Class Action - Part 27

Week Adjourned: 1.25.13 – Lance Armstrong, Subway, Southwest Airlines

Top class action lawsuits and settlements of the week, for the week ending January 25, 2013.

Top Class Action Lawsuits

File Under “Fiction”. You would pretty much have to be living on the dark side of the moon not to have heard of the consumer fraud class action lawsuit filed against the publishers of Lance Armstrong’s book “It’s Not About the Bike.” Indeed it’s not.

Filed following the interview/confession with Oprah Winfrey earlier this week, the lawsuit alleges the publishers sold Lance Armstrong’s latest book as fact, when it was fiction. Quelle Surprise!

And, the lawsuit, filed this week in federal court in California, also mentions Armstrong’s other book, “Every Second Counts,” and accuses the cyclist and his publishers of fraud and false advertising.

The lawsuit, filed by Rob Stutzman in federal court in California, also mentions Armstrong’s other book “Every Second Counts, and alleges Armstrong and his publishers are guilty of consumer fraud. Specifically, the lawsuit states “At that time, Stutzman thanked Defandant Armstrong for writing his book and told him it was very inspiring and that he recommended it to friends who were fighting cancer.” Stutzman contends that had he and others similarly situated known Armstrong’s accounts were lies, they would not have purchased the book, or have enjoyed it less.

“Throughout the book, Defendant Armstrong repeatedly denies that he ever used banned substances before or during his professional cycling career,” the lawsuit states. The lawsuit also states that the plaintiffs purchased the book “based upon the false belief that they were true and honest works of nonfiction when, in fact, Defendants knew or should have known that these books were works of fiction.” Well, everyone likes a good story, and this is certainly no exception.

Is Subway selling a Whopper? …instead of a Footlong? We’ll have to wait and see… A consumer fraud class action lawsuit was filed this week against the sandwich chain Subway, alleging it advertises the $5 Footlong sandwiches when they are not a foot long.

The Subway Footlong lawsuit, Pendrak & Farley v. Subway Sandwich Shops Inc., et al., Superior Court for the State of New Jersey, claims the famous sandwiches actually measure between 11-11.5 inches, instead of 12 inches as advertised. (no comment).

The lawsuit further claims that Subway is aware its Footlong sub sandwich is not 12 inches, because sandwich prices are set at the corporate level then sent down the line to the individual franchises. Consequently, Subway is purposefully defrauding its customers by selling so-called “$5 Footlongs,” according to the lawsuit.

Top Settlements

This round’s on Southwest! Yes, indeed—Southwest Airlines reached a tentative settlement of a pending class action lawsuit over drink vouchers. Included in this Settlement are Southwest customers who received a drink coupon with the purchase of a Business Select ticket prior to August 1, 2010, and did not redeem the drink coupon.

Filed in 2011, Southwest Airlines class action lawsuit plaintiffs, Adam Levitt (an attorney himself) and Herbert Malone, alleged the airline’s policy changes around its drink vouchers, which became effective after August 1, 2010, amounted to a breach of contract and made the coupons worthless. The policy change stipulated that while the drink vouchers had no expiration date, they could only be used on the dates voucher holders were traveling. The vouchers were issued to passengers for alcoholic drinks.

Southwest Airlines drinks vouchers changes were brought in because, the airline claimed, passengers were photocopying them to get free drinks.

The settlement includes Business Select passengers who were issued vouchers before August 1, 2010. Based on Southwest’s charges of $5 per alcoholic drink, the settlement may cost the airline as much as $29 million, with some 5.8 million vouchers up for redemption. The final fairness hearing is set for May, 2013.

The proposed settlement includes damages for Class Members who received Southwest drink coupons through the purchase of a Business Select ticket prior to August 1, 2010, but did not redeem those drink coupons for a free drink. Eligible class members must file a claim before September 2, 2013.

So—see you at the bar—and don’t forget your voucher!

Week Adjourned: 1.18.13 – Clinique, Dell, Morgan Stanley, Goldman Sachs

The week’s top class action news–lawsuits and settlements that made the buzz this week. Top stories include Estee Lauder’s Clinique line, Dell computers, Morgan Stanley and Goldman Sachs.

Top Class Action Lawsuits

Speaking of wrinkles—it appears that Estée Lauder has hit one. The maker of Clinique cosmetic and skin care products is the latest to face a consumer fraud class action lawsuit over allegations of false and deceptive marketing practices.

In the Clinique false advertising lawsuit, entitled Margaret Ohayon et al. v. Estee Lauder Inc. et al., Case No. 2:33-av-00001, U.S. District Court for the District of New Jersey, plaintiff Margaret Ohayon alleges Estee Lauder uses deceptive advertising tactics to promote its Clinique Repairwear, Youth Surge and Turnaround collection as having the ability to make wrinkles “disappear,” rebuild firming collagen, and produce other anti-aging benefits.

The lawsuit alleges that if, in fact, the Clinique products could “rebuild stores of natural collagen” or “deliver 63% of the visible wrinkle-reducing power of a laser procedure,” the products would be regulated by the Food and Drug Administration. Not to mention your girlfriends would be all over it—like you could keep the effects a secret—I don’t think so.

The Clinique consumer fraud class action lawsuit is brought on behalf of a proposed class of all consumers who have purchased at least one Clinique product from the Repairwear, Youth Surge or Turnaround collection in the US.

The lawsuit seeks compensatory, treble and punitive damages; restitution; injunctive relief and more for alleged breach of express warranty, unjust enrichment, and violations of the New Jersey Consumer Fraud Act and consumer fraud laws of various states.

Top Settlements

Heads up: Taxing Situation at Dell… An unfair business practices class action lawsuit filed in California against Dell Computer Corp, has reached a tentative settlement totaling $275 million in potential refunds.

The class action lawsuit revolves around the payment of California sales tax on Dell service contracts…read on…

The lawsuit, entitled Mohan, et al. v. Dell, Inc. et al. alleged the Defendants (Dell Inc. f/k/a/ Dell Computer Corp.; Dell Marketing LP (“DMLP”), on its own behalf and as successor by merger to Dell Catalog Sales LP (“DCSLP”); BancTec, Inc.; and Worldwide Tech Services, LLC f/k/a/ QualxServ LLC) improperly charged California use tax on purchases of certain Optional Service Contracts and remitted these taxes to the California State Board of Equalization (“SBE”).

The parties have reached two distinct settlement agreements to resolve the legal action: the Dell Settlement and the SBE Settlement. Under the terms of the respective settlements, which cover purchases made between April 8, 1999 and June 30, 2008, funding for the settlements will be provided by Dell and the California State Board of Equalization. The settlements followed a 2006 trial court’s decision, later affirmed on appeal by the California Court of Appeals in 2008, ruling that optional service contracts sold by Dell were not subject to California sales or use tax, as they did not constitute tangible personal property and were readily separable from the computer hardware with which they were sold.

Further, the terms of the two settlements stipulate that customers of Dell who purchased and paid tax on service contracts covering computer hardware during the class action period will be entitled to a full refund of all such taxes that they paid.

The settlement consists of more than $275 million in refunds. Notices will be mailed to customers informing them of the amounts of refunds available to them and instructions for the timely filing of claims. The Court will review the settlement agreements at the Final Hearing to be held in April, 2013.

Class members who are eligible to receive a refund under one or both of these settlement agreements must file a claim or claims to receive any refund(s). Each settlement agreement has different criteria for eligibility. For more information on eligibility and how to file a claim for the separate settlements, visit sctaxsett.com.

Welcome Home[Owner] News. This one’s a whopper…and some welcome news for home owners who suffered dodgy loan servicing and/or foreclosure at the hands of Morgan Stanley or Goldman Sachs. This week the Federal Reserve announced it has reached a settlement with the two financial institutions over alleged loan servicing and foreclosure abuses.

Under the terms of the settlement, reported by CNNMoney.com, Morgan Stanley will provide $97 million in direct cash payments to borrowers and $130 million worth of other relief, including loan modifications and the forgiveness of deficiency judgments. Goldman will pay $135 million to borrowers with a further $195 million provided as relief.

Here’s the skinny. The settlement provides for over 220,000 homeowners who held mortgages with the two banks’ former subsidiaries: Goldman’s Litton Loan Servicing and Morgan’s Saxon Mortgage Services, and subsequently faced foreclosure in 2009 and 2010. According to CNNMoney.com “over four million borrowers will split a total of $3.5 billion in cash compensation, with payments ranging from a few hundred dollars to potentially as much as $125,000 in a small percentage of cases. Those eligible are expected to be contacted by the end of March, regulators said.”

This settlement follows the $8.5 billion agreement announced last week by the Federal Reserve and the Office of the Comptroller of the Currency with 10 other banks over foreclosure issues.

Goldman Sachs was ordered to review its subsidiary’s foreclosure practices in September 2011, as was Morgan Stanley in April 2012. Those reviews were not initiated and will now be scrapped as a result of this settlement deal.

Well this news is worth a minor celebration—on top of the fact that it’s Friday. So—see you at the bar!

Week Adjourned: 1.11.13 – Kia, AT&T Mobility, Chase Bank

This week, our wrap of top class action lawsuits and settlements is a consumer fraud hat trick! Read on for what’s been hot this week in class action news: Kia Sorento, AT&T Mobility, Chase Bank Overdraft Fees. All for the week ending January 11, 2013.

FYI…we’re going for a Consumer Fraud hat trick this week…

Top Class Action Lawsuits

Kia Sorento #EpicFail? Heads up anyone out there who owns a Kia Sorento 2002-2009 model…Kia Motors is facing a consumer fraud class action lawsuit over allegations that these Sorento models are prone to catastrophic engine failure. That sounds rather alarming.

The Kia Sorento lawsuit, entitled Robinson et al v. Kia Motors America Inc. et al., Case No. 13-cv-00006 U.S. district Court for the District of New Jersey, claims that Kia Motors knowingly concealed a manufacturing defect in the crank sprocket of its 2002-2009 Sorento models. This alleged engine defect can lead to a catastrophic chain of events beginning with severe heat buildup, the release of debris, and subsequent loss of steering control, engine failure and the potential for a hazardous accident, the plaintiffs allege. (And you thought sprockets were just something George Jetson worried about…)

“Not only did Kia actively conceal the material fact that this particular component is defectively designed (and requires costly repairs to fix), but it also did not reveal that the existence of this defect would diminish the intrinsic resale value of the vehicle,” the Kia lawsuit states.

Other allegations include Kia having knowledge of the engine defect for several years, as evidenced by numerous online complaints. However, it allegedly chose to withhold this information from consumers while making numerous statements about the quality and reliability of the Sorento. As a result of Kia’s “scheme of false and misleading advertising and marketing” thousands of people have purchased a Sorento, without knowledge of the defect, in preference to another vehicle without the alleged defect. Getting the picture?

The lawsuit also alleges that Kia Sorento owners who sought repairs for their vehicles while under warranty received only temporary repair of damaged parts, which may have included using similarly defective parts. Not good.

Additionally, the plaintiffs claim that Kia profits from the alleged Sorento engine defect by performing unnecessary parts replacements, computer reprogramming and software updates, despite knowing the true cause of the problem.

This lawsuit seeks to represent a nationwide class of consumers that purchased or leased the first generation Sorento. Ok.

Top Settlements

AT&T Mobility Customers May Get Relief From 7-Year Itch. A settlement has been reached in the consumer fraud class action lawsuit pending against AT&T Mobility LLC. The lawsuit claims that AT&T improperly charged fees to certain wireless customers—over a seven-year class period. That’s alotta fees—and sadly, seems to be a trend these days.

So—if you were assessed Universal Service Charges or similar charges under state or other laws (collectively “USC”) on data pay-per-use plans, visual voicemail services, customer custom packaging plans, international calls outside the United States or voicemail services only (“Covered Services”) by AT&T Mobility LLC (“AT&T Mobility”) on bills issued from January 1, 2004 up to and including December 31, 2010, you might be eligible to receive benefits from a class action settlement.

We must stress, that the AT&T Mobility settlement has to receive final approval. If approved, it will resolve the lawsuit entitled, MBA Surety Agency, Inc. v. AT&T Mobility LLC, Case No. 1222-CC09746, concerning AT&T Mobility assessment of USC on the Covered Services. AT&T Mobility will contribute $152,634,430.00 (“Settlement Proceeds”) which will be payable in the form of credits and cash payments to the eligible Settlement Class members after deductions for attorneys’ fees etc. The final Fairness Hearing is scheduled for February 20, 2013. Watch this space—we’ll keep you posted.

And for the Hat Trick…after all, three’s a charm! A $110 million settlement that just received final court approval, ending an overdraft fees class action lawsuit against Chase Bank. Yes—this is a form of consumer fraud, because “it ain’t on the level.”

The Chase Bank overdraft fee settlement is the latest to be reached in the massive class action lawsuit involving over 30 banks who are alleged to have manipulated customers’ transactions in such a way as to maximize overdraft fees. What’s on the level about those business practices?

The allegations also state that rather than declining transactions on an account that has insufficient funds to cover a purchase, Chase Bank authorized the transactions and then processed them in highest to lowest dollar order, which effectively increased the number of overdraft fees charged. Oh—don’t get me started!

As part of the settlement agreement, Chase will, for a period of at least two years, cease charging overdraft fees on individual debit card transactions of $5.00 or less. No comment.

Class members include anyone who (A) held a Chase, Bank One, or Bank of New York consumer deposit account accessible with a Chase debit card anytime between January 1, 2003 and March 29, 2010; and (B) were charged one or more overdraft fees as a result of Chase’s practice of posting debit card transactions from highest to lower dollar amount.

That’s it for this week. Off to you know where—see you there!

Week Adjourned: 1.4.13 – Dole Food, Google, Viacom, Chase Bank Fees

The weekly wrap of top class action lawsuits and settlements. Top stories for the week ending January 4, 2013 include Dole Food, Google Privacy, Viacom Privacy, and Chase Bank Overdraft Fees.

Top Class Action Lawsuits

Dole Delivering Nutrition But Not Compensation? New year, old tricks…This time it’s Dole Food Company—they’re facing a wage and hour class action lawsuit over allegations it fails to pay its employees for the time they spend dressing and undressing in sanitary clothing, which they must wear during work. According to the Dole class action lawsuit, “The time that Dole requires its employees to work without compensation on a daily basis is substantial.”

The Dole lawsuit alleges specifically that dressing in protective gear and sanitizing hands and shoe soles are food safety practices that workers are required to use to comply with Dole’s policies. “All of these activities are performed for the benefit of Dole,” the lawsuit states.

Lead plaintiff, Jose Luis Hernandez, who worked in Dole’s Soledad plant, alleges Dole also routinely violated lunch and rest break requirements because employees were required to “don and doff” their gear, and that time shouldn’t be considered part of the employees’ break time. “Dole knew or should have known that its policies and practices were expressly contrary to California law and unfair,” the lawsuit states. Go get’em!

Heads Up! Got Kids On The Internet? Ok. Stupid question. Six internet privacy class action lawsuits have been filed against Google Inc. and Viacom Inc. over allegations the companies illegally track the online activities of children under 13. These actions, according to the Google and Viacom privacy lawsuits, violate both the federal Video Privacy Protection Act (VPPA) and the federal Wiretap Act.

Specifically, the lawsuits claim that Viacom and Google placed cookies on users’ computers enabling the companies to unlawfully track the Internet and video-viewing activities of minors who visited Viacom-owned sites like Nick.com and NickJr.com. The information was used to target advertising, the lawsuits allege.

The cookies allegedly remained on computers even after the children had informed Viacom through the sign-up process that they were under 13.

“The plaintiffs, and others similarly situated, suffered invasions of privacy in direct violation of federal law when Viacom and Google developed, implemented and profited from cookies designed to track the Internet communications and video viewing habits of minor children under the age of 13,” the lawsuits state.

The plaintiffs in all six class action lawsuits are seeking to certify a nationwide class of children under 13 who had cookies placed their computers by Google and Viacom for the purposes of tracking their viewing habits, without the plaintiffs’ knowledge. Plaintiffs are also proposing a subclass of children who engaged with video materials that Viacom knowingly allowed Google to track through a specialized cookie.

Top Settlements

Chase Maxed Out Its Good Credit…or so it seems, and will have to pony up a $110 million—the amount that recently received final court approval—as settlement of a Chase overdraft fees class action lawsuit.

The settlement is the latest settlement to be reached in the massive class action lawsuit involving over 30 banks who are alleged to have manipulated customers transactions in such a way as to maximize overdraft fees.

As part of the settlement agreement, Chase will, for a period of at least two years, cease charging overdraft fees on individual debit card transactions of $5.00 or less.

Ho Ho Ho, It’s to the Bar I go. See you there!

Week Adjourned: 12.18.12 – Instagram, Toyota, BP Oil Spill

The weekly wrap of top class action lawsuits and settlements for the week ending December 28, 2012. Top class action stories include Instagram, Toyota and BP Oil Spill.

Top Class Action Lawsuits

Insta-cha-ching? You share your photos for free—and Instagram sells them for a profit? What? You have a problem with that? This week, Instagram got hit with a proposed unfair business practices class action lawsuit related to its recently updated terms of service. Specifically, the lawsuit, filed by California Instagram user Lucy Funes, alleges the company is in breach of contract: “[Instagram’s] unreasonable change of Terms accordingly violated the implied covenant of good faith and fair dealing inherent in Instagram’s current Terms,” the Instagram class action lawsuit states.

Instagram, now owned by Facebook, announced updates to its privacy policy and terms of service the week before Christmas, and one provision stood out: The right apparently reserved by Instagram to sell users’ photos without notice or compensation. Very crafty. Why is it no surprise that Facebook is somehow involved in this?

As a result of rapid and large user backlash, the photo-sharing site denied that it had plans to sell user photos, referring to the upset as a misunderstanding. The new terms of service will go into effect January 16, 2013.

According to the Instagram lawsuit, “On behalf of a class of Instagram’s California customers, Plaintiff is acting to preserve valuable and important property, statutory, and legal rights, through injunctive, declaratory, and equitable relief issued by this Court before such claims are forever barred by adoption of Instagram’s New Terms,” the filing said. “For this reason, even though the New Terms are not yet effective, this case is ‘ripe’ for adjudication.”

Top Settlements

Step On It Already! It’s about time—Toyota Motor Corp has agreed to a $1.1 billion settlement of a pending defective products class action lawsuit.

The Toyota class action lawsuit stemmed from complaints that a flaw in Toyota’s electronic throttle-control system, and not ill-fitting floor mats and sticky accelerator pedals, were to blame for unwanted acceleration of Toyota vehicles, which caused drivers to lose control and crash.

According to the terms of the settlement, as reported by the Wall Street Journal, Toyota will pay $1.1 billion to install new safety equipment and reimburse as many as 16 million customers.

BP’s cost of doing business? A $7.8 billion settlement against BP PLC has been approved by a federal judge, resolving economic and medical claims brought by more than 100,000 businesses and individuals who suffered from the massive BP oil spill in the Gulf of Mexico in April, 2010.

According to the terms of the settlement, approved by US District Judge Carl Barbier, there is no cap on the financial compensation—so the amount could be more or less than the estimated $7.8 billion, with the exception of $2.3 billion put aside to cover seafood-related claims by commercial fishing vessel owners, captains and deckhands.

The explosion of BP’s Macondo well that resulted in the worst oil spill in the history of the US, killed 11 rig workers and released over 200 million gallons of oil, closing much of the Gulf for months to commercial and recreational fishing and shrimping. While much litigation remains, this agreement provides for people and businesses in Louisiana, Mississippi, Alabama and some coastal counties in eastern Texas and western Florida, and in adjacent Gulf waters and bays.

According to a report in the Kansas City Star Judge Barbier said the settlement averts worries that litigation could continue for 15 to 20 years, as it did after the Exxon Valdez and Amoco Cadiz oil spills, creating a secondary disaster for those affected. The Star also notes that no ruling has been made on a medical settlement for cleanup workers and others who say exposure to oil or dispersants made them sick.

Still unresolved are environmental damage claims brought by the federal government and Gulf Coast states against BP and its partners on the Deepwater Horizon drilling rig, and claims against Switzerland-based rig owner Transocean Ltd., and Houston-based cement contractor Halliburton.

A trial is scheduled for next year, to identify the causes of BP’s blowout and assign percentages of fault to the companies involved.

Judge Barbier wrote that lawyers’ fees will not be taken from the settlements: BP has agreed to pay them separately.

I’ll drink to that! And on that note—Happy New Year—here’s to a peaceful and prosperous 2013!

Week Adjourned: 12.21.12 – Green Giant, Hurricane Sandy, Dillard’s Stores

The weekly wrap of top class action lawsuit and settlement news for the week ending December 21 2012. Top stories include Green Giant, Hurricane Sandy insurance claims and Dillard’s department stores.

Top Class Action Lawsuits

Ho-Ho-Ho are Those GMO’s? Nothing fresh about this old chestnut. Yet another in the rash of false labeling and misleading advertising consumer fraud class action lawsuits was filed this week against General Mills’ alleging its Green Giant 100% Natural Valley Fresh Steamers frozen vegetables are not 100% natural as claimed on the product labeling.

Ok. Here’s the dope. Filed by Elizabeh Cox, the Cox v. General Mills Inc., Case No. 12-cv-06377, consumer fraud lawsuit alleges the Valley Fresh Steamers contain genetically modified organisms (GMOs) in the form of corn, soy, corn derivatives and soy derivatives, thereby making the product labeling false or misleading.

In the Green Giant Class lawsuit, Cox claims she bought several of Green Giant 100% Natural Valley Fresh Steamers frozen vegetables in September, including Green Giant 100% Natural Valley Fresh Steamers Roasted Red Potatoes, Green Beans & Rosemary Butter Sauce and Green Giant 100% Natural Valley Fresh Steamers Broccoli, Carrots, Cauliflower & Cheese Sauce. Cox is claiming damages and harm which resulted from the misleading labeling because the product is not what is advertised. Specifically, the lawsuit states, “The harmful impact upon members of the general public who purchased and used the product outweighs any reasons or justifications by defendant for the deceptive labeling and advertising practices employed to sell the product that misleadingly claims to be ‘100% Natural.’”

The Green Giant class action lawsuit is brought on behalf of anyone who purchased Green Giant Valley Fresh Steamers containing corn or soy ingredients from October 22, 2008 through the present. Sign me up!

A Basement is a Basement is a….? You knew it had to happen. And it likely won’t be the only one. This week, a bad faith insurance class action lawsuit was filed against nine insurance companies, including Fidelity, Travelers and State Farm Insurance, over the definition of a basement related to insurance claims filed for damages caused by Hurricane Irene in 2011 and superstorm Sandy in late October. The lawsuit includes claims for Sandy in an effort to avoid improper insurance claim denials similar to those from Irene. Unbelievable.

At the heart of the Hurricane Sandy basement lawsuit is the issue of whether or not ground-floor units have been properly classified as basement units. Here we go. According to the lawsuit, the SFIP defines a basement as “any area of the building, including any sunken room or sunken portion of a room, having its floor below ground level (subgrade) on all sides.” The SFIP offers limited coverage for damages in basements, according to the lawsuit. Patrick Donnelly, from Jersey City, had flood insurance through WYO with New Jersey Re-Insurance Company and had a claim denied after Hurricane Irene because his ground floor was identified as a basement.

Part of the problem is that homeowners have a limited understanding of what a basement is under the terms of their policy. So, you might think you know your ground floor apartment is not basement—or vice-versa—but you don’t. Got that?

No? Well, you’re not alone. The lawsuit will represent everyone in New Jersey insured by the companies named in the lawsuit. Further, the lawsuit contains sub-classes specifically focused on Jersey City and Hoboken property and business owners.

Top Settlements

Dillard’s Disability Woes End in Settlement. Finally—some good news to end the year on! Well almost end the year on. A $2 million settlement has been reached in an employment class action lawsuit pending against department store chain Dillard’s Inc. The Dillard’s class action lawsuit contends that the retailer is in violation of federal disability laws by requiring workers seeking sick leave to disclose private medical conditions.

Dillards is under investigation by the US Equal Employment Opportunity Commission (EEOC) for firing a worker in El Centro in Southern California’s Imperial Count. The worker alleged she was fired in 2006 after refusing to reveal her exact medical problems to a manager who would not accept her doctor’s note when she requested sick leave.

According to a report in the Los Angeles Times, the EEOC alleges that in 2005 Dillard’s implemented a nationwide policy requiring those asking for excused absences for illness to not only give a doctor’s note but also disclose the medical condition they were being treated for. This affected thousands of workers, the EEOC claims, and is in violation of the Americans with Disabilities Act, which is meant to protect workers from being forced to disclose private medical information.

The EEOC has said it also investigated complaints that Dillard’s fired workers for taking more sick leave than the maximum number of days allowed by the retailer, which also violates federal disability discrimination laws.

As part of the settlement, Dillard’s has also agreed to hire a consultant to review and revise its employment policy.

I’ll drink to that! And on that note-Happy Holidays!

Week Adjourned: 12.14.12 – NHL & MBL, Norcold, Asbestos

The weekly wrap of class action lawsuits and settlements for the week ending December 14, 2012. Top stories include NHL, MBL, Norcold and asbestos litigation.

Top Class Action Lawsuits

It’s face-off time! …for the NHL, MBL and broadcasters Comcast and DirecTV. This week, an antitrust class action lawsuit against the National Hockey League and company, got the green light to move forward.

What’s the beef? Well, the plaintiffs allege the defendants have created a monopoly over sports broadcasts that forces consumers to pay high prices to watch games. Brought on behalf of telecast subscribers, the NHL & MBL lawsuit claims the defendants used anti-competitive practices in order to control the broadcasting market, enabling them to charge inflated prices for sports telecasts. Doesn’t sound improbable.

Specifically, the lawsuit, entitled, Laumann et al. v. National Hockey League et al., Case No. 12-cv-01817 states “The defendants have accomplished this elimination of competition by agreeing to divide the live-game video presentation market into exclusive territories, which are protected by anti-competitive blackouts [that don’t allow certain games in certain markets to air].” Be interesting to see who scores in this one!

Own a Norcold refrigerator for your boat or RV? You might be interested to know that some very frustrated brethren in California and Florida have filed a defective products class action lawsuit against the company. The Norcold lawsuit alleges the manufacturers of Norcold brand gas absorption refrigerators, used in RVs and boats, knowingly sold defective refrigerators that posed a serious fire risk but hid that information from the public and federal regulators.

Eligibility? The class action lawsuit seeks relief on behalf of all persons who purchased or owned RVs or boats in California and Florida equipped with three models of Norcold-brand gas absorption refrigerators. The complaint names Norcold, Inc., Thetford Corporation and Dyson-Kissner-Moran Corporation (DKM) as defendants.

The lawsuit alleges that since 1999, Norcold’s refrigerators have caused at least 2,000 fires (2000!) resulting in millions of dollars in property damage, personal injury and death. The refrigerators contain flammable gases under high pressure, including hydrogen. The gases are heated by electricity or propane to circulate and provide the refrigeration effect. Fires are caused when defects in the refrigerator design release the flammable gases, which can then explosively ignite and spread quickly through the refrigerator compartment and into the passenger area of the RV.

The Norcold lawsuit alleges that the companies knew of the potential fire hazard associated with its refrigerators, but rather than eliminate the design and manufacturing defects or provide an adequate warning of the potential safety risks to users of the product they tried to conceal and minimize these dangers through a series of limited manufacturer-initiated product safety recalls through the National Highway Traffic Safety Administration (NHTSA), beginning in 2000.

In each product safety recall, Norcold represented that there was a single failure modality in a limited portion of their product population. They provided a retrofit that would fix that defect, rendering the refrigerators safe to use. But in truth, the lawsuit alleges, the refrigerators had a number of different failures that were common to all of the product lines, information that was never adequately disclosed to NHTSA or users of the product, nor remedied by the retrofit campaigns. Further it’s alleged that the devices provided by the companies to “fix” the defects were not only ineffective to remedy the propensity of the refrigerators to cause fires, but were designed, when triggered, to render the refrigerators inoperable and unrepairable, requiring users to purchase new refrigerators that contained the same design and manufacturing defects as the originals, and which had the same propensity to cause fires.

Top Settlements

Two asbestos settlements …to report this week. The first, involves a 68-year old man who worked as a painter and handyman from the early 1960s until his diagnosis of asbestos mesothelioma. He was been awarded $8,465,738 in settlement of his asbestos lawsuit.

In the lawsuit, the plaintiff alleged his exposure to asbestos resulted from working with asbestos-containing products manufactured and supplied by the defendants, Union Carbide and CalPortland. Specifically, the lawsuit claimed that the joint compound and the plastic cement the plaintiff worked with contained asbestos.

Recently diagnosed with pleural malignant asbestos mesothelioma, the plaintiff subsequently underwent an extrapleural pneumonectomy. He and his wife brought suit against the various defendants alleging that the defendants were negligent in failing to warn of the dangers of asbestos contained in their products or sold to others to place in their products.

At the conclusion of the 37-day trial the jury returned its verdict in favor of the plaintiffs and against the defendants. The jury determined that defendants CalPortland and Union Carbide were responsible.

The second asbestos lawsuit settlement involves the family of a former employee at the GM Powertrain facility in the town of Tonawanda. The husband and father died of asbestos disease, and his family, who brought the GM asbestos lawsuit, were awarded $3 million by the jury hearing the case.

Gerald Suttner, formerly of Tonawanda, worked at the GM facility repairing valves manufactured by Crane Co. The job involved removing asbestos gaskets, which created asbestos dust Suttner would have inhaled. He did this from 1964 to 1979, when he retired.

Diagnosed in October 2010, Mr. Suttner died just one year later, from pleural mesothelioma, a form of cancer that is caused by asbestos. He was 77.

During the trial, lawyers for the Suttner family called expert witnesses who testified that there is no such thing as safe asbestos exposure and assured the jury that Suttner’s exposure is what led to his diagnosis. The dangers of asbestos have been known since the early 1900s, and the lawyers made the case that Crane was aware of these dangers since the 1930s. “But the company continued to use asbestos well into the late 1980s without placing warnings on its products,” the law firm’s statement reads.

And on that note, I’ll see you at the bar.

Week Adjourned: 12.7.12 – Rimmel London, Toys R Us, Facebook

Beauty Blunder! I love this one… A class action lawsuit has been filed alleging that Coty’s Rimmel London Lash Accelerator mascara is misleading to consumers as it falsely claims it enhances eyelash growth. Really? Find this and more in our weekly class action lawsuit wrap, Week Adjourned.

Top Class Action Lawsuits

Beauty Blunder! I love this one… A class action lawsuit has been filed alleging that Coty’s Rimmel London Lash Accelerator mascara is misleading to consumers as it falsely claims it enhances eyelash growth. Really?

Filed in federal court in California, the consumer fraud class action lawsuit, entitled Algarin v. Coty Inc., Case No. 12-cv-2868 JAH JMA, claims Coty deceives consumers by advertising that Rimmel London Lash Accelerator mascara with Grow-Lash Complex lengthens eyelashes by 37 percent within one month, and, with ‘regular use,’ increases their number. (The implications, if this is true, are a little worrying).

This is the latest in a rash of lawsuits aimed at wording/false advertising and generally misleading advertising tactics employed by our captains of industry. What I want to know is how much Rimmel London Lash Accelerator mascara actually ‘accelerated’ Zooey Deschanel’s lashes? And are there unretouched photos somewhere to prove it? Just asking. (Ms. Deschanel, btw, for those who don’t pay much attention to these things, is the Rimmel model for Lash Accelerator).

Back to the lawsuit. Filed by plaintiff Yanira Algarin, the class action states that the mascara does not physically grow or multiply eyelashes and certainly not within the 30-day timeframe advertised. (Have to say I am slightly relieved about that). Instead, the lawsuit states, “As a result of Coty’s deceptive grow lash claim, consumers — including Plaintiff and members of the proposed Class — have purchased a product that does not perform as advertised,” the Rimmel mascara class action lawsuit states. “Moreover, they have paid a price premium for Rimmel Lash Accelerator over other mascaras sold by Coty and its competitors that do not claim to physically grow or multiply eyelashes in 30 days.”

The Rimmel mascara lawsuit is seeking $5 million in damages for thousands of consumers who were allegedly mislead into purchasing Rimmel London Lash Accelerator mascara. It is also asking that Coty immediately stop marketing the mascara as having the ability to lengthen and multiply eyelashes and provide refunds to consumers. Sign me up!

Top Settlements

Toys R Us R All Over the News this Week – and not in a good way. News that a $1.1 million settlement was approved by a California judge in a consumer fraud class action lawsuit pending against the toy retailer was reported earlier this week.

Note, this is not a settlement for the Toys R Us bait-and-switch class action lawsuit filed by an angry customer who feels he was duped over the Thanksgiving weekend. That lawsuit alleges Toys “R” US engaged in a bait-and-switch scheme that lured in online shoppers with offers of valuable free gifts but turned out be small or non-existent, and it is alive and well.

The Toys R Us lawsuit that looks as if it may finally be resolved was the one filed by lead plaintiff Laura Maybaum in November 2009 and is entitled Laura Maybaum v. Toys “R” Us Inc., et al., Case No. BC466115.

In it, Maybaum alleged customers who purchased products that offered free gift cards, buy-one-get-one 50 percent-off discounts or other benefits, received less money than the full purchase price on returns. This was in directly violation of a California law, the lawsuit states, which prohibits retailers from giving less than full cash or credit refunds unless a more restrictive policy has been put in place.

Under the Toys “R” Us consumer fraud class action settlement, Class Members will receive a voucher for $10 off a purchase of $50 or more. Class Members include all California consumers who purchased products from Toys “R” Us stores since January 1, 2008 that qualified for a promotion and subsequently returned one or more items. One down. One to go. So far.

If it’s on Facebook – it Must be True… Right? Well, the news is preliminary approval of a $20 million consumer fraud class action lawsuit pending against Facebook was granted this week. The settlement seeks to resolve allegations that Facebook used its ‘users’ names, photos and identities to advertise products on the social network, without those ‘users’ permission. Remember this one?

The Facebook lawsuit, entitled Angel Fraley, et al. v. Facebook, Inc., Case No. 11-cv-1726, alleges the advertising program violated users’ right to privacy by publicizing their “likes” without asking for permission or offering compensation.

Facebook has agreed to pay $20 million to settle the class action lawsuit, which will be split amongst charities, attorneys and the 125 million US Facebook users who appeared in Sponsored Stories without their consent. If approved, class members may be eligible to receive up to $10 each.

As part of the settlement, Facebook has also agreed that users will be allowed to exclude themselves from the advertising program.

And on that note—I’ll see you at the bar—as planning for the “deck the halls” thing. Have a great weekend!

Week Adjourned: 11.30.12 – Toys R Us, Generic Lipitor, Lucky Brand Jeans

Ploys R Us? Toy retail giant Toys R Us, Inc, got hit with a potential consumer fraud class action lawsuit by an angry customer who feels he was duped over the Thanksgiving weekend. Essentially, the lawsuit alleges engaged in a Toys R Us bait-and-switch scheme that lured in online shoppers with offers of valuable free gifts that turned out be small or non-existent.

Top Class Action Lawsuits

Ploys R Us? Toy retail giant Toys R Us, Inc, got hit with a potential consumer fraud class action lawsuit by an angry customer who feels he was duped over the Thanksgiving weekend. Essentially, the lawsuit alleges engaged in a Toys R Us bait-and-switch scheme that lured in online shoppers with offers of valuable free gifts that turned out be small or non-existent.

Naughty, naughty!

The backstory: William Probert, (who filed the lawsuit), claims he was lured to the Toys R Us website to purchase four Lego building sets, worth $62 and $112 each, based on an ad promising he would receive $15 Lego building set as a free gift with purchase. Instead, Probert was offered a $5 Christmas tree figurine and a $5 magnet.

The short version on the allegations: that Toys R Us used misleading sales tactics which included promising customers free gifts like a $15 Barbie clothing outfit when they purchased a $75 Barbie Doll. However, most shoppers received much cheaper incentive gifts because the company either stocked an “exceedingly limited” number of the advertised free gifts or had no intention of giving expensive gifts.

Specifically, the Toys R Us lawsuit states, “Under this business model, consumers almost always receive a ‘free gift’ of substantially lesser value than what was advertised and which served as the basis of the bargain, or no ‘free gift’ whatsoever.” And, “This business practice, thus, constitutes a modern ‘bait and switch’ scheme. Toys R Us does not honor its promises to provide the promised free gift, and indeed never intended to honor its promises.”

Statin Trouble. Heads up anyone taking Atorvastatin (generic Lipitor) manufactured and sold by Ranbaxy Pharmaceuticals. A consumer fraud class action lawsuit has been filed in the United States District Court, District of New Jersey on behalf of a class of all purchasers of certain bottles of Atorvastatin (generic Lipitor) that were manufactured and sold by Ranbaxy Pharmaceuticals, Inc. (Read more on the generic Lipitor class action lawsuit here.)

In case you missed it—which was easily done by the way—the pharmaceutical company recently conducted a limited, voluntary recall of Atorvastatin calcium tablets, (generic Lipitor). The retail-only recall concerns its 10mg, 20mg and 40mg dosage strengths, packaged in 90’s and 500 count bottles and only with respect to certain select lot numbers. Ranbaxy admitted that the product contained glass particles.

The lawsuit alleges that the defendants manufactured and sold a dangerous and defective product, violated consumer fraud laws, and otherwise acted improperly with respect to the tainted Atorvastatin. For example, when Ranbaxy learned that their product was tainted, Ranbaxy conducted a recall but it was only at the retail level. The recall by Ranbaxy did not include a notice to consumers who purchased the tainted product as to what they should do with the tainted product or what they should do if they ingested it. The limited recall also did not include a notice to consumers or retail pharmacies about how the consumers could obtain a refund of the money paid for the product. In fact, Ranbaxy has not offered a refund to consumers.

The class action seeks a total product recall, with notice to consumers about the tainted product. The lawsuit also seeks a refund of the money paid for the product. Hey Ho!

Top Settlements

Lucky Brand Jeans—Not So Lucky? Possibly not. A federal judge has preliminarily approved a $9.9 million settlement of a class action lawsuit filed against Lucky Brand Dungarees, Inc. and its marketing subcontractors. The Lucky Brand lawsuit alleged the clothing company was in violation of the Telephone Consumer Protection Act (TCPA) because it sent unsolicited text spam as part of a 2008 back-to-school promotion.

The lawsuit, entitled Robles v. Lucky Brand Dungarees, Inc., Case No. 10-cv-4846, was filed by Juvenal Robles in October 2010, who represents an estimated 216,000 class members, all of whom may be eligible to receive up to $100 per claimant if the settlement receives final court approval.

The lawsuit claimed that Lucky Brand sent unsolicited spam texts to thousands of customers’ cellphones. Those messages offered $25 off Lucky jeans or offering store location services to consumers that responded with their ZIP codes.

According to the lawsuit, the Federal Telephone Consumer Protection Act (TCPA) prohibits companies from contacting people on their mobile phones by using an “automatic telephone dialing system” or using “an artificial or prerecorded voice” without their prior express consent. Some courts have even applied the TCPA to unsolicited text messages, or “text spam.”

Eligible class members include consumers that received the Lucky Brand text spam between August 24 and September 15, 2008. Further details on the preliminary settlement have not been made public.

And on that note—I’ll see you at the bar. Have a great weekend!

Week Adjourned: 11.16.12 – Time Warner, Iraq War Vets, Wal-Mart

The weekly wrap of top class action lawsuits and settlements, for the week ending November 16, 2012. Top class action news includes Time Warner, Iraq War Vets, and Wal-Mart workers comp.

Top Class Action Lawsuits

License to Steal? Depends how you define the term “Steal” – if Time Warner has its way, it will be defined as a “modem lease fee.” Not surprisingly, this seemingly minor addition to the monthly fees their customers already face is being challenged in not one but two consumer fraud class action lawsuits. The allegations involve said modem “lease” fees, and the way in which the company announced the new fees. As many as 15 million customers could be affected by the lawsuits.

In the Time Warner class action papers filed in New York and New Jersey courts, customers contend that the $3.95 fee is illegal because it’s not included in existing customer agreements, the company did not give mandatory 30-day notice and it notified customers with a “paltry postcard.”

Furthermore, while Time Warner told its customers that they could buy their own modems, it stipulated that customers could only use approved devices—all of which are the more expensive Motorola models.

“It’s just a scam to increase revenue,” said Steven Wittels, one of the lawyers representing the plaintiffs. The fee took effect October 15, and is projected to raise $40 million a month and more than $500 million a year in revenue for Time Warner, which is currently valued at around $19.7 billion. ChaChing!

Time Warner contends it was going to use the funds to improve its infrastructure and service. That’s a lot of infrastructure!

The suits were brought on behalf of Manhattan resident Kathleen McNally and Fort Lee resident Natalie Lenett as well as all customers in the 29 states where Time Warner operates.

Top Settlements

Iraq War Toxic Exposure Settlement. 12 soldiers who became ill after serving in the Iraq war have been awarded an $85 million settlement in their personal injury lawsuit against American military contractor Kellogg Brown and Root (KBR).

In their lawsuit, the first concerning soldiers’ exposure to a toxin at a water plant in southern Iraq, the servicemen allege that KBR was negligent. Specifically, they claim that as a result of exposure to sodium dichromate, they now suffer from respiratory diseases. Furthermore, they are deeply concerned that a carcinogen the toxin contains, hexavalent chromium, could cause cancer later in life.

Each of the dozen Army National Guardsman involved in the lawsuit was awarded $850,000 in non-economic damages and another $6.25 million in punitive damages for “reckless and outrageous indifference” to their health.

Another lawsuit from Oregon Guardsmen is on hold while until trial is completed. Additional, similar lawsuits are also pending in Texas involving soldiers from Texas, Indiana and West Virginia.

KBR was the engineering and construction arm of Halliburton during the Iraq war. Halliburton and KBR split in April 2007.

Wal-Mart Injured Workers Settlement. Wal-Mart’s back in our weekly wrap–can you guess what for? Yes—it’s employment related. Final approval of an $8 million settlement has been granted by a federal judge, ending a workers compensation class action lawsuit brought by injured Wal-Mart employees in Colorado against the retailer and its service providers. The workers compensation lawsuit was brought in March 2009. The plaintiffs alleged the retailer, Claims Management Inc (CMI) and Concentra Health Services hindered medical providers from making independent judgements on how to treat injured workers.

Under the terms of the Wal-Mart settlement, Wal-Mart Stores and its adjuster, CMI, must pay $4 million, while Concentra in Colorado, through its insurer, will pay another $4 million. Further, each injured Colorado Walmart worker who was treated at a Concentra facility will receive $520, while those treated at other facilities will receive $50.

The settlement also stipulates that Wal-Mart and CMI provide training to adjustors who will handle future worker compensations claims in the state. And, Concentra must also provide periodic training to its marketing and sales force regarding state laws that prohibit outside interference in how care is provided.

And on that note…I’ll see you at the bar–martinis are chilling! Have a great weekend!