Month: June 2017

Week Adjourned: 6.30.17 – Tele Pay, Anthem, TD Bank

Top Class Action Lawsuits

Is Minimum Wage Enough? Likely not, but it would be a good start. This week, an unpaid wages and overtime class action lawsuit was filed against Tele Pay USA by a phone sex worker who alleges the company is paying her less than minimum wage, no overtime and not paying for “off- the-clock” work, in violation of the Fair Labor Standards Act (FLSA). How low is the bar?

Filed in California federal court, by lead plaintiff Anne Cannon, the complaint alleges that Cannon and other workers similarly situated are making $6 per hour, but if their average call times drop below six minutes, their hourly rate also drops, to $4.20 per hour. According the lawsuit, Tele Pay is making $5 per minute.

“Plaintiff’s average hourly rate is below $6.00,” the lawsuit states. “The minimum wage in the state of Florida, the state in which she works, is $8.10 per hour. Anywhere in the nation, the average amount received by Ms. Cannon is far below the allowed national and state minimum wage.” 

Tele Pay describes itself as a “booking agent” negotiating engagements on behalf of “actors” who are looking to provide “entertainment services.” However, according to the complaint, this is not the reality. Cannon, an employee of Tele Pay, was hired to field calls and keep callers on the line through sexually explicit talk for a fee that goes directly from the caller to Tele Pay, according to the lawsuit. 

“She is required by Tele Pay to stay in her home within reach of her personal computer and land-line telephone for certain periods of time so that she is available to field calls from Tele Pay’s customers,” the lawsuit claims.

Get this, according to the Tele Pay lawsuit, if Cannon can’t keep her call times up, she is paid less. A person who goes by the name “Don” regularly gives pointers to Tele Pay phone sex workers on how to keep their average call times up. “Remember, it’s not how many calls you take, but how long you keep these guys on the phone!” Don allegedly tells the plaintiffs.

However, Cannon states in the complaint that often its beyond her ability to keep the callers on the phone: Prank calls, dropped calls or calls plagued by technical errors still count toward her average call times, even if they last only seconds, the lawsuit claims.

Further, Cannon alleges it is impossible for her to know that she’s being fairly compensated, as she doesn’t see the hours she’s logged or the average call time until the next day, and even that is an “estimate.” Her actual call times are allegedly calculated every Sunday.

She has often been asked to work in excess of 40 hours a week, without being compensated for overtime, the complaint states.

The proposed class action seeks to represent all Tele Pay phone-sex workers with similar wage claims dating back three years from the date of filing. Cannon is seeking an undetermined amount of back wages to make up for the alleged violations, post-judgment interest, and coverage of attorneys’ fees.

Well…work is work.

The case is Cannon et al. v. Tele Pay USA, case number 2:17-cv-04740, in the U.S. District Court for the Central District of California. 

Top Settlements

It’s a Record Breaker! A $115 million settlement has been reached in the Anthem data breach class action lawsuit. The case was brought by 80 million consumers who had their personal data compromised in the massive 2015 data breach.

The Anthem data breach settlement is the largest on record for a data breach class action lawsuit. Under the terms of the deal, the funds will be used to provide credit protection and reimbursement for damages. Specifically, the settlement fund will provide two years of credit monitoring, pay for customers’ out-of-pocket expenses stemming from the data breach, and provide cash compensation to customers who’ve already purchased their own credit monitoring, according to the Associated Press (AP).

If approved, Anthem must also guarantee a certain amount of funding for information security and to make certain changes to its data security systems.

The health insurance company announced in February 2015 that it had been victim of a cyber attack, potentially exposing personal information of up to 80 million people. According to a statement from Anthem, customer names, birthdays, Social Security numbers, street addresses and employment information were accessed by the hackers. When Anthem announced the breach, however, it noted that financial information did not appear to have been accessed.

According to the lawsuit, Anthem, more than two dozen Anthem affiliates and 14 “non-Anthem” Blue Cross entities violated state and federal consumer protection laws by failing to protect the personal data that was stolen in a 2015 hack.

The case is In re Anthem Inc. Data Breach Litigation, case number 5:15-md-02617, in the U.S. District Court for the Northern District of California.

Counting Errors Getting Corrected? It’s not a done deal—yet—but hey, the penny has dropped. A proposed $9 million settlement has been reached potentially ending a consumer fraud class action lawsuit pending against TD Bank over allegations the bank’s count counting machines short-changed consumers.

If approved, the TD Bank settlement would provide $7.5 million in compensation for customers who were potentially shortchanged when using the machines in Penny Arcade machines from April 11, 2010, until they became unavailable in using the machines.

An investigative report in 2016, on NBC’s Today Show, revealed incorrect results when $300 in coins was placed in five randomly selected machines. That report was part of the disclosure used in the lawsuit.

TD Bank stopped using the machines in the wake of the NBC report and pulled them from its branches in May 2016.

Under the proposed terms of the settlement, people who were TD Bank customers at the time of Penny Arcade transactions “need not take any action to receive their distributions.” Penny Arcade users who remain TD customers will receive automatic payments into their accounts. Former customers and people who make written claims would receive checks in the mail.

Reportedly, TD Bank would calculate the amount each TD Bank customer would receive by using its records to determine the amount of Penny Arcade usage by those consumers. TD would multiply that sum by 0.26 percent to determine a customer’s distribution, or payment.

If approved, plaintiffs who used coin-machine but who did not have TD accounts, could submit written claims, subject to the approval of a settlement administrator. Claims unsupported by documentation would be limited to reimbursement of $500.

There are 13 named as plaintiffs in the consolidated class action lawsuit who would share a $50,000 payment. Any funds remaining after the payment of all claims and expenses would be shared among class members.

The proposed deal awaits court approval. 

Ok – That’s a wrap for this week. See you at the bar!

Week Adjourned: 6.23.17 – Mears, CenturyLink, Costco

Top Class Action Lawsuits

Drivers Driven to Action… Class Action, that is. An employment class action lawsuit has been filed by chauffeurs for Mears Transportation in Florida. The drivers allege the company has failed to compensate them for at least $50 million in unpaid overtime, employment taxes, and certain ordinary business expenses. That’s not chump change.

According to the complaint, 40 former and current Mears luxury car chauffeurs have been misclassified as independent contractors when they are treated as employees.

The drivers assert in their proposed class action that they are given the Mears luxury chauffeurs’ employee handbooks and business cards bearing the Mears logo and address and that they must wear Mears employee uniforms with name tags bearing the Mears logo. Further, they are required to drive fully insured and fueled company cars.

The lawsuit states that other than their technical classification, the luxury car chauffeurs must go through much the same hiring and employment situations at the company as other employees, specifically, they must apply for work by submitting an employment application, and go through an employee background check. They are required to be interviewed and must attend mandatory employee training, according to the lawsuit.

Additionally, the drivers allege that they must pay Mears significant sums to operate Mears vehicles and drive Mears clients during shifts set by Mears. Further, Mears allegedly does not allow the chauffeurs to have a copy of their contract or allow them to remove their contracts from Mears’ premises.

The plaintiffs are seeking federal certification of their class action, and to have Mears pay luxury chauffeurs the same as Mears van and motor-coach drivers, among other claims. Go get’em!

CenturyLinked to Fraudulent Customer Accounts? – that’s what a consumer fraud class action lawsuit filed by a former employee turned whistleblower alleges. The telecommunications company allegedly employed high-pressure sales tactics which resulted in consumers paying for accounts they didn’t request.

The CenturyLink lawsuit was filed by plaintiff Heidi Heiser, who worked as a home-based CenturyLink customer service and sales agent from August 2015 to October 2016. She alleges she was fired just days after informing CenturyLink’s Chief Executive Officer of the scheme during a companywide question-and-answer session held on an internal message board.

Filed in Arizona state court, the complaint states CenturyLink “allowed persons who had a personal incentive to add services or lines to customer accounts to falsely indicate on the CenturyLink system the approval by a customer of new lines or services.” This would sometimes result in charges that hadn’t been authorized by customers, according to the complaint.

The complaint states that when customers complained about an unauthorized charge, customer service and sales agents like Heiser were directed “to inform the complaining customer that CenturyLink’s system indicated the customer had approved the service.” The complaint states that as a result “it was really the customer’s word against CenturyLink.”

CenturyLink provides communications and data services nationwide and offers hosting, cloud, and information technology services. It is currently negotiating a $34 billion merger with Level 3 Communications Inc.

Heiser’s complaint alleges she became increasingly concerned about what she observed at CenturyLink after hearing of Wells Fargo & Co.’s employees opening deposit and credit card accounts without customers’ consent to earn incentives and meet sales goals.

Top Settlements

Paying Full Price for Unpaid Overtime, Costco has agreed a $9 million settlement in an employment class action lawsuit filed by San Diego-area pharmacists who allege they were forced to remain on call in the pharmacy during their breaks and pressured to work unpaid overtime.

The Costco lawsuit, filed in April 2014, alleged the pharmacists who worked shifts alone were required to stay on-call during their breaks so they could respond in the event they were needed to complete tasks that legally only a pharmacist is permitted to handle. Pharmacists were also expected to answer emails and text messages while off the clock. Additionally, the pharmacists claim that Costco discouraged them from working overtime.

According to the terms of the proposed settlement, Costco will pay nearly $5,000 to each of approximately 1,175 pharmacists and pharmacist managers with Costco tenure dating back to April 2010. These payments are compensation for alleged violations of California labor law.

A collective class alleging Fair Labor Standards Act (FLSA) violations will receive five percent of the net settlement.

According to the settlement motion, the relief averages more than $4,900 per class member.

The case is Dittmar v. Costco Wholesale Corp. et al., case number 3:14-cv-01156, in the U.S. District Court for the Southern District of California.

Ok – That’s a wrap for this week. See you at the bar!

Week Adjourned: 6.16.17 – Hyundai, National Penn Bank, Victoria’s Secret

Top Class Action Lawsuits

Heads Up Hyundai Owners! The automaker got hit with a defective automotive class action lawsuit alleging its power steering systems in certain vehicles can unexpectedly become difficult or impossible to steer, and that Hyundai willfully concealed the defect from consumers. Nice. Read this playbook?

Filed in California, by Houston Vinci and Jaehan Ku, the complaint asserts that the defect severely inhibits drivers’ ability to react to or avoid other cars, pedestrians and obstacles. The affected vehicles are model years 2013-2016 Accents and Elantras. According to the Hyundai lawsuit, the alleged defect results from conflicting steering wheel input data that causes power steering to turn off.

The lawsuit states that a similar defect had resulted in earlier models being recalled in April 2016. That recall involved 2011 model year Sonatas built between 2009 and 2010. The NHTSA said the cars were vulnerable to a loss of electronic power steering if a circuit board inside the drive assembly malfunctions or is damaged.

“A reasonable customer who purchases a vehicle that advertises power steering as a feature expects that feature to function properly,” the complaint states. “A reasonable consumer further expects and assumes that defendant will not sell vehicles with known safety defects, and will disclose any such defect to their customers.”

According to the lawsuit, Vinci, a resident of Oregon, bought a used 2013 Accent in June 2015. Since then, she has experienced repeated problems with steering in that vehicle. Despite taking it to Hyundai’s dealers for repairs, so far, the problem has not been fixed, she alleges. In January 2016, the power steering defect caused her to crash, the lawsuit states.

Ku, also a resident of Oregon, bought a new 2014 Elantra in March of that year. According to the lawsuit, Ku spent two years as a truck driver in the South Korean military. In May 2016, the steering wheel in his Elantra locked up and his car veered sharply to the left. At the same time the brakes and he was unable to stop before crashing into the barrier on the side of the highway. A camera Ku had installed in the car captured the incident on video.

According to the lawsuit, numerous similar complaints have been made to the National Highway Traffic Safety Administration. As of June 7, there were more than 100 such complaints involving Elantras and 10 involving Hyundai Accents. These include a report of a driver who allegedly was unable to turn away from a wooden wall on the side of a road and drove through it.

The class action lawsuit cites eight claims, including violations of California laws, the laws of 29 states, breach of implied warranty, fraudulent concealment and unjust enrichment.

The case is Houston Vinci et al. v. Hyundai Motor America et al., case number 8:17-cv-00997, in the U.S. District Court for the Central District of California.

Better steering at Hyundai may have prevented this defective automotive class action lawsuit, not to mention a lot of consumer grief.

Top Settlements

National Penn Bank Overdrawn on Overcharging? A recent settlement would certainly indicate so. The bank has agreed to pony up $975,000 in an improper overdraft fees class action lawsuit.

The National Penn Bank lawsuit was brought in 2012 by Jennifer Collier, who claimed that rather than charging overdraft fees on her actual account balance, the bank incorrectly charged overdraft fees based on the ledger balance in her account or the amount available at the beginning of the day.

If approved, the settlement will provide compensation to a class of National Penn Bank customers who were incorrectly charged overdraft fees. Collier, as lead plaintiff, would receive a $2,500 award for service.

National Penn was purchased by BB&T Corp., nearly two years ago. The proposed settlement comes after several rounds of briefing and appeals to both the state’s Superior Court and its Supreme Court.

The case is Jennifer Collier v. National Penn Bank et al., case number 120601036, before the Court of Common Pleas of Philadelphia County, Pennsylvania.

Victoria’s Secret Not So Secret Settlement… The lingerie company has reached a $12 million settlement in a California overtime and labor law class action lawsuit   If approved, the deal will end allegations brought by sales clerks in Victoria’s Secret’s California stores that the company failed to properly compensate workers scheduled for “call-in” shifts.

The sales clerks allege in their class action that the company cheated them out of pay for shifts that required them to call in two hours prior to a scheduled shift to find out if they were going to be working that shift. Further, the plaintiffs claim that the defendant owes its workers unpaid wages for scheduling shifts for which they showed up, only to be sent home after they reported for work. Ok—seriously?

If approved, the Victoria’s Secret settlement will compensate some 40,000 class members, all of whom worked in California and who were classified by Victoria’s Secret as nonexempt from overtime pay. The payouts will be calculated based on the length of employment with Victoria’s Secret, with rewards going to the lead plaintiffs. Additionally, attorneys’ fees and expenses, and a payment to California regulators under the Private Attorneys General Act, would be paid from the settlement fund.

The case is Mayra Casas v. Victoria’s Secret Stores LLC, case number 2:14-cv-06412, in the U.S. District Court for the Central District of California.

So folks – on that happy note – this week’s a wrap –see you at the bar!!

Week Adjourned: 6.9.17 – Subaru, Five Guys, Honest Company

Top Class Action Lawsuits

Can Subaru see their way to fixing this? They got hit with a consumer fraud class action lawsuit this week, over allegations they knowingly sold vehicles with defective windshields that are prone to spontaneous shattering. Yes, that would certainly help your driving. Not.

Filed by Lucia Luong, who purchased a new 2015 Subaru Outback, the complaint asserts that the vehicle’s windshield spontaneously cracked in March. Subsequently, Subaru has denied valid warranty claims in an effort to minimize its own costs, Luong alleges.

“Subaru knew of and concealed the windshield defect that is contained in every class vehicle, along with the attendant dangerous safety problems and associated repair costs, from plaintiff and the other class members both at the time of sale and repair and thereafter,” the lawsuit states.

Luong alleges that hers is not an isolated incident, but rather “hundreds, if not thousands,” of drivers who bought or leased 2015-2016 Subaru Outback or Legacy vehicles in the US have also experienced a defective windshield. This is clearly evident by the number of customer complaints filed with the National Highway Traffic Safety Administration, the lawsuit asserts.

The complaint goes on to state that although Subaru was aware of the defect, the company did not notify the drivers or grant them any relief, and the value of the vehicles has consequently diminished.

“Defendant has deprived class members of the benefit of their bargain, exposed them all to a dangerous safety defect, and caused them to expend money at its dealerships or other third-party repair facilities and/or take other remedial measures related to the windshield defect contained in the class vehicles,” the lawsuit states.

The complaint notes that while Subaru claims it extended its new car warranty by two years for front windshield failure, the extension only applied to certain members of the proposed class. Further, when Subaru dealers have repaired the windshields, they often replaced them with other faulty units, according to the complaint. Oh yea, that makes sense.

According to the Subaru lawsuit, Subaru is in violation of California’s Consumers Legal Remedies Act and Unfair Competition Law, and is in breach of implied and express warranties, and fraudulent omission.

Luong is seeking replacement windshields—you think?—an extended windshield warranty; the reimbursement of costs related to the faulty windshields; a halt to sales of the faulty vehicles without first notifying consumers of the defect; compensatory, exemplary and statutory damages; disgorgement of profits from the sale of the defective vehicles; and fees and costs.

Five Guys got served this week. Yup—the popular burger chain is facing a potential class action lawsuit brought by a former employee who claims the company violated the Fair Credit Reporting Act (FCRA) and California labor law by conducting background checks on employees without properly notifying them and committing a number of wage and hour violations. Further, the lawsuit contends that Five Guys failed to provide employees with legally required rest and meal breaks.

Filed by plaintiff Jeremy R. Lusk, the complaint claims that Lusk was periodically required to perform off-the-clock tasks and denied meal and rest breaks, along with other employment law infractions.

“Plaintiff is informed and believes and thereon alleges that defendants have a policy or practice of failing to comply with the labor code and the business and professions code as alleged herein,” the Five Guys lawsuit states.

Additionally, the complaint asserts that the defendant regularly secured credit and background reports on employees, conducted background checks on potential, current and former employees and used this information to make hiring decisions without providing clear disclosures.

This practice violates the FCRA, as well as California’s Consumer Credit Reporting Agencies Act and Investigative Consumer Reporting Agencies Act, the complaint states.

Lusk seeks to represent several classes and subclasses, including an FCRA class of all current, former and prospective employees in the United States over the last five years and ICRAA and CCRAA classes of California workers and applicants within the last five and seven years, respectively.

The lawsuit alleges violations of the FCRA, ICRAA, CCRAA, California’s Unfair Competition Law and the state labor code. The complaint seeks unpaid wages, actual and liquidated damages, restitution, declaratory relief, pre-judgment interest, statutory and civil penalties, as well as fees and costs.

The case is Jeremy R. Lusk v. Five Guys Enterprises LLC et al., case number 1:17-cv-00762, in the U.S. District Court for the Eastern District of California, Fresno Division. 

Top Settlements

It’s nearly over, Honest! That is for Jessica Alba’s home products company, Honest, which has  agreed to pay $1.55 million to settle consumer fraud allegations brought in a lawsuit filed in 2016. Think back.

The Honest class action lawsuit claimed that the company misled consumers with claims that its products such as its laundry and dish soaps, as well as its surface cleaner were free of harsh chemicals, when in fact they contained the chemical sodium lauryl sulfate, or SLS, a known skin irritant. Under the terms of the settlement agreement, Honest will change its product formula in addition to the financial compensation to consumers.

“This non-monetary relief is significant because it directly addresses and remedies the central allegation in plaintiffs’ action for future purchasers, that Honest made misleading representations in connection with sale of the SCS-containing products based on its promise that they were SLS-free,” the settlement motion states.

According to independent lab tests conducted by lawyers representing lead plaintiff Staci Seed, Honest Laundry Detergent, Honest Dish Soap and Honest Multi-Surface Cleaner products contain significant percentages of SLS. In her complaint, Seed contended SLS can cause scalp, gum and skin irritation at concentrations of just 1 percent, while testing on the Honest products showed concentrations of as much as 14 percent.

Under the terms of the proposed deal, the Honest settlement class would include all persons who purchased Honest laundry detergent, dish soap and multi-surface cleaner from January 17, 2012, through to and including the date of preliminary approval.

Class members without a proof of purchase could claims up to $50. Class members with proof of purchase can request more per claim. Claims will be paid in cash or as a credit for products at Honest.com worth 1.5 times the cash payout.

The 10 named plaintiffs may receive settlement awards of up to $1,000 per plaintiff. The settlement requires court approval.

The case is In Re: The Honest Company Inc. Sodium Lauryl Sulfate SLS Marketing and Sales Practice Litigation, case number 2:16-ml-027919-AB-RAO in the U.S. District Court for the Central District of California.

 

Ok – That’s a wrap for this week. See you at the bar!

Week Adjourned: 6.2.17 – Ford, Unsolicited Calls, Spotify

Top Class Action Lawsuits

Ford Focus & Fiesta Facing a Class Action… Another week, another defective automotive class action lawsuit. This one has been filed against Ford Motor Co. alleging that Ford’s model year 2012-16 Focus and 2011-16 Fiesta sedans have defective PowerShift transmissions, a problem that has been ongoing for years.

The nearly 7,000 Fiesta and Focus are enrolled in the class action describe the problem as faulty dual-clutch transmissions prone to “shuddering, slipping, bucking, jerking, hesitation while changing gears, premature internal wear, delays in downshifting and, in some cases, sudden or delayed acceleration.”

According to the Ford transmission lawsuit, Ford issued a technical service bulletin to dealers on January 1, 2011, which noted the Fiesta’s PowerShift transmission could suffer “a loss of power, hesitation, surge, or lack of throttle response while driving.” In total, Ford has issued more than 20 technical service bulletins relating to the affected models, but so far has been unable to find a “consistently reliable repair.”

Then, in 2014, Ford extended its powertrain warranty from five years/60,000 miles to seven years/100,000 miles to help cover the problems.

According to lawyers representing the class, each client’s award would be customized based on that client’s damages.

Top Settlements

One Ringy Dingy—and that will be $4.25 million thank you… Well not quite. There were a few more unsolicited calls made—but in any event, a settlement been reached in a Telephone Consumer protection Act (TCPA) class action lawsuit brought against Florida-based Insurer A&B Insurance and Financial LLC.

Filed by plaintiffs Jim Youngman and Robert Allen, the lawsuit alleged the defendants made unauthorized sales calls to consumers, including people on the federal Do Not Call registry.

Specifically, the complaint stated Youngman began receiving telemarketing calls from a company called Florida Blue, which did business as A&B Insurance, and which in one instance asked him for his Social Security number. These calls began in January 2016. Youngman alleges that not only did he have no history of a business relationship with those companies, but also the number they called had been registered on the federal Do Not Call list since 2003.

Similarly, Allen claimed he had received a pre-recorded phone call, using an automated telephone dialing system, to his cell phone on behalf of A&B Insurance in December 2015.

According to the terms of the robocalling settlement, a fund will be established, from which payments will be made to a proposed class consisting of any person in the US who either received a telemarketing call from the insurer within a year of being registered on the Do Not Call list, or received a call that employed an automatic telephone dialing system. The class period is from August 18, 2012, to April 26, 2017 inclusive.

Estimates suggest that class members could receive approximately $85 each. The case is Jim Youngman et al. v. A&B Insurance and Financial Inc., case number 6:16-cv-01478, in the U.S. District Court for the Middle District of Florida.

Spotify Settles… And now for some really big money. $43 million to be precise, pending the court’s ok. The settlement has been agreed in two consolidated copyright infringement class actions pending against the internet music content streaming service Spotify.

According to the lawsuit, instead of following legally established procedures for paying the mechanical royalties, Spotify engaged in “systemic and willful copyright infringement”.

The Spotify settlement, which requires court approval, will end a year of litigation for the two suits, filed in January 2016 by Camper Van Beethoven lead singer David Lowery and singer-songwriter Melissa Ferrick. They alleged Spotify had chosen to “infringe now, apologize later” rather than go through the effort of fully licensing its music.

“While Spotify has profited handsomely from the music that its sells to its subscribers, the owners of that music (in particular, songwriters and their music publishers) have not been able to share in that success because Spotify is using their music for free,” Ferrick’s complaint stated. “Spotify’s failure to properly obtain licenses is much more than what it euphemistically describes as an ‘administration system’ problem,” Ferrick’s alleged. “It is systemic and willful copyright infringement for which actual and statutory damages are the remedy.”

Under the terms of the Spotify settlement, thousands of songwriters will share in the $43.5 million settlement fund as payment for Spotify’s past use of their material. Additionally, the fund will go towards establishing procedures to pay for mechanical royalties, which go to songwriters and publishers when compositions are recorded or reproduced.

The case is Melissa Ferrick et al v. Spotify USA Inc. et al., case number 1:16-cv-08412, in the U.S. District Court for the Southern District of New York. 

Hope the creators are singing all the way to the bank. 

Ok – That’s a wrap for this week. See you at the bar!