Class Action - Part 17

Week Adjourned: 2.20.15 – Caliber Collision, Payless, Actos

Top Class Action Lawsuits

Fix my Ride! A California collision repairs chain has reportedly been tinkering with California labor law according to a class action lawsuit filed against it this week. Caliber Collision is being sued by its mechanics who allege they were not paid for all the hours they worked. Heard this before?

Filed by lead plaintiff Samuel Castillo, the lawsuit alleges Caliber Bodyworks of Texas Inc., which operates the car repair chain Caliber Collision, pays its mechanics on a piece-rate system for each task they perform, and that the workers are assigned piece-rate hours per tasks, regardless of the time it actually takes them to perform. Castillo claims he recorded the hours he worked, but Caliber only paid him under the piece-rate system.

“As a result, defendants did not pay plaintiff for all hours worked at the minimum wage, as defendants failed to pay plaintiff for nonproductive hours, i.e. hours that he was not performing piece-rate work,” the complaint states.

Further, the lawsuit contends that Castillo worked for Caliber from 2007 through to the end of January 2014 classed as a nonexempt technician under the piece-rate system. According to the suit, under Caliber’s pay system, if a task were assigned a value of 0.8 hours, the mechanic would be paid for 0.8 hours of work, regardless of whether the task took 10 or 90 minutes to perform.

According to the suit, the method Caliber uses, of meeting their minimum wage obligations, dividing daily piece-rate earnings by daily hours worked, violates California labor law. The suit also alleges Caliber paid Castillo nondiscretionary bonuses and other forms of compensation that aren’t excludable from the regular rate of pay.

“Despite defendants’ payment of incentive pay to plaintiff, defendants failed to include all forms of incentive pay when calculating plaintiff’s regular rate of pay, thereby further causing plaintiff to be underpaid all of his required overtime wages,” the complaint states.

Castillo alleges that he regularly worked in excess of eight hours per work day and over 40 hours each week, without receiving overtime compensation. Further, because the company only pays its workers in the piece-rate system, it also fails to maintain any compensation system for compensating rest periods.

“As a result of defendants’ failure to pay all overtime and minimum wages, defendants maintained inaccurate payroll records and issued inaccurate wage statements to plaintiff,” the suit states.

Finally, the lawsuit contends that Castillo requires its mechanics to buy their own tools that are necessary to perform their job duties, without reimbursing the workers for the cost of the tools.

The employment class action is seeking certification on behalf of classes of workers denied minimum wage, overtime hours, expense reimbursements and more.

The suit is Castillo et al. v. Caliber Bodyworks of Texas Inc. et al., case number BC572767, in the Superior Court of the State of California, County of Los Angeles.

Top Settlements

If the Shoe fits… Coming out the other end of an employment lawsuit we have Payless Shoesource, which has reached a $2.9 million settlement in an employment class action alleging the retailer violated the Fair Labor Standards Act (FLSA) by misclassifying its store managers as a means of avoiding overtime pay.

According to the terms of the Payless settlement agreement, two thirds of the funds will be shared among the 2,197 class members. According to court documents, most of the plaintiffs worked as store managers or leaders at Payless retail outlets from March 2011 on.

In 2006, Payless faced a similar lawsuit when employees in Mississippi alleged the shoe retailer had violated the FLSA by routinely requiring managerial employees to work 60 to 90 hours a week, and making them perform non-managerial tasks without paying them overtime. That case was settled out of court and the terms remain confidential.

Justice at what Cost? Takeda Pharmaceutical Co, the makers of the diabetes drug Actos, has been ordered to pay $1,334,636 million in punitive damages by the jury hearing the case of a retired school teacher who developed Actos bladder cancer.

The jury found that Takeda had acted with reckless indifference for the health of Mr. Kristufek, who alleged that Actos had caused him to develop bladder cancer.

The $1.3 million in punitive damages is additional to a $2.3 million award the jury handed down the day before, after agreeing that Takeda had failed to provide adequate warnings about the drug’s association with bladder cancer and that the medication had been a significant cause of Mr. Kristufek’s condition.

Kristufek’s is the fifth Actos-related case out of eight in which juries have returned verdicts on behalf of plaintiffs, and only the second in which the company has faced punitive damages. Further, his is the second Actos-related case to win in Philadelphia, with a jury awarding $2 million in damages in a case that cited similar allegations for a woman.

Hokee Dokee- That’s a wrap folks…Time to adjourn for the week. See you at the bar!

Week Adjourned: 2.6.15 – Birchbox, Toyota, Bayer

The week’s top class action lawsuits and settlements. Top stories include Birchbox, Toyota and Bayer.

Top Class Action Lawsuits

Birchbox not a Beautiful Thing? Ah, no—you can’t automatically send me stuff and charge me for it without telling me first….According to an unfair business practices class action lawsuit filed against high end cosmetics retailer Birchbox Inc, that’s exactly what the company has been going on. Birchbox, an online subscription-based cosmetics seller that allows customers to sign up for monthly boxes of cosmetic samples based on their preferences. According to the lawsuit, the company is in violation of California state business laws because it fails to disclose to its users that their shipments automatically renew.

Tiffany Lapuebla, the plaintiff who filed the Birchbox class action, purchased a subscription to Birchbox in January 2013. According to the suit, Birchbox failed to show Lapuebla the renewal terms clearly. They charged Lapuebla’s credit card without getting her affirmative consent to the automatic renewal terms and failed to give information about how to cancel the service. The lawsuit also claims there is no disclosure in Birchbox’s acknowledgment for free trials about how to cancel before getting charged for the recurring subscription.

Lapuebla is also accusing Birchbox of violating the state’s unfair competition statute based on the name of the subscription in her shopping cart: “Women’s Rebillable Monthly Subscription.”

The proposed class includes any Birchbox subscribers since 2011 and seeks unspecified damages.

Top Settlements

The Long Road to Justice—this is amazing! An $11 million verdict was handed down to the plaintiffs in a Toyota sudden acceleration personal injury lawsuit resulting from a defect in a 1996 Camry. The jury ruled that the defect contributed to an accident which left three people dead and two seriously injured.

While the jury found that the Camry’s driver, Koua Fong Lee, was 40% responsible for the crash, they cited Toyota as being 60 percent responsible. In the 2006 crash Lee rear-ended an Oldsmobile after exiting a highway. The driver of the Oldsmobile, Javis Trice-Adams Sr., and his son were instantly killed. His niece, also in the Oldsmobile, became a quadriplegic as a result of the crash and died 18 months later. Trice-Adams’ father and daughter were also injured.

The jury awarded both families a combined $11.4 million, though due to Lee’s partial responsibility, his $1.25 million award will be reduced to $750,000, according to his lawyers.

This is incredible—in 2008, Lee was convicted of negligent homicide and sentenced to eight years in prison. However, his conviction was overturned after Toyota’s recalls of later-model cars for acceleration defects, tied to floor mats and pedals, brought new attention to the case. Lee had claimed that the Camry started to accelerate by itself and that the car didn’t respond when he hit the brakes. Prosecutors declined to re-charge Lee, who served more than two years in prison.

In 2010, the Trice-Adams family sued Toyota claiming a defect in the Camry caused it to suddenly accelerate. Lee and his family intervened as plaintiffs later that year. The plaintiffs argued the accelerator got stuck in a “near wide-open position,” calling other Camry owners to testify at trial that they experienced similar problems.

It’s all very hush hush…but a potential settlement has been reached in a discrimination class action lawsuit facing Bayer Corp. Brought by former and current employees, the $100 million lawsuit alleges Bayer Corp. and four other Bayer HealthCare entities engaged in systematic discrimination against female employees.

The Bayer discrimination deal, if approved, could end the three year legal battle. The plaintiffs have agreed to dismiss the suit with prejudice in a short stipulation filed in New Jersey federal court on Friday, though the terms of the deal were not disclosed.

The class action, originally filed in 2011, claimed that male employees greatly outnumber female employees in management positions at Bayer, and discrimination regarding pay, promotion and pregnancy bias claims.

Hokee Dokee- That’s a wrap folks…Time to adjourn for the week. See you at the bar!

Week Adjourned: 1.30.15 – Wal-Mart, Conesys, Wendy’s

The week’s top class action lawsuits and settlements. Top stories include Wal-Mart, Conesys and Wendy’s.

Top Class Action Lawsuits

Taxing Trip to Wal-mart? Wal-Mart’s made our list this week—this time it’s a breach of contract class action, alleging the discount retailer shortchanged customers over four years with respect to sales tax, is seeking certification. The lawsuit claims Wal-Mart defrauded its customers by as much as $9 million.

Filed in 2014, the Wal-Mart complaint specifically alleges that the retailer incorrectly applied lower sales tax rates to consumer returns. Plaintiffs are contending that Wal-Mart violated the terms of its sales agreement by refunding its customers less than the purchase price.

The lawsuit claims that an analysis done by Wal-Mart showed that there were nearly 20 million returns to stores with lower sales tax rates from 2007-09. During that time, the retailer used a flawed formula to recalculate how much customers spent, based on the sales tax of the store where the return was processed. The complaint alleges that Wal-Mart should have looked up how much customers paid for the items in the stores where they were purchased.

“Because the plaintiffs’ claims meet the requirements of Rule 23, and the representatives class counsel demonstrated the capacity to adequately represent the class, the court should certify the class and appoint the attorneys as class counsel,” plaintiffs Shaun Brandewie and John Newbrough state in the motion for certification. Both plaintiffs made several purchases at Wal-Mart, returned them to other locations, and were not refunded their full return. All of the discrepancies described in the complaint are for less than $1.

According to the motion for certification, the class is readily discernable because it includes anybody who purchased an item at Wal-Mart and was refunded an amount less than what they paid. Wal-Mart tracks sales and return data such that the amounts paid for items and the amounts refunded are easily ascertainable, the motion said. Hey—every penny adds up…

Defend this, Conesys… Conesys Inc, an aerospace and defense electronics parts manufacturer, is facing a potential unpaid wages and overtime class action lawsuit filed by employees who allege the company fails to pay them overtime or compensate them for meal and rest breaks.

Filed in California state court, on behalf of plaintiff Rafael A. Lozano, a machine operator at AEC, the Conesys lawsuit claims that for at least four years had a “consistent” policy of failing to pay all wages owing to their California-based employees, as well as failing to provide meal and rest breaks required under California labor law.

“As a result of the defendants’ unlawful conduct, plaintiffs and other members of the…class have suffered damages in an amount subject to proof, to the extent that they were not paid for all wages earned,” the lawsuit states.

Torrance, California-based Conesys, based in Torrence, CA, has over 1,000 workers worldwide, including several facilities located in Torrance. The lawsuit alleges that in California, the company unevenly rounds out the amount of time employees’ work, which denies them compensation for any time worked beyond that of eight hours per day or 40 hours per week.

Additionally, the lawsuit states that Conesys’ corporate practice of rounding out hours worked has resulted in its employees being issued with inaccurate wage statements, and, in some cases, being effectively paid below minimum wage.

Further, the complaint also states that Conesys failed to provide the necessary breaks, which in California requires employers to provide a short, paid rest break for shifts of at least four hours, and at least one uninterrupted 30-minute meal break when employees work a shift of more than five hours, and two, if the shift runs for longer than 10 hours.

The plaintiff is asking for compensation for missed pay for himself and other employees allegedly shortchanged by Conesys going back up to four years, as well as penalties against the company and “reasonable” attorneys’ fees and costs.

The case is Lozano et al. v. Conesys Inc. et al., case number BC570320, in the Superior Court of the State of California, County of Los Angeles.

Top Settlements

Here’s a Happy Ending. The fast food chain Wendy’s has reached a proposed settlement in a pending discrimination class action lawsuit. The complaint maintains that Wendy’s Pittsburgh-area restaurants have architectural barriers that limit access to wheelchair-bound individuals, a violation of the Americans with Disabilities Act (ADA).

Plaintiff Christopher Mielo and Wendy’s reportedly reached the settlement on January 26th. Meilo, a mobility disabled man who regularly used a wheelchair to get around, filed the lawsuit in 2014, alleging that within the Pittsburgh area 17 Wendy’s restaurants had excessively sloped parking spaces and access aisles, accessibility barriers that make it difficult for wheelchair users to access the restaurant’s facilities independently. According to the lawsuit, these accessibility barriers are a violation of the ADA.

The lawsuit states, “The architectural barriers described above demonstrate that defendant’s facilities were not altered, designed or constructed in a manner that causes them to be readily accessible to and usable by individuals who use wheelchairs.”

Under the terms of the settlement, Wendy’s would be required to remove the alleged architectural barriers in order to come into compliance with ADA standards and requirements. More specific terms have not been made public.

The Wendy’s Wheelchair Access Class Action Lawsuit is Christopher Mielo v. Wendy’s Old Fashioned Hamburgers of New York Inc., Case No. 2:14-cv-00893, in the U.S. District Court for the Western District of Pennsylvania.

Hokee Dokee—That’s a wrap folks…Time to adjourn for the week. See you at the Bar!

Week Adjourned: 1.23.15 – United Airlines, Wet Seal, eBay

The week’s top class action lawsuits and settlements. Top stories include United Airlines, Wet Seal and eBay.

Top Class Action Lawsuits

Just how friendly are United’s friendly skies? Not very according to a potential consumer fraud consumer fraud class action lawsuit filed against United Airlines Inc. in Texas federal court this week. The lawsuit claims the airline routinely violates its website’s “low fare guarantee” when passengers buy multiple tickets on a flight at the same time.

Filed by plaintiff Scott Coulier, the lawsuit claims that if a customer attempts to purchase several tickets at the same time, but only a few seats are available at a relatively low price, United.com will offer all the tickets at a higher price instead of letting users buy the outstanding cheaper tickets and as many higher priced tickets as necessary.

According to the United Airlines lawsuit, there is no disclosure by United that its ticketing system sells multiple tickets at the same time only if they have the same price. Further, the lawsuit claims the airline deletes the lower priced tickets it skips overs. According to the complaint, the deletion is key, as United’s guarantee will only refund customers if the airline’s employees can find the lower priced fares after the transaction.

“The result of this systematic policy is the lower fare class tickets which actually exist at the time of purchase are not disclosed to the consumer and are systematically bypassed at the point of purchase in favor of higher fare class ticket,” the lawsuit states.

United’s guarantee states that if customers can find lower fares for the same flight, itinerary and cabin after they purchase a ticket through United.com, the airline will refund the difference and hand out a $100 credit if the difference is $10 or more. However, according to the complaint, the terms do not properly define “itinerary” and are impossible to satisfy because United does not allow customers to use screenshots taken before their purchase to prove there were less expensive options.

In the lawsuit, Coulier claims he bought three tickets on United, from Peoria, Illinois, to Orlando Florida, for his family for $182 per seat. However, he believes he could have paid less if he bought the tickets individually. He alleged United’s policies artificially restrict low class fares when bought together.

“Defendant engages in this deceptive and unfair practice as a way to profiteer from unsuspecting consumers, such that plaintiff and the putative class paid more than the lowest available price for the same tickets,” the lawsuit states. “Such conduct is a bait-and-switch sales practice.”

The case is Scott Coulier v. United Airlines Inc., case number 4:15-cv-00190, in the U.S. District Court for the Southern District of Texas.

Wet Seal got slapped… with an employment class action lawsuit this week, alleging violations of the Worker Adjustment and Retraining Notification (WARN) Act by two employees who claim they and got soaked in the recent business closure.

Short version—the Wet Seal lawsuit, filed on behalf of some 3,700 employees, claims that the clothing retailer has violated California and federal labor laws by keeping their employees ignorant of the company’s financial struggles and impending closure. Wet Seal announced last week that it will file for bankruptcy.

The named plaintiffs, Katelin Pruitt, an employee in a store in North Carolina, and Lalaine Ortega, who worked in Georgia, allege the company failed to tell them about its precarious financial situation.

“Despite strong evidence that Wet Seal was in steep decline, it continued to keep its employees uninformed right up until they abruptly fired 3,695 of their employees,” the lawsuit states. The lawsuit seeks to represent a class of former Wet Seal employees who lost their jobs as a result of the layoffs the company announced January 7, 2015. According to the complaint, the class is seeking 60 days pay and benefits for class members.

FYI—the case is Katelin Pruitt et al. v. The Wet Seal Inc., case number 2:15-cv-00312, in the U.S. District Court for the Central District of California.

Top Settlements

eBay reached a $6.4 million settlement agreement this week, potentially ending an unfair business practices class action brought against online retailer on behalf of approximately 1.2 million eBay account holders, although the number of actual users represented by those accounts was unclear as one person could have multiple accounts. They alleged they were charged hidden and recurring listing fees to sell their goods through the online auction site.

Under the terms of the proposed agreement, eBay would pay class members $4.5 million with the remainder going on legal and administration fees. The payments to class members would be made as an automatic credit to their accounts.

The lawsuit was filed by plaintiff Richard Noll in September 2011, alleging eBay suggested that the Good ‘Til Canceled listings, which automatically renew every 30 days until the seller cancels the listing or the item is sold, came “at no extra cost” when fees were actually charged on a monthly basis.

A second suit was filed by Rhythm Motor Sports LLC nearly a year later, and the cases were eventually consolidated. The allegations included breach of contract, unfair competition, false advertising, violation of the Consumer Legal Remedies Act, unjust enrichment and fraud.

Hokee Dokee—That’s a wrap folks…Time to adjourn for the week. See you at the Bar!

Week Adjourned: 1.16.15 – Toyota, Capital One, Wolfgang Puck

The week’s top class action lawsuits and settlements. Top lawsuits include Toyota, Capital One Bank and Wolfgang Puck

Top Class Action Lawsuits

Toyota not Taking TCPA Siriusly? Toyota’s off to a banner start this year—they got hit with a Telephone Consumer Protection Act (TCPA) class action lawsuit this week alleging the automaker gave customer information to Sirius XM Holdings Inc., which made a number of unsolicited calls to the plaintiff’s cellphone in violation to the Telephone Consumer Protection Act.

According to the Toyota lawsuit, plaintiff Brian Trenz claims he and others were victims of an information-sharing agreement between Toyota and Sirius. The alleged agreement enables Toyota to share customer data with Sirius in exchange for temporary free trials of Sirius’ radio entertainment services in new and preowned cars Toyota sells. The lawsuit claims that Sirius then used that information to make unauthorized calls to Trenz’s cellphone, which is a violation of the TCPA.

“Sirius makes these telemarketing calls in order to convert the recent purchasers of these Toyota vehicles into paid subscribers of Sirius,” according to the lawsuit.

According to the complaint, Trenz bought a Chevy truck from a Texas Toyota dealership in September 2014, after which, the plaintiff alleges, Sirius made more than 30 calls to his cellphone using an automatic dialing system, in violation of the TCPA. Trenzclaims that none of the sales documents from the Toyota dealership included a warning that Trenz’s information might be given to a third-party like Sirius, and Sirius never sought or received his consent for the call. When Trenz asked Sirius call representatives how they obtained his information, they were allegedly forthright about having obtained it from Toyota, the lawsuit states.

Similarly, Trenz claimed a Toyota dealership employee assured him it was “common knowledge” that the information would be passed along. According to the lawsuit, Trenz was unaware of a free trial of Sirius’ services included in the purchase of his truck, and did not become aware of the availability of the service until he began receiving the calls. Further, Trenz claims that Sirius radio never worked in his vehicle, and he never listened to it.

Even though Sirius is responsible for the calls, Toyota is vicariously liable for the TCPA claims because the company provided the customer information, the complaint states.

The lawsuit seeks certification of a nationwide class consisting of anyone who received unsolicited calls from Sirius in the four years prior to the complaint, regardless if they first bought a car from a Toyota dealership. In addition, the suit seeks a separate nationwide subclass of individuals who first bought a new or preowned car from a Toyota dealership with a free Sirius trial and received unsolicited calls from the company in the last four years.

The lawsuit is case 3:15-cv-00044, in the U.S. District Court for the Southern District of California.

Top Settlements

Is the Overdraft Fee Straggler Finally Settling? Capital One Bank NA has been ordered to pay in excess of $31.7 million to settle a multidistrict litigation (MDL) alleging several banks processed customer transactions in an order that would make the banks the most in overdraft fees.

The Capital One MDL settlement received preliminary approval Wednesday, and follows earlier settlement agreements made with several other banks named in the suits, which were filed in 2010. Hello!

A final approval hearing has been requested for May. The plaintiffs state that the agreement is “an outstanding result for the settlement class.” If approved, it will see a cash payment amounting to roughly 35 percent of the most likely maximum recovery the settlement class could have recovered through a trial.

Class members who do not choose to opt out of the settlement will automatically receive pro-rated shares from the settlement fund.

What’s Cooking in Wolfgang’s Kitchens? A $1.7 million settlement for a California unpaid overtime class action lawsuit, that’s what. The lawsuit was brought against Spago Beverly Hills, Wolfgang Puck Bar & Grill in Los Angeles, and Chinois in Santa Monica, California by some 900 current and former employees at the restaurants.

According to the terms of the Wolfgang Puck settlement, $7,500 will be paid to lead plaintiff Ruben Sanchez, who filed the lawsuit in December 2012. He claimed Wolfgang Puck’s restaurants violated wage and hour laws, and failed to reimburse employees for business-related expenditures, among other labor violations. According to court documents, there are 888 eligible employees who will participate in the settlement.

Additionally, the restaurant company will pay $10,000 to the California Labor and Workforce Development Agency, and if more than $10,000 of the class checks should turn out to be uncashed, undeliverable or expired, the difference would go to class members who cashed their checks within 90 days of the mailing on a pro rata basis. If the amount is less than $10,000, it will instead go to the Los Angeles Center for Law and Justice.

The case is Ruben Sanchez et al. v. Wolfgang Puck Fine Dining Group et al., case number SC119342, in the Superior Court of the State of California, County of Los Angeles.

Hokee Dokee- That’s a wrap folks…Time to adjourn for the week. Happy New Year!

Week Adjourned: 1.9.14 – DAP XHose, Nissan, Honda

The week’s top class action lawsuits and settlements. Top cases include Nissan, DAP Xhose and Honda.

Top Class Action Lawsuits

Did you get hosed by DAP? A defective products class action lawsuit has been filed against hose manufacturer Dap Products, Inc, alleging the the Xhose and the Xhose Pro are defective and do not perform as advertised. No comment.

According to the DAP Xhose complaint, the hose is made out of a thin plastic internal tube with a thin cloth layer on the outside. Dap advertises the hose as providing an alternative to standard garden hoses because it is lightweight and can contract without “kinking.” “Defendants’ marketing and packaging states that the XHose is tough, durable, and long-lasting,” the lawsuit states. “Contrary to defendants’ representations, however, the XHose is defective and predisposed to leaking, bursting, seeping and dripping due to no fault of the consumer.”

According to Cynthia Finnk, who filed the complaint, she purchased two XHose Pros in December 2013 both of which eventually exploded during use. Oh yes—that could send you over the edge. Apparently, the company sent her a total of eight replacement hoses after the products continued to explode when in use, according to the lawsuit. Ok, what’s your first clue that quality control is an abstract concept here. The company allegedly refused to give a refund because the 90-day refund period had expired. Bingo!

The lawsuit was filed on December 24th, by plaintiffs Michael Carton, Cynthia Finnk, Rocco Lano, Laurina Leato, Marilyn Listander and Roger Mammon filed the lawsuit also names National Express and RPM International as defendants. The plaintiffs are seeking class status for the suit, and in excess of $5 million in damages. The case is United States District Court for the Northern District of Maryland case number 1:14-cv-04015.

Naughty Nissan! They got hit with a federal defective automotive class action lawsuit this week, alleging Nissan North America failed to warn consumers about dangerously defective transmissions in 2013-2014 Pathfinder vehicles. The alleged defect poses a potentially serious problem at any time, particularly when a car is merging onto high-speed traffic on a freeway, according to the lawsuit. Really?

The Nissan lawsuit alleges that, on acceleration from 15 to 30 mph, the vehicles are subjected to unexpected shaking and violent jerking (“juddering” or “shuddering”), preventing the vehicles from accelerating. And no doubt putting fear into the hearts of drivers and passengers alike.

The lawsuit states: “This transmission defect creates an unreasonably dangerous situation and increases the risk of a crash; it is inevitable that an individual will be injured or killed due to a collision caused by this safety defect.” But hey—if it hasn’t happened yet—why worry about it, right?

The lawsuit alleges that Nissan concealed and knowingly sold and leased vehicles with the dangerously defective transmissions, and through its dealers failed to honor express and implied warranties to repair and replace the dangerously defective transmissions. Instead, the 77-page lawsuit claims, consumers’ complaints were delayed, deflected, and ultimately denied.

Heads up folks—this defect potentially affects tens of thousands of consumers throughout the country. The Consumer Class Action Complaint seeks damages in excess of $5 million, injunctive and declaratory relief, and punitive damages for claims of breach of express and implied warranties, violations of the Magnuson-Moss Warranty Act, and violations of the Florida Deceptive and Unfair Trade Practices Act.

The action, filed December 15, 2014, is Batista vs. Nissan North America, Inc., no. 1: 14-cv-24728-RNS, filed in the U.S. District Court for the Southern District of Florida.

Top Settlements

Honda got its knuckles wrapped this week, as they agreed to pony up $70 million in fines to resolve allegations made by US federal regulators that from 2003 to 2014, the auto maker failed to report 1729 deaths and injuries related to possible safety defects in its vehicles. According to the National Highway Traffic Safety Administration (NHTSA), Honda will pay two $35 million civil penalties, effectively resolving its alleged lapses in early-warning reporting.

The early-warning reporting requirements are part of the Transportation Recall Enhancement, Accountability and Documentation (TREAD) Act, which requires car manufacturers to submit reports to the NHTSA every quarter to alert the agency of deaths or injuries arising from possible safety defects. The NHTSA states that Honda failed to provide early-warning reports to the agency to alert it about safety-related issues. The fines also address Honda’s alleged failure to report some warranty claims and customer satisfaction-related claims during that time, according to the agency.

Honda faced a barrage of class actions related to defective Takata air bags late in 2014, after which the NHTSA issued a special order directing Honda to explain its failure to fully report deaths and injuries related to possible auto safety defects, as required under the TREAD act.

According to the early-warning reports filed with the NHTSA, the 1,729 unreported injuries and deaths that Honda allegedly failed to report constituted more than double the number of incidents the automaker reported to the NHTSA during the past 11 years.

According to Honda, the under-reporting of those death and injury notices was due to “errors related to data entry, computer coding, regulatory interpretation, and other errors in warranty and property damage claims reporting.” Yeah—blame it on the help. Good one guys.

So, under the terms of the settlement, Honda has also agreed to conduct third-party audits of its reporting, train its staff in fulfilling TREAD Act requirements and devise compliance procedures.

Hokee Dokee—That’s a wrap folks…Time to adjourn for the week. See you at the bar.

Week Adjourned: 1.3.15 – Apple, GM, Wells Fargo

The Week’s Top Class Action Lawsuits and Settlements. Top stories include Apple, GM and Wells Fargo.

Top Class Action Lawsuits

Another year, another Apple Lawsuit. Yup. This week, iPhone users in Miami filed a consumer fraud class action lawsuit against Apple Inc, alleging the Cupertino-based tech giant greatly overstated the storage capacity of devices that run its latest mobile operating system, iOS 8.

Lead plaintiffs filed the complaint in U.S. District Court in Northern California claiming operating system itself requires a significant percentage of the storage capacity on the iPhones, iPads and iPods that run it, thereby making a large portion of the advertised space unavailable to device owners.

According to the lawsuit, in some cases, the space used is 23.1 percent. Further, the complaint alleges, Apple entices customers in need of more space to pay for extra storage on iCloud.

“Using these sharp business tactics, [Apple] gives less storage capacity than advertised, only to offer to sell that capacity in a desperate moment, e.g., when a consumer is trying to record or take photos at a child or grandchild’s recital, basketball game or wedding,” the lawsuit states. “To put this in context, each gigabyte of storage Apple shortchanges its customers amounts to approximately 400-500 high resolution photographs.”

The plaintiffs allege Apple is violating California laws prohibiting unfair competition and false advertising. They claim that reasonable consumers do not expect the “marked discrepancy” between the advertised level of storage capacity and the available level of capacity on Apple devices running the OS.

GM’s Record Year? GM must be facing some kind of record for the number of defective automotive class action lawsuits filed against it in 2014. The latest GM lawsuit, filed in December, alleges a defect in the steering system of its Chevrolet Volts which causes the steering wheel to freeze intermittently while driving. Yes—that could certainly cause a few problems.

Filed in New Jersey federal court, by plaintiffs Christopher Johnson and Tara Follari-Johnson, the GM lawsuit claims that GM knew, or should have known, about the alleged defect, but continued to sell the cars. The lawsuit further claims that the alleged defect poses a hazardous safety risk to drivers and that even when GM agrees to fix the steering system, it only replaces the allegedly defective steering rack with the same or similarly defective components.

“When class members present to GM’s authorized dealerships complaining of the steering defect, the dealerships recommend repairs such as replacing the steering rack or steering gear assembly,” the plaintiffs said. “However, these repairs only temporarily mask the problem.”

The lawsuit alleges GM is in violation of the New Jersey Consumer Fraud Act and the Magnuson-Moss Warranty Act, and in breach of implied warranty of merchantability and express warranty and common law fraud.

The plaintiffs propose to represent a nationwide class of owners and lessees of 2011-2014 Chevrolet Volt bought or leased new in New Jersey and a subclass of national class members who live in New Jersey. There are at least 100 members of the proposed class, according to the plaintiffs, and their claims are more than $5 million.

“Complaints that consumers filed with National Highway Traffic Safety Administration and posted in discussion forums demonstrate that the defect is widespread and dangerous and that it manifests without warning,” the complaint states. “The complaints further indicate defendants’ knowledge of the defect and its danger.”

Top Settlements

Wells Fargo Agreed to Pony Up $14.5 million as part of a preliminary settlement agreement reached in a Telephone Consumer Protection Act (TCPA) class action lawsuit. The lawsuit was brought on behalf of millions of customers who alleged Wells Fargo Bank NA called them on their cellphones to collect credit card debt.

Brought by lead plaintiff Lillian Franklin, the Wells Fargo settlement motion, if approved, will resolve her suit claiming the bank violated the Telephone Consumer Protection Act by making automated calls to alleged debtors without their consent. She filed suit in August, claiming the financial institution called her multiple times on her cellphone in 2010, to collect an alleged debt on her credit card. The calls featured a pre-recorded message and were made without Franklin’s consent, according to the lawsuit.

According to the settlement terms, a settlement fund will be shared evenly between class members who submit claims. Currently, the class consists of 4 million members. The fund will established after consideration of attorneys’ fees and administration costs, according to the motion.

The case is Franklin v. Wells Fargo Bank NA, case number 3:14-cv-02349, in the U.S. District Court for the Southern District of California.

Hokee Dokee—That’s a wrap folks…Time to adjourn for the week. Happy New Year!

Week Adjourned: 12.19.14 – Sony, Graco, Comcast

The week’s top class action lawsuits and settlements. Top class action lawsuits include Sony, Graco and Comcast.

Top Class Action Lawsuits

So who’s NOT talking about Sony’s decisions this week…chief among them, an alleged decision to risk a data breach rather than upgrade their software to prevent hacking. At least that’s what past and present Sony employees are alleging in their proposed data breach class action lawsuit filed this week—the first of 3 such lawsuits.

The complaint, filed against Sony Pictures Entertainment Inc., claims the recent data breach which resulted in employee data theft, could have been prevented. Well, wouldn’t that have changed the course of history…

The data breach has resulted in a situation former employees claim is “better suited to a cinematic thriller than to real life.” Specifically, the class action lawsuit alleges Sony failed to take adequate precautions to prevent the massive data breach and protect the personal information of more than 15,000 employees, both past and present.

“Sony failed to secure its computer systems, servers and databases despite weaknesses it has known about for years” the complaint states. “Their most sensitive data, including over 47,000 Social Security numbers, employment files including salaries, medical information, and anything else that their employer Sony touched, has been leaked to the public, and may even be in the hands of criminals.” The lawsuit cites an email from Sony’s general counsel, among other internal documents obtained in the leak, that expresses concern that the company’s network security and email retention policies left it vulnerable to an attack, such as the one it has now suffered.

The lawsuit also claims that Sony had previously suffered cyberattacks, including a data breach in 2011 where hackers gained access to the company’s PlayStation Network and Qriocity systems, exposing up to 31 million user’s data. Remember those? They were consolidated and settled for $15 million in games, online currency and identity theft reimbursement. However, according to the current lawsuit, the security issues were not resolved. Way to go.

Here’s the stunner: according to the lawsuit, rather than remedying the ongoing security concerns fully, Sony executives “made a business decision to accept the risk of losses associated with being hacked” rather than pay for expensive system upgrades. “If only Sony had heeded its own advice in time,” the complaint says.

Initially, current Sony employees were offered identity theft monitoring, this was eventually extended to 12-month coverage by a third party to ex-employees. The lawsuit states the delay was unfair to ex-employees, some of whom, including the two class representatives, already purchased expensive identity theft monitoring packages.

According to the complaint, Sony’s ex-employees call the company’s deal inadequate, noting that the credit monitoring and insurance it provides cannot prevent identity fraud, only inform them when it happens. Additionally, the lawsuit alleges that federal agencies have acknowledged that hackers sometimes hold stolen data for over 12 months and that identity fraud can continue to be a threat for many years.

Consequently, the Sony data breach class action lawsuit seeks more substantial protections, including credit card and banking monitoring services for five years, as well as identity theft insurance and credit restoration services, also for five years. The suit asks the court to force Sony to do more to address the potential identity fraud that may follow those affected by the breach indefinitely.

The proposed class includes current and former employees whose personal information was compromised in the leak, including two subclasses in Virginia and California.

The case is Corona et al v. Sony Pictures Entertainment, Inc., case number 2:14-cv-09600, in the U.S. District Court for the Central District of California.

Is Graco’s Child Seat a Child Trap? A proposed defective products class action lawsuit pending against Graco Children’s Products Inc, over allegations that their children’s car-seats have defective belt buckles, got greenlit this week.

Filed in March 2013 by plaintiff Seth Long, the Graco class action alleges violations and claims under the California Consumers Legal Remedies Act and Unfair Competition Law, and breach of implied warranty under the Song-Beverly Consumer Warranty Act and the federal Magnuson-Moss Warranty Act.

In February 2014, Graco issued a recall of 3.7 million forward-facing toddler seats due to alleged defects with the buckles, which could become so plugged up with food, juice, formula or vomit that they won’t open, according to Long’s complaint. According to court documents, the defective buckles may become stuck in the latched position, making it harder to pull a child out of the car. In July, Graco added a further 1.9 million car seats to the recall.

The National Highway Transportation Safety Agency published a series of reports on the defective car seats at the time of the February recall, and stated that it had been investigating the belt buckles since 2012. Among the problems the Agency encountered during testing were that the buckles would become impenetrable and parents would have to pick up the child and the seat, which together could weigh over 70 pounds, to lift it out of the car in the event of an emergency.

Well, that’s certainly no selling point. FYI, Graco appears to be no stranger to defective product lawsuits—they’ve also faced class actions over allegedly defective cribs, strollers and highchairs…

This particular case is Seth Long v. Graco Children’s Products Inc., case number 3:13-cv-01257, in the U.S. District Court for the Northern District of California.

Top Settlements

Comcast to cough up $50M to end a decade-long consumer antitrust class-action lawsuit brought by consumers who allege the cable-TV service provider engaged in anti-competitive behavior.

This week, a federal judge in Philadelphia has approved a preliminary US$50 million settlement that entitles about 800,000 current and former Comcast cable-TV subscribers in Bucks, Chester, Delaware, and Montgomery Counties and Philadelphia to US$15 in credits, or Comcast services valued at US$ 30-43.90, according to court documents.

FYI—those services include temporary internet upgrades, six free pay-per-view movies, or two free months of the Movie Channel. Comcast is required to notify its customers in monthly bills and to advertise the settlement in newspapers and magazines throughout the Philadelphia region. A Comcast spokesperson said that former Comcast cable-TV customers in the five counties could also participate in the settlement, if they were subscribed between 1 January 2003, and 31 December 2008. They will be eligible for US$ 15 in cash.

The suit, first filed in Philadelphia federal district court in December 2003, claimed that Comcast engaged in anti competitive behaviour by concentrating its cable systems in the broader Philadelphia area and making it difficult for RCN, a competitor, to expand telecommunications services here. Comcast could charge higher prices for its cable-TV service, the suit claimed.

Hokee Dokee—That’s a wrap folks…Time to adjourn for the week. Have a good one!

Week Adjourned: 12.5.14 – Apple, Football Concussions, Truvia

The week’s top class action lawsuits and settlements. Top stories include Apple, high school football concussions and Truvia sweetener.

Top Class Action Lawsuits

Bad, Bad Apple! Again! Really? This week we report an antitrust class action lawsuit filed by three individuals who allege Apple violated federal and state laws by issuing software updates in 2006 for its iPod that prevented iPods from playing songs not purchased on iTunes.

At the risk of grossly oversimplifying the charges, the Apple lawsuit claims that the software updates caused iPod prices to be higher than they otherwise would have been.

The Court in charge of the case is the United States District Court for the Northern District of California, and the case is known as In re Apple iPod iTunes Antitrust Litigation, C-05-00037-JW.

The Court decided that everyone who fits the following description is a Class Member: All persons or entities in the United States (excluding federal, state and local governmental entities, Apple, its directors, officers and members of their families) who purchased one of the iPod models listed below directly from Apple between September 12, 2006 and March 31, 2009 (“Class Period”). A list of iPod models included in the class can be found here.

We’re losing count of the number of class action lawsuits filed against the technology giant. The Apple allegations have included price fixing, defective products (MacBook Pros, iPhones, iPods), personal data collection, download fees and unpaid overtime, among others. In fact, just last week we reported a proposed $450 million settlement of an antitrust class action against Apple over ebook pricing.

You know, it may just be time to stop drinking the KoolAid—sorry—juice.

Traumatic Brain Injury Trickle-Down…This is interesting—you had to know it was coming. It started with the pros, and now it’s at the high school level. A football concussion and brain injury class action lawsuit has been filed against an Illinois high school association claiming a former football player at one of its member schools developed health problems, including memory loss, because of injuries allegedly sustained as a result of playing high school football.

Filed in Illinois state court by Daniel Bukal, the Illinois football lawsuit claims Bukal played for the Notre Dame College Prep school for four years until 2003. The lawsuit claims that during that time the association failed to put in place policies that would have minimized the kind of concussion injuries Bukal allegedly sustained as a result of playing football. By way of example, the lawsuit claims the association had no policies for schools to follow regarding when to allow injured players to return to the field.

“It is now widely understood and acknowledged that concussions pose serious risks to participants in contact sports, and especially football,” Bukal states in his lawsuit. “Among those risks are brain trauma and potentially debilitating long-term brain injuries. But if the problem of concussions in sports is a crisis, then it would be accurate to call the particular problem of concussions in high school sports an epidemic.”

The lawsuit alleges that high school football players, who are typically between 14 and 19 years of age, are at a higher risk for lasting injuries as a result of physical trauma sustained during football games and practices, because their brains are still developing.

According to the lawsuit, the Illinois high school association does not have sufficient safety protocols in place to protect players against such injuries. The lawsuit also claims that the association does not require schools to conduct any baseline testing for concussions before and during the season.

Additionally, the lawsuit states that the Illinois high school association does not require any medical professionals to be present at games to monitor the safety of players.

Bukal, who has been a team captain and named an offensive MVP during his time on the team, said he continues to suffer the effects of the multiple concussions he sustained during his four years period as a player. According to the lawsuit, Bukal still experiences migraine headaches and “bouts of light-headedness.”

The case is Daniel Bukal v. Illinois High School Association, in the Circuit Court of Cook County Illinois. The case number could not immediately be identified Monday.

Top Settlements

Not such a sweet deal for Cargill. The agribusiness giant got its knuckles wrapped for not telling the truth, and has agreed to pony up $6.1 million this week, as settlement of a consumer fraud class action. The allegations are that it falsely marketed its Truvia sweetener as being natural when it actually contains largely synthetic and chemically produced ingredients. You shouldn’t be surprised.

According to the settlement terms, the company will establish a $6.1 million fund which will cover attorney’s fees, incentive fess of $2,000 per named plaintiff and distribution among a nationwide class who purchased any of the Truvia products during a six-year period that ended in July. Eligible class members who file claims will be entitled to receive up to $45 in cash or $90 in vouchers.

Additionally, as part of the settlement, Cargill will make certain label changes that will clarify its “Nature’s Calorie-Free Sweetener” and “Truvia Natural Sweetener provides the same sweetness as two teaspoons of sugar” statements. Further it, will add language directing consumers to a new website with frequently asked questions, and update its Truvia website to better explain to consumers the manufacturing processes involved.

The lawsuit was originally filed in July 2013 alleging that in 2008 Cargill teamed up with Coca-Cola (what’s your first clue) to develop a purportedly natural sweetener that would capitalize on consumers’ desire for a health conscious, non-caloric alternative sweetener. The plaintiffs alleged the labelling and marketing campaign the company developed was deceitful, making consumers believe that Truvia is a natural sweetener made primarily from the stevia plant. Not so, apparently.

According to the complaint, the stevia-derived ingredient, Rebaudioside A, comprises only 1 percent of Truvia and is a highly chemically processed and purified form of stevia leaf extract. The main component of Truvia, erythritol, is synthetically fabricated. Feeling good?

The plaintiffs alleged that through this misleading advertising, the defendants were able to charge approximately 300 percent more per packet than Sweet ‘N Low and 67 percent more per packet than Splenda. That in itself is enough to give you heart failure!

The case is Denise Howerton, Erin Calderon and Ruth Pasarell, Individually and on Behalf of All Others Similarly Situated vs. Cargill Inc., case number 1:13-cv-00336, in the U.S. District Court for the District of Hawaii.

Hokee Dokee—Time to adjourn for the week. Have a good one!

Week Adjourned: 11.29.14 – Uber, Dollar General, Apple

The week’s top class action lawsuits and settlements. Top stories include Uber, Dollar General, Apple

Top Class Action Lawsuits

Uber Drivers being taken for a ride? Maybe… Uber Technologies got slapped with a class action filed by a Boston cabdriver who alleges the mobile app-based car service routinely violates the Fair Credit Reporting Act (FCRA) by using background checks without applicants’ knowledge or authorization to make hiring decisions.

Filed on behalf of lead plaintiff Abdul Mohamed, the Uber class action claims that by failing to obtain his authorization for a background check and not disclosing that the company would check his background when he applied for a job as an “Uber X” driver, Uber, its wholly-owned subsidiary Rasier LLC and their employment screening agency Hirease LLC knowingly violated fair credit reporting laws in Massachusetts and California in addition to the FCRA.

The lawsuit also claims that Uber violates the FCRA and state credit reporting laws by using background checks in hiring decisions without providing applicants with copies of their reports.

“In direct violation of the FCRA [and state laws], whenever adverse action is taken against an applicant on the basis of information disclosed on a consumer report, the defendants fail to afford the applicants the procedural safeguards mandated by law… including by failing to provide pre-adverse action notices and a reasonable opportunity to dispute information in such reports before taking adverse action,” the complaint states.

According to the Uber lawsuit, Mohamed applied to be an Uber X driver in September, after having previously worked for Uber as an “Uber Black” driver using his own car. Uber told him he must purchase a new car for the position, which he did at a cost of $25,000. Mohamed then began working as an Uber X driver in early October. However, on October 28, Mohamed received an email from Hirease stating that his contract with Rasier was terminated because of information obtained through a consumer reporting agency, the complaint states.

“[Uber and Rasier] terminated Plaintiff because Hirease’s consumer report concerning Plaintiff indicated he had a minor criminal record that, in fact, stems from his seven children receiving much-needed Medicaid benefits,” the lawsuit alleges. “[Uber] termination of Plaintiff deprived him of his livelihood and left him without an alternative means of providing for his family, including his seven children.” Mohamed alleges that despite an email stating he had received a copy of his consumer reports and rights under the FRCA, he did not receive the described materials.

Further, the lawsuit states that Mohamed did not have an opportunity to review the information on his consumer report and discuss it with Uber and Rasier.

As part of its employment screening services, Hirease provides a package that automatically generates pre-adverse action and adverse action notices to an applicant, along with a copy of the consumer report, whenever Hirease makes an adverse hiring decision based on pre-determined criteria.

“Consumer reporting agencies routinely provide a similar service and many employers purchase it,” the lawsuit states. “Uber and Rasier could have easily and cost-effectively complied with the mandates of the FCRA, CCRAA, and MCRA by purchasing such services, but failed to do so.”

The case is Mohamed v. Uber Technologies Inc et al., case number 3:14-cv-05200, in the U.S. District Court in the Northern District of California.

Top Settlements

Dollar General Can’t Cheap Out on Its Staff. An $8.3 million settlement agreement has been approved by a federal judge in Alabama, potentially ending an unpaid overtime class action lawsuit pending against Dollar General. The Dollar General lawsuit alleged the discount retailer failed to properly pay store managers for overtime, in violation of the Fair Labor Standards Act (FLSA). The lawsuit dates back to 2006.

Specific allegations against Dollar General and its subsidiaries and sister companies, are that they required the store managers to work as much as 90 hours per week and misclassified them a exempt from overtime, even though they generally spent less than 10 hours weekly performing managerial duties. The settlement will cover some 2,722 individual claims.

According to the complaint, most of the store managers’ work hours involved non-managerial tasks such as operating cash registers. As a result, Dollar General allegedly short-changed the employees on overtime pay, according to the suit. Dollar General denied that it had misclassified the workers.

U.S. District Judge L. Scott Coogler granted approval of the settlement stating “The court finds that: the amended settlement agreement is fair; it reflects reasonable compromises of issues actually in dispute; the settlement was reached in an adversarial context in which the plaintiffs were represented by competent and experienced counsel; and the totality of the proposed settlement is fair and reasonable.”

The case is Richter v. Dolgencorp Inc. et al., case number 7:06-cv-01537, in the U.S. District Court for the Northern District of Alabama.

Settlement Takes a Bite out of Apple…Final approval of a $450 settlement has been granted ending an antitrust class action lawsuit against Apple Inc. The lawsuit alleged that Apple conspired publishers to raise e-book prices. While all the publishers settled their claims, only Apple went to trial.

The lawsuit was brought by the US Department of Justice and 33 states and claimed that in 2010 Apple signed distribution deals with five top publishers, namely Simon & Schuster Inc., Penguin Group USA, Macmillan Publishers USA, Hachette Book Group Inc. and HarperCollins Publishers LLC, that raised the prices for digital books from $9.99 to as much as $14.99. This resulted in consumers paying hundreds of millions of dollars. In July 2013, Judge Denise Cote ruled that Apple had “played a central role in facilitating and executing” the conspiracy. The company has since appealed that decision to the Second Circuit.

Under the terms of the settlement, consumers will receive $400 million. According to court documents, a claims administrator and e-book retailers have sent emails or postcards to almost 23 million addresses of people eligible to receive compensation.

The settlement contains a provision allowing Apple to pay $50 million to consumers and $10 million each to the states and class counsel if Judge Cote’s 2013 decision finding Apple liable is vacated and remanded on appeal or reversed and remanded with instructions for reconsideration or a new trial. If the decision is simply reversed, Apply will pay nothing.

The cases are In re: Electronic Books Antitrust Litigation, case number 1:11-md-02293, and State of Texas et al. v. Penguin Group (USA) Inc. et al., case number 1:12-cv-03394, both in the U.S. District Court for the Southern District of New York.

Hokee Dokee—Time to adjourn for the week. Happy Thanksgiving!! Gobble Gobble!