Class Action - Part 33

Week Adjourned: 10.15.11

Top Class Actions

Well, Hello…Something fruity is going on here—or not as the case may be… A proposed consumer fraud class action lawsuit has been filed against General Mills alleging the company misled consumers about the nutritional and health qualities of its fruit snacks, specifically Fruit Roll Ups, Fruit by the Foot, Fruit Gushers, as well as other similar products.

The lawsuit claims that between October 15, 2005 to the present (the “class period”) General Mills engaged in a widespread marketing campaign to mislead consumers about the nutritional and health qualities of its Fruit Snacks. Specifically, the suit states, “Defendant made misleading statements that its Products were nutritious, healthful to consume, and better than similar fruit snacks.”

The suit further states “In fact, Defendant’s Fruit Snacks contained trans fat, added sugars, and artificial food dyes; lacked significant amounts of real, natural fruit; and had no dietary fiber. Thus, although the Products were marketed as being healthful and nutritious for children and adults alike, selling these Fruit Snacks was little better than giving candy to children.” Umm…Maybe suitable for Halloween treats?

Top Settlements

Did your internal capacitor prematurely fail? No—I mean the one in your TV! On October 3, 2011, preliminary approval was granted to a proposed defective product class action settlement with Philips Electronics North America Corporation (“Philips”).

The settlement proposes to resolve lawsuits that allege certain Philips and Magnavox televisions suffer from a defect that causes internal components (called capacitors) to prematurely fail, resulting in the televisions becoming inoperable. The proposed settlement would entitle qualifying settlement class members, who purchased new or received as a gift new one of the Philips or Magnavox plasma televisions with the model numbers listed below, to monetary benefits or vouchers.

The model numbers of the Philips and Magnavox plasma televisions included in the proposed class action settlement are:

50PF9830A/37 42PF9630A/37

50PF9731D/37 42PF7321D/37

50PF9631D/37 42PF7320A/37

50PF9630A/37 42PF7220A/37

50PF9431D/37 42PF5321D/37

50PF7321D/37 50MF231D/37

50PF7320A/37 50PF7220A/37

In addition, only those television sets with a serial number reflecting a manufacturing date between November 1, 2005 through December 31, 2006 qualify for participation in this settlement.

The Court has scheduled a hearing in December to determine whether to grant final approval to the settlement.

To be eligible to receive the benefits made available pursuant to this settlement, class members must submit to the claims administrator a claim form that is postmarked by February 28, 2012.

To obtain additional information about the settlement, to determine whether your television qualifies, or to obtain a claim form, you can visit the settlement website at PhilipsPlasmaTVsettlement.com. You can also contact the settlement administrator by calling (855) 477-4407, or by writing to Philips Plasma TV Settlement, c/o Dahl, Inc., P.O. Box 2061, Faribault, MN 55021.

Service gratuity not quite included? This one’s for anyone who ever worked in the service industry and had their tips withheld—and I’m sure there’s no shortage of you out there… A $7 million settlement has been reached by current and past employees of the Cranwell Resort, Spa, & Golf Club in Lenox, ending an employee class-action lawsuit that alleged the resort’s management illegally withheld the workers tips.

If the settlement receives final court approval, approximately 700 food, beverage, and spa employees who worked at the upmarket Berkshire resort between 2001 and 2011 will share in the money. A final settlement hearing is scheduled for November 2011. This is the second of two lawsuits, filed over four years ago, claimed that the employees were not paid the full service charges that were added to hotel bills, which is against state law.

Ok—That’s it for this week. See you at the bar—where I will be repairing my personal, internal capacitor.

Week Adjourned: 10.7.11

Weekly wrap-up of new lawsuits and settlements as of October 7, 2011

Top Class Actions

Ok, this one’s not a Class Action, but it’s news you should know about…Actos (pioglitazone) made the news this week with the launch of a nationwide Actos lawsuit filed by people who have taken the diabetes medication and allege it is associated with the development of bladder cancer. Although the risk for bladder cancer isn’t exactly news, the filing of the lawsuit is—it is not a class action, rather each qualifying individual will seek damages consistent with the merits of his or her individual case.

If you have or are taking Actos and are interested in this suit, you must meet basic criteria including that you have actually taken the drug and developed bladder cancer, sadly.

Actos is one of the most popular diabetes drugs in the world. Recently, however, studies have shown that Actos use is linked to serious side effects, particularly bladder cancer. These studies show that the longer one takes Actos, the greater the risk of developing bladder cancer. As a result of this mounting scientific evidence, the FDA has issued warnings regarding Actos and bladder cancer. In France, the French Agency for Safety of Health Products recalled Actos from the market on June 9, 2011. Regulators in Germany recommended that physicians not prescribe it.

FYI—time limits exist that limit the amount of time you have to join the lawsuit, so if you think you may have a claim check it out now.

Top Settlements

Oh Happy Honda—or not—as the case may be. A federal court has approved a settlement of a defective product class action filed against American Honda Motor Co. Inc. The lawsuit alleges that Honda failed to fix or warn customers that the sun visors in its hugely popular Honda Civics were defective.

Specifically, the Honda Civic sun visor lawsuit claims that defects on the sun visors on some Honda Civics caused the visors to split apart, possibly impairing their function. The class action lawsuit also alleges that Honda should have corrected the defective sun visors or should have disclosed the defect at the time of sale. Yes, but that would have been the right thing to do.

You are eligible as a class members of the “Honda Civic sun visor class action” if you are a U.S. resident who are current or former owners or lessees of one of many Civic models, including but not limited to all 2006-08 Civic. There are MANY more models which you can check out here.

Here’s another relevant detail, as part of the settlement, Honda has agreed to extend the warranty on sun visors on Class Vehicles to seven years or 100,000 miles, whichever first occurs. Wait—there’s more—Honda has also agreed to reimburse Class Members for out-of-pocket expenses incurred prior to the Effective Date of the settlement for the repair or replacement of a sun visor or sun visors on Class Vehicles. If you are a class member, you are eligible for a cash reimbursement if:

The Class Member has paid out-of-pocket to repair or replace the sun visor or sun visors in his or her Class Vehicle prior to the Effective Date of the settlement;
The cost of repair or replacement was not previously reimbursed by insurance, warranty, or goodwill; and
The Class Member mails a claim form within two years from the date of the sun visor repair or replacement, or within 90 days of the Effective Date of the settlement, whichever period of time is longer.

Another one for the books—the real estate trust Dynex Capital Inc, has agreed to pay $7.5 million to settle a New York class action lawsuit over securities in the sale of bonds backed by thousands of loans on manufactured homes.

In March 2011, U.S. District Judge Harold Baer issued one of the few decisions to ever have certified a class of investors pursuing federal fraud claims in connection with the sale of asset-backed bonds. The case is an important one for investors because it provides a road map for prosecuting fraud claims involving other asset backed bonds on a class-wide basis.

The lawsuit was filed in 2005 by Teamsters Local 445 Freight Division Pension Fund and Dynex lost multiple attempts to have the case thrown out of Court. The settlement still must be approved by Judge Baer of the U.S. District Court, Southern District of New York.

The Plaintiff charged that Dynex, its subsidiary Merit Securities Corp., and senior executives at both companies lied about the quality of mobile home loans that were collateral for bonds sold as Merit Series 12-1 and Merit Series 13 from Feb. 7, 2000 to May 13, 2004.

According to the lawsuit, Dynex and its representatives made misleading statements that artificially inflated the value of the bonds, understated the amount of delinquencies and repossessions affecting the bonds and violated its own publicly stated underwriting guidelines in making poor-quality loans. Defendants also made false statements about the deteriorating performance of the downgraded bonds because the company was scrambling to protect itself in the midst of a dramatic financial collapse, the lawsuit charged.

Ok—That’s it for this week. See you at the bar—that’s poolside baby.

Week Adjourned: 9.30.11

This week’s wrap on Class Action lawsuits and Settlements, September 30, 2011

Top Class Actions

NCAA Concussion Lawsuit Filed. Again. It’s about time! Two former college football players who suffer from the residual effects of head injuries filed an class-action lawsuit against the National Collegiate Athletic Association (NCAA), accusing the governing body of neglecting to protect student-athletes from concussions and their aftermath.

The class action lawsuit accuses the NCAA of turning a blind eye to coaches who teach players to use their heads for tackling, failing to establish a NCAA-wide system for screening head injuries and shirking its financial obligations to injured student-athletes who need medical treatment after they’ve left college.

The case alleges that despite a mounting body of scientific evidence linking concussions to depression, dementia and early-onset Alzheimer’s, among a host of other medical problems, the NCAA has failed to enforce the safety measures it introduced in the 1970s. The lawsuit further claims that NCAA football coaches continue to encourage players to use tackling methods that promote head trauma, including helmet-to-helmet hits. The harshest penalty ever imposed on coaches who teach this tactic was a letter of reprimand, according to the complaint.

The lead plaintiffs in the suit are former University of Central Arkansas wide receiver Derek K. Owens and former Northwestern University offensive lineman Alex Rucks, who say their lives have been fundamentally altered as the result of brain trauma that could have been prevented.

Owens, 22, was hit in the head from behind while taking part in a voluntary practice the summer before his freshman season. According to the complaint, Owens never received medical attention from the team despite feeling dizzy, having difficulty seeing and being unable to drive home. The 2008 incident was the first of numerous head injuries for Owens, who was named Arkansas’ Top Offensive Player and one of the state’s top Scholar-Athletes his senior year of high school.

The second week of his first season, a linebacker knocked Owens unconscious in practice, according to the lawsuit. UCA’s trainers told Owens’ roommates he had a “severe concussion” and to wake him up every couple of hours. He sat out for several weeks until he was cleared to return to the practice team. During a 2010 game, Owens was returning a punt when he was leveled by an opposing player, who later called the play “the highlight of his career,” according to a story in the Tulsa World. Owens experienced memory loss, headaches, an inability to concentrate, anxiety and depression. His grades plummeted despite his once-sterling academic record. In May of 2011, he dropped out of school and football as a result of the debilitating effects of repeated head trauma.

Rucks, who played at Northwestern from 2004 to 2008, was never formally diagnosed with a brain injury, but suffered numerous blows to his head that led to symptoms consistent with a concussion. The NCAA never tested or followed-up with Rucks to determine whether he’d been concussed, or if he was experiencing post-concussion syndrome, the lawsuit alleges.

Since his playing days, Owens has suffered from the symptoms of post-concussion syndrome, including the loss of concentration and memory, according to the complaint.

The lawsuit alleges the NCAA never encouraged football players to report or complain about their physical well-being, nor does it educate players about head-injury prevention or the telltale symptoms of a concussion.

The lawsuit, a class action, seeks to represent current or former NCAA football players who have medical or team records indicating they sustained a concussion(s) or suffered concussion-like symptoms while playing football at an NCAA school, and who have, since ending their NCAA careers, developed chronic headaches, dizziness, dementia, Alzheimer’s disease or other physical and mental problems as a result of the concussion and have incurred medical expenses from such injuries.

All class members would be notified that they may require frequent medical monitoring. NCAA-wide return-to-play guidelines would be established. The NCAA would mandate that team physicians learn to detect concussions and sub-concussions, as well as determining when a player is at an increased risk of harm. It also seeks to redress the intangible losses suffered by these class members.

Top Settlements

Asbestos Mesothelioma Lawsuit Settlement. Another asbestos settlement to report this week. A jury in Orleans Parish Civil District Court has ruled that three companies are liable for $7.55 million in damages for exposing former employee Thomas Kenney to asbestos. Kenny has been diagnosed with malignant asbestos mesothelioma.

Mr. Kenney sued Rexam Beverage Can Co., John Crane Inc and Haveg Inc, among others, claiming that he was exposed to asbestos while working in a canning factory and a refinery in the 60s and 70s. The jury hearing his case found John Crane, Rexam and Haveg liable for Kenny’s asbestos exposure and Rexam liable for the dangerous levels of asbestos, which was located in its canning factory in New Orleans’ Mid-City neighborhood. The old canning factory has since been refurbished and converted into an apartment complex.

Reebok to Atone for its Toning Shoes Claims: While the jury may be out on whether or not these shoes actually do tone your butt and abs, the Federal Trade Commission isn’t wasting time making up its mind. Reebok has agreed to pay $25M to settle charges brought by the Federal Trade Commission alleging that the athletic shoe manufacturer falsely advertised its “toning” shoes, making claims that the shoes could measurably strengthen the muscles in the legs, thighs and buttocks.

Among the claims the FTC found offensive–and possibly downright misleading—are that the EasyTone footwear is proven to increase the strength and tone of your gluteus maximus muscles by 28% (really?) and give you 11% more strength in your hamstring and calf muscles—(really)—compared with regular walking shoes—whatever those are.

The FTC settlement is the first, and results from its investigation into the advertising claims made by Reebok. However, other companies such as New Balance and Sketchers have also aced lawsuits over their advertising claims.

Ok—That’s it for this week. See you at the bar!

Week Adjourned: 9.23.11

Weekly roundup of latest class action lawsuits and settlements, September 23, 2011

Top Class Actions

Engine Trouble for Mercedes-Benz? Well, last week we reported on a proposed settlement between Mercedes Benz and some unhappy customers who allege consumer fraud over Mercedes Benz USA failing to inform buyers of its luxury vehicles with analog Tele Aid communication systems that the company planned to phase out the analogue emergency communications systems altogether on its models from 2003-2006.

This week, Mercedes Benz is back on the books with a defective product class action. The allegations? Premature wear taking place with its M156 engines, specifically the cam shafts. The suit alleges that the premature wear in the M156 V8 (63 AMG) engine leads to engine problems and in some instances engine failure.

The lawsuit states that the camshafts used are made of cast nodular iron but the valve lifters used are made of 9310 grade steel, and that the combination of these metals as designed is contributing to premature wear of the M156 motors. The suit alleges that Mercedes and AMG (Aufrecht Melcher Grossaspach), a division of Mercedes that sells the high-end M156 have known about this issue since 2007. According to the lawsuit, the luxury vehicles sell for between $60K and $200K. OK, for that kind of money I would not be expecting engine problems – ever.

Top Settlements

Libby Montana Asbestos Settlement. This is a biggy and a long time in coming…long-suffering, potentially terminally ill residents of Libby, Montana, suffering from asbestos-related illnesses including asbestosis and mesothelioma have been awarded a $43 million settlement by a judge in that state. The people were made ill as a result of their exposure to asbestos from the infamous W.R. Grace asbestos mine in Libby, Montana. Reports indicate that a large part of the settlement will be paid by Warren Buffett’s Berkshire Hathaway.

The settlement resolves a lawsuit filed against the state and the mine by former miners and their families who accused the state of failing to properly oversee the mine or warn workers of dangers there. Miners had originally sued W.R. Grace but after the company filed for Chapter 11 bankruptcy in 2001, they sued the state for failing to adequately protect them, court documents state.

Some 1,400 people are expected to receive payouts from the settlement, which was approved September 8, by Montana District Court Judge Jeffrey M. Sherlock, ending ten years of legal wrangling. However, while the settlement ends numerous cases and claims against Montana it “expressly reserves their claims against all other responsible parties,” according to the agreement.

Many of the people who suffered asbestos exposure from the Libby mine are now over the age of 65, and others have since died of asbestos-related diseases such as asbestosis and cancers such as mesothelioma, records show. It may be a good ending but it’s certainly not a good story.

Snap, Crackle…Pop! Goes the Immunity Claim… Ok—hands up—how many of you actually believe a breakfast cereal could boost your immune system? Really.

But no matter, as long as the claim is made…

Kellogg, finding itself in a position of having to defend such a claim, to a potential class of consumers who filed a consumer fraud lawsuit, has proposed a settlement… cheaper than going to court after all.

In a nutshell, the lawsuit claims the Kellogg Company falsely advertised that Rice Krispies cereal and Cocoa Krispies cereal supported a person’s immunity system despite not having competent clinical evidence to support the claim. Now there’s a surprise.

So—if you purchased Kellogg’s Rice Krispies Cereal or Cocoa Krispies Cereal between June 1, 2009 and March 1, 2010, you may be entitled to a cash refund from a class action settlement.

The only way to get a cash refund: Claim Forms must either be submitted online or postmarked by November 16, 2011. If you wish, you can get out of the lawsuits and the settlement. Get no cash refund. If you wanted to exclude yourself, you must have sent an request postmarked no later than July 30, 2011. The deadline to file an objection to the settlement was July 25, 2011. If you do nothing, you will get no cash refund. However, any leftover money will be donated to one or more charities.

OK. That’s it for this week. See you at the Bar. (I’ve been told a Bloody Mary is also good for the immune system…)

Week Adjourned: 9.16.11

Weekly wrap up for September 16, 2011 of the latest class action lawsuits and settlements

Top Class Actions

Destination Maternity could find itself rerouted—make that destination courthouse as they got hit with an employment class action lawsuit this week. Why, you ask? Sadly, nothing very original. The lawsuit claims that the international retail clothing store violated both federal labor laws and New York labor laws by routinely requiring its sales associates to undergo off-the-clock bag checks and security screenings for which they were not compensated.

The lawsuit also claims that Destination Maternity, A Pea in the Pod, Motherhood Maternity (what other kind is there?), and Edamame stores all require their sales associates to have their bags checked before they leave the stores to have lunch and before they go home for the evening. These checks occur off-the-clock, adding as much as 30 minutes to sales associates’ workdays for which they receive neither overtime nor straight time pay. Of course the point of the lawsuit is to recover the wages and overtime pay each sales associate is due under the law.

So, if you work or have worked as a sales associate at either a Destination Maternity, A Pea in the Pod, Motherhood Maternity, or Edamame store, you may request to be included in the proposed class. Check it out.

Top Settlements

The Best or Nothing? Guess it’s nothing… Mercedes Benz will be shelling over some cash shortly, following federal approval of a $15 million settlement of a recent consumer fraud class action lawsuit. It seems that Mercedes Benz USA failed to inform buyers of its luxury vehicles with analog Tele Aid communication systems that they planned to phase out the analogue emergency communications systems altogether on its models from 2003-2006. Yes—that could influence your decision to buy, no doubt.

Back to the good news. Well, sort of. Under the terms of the Mercedes-Benz settlement purchasers of 2003 to 2006 Mercedes-Benz models with the analog Tele Aid systems installed in their vehicles could receive either a certificate for up to $1,300 off a new vehicle or $650 in cash. Ummm.

You’re Forgiven! I love this one! Thousands of people have been forgiven their debts in a historical unfair business class action settlement reached last Friday in Maryland. The class action lawsuit was brought by Jason Hauk and Freddy Velazquez who led the class action lawsuit, against LVNV Funding LLC, a Greenville, SC-based company that buys consumer debt.

According to the terms of the settlement some 3,500 people in the class will receive about $2000 each, for a total of $7 million. The total settlement forgives about $10 million in debt, according to filings in U.S. District Court in Baltimore.

Further, LVNV will not pursue the 3,500 debtors in order to collect the debt, nor will they be able to sell those debts to other third party collection agencies. And LVNV have to remove information it gave to the major credit bureaus for each of those debtors, a step taken to improve their credit ratings. The settlement is being hailed as historic, and a major win for the class. You gotta love the system when it works!

OK. That’s it for this week. See you at the Bar—and safe travels getting home.