Class Action - Part 7

Week Adjourned: 2.3.17 – Krazy Glue, BP Solar, Lowe’s

Top Class Action Lawsuits

Krazy Glue maker hit with Consumer Fraud Class Action—but will it stick? Elmer’s Products is facing a consumer fraud lawsuit alleging the glue packaging contains slack fill, and that Elmer’s is profiting by way of the packaging, by misleading consumers.

According to the Krazy Glue lawsuit, filed by plaintiff David Spacone, the large and opaque packaging for Krazy Glue misleads customers into thinking the package contains significantly more glue than it actually does. Specifically, the lawsuit states that the opaque container is more than five times larger than the “tiny tube of glue” that contains the product.

“This packaging prevents the consumer from directly seeing or handling the product and leads the reasonable consumer to believe that the package contains significantly more product than it actually does,” the complaint states.

Spacone claims that he bought Krazy Glue at a True Value hardware store in Los Angeles, believing he was buying the amount represented by the “Stay Fresh” container, instead of the smaller tube inside of it. However, because the container is opaque, consumers cannot see how much product they are actually buying, the complaint states.

“If plaintiff had known at the time of purchase the actual size of the tube of product contained in the packaging, he would not have purchased the Krazy Glue or paid less for it,” the lawsuit states.

Here’s an interesting bit of info: The allegation that the container is misleading is based on the amount of nonfunctional slack fill, which is defined in California state law as “the empty space in a package that is filled to substantially less than its capacity,” according to the complaint.

The size and slack fill of the container do not fall within any safe harbor protections provided under state business law, according to the lawsuit, which goes on to state that the container does not protect its contents or have any significant value. Further, the larger container does not have any labeling information that can’t also be found on the tube.

“The use of non-functional slack-fill allows [Elmer’s] to lower their costs by duping customers into thinking they are getting a better bargain than they actually receive,” the complaint says. “As a result, [Elmer’s] has realized sizable profits.

Three classes are proposed, namely a nationwide class of those who purchased a .07-ounce tube of Krazy Glue in a .37-ounce outer container, a California sub-class and a Consumer Legal Remedies Act California subclass.

The complaint alleges violations of California’s Consumer Legal Remedies Act and two violations of unfair competition law. The case is David Spacone v. Elmer’s Products Inc. et al., Case Number BC648907 in the Superior Court of the state of California for the County of Los Angeles.

Top Settlements

Defective BP Solar Panels? No—they can’t blame it on the weather. A $67 million settlement is moving ahead potentially ending a class action lawsuit alleging that solar panels manufactured and sold by BP Solar and Home Depot are defective.

According to the lawsuit, the BP solar panels at issue were substantially certain to fail within their warranted lives due to an inherent defect in the junction box, the small casing on the back of the panel where soldered output cable connections are housed.

Specifically, the BP solar panels at issue were manufactured between 1999 and 2007 with an S-type junction box (“Class Panels”). The lawsuit claims these panels are defective and prone to junction box failures which could cause burn marks at the junction box, shattered glass, and a potential fire hazard. Oh dear. No power but potentially one big bang?

The panels were sold through various distributors and retailers, including but not limited to Solar Depot and Home Depot.

Here’s the skinny getting some cash: The settlement includes anyone in the United States who: (1) purchased certain BP solar panels for installation on a property, or (2) currently owns a property on which these panels are installed and, in either case, who still owns some or all of the BP solar panels.

Settlement Class Members with certain higher failure rate models, or with high failure rates in their arrays, will be eligible for complete replacement of their solar panels. Others will receive replacement of failed panels and a new inverter with advanced safety technology. Owners of large, non-residential systems will be entitled to a mediated commercial negotiation with BP, with extended opt-out rights.

Lowe’s Installers see Settlement…This week’s employment lawsuit is, in fact, a proposed settlement—to the tune of $2.85 million. If approved, it will resolve allegations brought against Lowe’s Home Centers LLC by installation workers who claim they were deliberately misclassified as independent contracts rather than employees. Heard this one before?

Lead plaintiff Thomas Mittl filed the lawsuit in August 2015 claiming that Lowes classified installers and installation companies providing services to Lowe’s customers as independent contractors rather than employees. This, the suit states, is in violation of the New Jersey Construction Industry Independent Contractor Act and common law unjust enrichment.

The result of the alleged misclassification of “independent contractor” was that it prevented the installers from receiving benefits including liability insurance coverage, workers compensation, temporary disability and health insurance. Further, they were barred them from eligibility for Social Security and Medicare, according to the complaint.

Mittl claimed in the lawsuit that he worked 80 hours a week on Lowe’s jobs, however, he didn’t receive benefits and was required to pay self-employment tax on all income earned from Lowe’s.

Mittl owns Toms River Automatic Door & Window Company in New Jersey. In his complaint, he argues that installation workers should be classified as employees because Lowe’s controlled the work they performed, including designating which customers the installers would work for, inspecting their work, requiring customers to pay Lowe’s directly for all work, submitting the installers to background checks, and requiring them to wear Lowe’s hats and shirts while working.

The Lowe’s settlement class consists of all installation workers or installation companies that signed a contract with Lowe’s to perform installation services on behalf of the company in New Jersey. If the settlement receives preliminary approval it will impact some 450 installation workers and companies, according to court papers.

The proposed settlement motion seeks class certification, appointment of Mitl as class representative and a $20,000 incentive award for Mitl as such a representative, among other things. The case is Thomas Mittl v. Lowe’s Home Centers LLC, case number 3:15-cv-06886 in the U.S. District Court for the District of New Jersey.

Ok – That’s a wrap for this week. See you at the bar!

Week Adjourned: 1.27.17 – Charles Schwab, Jimmy Choo, Telemarketers

Top Class Action Lawsuits

Charles Schwab caught with their hands in your pockets? Maybe. At least according to a class action filed this week alleging violations of the Employee Retirement Income Security Act of 1974 (“ERISA”). It was filed in the United States District Court for the Northern District of California against the Charles Schwab Corporation (“Schwab”) and certain of its subsidiaries on behalf of the participants in the 401(k) plan Schwab offered to its employees.

Short story: the complaint claims that Schwab included among the plan’s investment options certain mutual funds and collective trusts that were affiliated with Schwab, which allowed Schwab and its subsidiaries to collect unreasonable and excessive fees from its employees’ retirement savings. The complaint further alleges that Schwab imposed improper charges through a self-directed brokerage program, and used for its own purposes unallocated cash belonging to the 401(k) plan.

Specifically, the complaint alleges that Schwab’s conduct violated the fiduciary duties and prohibited transaction rules imposed by the Employee Retirement Income Security Act of 1974 (“ERISA”).

Heads up—participants in the Schwab 401(k) Plan may be members of the class.

Top Settlements

Jimmy Choo to pay YOU—possibly. A $2.5 million settlement has been agreed by Jimmy Choo, potentially ending a privacy class action lawsuit alleging the luxury shoe manufacturer printed its customers’ sensitive data on credit card receipts, putting them at risk of identify theft, in violation of the Fair and Accurate Credit Transactions Act (FACTA).

Filed by Plaintiff Kerri C. Wood in October 2015, the Jimmy Choo lawsuit claims the defendant printed credit and debit card expiration dates and other sensitive information such as home addresses, phone numbers and cashiers’ names on its store receipts, in violation of FACTA.

Wood alleged that despite having had years to ensure it was in compliance with the FACTA amendment to the Fair Credit Reporting Act, Jimmy Choo deliberately chose not to comply.

According to the terms of the proposed Jimmy Choo settlement, Jimmy Choo would set up a $2.5 million fund to compensate opt-in class members who received point-of-sale credit or debit card receipts from a Jimmy Choo store containing a card expiration date between October 27, 2013, and November 2, 2013.

The estimated number of Jimmy Choo customers affected is 135,588. Depending on the exact number of the settlement class, each member could receive between $75 and $175 as compensation. Nice one.

The case is Kerri C. Wood v. J Choo USA Inc., case number 9:15-cv-81487, in the U.S. District Court for the Southern District of Florida.

Meanwhile, back at the Call Center… Frontier Communications Corp agreed an $11 million settlement proposal this week, potentially ending a Telephone Consumer Protection Act (TCPA).

The lawsuit was filed by Diana Mey in 2013. In the complaint, Mey claims that she and thousands of others received automated telemarketing calls that were commissioned by Frontier and placed to them by Virido on the Five9 predictive dialer pursuant to a contract between Frontier and Virido using a list of telephone numbers that Frontier provided.

Under the terms of the proposed agreement, each member of the settlement class will get a base payment of $90. The balance of the fund will then be divided on a per-call basis to class members who received multiple calls.

The settlement class consists of any person or entities who received a cellphone call placed by means of what the plaintiff contends was an automatic telephone dialing system, or who received two or more calls in a 12-month period on a number that had been on the National Do Not Call Registry for more than 30 days at the time of the calls.

In court document presented by Mey, there is a proposed class of individuals and entities that own 36,219 unique telephone numbers that have been identified as having received allegedly unlawful calls from Frontier.

Mey also pointed out that the proposed payments to potential class members exceed those handed out in other TCPA pacts that have been given court approval. She specifically cited four settlements reached since 2010 that have offered claimants payments ranging from $15 to $61.49.

Ok…That’s a wrap for this week. See you at the bar!

Week Adjourned: 1.20.17 – Walmart, Apple, J&J

Top Class Action Lawsuits

What are a few screws worth these days? A lawsuit—that’s what! Walmart is facing a class action lawsuit brought by customers who allege the big-box retailer is negligent in its in-store assembly of bicycles, a free service offered at all Walmart stores where bikes are sold.

Filed in Florida federal court by plaintiff Boyd Johnson, the Walmart lawsuit claims that Johnson purchased a semi-assembled Roadmaster Granite Peak bicycle from a Walmart in Pompano Beach, Florida. He had the bike assembled completely by store employees upon purchase. However, shortly after bringing the bike home and taking it for a ride the handle bars allegedly slid down due to an improperly installed bolt, causing him to lose control and fall to the pavement, injuring his face, shoulder and right side of his body.

Walmart began using its own employees to assemble bikes in 2014. Prior to that, the company had used third party vendors to do full assembly of the bikes. Walmart employees also assemble patio furniture and other products in-store, according to the complaint.

The employees that now carry out the bike assembly received “inadequate training,” according to complaint, and carry out the assembly of a bike with no assembly checklist, which are “crucial to maintaining safety standards” and readily available.

“Walmart has already been sued on the subject of improper bike assembly, yet injuries are still occurring due to the continuance of careless and sloppy in-house assembly of their bikes,” the lawsuit states. “The public should expect Walmart’s bike assemblers to be trained in bike assembly and require inspections before placing the bikes in the stream of commerce.”

According to the complaint, Wal-Mart’s bike assemblers are allegedly not properly trained or certified, which has led to the “negligent and reckless bike assembly procedures” that ultimately injured Johnson and likely other consumers, the suit states. The retailer could have provided that training and certification for less than $30 per employee.

Further, the complaint states that the Walmart bike assemblers are under such “pressure to assemble bikes as fast as they can” in order to meet customer demands that they can’t conduct inspections of the bicycles they assemble before handing them off to customers.

“They do not have time to properly inspect the bikes after assembly and fail to inspect even the most basic safety features, such as making sure that bolts are properly tightened or that brakes and tires are properly installed,” the complaint states. Yes, no, that’s not good.

The lawsuit claims negligence and breach of warranties and is seeking certification of a class of Florida and national consumers who purchased a bike from Wal-Mart that was improperly assembled. The suit also asks that Walmart be enjoined from continuing its allegedly negligent practices among other things. The case is Johnson v. Wal-Mart Stores, Inc., number 0:17-cv-60116, in the U.S. District Court for the Southern District of Florida.

Here’s hoping everyone rides off into the sunset happily ever after on this one.

Unsafe Apples? This is interesting…A proposed unfair business practices class action lawsuit has been filed against Apple alleging the tech giant doesn’t install a “lock-out-device” on iPhones to prevent California motorists from texting while driving, putting profits ahead of customer safety.

Filed in California state court the complaint represents proposed class plaintiff Julio Ceja who claims that Apple has been granted a patent by the U.S. Patent and Trademark Office in 2014 for the “lock-out-device” technology. However, Ceja claims the company has failed to modify iPhones with the device for fear of losing market share to other phone makers, to the detriment of public safety. According to the lawsuit, Apple has had the technology to prevent texting and driving since 2008.

The Apple complaint alleges unlawful, unfair and fraudulent business acts and practices by Apple. The suit seeks to block the company from selling iPhones in California that do not have the disabling lock-out device. Additionally, the suit seeks a court order that Apple update its existing iPhones with this technology.

BTW—if you were wondering how much Apple makes on sales of its iPhones—the complaint notes that the company generated $8.5 billion in profit from smartphone sales in the third quarter of 2016 alone, and an average of 586,000 iPhones per day in 2016.

Do here’s the math as it relates to texting and driving accidents:

“With 26 percent of these accidents being caused by motorists using their cellphones, and Apple’s 40 percent market share, this translates into at least 52,000 automobile accidents in California being caused by Apple’s iPhones each year,” the complaint states. Wow.

Ceja, who lives in Orange County, CA, was waiting at a stoplight when a driver distracted by her iPhone struck him from behind, causing damage to his car and injuring his back, according to the complaint.

The lawsuit describes the proposed class as “all California residents whose safety has been put at risk as a result of Apple’s failure to install ‘lock-out devices’ on their iPhones,” starting from the time Apple began selling iPhones in the state, in 2007, to present day.

The case is Julio Ceja v. Apple Inc., case number BC647057, in the Superior Court of the State of California, County of Los Angeles.

Don’t think there’s any likelihood of driving off into the sunset with this baby—with or without the device.

Top Settlements

Asleep at J&J? Heads up if you bought Johnson & Johnson (J&J) bath and bedtime products: J&J is seeking final approval of a $5 million settlement of a consumer fraud class action lawsuit pending against it for alleged false advertising of certain bedtime and bath products. If you’re eligible—you could be in for a wee pay day.

The back story: The original lawsuit was filed by a mother in Illinois in July 2015, and combined with other similar lawsuits, which claimed Johnson & Johnson had violated Illinois’ Consumer Fraud and Deceptive Business Practices Act by labeling and advertising its bedtime bath products as “clinically proven” to help babies sleep better, even though the products had not been shown to have that effect.

The class covers consumers who purchased J&J bedtime products for home use within the United States or any U.S. territories from July 1, 2010, through August 31, 2016.

The agreement received preliminary approval in August 2016. According to the terms, J&J would pay $5 million and revise the language on its packaging of its bedtime bath products.

The case is Leiner v. Johnson & Johnson Consumer Companies, Inc., case number 1:15-cv-05876, in the U.S. District Court for the District of Illinois.

Well folks –that’s a wrap for this week. See you at the bar.

Week Adjourned: 1.13.17 – Anheuser-Busch, TD Bank, Harmless Harvest

Top Class Action Lawsuits

Wage & Hour Lawsuit Brewing... Another year, another unpaid overtime class action lawsuit, likely one of many to come. This lawsuit has been brought against Anheuser-Busch (AB) alleging the brewer fails to provide proper rest breaks and adequate compensation for overtime for its delivery and store merchandise employees.

Filed by former temporary employee Jose Hernandez, the lawsuit claims that Hernandez’s wage statement did not differentiate between hours paid at the regular pay rate and those paid at an overtime pay rate. The lawsuit further claims that his total pay didn’t take into account the overtime he had worked.

Allegedly, AB also systematically denied its delivery and store merchandising workers their breaks and didn’t pay them for that time.

According to the allegations, Hernandez worked as a temporary employee setting up retail displays from August to October 2016, at a pay rate of $10.50 per hour. However, while working for AB, he was required to work through what was supposed to have been state-mandated break time. The defendant allegedly did not always pay Hernandez properly for the overtime and double time he was supposed to have earned, in violation of California labor law.

The hours worked in each pay period as listed on his wage statements didn’t add up to the total hours he had actually put in, and the company didn’t always compensate him for the overtime he worked, Hernandez claims.

Heads up – Hernandez is looking to represent a class of delivery and merchandising employees for Anheuser-Busch’s California business who received itemized wage statements, worked more than 3.5 hours without a break, or worked more than eight hours in a day from January 2013 to the present, according to the complaint.

The case is Jose Hernandez v. Anheuser-Busch LLC et al., case number BC646330, in the Superior Court for the State of Los Angeles, County of Los Angeles.

TD Facing OD Charge Lawsuit… OD as in “overdraft”. Like the banks aren’t making enough money. TD Bank got hit with a potential class action lawsuit alleging it “unlawfully” applies overdraft fees that penalize customers who don’t replenish their overdrawn bank accounts within 10 days. Read on…

Filed on behalf of Shaina Dorsey, the TD Bank lawsuit contends that the sustained overdraft charge of $20 is imposed on customers’ accounts after an initial charge of $35 for the overdraft itself, and exceeds the limit permitted by the National Bank Act.

“Unlike an initial overdraft fee, the Sustained Fee for Overdrawn Accounts is an additional charge to a customer for which the bank has provided nothing new in the way of services,” the lawsuit states. “The charge is based solely on the alleged indebtedness to the bank remaining unpaid by the customer for a period of time.”

According to the complaint, Dorsey’s checking account went into “overdraft” status in August 15, 2016 and remained that way until September 8, 2016. The $20 fee on August 26, 2016 was in addition to six other fees totaling $210 “for transactions that created her ‘overdraft’ status in the first place.” Ouch!!

The class action suit claims that the fees are technically interest charged at an illegal rate and, when factoring for the legally permitted rates, are tens of times greater than what could be imposed.

The lawsuit seeks plaintiffs who use TD Bank and were charged with the extended overdraft charges.

Go get ‘em!

Top Settlements

Harmless Harvest Harvesting Bucks Unfairly? The beverage company agreed to pay a $1 million settlement to end a pending consumer fraud class action lawsuit it’s facing over alleged false advertising.

FYI—the Harmless Harvest lawsuit claimed that the coconut water product packaging contained false and misleading statements that its Harmless Harvest 100% Raw Coconut Water (later renamed Harmless Coconut Water), Harmless Harvest 100% Raw Coconut Water Dark Cacao, Harmless Harvest 100% Raw Coconut Water Cinnamon & Clove, and Harmless Harvest 100% Raw Coconut Water Fair Trade Coffee were falsely labeled as “100 percent Organic” and “Raw”.

Under the terms of the proposed agreement, Harmless Harvest has agreed to have an independent third-party consultant watch over them for a period of two years from the effective date of the settlement. The consultant’s role will involve reviewing product labels for ongoing accuracy (as they can’t do this in-house?) and provide reports to class counsel.

About the money…the company also agrees to bear the cost of the consulting fees. The company has also agreed to pay incentive awards to the named plaintiffs, totalling $20,000.

The proposed settlement class includes “all persons in the United States who made retail purchases of one of more of Harmless Harvest’s coconut water products in the United States at any time from September 30, 2011, through the date of Preliminary Approval.”

Don’t get excited just yet – the proposed settlement requires final court approval. The case is “Raw” Coconut Water Class Action Lawsuit is Guoliang Ma, et al. v. Harmless Harvest Inc., Case No. 2:16-cv-07102, in the U.S. District Court for the Eastern District of New York.

We will keep you posted so watch this space for updates.

Well folks –that’s a wrap for this week. See you at the bar.

Week Adjourned: 1.7.17 – St. Ives Scrub, DuPont Dumping, Milk Pricing

Top Class Action Lawsuits

Lawsuit Claims Scrub the Advertising…not your skin. The makers of St. Ives Apricot Scrub are facing a consumer fraud class action lawsuit that claims the facial cleansing product damages users’ skin.

Filed by Kaylee Browning and Sarah Basile in the U.S. District Court in California against Unilever, the parent company of St. Ives, the lawsuit claims that advertising for the product states it will give people softer skin. However, the plaintiffs claim the product is “unfit” to use. They state in the lawsuit that the scrub contains crushed walnut shells, which make the product completely unsuitable to be used on one’s face.

The St. Ives scrub lawsuit cites a 2015 quote in a New York Magazine article by a dermatologist who said: “[l]arge, hard, and sandlike rocks” like those in St. Ives Apricot Scrub are “too abrasive for the face’s thin skin.”

Citing another quote from that same article, the lawsuit contends that abrasive scrubs create “micro-tears” in the skin, and that this damage makes the skin “more vulnerable to environmental damages, pollution, and sun damage.”

The plaintiffs claim that Unilever has known about these issues, as it advertises the product as being “dermatologist tested.” Yet despite knowing this, Unilever does not disclose that the product causes skin damage or that it is not actually recommended by dermatologists, the plaintiffs claim.

Further, the plaintiffs assert that Unilever’s representation that St. Ives Apricot Scrub is “non-comedogenic,” i.e. that it does not tend to clog pores is false, as several of the product’s ingredients are allegedly highly comedogenic.

The named plaintiffs seek to represent a nationwide Class consisting of all persons in the U.S. who purchased St. Ives Apricot Scrub. They also propose to represent two subclasses, each from their respective home states of California and New York.

The lawsuit is Kaylee Browning, et al. v. Unilever United States Inc., Case No. 8:16-cv-2210, in the U.S. District Court for the Central District of California.

Top Settlements

Chemical Dumping Victim Awarded $10.5M. DuPont’s losing—to the tune of millions. $10.5 million in punitive damages has been awarded to a man who alleges DuPont’s C8 chemical dumping caused his cancer. This punitive award is the largest punitive to date in the multidistrict litigation (MDL).

The jury awarded the $10.5 million on top of $2 million in compensatory damages, to Kenneth Vigneron as well as his attorney’s fees. Vigneron claims that DuPont’s decades long practice of dumping Teflon ingredient C8 into the air and water from their factory on the Ohio river in West Virginia, has caused a cancer cluster in a number of Ohio water districts.

Verdicts from two earlier trials favoring the plaintiffs in the MDL are on appeal. The next trial is set to begin January 17, with 11 more trials set for later in the year in four different cities.

The cases are In re: E.I. du Pont de Nemours and Co. C-8 Personal Injury Litigation, case number 2:13-md-02433, and Vigneron v. DuPont, case number 2:13-cv-00136, both in the U.S. District Court for the Southern District of Ohio.

Consumers Getting Milked? At a loss for words on this one—well at least polite words. A $52 million settlement has been reached in an antitrust class action lawsuit pending against several milk producers alleging they conspired to fix milk prices.

According to the complaint, the defendants, namely National Milk Producers Federation aka Cooperatives Working Together (CWT), Dairy Farmers of America Inc., Land O’Lakes Inc., Dairylea Cooperative Inc. and Agri-Mark Inc., participated in an agreement to prematurely slaughter the dairy cows in their herds and, as of April 1, 2009, they agreed not to re-enter the dairy farming business for at least one year. Who does this?

“The principle purpose and effect of this contract, combination and conspiracy has been to reduce the supply of milk, eliminate competition, and significantly reduce the number of dairy farmers competing in the market in order to increase the price of raw farm milk,” the lawsuit states.

Under the terms of the proposed milk pricing antitrust settlement, which requires final court approval, a total of $52 million in compensation will be made available to Class Members. The actual amount of compensation each Class Member can expect to receive depends on how much milk was purchased for their household, and how many total claims are filed.

Eligible class members include consumers who purchased milk or other milk products including half & half, cream cheese, sour cream, cottage cheese, yogurt or cream, since 2003 while living in one of these states: Arizona, California, District of Columbia, Kansas, Massachusetts, Michigan, Missouri, Nebraska, Nevada, New Hampshire, Oregon, South Dakota, Tennessee, Vermont, West Virginia, and Wisconsin. Consumers must have bought the milk products from a grocery store or other retailer and not directly from the defendants.

Well folks –that’s a wrap for this week. See you at the bar.

Week Adjourned: 12.31.16 – Wells Fargo, Behr Paint, Volkswagen

Top Class Action Lawsuits

All is not Well at Wells Fargo? Not by a long shot. Employees from Wells Fargo Bank have filed an employment class action lawsuit alleging they were pressured into unethical sales conduct under threat of retaliation if they failed to cooperate.

Specifically, the Wells Fargo employees claim they were forced to inflate sales figures by opening new customer accounts that customers had not agreed to and to open accounts for non-existent customers. Further, the lawsuit claims that employees who did not engage in this alleged behavior were threatened with discipline or termination. Employees who did participate were rewarded, the lawsuit claims. Read on…

The alleged misconduct involved Wells Fargo employees having to set up a target of eight accounts, or “solutions,” per customer, which is far greater than the industry standard of three accounts per customer. The employees allege that these sales goals were impossible to meet without engaging in underhanded behavior.

The Wells Fargo lawsuit asserts that Wells Fargo’s motive was to increase its stock price by setting unrealistically high sales goals for its employees.

Wells Fargo allegedly aggressively and unlawfully encouraged sales misconduct among its employees by threatening retaliation against workers who refused to engage in the sales misconduct. Those employees were allegedly “routinely counseled, warned, written up, demoted, placed on performance improvement plans, forced to quit, denied promotions, or fired as a result of not meeting sales goals, even though they could have easily met such goals by engaging in Sales Misconduct,” according to the complaint.

The plaintiffs seek to represent a Class encompassing all current and former U.S. employees of Wells Fargo who were subject to the sales goals described in the lawsuit and who were not terminated for engaging in sales misconduct.

Several subclasses have also been proposed in this action, which would represent employees who suffered adverse employment actions for failing to reach sales goals, who reported their concerns about the alleged unlawful sales conduct, or who had their employment terminated or who were let go for reporting or refusing to engage in the alleged misconduct.

The plaintiffs are seeking an award of damages, including two times the amount of back pay for alleged violations of the Dodd-Frank Act and treble damages as applicable under the Racketeer Influenced and Corrupt Organizations Act, or RICO. They also seek reinstatement for eligible Class Members under the Dodd-Frank Act.

Not Painting a Pretty Picture…And another employment suit filed this week—this one by employees of Behr Paint, alleging violations of the Fair Labor Standards Act and California labor law. The defendants are Behr Process Corp., Behr Paint Corp. and Masco Corp.

According to plaintiff Ryan McBain alleges he was employed as a field representative by the defendants and assigned to different Home Depot stores. He claims his responsibilities were answering customer inquiries, replenishing stocks and maintaining store displays. He alleges he was required to prepare time-consuming reports and shuttle between stores and was misclassified as exempt from overtime pay and was not provided with proper meal and rest periods.

In the Behr lawsuit, McBain claims the defendants failed to adequately compensate him for his work as a field representative. The lawsuit also claims that the defendants allegedly failed to keep accurate payroll records of hours worked, meal periods taken, and overtime worked by their employees, refused to pay any overtime compensation to employees for hours worked in excess of 40 hours per week and refused to provide adequate meal and rest periods.

The plaintiff is seeking a trial by jury and seek judgment in his favor, designate collective action, declare misclassification of class members, unpaid wages, liquidated damages, civil penalties, unpaid wages from meal/rest periods not taken, reimburse business expenses, interest, costs and expenses of action, attorneys’ fees and other relief as the court deems just.

FYI – The case is U.S. District Court for the Northern District of California Case number 3:16-cv-07036.

Top Settlements

Meanwhile, North of the 49^th…VW managed to reach a $2.1 billion settlement in the Canadian class action pending over the so-called Volkswagen and Audi defeat devices that temporarily reduced vehicle emissions enabling the diesel engines to pass regulatory emissions tests.

Additionally, the settlement terms stipulate that Canadian owners of diesel-equipped vehicles made by Volkswagen AG will be able to sell their cars back to the auto maker.

The settlement will cover approximately 105,000 Canadians who bought Volkswagen or Audi vehicles equipped with 2.0-liter diesel engines between 2009 and 2015. Each class member will receive $5,100 to $8,000 in compensation. Class members who decide to sell their vehicles back to Volkswagen Canada will receive a payment in addition to the value of their car.

The settlement is expected to receive final approval from Ontario Superior Court and the Superior Court of Quebec pen in March, 2017, after which class members will receive payouts.

The settlement is valued at $2.1-billion if all eligible owners apply and receive the full amount they are entitled to and all eligible vehicles are traded in. It will be among the largest amounts paid out in a class-action suit in Canada.

That’s a wrap for 2016!!! Happy New Year – to you and yours. See you at the bar.

Week Adjourned: 12.23.16 – McDonalds, DuPont Dumping, IKEA

Top Class Action Lawsuits

What are They up to Under Those Golden Arches? A Chicago McDonald’s franchisee is facing a consumer fraud class action lawsuit filed by a customer who alleges the restaurant is charging 41 cents more for the two cheeseburger “Extra Value Meal” than what it would cost if customers ordered all the items in the meal separately.

McDonald’s Extra Value Meal consists of two burgers, fries and a drink, and cost the plaintiff, James Gertie, $5.90 per meal, in Des Plaines and Niles, Illinois. These two McDonald’s restaurants are part of a chain of more than 10 such restaurants owned and operated by the Karis Group, according to the complaint.

According to Gertie, he purchased a Two Cheeseburger Meal from at least five of Karis’ McDonald’s restaurants in Des Plaines and Niles from Oct. 14 to Nov. 13. Each time Gertie was charged $5.90 for the meal, the complaint states.

Gertie alleges in his McDonald’s lawsuit that posted menu prices indicated the restaurants would have sold Gertie and other customers two cheeseburgers for $2.50, a medium order of French fries for $1.99 and a medium soft drink for $1, for a total of $5.49. That’s a difference of 41 cents less than the posted price for the Extra Value Meal, according to the lawsuit. That 41 cents could really add up…

“Defendant, the operator of several McDonald’s restaurants, advertised for sale a food combination designated as an ‘Extra Value Meal’ but the combination actually costs more than if each item were bought separately, thus making it no ‘value’ at all, let alone an ‘extra value,’” the lawsuit states

They say it’s the pennies that count.

Top Settlements

Some Good News from Some Bad News. A jury in Ohio has awarded $2 million in compensation against DuPont in the first of some 40 environmental toxin cases pending against the chemical company over allegations it dumped toxins into the air and drinking water of the Ohio River, causing illness to people in the surrounding area.

This settlement resolves allegations brought by plaintiff Kenneth Vigneron that DuPont de Nemours & Co, through its actions, caused his testicular cancer. Vigneron’s lawsuit is part of multidistrict litigation involving some 3,500 people who allege that over a period of decades, DuPont released perfluorooctanoic acid, also known as PFOA or C8, into the environment of the Ohio River at the Washington Works site.

According to the plaintiffs, internal studies done by DuPont, which date back for years, strongly indicate that C8 was dangerous. For decades, C8 was used as an essential component in the manufacture of well-known nonstick cookware and coatings. Today, it has been phased out in most US manufacturing.

Six bell weather cases were completed earlier this year, two of which resulted in jury verdicts of $1.6 million and $5.6 million, the latter including punitive damages. DuPont is appealing both verdicts.

While DuPont has been fighting allegations of toxic dumping causing illness, residents of both Ohio and West Virginia claim they have suffered a variety of health problems as a result of their exposure to the chemicals. Further, a Dutch investigation makes similar claims alleging the drinking water near DuPonts’ Dordrecht plant in the Netherlands was contaminated with C8, and that DuPont had been exposing people living near the plant to the toxin for as much as 25 years.

Earlier this year, the judge hearing the cases ordered DuPont to turn over documents related to the Dutch investigation to the American plaintiffs, saying the information about the company’s conduct in a similar situation could be helpful for arguing punitive damages or refuting arguments that the chemical giant has taken a proactive stance on safety concerning C8.

The punitive phase of Vigneron’s trial will be heard in 2017. The case is In re: E.I. du Pont de Nemours and Co. C-8 Personal Injury Litigation, case number 2:13-md-02433, in the U.S. District Court for the Southern District of Ohio.

IKEA Dresser Settlement. Here’s a positive, yet disturbing settlement. Ikea agreed this week, to pay $50 million to the three families of toddlers who were killed when defective Ikea dressers toppled onto the children. This is the positive bit.

The children’s deaths prompted an unprecedented recall of 29 million dressers, at which time Ikea acknowledged the dressers were at serious risk of tipping onto and killing children. And this is the disturbing bit.

The first death from an unstable Ikea dresser occurred in 1989, with a further six deaths to follow. According to the lawsuits, the Ikea dressers were “defective and dangerous” and that the Sweden-based retailing giant continued to sell them despite the risk, while not properly warning consumers.

Reportedly, the IKEA dresser settlement came shortly after Ikea gave the parents’ attorneys internal documents it had long fought to keep confidential. Under the settlement, the contents of those documents will remain private and will be returned to Ikea, with the stipulation that the company not destroy them.

The plaintiffs include Janet McGee, whose 22-month-old son Theodore died last February when a Malm dresser fell on him, and the parents of 2-year olds Curren Collas and Camden Ellis, both of whom died in 2014.

Each of the three families who filed wrongful death lawsuits will receive an equal share of the $50 million with an undisclosed share going to the attorneys.

As well, Ikea has agreed to make $50,000 donations to three children’s hospitals in the name of the boys, one of which will go to the Children’s Hospital of Philadelphia in memory of Curren Collas.

That’s a wrap folks! Happy Holidays to you and yours. See you at the bar.

Week Adjourned: 12.16.16 – Yahoo, DeVry, Gold Trading

Top Class Action Lawsuits

Yoohoo! Yahoo Breach…Again! Just in case you missed this—Yahoo got hit with a data breach class action lawsuit filed by a user who claims the internet company was negligent in protecting its customers data. Earlier this week, Yahoo revealed it had been the target of a data breach which affected 1 billion users. Yup—that’s ONE BILLION users.

Filed by New York resident Amy Vail, the suit alleges negligence, breach of express and implied contract, and violation of California’s unfair competition law.

In a statement issued Wednesday, December 14, 2016, Yahoo stated it believes that in 2013 hackers stole personal information related to 1 billion of its users by hacking their email accounts. This incident is separate from a similar one which Yahoo made public in September. However, the lawsuit contends that Yahoo has said some of the activity from both data breaches may be connected to a single state-sponsored actor.

According to the lawsuit, Yahoo does not know who took the information, and has been unable to identify the intrusion in which it was taken.

“As a result of defendant’s failure to maintain adequate security measures and timely security breach notifications, Yahoo users’ personal and private information has been repeatedly compromised and remains vulnerable. Further, Yahoo users have suffered an ascertainable loss in that they have had to undertake additional security measures, at their own expense, to minimize the risk of future data breaches,” the lawsuit states.

Yahoo revealed earlier this year that “state-sponsored actors” had hacked similar types of data from 500 million of its users in late 2014.

In a recent press release, Yahoo also noted that an investigation into the 2014 breach revealed the hackers’ ability, in some cases, to fake online “cookies”, enabling them to access users’ accounts without a password.

Vail is represented by Lee Cirsch, Robert Friedl, and Trisha Monesi of Capstone Law APC. The suit is Vail v. Yahoo, case number 3:16-cv-07154, in the U.S. District Court for the Northern District of California.

Top Settlements

Teaching by Example? (Or Not…) A $100 million settlement has been reached between DeVry University and the Federal Trade Commission (FTC) over allegations of for-profit education fraud, specifically, that the for-profit university used false statistics about its graduates’ job placement rates in order to lure students and increase enrollment.

According to the terms of the DeVry Settlement, DeVry will pay $49.4 million, which will be distributed by the FTC, and forgive $30.4 million in student loans and $20.2 million owed by former students. DeVry also said it had agreed to change its practices to “maintain specific substantiation” about graduates’ outcomes.

The FTC filed the lawsuit against DeVry in January, claiming the for-profit school deliberately misled customers through advertising claims it made in print, radio, online and TV that 90 percent of its graduates landed jobs within six months of initiating a job search.

Additionally, the suit claimed DeVry misled students when it claimed that its bachelor’s degree graduates had 15 percent higher incomes a year after their studies ended than graduates of all other colleges and universities, the FTC stated.

The terms of the settlement now “prohibits DeVry from including jobs students obtained more than six months before graduating whenever DeVry advertises its graduates’ successes in finding jobs near graduation.”

Further, the settlement stipulates that DeVry must notify students who are receiving debt relief, as well as credit bureaus and collections agencies. DeVry has also agreed to release transcripts and diplomas that they had been withholding from students who had outstanding debt.

The case is Federal Trade Commission v. DeVry Education Group Inc. et al., case number 2:16-cv-00579, in the U.S. District Court for the Central District of California.

All is Not Gold…? And the final biggie to report this week: a $60 million settlement has been granted preliminary approval, potentially ending an antitrust class action lawsuit against Deutsche Bank AG which claims the bank engaged in illegal price-fixing of the gold market.

The lawsuit was brought by investors and traders in March 2014, alleging UBS Deutsche, HSBC, Societe Generale SA, The Bank of Nova Scotia and Barclays conspired to manipulate the London gold fix, which is used as a benchmark to determine the price of gold and gold derivatives.

Under the terms of the preliminary agreement, the class would include anyone who sold physical gold or derivatives based on gold or bought gold put options on COMEX or other exchanges from January 1, 2004, through June 30, 2013.

The MDL is In Re: Commodity Exchange Inc., Gold Futures and Options Trading Litigation, case number 1:14-md-02548, in the U.S. District Court for the Southern District of New York.

Cha Ching! That’s a wrap folks! See you at the Bar!!

Week Adjourned: 12.9.16 – Staples, Walmart, FloodSafe

Top Class Action Lawsuits

It’s Easy!! Let’s Hope So. Staples will be wanting that “it’s easy!” button as it responds to the consumer fraud class action lawsuit it’s facing this week over allegations it cheats consumers on its reward program. Naughty, naughty…

Filed by Staples customer Neil Torczyner, the lawsuit asserts the company spreads discounts for coupons across a customer’s total collected points in a purchase rather than applying them against the item the coupon was used for, allegedly shorting the total number of rewards points the customer racks up.

The Staples lawsuit states that the points are valuable to consumers because they can be credited against purchases at Staples stores and online. Therefore, the points should be added up in the way the company advertises.

“By employing this deceptive method of calculating rewards points, Staples shorted its members’ account credit which could have been used towards the purchase of most merchandise in Staples’ stores, online at staples.com, or by phone,” the lawsuit states.

Here’s the skinny: Torczyner claims he noticed the problem when he used a coupon for a package of bottled water. The coupon took $1.50 off the cost of the water itself, making it a non-qualifying purchase for rewards points purposes, according to the suit. He claims that when he looked at his rewards points it seemed that Staples had spread out the value of the coupon over the whole transaction, limiting the number of points he could collect for items that were qualifying and that weren’t impacted by the coupon. He should have received $7.98 in points, but received $7.02 instead, according to the complaint.

Torczyner is looking to represent a class of customers who were allegedly cheated out of rewards points when they used coupons. The case is Neil Torczyner v. Staples Inc., case number 3:16-cv-02965, in the U.S. District Court for the Southern District of California.

Top Settlements

Rainbow Effect at Walmart? Here’s a happy ending…a $7.5 million settlement has been reached in a discrimination class action against Walmart. The lawsuit was brought by several thousand workers who claimed they were denied healthcare coverage for their same sex spouses.

Initially brought on behalf of gay workers at Walmart, the lawsuit was filed in July 2015, a month after the U.S. Supreme Court ruled that there is a constitutional right to same-sex marriage under the 14th Amendment. Former Walmart employee Jacqueline Cote brought the lawsuit, claiming she was denied spousal health insurance for her wife, Dee Smithson. The couple had married in 2004. In 2012, Smithson was diagnosed with ovarian cancer. The couple subsequently incurred $150,000 in debt from uninsured medical expenses.

The Walmart settlement effectively ends the class action that alleged, specifically, the big box retailer had violated Title VII of the Civil Rights Act, the Equal Pay Act and state employment law by not offering health insurance benefits to same-sex spouses before January 1, 2014.

Under the terms of the agreement, the $7.5 million will be divided among the few thousand employees who were unable to obtain coverage for their spouses from January 1, 2011, through December 31, 2013.

According to the settlement motion, nearly 1,000 class members have already been identified, and there could be hundreds more. Approximately 1,200 workers had enrolled their same-sex spouses in health insurance and around 1,100 of them would be covered by the class period.

The claim terms are such that class members can file a long-form claim to be reimbursed for out-of-pocket health care expenses of more than $60,000, at a rate of 2.5 times the qualifying costs, or at a rate at 100 percent of the cost for amounts of less than $60,000. Class members can also file a short-form claim without documentation for a pro rata payment of up to $5,000 per year or $15,000 for the three-year class period. For her role as class representative, Cote will receive a $25,000 service payment.

The case is Cote v. Wal-Mart Stores Inc., case number 1:15-cv-12945, in the U.S. District Court for the District of Massachusetts.

FloodSafe Auto-Shutoff Settlement…to the tune of $14 million. This settlement received final approval this week, ending two defective products class action lawsuits brought against Watts Regulator Co., and its insurer.

The two lawsuits represent two classes of homeowners who claimed that Watt’s defective water shut off devices and water heater supply lines caused massive plumbing damage to people’s homes.

The two lawsuits were filed separately, by Curtis Klug and Durwin Sharp who both claimed a defective line of water supply and heater connectors caused extensive property damage. Specifically, Klug’s complaint stated that Watts’ FloodSafe Auto-Shutoff Connectors, which are used to supply water to faucets, toilets, washing machines, dishwashers, icemakers and other common household appliances, have defective shut-off devices, allegedly let water leak, resulting in property damage. Similarly, Sharp’s suit claimed Watts manufactured and marketed certain water heater supply lines that malfunctioned, when the inner-tubing in certain water heater connectors failed, causing leaks and eventually major property damage.

According to the settlement terms Watts will pay $14 million into a common settlement fund, $10 million for Sharp’s action and $4 million for Klug’s settlement class. Sharp and Klug will each receive $5,000 as class representatives.

The settlement class in Klug’s case includes everyone in the United States who owns, leases or resides in a built structure with a FloodSafe connector since November 2008.

Sharp’s settlement class covers all people, also after 2008, who own, lease or live in a house or building containing a water heater connector.

The cases are Klug v. Watts Regulator Company, case number 8:15-cv-00061 and Sharp v. Watts Regulator Company, case number 8:16CV200 in United States District Court for the District of Nebraska.

So that’s it for this week. See you at the Bar!!

Week Adjourned: 12.2.16 – Oil Workers, DePuy Hip Implant, AMEX

Top Class Action Lawsuits

Overworked Oilers? Another week, another several employment lawsuits. This one, an unpaid overtime class action lawsuit, has been filed against oilfield services company Schlumberger Tech Corp, by workers who allege the company is in violation of the Fair Labor Standards Act (FLSA).

According to the lawsuit, the defendant schedules workers for long shifts but pays them salaries plus a day rate, instead of overtime rates as required by both state and federal labor law. The laborers are not exempt from overtime as they perform manual duties that fit within a checklist set by their superiors, the lawsuit states.

“All these workers are regularly scheduled to work 84 hours per workweek, but often worked more,” attorneys for the plaintiff Andrew Fritchman state. “Instead of paying them overtime, SLB paid its [measurement while drilling] employees a base salary plus a day rate.”

According to the complaint, Fritchman worked as a “measurement while drilling” employee, a largely manual job that didn’t leave room to deviate from the company’s outlined plan for how each day was to be conducted. Measurement while drilling workers are tasked with recording data gathered during drilling operations. A college education is not required to do this work, the plaintiff asserts.

Fritchman is claiming that he and other workers performing the same job worked grueling schedules, working and living in the field sometimes for weeks. Typically, a schedule would require one worker on the “day” shift and the other on the “night” shift. Those shifts were 12 hours, and the employees worked seven days a week. Ah, yeah, that doesn’t sound good…

The plaintiffs assert that instead of paying its workers overtime as required by FLSA, the Ohio Prompt Pay Act, the Ohio Minimum Fair Wage Standards Act, and the Pennsylvania Minimum Wage Act, the company paid them a salary plus a day rate.

The lawsuit is seeking back pay, liquidated damages, attorneys’ fees and costs under FLSA for the company’s misclassifying its workers as exempt from overtime rules.

The case is Fritchman v. Schlumberger Tech Corp., case number 2:16-cv-01752, in the U.S. District Court for the Western District of Pennsylvania.

Top Settlements

$1B Hip Award. I’m willing to bet Johnson and Johnson is not celebrating this weekend. A jury in Dallas this week awarded $1 billion to six plaintiffs who are suing Johnson & Johnson (J&J) alleging the DePuy Pinnacle hip implant made by the company’s subsidiary, DePuy Orthopaedics Inc., was defective and has caused them adverse health effects and subsequent surgeries to remove the device.

The DePuy Pinnacle metal-on-metal hip implant has an unreasonably high failure rate. The lawsuits filed against DePuy, claim the metal-on-metal design allows metal debris to come loose from the device, ultimately being absorbed by the patient’s surrounding tissue.

Although J&J won the first case in 2014, in March of this year another federal jury in Dallas awarded $502 million to five plaintiffs whose suits were combined. The DePuy Pinnacle hip award was later reduced to $150 million under Texas law. However, because this latest set of lawsuits was tried under California law, the award won’t be subject to a punitive damages cap.

J&J is currently facing 8,500 similar lawsuits brought together in an MDL in federal court in Dallas. All the plaintiffs allege the company failed to adequately warn of the side effects associated with the hip implant.

According to media reports, evidence presented in court showed J&J paid kickbacks to surgeons to promote the device, even though the company was aware that the implant was associated with greater risks than other similar devices.

DePuy stopped selling the metal-on-metal Pinnacle devices in 2013 after the U.S. Food and Drug Administration strengthened its artificial hip regulations.

It would be interesting to know how many hours J&J spends in court each year, defending itself against defective products litigation…

AMEX Calling? A $9.25 million settlement has received final approval this week, ending a class action lawsuit against American Express. The lawsuit claimed the company made numerous unsolicited telemarketing calls, in violation of the Telephone Consumer protection Act (TCPA). You think?

According to the terms of the AMEX settlement, the funds will be distributed between two plaintiff classes, specifically, those who received debt collection calls on AmEx accounts and those who received telemarketing calls on behalf of the credit card company.

$1 million will be distributed among the debt collection class, defined as those who received calls from third-party vendor West Asset Management Inc. between 2009 and 2013 hoping to collect on AmEx debt. Attorneys for the plaintiffs state that as only 135 members of that class filed claims, each plaintiff will receive over $4,400 from the fund. That’s a nice little pay day.

The class of plaintiffs who received telemarketing calls from vendor Alorica Inc. between 2009 and 2016 will share up to $8.25 million after attorneys’ fees have been paid. There are a reported 55,000 members of that class who filed claims, so the payment per class member will be $88.

The case is Ossola et al. v. American Express Co. et al., case number 1:13-cv-04836, in the U.S. District Court for the Northern District of Illinois.

Well, that’s a wrap for this week. See you at the bar.