations of the law. If you invested in: • Apple REIT 6 • Apple REIT 7 • Apple REIT 8 • Apple REIT 9 • Apple REIT 10 Call Napoli Bern Ripka Shkolnik, LLP today for a free consultation.

needed in order to prove your physical or mental disability to the government. The government has a very strict definition of “disability” and the guidelines associated with receiving social security disability benefits are extensive. The government denies 64% of initial disability claim applications. Sadly, it often denies people who deserve disability benefits simply because they did not provide the proper evidence proving their disability. There are options if your Social Security Disability claim is denied, including requesting a Reconsideration and presenting the claim before an Administrative Law Judge, Appeals Council and ultimately to a Federal District Court. You have the right to have an attorney represent you. If you or someone you know needs to file a Social Security Disability claim or has filed a claim and been denied, contact us today. Our attorneys can assist you by handling communications with the Social Security Administration (and/or state agencies), filling out the necessary paperwork, working with your health care providers to ensure comprehensive medical fact gathering, requesting Reconsideration if the initial claim is denied, and by representing you before an Administrative Law Judge or Court if necessary.


Filing a Workers’ Compensation claim if you are ill or injured due to your job Being injured on the job or having an occupational disease can lead to financial hardship for your family. Unfortunately, no employee is immune to work related injury or disease. While the construction industry has the highest number of workplace injuries, employees can suffer injuries in any work environment, even an office. Workplace injuries are usually the result of sudden events. However, occupational diseases often progress over time due to cumulative exposure on the job. Both can be permanent or even fatal. laws. These parameters will determine the time-period you have in which to notify your employer and the statute of limitations on filing a formal workers’ compensation claim.

If you suffered an on the job injury or work related disease, you may eligible to file a workers’ compensation claim. Employers carry a workers’ compensation insurance policy to provide wage replacement, medical care and in some cases death benefits to the family.

You or your family could lose valuable benefits if you make mistakes in navigating the complex workers’ compensation claim process. You have the right to have an attorney represent you.

The process of filing your claim will depend on whether you work for a private company or local, state or the federal government, as well as ever-changing worker’s compensation

Gana

Weinstein

Broker-dealer licensing: Understanding the role and limitations of the Series 6 license By Adam J. Gana, Esq., and Adam Weinstein, Esq. Napoli Bern Ripka Shkolnik LLP View this article in its entirety at: http://www.nbrlawfirm.com/Newsletters

Broker registration is the “keystone” of broker-dealer regulation.1 The registration requirements are designed to ensure that “securities are [only] sold by a salesman who understands and appreciates both the nature of the securities he sells and his responsibilities to the investor to whom he sells.”2

surrounding broker registration is confusing and in registration. For example, in Exchange Services v. Securities and Exchange Commission, the 4th Circuit some ways contradictory. Brokers are only permitted to conduct business and sell upheld an SEC order and the National Association of securities covered by the licenses the broker maintains. Securities Dealers’5 decision that required discount This article explores the conflicts in the licensing system brokerage employees to register. The court found that and whether the system achieves its primary goal: to any employee interactions with the public regarding the instill public confidence that brokers are properly trained purchase of securities required registration even though those interactions represented only a small fraction of and qualified to recommend securities to investors. the employees’ responsibilities.6 THE REGISTRATION REQUIREMENT “The regular and continuous contact order takers have The Securities Exchange Act of 1934 creates an with the public is reasonable rationale for the policy,” expansive broker-dealer registration requirement that the court said. “These personnel may stray from their requires all people who interact with the public limited duties during public contact, resulting in harm regarding securities to register, not just people who to investors. Such risk and the overriding concern for actually recommend securities transactions.3 protection of public interest are sound bases for the Accordingly, the registration requirement ensures that SEC’s reliance on the policy denying exemption status all people who deal with the public concerning the sale for the order takers.7 of securities meet minimum competency requirements. It is clear the Exchange Act broadly requires people to Courts examining the registration requirement under register when communicating with the public and the Exchange Act have cited strong policy conducting brokerage activity. considerations for requiring broker registration. In Eastside Church of Christ v. National Plan the 5th U.S. However, the creation of various registration license types, each covering only certain products, complicates Circuit Court of Appeals explained: regulatory and compliance requirements and creates a The requirements that brokers and dealers register is of conflict between limiting broker qualifications by the utmost importance in effecting the purposes of the product type and ensuring that brokers are minimally [Exchange] Act. It is through the registration competent to deal with the public. requirement that some discipline may be exercised over those who may engage in the securities business and Continue reading at: http://www.nbrlawfirm.com/Newsletters by which necessary standards may be established with Despite the importance of registration, respect to training, experience, and records.4

Despite the importance of registration, it is a subject that causes confusion among investors and even some In addition, courts have stated that even minimum and financial advisers. Further, the securities law ancillary contacts with the investing public require

it causes confusion among investors and even some financial advisers.

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350 5th Avenue, Suite 7413 • New York, NY 10118 www.NapoliBern.com • 1-888-529-4669 Representing clients nationwide with offices in New York, New Jersey, Pennsylvania, Florida, California and Illinois

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What our clients are saying: “I want to thank you and your team for a satisfactory outcome of an issue that required me to step outside of my confront zone. i.e. The need to engage the Financial Industry Regulatory Authority (FINRA) to remind a tier one financial services company that it mismanaged my retirement accounts. I recommend your service to anyone that had a bad experience with a financial services company.” — B.R. “Received my check in the mail yesterday. The hypothetical became reality. Kudos and thanks to you and the firm for your creative work and persistence, which paid off for you and your clients. Well done. Thanks again.” — T.S. “Thank you and all your staff for your collective quality service and obvious expertise in dealing so successfully in our claim.” — GEB

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LABOR LAW

The Verdict  

2012 Volume One

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