Month: February 2013

Week Adjourned: 2.22.13 – Carnival Cruises, Merrill Lynch, Toyota

Carnival gets sued, Toyota pays up, and Merrill Lynch settles in this week’s edition of Week Adjourned–the weekly wrap of top class action lawsuits and settlements for the week ending February 22, 2013.

Carnival CruiseTop Class Action Lawsuits

“The Fun Ships?” Fun for who? While everyone jokes about the trip from hell—who hasn’t had a bad holiday experience—this time it really happened. So bring on the lawsuits. Possibly the first class action out the gate was filed against Carnival this week, by Miami based maritime law firm Lipcon, Margulies, Alsina & Winkleman, PA. on behalf of passengers who were onboard the Carnival Triumph.

According to the Carnival class action lawsuit, the conditions Carnival Triumph passengers were subjected to onboard after the vessel was impaled from a fire were hazardous to their health. I would have said that was putting it mildly?

Michael A. Winkleman, an experienced maritime lawyer with the Lipcon firm, discussed the fire onboard the Triumph on a recent interview on Fox Network’s ‘Fox & Friends’, detailing the conditions passengers had to suffer through. Mr. Winkleman also appeared on the network’s ‘America Live with Megyn Kelly’, ‘Justice with Judge Jeanine’ and ‘The O’Reilly Factor’ shows. Lipcon’s Jason R. Margulies was interviewed by CNN regarding the situation.

According to the firm, cruise lines are responsible for the safety of everyone on board, including passengers and crew members, which entails making sure illness and disease don’t spread among those aboard a vessel. When an incident onboard a cruise vessel or a boat accident does take place, whether it is a medical complication resulting from disease, an injury related to a slip and fall, or a passenger going overboard, the line may be found at least partially responsible for any injuries or fatalities.

Apart from the shipboard conditions caused by the cruise ship fire, Lipcon also points out that Carnival’s decision to tow the Triumph to Mobile, instead of the closer port of Progreso, Mexico, caused passengers to endure more time onboard the disabled vessel than was necessary, prolonging their exposure to disease, accidents and trauma.

Attorney Margulies said “an evacuation in Progreso would have allowed Carnival to contain its passengers’ suffering and would have enabled Carnival, from civilization, to systematically coordinate the passengers’ transport back to the United States.” Maritime lawyer Margulies further stated that “If investigations uncover that either the fire itself or the delay in docking may have contributed to any illnesses or injuries onboard the Carnival Triumph, this can be considered a violation of passenger safety.”

Unfortunately, some cruise lines, including Carnival, have stipulations on their ticket contracts that make it difficult for passengers and crewmembers to obtain their rightful benefits, including medical care and money damages. Because Carnival in particular is not a U.S. corporation, Mr. Winkleman explained to Fox News that the line is “not subject to U.S. taxes or labor laws,” a factor which prevents victims from making a full recovery following cruise ship accidents and injuries.

Although Carnival released a statement on its website explaining Triumph passengers will be compensated with a “full refund of the cruise and transportation expenses, a future cruise credit equal to the amount paid for the voyage, reimbursement of all shipboard purchases made during the voyage, with the exception of casino, gift shop and artwork purchases, and further compensation of $500 per person,” Mr. Winkleman said passengers do not have to settle for this meager compensation and that the firm has found sufficient evidence providing grounds for Triumph victims to file a proposed class action lawsuit against Carnival.

My question—what about the crew—conditions would have been just as bad for them—if not worse? Can they sue?

Top Settlements

Merrill Lynch OT Settlement. Former and current Merrill Lynch employees will be celebrating this week, after having an agreement on a $12 million settlement in their unpaid overtime class action. The Merrill Lynch lawsuit was brought by employees who provided support services to brokers, and still has to receive final court approval—but it looks destined for a happy ending.

I would imagine support staff to brokers in banks and financial institutions the world over could relate to claims in this lawsuit. Filed in June 2011, The unpaid overtime class action alleges Merrill Lynch client associates were paid overtime based on an incorrect and low regular rate of pay and that Merrill failed to properly record and account for all overtime hours they worked. Client associates typically handle paperwork for brokers, and some can assist with order entries.

The $12 million fund will provide financial recovery for client associates who worked for Merrill Lynch between 2010 and 2012. The time period is longer for client associates who were employed in California, New York, Maryland and Washington. Maybe the start of a trend—I’m betting the support staff aren’t pulling down seven figure salaries.

Is this Déjà vu? Some 20 million current and former owners of Toyota vehicles may share in a $1 billion settlement of an Toyota Unintended Acceleration class action lawsuit, if the proposed settlement received final court approval.

The Toyota settlement would resolve a series of class action lawsuits, consolidated in 2010 as In Re: Toyota Motor Corp. Unintended Acceleration Marketing, Sales Practices and Products Liability Litigation.

In the consolidated action, plaintiffs claimed that certain Toyota, Scion and Lexus vehicles equipped with electronic throttle control systems (“ETCS”) are defective and can experience acceleration that is unintended by the driver. This alleged defect has resulted in a drop in the value of the vehicles. Consequently, the plaintiffs claim breach of warranties, unjust enrichment, and violations of various state laws.

Short list of must knows?

Eligible members of the class include any person, entity or organization who, at any time before December 28, 2012, owned, purchased, leased and/or insured for residual value one several models of Toyota, Lexus and Scion vehicles.

If you are a class member, you may be entitled to one or more of the following:

  • A cash payment for alleged loss upon certain disposition of a Subject Vehicle during the period from September 1, 2009 and December 31, 2010 or upon early lease termination following an alleged unintended acceleration event that you reported.
  • Installation of a brake override system (BOS) in certain Subject Vehicles at no charge.
  • A cash payment if your Subject Vehicle is not a hybrid and is not eligible for a BOS.
  • Participation in a Customer Support Program.
  • Other settlement benefits.

For complete information on your rights in the Toyota unintended acceleration class action lawsuit settlement, visit: ToyotaELSettlement.com.

Ok—that’s this week done and dusted. See you at the bar and Happy Friday!

Week Adjourned: 2.15.13 – Gender Discrimination, Motrin, Zetia & Vytorin

Motrin, Zetia, Vytorin and gender discrimination are top stories in this week’s Weed Adjorned wrap on top class action lawsuits and settlements for the week ending February 15, 2013.

Top Class Action Lawsuits

Gender discrimination? Sorry—what year is this? Maybe the year Daiichi Sankyo gets nailed for the unlawful practice, if the allegations are true…Allegations made by six current and former female pharmaceutical sales professionals who filed a $100 million class and collective action gender discrimination lawsuit against the Japanese Pharmaceutical company.

Filed in the US District Court for the Northern District of California, these women seek to end pervasive gender discrimination in their workplace on behalf of themselves and a class of several hundred female Daiichi Sankyo sales professionals who have worked for the company in the United States.

The short version, like we don’t know it chapter and verse by now, is that Daiichi Sankyo pays female sales employees less than male employees for doing the same work; promotes or advances female sales employees at a slower rate than male sales employees; treats pregnant employees and working mothers of young children adversely compared to non-pregnant employees, male employees, or non-caregivers; and subjects women to other discriminatory terms and conditions of employment.

According to the Daiichi Sankyo lawsuit, a discrete group of predominantly male Daiichi executives and senior sales managers keep a tight rein on employment decisions, including decisions regarding sales employees’ compensation, advancement, and other terms and conditions of employment. Through this male dominated leadership structure, the Company has approved and implemented policies, practices and decisions that have systemically discriminated against female employees. No, this is not a Mad Men script. This, sadly, is real life.

Just in case there are any doubts as the validity of the allegations, the Plaintiffs cite Daiichi Sankyo’s violations of Title VII of the Civil Rights Act of 1964 and the federal Equal Pay Act of 1963, as well as the California Fair Employment and Housing Act, the California Equal Pay Act and the California Unfair Business Practices Act in today’s Complaint. Umm… 1963—1964 the laws changed and yet we’re still fighting for gender equality in 2013. No comment.

Top Settlements

Major Motrin Award. A landmark award this week—but brace yourself for the backstory. Boston, MA was the scene of a personal injury lawsuit against Johnson & Johnson (J&J) and its subsidiary, McNeil-PPC Inc, that ended this week with the jury awarding $63 million in damages to the Reckis family who brought the lawsuit involving Motrin.

The two pharmaceutical companies were ordered to pay 16-year old Samantha Reckis $50 million in compensatory damages, and her parents $6.5 million each.

What happened? Samantha suffered toxic epidermal necrolysis (TEN), a late stage of Stevens Johnson Syndrome (SJS), as a result of taking Motrin brand ibuprofen. Just seven-years old at the time, Samantha was given Motrin brand ibuprofen by her parents, and shortly thereafter began presenting with symptoms of TEN, which resulted in her losing 90 percent of her skin and her eyesight.

Samantha also suffered brain damage involving her short-term memory, and surgeons had to drill through her skull to relieve some pressure on the brain, the Reckis’ attorney noted. Additionally, Samantha suffered damage to her respiratory system, in which her lungs were burnt, leaving her with only 20 percent lung capacity.

Samantha had taken Motrin previously with no side effects. However, in 2003, the day after Thanksgiving, her parents began giving her the medication to reduce fever. The resulting toxic epidermal necrolysis, which can be fatal, causing inflammation of the mucus membranes and eyes and is marked by a rash that burns off the outer layer of skin, had her physicians puzzled. Samantha suffered inflammation of her throat, mouth, eyes, esophagus, intestinal tract, respiratory system and reproductive system. Her doctors were forced to put her in a medically induced coma.

The family filed the lawsuit in 2007. The trial took five weeks. The Reckis’ claimed that Samantha was blinded by Motrin and alleged that Johnson & Johnson failed to warn consumers that the drug could cause life-threatening reactions. Another positive, in addition to the award, is that while Samantha has to work twice as hard as her fellow classmates, she is in school and is an honor student, demonstrating a remarkable spirit.

Zetia & Vytorin False Statements Settlement. Here’s another record-breaking settlement from the world of pharmaceuticals—this time it’s a securities class action settlement. Actually, make that two securities settlements totaling $688 million. Whoppa! The securities class actions are pending against Merck & Co. Inc. (“Merck”), Schering-Plough Corporation (“Schering”), Merck/Schering-Plough Pharmaceuticals, certain of the Companies’ directors and officers, and the underwriters of a 2007 Schering stock offering over allegations the companies made false and misleading statements about results from a clinical trial called “ENHANCE” involving the anti-cholesterol drugs Zetia and Vytorin.

The actions, currently pending in the US District Court for the District of New Jersey before Judge Dennis M. Cavanaugh, are In re Schering-Plough Corporation/ENHANCE Securities Litigation, Master File No. 08-397, which settled for $473 million; and In re Merck & Co., Inc. Vytorin/Zetia Securities Litigation, Master File No. 08-2177, which settled for $215 million.

The two class actions stem from claims that Merck and Schering (which merged in November 2009) artificially inflated their securities by concealing material information and making false and misleading statements regarding the blockbuster anti-cholesterol drugs Zetia and Vytorin.

Namely, the lead plaintiffs alleged that even though the Defendants knew that a clinical trial of Vytorin, called “ENHANCE,” demonstrated that Vytorin (a combination of Zetia and a generic statin medication) was no more effective than the cheaper, generic statin drug at reducing artery thickness, the Companies nonetheless championed the “benefits” of the drugs, attracting billions of dollars of capital in the process. Yielding to public pressure to release the results of the ENHANCE trial, Lead Plaintiffs allege that the companies reluctantly announced that the cholesterol drugs showed “no statistically significant difference” in plaque buildup, and that news of these negative results and their related consequences caused sharp declines in the value of the companies’ securities, resulting in significant losses to investors.

The combined $688 million in settlements is the second largest securities class action settlement in the Third Circuit, among the top 25 securities class action settlements of all time, and among the ten largest recoveries in a securities class action not involving a restatement.

So—the moral of the story? You tell a Whoppa, you pay a Whoppa—quid pro quo baby!

See you at the bar—I know who’s buying…

Week Adjourned: 2.8.13 – Hipster, YoPlus, Ritz-Carlton

Nemo’s coming and your top class action lawsuit & settlement wrap for the week is now live! Latest class action lawsuits for the week ending February 8, 2013 include Hipster, YoPlus and the Ritz-Carlton

hipster logoTop Class Action Lawsuits

Hipster ain’t so hip after all…at least according to the plaintiffs who have filed an in Internet privacy class action lawsuit against the photo-sharing App. The Hipster lawsuit alleges the company illegally obtained iPhone users’ personal information and contact lists without their permission.

The internet privacy lawsuit, entitled Francisco Espitia v. Hipster Inc., Case No. 13-cv-00432 in the U.S. District Court for the Northern District of California, alleges that a function of the Hipster App found and retrieved subscribers’ personal contacts and other highly sensitive information, including passwords and geo-location, and then transferred the data over unencrypted, publicly accessible data channels to Hipster’s third-party servers. (Maybe they should rename the App “Fetch”).

Specifically, the lawsuit states: “These actions involved the deliberate and intentional circumvention of technical measures within the mobile computing device in order to bypass the technical and code based barriers, including the plaintiffs’ and class members’ privacy settings which were intended to limit access by anyone other than the owner of the device.” Having transferred the users’ contact address data to its remote computing service, Hipster then allegedly proceeded to access and use such data without authorization or consent, according to the lawsuit.

The laundry list? Violations of the Electronic Communications Privacy Act, the Stored Communications Act, the California Computer Crime Law, and the California Invasion of Privacy Act, among other things.

The Hipster lawsuit seeks to represent all US residents that downloaded the Hipster App to their mobile phones from January 1, 2011 to the present.

Very uncool.

Top Settlements

Yo Dude! You may be eligible to share in the YoPlus $8.5 million settlement agreed this week by General Mills. If approved, the settlement would end a consumer fraud class action lawsuit alleging the food manufacturer misrepresented the digestive health benefits of its YoPlus probiotic yogurt. Well, they certainly wouldn’t be the first, and likely, they won’t be the last.

Filed in 2010, the consumer fraud class action lawsuit, entitled J Johnson v. General Mills Inc. et al., Case No. 10-cv-00061, U.S. District Court for the Central District of California, claims that consumers who purchased the YoPlus yogurt products were deceived into paying more for them as a result of General Mills misleading advertising.

In their motion to accept the settlement, the plaintiffs noted “Considering the strengths and weakness of this case, including the amount of potential damages available to the class after trial here and in other jurisdictions around the United States, the settlement represents an excellent result and includes relief for purchasers of YoPlus on a nationwide basis.”

Under the terms of the settlement, consumers who purchased YoPlus will be entitled to $4 per person for each unit they purchased. Not bad, really.

Putting on the Ritz? Em, maybe not. More like this one’s on the Ritz…The Ritz-Carlton that is. This week, the famous hotel chain agreed to pay $2 million in settlement of the Ritz-Carlton overtime class action lawsuit filed by 1,500 (yup—that’s the right number of zeros) current and former employees in California who allege they were not paid overtime wages.

Bottom line—eligible plaintiffs in the California overtime employment class action are for those who either work or worked at Ritz-Carlton hotels in San Francisco, Half Moon Bay and Lake Tahoe at any time from November 2007 on.

And just in case you need the details—the settlement, when approved, will resolve Lambson v. Marriott International, Inc. et al, Case No. 11-cv-06669, U.S. District Court for the Northern District of California, and allegations the Ritz Carlton, a subsidiary of Marriott International, violated California state wage and hour laws.

So—see you at the bar—who’s buying?