February, 2016 | Class Action News Blog

Week Adjourned: 2.26.16 – Walmart, Mercedes, J&J Talc Powder

Top Class Action Lawsuits

Pulp Reality at Walmart? If this is true, it has to be some kind of new low—even for Walmart. The discount retail behemoth got hit with a proposed consumer fraud class action this week, over claims its in-house brand of allegedly pure grated parmesan cheese contains a significant amount of fillers such as wood pulp. OMG.

So, in the spirit of, well, less is more—let’s cut through the filler and get to the allegations. Filed by Marc Moschetta of Dutchess County, New York, the Walmart parmesan cheese complaint states that the labels on Walmart’s Great Value brand grated parmesan cheese contains 100 percent parmesan cheese, and is false. The cheese is sold at Walmart stores across the US.

Are you sitting down? According to the suit, independent lab testing on the cheese product has shown it contains “significant quantities of adulterants and fillers” and between 7 percent to 10 percent of the cheese is made of cellulose, a filler and anti-clumping agent derived from wood pulp.

“Defendant makes only one marketing representation on the label: the product is ‘100%’ grated parmesan cheese [and] consumers, including plaintiff, reasonably rely on the label and believe defendant’s statement that the product consists of ‘100%’ parmesan cheese,” court documents state. “Because the product does in fact contain fillers and substitutes, the ‘100%’ parmesan claim is literally false and is also misleading to consumers.”

Moschetta stated that Walmart’s sale of the grated cheese was executed through deceptive marketing, labeling and advertising and the retailer has violated New York business laws, various consumer protection laws in a majority of the contiguous US, breached an implied warranty and benefited from unjust enrichment.

The complaint is seeking certification of both a nationwide class and a New York subclass of consumers and that Walmart be ordered to pay unspecified treble damages and punitive damages.

The case is Moschetta v. Wal-Mart Stores, Inc., number 7:16-cv-01377, in the U.S. District Court for the Southern District of New York.

O Lord, won’t you Give me a Clean Diesel Car? Mercedes, seemingly the only automotive maker not be sued for defective airbags, ignition switches and/or uncontrolled acceleration—to name but a few issues among the litany of defective automotive class actions currently winding their way through the courts, found itself on the end of a consumer fraud class action lawsuit this week.

What for, you ask? Allegations the company knowingly programs its Clean Diesel vehicles to emit illegally high levels of nitrogen oxide. Specifically, the Mercedes emissions lawsuit claims that like Volkswagen defeat devices certain Mercedes models contain a device that causes the vehicles to violate US emissions standards when run at cooler temperatures, making them less environmentally friendly than advertised.

The lawsuit was filed by a Mercedes owner in Illinois, who claims the automaker uses the device in its BlueTec cars to turn off a system meant to reduce nitrogen oxide in its exhaust. The law firm representing the plaintiff said in a statement that on-road testing had shown Mercedes’s Clean Diesel cars produced average on-road NOx emissions that were 19 times above the U.S. standard, with some instantaneous readings as high as 65 times more than the US limit.

According to the complaint, the device in Mercedes’s diesel models turns off pollution controls at temperatures below 50 degrees Fahrenheit (10 Celsius), allowing the autos to violate emissions standards.

Further, according to a study done by independent testing agency TNO for the Dutch Ministry of Infrastructure and the Environment, in real-world testing, the Mercedes C-Class 220 emits more nitrogen oxide than measured in laboratory results.

“Mercedes never disclosed to consumers that Mercedes diesels with BlueTEC engines may be ‘clean’ diesels when it is warm, but are ‘dirty’ diesels when it is not,” according to the complaint. “Mercedes never disclosed that, when the temperature drops below 50 degrees, it prioritizes engine power and profits over people.”

The lawsuit also contends that even if Mercedes is able to make the cars compliant with emissions standards, those who drive them will suffer harm because the vehicles won’t perform as promised or advertised.

The plaintiff is seeking to represent a nationwide class of includes all US-based residents and entities that bought or leased an affected vehicle as of this month, and a court order compelling Mercedes to recall the affected models or replace them for free, in addition to unspecified damages.

Among the enumerated models are Mercedes’s ML320 and 350 sport utility vehicles, its E- and S-Class cars, and GLE crossovers.

The lawsuit is Lynevych v. Mercedes-Benz USA, U.S. District Court, District of New Jersey.

Top Settlements

Pyrrhic Victory for Talc Powder Ovarian Cancer Victim. Here’s a stunner—in more ways than one—and it’s just the beginning for J&J. This week saw $75 million in damages awarded against the company in a lawsuit suit alleging the talcum powder Jacqueline Fox used caused her to develop ovarian cancer.

Fox claimed that for over 35 years she had used baby powder made by J&J and another talc product for feminine hygiene until she was diagnosed with ovarian cancer. She passed away at the age of 62, on October 6, 2015.

Her case was heard by a jury in St. Louis, Missouri, and is just one of more than 60 cases consolidated into a single suit alleging cancer caused by talcum powder.

During the trial, Fox’s attorney presented a document which revealed J&J knew their talcum powder was causing cancer. The letter, dated from 1997, was by a former J&J consultant and it warned the responses by the company to findings from no less than nine scientific studies could result in the talc industry being compared to the cigarette industry.

While the jury found 10-2 against J&J on claims of failure to warn, negligence and conspiracy, it did not find talc manufacturer Imerys Talc America Inc, another defendant, liable.

Another woman is scheduled to go to trial on April 11, 2016. Attorneys for Fox said that J&J is currently facing hundreds of lawsuits over talcum powder use.

Lawsuits have been filed against some talc companies alleging talc powder contains asbestos and consumers were not adequately warned about the risk of asbestos in talc powder. Although home talcum products are supposed to be asbestos-free, there are concerns some talcum products still contain asbestos. Furthermore, it can take decades for exposure to asbestos products to result in mesothelioma and other illnesses, meaning people who were exposed in the 1970s may still be diagnosed with asbestos-related illnesses.

Ok…So, that’s a wrap folks… Cocktails are in order—see you at the Bar!

Week Adjourned: 2.19.16 – Amazon, Maytag, Uber

Top Class Action Lawsuits

Amazon Primed for a Lawsuit? How much was that again? Amazon got hit with a consumer fraud class action lawsuit this week, alleging false advertising and consumer fraud. Brought by named plaintiff Gregory Harris, the lawsuit claims Amazon charged Harris, and others similarly situated, fees that were additional to advertised products’ purchase prices. Heard this one before? Oh yeah baby!

Specifically, Harris claims that Amazon represents to consumers they can use its services to purchase products directly from its website at no cost to the consumer besides the cost of the product. However, the lawsuit alleges, Amazon.com charged Harris and others in the class additional fees, specifically an “Amazon Prime” membership fee.

The Amazon lawsuit claims violations of the Electronic Funds Transfer Act, violations of California’s Consumer Legal Remedies Act, and violations of California’s Unfair Competition Law.

Harris and others in the class seek injunctive relief, actual damages, punitive and statutory damages, interests, attorney fees and other costs of the suit. The case is: Superior Court of California County of Los Angeles Case number BC606984

All Coming out in the Wash..? Round and round and round we go… what number lawsuit is this for Whirlpool? We’ve lost count. This consumer fraud class action lawsuit alleges the company misrepresents the efficiency of certain models of its washing machines.

Specifically, that Whirlpool promoted certain Maytag Centennial model washing machines as Energy Star-qualified, labeling the machines with the Energy Star logo. However, these washing machine models do not meet the Energy Star efficiency standards and in fact use more water and energy than stated on the labels. Oh, that’s great. So, just slap a sticker on and you’re good to go, is that the idea? Maybe…

According the Whirlpool Maytag lawsuit, the US Department of Energy requires that Energy Star-qualified washing machines must use approximately 50 percent less water and 37 percent less energy than standard models. However, the plaintiffs claim that he and others similarly situated paid more for these models but did not save as much as they should have on water and energy bills over time using the machines.

Filed by Walt Famular, individually and for all others similarly situated, the lawsuit alleges breach of express warranty, unjust enrichment, and violations of the New York General Business Law.

The lawsuit seeks statutory, compensatory and punitive damages, plus interests, restitution and disgorgement, injunctive relief, attorney fees and other costs of the suit. U.S. District Court for the Southern District of New York Case number 7:16-VC-00944-VB.

Plaintiffs are represented by attorneys Scott A. Bursor, Joseph I. Marchese, Frederick J. Klorczyk III and Neal J. Deckant of Bursor & Fisher PA in New York.

Top Settlements

Uber Feeling the Sting…of high fees—in the form of a settlement, that is. The ride share and taxi company has agreed to pay $28.5 million to settle a consumer fraud class action lawsuit involving some 25 million riders who allege it mislead customers about its fees and safety procedures.

Specifically, the lawsuit claimed that Uber, which uses a smartphone app to receive ride requests and then sends the requests to its drivers, charged an extra “safe rides fee” to cover what the company called “industry-leading background checks” on its drivers.

Additionally, under the terms of the Uber settlement, Uber will not describe or title any fee that it charges for its services, including any charge for its rideshare services, as the “safe rides fee.” Further, the company agreed that it will not use the terms “best available,” “industry leading,” “gold standard,” “safest” or “best-in-class” in connection with its background checks, in any of its commercial advertising.

Uber has also agreed not to use the phrases “safest ride on the road,” “strictest safety standards possible,” “safest experience on the road,” “best in class safety and accountability,” “safest transportation option,” “background checks that exceed any local or national standard” or “safest possible platform” to describe its rideshare services.

Uber said it will rename the safe ride fee a “booking fee,” explaining that “It will be used to cover safety as well as additional operational costs that could arise in the future.”

Better buckle up!

Ok…So, that’s a wrap folks… See you at the Bar!

Week Adjourned: 2.12.16 – Nissan, Target, TVM

Top Class Action Lawsuits

Heads Up Owners of 2011-2012 Nissan Frontier Trucks… Nissan North America got hit with a defective automotive class action lawsuit this week over claims its side air bags are, well, just a little too enthusiastic. Plain English—the air bags deploy unnecessarily.

Filed by plaintiff Bobette Brantley, the Nissan airbag lawsuit asserts that the automaker designed side air bags in 2011-2012 Nissan Frontier trucks to inflate in rollover and near rollover conditions. However, it failed to warn consumers about how sensitive the air bags and seatbelt pretensioner igniters actually are. The seatbelt pretensioner igniters tighten any slack in seatbelts during an accident.

The lawsuit states that a defect in the class vehicles causes the side curtain air bags to deploy simultaneously and unnecessarily while also causing the seat belt pretensioner igniter to deploy. Once this happens, the vehicles are no longer safe to drive and consumers must pay thousands of dollars to have extensive repair work done. Adding insult to injury, Brantley also claims that Nissan refuses to pay for the resulting repairs.

According to the lawsuit, “The deployment of the side curtain air bags and the seatbelt pretensioner igniters is extremely distracting to drivers of class vehicles. The distraction is of such a magnitude that drivers of class vehicles are at risk of losing control of class vehicles, greatly increasing the possibility of a traffic accident, and injury.”

In the suit, Brantley states that while she was driving her vehicle in December, in a way that she said Nissan represented the vehicle can be driven, the side curtain air bags suddenly and unexpectedly deployed, causing her to nearly lose control of the vehicle. As a result, she spent thousands of dollars to restore her Frontier to a safe, driveable condition.

Brantley asserts that Nissan was aware of the alleged defect as a result of consumer complaints, internal testing and dealership repair records. However, she claims, the automaker failed to disclose the defect and, in fact, actively concealed it from consumers.

The suit further claims that evidence of Nissan’s knowledge of the alleged defect can be seen in the owner’s manual for the Frontier, which states that the curtain air bags are designed to inflate in rollover or near rollover conditions and can inflate due to certain vehicle movements such as severe off-roading.

“It is plaintiff’s contention, based upon plaintiff’s own experiences, and based upon plaintiff’s awareness of the complaints of other class members, that the class vehicles are too sensitive. As a result the ‘near rollover conditions’ design threshold, which signals the side curtain air bags and seatbelt pretensioner igniters to deploy, signals deployment under conditions where there is no true risk of a rollover,” the complaint states.

Brantley asserts Nissan refused to warn customers about the alleged defect, refused to remedy the defect and refused to compensate customers for any damages resulting from the defect.

The suit seeks certification of a class consisting of everyone who has bought or leased a class vehicle, as well as an order holding Nissan financially responsible for the defect, enjoining the automaker from continuing its deceptive practices, requiring the automaker to fix the defect and making Nissan disgorge part or all of its profits received from the sale or lease of the class vehicles.

The case is Brantley v. Nissan North America Inc. et al., case number BC609400, in the Superior Court of California, County of Los Angeles.

Target not on Target with Overtime Pay? The discount retailer got hit with an employment class action lawsuit this week. Filed in New York, by Robert LaPointe Jr, on behalf of himself and others similarly situated, the Target lawsuit claims violations of New York Labor Law, specifically, that Target failed to compensate him for overtime worked.

According to the suit, LaPointe worked for Target as an operations group leader in the company warehouses in New York from 2011 to 2015. While at work, the suit states that LaPointe regularly worked in excess of 40 hours per week.

LaPointe asserts that Target failed to pay an overtime premium to him and others in the class for additional hours worked. This, the suit states, is because the employees were misclassified as exempt from the overtime requirements of the New York Labor Law. Additionally, the suit claims Target failed to provide accurate wage statements.

LaPointe and others in the class seek to recover unpaid overtime wages, interests, statutory penalties, injunctive relief, attorney fees and other court costs.

The case is U.S. District Court for the Southern District of New York Case number 1:16-cv-00656-VSB.

Top Settlements

TVM Award for the Victim…This settlement makes two out of two for the plaintiffs. A $13.5 million verdict has been awarded by a Philadelphia jury in the second transvaginal pelvic mesh injury lawsuit pending against Johnson & Johnson, and its subsidiary Ethicon, makers of the defective pelvic mesh.

The jury agreed that an Ethicon Inc. transvaginal tape product, known as TVT, was not reasonably safe, and that plaintiff Sharon Carlino’s physician would never have implanted the product had he been aware of its risks.

In her suit, Carlino claimed that as a result of having the defective pelvic mesh implanted, she was in near constant pain and discomfort, and was unable to have sex.

The transvaginal mesh verdict is the second damage award against Ethicon. The company is facing nearly 180 cases consolidated as part of a mass tort program in Philadelphia County’s Court of Common Pleas, which began to go to trial in December.

In the initial case, the jury awarded $12.5 million to the plaintiff, agreeing that Ethicon’s Prolift pelvic mesh product was negligently designed and that a physician who implanted the product in plaintiff Patricia Hammons in 2009 received inadequate warnings about the risks.

This most recent verdict returned for Carlino includes $10 million in punitive damages, $3.5 million in compensatory damages, and another $250,000 to Carlino’s husband for loss of consortium.

The case is Carlino et al. v. Ethicon Inc. et al., case number 130603470, in the Court of Common Pleas of the State of Pennsylvania, County of Philadelphia.

Ok! So, that’s a wrap folks… See you at the Bar!

Week Adjourned: 2.5.16 – Victoria’s Secret, Dr. Oz, Bayada

Top Class Action Lawsuits

Not so Sexy Texts… For years the prevailing urban myth is that the biggest subscriber base for Victoria’s Secret catalog is men—particularly those that work in isolated environs such as oil rigs, mines—you get the picture. Now, the angel of lingerie (maybe that should be “the god of” ) is facing a Telephone Consumer Protection Act (TCPA) class action lawsuit based on allegations the company sent unsolicited text message advertisements.

The Victoria’s Secret texting lawsuit was filed by a man. Love it. Women, I’m not sure, would necessarily mind prompts on this subject—but hey—could be wrong, and—importantly—most women are likely not looking at or for the T&A component. If that’s missing from the spam, then why not file a lawsuit.

I digress.

Here’s the skinny: filed in California by Michael Hannegan, individually and for all others similarly situated, the lawsuit asserts that Victoria’s Secret sent unauthorized text message advertisements to cell phones of consumers across the country, to Hannegan and the others, in violation of the TCPA.

Consequently, Hannegan has suffered an invasion of privacy and incurred costs for the receipt of such wireless spam, the lawsuit states.

Hannegan and others in the class seek an injunction, statutory or actual damages, plus attorney fees and costs. The case is: U.S. District Court for the Central District of California Case number 8:16-CV-00125-JLS-JCG. So if the Angels in B cups have been spamming you—you better get on it!

Pulling Back the Curtain on Oz? Ok, you knew this was coming—at some point it just had to. Dr. Oz got hit with a consumer fraud class action lawsuit this week, as well as Labrada Bodybuilding Nutrition Inc., alleging claims that weight loss products made by the defendants are false and misleading. If it walks like a duck and it quacks like a duck…

The sorta short read—the suit was filed by Vera Woodard of California, in which she asserts she was tricked into buying a number of nutritional products sold by former bodybuilding champion Lee Labrada’s company, because they contained “magic ingredients” purported to be “revolutionary fat busters” by Dr. Mehmet C. Oz during his daytime talk show. (Quack, Quack).

In fact, the Dr. Oz lawsuit asserts, the pills are worthless with little scientific evidence they promote weight reduction. Hey—what about the placebo effect?

“As a renowned surgeon at Columbia University with specialized medical and scientific knowledge, Dr. Oz knew that the claims he was making about the supplements being ‘miracle fat busters’ were patently false or misleading consumers,” the lawsuit states. “Dr. Oz concealed his fraud by affirmatively representing to consumers that he was giving his objective opinion about the products based on his specialized knowledge.”

According to the lawsuit, Woodard bought the Labrada Garcinia Cambogia Dual Action Fat Buster, the Labrada Green Coffee Bean Extract Fat Loss Optimizer and the Labrada Raspberry Ketones Metabolic Enhancer products sometime around June 2013, paying between $15 and $20 a bottle, after she saw episodes of “The Doctor Oz Show” in which he promoted those herbal supplement ingredients as being “miracles in a bottle” when it comes to weight loss.

However, the lawsuit contends that while Dr. Oz regularly reminds audiences that he’s not attempting to sell any products, he does not mention that some of his “nutritional expert” special guests are in fact paid spokespeople for certain supplement products.

By way of example, the lawsuit cites an episode in which the weight-loss benefits of garcinia cambogia, were discussed. Dr. Oz introduced a guest doctor as being at the forefront of “revolutionary research that says garcinia could be the magic ingredient that lets you lose weight without diet and exercise,” yet that doctor turned out to be a paid researcher for Interhealth Neutrceuticals Inc., which is also named defendant in the suit, according to the complaint.

Additionally, the suit states that studies published by the Journal of the American Medical Association and other publications have shown that garcinia cambogia and green coffee bean failed to produce any significant weight loss, and there is zero evidence showing that raspberry ketones can help trim fat.

Woodward seeks to represent a nationwide class of consumers who were “duped” into buying “worthless” weight loss supplements containing garcinia cambogia, green coffee bean extract and raspberry ketones from the Labrada and others.

The case is Veda Woodard v. Lee Labrada et al., case number 2:16-cv-00717, in the U.S. District Court for the Central District of California.

Top Settlements

Ruling for Bayada Workers… Here’s a major step forward for home care workers in Colorado. A federal judge has issued the final ruling on an employment class action lawsuit this week, filed against Bayada by its home health care workers. The lawsuit alleged the company failed to pay overtime wages. Boy, this just never gets tired, does it.

And justice prevailed. In her ruling on the Bayada overtime lawsuit, Judge Christine Arguello found that Colorado’s labor laws necessitate that overtime be paid if the worker is employed by a third-party agency.

The lawsuit was originally filed in Plaintiff Michele Kennett and a class of employees in July of 2014, alleging they were not paid overtime when in fact Colorado law necessitated time-and-a-half overtime compensation on all hours worked over 40 per week.

Bayada, based in Colorado, provides workers who deliver in-home health care services to clients with cognitive difficulties, physical disabilities, and/or chronic illnesses. The suit centered on whether home health aides are exempt from overtime protections under the Colorado Department of Labor’s Minimum Wage Order as “companion employees.”

The case is Kennett v. Bayada Home Health Care. Case 1:14-cv-02005-CMA-MJW

Consider the case finally settled and possibly a precedent set.

Ok, sothat’s a wrap folks… Happy Super Bowl Weekend!! …See you at the Bar!