AbiK | Class Action News Blog

Week Adjourned: 9.13.13 – Dialysis Deaths, Auto Worker Severance Pay, Cipro

The week’s top class action lawsuits and settlements including Fresenius Granuflo Dialysis lawsuits, Auto Workers denied severance, and Cipro anti-trust partial settlement.

Top Class Action Lawsuits

Dialysis Death Lawsuit Update. The lawsuits continue against Fresenius Medical Care, the maker of Granuflo and Naturalyte. This week, they found themselves facing a wrongful death class action lawsuit filed by the widow of Earin Blossom. The potential class action, filed in the Northern District of California, alleges the makers of Granuflo and Naturalyte, and their subsidiaries “failed to exercise reasonable care in manufacturing and selling defective dialysis products known as Granuflo and and Naturalyte.”

Tina Nunn, who filed the lawsuit on behalf of herself, her late husband, and those similarly situated, alleges that the dialysates caused fatal complications and sudden death, and caused her husband to incur substantial medical expenses prior to his death.

According to court documents, Earin Blossom began hemodialysis treatments in November 2010. During the course of those treatments, which took place three times a week at a Fresenius dialysis clinic in Fremont, he received both Granuflo and Naturalyte additives. Then, on April 6, 2011, just a few hours after completing a dialysis treatment at the clinic, Blossom suffered a massive heart attack and died.

The lawsuit alleges that Blossom’s metabolic alkalosis, cardiac arrest and subsequent demise were a direct and proximate result of his use of Granuflo and/or Naturalyte. The lawsuit also claims that the defendant knew its products resulted in excess bicarbonate levels in patients, often leading to metabolic alkalosis, a dangerous condition associated with heightened risks for heart attack, cardiac arrhythmia and sudden death.

Both Fresenius Medical Care products—Naturalyte and GranuFlo—are used in the treatment of acute and chronic renal failure during hemodialysis. The concentrate is formulated to be used with a three-stream hemodialysis machine, which is calibrated for acid and bicarbonate concentrates, according to the FDA safety recall initiated in March 2012. The recalled Naturalyte Liquid Acid Concentrate and Naturalyte GranuFlo (powder) Acid Concentrate was manufactured and distributed from January 2008 through June 2012.

An internal memo issued by Fresenius on November 4, 2011 warns that the GranuFlo and NaturaLyte products could lead to a greater risk of cardiac arrest and other heart problems. The memo, which was anonymously leaked to the FDA earlier this year, warned doctors working in Fresenius dialysis centers only that 941 dialysis patients suffered cardiac arrest in 2010 from GranuFlo use. Dangerously high biocarbonate levels would put their patients at a risk of cardiac arrest up to six times higher than that of patients using competing products.

No comment.

Top Settlements

Auto Workers Get $6M. And justice for all…all employees that is—and in this particular case it takes the form a $6 million settlement of a California labor law class action lawsuit alleging discrimination and unfair dismissal. Brought by former employees of Freemont-based New United Motors Manufacturing, Inc. (NUMMI), California’s last auto plant, the lawsuit, alleged that employees who were on disability at the time of the plant closure, were denied the severance benefits.

Specifically, the NUMMI workers’ lawsuit alleged that employees who were on disability in the period between October and the plant’s closure on April 1st did not receive benefits and services offered to employees who were not on disability during that same period. Those benefits and services included a severance package including a base payout with an additional retention bonus determined by years worked at the plant. The plant employees working between October 1st and April 1st were also offered transitional services, including access to a one-stop center, career and educational fairs, and skills assessments.

The plaintiffs also claimed that they, being on leave due to their disabilities and/or NUMMI’s refusal to accommodate their disabilities, were unjustly denied the bonus enhancement and transitional services. Further, the workers alleged in their complaint to the Equal Employment Opportunity Commission (EEOC) that they were physically capable of returning to work during the severance period, but were denied reinstatement. The EEOC issued “right to sue” letters to several NUMMI workers, while retaining the right to continue its investigation.

While the EEOC charges were pending, a group of former employees filed a federal lawsuit in the United States District Court for the Northern District of California. The plaintiffs filed claims for declaratory and injunctive relief, as well as damages for violations of the Americans with Disabilities Act, The Fair Employment and Housing act, the Unfair Business Practices Act, and California’s Public Policies.

The plaintiffs sought reformation of the severance agreement, restitution, lost compensation and other employment benefits and compensatory and punitive damages, and reasonable attorneys’ fees and costs for the defendants’ violations of their rights. Defendants named in the suit included New United Motors Manufacturing, Toyota Motor Corporation and Toyota Motor Sales. A class certification was later granted. Prior to the EEOC’s filing its own lawsuit, the matter was resolved via settlement for $6 million. As a part of the settlement, NUMMI entered into a conciliation agreement with the EEOC.

Floxed But Not Fleeced? Last—but certainly not least—the 900lb gorilla—Bayer—reached a partial settlement in an antitrust class action lawsuit involving the prescription antibiotic Cipro. The lawsuit claims Bayer Corporation, Barr Laboratories, Inc., Hoechst Marion Roussel, Inc., Watson Pharmaceuticals, Inc., and The Rugby Group, Inc. violated antitrust and consumer protection laws by agreeing not to compete with each other, and by keeping lower-cost generic versions of Cipro off the market. This settlement is with Bayer Corporation only; the case against the other manufacturers continues.

FYI—neither the case nor the settlement is about the safety or effectiveness of Cipro. Bayer has paid $74 million into a settlement fund that will compensate consumers and third-party payors (Class Members) who paid or reimbursed for Cipro in California between January 8, 1997 and October 31, 2004. Cipro purchasers not eligible for settlement payments include: (1) anyone who received Cipro through the MediCal Prescription Drug Program, (2) anyone who purchased Cipro to resell it, (3) government entities, (4) the manufacturers and related entities being sued, and (5) all purchasers of Cipro who paid a flat co-payment and who would have paid the same co-payment for a generic version under their health insurance policy.

Individual payments will be based on the total number of valid claims filed and how much the Class Member paid or reimbursed for Cipro. Attorneys’ fees not to exceed one-third of the fund, litigation costs, and other fees and expenses will be deducted prior to distribution. Full details about the settlement can be found in the Settlement Agreement, which is available at www.CiproSettlement.com.

Class Members must submit a claim form by March 31, 2014 in order to get a payment. The claim form and instructions on how to submit, together with complete details of the settlement are available at www.CiproSettlement.com.

Ok Folks, That’s all for this week. Have a good one—see you at the bar!

Week Adjourned: 9.6.13 – Alpha Centurion, Bad Berries, Merrill Lynch, JP Morgan

The week’s top class action lawsuits and settlements, for the week ending September 13, 2013. Top stories include Alpha Centurion, Bad Berries, Merrill Lynch, JP Morgan

Top Class Action Lawsuits

Security Co. Securing 20% off Top of Employee Pay Advances? Alpha Centurion security company is facing a consumer fraud class action lawsuit filed by a former employee who alleges the company violated federal law by levying a large finance charge on workers who request an advance on their pay. According to the lawsuit, defendants are unlawfully imposing a 20 percent finance charge on employees’ pay advances. Yikes!

Filed by Jonathan J. DiBello, in the US District Court in Philadelphia, the lawsuit names Alpha Centurion, which provides security guards to private and governmental entities, as well as the company’s owner and chief executive, Joanna Small, and its chief of operations, Patrick A. Panetta, who are husband and wife, as defendants. DiBello, worked for Alpha Centurion from December 2006, first as a security guard and later as a field supervisor.

According to the Alpha Centurion lawsuit, the defendant pays its employees once every two weeks. However, it has a policy of allowing its employees to obtain advances on their wages but only if the employee agrees to a 20 percent finance charge.

In the lawsuit DiBello questions whether a pay advance fee is usurious interest, whether liability arises under the Racketeer Influenced Corrupt Organizations Act for the collection of an unlawful debt, whether the company is liable for failing to make material disclosures under the Truth-in-Lending Act, and whether Alpha Centurion is liable under the Pennsylvania Wage Payment and Collection Law for failing to pay employees their full wages.

According to the lawsuit, on an annualized basis, the 20 percent finance charge equates to an interest rate of 1,042.85 percent A.P.R. on a seven-day loan or 521.42 percent on a 14-day loan.

DiBello paid the 20 percent finance charge on every advance he took, according to the lawsuit, which was automatically deducted from his paycheck. Over a one-year period, provided that DiBello took a $200 advance each pay period, the plaintiff would have paid an aggregate finance charge of $1,040, nearly all of which would be usurious interest, the complaint alleges.

DiBello seeks to represent a class of plaintiffs consisting of all present and former Alpha Centurion employees who took pay advances within four years prior to the filing of the civil action.

The company is believed to regularly employ between 100 and 200 workers, many of whom have apparently taken pay advances. “A class action is a superior means to fairly and efficiently adjudicate this dispute,” the suit reads. “Without a class action it is unlikely anyone would ever obtain a recovery.”

Alpha Centurion has made “usurious payday advances” for years, the suit states, although to date no employee has ever brought an individual action to recover the interest charges. No kidding. Even the big banks wouldn’t try for that. Although…

Berry Bad? OK—you’re not going mad—this is the second food poisoning class action filed against Townsend Farms Mixed Berries. The class action lawsuit was filed against an Oregon-based fruit grower this month, alleging the plaintiff had to seek medical care after consuming a frozen berry mix tied to hepatitis A outbreaks in Colorado and other western states.

This mixed berries lawsuit, was filed by Suzanne Faber, who alleges she sought a hepatitis A vaccination after consuming The Townsend Farms Organic Antioxidant Blend of berries she purchased from a Costco at 5050 N. Nevada Ave. in Colorado Springs. She does not specify whether she contracted hepatitis A. The mixed berries have since been removed from Costco stores.

The Townsend Farms Organic Antioxidant Blend was responsible for sickening 161 people in Colorado, New Mexico, Nevada, Arizona, Utah, Hawaii, Washington, and California, according to a September 13 public health notice by the Centers for Disease Control and Prevention (CDC).

The mixed berries and pomegranate seeds were sold at Costco stores beginning in early 2013 and subsequently removed in May, when the CDC announced the finding of Hepatitis A contamination. Costco also issued a product recall and warned customers against consuming the berries.

Hepatitis A is a chronic liver disease that causes fatigue, nausea, vomiting, and a yellowing of the eyes and skin, among other symptoms. The disease is associated with foods tainted with fecal matter, and the illness can last from several weeks to several months. In some cases hepatitis A can be fatal.

According to the CDC, 70 consumers required hospitalization after contracting the disease. No deaths were reported.

Purely Pomegranate Inc, is also named as a defendant in the lawsuit, as the Hepatitis A contamination was linked to a shipment of pomegranate seeds Townsend Farms received from Purely Pomegranate, which had, in turn, been imported from a producer in Turkey.

The class seeks to represent anyone who ate the tainted berries and contracted hepatitis A or underwent testing or vaccination for the disease. People who came into close contact with sickened consumers are also eligible.

Top Settlements

Cough it up Boys. A $39 million settlement has been reached in the gender bias class action lawsuit pending against Merrill Lynch, now owned by Bank of America Corp (BoFA). The lawsuit was brought by female brokers who claimed they were paid less than men and deprived of handling their fair share of lucrative accounts. Approximately 4,800 current and former female financial advisers and trainees at Bank of America and Merrill are eligible for this settlement.

According to a report by Reuters.com, the gender bias class action settlement was disclosed less than two weeks after news that the bank reached a $160 million settlement with hundreds of black Merrill Lynch & Co. brokers who alleged racial bias in pay, promotions and how large accounts were allocated.

The lawsuit, entitled The gender case is Calibuso et al v. Bank of America Corp et al, U.S. District Court, Eastern District of New York, No. 10-01413, alleged that female financial advisers and trainees were intentionally discriminated against by Bank of America and Merrill because the defendants favored male brokers when awarding pay, allocating client accounts and referrals, and providing professional and marketing support.

According to court papers, such practices created a “cumulative advantage” effect that perpetuated and widened earnings disparities by gender. Bank of America was also accused of retaliating against female brokers who complained of bias.

Under the terms of the settlement agreement, BoFA will retain an independent monitor to oversee improvements to its practices. Additionally, it must hire a consultant to study how it “teams” brokers and how its teaming practices affect the allocation of accounts.

Bank of America is based in Charlotte, North Carolina, and said it ended June with nearly 15,800 financial advisers.

$300 Million Happy Ending. Yup—$300 million is the proposed force placed insurance settlement amount in a federal class action lawsuit pending against JPMorgan Chase & Co, and Assurant. The lawsuit alleged the defendants were overcharging homeowners for forced-placed insurance.

Under investigation by attorneys representing the plaintiffs since 2010, the lawsuit was filed in June 2012 on behalf of borrowers with forced place insurance policies as of June 2008. The lawsuit alleged the banking and insurance firms enriched themselves by more than $1 billion over five years, by forcing insurance on homeowners who declined to purchase insurance themselves.

If approved, the settlement would see Chase and Assurant pay 12.5 percent cash refunds to class members who paid the premiums of the force placed insurance and a 12.5 percent credit to class members who were charged the premiums but never paid them. This applies even if the borrowers already lost their homes.

Additionally, Chase has agreed to stop allowing its insurance agents to collect commissions from making force-placed insurance policies.

Well Done!

Ok Folks, That’s all for this week. Have a good one—see you at the bar!

Week Adjourned: 9.20.13 – LinkedIn, Dish Network, BJ’s Wholesale Clubs

The week’s top class action lawsuit and settlement new for the week ending September 20, 2013. Top class action lawsuits include LinkedIn, Dish Network and BJ’s Wholesale Club.

Top Class Action Lawsuits

Heads up for everyone who’s on LinkedIn (who isn’t?), they got hit with an Internet privacy class action lawsuit alleging the company hacked into its subscribers’ email accounts without consent, and harvested the email addresses. Surprise, surprise.

Filed by four LinkedIn users in the in US District Court in San Jose, the LinkedIn lawsuit contends “The hacking of the users’ email accounts and downloading of all email addresses associated with that user’s account is done without clearly notifying the user or obtaining his or her consent.”

The four plaintiffs do acknowledge that LinkedIn asked permission, however they allege the networking site never disclosed it would inundate the plaintiffs’ friends with email invitations. “LinkedIn’s own website contains hundreds of complaints regarding this practice,” the complaint states.

The plaintiffs are asking that LinkedIn be barred from the practice and turn over any revenue that results from it. The lawsuit is seeking class action status and unspecified damages.

Employees Dish-ed a Dirty Deal? They think so, at least according to an employment class action lawsuit they filed against Dish Network, and a satellite installation company, Dish Country, Inc., over allegations the companies are in violation of State and Federal wage and hour laws.

Here’s the skinny—filed on September 13, 2013 in Federal District Court, the lawsuit alleges that Dish Country, Inc. and Dish Network engaged in the practice of employee misclassification, in which Dish Country, Inc. would repeatedly and routinely misclassify their employees as “independent contractors” to avoid having to follow State and Federal labor laws. How original.

The Dish class action also alleges that defendants routinely made arbitrary illegal deductions from the employees paychecks; deprived employees of a 30 minute uninterrupted lunch break; failed to compensate employees for all hours worked; failed to provide employees with mandatory disclosures concerning their rate of pay; failed to provide employees with mandatory disclosures related to wage deductions; deprived employees of overtime; and wrongfully denied the misclassified employees from several ERISA benefit plans.

The class action lawsuit is filed on behalf of all non-exempt employees that worked as a misclassified satellite installation technician for Dish Country, Inc. Go Get’em!

Top Settlements

BJ’s Busted? So, while we’re on the subject of employment, unpaid wages and overtime and employee misclassification, I am pleased to inform you that a $2.7 million settlement has been reached in the unpaid wages and overtime class action lawsuit pending against BJ’s Wholesale Club Inc. Under the terms of the proposed settlement, BJ’s, one of the largest food retailers in the US, will compensate its employees who allege they weren’t fully paid for overtime.

The lawsuit, entitled, Gene Cintron, et al. v. BJ’s Wholesale Club Inc., Case No. 1:12-cv-11064, in the U.S. District Court for the District of Massachusetts, alleges BJ’s purposefully misclassified key managers, including loss prevention managers, asset protection managers and personnel managers, in order to avoid paying them overtime. The unpaid wages and overtime lawsuit was filed against BJ’s in June 2012. Specifically, the plaintiffs claim they were “required” to work in excess of 40 hours a week without overtime compensation. The plaintiffs allege this is in direct violation of the Fair Labor Standards Act (FLSA) as well as state laws. According to the lawsuit, there are only a few of the positions at BJs which are exempt from overtime. The employees in this class action were incorrectly put in those categories as a means of avoiding overtime payments.

Plaintiffs are asking the judge to certify a proposed class of all BJ’s managers who worked for the company from July 19, 2009, until the present. They are also seeking certification of a sub-class of employees who worked in 15 states, including Connecticut, Delaware, Florida, Georgia, Maine, Maryland, Massachusetts, New Hampshire, New Jersey, New York, North Carolina, Ohio, Pennsylvania, Rhode Island and Virginia. Let’s hope this is a happily ever after kind of scenario…

Ok Folks, That’s all for this week. Have a good one—see you at the bar!

Week Adjourned: 5.13.11

Top Class Actions

Put your paycheck on a diet? These women don’t think it’s a such a good idea. Two Long Island women who worked for Jenny Craig filed a unpaid wages class action lawsuit, alleging that the well-known weight-loss chain put their paychecks on a diet.

The women, in a suit filed May 10 In New York State Supreme Court in Manhattan, claim that Jenny Craig Operations Inc., the Carlsbad, Calif.-based chain owned by multi-national food giant Nestlé’s, improperly shortchanged them by a 1/2 hour a day for every shift they worked, even though they worked during their 30-minute break times. The alleged underpayments violate New York’s labor laws, according to court papers.

The suit, which seeks class action status, was filed by Tammy Weinstein, of Bellmore, who has been a program director and weight loss consultant since November 2002 at Jenny Craig locations in Valley Stream and Massapequa, and by Melissa Pallini, of Holbrook, who was a weight loss consultant, program director, part time receptionist, and stocker from June 2008 until June 2010 at the chain’s East Patchogue location.

The suit seeks to represent all New York employees of Jenny Craig who worked as weight loss consultants, receptionists, stock persons, program directors and any other employee at Jenny Craig weight-loss centers. According to court papers, the class included more than 500 people who’ve worked at Jenny Craig since May 2005. The chain has 30 locations statewide, 10 of them on Long Island, in Centereach, E. Patchogue, Great Neck, Farmingdale, Freeport, Hicksville, Huntington Station, Massapequa and Valley Stream.

The employees worked about 15 to 35 hours a week on shifts of five to eight hours one day to five days per week, according to court papers.

Jenny Craig, a commercial program that features portion-controlled, prepackaged meals supplemented by store-bought vegetables and fruit, received top marks this week from Consumer Reports for diet success. The chain offers support through weekly counseling sessions.

The diet chain’s celebrity spokespersons have included actress Kirstie Alley, Valerie Bertinelli, Queen Latifah, actresses Sara Rue and Nicole Sullivan, actor Jason Alexander and, since January, actress Carrie Fisher.

Top Settlements

Where there’s smoke, there’s gas… This is certainly an interesting twist on an old theme. A Flordia judge recently ruled in favor of the plaintiffs in litagation over defective Chinese drywall. The Hillsborough County judge, Robert Foster, ruled that homeowners’ insurance should Continue reading “Week Adjourned: 5.13.11”