Month: November 2016

Week Adjourned: 11.25.16 – Comcast, Walmart, Telemarketing

comcastTop Class Action Lawsuits

Phantom at the Cable Co.? No stranger to the class action lawsuit, Comcast got hit with a proposed unfair business practices lawsuit filed by a former customer who claims the telecom company overbilled, misrepresented certain charges, and billed “phantom” charges upon account cancellation. Sound familiar?

According to the Comcast lawsuit, filed by Keven Danow, Comcast Corp., and its cable subsidiary continued to bill his late stepfather’s estate for two years following the man’s death in 2014. They did this through recurring automatic bank withdrawals. When Danow complained to Comcast, he was told that because the company had no active account information there was no business relationship and therefore they had no grounds upon which to address his concerns. Nice.

“Defendant routinely engages in deceptive and unfair business conduct to extract money from customers to which it is not entitled,” the proposed class action states. “Comcast is now targeting former customers who have no business relationship with Comcast.” Hard to have a business relationship if you’re deceased. Just sayin’.

Citing a similar proposed class action against Comcast, recently filed in California, and a $2.3 million fine paid by the company to the Federal Communications Commission for unauthorized charges for unwanted equipment or services, Danow asserts that Comcast’s behavior is part of a pattern of deceptive or unfair business practices. No comment.

“Having engaged in deceptive and unfair trade practices as a core component of its business, Comcast has now targeted former customers, who no longer have any business relationship with Comcast,” the complaint states. “Comcast has illegally accessed former customers’ bank accounts months or years after the end of any business relationship between the parties and absconded with funds on deposit.”

Danow is claiming violation of the Electronic Fund Transfer Act, unjust enrichment, violation of New York business law and applicable statutes for other states.

The case is Keven Danow v. Comcast Corp. et al., case number 2:16-cv-06052, in the U.S. District Court for the Eastern District of Pennsylvania.

Top Settlements

Walmart Pays Up. $54 million in damages has been awarded by a California federal jury against Walmart in an employment lawsuit brought by 839 truckers.

The Walmart lawsuit alleges the big box retailer violated California labor law as well as federal labor law by failing to compensate its drivers for pre- and post-trip inspections and California-required rest breaks.

The jury found in favor of the truckers on those charges, but did not award damages for time spent washing trucks, fueling, weighing the trucks’ load, waiting at vendor and store locations, performing adjustments, complying with U.S. Department of Transportation inspections, or meeting with driver coordinators.

Additionally, the jury found that the drivers were under Walmart’s control during federally mandated 10-hour layover breaks. The truckers alleged that during these breaks, for which they were required to stay with their trucks, they were paid $42 for the time, not the $67 to $90 they would have earned had they been paid minimum wage during the class period. The jury awarded the drivers $44.7 million in compensation.

Determinations for penalties and liquidated damages have yet to be made. Attorneys for the truckers stated that should the court find that Walmart’s defense was not carried out in good faith, the jury’s award would be doubled. Further, the jury found Walmart intentionally failed to pay class members for more than 100,000 pay periods, and that, according to the class attorneys’ math, each unpaid period will carry a $250 fine, adding approximately $25 million to the total settlement figure.

The case is Ridgeway et al. v. Wal-Mart Stores Inc. et al., case number 3:08-cv-05221, in U.S. District Court for the Northern District of California.

Take that Telemarketers! Here’s a win—one for the little guy and a hoorah on behalf of all of us who get those pesky unsolicited phone calls. This week, preliminary approval of a $1.1 million proposed settlement was granted, in a Telephone Consumer Protection Act (TCPA) class action lawsuit pending against Alpha Gas and Electric in New York.

Filed by Stewart Abramson in July 2015, the lawsuit asserted that Alpha Gas, which provides gas and electrical services for both residential and commercial customers in New York, New Jersey, Pennsylvania and Ohio, used telemarketing to obtain new clients and allegedly made a telemarketing call to Abramson’s cell phone.

Here’s the skinny: eligible class members are defined as: all persons who, at any time, used, regularly placed or received calls on or from or owned any of the phone numbers that are listed and/or contained in the Class List, and who, from July 8, 2011 through the date of class certification, the defendant called using an automated telephone dialing system or prerecorded voice, or who were listed on the Do Not Call list or otherwise did not consent to the receipt of such calls, or who otherwise have claims against the Released Parties arising under the TCPA or similar federal, state or local laws governing such matters, including, without limitation, the claims alleged in the Action, including calls placed to cell phones without the recipients’ consent.

Abramson, as named plaintiff, is seeking an incentive award of $10,000.00. Further, Alpha has agreed to review and amend its future telemarketing compliance with the TCPA and related laws.

A final settlement hearing is scheduled for April 2017. Potential class members will have until February 8, 2017 to object to the settlement agreement or otherwise opt-out of the settlement.

Well, that’s a wrap for this week. See you at the bar…

Week Adjourned: 11.18.16 – Chrysler, Toyota, Adderall

chryslerTop Class Action Lawsuits

So Volkswagen’s Not the Only Emissions Cheat? Maybe…Fiat Chrysler Automobiles NV and engine maker Cummins Inc. got hit with a proposed consumer fraud class action alleging the diesel engines in Dodge Ram trucks hide the trucks’ emissions, which are above the legal limit.

Specifically, the plaintiffs claims that Chrysler and Cummins conspired to knowingly deceive customers and regulators with respect to the emissions levels generated by Dodge Ram 2500 and 3500 trucks outfitted with the Cummins 6.7-liter turbo diesel engine, which were emitting dangerous levels of nitrogen oxides.

“The defendants never disclosed to consumers that the affected vehicles may be ‘clean’ diesels in very limited circumstances, but are ‘dirty’ diesels under most driving conditions,” the complaint states.

According to the Chrysler emissions lawsuit, the engines have a technology built in that traps and breaks down pollutants, a design feature meant to reduce the amount of NOx going into the atmosphere through the trucks’ exhaust. However, when the trucks are traveling for long distances or up hills, they emit far more pollutants that allowed under California and federal law. Nice.

The plaintiffs claim Chrysler and Cummins intentionally mislead the public, illegally sold non-compliant polluting vehicles, concealed emissions levels, knowingly profited from the dirty diesels and used fraudulently gained emissions credits from the US Environmental Protection Agency for use on future production of high-polluting vehicles.

The complaint states that in addition to hiding the true emission outputs, the affected Cummins diesel engines wore out the so-called catalytic converter more quickly because the engines burn fuel at a higher rate. Consequently, truck owners frequently had to replace the converter after the warranty had expired at a cost of approximately $3,000 to $5,000.

The case is James Bledsoe et al. v. FCA USA LLC et al., case number 2:16-cv-14024, in the U.S. District Court for the Eastern District of Michigan.

Top Settlements

Rusty Trucks? What a whopper! A $3.4 billion settlement has been agreed in a defective automotive class action brought against Toyota Motor Co. The lawsuit alleges that the frames in certain Tacoma, Tundra and Sequoia trucks are prone to rust corrosion and perforation.

Under the terms of the deal, approximately 1.5 million vehicles that may have defective frames will be inspected and an estimated 225,000 trucks will have their frames replaced.

The Toyota frame lawsuit was filed in 2015, alleging its 2005-2009 Tacoma trucks were made with frames that are inadequately protected from rust corrosion, rendering the vehicles unstable and unsafe to drive. The lawsuit also alleged that Toyota was aware of the defect but failed to correct it.

The settlement covers 2005 to 2010 Tacomas, 2007 to 2008 Tundras, and 2005 to 2008 Sequoias. The Japanese automaker has promised that vehicle owners will not be charged for the inspection and replacement campaign. The program will last 12 years from the date the vehicle was sold or leased, meaning any future perforations will also be covered. The replacement and inspection policy remains valid if an owner sells the vehicle to another party.

Further, the plaintiffs have asked for certification of a class of Tacoma, Tundra and Sequoia owners or lessees from the 50 states, Puerto Rico, Washington D.C. and all U.S. territories.

The case is Brian Warner et al v. Toyota Motor Sales USA Inc., case number 2:15-cv-02171 in the U.S. District Court for the Central District of California.

Adderall Generic Delay. Finally. A $15 million settlement has been approved by a federal judge, ending an antitrust class action against Shire US Inc, that alleged the pharmaceutical company paid competitors to delay selling their less expensive generic versions of Adderall, which is used to treat attention deficit hyperactivity disorder (ADHD).

Under the terms of the Adderall settlement agreement, plaintiffs Monica Barba and Jonathan Reisman were each granted service awards of $5,000, and 10 named plaintiffs in three related cases were granted $2,500 awards.

According to court documents, some 23,452 claims requesting reimbursement for more than 855,000 Adderall prescriptions have been received by the claims administrator. That’s not insignificant.

About $1 million is expected to be left over once all the claims are paid out, and will be donated to CHADD, a national nonprofit that promotes education and advocacy for people with ADHD.

Filed in 2013, the lawsuit was initially brought by consumers in Florida and Pennsylvania who alleged Shire created pay-for-delay settlements in false patent litigation against Teva Pharmaceuticals USA Inc. and Impax Laboratories Inc. to delay the generic competition for Adderall reaching the market.

The case is Barba et al. v. Shire US Inc. et al., case number 1:13-cv-21158, 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: 11.11.17 – Lexus, Hip Implants, Depakote

lexusTop Class Action Lawsuits

Heads up Lexus Drivers…some shattering allegations this week, pardon the pun, in the form of a defective automotive class action lawsuit filed against Toyota, the parent company of Lexus, alleging the sunroofs in its luxury vehicles spontaneously explode and shatter.

Filed by Ginger Minoletti, in California, the lawsuit alleges Minoletti was driving her Lexus RX 350 on Highway 101 in San Francisco in February 2016 when she heard a strange, loud cracking noise. Shortly afterwards, she found that the sunroof in her car had splintered, but that the broken glass was contained by the sliding cover shade.

The Lexus sunroof lawsuit states that Minoletti paid for repairs to the sunroof herself because Toyota refused to and the vehicle was no longer covered under warranty.

According to court documents, Lexus and Toyota have been aware of this issue since 2012, but have done nothing to warn consumers. The lawsuit also states that the National Highway Traffic Safety Administration has received numerous complaints about the defect, which is potentially dangerous and expensive to repair.

Wait—there’s more—the NHTSA is allegedly probing a number of automakers, including Ford Motor Co., Volkswagen AG, Hyundai Motor Co. and Audi AG, for sunroof defects.

The suit is brought on behalf of a proposed class of Californians who own or lease a Lexus with a sunroof and alleges violations of the Song-Beverly Consumer Warranty Act and California business code. The case is Minoletti v. Toyota Motors Sales USA Inc., case number BC636269, in Superior Court of the State of California, County of Los Angeles.

Top Settlements

Defective Hip Implant Settlement. Finally. This week saw some big and likely welcome news on the Wright defective hip implants multidistrict litigation (MDL). A $240 million settlement has been reached. The settlement effectively ends five years of litigation brought by 1,300 claimants who alleged their Wright hip implants failed anywhere from 150 days to eight years following hip replacement surgery.

Wright Medical Group announced the settlement on behalf of its wholly-owned subsidiary, Wright Medical Technology. Two years ago Wright sold its hip and knee implant division that produced the allegedly defective replacement hip devices to a Chinese company.

Under the terms of the agreement, Wright will pay $170,000 to each claimant who received the Conserve Cup device. Additionally, the company will pay $120,000 to each claimant who received either a Dynasty or Lineage replacement hip. Further, Wright will establish a fund to reimburse patients who suffered “extraordinary injury” resulting from the failure of their hip implants.

According to court documents, the defect causing the failure of the hip implants was a metal-on-metal design that resulted in metal wear and shedding of metallic debris into surrounding tissue. This led to “metallosis”, a condition in which the tissue becomes inflamed and toxic, dissolving bone that anchored the implant. Ultimately, the metallosis led to failure of the implants.

The settlement affects multidistrict litigation now pending in federal court in Atlanta and consolidated litigation in Los Angeles Superior Court in California.

Depakote Dealings…More good news on the class action settlement front—to the tune of $28.125 million. The agreement ends litigation against Omnicare Inc., alleging the country’s largest nursing home promoted Abbott’s prescription anti-epileptic drug Depakote to its patients, in exchange for kickbacks disguised as “grants” and “educational funding.”

FYI—Omnicare operates 160 nursing homes in 160 locations across 47 states, making it the largest provider of pharmaceutical services in nursing homes. That’s a lot of potential drug sales… just saying.

According to the terms of the settlement approximately $20.3 million of the settlement fund will go to the federal government, and $7.8 million to cover Medicaid program claims by states that elect to participate in the settlement. Medicaid is jointly funded by the federal and state governments.

Depakote (also known as valproate semisodium or divalproex sodium) is a popular drug used to treat epilepsy and manic episodes of bipolar disorder.

The cases are captioned United States ex rel. Spetter v. Abbott Labs., et al., Case No. 10-cv-00006 (W.D. Va.) and United States ex rel. McCoyd v. Abbott Labs., et al., Case No. 07-cv-00081 (W.D. Va.). The claims resolved by the settlement are allegations only, and there has been no determination of liability.

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

Week Adjourned: 11.4.16 – GMC, CVS, Ulta

gmcTop Class Action Lawsuits

Sierra Dim Lights. General Motors is facing a potential defective automotive class action lawsuit brought by GMC Sierra owners who allege the lack of headlight strength in their vehicles puts them at risk for accidents.

According to the GMC Sierra complaint, which GM argued to have dismissed earlier this year, the GMC Sierra owners are at a greater risk for crashes, have in some cases avoided driving at night and have paid out of their own pockets for brighter headlights.

The plaintiffs filed an amended complaint in April and since then more than 62 new complaints have been filed with the National Highway Traffic Safety Administration concerning the Sierras. The new complaint states that the volume of the complaints as well as technical bulletins issued by GM, reflects the fact that the automaker is aware of the defective head lights and does nothing.

“This is not a case about speculative future harm or a product defect that has not yet manifested,” the vehicle owners assert. “The inadequate headlights and the dangers associated with them are causing problems right now.”

The lawsuit was brought by Armando Becerra and Guillermo Ruelas brought in October 2015, alleging GM has long known that the 2014 and 2015 GMC Sierra 1500, and the 2015 GMC Sierra 2500HD and 3500HD, have headlights that are not sufficient for their purpose.

Becerra claims that despite taking his Sierra to the dealership to fix the headlights they remain problematic. He claims he spent $400 to $500 for a new headlight assembly to improve illumination. Similar claims are made by Ruelas.

According to the complaint, GM introduced a new headlight system in 2014 that uses one bulb for both high and low beam. Despite allegedly numerous complaints online, GM expanded the new headlight system to all its Sierra models for 2015, the lawsuit notes.

The case is Becerra et al. v. General Motors LLC et al., case number 3:15-cv-02365, in the U.S. District Court for the Southern District of California.

Top Settlements

Check Your Pay Check! It’s all about the workers this week, particularly in California. A $3 million settlement was agreed between CVS Pharmacy Inc. and store employees this week. The employees claimed they were provided inaccurate itemized wage statements in violation of California labor law.

Brought by Willie Brown, in September 2015, the complaint alleged the health care retailer failed to list the correct amount of total hours worked by its employees in their wage statements by incorrectly including shift differential pay hours. The suit alleged CVS violated California Labor Code.

The CVS settlement, which is awaiting court approval, will cover some 7,784 potential class members who, as store employees, received a shift differential pay on a wage statement between Sept. 29, 2014, and Sept. 1, 2016.

CVS, while denying any wrongdoing, has agreed to change its policy around itemized wage statements to reflect only the regular number of total hours worked.

The case is Willie Brown v. CVS et al., case number 2:15-cv-07631 in the U.S. District Court of the Central District of California.

Ulta to Pay Up for Bag Checks. Ulta Salon Cosmetics & Fragrance, Inc., also got hit with a preliminary unpaid wages and overtime settlement this week – to the tune of $2.7 million settlement.

The complaint was brought by story employees in California who claimed the company failed to pay them for the time it took to do required bag checks at the end of employee shifts.

The complaint was filed by former Ulta employee Sarah Moore in March 2012 on behalf of a proposed class of non-exempt Ulta employees. It alleged they were subject to required bag checks anytime they had to leave the store for a rest break, meal break or at the end of a shift. The proposed settlement includes an estimated 8,250 store employees who were considered non-exempt workers at the salon and beauty products, which operates about 69 stores in California. They would have worked at the chain from March 2, 2008, to the date the court grants preliminary approval or January 27, 2017, whichever date comes sooner.

If approved, the Ulta settlement would resolve claims brought under the California Labor Code that Ulta failed to pay overtime, compensate for all hours worked, pay wages due upon discharge or provide required meal or rest breaks to workers due to the mandatory exit inspections, also referred to as bag checks and donning and doffing.

According to court papers, some Ulta stores made employees clock out before getting their personal bags inspected. Other workers claimed the time it took to wait for a general manager to walk to the front of the store to perform the check would eat into their meal break time, which in some cases was as little as 30 minutes.

This settlement follows a $3.65 million preliminary class action settlement reached earlier this year, between Ulta and about 230 store managers in California, who alleged they were misclassified as being ineligible for overtime.

The case is Sarah Moore v. Ulta Salon Cosmetics & Fragrance Inc., case number 2:12-cv-03224, in the U.S. District Court for the Central District of California.

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