Month: January 2012

Week Adjourned: 1.27.12

A weekly wrap up of top class action lawsuits and lawsuit settlements for the week ending January 27,2012.

Top Class Actions

Ex Pro Football Players go head to head with NFL Over Concussions. Yup—that’s right. The NFL is facing a class action lawsuit filed on behalf of all former NFL players, including seven named players and four spouses over concussion and related health effects.

The named players include former Philadelphia Eagles Ron Solt, Joe Panos, and Rich Miano. The lawsuit charges that the NFL and other defendants intentionally and fraudulently misrepresented and/or concealed medical evidence about the short- and long-term risks regarding repetitive traumatic brain injury and concussions and failed to warn players that they risked permanent brain damage if they returned to play too soon after sustaining a concussion.

Ron Solt, age 50, was an all-star guard for the Eagles from 1988 to 1991 and also played for the Indianapolis Colts, playing 10 seasons in all from 1984 to 1993. He suffered at least one concussion during an NFL game while with the Eagles, as well as multiple head traumas and concussions during practice that were never medically diagnosed. He now suffers from substantial memory loss and persistent ringing in his ears.

Joe Panos, age 41, played as an offensive lineman in the NFL from 1994 to 2000 and was with the Eagles from 1994 to 1997. He sustained concussions while with the Eagles and Buffalo Bills. He currently experiences headaches, memory loss, irritability, rage, mood swings, and sleeplessness.

Rich Miano, age 49, played as a defensive back for 10 seasons in the NFL between 1985 and 1995 and was with the Eagles from 1991 to 1994. He is now associate head coach of the University of Hawaii football team. He sustained at least one concussion while playing but is currently asymptomatic.

Gennaro DiNapoli, age 36, was an NFL center and guard from 1998 to 2004 who sustained repeated head impacts during his NFL career. He suffers from severe depression, memory loss, headaches, anxiety and mood swings.

Adam Haayer, age 34, was an offensive lineman from 2001 to 2006 for four teams. He had at least four concussions or concussion-like symptoms and deals with memory loss, depression, and anxiety. Daniel Buenning, age 30, played as an offensive lineman in the NFL for four seasons from 2005 to 2008. He suffers from substantial memory loss, depression, trouble with concentration, short attention span, and mood swings.

Craig Heimburger, age 34, played on the offensive line for four teams between 1999 and 2002. He sustained multiple head impacts and concussions and suffers from dizziness, memory loss, and intense headaches.

Also named in the complaints were the wives of several players including Lori Miano, Summer Haayer, Ashley Buenning and Dawn Heimburger.

Lawyers representing the plaintiffs said this action is necessary because the NFL knew about the debilitating and permanent effects of head injuries and concussions that regularly occur among professional players, yet ignored and actively concealed the risks.

The lawsuit charges that the NFL voluntarily joined the scientific research as well as public and private discussions regarding the relationship between concussions and brain impairment when it created the Mild Traumatic Brain Injury (MTBI) Committee in 1994. Rather than naming a noted neurologist to chair this committee, it appointed Dr. Elliott Pellman, a rheumatologist who was a paid physician and trainer for the New York Jets, a conflict of interest, and had training in the treatment of joints and muscles, not head injuries. While the committee was established with the stated purpose of researching and lessening the impact of concussions on NFL players, it failed to inform them of the true risks associated with head trauma.

Although athletes who suffered brain trauma in other professional sports were restricted from playing full games or even seasons, NFL players with similar head injuries were regularly returned to play with devastating consequences.

The lawsuit seeks medical monitoring, compensation, and financial recovery for the short-term, long-term, and chronic injuries, financial and intangible losses, and expenses for the individual former and present NFL players and their spouses.

What can I say—it’s a wake-up call a long time in the making.

Top Settlements

Wonder if Payless texted this piece of news…A proposed settlement (the “Settlement Agreement”) has been reached in the class action lawsuit against Payless ShoeSource, Inc. (“Payless” or “Defendant”). You may be a Member of the Settlement Class and might be eligible to receive a merchandise certificate worth up to $25 if you are a person who received one or more text messages promoting Payless products between October 29, 2005 and October 4, 2010. If you are a Settlement Class Member and the Court gives final approval to the Settlement Agreement:

You may be entitled to receive a $25 merchandise certificate (a “Settlement Payment”) or a lesser pro rata amount if the total of all claims exceeds $6,000,000.

If you are a Settlement Class Member and would like to receive your Settlement Payment, you must submit a Claim Form, either through the mail or by filling out a claim form on the claims administrator’s website. You will be giving up legal claims against Defendant and other related entities. Your claim must be submitted or postmarked no later than February 6, 2012. To find out more about the terms of the settlement and how to qualify or be excluded—visit paylesstextsettlement.com.

One could argue this lawsuit went into overtime… but it looks like a happy ending… for the employees that is. An announcement this week—that Novartis Pharmaceuticals Corporation (NPC) has agreed to pay $99 million to settle a nationwide wage and hour class action brought by 7000 Novartis sales reps who allege NPC reps weren’t paid overtime.

The case has been working its way through the courts since 2006, and stems from claims that the sales reps don’t qualify as “outside sales” employees which would make them exempt from overtime pay. This issue has been the source of several wage and hour class actions brought by pharma sales reps from different companies who have alleged that Fair Labor Standards Act exemptions don’t apply to them.

Ok—That’s a wrap for this week. See you at the bar!

Week Adjourned: 1.21.12

A weekly wrap up of top class action lawsuits and settlements for the week ending January 21, 2012

Top Class Actions

Holy HELOC Batman—It’s been certified! A class action lawsuit brought by a couple in Cupertino in 2009—and which has been through 4 attempts to get certified—finally got the nod from a federal court judge this past week. And this one could affect many people.

The back story—Washington Mutual and JPMorgan Chase (Chase has since acquired WaMu) allegedly reduced credit limits on Jeffrey and Jenifer Schulken’s home equity line of credit (HELOC) without valid reasons.

Specifically, the HELOC class action lawsuit alleges violations of the Truth in Lending Act violations and unfair competition among other claims. The Cupertino couple allege they were informed by Chase, by letter, that their home equity credit lines would be suspended because they did not have enough monthly income to satisfy their debts. The Schulken’s allege that the monthly income of $11,200 that Chase claimed the couple stated on their applications, was inaccurate, that they had never “provided such an inflated income figure to WaMu, and that if the Schulkens’ file indicated such an income, then WaMu had intentionally misrepresented their income.”

After four attempts by Chase to have the complaint dismissed, two classes have now been certified: the “inability to verify” class, and a subclass of borrowers whose credit lines were suspended because Chase could not verify their financial circumstances.

The plaintiffs’ class definition to include “only those members who signed contracts that (1) arise from heritage WaMu customers, and (2) state that the borrower must provide, upon the lender’s request, ‘a current financial statement, new credit application, or both.'”

Top Settlements

Couple of big pharma settlements announced this week…

At the top of the hit parade we have Johnson & Johnson (J&J). They have reportedly agreed to pay $158 million to settle a lawsuit in Texas that alleges the company defrauded the state by misleading doctors about its antipsychotic drug Risperdal.

The deal will put an end to claims that J&J marketed Risperdal off label—for unapproved uses—and downplayed health risks associated with the drug. Texas had originally sought at least $579 million in damages. Well, shoot for the stars—isn’t that how the saying goes?

Bloomberg reported that the settlement follows some rather incriminating testimony given in court last week. Testimony that included an expert eye witness stating that J&J hid data showing Risperdal could cause weight gain that could lead to diabetes. According to Bloomberg “the witness also alleged that J&J had key study [ Study 113] results several years before it added warnings about weight gain to the drug’s label.”

Bloomberg notes in its report that J&J’s unpublished studies—ah—yes—more than one—were cited in a South Carolina case that brought a $327 million judgment against the pharmaceutical manufacturer. “It is apparent to this court that this information was not disclosed because if did not fit the marketing department’s vision for the promotion and marketing of this drug,” Judge Roger Couch wrote in a ruling (as quoted by Bloomberg). Amen to that.

And singing from a similar song sheet—we have Merck. It was announced this week that they have agreed to pay up to $37 million to settle a Canadian Vioxx class action lawsuit. Included in the settlement is $10 million for costs and fees. Plaintiffs’ lawyer said up to 2,000 Canadians may be eligible for compensation.

FYI—Vioxx (Rofecoxib) was on the market from 1999 to 2004, prescribed to patients as a pain-reliever for arthritis, osteoarthritis, menstrual pain, and other acute pain. Vioxx was recalled and pulled off the market when it was linked to deadly side effects heart attack, stroke, kidney damage, and arrythmia. This led to billions of dollars’ worth of litigation, including a $4.85 billion settlement that covers most of the U.S. plaintiffs.

Ok—That’s a wrap for this week. See you at the bar!

Week Adjourned: 1.13.12

A wrap up of the week’s top class action lawsuits and settlements, for the week ending January 13, 2012.

Top Class Actions

Diagnosis: Discrimination? Following in the footsteps of the Novartis and Merck suits, one has to wonder if discrimination is standard practice in this industry…

A $100 million gender discrimination employment class action lawsuit has been filed against Quest Diagnostics Inc., and AmeriPath, Inc., (collectively known as “Quest”) in U.S. District Court for the District of New Jersey.

The complaint details the systemic discriminatory treatment of female sales representatives company-wide by the self-proclaimed “world leader in diagnostic testing, information and services.”

Indiana resident Erin Beery and Florida resident Heather Traeger, both of them current Quest employees in the AmeriPath division, filed the lawsuit on behalf of themselves and a class of similarly-situated sales reps employed from February 17, 2010 to the present. Beery is an Executive Territory Manager in Quest’s Anatomical Pathology Sales Division in Indianapolis; Traeger is Senior Executive Territory Manager in the Anatomical Pathology Sales Division in Bradenton.

The complaint details a wide range of discriminatory practices in the selection, promotion and advancement of sales reps at Quest Diagnostics and AmeriPath, including discrimination on the basis of pregnancy and caretaking responsibilities in violation of Title VII of the Civil Rights Act of 1964 and other federal statutes.

In addition, both of the named plaintiffs in the case have individual claims of disparate pay, differential treatment, gender hostility, the creation of a hostile work environment and retaliation in the workplace affecting them in violation of Title VII of the Civil Rights Act of 1964 and other federal statutes.

According to Beery and Traeger, high ranking company officials within Quest’s predominately-male management team foster an environment detrimental to the success and advancement of female employees. They describe “old boys’ club” attitudes that pervade the enterprise, including forcing women to work under less favorable circumstances than their male counterparts and denying them the educational and job advancement opportunities afforded men in similar positions.

The complaint asserts that Quest’s policies do not provide sufficient oversight or safety measures to protect women from intentional and overt discrimination of even facially-neutral policies, so that female employees discriminated against have no recourse within the company. It cites an absence of internal incentives or disciplinary measures to ensure company executives and managers comply with company discrimination policies and equal employment laws.

The lawsuit also asserts that a significant number of the women who work for Quest have been and are affected by the same discriminatory employment policies, practices and procedures to which Beery and Traeger were subjected, justifying the certification of the class.

Scanning Scam? And now for our weekly consumer fraud lawsuit. This one was filed against Symantec Corp alleging the software manufacturer attempts to convince consumers to buy its products by providing misleading information about the functionality of their computers.

Filed by James Gross, of Washington state, the lawsuit claims that Symantec distributes trial versions of its products that scan a consumer’s system, then report that harmful errors, privacy risks and other problems exists on the PC, regardless of the actual operating status of the computer.

The lawsuit also claims that Symantec uses that scanning software to market Norton Utilities, PC Tools Registry Mechanic and PC Tools Performance Toolkit software. Norton Utilities and PC Tools are products that Symantec claims help improve the performance of personal computers and keep online activities private. The lawsuit claims that Norton Utilities and PC Tools are forms of “scareware,” a common type of malicious software that causes pop-up messages to appear on computers telling users that they are infected with a virus.

“The truth, however, is that the scareware does not actually perform any meaningful evaluation of the user’s computer system, or of the supposed ‘errors’ detected by the software,” the complaint claims. What scareware does do, in my experience, is suck up your time and send your stress levels through the roof—like you’ve got nothing better to do!

“The scareware does not, and cannot, actually perform the valuable tasks represented by Symantec through its websites, advertising, and in-software display screens.” No comment.

Lawyers representing the plaintiffs state that the software is falsely informing the consumer that errors are high priority and in addition it is falsely informing the consumer that their overall system health and privacy health is low. Symantec makes Norton 360, Norton Internet Security and Norton AntiVirus software.

Top Settlement

Nationwide Insurance Settlement. Well, it’s a start. This week, a federal court preliminarily approved a settlement with Nationwide Insurance that resolves allegations brought in a federal class action lawsuit, that the insurer improperly reduced or denied insurance benefits to residents in Delaware. Nice.

What’s the beef? The lawsuit claims that Nationwide improperly reduced or denied insurance benefits for medical services after submitting medical bills to a computer-based bill review audit. Specifically, the lawsuit challenges reductions in payment for those services based upon a reasonableness or usual and customary charge bill review administered by Mitchell Medical. Among other things, the lawsuit challenges Nationwide’s right to conduct such bill review under the applicable policies, the disclosure that such bill review would be conducted, and the manner in which the bill review was conducted. Nationwide denies any wrongdoing, and contends that review of medical bill pricing protects against excessive charges and helps to preserve insurance benefits.

Here’s the skinny on qualifying: “You are a member of the “Settlement Class” and a “Settlement Class Member” covered by the settlement if you fall within the following class definition adopted by the Court:

All persons, and their medical providers or other assignees, who (a) submitted first-party medical expense claims to Nationwide pursuant to Nationwide’s Delaware automobile insurance policy No-Fault coverage; (b) had their claim submitted by Nationwide to computer pricing review during the period from September 1, 2004 through December 31, 2007; (c) received or were tendered payment but in an amount less than the submitted medical charges based upon the pricing review of the charges; and (d) received or were tendered an amount less than the stated policy limits.”

You can find out more about the Nationwide insurance settlement here.

Ok – That’s a wrap for this week. See you at the bar!

Week Adjourned: 1.6.12

A wrap of the week’s top class action lawsuits and settlements for the week ending January 6, 2012.

Top Class Actions

Pay your staff overtime? Just do it! A former employee of the San Francisco NikeTown Store has filed a wages and overtime class action complaint against Nike alleging that the sporting goods manufacturer failed to compensate him for overtime, meals and rest breaks as well as any additional shifts he worked. The lawsuit has two (2) potential classes: “All employees of Defendants who worked as Sales Associates, or any other non-exempt job position, who were subject to Defendants’ policy of searching Defendants’ employees upon exiting one of Defendants’ store locations in California from December 28, 2007, to the date of filing this Complaint.” This group is hereinafter referred to as the “California Class.” This period of time is hereinafter referred to as the “California Class Period.”

And, “All employees of Defendants who worked as Sales Associates, or any other non-exempt job position, who were subject to Defendants’ policy of searching Defendants’ employees upon exiting one of Defendants’ store locations in the United States of America from December 28, 2008, to the date of filing this Complaint.” This group is hereinafter referred to as the “Nationwide Class.” This period of time is hereinafter referred to as the “Nationwide Class Period.”

The employment lawsuit was filed by Webster Proctor, on behalf of himself and behalf of others similarly situated. According to the complaint, Proctor was employed by Nike from approximately April 2010 until approximately May 2011. During that time he alleges in the lawsuit that he generally worked four (4) 8-hour shifts per week and was deprived of pay for all the hours he worked, meal and rest breaks, and proper overtime pay.

Specifically, the wages and hour class action lawsuit alleges: failure to compensate employees for all hours worked; failure to pay overtime; failure to provide meal and rest periods; failure to furnish accurate wage statements; failure to maintain employee time records; and unfair competition.

Top Settlements

Is it snake oil? An unfair business practices lawsuit against dietary supplement distributors Iovate Health Sciences Inc., and Iovate Health Sciences USA Inc., look certain to be settled as the companies have agreed to pay $1.5 million in civil penalties and costs. This is reportedly the second largest multidistrict attorney dietary supplement settlement of its kind in California.

The lawsuit was brought by the District Attorney’s Office in Santa Cruz, Napa, Alameda, Marin, Monterey,

Pages: Page 1, Page 2