Month: October 2016

Week Adjourned: 10.28.16 – Farmers, VW, J&J Talc Powder

farmers-insTop Class Action Lawsuits

Getting Burned on Fire Damage Claims? Los Angeles resident, Ismael Frias, believes so. He filed a bad faith insurance class action lawsuit against a Farmers Insurance Co., unit alleging it illegally limited coverage of wildfire smoke damage by not providing adequate notice that it had changed its policies and stating that the damage was “not actual fire damage.”

Frias, who lives in the suburb of Sylmar, states in his Farmers lawsuit complaint that Mid-Century Insurance Co., applied a “Wildfire Smoke Sublimit” of $5,000 to his claim under his homeowner’s insurance policy, without clearly notifying him. Mid-Century allegedly added the sublimit to the policy when Frias renewed in March, but failed to clearly notify him of the change. Additionally, the suit states that the sublimit is in violation of California insurance law which standardizes fire damage policies.

“The purported $5,000.00 Wildfire Smoke Sublimit violates Insurance Code section 2071, is not reflected on the declarations Page, is not plain, clear and conspicuous, and is unenforceable,” the lawsuit states. According to the complaint, Frias claimed for damages he experienced as a result of a wildfire on July 23, 2016. On that date, the massive Sand Canyon Fire was raging through the mountains north of Sylmar. Ultimately, the fire scorched almost 65 square miles before fire crews were able to contain it in August, according to the National Wildfire Coordinating Group.

Frias received a letter from Mid-Century in September, stating the damage to his home wasn’t “actual fire damage” and thus was subject to the $5,000 sublimit, according to the lawsuit.

Frias is claiming breach of contract, breach of the implied covenant of good faith and fair dealing, and violation of California’s Unfair Competition Act.

The lawsuit seeks to establish a class of California homeowners who had policies containing the wildfire smoke sublimit and who had submitted claims for wildfire odor, soot, smoke, char or ash damage. He also seeks compensatory and punitive damages, along with attorney’s fees, according to the complaint.

“As a result of defendants’ conduct, plaintiff and members of the class and subclass have been damaged, including but not limited to, paying insurance premiums for coverage rendered illusory by the unlawful Wildfire Smoke Sublimit,” the complaint states.

Top Settlements

It’s VW Pay Up Time. It’s been a week of whoppers. Starting with a rather speedy settlement on the consumer end of the Volkswagen emissions scandal. Short version, a $14.75 billion settlement between consumers, the federal government and Volkswagen has been granted final approval. The deal includes an aggressive timeline for VW to begin buying back cars that have the infamous emissions cheating software, known as “defeat devices”.

Under the terms of the deal, VW will set aside $10 million to buy back its vehicles with the defeat devices from consumers.

Additionally, VW must spend $2.7 billion to mitigate the effects of the emissions from cars equipped the so-called defeat devices, and $2 billion over the next 10 years in projects that support the increased use of zero emission vehicles.

Starting in mid-November, Some 475,000 owners of affected VW and Audi 2.0L diesel vehicles will be able to seek buybacks of their cars or have them fixed. Additionally, most plaintiffs who bought their cars before last September, will receive payments of $5,100 to $10,000. About 336,000 car owners have registered for benefits under the settlement and only 3,300 have opted out, according to court papers signed by the judge.

Of note, 3.0 liter six-cylinder diesel vehicles equipped with the defeat devices are not included in this settlement. VW said it is still working toward a resolution with owners of those vehicles.

The multidistrict litigation is In re: Volkswagen “Clean Diesel” Marketing, Sales Practices and Products Liability Litigation, case number 3:15-md-02672, in the U.S. District Court for the Northern District of California.

Big Talc Powder Settlement. A $70 million award has been granted court approval for a woman in California who sued Johnson & Johnson (J&J) alleging J&J Talc Powder caused her cancer. The suit alleged “negligent conduct” in making and marketing its baby powder.

The case was brought by Deborah Giannecchini of Modesto, California, who was diagnosed with ovarian cancer in 2012. She is one of nearly 2,000 women who have filed similar lawsuits, and thousands more are under review by lawyers.

Giannecchini’s win follows earlier awards against J&J for $72 million and $55 million. The $72 million award was granted in February to relatives of a woman who died of ovarian cancer, and the $55 million award to an ovarian cancer survivor.

Talc is a mineral often used to absorb moisture in cosmetic products. Since the 1970s, studies have suggested that talc could be linked to ovarian cancer, according to the lawsuit. Lawyers argued that Johnson & Johnson knew of those studies but put profits ahead of human life by continuing to market their talc products for feminine hygiene use.

Well, that’s a wrap for this week. See you at the Bar!

Week Adjourned: 10.21.16 – Samsung, BB&B, Dreamworks

samsung-note7Top Class Action Lawsuits

Galaxy on Fire. Well folks, you knew it was coming…take Note (bad pun)… Samsung, not surprisingly, got hit with a defective products class action lawsuit this week, alleging its Galaxy Note 7 smartphone is prone to catching on fire and exploding. No kidding…

Specifically, the Samsung Galaxy lawsuit alleges that as a result of the defect, Samsung customers had to wait days or weeks for a replacement phone. In the meantime, they’re charged monthly fees by carriers for phones they can’t use.

The three plaintiffs from New Jersey who filed the suit allege users should be compensated for the money they paid for devices and plan charges to cellular operators while the South Korean phone maker took its time replacing and finally discontinuing the Note7’s.

The complaint alleges that many Note7 users were unable to use their devices due to the possibility they could overheat and burst into flames. When consumers who tried to exchange their phones during the initial recall period, they were often unable to because of limited stock.

Consequently, some customers were told that they would have to wait weeks until a replacement phone was available. “It was not until September 21 that Samsung announced that it would begin the Note7 exchanges nationwide. And even on that date, only an estimated 500,000 replacement devices had arrived in the United States,” the complaint states.

Further, the complaint alleges that users incurred monthly device and plan fees during that same period from their phone carriers.

The case is re: Waudby vs Samsung Electronics America, U.S. district court, district of New Jersey, Newark, No . 16-cv-07334-CCC-JBC.

Bed, Bath & Beyond has gone Beyond, according to the details of an unpaid overtime class action lawsuit filed by former department and assistant managers. They claim the retailer is in violation of the Fair Labor Standards Act (FLSA).

The allegations in the Bed, Bath & Beyond overtime lawsuit are that BB&B improperly denied the plaintiffs overtime by not meeting the FLSA requirements for a “fluctuating work week” model, which are that employees’ hours to change from week to week, they have a fixed salary that meets minimum wage requirements, and a 50 percent overtime premium for hours worked in excess of 50 hours. According to the lawsuit, the Bed Bath & Beyond department managers had relatively stable schedules and did not meet the fluctuating work week model.

“Upon information and belief, plaintiffs’ weekly work hours as [department managers] did not meaningfully fluctuate, their scheduled work hours and the actually hours they worked, including the numbers of overtime hours, were largely consistent from week to week,” according to the lawsuit. “Because the [department managers’] weekly work hours were substantially the same from week to week, defendant [unlawfully] applied the FWW model to avoid paying the [department managers] their overtime compensation under the regular 1.5 overtime premium.”

The plaintiffs also assert that assistant managers were unlawfully classified as exempt employees who did not receive any overtime pay, that the company violated labor laws by failing to provide a wage notice at the time of hire outlining terms and conditions, and that employees didn’t properly receive pay stub information.

“Consistent with defendant’s policy and pattern or practice, plaintiffs regularly worked in excess of 40 hours per workweek without being paid at premium overtime rate 1.5 times of their respective regular rate of compensation for the hours they worked in excess of 40 per workweek,” the complaint states.

The plaintiffs are claiming violations of the FLSA and state labor laws, and seek unpaid overtime wages, liquidated damages, prejudgment and post-judgment interest and attorneys’ fees. The complaint seeks to create a collective action for FLSA overtime compensation violations, consisting of those who are or were department managers or assistant managers from October 2013 through the present. Additionally, the lawsuit seeks to create a class of all non-exempt Bed Bath & Beyond employees within the past six years for failure to pay overtime and failure to provide proper wage notice at the time of hiring.

The case is Thomas et al. v. Bed Bath and Beyond Inc., case number 1:16-cv-08160, in the U.S. District Court for the Southern District of New York.

Top Settlements

Poached Dreams? If this doesn’t prove it pays to stand up for yourself, what does? A $50 million settlement has been agreed in an antitrust anti-employee poaching class action lawsuit pending against Dreamworks Animation. The lawsuit, filed in 2014, alleged that the animation company perpetuated a “no poach” gentleman’s agreement with other studios over the hiring of animators. Gentlemen’s agreement?

According to a statement by a group of animators and visual effects employees who worked for the studios, “The Proposed Settlement Agreement was the product of a thorough assessment of the strengths and weaknesses of plaintiffs’ case.” And, “It reflects nearly two years of discovery, uncovering the intricacies of a multi-faceted conspiracy.”

The group has asked the court to grant preliminary approval of the Dreamworks settlement, calling it fair and reasonable. They stated that the money represented about 40 percent of the damages sustained by class members, who were previous employees of Dreamworks, as a result of the scheme.

The lawsuit targeted some major studios including The Walt Disney Co., Pixar Inc., DreamWorks Animation SKG Inc., Lucasfilm Ltd. and ImageMovers Digital LLC.

The allegations of colluding to stop poaching and driving up pay rates, resulted from a U.S. Department of Justice probe into the hiring practices of Silicon Valley businesses. Earlier this year, the animators, while pushing for class certification in their case, told the court that the studios’ collusion dates back several years and suppressed their pay by as much as 30 percent in some years.

The case is In re: Animation Workers Antitrust Litigation, case number 5:14-cv-04062, in the U.S. District Court for the Northern District of California.

 

 

Well, that’s a wrap for this week. See you at the Bar!

Week Adjourned: 10.14.16 – Stewart’s Shops, Power Home, Nissan

stewarts-shopsTop Class Action Lawsuits

Stewing Over Pay at Stewart’s…It seems we just can’t get enough of the old employment class action lawsuit. This one, filed against Stewart’s Shops has been certified in New York. The complaint states that the Malta-based convenience store chain failed to properly compensate its employees for all the hours worked. There are so many instances of labor law violations, I wonder, does anyone actually get paid properly anymore?

The Stewart’s Shops lawsuit was filed by a former employee against the chain in January 2014, alleging she and other workers were not paid for all the hours they worked, and for mandatory call-in pay for store meetings and that they were deprived of an uninterrupted meal break.

The plaintiffs are seeking $20 million in damages on behalf of all non-exempt hourly employees who worked for Stewarts during the past three years.

Reportedly, a collective action has been certified under federal law for full-time employees who worked more than forty hours in any given week and were deprived of overtime compensation.

FYI—the Malta-based convenience store chain has 335 stores in upstate New York and Vermont, and $1.5 billion in sales. No comment.

Top Settlements

Power Home Power Calling You? You gotta love it when you actually stick it to a spammer. This week, court approval has been given to a $5.2 million settlement of a Telephone Consumer protection Act (TCPA) class action lawsuit pending against Power Home Remodeling Group LLC. The lawsuit claimed the company had violated the TCPA because it made automated marketing calls to over a million consumers without their consent.

The judge certified a class of more than 1.1 million people, and granted final approval of the Power Home Remodeling settlement, ending the lawsuit brought by plaintiff Teofilo Vasco. The autodialed telemarketing calls or prerecorded, computer-generated voice messages were made between October 2013 and April 2016, approximately.

The judge also awarded a $3,000 award to the named plaintiff, Vasco, who filed the lawsuit in August 2015. He alleged he gave his cellphone number to a Home Depot salesperson and later received 21 unsolicited phone calls from Power seeking his business by way of an autodialer or prerecorded voice message.

The case is Teofilo Vasco v. Power Home Remodeling Group LLC, case number 2:15-cv-04623, in the U.S. District Court for the Eastern District of Pennsylvania.

Nissan got hit this week, with a preliminary settlement deal reached in three defective automotive class action lawsuits. The first Nissan lawsuit, brought in 2014, alleged that the transmissions in certain model-year certain Pathfinder and Infiniti QX60 vehicles were defective. You may remember this one.

Under the terms of the proposed Nissan agreement, Nissan North America Inc. has agreed to give all owners and lessees of nearly 200,000 Nissan Pathfinders and Infiniti JX35s/QX60s vehicles from model years 2013 and 2014 a free, two-year 24,000-mile extended warranty for their transmissions. Also, owners will be instructed on how to update their vehicles’ software to include detection of the transmission vibration problem referred to as “judder.” Oh great, there’s computer technology involved.

According to the settlement, owners of affected vehicles that underwent two or more repairs to their transmissions may be eligible for discounts on future purchases of a Nissan or Infiniti vehicle. The deal requires court approval.

The case is Kenai Batista v. Nissan North America Inc., case number 1:14-cv-24728, in the U.S. District Court for the Southern District of Florida.

Well, that’s a wrap for this week. See you at the Bar!

Week Adjourned: 10.7.16 – American Airlines, iPhone, VW

american-airlinesTop Class Action Lawsuits

Travel Insurance Woes…A consumer fraud complaint against American Airlines took off this week, alleging the airline markets travel insurance as a pass-through charge paid to a third party but doesn’t disclose its profits.

Filed by Kristian Zamber, the multi-million dollar complaint asserts American Airlines misled its customers about its interests in selling the insurance policies and that it aggressively marketed travel insurance sold through its website.

The American Airlines lawsuit is seeking class certification, a jury trial and injunctive and equitable relief for alleged unjust enrichment and violations of Florida’s consumer protection statutes prohibiting companies from posing as revenue conduits.

According to the complaint, Zamber paid roughly $24 to purchase travel insurance in April for a domestic flight from Tampa to Pennsylvania. American Airlines stated the policy had no affiliation with the airline, but instead came from Allianz Global Assistance, with plans underwritten by Jefferson Insurance Co. or BCS Insurance Co. But in reality, the policy sales contributed to a “hidden profit center” for the Fort Worth, Texas-based airline, the complaint states.

The complaint also claims the airline forces customers to choose whether or not to purchase trip insurance policies before allowing them to complete online ticket purchases. Yup—been to that destination….

Touch Disease has Spread North of the border. Apple is facing a defective products class action lawsuit in Canada over allegations that it’s iPhone 6 and 6 Plus models have a defect which effectively results in the smartphone freezing or not responding to touch commands.

Following on from a similar defective products lawsuit filed in the US, the Canadian lawsuit claims Apple was aware of the problem but failed to take action to remedy it.

Filed at the Court of Queen’s Bench for Saskatchewan, the Canadian iPhone complaint would include all Canadian iPhone 6 and 6 Plus customers. It alleges that Apple was negligent because it supplied a defective phone, “knowingly and intentionally concealed” from customers the defect and failed to provide a proper remedy.

According to attorneys who filed the Canadian complaint, Apple has so far only offered its customers around $300 as compensation.

Shortly after the product was launched in 2014, one of the plaintiffs in the class action alleges she bought the iPhone 6 for around $200, hundreds of dollars less than the regular price because she locked into a two-year phone plan contract. Then, a few months after the warranty had expired on her phone, it began to intermittently freeze up and failed to respond to touch commands.

The lawsuit alleges that that the underlying problem is the touchscreen controller chips in the phone’s motherboard, which are not properly secured and can malfunction with regular use.

Top Settlements

Here’s a whopper—but then the size of the Volkswagen defeat device scandal is, likely, unprecedented. A $1.2 billion settlement has been reached between Volkswagen AG and 650 US VW franchise dealerships, ending litigation brought by the dealerships over the VW emissions scandal. Specifically, the dealerships alleged that the value of their businesses had decreased as a result of Volkswagen’s attempts to cheat on vehicle emissions tests through its so called “defeat devices.” According to documents filed Friday in California federal court, the deal will provide an average payout of $.185 million to each Volkswagen-branded franchise dealer in the US.

Additionally, the VW settlement provides for VW buying back from its franchisees, affected vehicles that can’t be put into emissions compliance, using the same terms granted to car owners as part of the tentative consumer settlement.

“This recovery to the franchise dealer class is outstanding, particularly given the immediate need for cooperation among Volkswagen and its franchise dealers to effectuate the terms of the $10 billion-plus consumer class action settlement that is presently pending approval before this court,” the motion states. “Without any obvious deficiencies, the settlement agreement readily meets the standards for preliminary approval.”

Further, there will be no claims process, as dealerships that don’t opt out of the settlement will automatically receive a cash payment based on a formula of 71 times the monthly support payment VW made to dealers in November 2015. Take it or leave it? Almost.

The MDL is In re: Volkswagen “Clean Diesel” Marketing, Sales Practices and Products Liability Litigation, case number 3:15-md-02672, in the U.S. District Court for the Northern District of California.

Well, that’s a wrap for this week. See you at the Bar!