Class Action - Part 12

Week Adjourned: 2.19.16 – Amazon, Maytag, Uber

Top Class Action Lawsuits

Amazon Primed for a Lawsuit? How much was that again? Amazon got hit with a consumer fraud class action lawsuit this week, alleging false advertising and consumer fraud. Brought by named plaintiff Gregory Harris, the lawsuit claims Amazon charged Harris, and others similarly situated, fees that were additional to advertised products’ purchase prices. Heard this one before? Oh yeah baby!

Specifically, Harris claims that Amazon represents to consumers they can use its services to purchase products directly from its website at no cost to the consumer besides the cost of the product. However, the lawsuit alleges, Amazon.com charged Harris and others in the class additional fees, specifically an “Amazon Prime” membership fee.

The Amazon lawsuit claims violations of the Electronic Funds Transfer Act, violations of California’s Consumer Legal Remedies Act, and violations of California’s Unfair Competition Law.

Harris and others in the class seek injunctive relief, actual damages, punitive and statutory damages, interests, attorney fees and other costs of the suit. The case is: Superior Court of California County of Los Angeles Case number BC606984

All Coming out in the Wash..? Round and round and round we go… what number lawsuit is this for Whirlpool? We’ve lost count. This consumer fraud class action lawsuit alleges the company misrepresents the efficiency of certain models of its washing machines.

Specifically, that Whirlpool promoted certain Maytag Centennial model washing machines as Energy Star-qualified, labeling the machines with the Energy Star logo. However, these washing machine models do not meet the Energy Star efficiency standards and in fact use more water and energy than stated on the labels. Oh, that’s great. So, just slap a sticker on and you’re good to go, is that the idea? Maybe…

According the Whirlpool Maytag lawsuit, the US Department of Energy requires that Energy Star-qualified washing machines must use approximately 50 percent less water and 37 percent less energy than standard models. However, the plaintiffs claim that he and others similarly situated paid more for these models but did not save as much as they should have on water and energy bills over time using the machines.

Filed by Walt Famular, individually and for all others similarly situated, the lawsuit alleges breach of express warranty, unjust enrichment, and violations of the New York General Business Law.

The lawsuit seeks statutory, compensatory and punitive damages, plus interests, restitution and disgorgement, injunctive relief, attorney fees and other costs of the suit. U.S. District Court for the Southern District of New York Case number 7:16-VC-00944-VB.

Plaintiffs are represented by attorneys Scott A. Bursor, Joseph I. Marchese, Frederick J. Klorczyk III and Neal J. Deckant of Bursor & Fisher PA in New York.

Top Settlements

Uber Feeling the Sting…of high fees—in the form of a settlement, that is. The ride share and taxi company has agreed to pay $28.5 million to settle a consumer fraud class action lawsuit involving some 25 million riders who allege it mislead customers about its fees and safety procedures.

Specifically, the lawsuit claimed that Uber, which uses a smartphone app to receive ride requests and then sends the requests to its drivers, charged an extra “safe rides fee” to cover what the company called “industry-leading background checks” on its drivers.

Additionally, under the terms of the Uber settlement, Uber will not describe or title any fee that it charges for its services, including any charge for its rideshare services, as the “safe rides fee.” Further, the company agreed that it will not use the terms “best available,” “industry leading,” “gold standard,” “safest” or “best-in-class” in connection with its background checks, in any of its commercial advertising.

Uber has also agreed not to use the phrases “safest ride on the road,” “strictest safety standards possible,” “safest experience on the road,” “best in class safety and accountability,” “safest transportation option,” “background checks that exceed any local or national standard” or “safest possible platform” to describe its rideshare services.

Uber said it will rename the safe ride fee a “booking fee,” explaining that “It will be used to cover safety as well as additional operational costs that could arise in the future.”

Better buckle up!

Ok…So, that’s a wrap folks… See you at the Bar!

Week Adjourned: 2.12.16 – Nissan, Target, TVM

Top Class Action Lawsuits

Heads Up Owners of 2011-2012 Nissan Frontier Trucks… Nissan North America got hit with a defective automotive class action lawsuit this week over claims its side air bags are, well, just a little too enthusiastic. Plain English—the air bags deploy unnecessarily.

Filed by plaintiff Bobette Brantley, the Nissan airbag lawsuit asserts that the automaker designed side air bags in 2011-2012 Nissan Frontier trucks to inflate in rollover and near rollover conditions. However, it failed to warn consumers about how sensitive the air bags and seatbelt pretensioner igniters actually are. The seatbelt pretensioner igniters tighten any slack in seatbelts during an accident.

The lawsuit states that a defect in the class vehicles causes the side curtain air bags to deploy simultaneously and unnecessarily while also causing the seat belt pretensioner igniter to deploy. Once this happens, the vehicles are no longer safe to drive and consumers must pay thousands of dollars to have extensive repair work done. Adding insult to injury, Brantley also claims that Nissan refuses to pay for the resulting repairs.

According to the lawsuit, “The deployment of the side curtain air bags and the seatbelt pretensioner igniters is extremely distracting to drivers of class vehicles. The distraction is of such a magnitude that drivers of class vehicles are at risk of losing control of class vehicles, greatly increasing the possibility of a traffic accident, and injury.”

In the suit, Brantley states that while she was driving her vehicle in December, in a way that she said Nissan represented the vehicle can be driven, the side curtain air bags suddenly and unexpectedly deployed, causing her to nearly lose control of the vehicle. As a result, she spent thousands of dollars to restore her Frontier to a safe, driveable condition.

Brantley asserts that Nissan was aware of the alleged defect as a result of consumer complaints, internal testing and dealership repair records. However, she claims, the automaker failed to disclose the defect and, in fact, actively concealed it from consumers.

The suit further claims that evidence of Nissan’s knowledge of the alleged defect can be seen in the owner’s manual for the Frontier, which states that the curtain air bags are designed to inflate in rollover or near rollover conditions and can inflate due to certain vehicle movements such as severe off-roading.

“It is plaintiff’s contention, based upon plaintiff’s own experiences, and based upon plaintiff’s awareness of the complaints of other class members, that the class vehicles are too sensitive. As a result the ‘near rollover conditions’ design threshold, which signals the side curtain air bags and seatbelt pretensioner igniters to deploy, signals deployment under conditions where there is no true risk of a rollover,” the complaint states.

Brantley asserts Nissan refused to warn customers about the alleged defect, refused to remedy the defect and refused to compensate customers for any damages resulting from the defect.

The suit seeks certification of a class consisting of everyone who has bought or leased a class vehicle, as well as an order holding Nissan financially responsible for the defect, enjoining the automaker from continuing its deceptive practices, requiring the automaker to fix the defect and making Nissan disgorge part or all of its profits received from the sale or lease of the class vehicles.

The case is Brantley v. Nissan North America Inc. et al., case number BC609400, in the Superior Court of California, County of Los Angeles.

Target not on Target with Overtime Pay? The discount retailer got hit with an employment class action lawsuit this week. Filed in New York, by Robert LaPointe Jr, on behalf of himself and others similarly situated, the Target lawsuit claims violations of New York Labor Law, specifically, that Target failed to compensate him for overtime worked.

According to the suit, LaPointe worked for Target as an operations group leader in the company warehouses in New York from 2011 to 2015. While at work, the suit states that LaPointe regularly worked in excess of 40 hours per week.

LaPointe asserts that Target failed to pay an overtime premium to him and others in the class for additional hours worked. This, the suit states, is because the employees were misclassified as exempt from the overtime requirements of the New York Labor Law. Additionally, the suit claims Target failed to provide accurate wage statements.

LaPointe and others in the class seek to recover unpaid overtime wages, interests, statutory penalties, injunctive relief, attorney fees and other court costs.

The case is U.S. District Court for the Southern District of New York Case number 1:16-cv-00656-VSB.

Top Settlements

TVM Award for the Victim…This settlement makes two out of two for the plaintiffs. A $13.5 million verdict has been awarded by a Philadelphia jury in the second transvaginal pelvic mesh injury lawsuit pending against Johnson & Johnson, and its subsidiary Ethicon, makers of the defective pelvic mesh.

The jury agreed that an Ethicon Inc. transvaginal tape product, known as TVT, was not reasonably safe, and that plaintiff Sharon Carlino’s physician would never have implanted the product had he been aware of its risks.

In her suit, Carlino claimed that as a result of having the defective pelvic mesh implanted, she was in near constant pain and discomfort, and was unable to have sex.

The transvaginal mesh verdict is the second damage award against Ethicon. The company is facing nearly 180 cases consolidated as part of a mass tort program in Philadelphia County’s Court of Common Pleas, which began to go to trial in December.

In the initial case, the jury awarded $12.5 million to the plaintiff, agreeing that Ethicon’s Prolift pelvic mesh product was negligently designed and that a physician who implanted the product in plaintiff Patricia Hammons in 2009 received inadequate warnings about the risks.

This most recent verdict returned for Carlino includes $10 million in punitive damages, $3.5 million in compensatory damages, and another $250,000 to Carlino’s husband for loss of consortium.

The case is Carlino et al. v. Ethicon Inc. et al., case number 130603470, in the Court of Common Pleas of the State of Pennsylvania, County of Philadelphia.

Ok! So, that’s a wrap folks… See you at the Bar!

Week Adjourned: 2.5.16 – Victoria’s Secret, Dr. Oz, Bayada

Top Class Action Lawsuits

Not so Sexy Texts… For years the prevailing urban myth is that the biggest subscriber base for Victoria’s Secret catalog is men—particularly those that work in isolated environs such as oil rigs, mines—you get the picture. Now, the angel of lingerie (maybe that should be “the god of” ) is facing a Telephone Consumer Protection Act (TCPA) class action lawsuit based on allegations the company sent unsolicited text message advertisements.

The Victoria’s Secret texting lawsuit was filed by a man. Love it. Women, I’m not sure, would necessarily mind prompts on this subject—but hey—could be wrong, and—importantly—most women are likely not looking at or for the T&A component. If that’s missing from the spam, then why not file a lawsuit.

I digress.

Here’s the skinny: filed in California by Michael Hannegan, individually and for all others similarly situated, the lawsuit asserts that Victoria’s Secret sent unauthorized text message advertisements to cell phones of consumers across the country, to Hannegan and the others, in violation of the TCPA.

Consequently, Hannegan has suffered an invasion of privacy and incurred costs for the receipt of such wireless spam, the lawsuit states.

Hannegan and others in the class seek an injunction, statutory or actual damages, plus attorney fees and costs. The case is: U.S. District Court for the Central District of California Case number 8:16-CV-00125-JLS-JCG. So if the Angels in B cups have been spamming you—you better get on it!

Pulling Back the Curtain on Oz? Ok, you knew this was coming—at some point it just had to. Dr. Oz got hit with a consumer fraud class action lawsuit this week, as well as Labrada Bodybuilding Nutrition Inc., alleging claims that weight loss products made by the defendants are false and misleading. If it walks like a duck and it quacks like a duck…

The sorta short read—the suit was filed by Vera Woodard of California, in which she asserts she was tricked into buying a number of nutritional products sold by former bodybuilding champion Lee Labrada’s company, because they contained “magic ingredients” purported to be “revolutionary fat busters” by Dr. Mehmet C. Oz during his daytime talk show. (Quack, Quack).

In fact, the Dr. Oz lawsuit asserts, the pills are worthless with little scientific evidence they promote weight reduction. Hey—what about the placebo effect?

“As a renowned surgeon at Columbia University with specialized medical and scientific knowledge, Dr. Oz knew that the claims he was making about the supplements being ‘miracle fat busters’ were patently false or misleading consumers,” the lawsuit states. “Dr. Oz concealed his fraud by affirmatively representing to consumers that he was giving his objective opinion about the products based on his specialized knowledge.”

According to the lawsuit, Woodard bought the Labrada Garcinia Cambogia Dual Action Fat Buster, the Labrada Green Coffee Bean Extract Fat Loss Optimizer and the Labrada Raspberry Ketones Metabolic Enhancer products sometime around June 2013, paying between $15 and $20 a bottle, after she saw episodes of “The Doctor Oz Show” in which he promoted those herbal supplement ingredients as being “miracles in a bottle” when it comes to weight loss.

However, the lawsuit contends that while Dr. Oz regularly reminds audiences that he’s not attempting to sell any products, he does not mention that some of his “nutritional expert” special guests are in fact paid spokespeople for certain supplement products.

By way of example, the lawsuit cites an episode in which the weight-loss benefits of garcinia cambogia, were discussed. Dr. Oz introduced a guest doctor as being at the forefront of “revolutionary research that says garcinia could be the magic ingredient that lets you lose weight without diet and exercise,” yet that doctor turned out to be a paid researcher for Interhealth Neutrceuticals Inc., which is also named defendant in the suit, according to the complaint.

Additionally, the suit states that studies published by the Journal of the American Medical Association and other publications have shown that garcinia cambogia and green coffee bean failed to produce any significant weight loss, and there is zero evidence showing that raspberry ketones can help trim fat.

Woodward seeks to represent a nationwide class of consumers who were “duped” into buying “worthless” weight loss supplements containing garcinia cambogia, green coffee bean extract and raspberry ketones from the Labrada and others.

The case is Veda Woodard v. Lee Labrada et al., case number 2:16-cv-00717, in the U.S. District Court for the Central District of California.

Top Settlements

Ruling for Bayada Workers… Here’s a major step forward for home care workers in Colorado. A federal judge has issued the final ruling on an employment class action lawsuit this week, filed against Bayada by its home health care workers. The lawsuit alleged the company failed to pay overtime wages. Boy, this just never gets tired, does it.

And justice prevailed. In her ruling on the Bayada overtime lawsuit, Judge Christine Arguello found that Colorado’s labor laws necessitate that overtime be paid if the worker is employed by a third-party agency.

The lawsuit was originally filed in Plaintiff Michele Kennett and a class of employees in July of 2014, alleging they were not paid overtime when in fact Colorado law necessitated time-and-a-half overtime compensation on all hours worked over 40 per week.

Bayada, based in Colorado, provides workers who deliver in-home health care services to clients with cognitive difficulties, physical disabilities, and/or chronic illnesses. The suit centered on whether home health aides are exempt from overtime protections under the Colorado Department of Labor’s Minimum Wage Order as “companion employees.”

The case is Kennett v. Bayada Home Health Care. Case 1:14-cv-02005-CMA-MJW

Consider the case finally settled and possibly a precedent set.

Ok, sothat’s a wrap folks… Happy Super Bowl Weekend!! …See you at the Bar!

Week Adjourned: 1.29.16 – Google, Disney, Lyft

Top Class Action Lawsuits

Couple of big names hit with employment class actions this week…

First up: Googlers Not Gettin’ Paid? A former Google recruiter has filed an unpaid overtime class action lawsuit against Google Inc, for class-wide wage and hour violations, asserting it illegally and deliberately cheated her and other employees of their wages.

Former Google contract employee Tymuoi Ha filed the complaint in Santa Clara Superior Court against Google, Inc. and Urpan Technologies (UrpanTech), one of the many staffing agencies through which Google acquires temporary and contract workers.

The Google unpaid overtime complaint alleges that Defendants violated the California Labor Code by denying employees compensation for all overtime worked, failing to pay owed wages upon separation from employment and not furnishing accurate wage statements.

It also alleges Google, working with staffing agencies like UrpanTech, hires recruiters on a contract basis and refuses to pay them for their many of hours of tireless work, attorneys representing Ha state. The companies restrict the number of hours recruiters can report, knowing that they must work overtime to meet performance goals. In return for the unpaid labor, the companies dangle the possibility of permanent employment. Talk about dangling a carrot…

I’m hearing “do no evil”…somewhere…

Plaintiff Ha seeks to recover damages, including unpaid wages, on behalf of herself and a California class of Google contract recruiters.

And then there’s Disney…the master of magic is facing an employment class action lawsuit filed by a former IT worker who claims Disney violated the anti-racketeering RICO statute by engaging in a “conspiracy to displace US workers.”

According to the Disney labor lawsuit filed by Dena Moore, an IT worker at Disney, the entertainment giant broke the law when it hired cheaper foreign replacements, then fired its current IT department. According to the suit, IT workers were told they would remain employed for 90 days while they trained their less expensive replacements, who were H-1B visa holders. The workers were also told that “if they did not stay and train they would not get a bonus and severance, which most employees reluctantly accepted,” the lawsuit asserts.

Moore also names labor contractor Cognizant Technology Solutions as a defendant in the suit, which goes on to claim that the defendants weren’t truthful when they filled out immigration documents, thus violating a section of the RICO law that bars “fraud and misuse of visas, passports, and other documents.”

This is one of two such suits filed against Disney claiming violations of the RICO statute. “Each making of false and fraudulent statement[s] on an individual visaholder’s H1B application constituted a separate racketeering act,” Moore claims in her proposed class action complaint. It is estimated the total number of IT workers laid off by Disney last year is between 200 and 300.

Who would a thunk it?

The Case is 6:16-cv-00113-JA-KRS. Moore vs. Cognizant technology Solutions and Walt Disney World.

Top Settlements

Lyft Drivers get a Lift…Bet these guys are feeling a bit of a “lift” right now. Yes indeed, Lyft drivers in California have won their employment class action and reached a $12.25 million settlement this week. However, Lyft refuses to classify its drivers as employees.

Currently, drivers for Lyft are classified as independent contractors. According to the terms of the Lyft settlement, Lyft will also concede its right to terminate drivers at will, pay the costs to arbitrate drivers’ grievances and implement a pre-arbitration process, and provide drivers with additional information on prospective riders such as their passenger ratings.

The lawsuit was filed by Lyft driver Patrick Cotter, in September 2013, over allegations that while the company classified its drivers as independent contractors it treated them as employees, including taking 20 percent off their tips as an “administrative fee”, a violation of California labor laws.

Further, Cotter claimed in the suit that Lyft required inspection of drivers’ personal cars and insurance policies, and that the company maintained the right to fire drivers, and enforced mandatory policies and training, all of which is treatment more befitting employees than contractors under California law.

The suit was initially proposed as a nationwide class action but was later changed to cover drivers in California only, court records show.

Additionally, the settlement agreement stipulates that Lyft create a “favorite” driver option in which riders can designate their preferred drivers, and, as such, give them additional benefits. Further, because Lyft has surrendered its at-will termination right, drivers will now be able to turn down rides without fear of their account being deactivated, the settlement motion states.

Well done.

The next settlement hearing will be on February 18, 2016. The case is Cotter et al. v. Lyft Inc. et al., case number 3:13-cv-04065, in the U.S. District Court for the Northern District of California.

Ok—So that’s a wrap folks… Happy Friday…See you at the Bar!

Week Adjourned: 1.22.16 – Chevy, MLB.TV, It’s Just Lunch

Top Class Action Lawsuits

Gee Whiz GM… Another one? Yes indeed. General Motors (GM) got hit with yet another proposed defective automotive class action lawsuit this week, over allegations its Chevy Cruz, Chevy Malibu and Buick Veranos suffer from a steering defect that could make the cars veer dangerously as well as lower their resale value. Should we be surprised?

Filed by Briani Mendoza, the lawsuit asserts that the steering wheel in her Chevy Cruz locks and requires turning the wheel with extra force, which could make the car turn sharply when the wheel comes unstuck. The Chevrolet lawsuit further asserts that GM knew of the problem in three models from years 2011-2014. However, despite this knowledge, the automaker has so far refused to fix the issue in violation of warranty and consumer protection laws.

“The steering system is one of the most important components for vehicle control and safe driving,” the complaint states. “A defective steering system has serious consequences for the handling, maneuvering and stability of the class vehicles while in operation and can contribute to car accidents and potential injury or death.”

In her complaint, Mendoza claims the vehicle’s electronic power steering system locks in the straight position after the car has been traveling a long distance on a straight highway. After that happens, the driver has to exert more pressure to the wheel to free it and is in danger of exerting too much force, causing the wheel to turn too far and the car to suddenly veer, the lawsuit states.

In November 2014, GM issued a service bulletin via the National Highway Traffic Safety Administration, offering to repair the alleged defect at free of charge. The letter asked drivers who had experienced the issue to bring their cars to dealerships.

However, the complaint alleges GM used the same defective parts to fix the problem, and therefore the problem would likely manifest again after the car’s limited warranty expired. Further, the suit notes, the automaker should have issued a full recall to fix the steering systems in all of the potentially affected vehicles.

The lawsuit claims GM should have known about the defect via its testing process and customer complaints. Therefore, GM’s handling of the issue together with its probable prior knowledge violated California’s Consumer Legal Remedies Act, Unfair Competition Law and Song-Beverly Consumer Warranty Act, the lawsuit claims. Additionally, the automaker breached its express and implied warranties in violation of the Magnuson-Moss Warranty Act.

Mendoza seeks to represent a California and national class of Cruze, Malibu and Verano owners whose cars dropped in value because of the defect, and aims to recover damages or secure an injunction requiring the automaker to fix the steering flaw, along with punitive damages. Time to lawyer up.

FYI—the case is Mendoza v. General Motors LLC, case number 2:16-cv-00404, in U.S. District Court for the Central District of California.

Top Settlements

Couple of nice wins this week…

A Win for Baseball Fans…A possible home run for major league baseball (MLB) fans and broadcasters. They reached a proposed settlement agreement this week, staving off further antitrust litigation over how out-of-market game broadcasts are sold.

Here’s the skinny—under the agreement, MLB will offer an unbundled MLB.TV Internet package for the next five years, allowing for the purchase of single-team packages for $84.99 next season. It represents a 23% reduction from the cheapest version of MLB.TV previously available and a 35% reduction from the most commonly purchased version. The agreement also requires the MLB.TV league-wide package cost to fall to $109.99.

In addition to the single-team package offering and lower prices, the MLB.TV agreement provides new options to consumers. It requires MLB to implement by the All-Star Break, a “Follow Your Team” variant of MLB.TV, which, for the first time in any major professional sports league, will allow consumers to watch a chosen away team’s telecast even when that club is playing an “in-market” team. This new product, which will cost only $10 more than the MLB.TV package, will enable authenticated subscribers, individuals who are pay television subscribers of the Regional Sports Network (RSN) that carries the in-market club, to watch what, up until now, would have been “blacked out” telecasts.

MLB has further agreed that it will endeavor to provide live local team broadcasts over the Internet (so called “In-Market Streaming”) for authenticated subscribers to the 25 RSNs carrying MLB games owned by DIRECTV, Comcast and 21st Century Fox by the start of the 2017 season. If In-Market Streaming is not in place for each and every one of these clubs by the 2017 season, MLB will be prohibited from increasing any of its MLB.TV package prices.

The case is Garber, et al. v. Office of the Commissioner of Baseball, et al., 12-cv-3704 (SAS), in the U.S. District Court for the Southern District of New York.

Cheaper Date? It’s just lunch—one very expensive lunch as it turns out. This week saw a preliminary $64.75 million settlement agreement reached a consumer fraud class action filed by plaintiffs against the dating site It’s Just Lunch International Inc.

According to the lawsuit, the site’s customers claimed they were overcharged for allegedly personalized matchmaking services while disregarding daters’ stated preferences such as age, employment and marital status, and criminal background. That could get ugly.

Filed in 2007 and then amended in 2008, the complaint states: “In fact, despite promises to the contrary, It’s almost completely ignores the client’s stated preferences. Rather, the company makes matches which are driven entirely by monthly quota requirements, and which wholly and categorically disregard the client’s stated “desires, goals [and] motivations.”

In addition to misrepresenting its services, the lawsuit further claims that It’s Just Lunch violated New York state that prohibits dating services from using contracts that require payment in excess of $1,000.

Under the terms of the proposed It’s Just Lunch settlement, It’s Just Lunch would provide $60 million in vouchers for dates and $4.75 million in cash. Specifically, plaintiffs who opt in to the settlement would receive a voucher for one free date, users in some cities would receive two, which have an estimated value of $450 each.

Further, It’s Just Lunch agreed to post a customer pledge to its website and change its contracts to include a commitment honoring its customers’ specified preferences for dating matches, according to the motion for preliminary approval of the deal.

The $4.75 million non-reversionary cash fund would pay for $100 awards to members of a class of New York daters, the costs of administering the settlement, as well as any court-approved service payments and attorneys’ fees, according to the motion. The plaintiffs have also requested $3.6 million in attorney’s fees and $10,000 in payment for each of the nine names plaintiffs.

The case is Rodriguez et al. v. It’s Just Lunch International et al., case number 1:07-cv-09227, in the U.S. District Court for the Southern District of New York.

Ok – So – that’s a wrap folks… Happy Friday…See you at the Bar!

Week Adjourned: 1.15.16 – EOS Lip Balm, Priceline, Vioxx

Top Class Action Lawsuits

EOS Evolution of Sore? Heads up anyone who purchased EOS lip balm—the celebrity-endorsed lip balm—got hit with a consumer fraud class action lawsuit this week, alleging the product causes lips to crack, bleed and blister. Yah, that’s a great look.

EOS, which stands for Evolution of Smooth, pays celebrities such as Kim Kardashian, Brittney Spears, Miley Cyrus, Hillary Duff, and others, to post pictures on Instagram and social media, creating a viral marketing frenzy around the product, targeted at consumers. EOS claims the lip-balm is, in addition to making lips smooth, a travel companion and a cure for health and hygiene problems.

Filed by Plaintiff Rachael Cronin, the EOS lawsuit alleges Cronin purchased EOS lip balm based on these claims. As with all of EOS packaging, the packaging contained no warnings about potential adverse side-effects from the products use. Ms. Cronin began applying the lip balm that same day she purchased it. Within hours of applying the product for the first time, her lips became substantially dry and coarse, what Ms. Cronin describes as feeling like “sandpaper,” causing her to apply more of the balm on her lip to achieve the results of becoming “sensationally smooth.”

However, Ms. Cronin’s lips did not become smooth, instead they began severely cracking on the edges causing flaking and bleeding from the cracks. (Sensationally sore? New tag line maybe?) By the next day, Ms. Cronin’s lips and surrounding skin area allegedly had severe blistering and rashes causing her to seek medical care on Monday, December 7, 2015. Ms. Cronin was in severe shock and panic. Her symptoms lasted approximately 10 days. Not good.

Ms. Cronin shared the story of her experience with EOS and posted a picture of her face with boils and blisters on Facebook. The post set off a frenzy of responses from other individuals who shared the identical experience with EOS. It became clear this was not an isolated incident but instead hundreds, possibly tens of thousands of consumers may be affected.

The case is 2:16-cv-00235.

Priceline Profiting? Priceline got hit with a proposed consumer fraud class action lawsuit this week, over allegations it collects taxes from customers for hotel rooms, car rentals and airline tickets booked through the site, but those taxes are not returned to customers when reservations go unused. That’s a nice little earner—if true.

According to the Priceline lawsuit, filed by Priceline customer Richard Laquer, the taxes and fees collected for his car rental in June in San Francisco were not returned to him even though he never picked up the car. Additionally, he claims that this money was never paid to local tax authorities, meaning The Priceline Group Inc, was unfairly profiting from its collection. Ka ching!

“Priceline Group, in charging ‘taxes and fees’ for a rental or purchase transactions that did not complete, violated various local, state and federal laws regarding the charge and collection of taxes,” the lawsuit states. “Priceline Group has been unjustly enriched by the charge and collection of ‘taxes and fees’ for vehicle rentals that did not occur.”

Laquer claims that he used the “Name Your Own Price” feature on the Priceline website to reserve a car rental for $35. However, he was also charged an additional $19.05 in “taxes and fees” for the transaction. When he did not rent the car Priceline kept the charges, the lawsuit states.

“Priceline Group knew when these representations were made, or made them as a positive assertion recklessly, that it would not pay the ‘taxes and fees’ it collected from plaintiff and the putative class members to the various federal, state and local taxing authorities in the event the rental or purchase was not completed,” the complaint states.

The potential class action asserts negligence, unjust enrichment and false representation. It is seeking disgorgement of the taxes and fees collected by Priceline and not returned with canceled orders and actual and punitive damages of not less than $5 million, and an injunction prohibiting the company from charging taxes and fees in the future unless a transaction is completed.

The case is Laquer et al. v. The Priceline Group Inc., case number 5:16-cv-00015, in the U.S. District Court for the Western District of Oklahoma.

Top Settlements

Vioxx Socked…Again. Wow—talk about the drug that will not die. This week, Merck announced it will pay $830 million to end the Vioxx multidistrict litigation brought by investors who alleged securities fraud violations concerning the illegal marketing of the company’s now defunct NSAID pain killer Vioxx. In 2011, Merck agreed to pay a criminal penalty of almost $1 billion over its marketing of Vioxx.

In a statement issued by Merck & Co. Inc, the pharmaceutical company denied any wrongdoing, and noted that it still faces individual lawsuits stemming from the same alleged misconduct, specifically that it marketed Vioxx for off-label uses and downplayed its risk of causing heart attacks.

The allegations made by investors are similar to those of the criminal case, alleging Merck attempted to conceal Vioxx’s cardiovascular risks, and claimed that patients taking the drug in a clinical study for rheumatoid arthritis were five times more likely to suffer a heart attack than those who took the comparator drug, naproxen.

In 2004 Merck was forced to recall Vioxx. The recall, in conjunction with media reports concerning the associated risks of the drug, caused Merck’s stock price to fall dramatically, according to the investors, whose claims against the company were consolidated in New Jersey federal court the following year.

The case is In re: Merck & Co. Inc. Securities, Derivative & ERISA Litigation, MDL number 1658 and case numbers 2:05-cv-01151 and 2:05-cv-02367, in the U.S. District Court for the District of New Jersey.

Ok—That’s a wrap folks… Happy Friday…See you at the Bar!

Week Adjourned: 1.8.16 – FitBit, Amazon, Mini Cooper

Top Class Action Lawsuits

FitBit not as fit as it claims—apparently. The company is is facing a defective products class action lawsuit alleging the heart rate tracking technology in its fitness watches provides “wildly inaccurate” readings and doesn’t work properly during intense physical activity.

Filed in California by Kate McLellan, Teresa Black and David Urban, the FitBit lawsuit claims that FitBit Inc.’s PurePulse heart rate tracking devices, which are featured in two of the company’s fitness watches, “consistently mis-record heart rates by a very significant margin,” especially during exercise. And just when you thought you were doing so well…

The lawsuit further alleges consumer fraud in that the defendant fails to inform customers that the technology works properly only at low or resting heart rates. Instead, the FitBit lawsuit asserts, it depicts users in its advertisements relying on the trackers during intense physical activity. “The heart rate trackers are effectively worthless as heart rate monitoring devices,” the complaint says.

The complaint states, “This failure did not keep FitBit from heavily promoting the heart rate monitoring feature of the PurePulse trackers and from profiting handsomely from it. In so doing, FitBit defrauded the public and cheated its customers, including plaintiffs.”

Additionally, the plaintiffs allege FitBit’s attempt to bind all customers to an arbitration agreement and a class action ban is an unfair and deceptive trade practice and is “unconscionable, invalid, and unenforceable.”

The three named plaintiffs seek to represent a nationwide class of all customers who purchased a FitBit PurePulse tracker, excluding those who purchased their trackers directly from FitBit.com and who did not opt out of the arbitration agreement. They are also looking to establish three subclasses for consumers in California, Wisconsin and Colorado.

The case is McLellan et al v. FitBit, Inc., case number 3:16-cv-00036, in the U.S. District Court for the Northern District of California.

Amazon not Delivering? Amazon stands accused this week of not delivering on wages and overtime. The online retailer got hit with an unpaid wages and overtime class action lawsuit filed by a group of former delivery service workers who claim the online retailer in conjunction with Courier Logistics Services LLC failed to compensate them for overtime pay and pay them tips paid by customers for the deliveries, in violation of federal labor laws.

The Amazon lawsuit was filed by plaintiffs Daniel Curry, Becky Lawrence, Nicholas Mason and Tyechia Webb, all of whom worked in Arizona for Courier Logistics, which is in exclusive contract with Amazon to deliver packages ordered through its newer same-day service. The suit asserts that the plaintiffs have been denied proper overtime wages as defined by the Fair Labor Standards Act (FLSA). Further, they were not given the full amount of tips they should have received from delivery customers.

According to the complaint, during the past several years Courier Logistics has had a “consistent policy” of requiring its employees to work nearly 50 hours per week without paying the legally required time-and-a-half overtime wage. Additionally, the lawsuit states that certain employees were misclassified as independent contractors.

The plaintiffs contend that Courier Logistics’ delivery employees are not independent contractors because they are required to show up for work at a scheduled time every day, are paid by the hour, are assigned work and are not allowed to refuse any deliveries.

According to the suit, as joint employers that shared employee-based decisions, Amazon and Courier Logistics “had complete control over the manner in which plaintiffs would complete their work.”

The plaintiffs are looking to recover all unpaid overtime wages, overpayment of income taxes and statutory penalties, along with other unspecified damages and attorneys’ fees. Go get ‘em!

The case is Curry et al. v. Amazon.com Inc. et al., case number 2:16-cv-00007, in the U.S. District Court for the District of Arizona.

Top Settlements

Mini Cooper…Not so Mini Settlement. A $30 million settlement has been tentatively approved potentially ending a defective automotive class action lawsuit filed against BMW North America. The class action asserts that the engines in its Mini Coopers are defective.

The lawsuit asserts that vehicle owners were forced to pay thousands of dollars in repairs and replacement costs for a defect in the engine which caused the cars to abruptly stop without warning. The proposed class action, filed in March 2013, involved certain Mini Cooper S Hardtops, Clubmans and Convertibles from model years 2007 to 2010, according to court papers.

The backstory… In the lawsuit, named plaintiffs Joshua Skeen and Laurie Freeman state they both bought new Mini Cooper S models in 2007. They alleged problem was a defect in the vehicles’ timing chain tensioner, which maintains an appropriate tension of the engine’s timing chain. The timing chain controls the timing of the engine’s valves, but when the chain doesn’t have proper tension or synchronization, the engine’s pistons and valves collide with great force and the engine components suffer so much damage that the engine seizes and the vehicle loses all power, according to the complaint.

Skeen and Freeman allege that while the Mini Cooper timing chains are meant to last about 10 years or 120,000 miles, they encountered problems with their engines far sooner than expected.

According to the terms of the settlement, the reimbursement amounts for each class member will see BMW paying for out-of-pocket expenses incurred prior to the settlement, including full costs incurred at authorized Mini dealers and up to $120 for timing-chain tensioners and $850 for timing chains repaired or replaced at independent service centers.

Class members will be entitled to up to $4,500 in out-of-pocket expenses incurred before the settlement to repair or replace an engine due to the problems addressed in the lawsuit, according to the opinion, and those who had to sell their vehicles at a loss before the settlement will get up to $2,250. Compensation amounts are subject to changes because of mileage discounts and other limitations, the opinion states. The final amount of the settlement will depend on the number and nature of claims submitted by the Class.

Additionally, class members will receive a warranty extension for the timing-chain tensioner and timing chain for seven years or 100,000 miles from the date when the vehicle was first placed into service, whichever comes first.

The case is Joshua Skeen et al. v. BMW of North America LLC, case number 2:13-cv-01531, in the U.S. District Court for the District of New Jersey.

Ok—that’s it for this week folks—see you at the bar! Oh—and Happy 2016!!

Week Adjourned: 12.18.15 – Scottrade, GM Pickups, Security Guards

Top Class Action Lawsuits

Not a Fair Trade? Here’s one that nearly slipped under the radar…Scottrade, the discount brokerage service, is facing a data breach class action lawsuit filed by a woman in Florida who claims the personal and financial information of herself and potential millions of others has been compromised as a result of the breach.

Filed by Angela Martin, individually and for all others similarly situated, the Scottrade lawsuit states Scottrade’s failure to protect and adopt adequate security, best practices and industry standards regarding data security and retention, has resulted in millions of customers’ sensitive personal and financial information being compromised.

Scottrade currently operates an online trading website, which was hacked over the course of several months from late 2013 to early 2014, the complaint states.

Further, the lawsuit states that Scottrade itself estimated nearly 4.6 million customers have been affected by the data breach. However, the company has only bgan notifying customers of the data breach in October, but its notice is deficient and fails to fully explain the nature and cause of the breach.

The lawsuit claims breach of express and implied contract, violation of consumer fraud laws of multiple states, and negligence. The lawsuit is Tampa Division of the Middle District of Florida Case number 8:15-CV-02791-SCB-EAJ.

General Motors being Generally Dishonest? Maybe just a little bit? Yes—according to a nationwide consumer fraud class action lawsuit filed in California federal court this week, alleging the auto maker promoted two types of pickup trucks that don’t live up to their advertised towing capacity.

According to the GM pickup lawsuit, filed by Richard Quintero who drives a GMC Sierra, at the end of 2014 the auto maker alerted owners of 2014 GMC Sierra 1500 Series and Chevrolet Silverado 1500 pickup trucks across the country that GM had miscalculated the trucks’ towing capacities and that the actual amount they could tow was about 2,000 pounds less than advertised.

“Had plaintiff and class members known the 2014 GMC Sierra’s and the 2014 Chevrolet Silverado’s actual towing capability at the time of purchase, and the safety hazard posed by towing loads in excess of a vehicle’s capacity, they would not have bought the class vehicles or would have paid much less for them,” Quintero states in the complaint.

Quintero accuses GM of breach of express warranty, negligent misrepresentation and of violating California consumer protection laws and seeks to represent all owners and lessees of the two truck models.

Quintero states in the complaint that he visited his local GMC dealership in California during the summer of 2013, originally intending to buy a 2013 Sierra. However, the complaint notes, after learning about the purportedly superior towing capacity of the 2014 model, Quintero purchased the newer, more expensive truck.

The complaint notes that Quintero owned a 5,000 pound trailer, which he used to haul a 1,000 pound golf cart. But, after seeing GM advertisements that said his new truck could haul 8,800 pounds, he decided to upgrade and bought a new 6,700 pound trailer to haul the cart.

After he bought the trailer, Quintero got the letter from GM telling him his truck could only pull 6,700 pounds, not enough capacity to tow the new trailer with the golf cart inside, the complaint states.

“This towing capacity reduction followed uniform and pervasive representations to the contrary from defendant to plaintiff and class members,” Quintero states. “Prior to GM’s precipitous recalculation, GM expressly and repeatedly touted the towing capacity of class vehicles, and its representatives confirmed that towing capacity is a material, and often dispositive, consideration for pickup truck consumers.”

The case is Quintero v. General Motors Company et al., case number 5:15-cv-02530, in the U.S. District Court for the Central District of California.

Top Settlements

They owe, they owe—it’s to the bank you go!!! Well, if the settlement deal is approved. A preliminary $11 million settlement has been reached between AlliedBarton and a class of workers who filed an employment lawsuit against the security services company alleging it failed to provide meal and rest breaks, to pay adequate wages and did provide inaccurate wage statements, in violation of California labor law.

According to the terms of the AlliedBarton settlement, each of the three named plaintiffs would receive $30,000 in service payments. The approximately 43,893 non-exempt hourly employees who worked for AlliedBarton in California from April 2004 through January 2015 would share the net settlement amount on a prorated basis, based on the number of weeks they worked, according to the proposed deal.

The lawsuit was filed by lead plaintiff Gregory Dynabursky in 2012 on behalf of thousands of security officers, alleging that AlliedBarton violated California labor and business laws by requiring guards to perform work duties during meal breaks. He also asserts that the workers had to sign a related on-duty meal period agreement.

The case is Gregory Dynabursky et al. v. AlliedBarton Security Services LP et al., case number 8:12-cv-02210, in the U.S. District Court for the Central District of California.

Ok—That’s a wrap folks… Happy Friday…See you at the Bar!

Week Adjourned: 12.11.15 – MasterCard, Barbie, Blue Buffalo

Top Class Action Lawsuits

Spirit of Giving Gone too Far? In the season of giving, MasterCard was served with a consumer fraud class action lawsuit this week, and it’s all about giving baby! Yeah—charitable donations. Filed by a New Jersey man, the lawsuit claims the company continued to advertise a donation promotion after its donation goal had been met. Hmm.

Filed by plaintiff Robert Doyle, individually and for all others similarly situated, the MasterCard lawsuit alleges breach of contract, breach of good faith and fair dealing, and violations of the District of Columbia Consumer Protection Procedures Act.

According to the lawsuit, every year since 2011 MasterCard has run a marketing promotion related to Entertainment Industry Foundation’s Stand Up To Cancer program, in which MasterCard advertises it will give one cent to the program for each credit or debit transaction made by a MasterCard cardholder.

Under the terms of the program, a donation can only be made if the cardholders use a consumer or small-business card issued by a US financial institution, and the transaction is for a minimum of $10. Further, it must be made at a qualifying restaurant in the US. MasterCard advertised that it had a goal of reaching $4 million to be donated to the program.

However, according to the suit, in 2012, 2013, 2014 and 2015, MasterCard continued to advertise the marketing promotion after it had reached and knowing it had reached its maximum donation goal. MasterCard would only announce it had reached its goal once it reached a scheduled end date, even though it knew it would meet its donation goal before that date, according to the complaint.

Doyle and others in the class seek damages of more than $5 million, including punitive damages, injunctive relief, attorney fees, and costs of the lawsuit. The case number is 1:15-CV-09360-LTS, Southern District of New York.

Covert Ops Barbie? This is creepy—no matter how you dice it. Barbie is violating children’s privacy—well actually—that would be Mattel. The toy maker got hit with a proposed privacy violations class action alleging its new interactive doll, “Hello Barbie”, violates children’s privacy laws by recording their conversations with the doll without proper consent. OMG. Where do you start? Or perhaps—where does it stop?

According to the Hello Barbie lawsuit, named plaintiffs Ashley Archer-Hayes and Charity Johnson claim Mattel Inc. and interactive toy technology maker ToyTalk Inc. violate Children’s Online Privacy Protection Act by recording children’s voices during their conversations with the doll and storing them online without obtaining sufficient consent. The women also filed suit against kidSAFE, a seal-of-approval program that certified the doll as COPPA-compliant.

According to court documents, in December of this year Archer-Hayes bought “Hello Barbie” for her daughter. She registered it online and downloaded a smartphone app that would allow her to listen to, review and delete recordings the Barbie doll transmits to ToyTalk’s servers. However, several days later her daughter and her friends, one of whom is Johnson’s daughter, played with the toy at a Barbie-themed party, which recorded the voices of other children whose parents hadn’t consented to its use.

“Defendants knew or should have known that the ‘Hello Barbie’ doll, a toy directed at children six-years-old and over, would be used in the presence of and by children under thirteen, other than the child-owner of the doll,” the complaint states, “[and that] there was a great likelihood, if not a certainty, that in sharing and playing with the ‘Hello Barbie’ doll, children under the age of thirteen, other than the child-owner, would be recorded and such recording would be transmitted to ToyTalk’s cloud database for collection, maintenance, and use.”

According to the proposed suit, four classes of plaintiffs are proposed, specifically: Californians who have purchased the dolls for their children; Californians whose children’s voices were recorded without their consent; and nationwide classes in similar circumstances.

According to information on Mattel’s website, “Hello Barbie” is programmed with about 8,000 lines of kid-friendly dialogue, plays 20 games. The doll costs about $75. The doll records voices when kids press on its belt buckle and transmits them over Wi-Fi, the website says.

Wonder if Hello Barbie has a Twitter account…

The lawsuit suit alleges negligence, unjust enrichment, invasion of privacy and violations of California’s Unfair Competition Law, and it seeks unspecified damages. The case is Ashley Archer-Hayes et al. v. Toytalk Inc. et al., case number BC603467, in the Superior Court of the State of California, County of Los Angeles.

Top Settlements

It may just be cheaper to keep your promises…Blue Buffalo Pet Products has agreed to pony up $32 million as settlement of a consumer fraud class action litigation pending against it and its subsidiary Blue Buffalo Company, Ltd. The lawsuit alleges, among other things, that certain Blue Buffalo products were not consistent with the “True Blue Promise.” The class action lawsuits brought on behalf of consumers and consolidated in the Multi-District Litigation pending in the United States District Court for the Eastern District of Missouri.

Under the terms of the Blue Buffalo agreement, Blue Buffalo will pay $32 million into a settlement fund to settle the claims of the plaintiff class. Any attorneys’ fees awarded by the court and all costs of notice and claims administration will be paid from the settlement fund. The amount that each class member who submits a claim for reimbursement will receive will depend on the total amount of Blue Buffalo products purchased by the claimant during the class period and certain other conditions.

Blue Buffalo denies any wrongdoing, (naturally) and has agreed to this settlement to eliminate the uncertainties, burden and expense of further litigation. The settlement agreement is subject to preliminary and final approval by the court.

Ok—that’s it for this week folks—see you at the bar!

Week Adjourned: 12.4.15 – Ricola, Target, Sushi Samba

Top Class Action Lawsuits

Ricola not all it’s Coughed up to be? Ok, bad one, I know. So are Ricola cough drops too good to be true? Perhaps—too good to be accurate, more likely. This week, Ricola USA got hit with a consumer fraud class action lawsuit alleging the company deceived customers about the natural qualities of its herb drop products. Really? I hear you say…

Specifically, the Ricola lawsuit claims unjust enrichment and violations of the Federal Food Drug & Cosmetic Act and New York’s Deceptive Acts or Practices Law, in addition to violations of similar laws in all 50 states. Well, that should about cover it.

Filed by Timothy Minker of New York and Valerie Liu of California, the suit claims Ricola displays “Naturally Soothing Relief that Lasts” on the front packaging of its cough suppressant, supplement, and herb throat drop products and that this is deceptive because they contain ingredients synthetic ingredients, such as citric, ascorbic and malic acids. Doesn’t sound very good for you.

Consequently, the complaint states, plaintiffs and others similarly situated were deceived when deciding to purchase these products for which they paid a premium price, believing them to be made entirely of naturally occurring or minimally processed ingredients with no added non-natural or synthetic ingredients.

The plaintiffs and others in the class seek compensatory and punitive damages, prejudgment interest, restitution and all other equitable monetary relief, injunctive relief, and attorney fees and costs of the Ricola lawsuit. They are represented by attorney C.K. Lee of Lee Litigation Group in New York City.

U.S. District Court for the Southern District of New York Case number 1:15-CV-09014-RA

Top Settlements

Target Data Breach Settlement… Looks like the banks are getting a pay day. Target Corp has reached a settlement agreement with a class of banks suing the discount retailer over the massive 2013 Target data breach. Remember that one? Hackers compromised over 40 million Target payment cards used during a three-week period over the 2013 holiday season, to boil it down to the bare bones. The settlement is the first class-wide data breach pact ever reached on behalf of financial institutions. Another record.

Here’s the skinny, according to the Target settlement terms, Target will pay up to $20.25 million directly to settlement class members. This will also include costs for the notice and administration of the settlement. In addition, Target will make a $19.1 million payment to fund MasterCard’s Account Data Compromise program relating to the breach, according to court documents. Finally, Target has also yielded to forfeiting its right to challenge MasterCard’s assessment of breach liability.

The settlement will apply to all US financial institutions that issued payment cards identified as having been at risk as a result of the data breach of more than 40 million payment cards used at Target in late 2013 and that did not previously release their claims against the retailer by signing onto separate deals with card brands Visa Inc. and MasterCard Inc.

A final approval hearing is expected to be held next year. The case is In re: Target Corp. Customer Data Security Breach Litigation, case number 0:14-md-02522, in the U.S. District Court for the District of Minnesota.

Sushi Samba Settles… On a slightly smaller but equally important note, a preliminary $2.4 million settlement has been reached in an unpaid wage and overtime class action lawsuit pending against Sushi Samba restaurants. The Sushi Samba lawsuit was brought by workers in who claim the restaurant chain failed to pay them minimum wage, tips and overtime in violation of the Fair Labor Standards Act and New York Labor Law.

The back story, the plaintiffs allege that Sushi Samba did not pay workers for all hours worked, did not pay overtime when the workers labored for more than 40 hours in a week and took money from a tip pool to give to sushi chefs who allegedly did not interact with customers. The plaintiffs, which include servers, bussers, runners, bartenders and hosts, assert that the tips were improperly garnished at six locations in New York City, Florida, Chicago and Las Vegas. Nice.

According to the proposed terms of the tentative Sushi Samba settlement the named plaintiffs would receive $50,000 in service payments with the remaining funds divided between the putative class members on a prorated, weighed basis, with New York workers getting the largest share and Nevada workers getting the smallest. Lawyers fees would also be taken from the settlement sum.

The class period would begin in May 2009 for New York workers and in May 2012 for the other workers, with the period ending when the settlement receives final approval, documents state.

Heads up—the complaint filed on October 21, only included claims for New York state labor law violations. Therefore, putative class members who worked in Florida, Illinois or Nevada locations who opt in to the settlement would agree to not file similar labor law violation claims in those states, according to the memorandum.

The case is Hadel et al. v. Gaucho LLC et al., case number 1:15-cv-03706, in the U.S. District Court for the Southern District of New York.

Ok—that’s it for this week folks –See you at the bar!