May, 2015 | Class Action News Blog

Week Adjourned: 5.29.15 – Similac, JC Penney, Capital One

Top Class Action Lawsuits

Heads Up New Parents…Organic Similac not so organic—according to a consumer fraud class action filed against Abbott Laboratories, the maker of Similac infant formula food. The lawsuit alleges the label stating the food is organic is false and misleading because the formula isn’t actually organic.

Filed by Sara Margentette, Matthew O’Neil Nighswander and Ellen Steinlien in U.S. District Court in New York, the Similac lawsuit alleges Abbott’s Similac Advance Organic Infant Formulas contained ingredients that are prohibited in organic foods.

According to the complaint some 26 of the 49 listed ingredients are not allowed in organic food. The suit states the ingredients were “irradiated substances, synthetic compounds, or produced from hazardous substances.”

The plaintiffs claim Abbot described the Similac Infant formula as organic in order to persuade consumers to purchase it, thereby increasing its sales and profits.

“As a result of its false and misleading labeling, Abbott was able to sell its ‘Organic’ Infant Formula to hundreds of thousands of consumers throughout the United States and to realize sizeable profits,” the lawsuit states. Plaintiffs are seeking class certification and more than $5 million in damages plus court costs.

The case is United States District Court for the Eastern District of New York case number 1:15-cv-2837.

JC Penny Nailed re: its Sales? It’s another consumer fraud class action lawsuit for JC Penney over its alleged practice of artificially inflating merchandise prices only to mark them down to create the appearance of a “sale” price. According to the lawsuit, the retail chain’s pricing practices are equivalent to deceptive and fraudulent advertising.

The JC Penney class action was certified last week, and accuses the national retail chain of operating a “massive, years-long, pervasive campaign” to deceive shoppers about its pricing for private-label brands, and for outside brands such as Liz Claiborne, sold exclusively by JC Penny.

The lawsuit states that Cynthia Spann, lead plaintiff in the class action, discovered the deceptive advertising practices after buying three blouses for $17.99 each, a 40 percent discount from the “original” $30 price, only to learn the price was never above $17.99 at any point during the prior three months.

The case is Spann v. J.C. Penney Corp et al, U.S. District Court, Central District of California, No. 12-00215.

Top Settlements

Another Overdraft Fee Class Action is…Over! You gotta love this! Capital One Bank NA has to pony up $31.8 million as settlement of a lawsuit that alleged the bank manipulated its overdraft fees. Approved by US District Judge James Lawrence King, the settlement fund of $31.76 million represents 35 percent of the most damages plaintiffs could expect to recover at trial.

The Capital One overdraft fee lawsuit has taken nearly five years and the class consists of roughly 611,000 members. Capital One tried three times to have the lawsuit thrown out. It alleged that the bank deducted money from customers’ accounts based on the size of their transactions, not in chronological order, thereby maximizing the amount of overdraft fees it charged.

For settlement class members who do not opt out, prorated shares from the settlement fund will automatically be sent to them. Capital One’s data was used to determine which account holders were harmed by the high-to-low posting practice.

The case is In re: Checking Account Overdraft Litigation, case number 1:09-md-02036, in the U.S. District Court for the Southern District of Florida.

Hokee Dokee—That’s a wrap folks…See you at the Bar!

Week Adjourned: 5.22.15 – Starbucks, AT&T, Car Loan Robocalling

Top Class Action Lawsuits

The King of Coffee is facing a class action lawsuit alleging a bit of consumer fraud—in the guise of misleading advertising. The lawsuit alleges Starbucks advertised prices for product that are lower than those charged by baristas. That’s not very nice.

Specifically, the Starbucks lawsuit contends that the coffee brewers advertising for reduced-fat turkey bacon breakfast sandwich and sausage and cheddar breakfast sandwich include prices that are lower than that which the plaintiff, Sarah Martin, paid. The turkey bacon sandwich was advertised for $3.45 when it actually costs $3.75, while the sausage and cheddar sandwich was advertised as $3.25 when the actual price is $3.45, according to the complaint.

Apparently, there are at least seven Starbucks locations in Los Angeles county where the in store pricing is different from the advertised price. The potential class action suit alleges violations of the California statutes covering consumer protection, false advertising, unfair competition, unjust enrichment and fraud. That should about cover it.

Further, the lawsuit contends that Starbuck’s policy regarding receipts helped it conceal the alleged false advertisement. “Plaintiff and members of the proposed classes relied to their detriment on Starbucks misrepresentations regarding the price of goods,” the complaint states. “Starbucks also has the policy of asking consumers whether they would like a copy of their receipt, which makes it harder to discover the misrepresentation.”

The putative class would include any Starbucks customer who purchased items at California locations where the wrong price was advertised in the last four years.

The case is Sarah Martin et al. v. Starbucks Corp. et al., case number BC582335, in the Superior Court of the State of California for the County of Los Angeles.

AT&T is in the Cross-hairs… of an unpaid overtime class action lawsuit brought by a training manager who alleges the company is in violation of California labor law and the Fair Labor Standards Act.

Specifically, the AT&T lawsuit contends that the telecommunications giant intentionally misclassified the workers as being exempt from overtime requirements in order to avoid giving them the extra pay they were entitled to under state and national employment laws.

Filed in the US District Court for the Central District of California, plaintiff Wendell Watson alleges that despite assigning the trainers their work and being aware that they often worked longer than 40 hours a week, AT&T refused to pay overtime to training specialists nationally.

Here’s the skinny, according to a statement issued by attorney’s representing the plaintiff: AT&T employees involved in designing company trainings often work nights and weekends interviewing experts at the company and then passing the information on to instructors. In the lawsuit, Watson, an AT&T training design manager since 2001, states that the workers not only did not receive overtime but also regularly worked more than five consecutive hours without a required half-hour meal break or a second break after working for 10 hours.

The lawsuit also states that “In addition, the California plaintiff and California class members regularly work and have worked without being afforded at least one 10-minute rest break, in which they were relieved of all duty, per four hours of work.”

AT&T is also being accused of failing to provide accurate wage statements, such that workers were not able to determine how much and for what hours they were being paid. Not an uncommon complaint these days, sadly.

The case is Walton v. AT&T Inc., case number 2:15-cv-03716, in the U.S. District Court for the Central District of California.

Top Settlements

Here’s some good news to help your Friday along… A $10.2 million settlement has been agreed between the plaintiffs in a robocall class action lawsuit and JPMorgan Chase Bank NA. The bank allegedly made unsolicited robocalls to more than 2 million customers’ cellphones, in violation of the Telephone Consumer protection Act (TCPA).

According to the robocall agreement, if approved, Chase will pay $10.2 million into a non-reversionary settlement fund, with approximately $45 to $55 to be paid to each of the 2.2 million class members.

Filed by plaintiff Sheila Allen in November 2013, the lawsuit contends JPMorgan Chase and Chase Auto Finance Corp. violated the TCPA by placing approximately 80 calls to Allen’s cellphone from July 2013 through to November 2013.

Allen alleges that the robocalls left voicemails telling her to call back certain numbers to discuss her account, even though she had no auto loan with Chase and never provided her phone number to the bank in connection with any car loan.

Despite Allen contacting Chase repeatedly, requesting the phone calls stop, nothing changed. Further, she contends she was not provided with any instructions on how to opt out of the automated calls, nor was she given the opportunity to opt out.

The case is Sheila Allen v. JP Morgan Chase Bank N.A., case number 1:13-cv-08285 in the U.S. District Court for the Northern District of Illinois.

Hokee Dokee—That’s a wrap folks…See you at the Bar!

Week Adjourned: 5.15.15 – Wells Fargo, JP Morgan Chase, Bar Exam Software

Top Class Action Lawsuits

Wells Fargo playing fast and loose with customer accounts? Maybe…It got hit with a class action lawsuit this week by a former customer who claims that California’s largest bank engages in consumer banking fraud. What does that mean exactly? Well, Shahriar Jabbari of Campbell, CA, alleges that he and a nationwide class of consumers were victims of Wells Fargo’s tolerance and encouragement of abuses by workers in its branches. The specific allegations are unfair enrichment and violations of the federal Fair Credit Reporting Act (FACTA) and California unfair competition and consumer protection laws.

Here’s the back story…according to the lawsuit, Jabbari began banking with Wells Fargo in 2011, wanting simply to open one checking and one savings account. However, shortly after opening his accounts, he allegedly noticed “some anomalies, such as unwanted fees.” Then in 2013, the lawsuit states that Jabbari visited the Wells Fargo branch in Los Gatos to ask about an unauthorized charge. That’s when an employee showed him how accounts had been opened in his name using a signature that was not his, according to the complaint.

The complaint states that Jabbari discovered seven accounts issued without his permission. A few months later, he received a change of address notification showing several accounts that he had not opened and that he thought had been closed.

Jabbari alleged that bill collectors badgered him to pay fees on Wells Fargo accounts that were opened without his knowledge. The suit alleges that bank employees: Withdrew money from customers’ authorized accounts to pay for the fees assessed by Wells Fargo on unauthorized accounts opened in customers’ names without their knowledge; placed customers into collection when fees and other debts accumulated in unauthorized accounts and went unpaid; and placed derogatory information in credit reports when unauthorized fees went unpaid.

The lawsuit, filed in US District Court in San Francisco, seeks restitution from the profits Wells made on “its unfair and unlawful practices,” In addition to triple damages.

Top Settlements

More banking misconduct…this time it’s a win for the plaintiffs…to the tune of $10.2 million—that’s the amount of the settlement agreed between the plaintiffs in a robocall class action lawsuit and JPMorgan Chase Bank NA.

The bank allegedly made unsolicitied robocalls to more than 2 million customers’ cellphones, in violation of the Telephone Consumer protection Act (TCPA).

According to the agreement, if approved, Chase will pay $10.2 million into a non-reversionary settlement fund, with approximately $45 to $55 to be paid to each of the 2.2 million class members.

The case is Sheila Allen v. JP Morgan Chase Bank N.A., case number 1:13-cv-08285 in the U.S. District Court for the Northern District of Illinois.

Law students will be getting some justice it seems after a $2.1 million settlement was reached in a consumer fraud class action lawsuit pending against ExamSoft Worldwide Inc. If the proposed settlement get the final nod, it will resolve allegations that the company failed to adequately respond to glitches reported in its exam software, which prevented state bar applicants from uploading their exam answers.

The defect that triggered the lawsuit is likely ever law student’s nightmare. The target of the lawsuit was SoftTest, currently the only means by which prospective lawyers in dozens of states can take the bar exam electronically. The program failed during last week’s exams, the company acknowledged, and the lawsuit, which contained deceptive marketing and negligence claims, failed to live up to its promises that it would make exam day less stressful.

According to the terms of the agreement each member of the class would receive $90. Class members consist of applicants who took the test in 43 states in July 2014. Tens of thousands of bar exam takers paid between $100 and $150 for a license to use ExamSoft’s software, SofTest, which allegedly failed after the first day of the exam, according to court documents.

Court documents also show that in addition to the $2.1 million payment, ExamSoft has made or is making enhancements to its technology and communications practices that will enable it to better communicate with test-takers and bar examiners.

The case is Amanda West et al. v. ExamSoft Worldwide Inc., case number 1:14-cv-22950, in the U.S. District Court for the Southern District of Florida.

Hokee Dokee—That’s a wrap folks…See you at the Bar!

Week Adjourned: 5.8.15 – Dog Chews, Uber, Western Union

Top Class Action Lawsuits

Dogs: Don’t Chew on This… Allegedly defective dog bone chew toys are killing and injuring dogs? That seems to be the sum of a consumer fraud class action lawsuit filed against Dynamic Pet Productions and its parent company, Frick’s Meat Products. The dog bone chew class action was filed by a dog owner who alleges her basset hound suffered fatal injuries after it swallowed a piece of a splintered dog bone chew toy made by the defendant.

In the putative class action, Khristie Reed alleges that she and thousands of other dog owners watched their pets suffer, and in some cases die, after splinters from Dynamic’s “Real Ham Bone For Dogs” injured their pets, despite the company’s claims that the bone is a safe chew toy for dogs.

“The Real Ham Bone For Dogs is not appropriate for dogs and is not safe for its intended purpose, despite defendants’ contrary representations,” the complaint states. “Thousands of dogs have suffered a terrible array of illnesses, including stomach, intestinal and rectal bleeding, vomiting, diarrhea, constipation and seizures, and have died gruesome, bloody deaths as a result of chewing [Dynamic’s] Real Ham Bone For Dogs.”

Since Dynamic began selling the dog bones in 2001, thousands of customers have purchased them through stores such as Wal-Mart, Sam’s Club and Dollar General, according to the complaint. Frick’ Meat Products, the parent company, created the products Dynamic as a way to market waste from its meat products.

The lawsuit states that in 2010, the US Food and Drug Administration issued a statement warning dog owners that splinters from dog bones could result in injury or even death. Further to that warning, and in response to public outcry, the Missouri Better Business Bureau alerted Dynamic and Frick’s to the dangers of their product. However, Frick’s and Dynamic continued to market the dog bone chew toys without providing a safety warning.

Reed contends, in the complaint, that Dynamic was aware of the dangers associated with the dog bone as early as 2006, following consumer complaints to the company about pet injuries and deaths. Pet owners also began posting complaints about the bone to online forums, claiming the bone splintered easily, the lawsuit states.

“Nowhere do [the two companies] state the truth that the Real Ham Bone For Dogs is a dangerous product that should not be given to dogs,” the suit states.

The complaint goes on to state that Frick and Dynamic’s continued marketing of the bone is a violation of the Consumers Legal Remedies Act and the Business and Professions Code, as it misrepresents the product as a safe one. Reed and other owners also allege that the company committed fraud, as it had a duty to alert consumers to the dangers of the product and did not do so. Finally, Reed alleges that Dynamic and Frick’s had a “secret warranty program, paying off pet owners who persistently complained about their products to “keep them quiet.”

The lawsuit seeks damages, including punitive damages, attorneys’ fees, an injunction preventing the companies from continuing any unlawful practices, and the awarding of the profits the two companies made from unethical practices to the plaintiffs involved.

The case is Khristie Reed, on behalf of herself and all others similarly situated v. Dynamic Pet Products and Frick’s Meat Products Inc., case number 3:15-cv-00987 in the U.S. District Court for the Southern District of California.

Is Uber a Bad Deal for Drivers? An employment class action lawsuit was filed against Uber this week by a former driver who was stabbed in the face by a passenger, and who claims that he and others similarly situated, are misclassified by the company as being independent contractors, when they are employees, in violation of California labor law.

Why? In the Uber lawsuit, Abdo Ghazi, claims that he is owed worker’s compensation by Uber, which he would automatically receive if he were classified as an employee.

According to the complaint, “As a consequence of misclassifying its drivers, Uber illegally lowered its cost of doing business by fialing to secure payment of workers’ compensation insurance covering its drivers pursuant to California Labor Code 3700. Uber’s misclassification of drivers as independent contractors gave it an unfair advantage over competing transportation companies, harmed Uber’s drivers and violated California law.”

The lawsuit seeks to reclassify Uber drivers as employees. Anyone who is an Uber driver, or who has worked in that capacity, is included as a plaintiff in the suit.

The case number is CGC15-545532, Abdo Ghazi vs. Uber Technologies, Inc, Rasier LLC; Rasier-CA, LLC and Does 1-10. Plaintiffs are represented by Lohr, Ripamonti & Segarich LLP.

Top Settlements

Ever had a Wire Transfer go Sideways and the Funds Disappear? Then this settlement may interest you. Western Union looks set to pony up $133 million in settlement of an unfair business practices class action lawsuit that claims the company kept money from failed wire transfers for five years, even though they had the contact information for the senders. Where do you start…

Under the terms of the Western Union settlement, class members will recover interest for the time during which Western Union held these funds, something they would not have received simply by asking Western Union to return their money, court documents show.

Additionally, the settlement terms stipulate that Western Union must change its business practices such that it informs customers when their wire transfers fail.

The suit resulted from Western Union’s practice of keeping money from failed transfers and earning interest, electing not to inform customers until their money was due to be absorbed by states’ unclaimed and abandoned property departments.

According to the lawsuit, the period of time Western Union waited to inform customers of the failed transfers often meant that the contact information for those customers was no longer valid.

The case is Tennille, et al v. Western Union, et al, case no. 13-1310 in the U.S. Circuit Court of Appeals for the Tenth Circuit.

Hokee Dokee- That’s a wrap folks…See you at the Bar!

Week Adjourned: 5.1.15 – Tinder, Hertz, Actos

Top Class Action Lawsuits

Tinder’s igniting a wee litigation storm it seems. The company behind the popular dating app of the same name, has been hit with another class action lawsuit filed by a customer who alleges the app charges men and users over the age of 30 more to use its premium service, and is therefore discriminating on the basis of age and gender. Isn’t that just good business? You use more, you pay more? No?

Maybe not. Filed in California federal court, by Plaintiff Michael Manapol, this Tinder lawsuit contends that Manapol paid $19.99 for a one-month subscription to the service, while Tinder charged $9.99 for those under 30. He also alleges he was charged recurring, automatic renewal fees, in violation of California law, and that his account was illegally debited, without his authorization.

“Defendant offers no discounts for its Tinder Plus services, than that offered to consumers based solely upon their age. However, [women] receive more favorable swiping terms than man, which is akin to free entrance to Ladies Night, a practice deemed illegal by the California Supreme Court,” the lawsuit states.

The lawsuit also alleges Tinder falsely advertised its service by claiming to be “free.” One Billy Warner filed a lawsuit over the free or not-so-free Tinder advertising back in March.

The Manapol lawsuit seeks to establish a nationwide class of people who downloaded the Tinder app before March 2, 2015. In addition, four subclasses are proposed, specifically: an auto-renewal subclass; a price discrimination subclass; a gender discrimination subclass; and an Electronic Funds Transfer Act subclass.

The complaint cites an interview with Tinder spokeswoman’s on National Public Radio, in which she allegedly said, “During our testing we’ve learned, not surprisingly, that younger users are just as excited about Tinder Plus but are more budget constrained and need a lower price to pull the trigger.”

FYI…The case is Michael Manapol et al. v. Tinder Inc. et al., case number 2:15-cv-03175, in the U.S. District Court for the Central District of California.

Hertz employees being taken for a ride? The Hertz Corp is facing a potential $4 million unpaid wages and overtime class action alleging the company doesn’t pay its employees for working through breaks, and fails to pay them overtime wages.

No stranger to employment lawsuits, this one, alleges that the vehicle rental chain systematically underpaid its customer service representatives in various ways, in violation of the California labor law. The Hertz overtime lawsuit was filed by Plaintiff Juan Herrera on behalf of himself and all other non-overtime exempt California Hertz employees for the previous four years.

“Defendants knew they had a duty to accurately compensate plaintiff and class members for all hours worked, including overtime wages and meal and rest period premiums, and that defendants had the financial ability to pay such compensation, but willfully, knowingly, recklessly and/or intentionally failed to do so,” Herrera states.

Specifically, the complaint states that Hertz fails to provide meal and rest periods for its employees by structuring its schedules, policies and workload requirements to not allow the workers their full meal and rest breaks. The company then fails to properly compensate them for the loss.

Additionally, Herrera alleges that Hertz requires its customer service representatives to prepare for their shifts without pay and failing to factor commissions into the employees’ regular rate of pay when calculating overtime pay rates.

That lawsuit also seeks to represent non-overtime exempt employees in California, which Hertz estimates amounts to as many as 2,000 former employees and as much as $11.5 million in alleged damages.

The case is Juan Herrera, individually and on behalf of all others similarly situated v. The Hertz Corp. et al., case number BC579320, in the Superior Court of the State of California County of Los Angeles.

Top Settlements

This is a biggie—to the tune of $2.4 billion… That’s the sum agreed to in a settlement between Takeda Pharmaceuticals USA Inc. and some 9,000 plaintiffs who filed personal injury lawsuits against the company, alleging it failed to warn of bladder cancer risks from taking its Type 2 diabetes drug Actos (pioglitazone hydrochloride).

Under the terms of the agreement, Takeda will establish a fund of between $2.37 billion and $2.4 billion, depending on how many Actos litigants opt into the settlement.

Over 4,000 cases are included in this agreement, and were coordinated in the U.S. District Court for the Western District of Louisiana, as well as lawsuits filed by about 4,000 people in Cook County, IL, according to lawyers for the plaintiffs.

While Takeda denies any wrongdoing in this agreement, the settlement will recover some compensation for the victims who have been injured and, in some cases, maimed by bladder cancer while taking Actos.

Hokee Dokee—That’s a wrap folks…See you at the Bar!