Month: November 2017

Week Adjourned: 11.25.17 – Uber, Dave & Buster’s, Monitronics

Top Class Action Lawsuits

Uber trying to be hush-hush? Uber is facing a data breach class action lawsuit filed by a resident of Portland who alleges the ride share company was negligent in its safeguarding of customer data, resulting in a data breach in October 2016, in which hackers accessed and stole data from 57 million Uber customers and drivers.

What? You didn’t hear about the data breach? You’re not alone.

The Uber lawsuit contends that rather than reporting the data breach promptly, as required by state law, Uber paid hackers $100,000 to delete the data and keep the breach quiet. Seriously.

In a recent report to Bloomberg, Uber said it believes the information stolen in 2016 was never used but declined to disclose the identities of the hackers.

The proposed class action was filed by Medhi Seifian, alleging the compromised data includes names, email addresses and phone numbers of 50 million riders worldwide. Further, personal information of approximately seven million drivers also was accessed, including 600,000 US driver’s license numbers.

Contrary to Uber’s claims that the hacked data has not been used, Seifian alleges that since the data breach he has experienced undisclosed economic losses and his credit has suffered. Uber could have mitigated those losses had it promptly notified customers of the cyber attack, the lawsuit states. By the time it did, “the damage to their credit was already done.”

Seifian is seeking class action status, according to the lawsuit filed in US District Court in Portland. He says the cyber attack affected an estimated half-million Oregonians.

The lawsuit seeks fair compensation to cover credit repair and monitoring services on behalf of “an estimated 500,000 Oregon consumers harmed by Uber’s failure to adequately protect their personal information.”

Top Settlements

Buster’d benefits? Here’s one for the books. While the $7.425 million settlement is not huge, it is important. It will hopefully bring a satisfying conclusion to a class action lawsuit pending against the Texas-based restaurant and entertainment chain Dave & Buster’s Inc. The lawsuit alleged the company illegally cut its workers’ hours to deprive them of health-care benefits. Wow.

The two-year old lawsuit is brought by an employee who alleged her hours were cut from approximately 40 a week to less than 30. This resulted in her being ineligible for health benefits. According to the lawsuit, Dave & Buster’s reduced its workers’ hours to prevent them from continuing to receive health benefits under the company plan.

Should the proposed Dave & Buster’s settlement receive final court approval, some 1,200 class members would benefit. This is the first Employee Retirement Income Security Act lawsuit that alleged an employer, in response to the employer mandate of the Affordable Care Act, intentionally interfered with workers’ benefits by cutting their hours to make them part time. The number of full-time workers a company has factors into whether the mandate requires them to provide those workers with health coverage. The employee brought the case pursuant to an ERISA provision that prohibits employers from taking an employment action with the specific intent to interfere with benefits.

In 2016, a federal judge in New York refused to dismiss the lawsuit, finding instead that sufficient evidence existed to support the workers’ claims that the company acted with an “unlawful purpose” when it reduced the hours of hundreds of employees and thereby made them ineligible for health benefits.

A call you do want to get… If you received an unsolicited, automated phone call from Monitronics – this could net you some cash. The home security firm has agreed to pay $28 million to settle a Telephone Consumer Protection Act (TCPA) class action lawsuit alleging it made automated telephone calls to phone numbers listed on the national Do Not Call Registry (DNCR) and to consumers who had not provided their consent.

The settlement will address claims made in a class action lawsuit brought against Monitronics in May 2011 by plaintiff Diana Mey, which has been consolidated with more than 30 similar Monitronics TCPA proposed class action lawsuits.

The complaints all allege Monitronics, a home security company, used an automated dialing system or an artificial or pre-recorded voice to make telemarketing calls to people’s cell phones without their consent, or listed on the national DNCR, in violation of the TCPA.

Eligible class members include all persons who, since May 18, 2007, received a telemarketing call from an authorized Monitronics dealer, or a Monitronics dealer’s lead generator or sub-dealer, on a residential or cell phone using an automated telephone dialing system or pre-recorded voice, or two or more calls within a 12-month period to a residential number listed on the national DNCR.

A final fairness hearing is scheduled for March 2018.

The case is In re: Monitronics International Inc. Telephone Consumer Protection Act Litigation, Case No. 1:13-md-02493, in the U.S. District Court for the Northern District of West Virginia.

Ok Folks – Happy Thanksgiving! See you at the bar.

Week Adjourned: 11.17.17 – Eversource Energy, Wells Fargo, Defective Hip Implants

Top Class Action Lawsuits

Check your Electric Bill… If you live in any of the following states – Massachusetts, Maine, Vermont, New Hampshire, Connecticut and Rhode Island – you need to read this. New England residents have filed an antitrust class action lawsuit against Eversource Energy and Avangrid Inc, alleging the two energy companies caused its electricity consumers to incur overcharges of $3.6 billion in a years-long scheme that impacted six states and affected 14.7 million people.

According to the lawsuit, filed in the US District Court for the District of Massachusetts, 7.1 million retail electricity customers and an overall population of 14.7 million people have been affected by Eversource and Avangrid’s “unique monopoly” spanning at least from 2013 to 2016.

Specifically, the scheme raised electric prices by at least 20 percent for those living in Massachusetts, Maine, Vermont, New Hampshire, Connecticut and Rhode Island. The complaint alleges the scheme violates multiple federal and state competition laws and state consumer protection statutes.

Eversource and Avangrid own multiple electric utility subsidiaries, including United Illuminating, Connecticut Light and Power Company, Central Maine Power Company, Western Massachusetts Electric Company, NSTAR Electric Company and Public Service Company of New Hampshire.

The lawsuit centers on the electric overbilling scheme involving Eversource and Avangrid’s manipulation of the amount of natural gas available to power plants. The two companies regularly constrained the amount of natural gas that could flow throughout New England by reserving far more than they knew they would need, according to the complaint. This artificially limited the amount of gas, which is used to fuel many of the region’s power plants, therefore pushing electric costs higher.

The lawsuit calls the market manipulation scheme the largest since Enron: “Not since Enron’s greedy heyday during the California energy crisis, nearly two decades ago, have American energy markets been manipulated for private profit at such expense to everyday electricity consumers.”

The lawsuit states that Eversource and Avangrid’s anticompetitive scheme had an enormous and wide-ranging impact on the New England electricity market as a whole. Further, the lawsuit claims that their manipulation of natural gas supplies directly caused electricity prices across the region to spike 20 percent higher than they would have been otherwise, leaving utility customers paying the price.

Top Settlements

Wells Fargo Fraud Settlement… A $142 million settlement has been reached in the Wells Fargo account fraud class action lawsuit over the alleged creation of false customer accounts, services, and applications for products and services made without customers’ knowledge or consent.

The lawsuit names Wells Fargo & Company and Wells Fargo Bank, N.A., as defendants in the banking fraud lawsuit.

Customers included in the settlement had certain Wells Fargo credit cards, lines of credit, checking, or savings accounts opened or applied for in their name without their permission, or had authorized identity theft protection services from Wells Fargo, from May 1, 2002, to April 20, 2017.

The benefits of the Wells Fargo settlement include:

  • Fee Reimbursement: A payment to compensate individuals for fees they may have paid in connection with unauthorized accounts.
  • Credit Impact Damages: Cash to compensate individuals for damages caused by harm to their credit.
  • Additional Payment: Any money remaining in the fund, after paying the benefits above and all costs and expenses, will be paid out as additional compensation on a per-account basis.

Eligible customers can now submit a simple claim form online or by mail by February 3, 2018 to get a payment.

Eligible customers must object to or exclude themselves from the Settlement by February 19, 2018. Please note the Court recently extended these deadlines.

A final fairness hearing is scheduled for March, 2018, to consider whether to approve the Settlement.  he hearing date may be subject to change.

The lawsuit is Jabbari v. Wells Fargo, No. 3:15-cv-02159, in the Northern District of California.

Another Bellwether in the DePuy Hip Litigation… This week, a $247 million verdict was awarded against the maker of DePuy Orthopedics Inc, and its parent company Johnson & Johnson (J&J),  with $90 million in punitive damages against J&J and $78 million in punitive damages against DePuy. The settlement is the third consecutive multi-million dollar verdict delivered in this multidistrict litigation.

The verdict will settle claims made in this bellwether trial against DePuy’s Pinnacle hip replacements that the implants are essentially defective. The jury, hearing the case in Dallas, unanimously found J&J and DePuy liable for a series of design and manufacturing defects, fraud and deceptive business practices. Further, they found both defendants acted with wanton, reckless or malicious conduct.

More than $77 million was awarded for past and future medical expenses and pain and suffering to the six individual plaintiffs, each of whom is from New York. Additionally, the jury awarded four of the plaintiffs’ spouses damages for loss of consortium, totaling $1.7 million.

The trial took two months, and is the fourth bellwether case in multidistrict litigation that includes more than 9,000 cases, all alleging design defects in DePuy’s Pinnacle Ultamet line of metal-on-metal hip implants.

The jurors heard the six plaintiffs tell of their suffering resulting from a range of injuries, including severe tissue damage that caused permanent muscle loss, intense pain, loss of hip movement and walking with a permanent limp. All six plaintiffs claimed that the Pinnacle product shed microscopic metal ions into their bodies, a phenomenon known as metallosis. They alleged J&J and DePuy didn’t warn surgeons about these side effects, which could have been avoided with a safer design.

Specifically, the jury found J&J and DePuy liable for design defect, negligent design, inadequate warning, manufacturing defect, negligent manufacture, negligent misrepresentation, intentional misrepresentation to the surgeons who performed the initial hip implant surgeries on the plaintiffs, fraudulent concealment from the plaintiffs and from the surgeons and deceptive business practices as to the plaintiffs and the surgeons.

Additionally, J&J was found liable for negligent undertaking of a duty to provide services to DePuy and for aiding and abetting DePuy in its tortious conduct. Neither J&J or DePuy were  liable for intentional misrepresentation to the plaintiffs.

The consolidated cases are Alicea et al. v. DePuy Orthopaedics Inc. et al., case number 3:15-cv-03489; Barzel v. DePuy et al., case number 3:16-cv-01245; Kirschner v. DePuy et al., case number 3:16-cv-01526; Miura v. DePuy et al., case number 3:13-cv-04119; Stevens v. DePuy et al., case number 3:14-cv-01776; and Stevens v. DePuy et al., case number 3:14-cv-02341, in the U.S. District Court for the Northern District of Texas.

Ok – That’s quite enough for this week! See you at the bar.

Week Adjourned: 11.10.17 – Lyft, PNC, Chase

Top Class Action Lawsuits

Not wanting to hear from Lyft? Lyft got hit with a Telephone Consumer Protection Act (TCPA) class action lawsuit this week, alleging that ride sharing app, and employment social network Jobcase engaged in sending unsolicited text messages to prospective drivers.

According the complaint, filed by Mary Fente, Lyft and Jobcase, which also runs a subsidiary company that posts jobs called jobhat, sent spam text messages to Fente’s phone using an automated dialing system, in violation of the TCPA. The purpose of the text messages was to persuade Fente to become a driver for Lyft, she claims.

According to Fente, she had accessed Lyft’s website through an ad posted on Jobhat, previously.

The Lyft complaint cites the texts as reading “Maria, START NOW: Drive with Lyft, up to $1500/wk,” and the message contained a link to Lyft’s website. Fente said she did not consent to receiving text messages.

The proposed number of plaintiffs could be “in the several thousands, if not more,” and seeks class certification for any potential Lyft driver who received an automated text going back to August 10, 2013. Further, Fente seeks to enjoin Jobcase and Lyft from sending the texts, and asks a judge to triple the $1,500 statutory damages under the TCPA for each message.

In the proposed action, Fente states that the spam texts caused her “actual harm, including invasion of her privacy, aggravation, annoyance, intrusion on seclusion, trespass, and conversion.” Additionally, the unsolicited texts caused her to check her phone at work, which meant she had to stop what she was doing to check her phone.

Lyft has an agreement with Jobcase to pay the company a fee based on how many prospective drivers Jobcase steers to Lyft’s website, the complaint states.

The case is Fente et al. v. Jobcase et al., case number 1:17-cv-24082, in the U.S. District Court for the Southern District of Florida. 

How do you define unjust enrichment? A national consumer banking class action lawsuit filed against PNC Bank is alleging a version of it that goes like this: according to the complaint, customers with delinquent loans are being charged fees by PNC’s mortgage servicing unit, repeatedly, for “unreasonable and inappropriate” drive-by property inspections. Drive by inspections? Read on.

Filed in federal court by Rosemary Marsh of Bremerton, WA, the complaint asserts that she was charged for six drive by inspections, at $12 each, over a span of 17 months, after she fell behind on her mortgage in 2013.

“The inspector drives by the property ostensibly to assess whether the property is occupied, being maintained, and has not been damaged,” the complaint states.

According to the PNC mortgage property inspection lawsuit, the bank automatically orders the property inspections at regular intervals without regard to whether they are needed or reasonable.“Property inspections are even performed when PNC is aware that a property is not vacant,” the plaintiff asserts. By way of example, in the case of a borrower who only misses one month’s payment but continues to make regular monthly payments, “PNC’s system will continue to generate work orders for property inspections until the initial default is cured,” according to the complaint. “These computer-generated inspections are unnecessary and unreasonable, confer no benefit to the lender and serve no purpose other than to generate revenue for PNC,” the lawsuit states.

Marsh alleges that even after verifying she was occupying the home, and after she had resumed making monthly payments on her loan, PNC ordered and assessed inspection fees.

The lawsuit claims unjust enrichment, and violations of the Washington State consumer protection laws.

Marsh contends that Class Members have suffered injury-in-fact and/or actual damage, and as a result, Plaintiff and the Class Members are entitled to a disgorgement of all amounts by which the Defendant has been unjustly enriched, as well as their actual damages, punitive damages, among other relief.

Marsh brings this action seeking injunctive relief and damages on behalf of herself and the hundreds of thousands or millions of borrowers who have been victimized by PNC’s uniform practice of charging for unreasonable and inappropriate property inspection fees. The lawsuit seeks certification of a national class and a Washington class. 

Top Settlements

Chase to settle overtime lawsuit… Bet these plaintiffs are celebrating. JP Morgan Chase & Co has agreed to pony up no less than $16.7 million as settlement of an unpaid overtime class action lawsuit.

The settlement address claims made by assistant branch managers that Chase misclassified them as exempt from overtime, in violation of federal and state employment laws.

There are four classes of plaintiffs, one which brings claims under the Fair Labor Standards Act (FLSA), and three putative classes, which claim violations of New York, Connecticut and Illinois laws respectively. Under the proposed deal, plaintiffs should receive an average of more than $3,000 per class member, in respect of unpaid overtime dating back to 2012. The deal covers approximately 5,400 employees.

The class action was filed in March 2014 and certified in September 2016. The putative classes filed a lawsuit in April 2015 after attempting to negotiate directly with the bank, according to the agreement. The two lawsuits were eventually consolidated by the court, following certification of the FLSA class.

“Given all the risks plaintiffs faced (obtaining class certification, maintaining collective action certification, defeating the class and collective action arbitration waivers, winning liability, proving damages, winning the appeal, etc.) and recognizing that plaintiffs did not work overtime in multiple weeks per year when they took time off or when there were bank holidays, an average gross settlement of about $3,086 is reasonable in this highly-contested matter,” the proposed Chase settlement agreement states.

The cases are Taylor et al. v. JPMorgan Chase & Co. et al., case number 14-cv-01718, and Varghese v. JPMorgan Chase & Co. et al., case number 1:15-cv-03023, in the U.S. District Court for the Southern District of New York. 

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

Week Adjourned: 11.3.17 – Vizio, TGI Friday’s, Amla Legend

Top Class Action Lawsuits

Flash in the Pan? Vizio got hit with a consumer fraud class action lawsuit this week over allegations its smart TVs aren’t up to the job, and the company knew it.

The complaint was filed by consumers who allege the “smart” televisions they purchased between 2012 and the present don’t work as advertised.

Specifically, the Vizio complaint alleges that Vizio “smart” TVs were marketed as such based on their ability to access Apps such as YouTube and others. However, they failed to warn consumers that there would come a time when the service would no longer work.

The reason that many of these TVs don’t function properly is due to the fact that they use an older Flash-based Application Programming Interface (API) and not the newer HTML5-based API systems. As of June 26, 2017, YouTube no longer works on TVs with the Flash-based API.

Although Vizio has sold TVs with the newer API since 2013, the company hasn’t offered any remedy to consumers with TVs using the Flash-based programming. Instead, they have offered them the same advise as YouTube, which is to buy an external streaming device such as a Google Chromecast.

According to the Vizio lawsuit, “Defendant sold Affected Smart TVs to consumers by promoting them as inherently different from traditional television sets based on their ability to access video streaming entertainment apps. Defendant promoted Affected Smart TVs as having all the convenience of smartphones and computers with the ease and convenience of using a familiar device – the television set – in the comfort of consumers’ living rooms. To lure consumers in, Defendant promoted its most popular Affected Smart TV video streaming entertainment apps, including Netflix, Hulu, and YouTube. Specifically, Defendant promoted Affected Smart TVs by placing the YouTube logo on its packaging, in-store displays, and by displaying the YouTube app in its commercials and in online advertising to inform consumers that Affected Smart TVs came with YouTube access included upon purchase.”

According to the complaint, Vizio notified consumers of the issue by a posting on its website listing the affected models.

The proposed class includes anyone in the United States who purchased a Smart TV with one of the model numbers listed below.

The proposed class action also seeks to represent consumers who bought and still own affected Vizio TV sets and reside in Alaska, Arizona, California, Connecticut, Delaware, the District of Columbia, Florida, Georgia, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Missouri, New Hampshire, New Jersey, New York, North Carolina, North Dakota, Ohio, Rhode Island, Texas, Vermont, Washington, and West Virginia.

The model numbers allegedly affected are:

241i-A1* E241i-A1w* E291i-A1* E320i-A0* E390iA1* E3D320VX* E3D420VX* E3D470VX* E3DB420VX* E420d-A0* E420i-A0* E420i-A1* E422VA* E422VL*E422VLE* E423VL* E470i-A0* E472VL* E472VLE* E500d-A0* E500i-A0* E500i-A1* E550i-A0*E550i-A0E*E551d-A0* E551i-A2* E551VA* E552VL* E552VLE*E601i-A3* E650i-A2* E701i-A3* M320KD*M320SL*M320SV* M370SL* M370SR* M370SV* M3D420SR* M3D421SR* M3D460SR* M3D470KD*M3D470KDE* M3D550KD* M3D550KDE* M3D550SL*M3D550SR* M3D650SV* M3D651SV* M420KD*M420SL*M420SR* M420SV* M470KD* M470NV M470SL*M470SV* M472VL* M550KD* M550SL*M550SV*VBR121* VBR122* VBR133* VBR135* VBR140* VBR370*

The Case is 3:17-cv-05897.

Top Settlements

TGI Settlement Time? This time TGI Friday’s might make it to the table after all. The settlement table that is. Further to a proposed settlement deal reached in September, 2017, preliminary approval has been granted for a revised $19.1 million settlement of an unpaid wage and hour action lawsuit brought against TGI Friday’s.

The original settlement was rejected by US District Judge Analisa Torres as she found the proposed class action’s confidentiality provision was impermissibly vague and its waivers and releases too broad. However, the revised settlement, if granted final approval, would see restitution for 28,000 TGI Friday’s tipped workers who had claimed violations of the Fair Labor Standards Act (FLSA), and the state and federal labor laws of California, Colorado, Connecticut, Florida, Illinois, Maryland, Michigan, New Jersey and New York.

TGI Friday’s has been ordered to transmit the settlement funds to the settlement account by November 9, and the claims administrator instructed to create and institute a dedicated website by the same date.

Upon final approval of the TGI Friday’s settlement, the workers would receive a pro rata share of the settlement based on the number of weeks they worked during the proposed class period, according to court documents.

The named defendants in the employment lawsuit are the restaurant chain TGI Friday’s Inc. and TGI Friday’s former owner, the hospitality firm Carlson Restaurants Inc.

The workers alleged the defendants improperly took a “tip credit” from their paychecks and paid them a reduced minimum wage, which in this case, is not allowed under the FLSA and state laws. The plaintiffs also claimed the restaurant owners failed to pay them all owed overtime and uniform-related expenses, misappropriated tips and took unlawful deductions for customer walkouts.

The case is Julio Zorrilla et al. v. Carlson Restaurants Inc., Carlson Restaurants Worldwide Inc. and TGI Friday’s Inc., case number 1:14-cv-02740, in the U.S. District Court for the Southern District of New York.

Burning Issue Resolved? L’Oreal has agreed to pony up some cash to settle a defective products class action lawsuit alleging the cosmetics giant misrepresented the safety of its hair relaxer, consequently causing injury to consumers. Relax and read on…

The lawsuit alleged that L’Oreal’s Amla Legend Rejuvenating Ritual Relaxer damages hair and causes burns and blisters on the scalp.

US District Judge Jed S. Rakoff certified a class of Florida purchasers who bought the product after December 1, 2012, and a class of New York purchasers who bought the product after August 19, 2013. Both classes are seeking full refunds based on allegations of unjust enrichment, according to court documents. Further, the New York class is seeking $50 in damages for each class member.

As well, classes of Florida and New York consumers seeking injunctive and declaratory relief were certified, because they claim they intend to buy hair relaxers in the future but can’t trust the advertising without injunctions barring L’Oreal from making the allegedly misleading statements, according to the filing. Judge Rakoff declined to certify national, multistate and non-economic injury classes of women.

According to court documents, “Each alleged injury in this case arose from the same product whose packaging contained the same allegedly misleading representations and omissions.”

The case is In re: Amla Litigation, case number 1:16-cv-06593, in the U.S. District Court for the Southern District of New York.

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