Consumer Fraud

Week Adjourned: 6.28.13 – Apple, Mesh Implants, Jackson National

The week’s top class action lawsuits and settlements in our weekly wrap, Week Adjourned. Top stories include Apple, Mesh Implants and Jackson National

Top Class Action Lawsuits

Hey Apple, iAin’t got HD. Apple is facing yet another consumer fraud class action lawsuit. This week’s lawsuit contends that the tech giant charges its iTunes customers extra for accessing high definition (HD) media products for older Apple devices, despite the fact that those devices lack HD capability.

Hmm.

In the Apple iTunes class action lawsuit, lead plaintiff Scott J. Weiselberg claims that the default download option provided on Apple’s iTunes is HD, which is more expensive than non-HD options for movie and TV show rentals, for example.

The backstory—in 2008, Apple began offering movie and video download rentals for its iPhone, iPod and iPad devices. However, early models of these devices were not equipped with HD, and so cannot run HD content, but are restricted to playing standard definition (SD) content instead. Only newer versions of Apple products are HD-capable.

The lawsuit alleges that in June 2010 Weiselberg, who owned a 3G SD iPhone, rented the movie “Big Daddy” from iTunes, paying $4.99 in rental fees. He alleges he was unaware that a cheaper option was available for rental—the SD version of the movie. Had he known, he claims, that would have been the version of the movie he would have rented. Makes sense.

Weiselberg alleges that while Apple eventually added a notice to the iTunes download notifying customers of the availability of SD, by that time Apple had already collected “millions of dollars in undeserved profits.”

The consumer fraud class action claims that Apple’s failure to notify its customers of the SD option is a violation of California’s Unfair Competition Law. He is seeking restitution, an injunction and damages for unjust enrichment. We shall see….

Top Settlements

TVM Settlement, For Some. A victory at last—for some women—but the battles go on. A $54.5 million settlement has been reached, potentially ending several transvaginal mesh lawsuits which allege the implants eroded in the plaintiffs, leaving them incontinent and suffering from chronic pain.

Endo Health Solutions Inc, which acquired American Medical Systems Inc., (AMS), the maker of the vaginal-mesh devices, which include the Perigee, Apogee and Elevate implants, said in a statement that is set to resolve an undisclosed number of the vaginal mesh personal injury lawsuits. However, AMs is facing over 5,000 such lawsuits, which have been consolidated: the first lawsuit set to go to court in December 2013. This settlement agreement doesn’t address these lawsuits.

The AMS settlement will resolve a small number of vaginal mesh injury lawsuits filed in both federal and state courts. Lawyers representing the plaintiffs stress that no universal settlement has been made. The first cases are set to go to court later this year.

In August 2011, the US Food and Drug Administration issued a report stating vaginal-mesh products should be classified as high risk devices, based on a review of side-effect reports from January 2008 to December 2010. Women’s groups are demanding that the devices be recalled. I should think so.

Better late than never! Heads up anyone who purchased or knows an elderly person who purchased Jackson National annuities—A $25 million settlement has been proposed, which, if approved, would settle the proposed consumer fraud and elder financial abuse class action pending against Jackson National Life Insurance Co. The insurer has agreed to pay the settlement which would end the litigation and bring economic relief to over 44,000 elderly customers in California who bought their fixed deferred annuity products. Yes—44,000 customers.

The Jackson National annuities lawsuit alleges that Jackson National targeted its senior citizen customers in the selling of its deferred annuities that had hidden fees, commissions and surrender penalties, essentially defrauding these clients.

According to court documents, the terms of the proposed class action stipulate that Jackson National make cash payments or account credits equal to 22 percent of any past surrender charges the affected policyholders incurred. The insurer will also reduce any future surrender charges by 22 percent. If the Jackson National settlement is approved, these benefits will go into effect automatically; there will be no claims process, and Class Members will not be required to do anything to receive the full settlement benefit.

“The price of delay is particularly high in this litigation because a substantial portion of the class consists of elderly consumers who cannot wait years for relief,” the memorandum said. “Continuation of the litigation would be extremely expensive and risky.” To say the least— perhaps?

The proposed Class includes all California individuals who were age 60 years or older when they purchased misleading deferred annuities from Jackson National insurance, between October 24, 2002, and January 12, 2012.

Okee dokee—that’s it for this week. A safe and happy weekend to all. See you at the bar!

Week Adjourned: 6.21.13 – Intern Pay, McDonald’s, Flonase

The top class action lawsuits and settlements for the week ending June 21, 2013. Top stories include intern pay, McDonald’s paying workers with plastic, and the much-awaited Flonase settlements.

Top Class Action Lawsuits

Unpaid Interns Going for Big Payday… or at least their day in court. A former unpaid intern at Atlantic Records claims the record company required him to work full-time over eight months without pay, often 10 hours a day, according to a proposed employment class-action law suit filed in State Supreme Court in Manhattan.

Of note, the Atlantic Records class action is the first unpaid internship lawsuit to be filed against a music industry business, according to lawyers involved in lawsuit; the class action alleges that Atlantic Records and its parent, Warner Music Group Corp, violated New York State Labor law by requiring the intern, Justin Henry, of Brooklyn, to work full time without pay.

Henry was an intern in 2007 for Atlantic engaged in filing, faxing, answering phones and fetching lunch for paid employees, according to the suit. He alleges his internship existed solely for the benefit of Atlantic Records, and that he received no training or mentorship. Sadly, we’ve heard this before.

According to the Fair Labor Standards Act and New York Labor Law, unpaid internships must exist for training purposes and employers may derive “no immediate advantage” from the work provided by interns.

So, Henry is seeking to recover unpaid minimum wages ($7.15 per hour) and overtime, as well as attorney’s fees.

Plastic Pay at McDonald’s? No stranger to employment lawsuits, McDonald’s is facing a potential employment class action, with a new twist. The lawsuit was filed by an employee in Pennsylvania who alleges she was issued with a fee-loaded Chase Bank Debit card, instead of a paycheck. Yes, really.

Natalie Gunshannon, a 27-year old single mother, worked at McDonalds in Luzerne County, PA, at an hourly rate of $7.44 from April 24 through May 15. When she received her first paycheck, it was not a check at all but rather a JP Morgan Chase debit card which would cost her $1.50 for ATM withdrawals, $5 for over-the-counter cash withdrawals, $1 per balance inquiry, 75 cents per online bill payment, and $15 for a lost or stolen card. Nice. I wonder who thought this one up.

When Gunshannon asked if she could be paid by check she was allegedly told that the debit card was the only option. Furthermore, her future earnings would be deposited into the debit card account and she could access her money from there. “McDonald’s does not provide a choice for hourly employees to receive their justly earned wages through a bank check, cash or direct deposit,” the lawsuit said. Pennsylvania law states that employees are entitled to have a choice to be paid by check or cash.

Go get’em!

Top Settlements

Flonase Settlements Approved. GSK will have to pony up $185 million in two recently approved settlements involving the marketing—or not—of Flonase nasal spray. They were facing two antitrust class actions both of which allege that GSK deliberately prevented generic versions of Flonase nasal spray from going to market.

The Flonase settlements total $185 million, with $150 million designated for reimbursement to people and entities in the US who purchased Flonase directly from GSK at any time from May 19, 2004 until March 6, 2006. For complete information on this settlement, and to download forms, visit flonasedirectsettlement.com The case is, In re Flonase Antitrust Litigation, No. 08-CV-3149, is pending in the United States District Court for the Eastern District of Pennsylvania.

A second class involving those who indirectly purchased Flonase and generic Flonase—will receive reimbursement from a $35 million settlement fund. These class members include anyone who purchased Flonase or generic Flonase for personal, family or household consumption in the United States and its territories from May 18, 2004 through March 31, 2009. Also included in the class is anyone who made co-payments or other partial out-of-pocket payments through their health plans. For complete information on this settlement visit flonasesettlement.com The case is In re Flonase Antitrust Litigation, Case No. 8-cv-3301 and Medical Mutual of Ohio v. GSK, Case No. 12-cv-4212 in the Eastern District of Pennsylvania.

Okee dokee—that’s it for this week. A safe and happy weekend to all. See you at the bar!

Week Adjourned: 6.7.13 – Crest Toothpaste, Organic Seed Mix, Lipitor

Organic Seed Mix, Lipitor, and Crest Toothpaste top our Week Adjourned wrap of top class action lawsuits and settlements for the week ending June 7, 2013

Top Class Action Lawsuits

Going Organic Leads to Going to Hospital? Heads-up anyone who bought Townsend Farms Organic Anti-Oxidant Blend frozen berry and pomegranate seed mix: A woman who alleges she fell ill with a hepatitis A infection and was hospitalized after eating this product has filed a lawsuit against Oregon-based Townsend Farms.

According to the food poisoning lawsuit, plaintiff Karen Echard purchased and consumed Townsend Farms Organic Anti-Oxidant Blend in the Phoenix area in April of 2013. Attorneys allege that she fell ill with symptoms of hepatitis A infection, including fever, chills, nausea, abdominal pains and jaundice during an illness that started on May 21.

The Organic Frozen Berry Seed Mix class action states that Karen sought medical treatment for her illness on more than one occasion and was hospitalized for 5 days. Her attorneys allege that Karen, a healthcare practitioner and student, fears she will lose her job and be forced to discontinue her schoolwork due to her illness, as she continues to experience the effects of her hepatitis A infection. The Townsend Farms lawsuit asks for damages including physical injury, medical and medical-related expenses, wage and lost earning capacity damages.

On June 6, the Centers for Disease Control and Prevention announced that at least 61 people from 7 states had fallen ill with hepatitis A infections in a “Multistate outbreak of Hepatitis A infections potentially associated with ‘Townsend Farms Organic Anti-Oxidant Blend’ frozen berry and pomegranate mix.”

Lipitor Diabetes Link Looking at Lawsuit. Lipitor is making news—this time it all about what the anti-cholesterol drug shouldn’t be doing—allegedly. Pfizer, the maker of Lipitor (atorvastatin) is facing a mounting number of these personal injury lawsuits, alleging the drug causes diabetes. In fact, several of the initial Lipitor diabetes lawsuits have just been green lit for a Multi-district litigation—or MDL.

The Lipitor lawsuits allege that Pfizer has failed to adequately warn consumers of the risk for developing diabetes associated with the statin. In 2012 Pfizer updated the Lipitor labeling to include warnings of increased risk for diabetes, however, the lawsuits contend that this was insufficient.

Lipitor belongs to a class of drugs called statins, which are used to lower cholesterol by reducing blood levels of low-density lipoprotein (LDL) cholesterol, or “bad” cholesterol, a contributing factor in heart disease. A study (Culver AL, Ockene IS, Balasubramanian R, et al. “Statin Use and Risk of Diabetes Mellitus in Postmenopausal Women in the Women’s Health Initiative.” Archives of Internal Medicine, 2012,172(2): pp.144-152.), completed in 2012, as part of the Women’s Health Initiative (WHI) found an association between the statin class of medications and the development of type 2 diabetes in women, particularly post-menopausal women.

Among the most recent Lipitor diabetes lawsuits filed is that of Margaret Clark, filed in the US District of South Carolina, this April. She contends she was prescribed Lipitor in 2002 to address her risk for heart disease. At the time, according to her lawsuit, she was considered a healthy weight. However, in February 2012, Clark was diagnosed with type 2 diabetes.

Clark’s lawsuit alleges Pfizer knew or should have known that there was a connection between Lipitor and diabetes before it was made publically available in 1997. Instead, the warning was only added to the product labeling in February 2012, after the FDA’s Division of Metabolism and Endocrinology Products requested that a warning be provided for consumers and the medical community.

According to the lawsuit, the warning did not actually mention type 2 diabetes, but rather stated “Increases in HbA1c and fasting serum glucose levels have been reported with HMG-CoA reductase inhibitors, including LIPITOR.”

The Lipitor lawsuit also states “Until the February 2012 label change, Lipitor’s label never warned patients of any potential relation between changes in blood sugar levels and taking Lipitor.” And, “Despite the February 2012 label change, Lipitor’s label continues to fail to warn consumers of the serious risk of developing type 2 diabetes per se when using Lipitor.”

Top Settlements

Crest Toothpaste, er, Crestfallen? A preliminary settlement has been reached in the consumer fraud class action lawsuit pending against Procter & Gamble Co (P&G). The lawsuit alleges the company falsely advertised the benefits of its Crest Sensitivity Treatment & Protection toothpaste. Specifically, the Crest lawsuit, entitled, Edward Rossi v. The Procter & Gamble Co., Case No. 11-07238 (JLL) (MAH), U.S. District Court, District of New Jersey, claims P&G engaged in misleading and deceptive advertising and marketing of its Crest Sensitivity Toothpaste.

The tentative Crest toothpaste settlement, if approved, could include anyone in the US who purchased Crest Sensitivity Treatment & Protection toothpaste between February 2011 and March 2013. If you purchased this toothpaste between those dates, you may be eligible to claim a full or partial refund from the settlement. If approved, potential class members must submit a valid claim form and proof of purchase in order to receive damages. Class members with with proof of purchase will be able to claim a full refund of the purchase price they paid. Those without documentation will receive a refund of $4. Only one tube of Crest Sensitivity toothpaste will be refunded.

Valid claim forms and any supporting documents must be postmarked no later than August 19, 2013. Detailed claims filing instructions are provided below.

A Final Fairness Hearing will be held on September 12, 2013.

For complete details on filing a claim, and to download forms, visit: http://www.sensitivitytoothpastesettlement.com

Okee dokee—that’s it for this week—happy and safe weekend to you all—see you at the bar!

Week Adjourned: 5.24.13 – Nike, Apple, Wolfgang Puck, Penguin Books

The weekly wrap of top class action lawsuits and settlements, for the week ending May 24, 2013.

Top Class Action Lawsuits

Nike Calorie Tracker Can’t “Just Do It”? Nike and Apple are facing a consumer fraud class action lawsuit alleging the Nike+ FuelBand, which is supposed to track every step and calorie a wearer burns, doesn’t work as advertised. Now there’s a surprise. The device costs $150, which really is shocking.

Filed by Carolyn Levin of California, the Nike+ FuelBand lawsuit contends that both Apple and Nike knew that the Nike+ FuelBand is defective because it registers inaccurate readings. Nevertheless, they marketed and sold it, and made exaggerated claims about its capabilities.

Specifically, the lawsuit states “In truth, the Nike+ FuelBand cannot and does not track each calorie burned, and users experience wildly inaccurate calorie burn readings when using the FuelBand.” And, “As a result of defendants’ conduct, buyers of the FuelBand, including class members, were in fact misled into purchasing a device that defendants purported would track calories burned when in fact it cannot and does not track calories burned, misleading and damaging customers.”

The class action, entitled Carolyn Levin, et al. v. Nike Inc., et al., Case No. BC509363, in the Superior Court of the State of California, seeks to represent all consumers who purchased the wristband device since January 2012, when it was initially brought to market. The lawsuit alleges that the defendants have made negligent and fraudulent misrepresentations, and have violated California’s business and professions code.

Is Wolfgang Passing the Puck? Ah yes—at least according to an employment class action lawsuit just filed by two former servers who allege the company knowingly withheld their tips and failed to pay overtime. Filed in Manhattan by plaintiffs Kristin Noriega and Oliver Gummert, the Wolfgang Puck lawsuit contends that a Wolfgang Puck catering company was charging its client venues, such as Irving Plaza and the Gramercy Theater, with a 22 percent service charge and then denying its servers and bartenders their tips. “Any charge for ‘service’ or ‘food service,’ is a charge purported to be a gratuity and therefore must be paid over to service employees,” the lawsuit claims. Failing to pass on a service charge that clients have been charged, violates state and federal laws.

And…according to the lawsuit… Noriega, a waitress, and Gummert, a bartender, were paid between $10 and $18 an hour and were not compensated for up to 30 hours of overtime a week. Both Noriega and Gummert left Puck’s employment in 2012, after working for the company for two to three years. That’s not ok…

Top Settlements

Penguin is re-writing the antitrust book on ebook pricing settlements—having agreed to a $75 million payment this week. Penguin’s settlement with the consumers and 33 states is the largest to date.

HarperCollins, Simon & Schuster, Hachette and Macmillan have all settled with both the states and the Department of Justice (DOJ)—HarperCollins, Simon & Schuster, Hachette settled for—get this—a combined $69 million, while Macmillan agreed to pay $20 million.

The settlement is the last of the major publishers to settle. Penguin settled with the DOJ several months ago. Apple, also a defendant in the class action, is going to court in a few weeks and will face the DOJ over antitrust pricing allegations.

The settlement is pending court approval, and a fairness hearing is scheduled for late summer. We’ll keep you posted—so watch this space.

Okee dokee—that’s it for this week—happy weekend—see you at the bar!

Week Adjourned: 5.10.13 – Capital One, H&R Block, QuickTrim

The weekly wrap of top class action lawsuits and settlements for the week ending May 10, 2013. Top stories include Capital One, H&R Block, QuickTrim

Top Class Action Lawsuits

Not “What’s in your wallet?” but… “Who’s in Your Wallet – Again?” Can you guess? Yup—Capital One Bank. This time they’re facing a consumer fraud class action lawsuit alleging its Best Buy co-branded credit cards have an annual fee, in contrast to the advertising for the card, which claims there is no fee. Make sense?

Here’s the backstory. Filed by John Graham, the potential Capital One class action entitled, John Graham v. Capital One Bank (USA), NA, Case No. 13-cv-743, U.S. District Court, Central District of California, alleges that Graham applied for a “no annual fee” Best Buy Reward Zone Credit Card from Capital One but was issued a card that had an annual fee of $39. According to the lawsuit, disclosures for the credit card clearly stated in large type: “Annual Fee: NONE.” Graham claims that had he known there would by an annual fee, he would not have applied for the Capital One Best Buy credit card. FYI Best Buy is not named as a defendant.

This is a national lawsuit, so it seeks to represent all US residents who, between May 8, 2011 and the present, submitted a Best Buy Reward Zone Credit Card Application containing a promise of “no annual fee” but who were subsequently mailed a Capital One credit card that carries an annual fee. Gotcha! (pun intended).

H&R Block Lawsuits Piling Up. Another consumer fraud class action lawsuit has been filed against H&R Block, this time by a woman in Indiana on behalf of some 600,000 people allegedly affected by faulty tax returns prepared by the tax services company. H&R Block acknowledged the filing glitch earlier this year.

Plaintiff Lisa Marie Waugh filed the H&R Block class action lawsuit in federal court in April. The class action law suit claims that Missouri-based H&R Block incorrectly prepared hundreds of thousands of tax returns, and due to those errors tax refunds were delayed by as much as six weeks beyond when they supposed date of payment.

The problem specifically relates to a change in the way the IRS processes certain yes or no questions on this year’s tax forms. Previously, tax preparers like H&R Block could leave a space blank to indicate “no,” but now they must enter an “N.”

However, H&R Block did not update its software in time and follow the new IRS rule. According to an email H&R Block President Bill Cobb sent to customers, anyone that filed their returns before February 22 was affected by the technical glitch, the Indystar.com reports.

According to the lawsuit, some customers lost their eligibility for student loan and grant programs that are dependent upon proper tax filings.

Top Settlements

QuickTrim—the Diet Product that’s not only Light on Calories…This week, a proposed settlement was announced, which, if approved, would end the consumer fraud class action lawsuit pending against the Kardashian sisters, their product QuickTrim, and several retailers. LawyersandSettlements.com first reported on the QuickTrim lawsuit back in March, 2012.

Specifically, the QuickTrim settlement resolves allegations that improper statements were made on the labels and in advertisements for the Quicktrim Weight Loss System® and its component products including QuickTrim Sugar & Carb Cheater®, QuickTrim Fast Cleanse®, QuickTrim Extreme Burn®, QuickTrim Burn & Cleanse®, QuickTrim Hot Stix®, QuickTrim Fast Shake®, QuickTrim Satisfy®, and QuickTrim Celluslim® (“The Products”).

Unless you purchased directly from QuickTrim you must submit a timely Claim Form to get compensation or a coupon. Direct Purchasers will automatically receive payments unless they chose to receive a coupon by submitting a Claim Form or exclude themselves from the Settlement.

To download claim forms, learn more about your options, and for general information on the lawsuit, visit https://www.anayasupplementsettlement.com.

The laundry list of defendants, who, not surprisingly, admit no wrongdoing, includes Quick Trim LLC., Windmill Health Products, LLC, Kimberly Kardashian, Khloe Kardashian-Odom, Kourtney Kardashian, Kris Jenner, Jenner Communications, Inc., Kimsaprincess, Inc., Khlomoney Inc., 2Die4Kourt, Inc., GNC Corp., CVS Pharmacy, Inc., Walmart Corp., Amazon.com Inc., Drugstore.com., Christopher Tisi, Vitaquest International, LLC. (“collectively “the Quick Trim Parties” or “Defendants”).

And on that note, it’s time to consume some calories…

That’s a wrap. See you at that bar…Happy Friday folks and Happy Mother’s Day to all moms out there!

Week Adjourned: 4.26.13 – Vitamin Shoppe, Acer, Sony TV

The weekly top class action lawsuit & settlement wrap for the week ending April 26, 2013. Top class actions include Vitamin Shoppe, Acer and Sony.

Top Class Action Lawsuits

True Athlete Training Formula Making Some Untrue Claims? Em, maybe. At least the folks who filed a consumer fraud class action lawsuit against Vitamin Shoppe Inc, who make and market a pre-workout muscle building and performance enhancing product called True Athlete Training Formula, believe so.

The True Athlete class action lawsuit, entitled Steven Hodges v. Vitamin Shoppe Inc., Case No. 13-cv-02849, U.S. District Court, Central District of California, contends that the Vitamin Shoppe “knowingly and/or recklessly ignored” all relevant scientific evidence which shows that L-Arginine Alpha Ketoglutarate, the main ingredient in True Athlete Training Formula, does not enhance athletic performance, build muscle, or improve cardiovascular function, as advertised. Well, it does sound a bit too good to be true. But hey—I’m an optimist.

However…the lawsuit also contends that the defendant “knowingly under-doses the remaining active ingredients to save money but still entice consumers by using efficacy claims for the compounds Creatine Monohydrate, Beta-Alanine (as Carnosyn), and AstraGin”, compounds well-known within the sports industry, according to the class action lawsuit. Specifically, the lawsuit states: “Defendant unapologetically, and with no remorse, boasts the inclusion of these popular ingredients in the Product, and then under doses them in the formula to make the Product useless.” And: “The inclusion of the ingredients at levels under the clinical dosage is nothing more than a new tactic at selling consumers ‘snake oil.’” Snake oil? I’ve had that stuff before!

Here’s the straight dope…the consumer fraud class action was filed on behalf of a proposed class of all California residents who purchased True Athlete Training Formula from the Vitamin Shoppe within the last four years.

Top Settlements

How’s your RAM these days? That would be Random Access Memory—the kind in your computer…(I don’t know about you, but the kind in my head is full and dates back to last century.) Well, it seems that Acer has decided to end a consumer fraud class action lawsuit alleging its RAM wasn’t up to the job either.

The official scoop on the Acer RAM class action— “The parties have reached a settlement in a nationwide class action lawsuit alleging that Acer America Corporation (“Acer”) advertised and sold Acer notebook computers that did not contain enough Random Access Memory (“RAM”) to support certain pre-installed versions of the Microsoft Windows Vista operating system. Acer denies the claims, but has agreed to the Settlement to avoid the costs and risks of a trial.“

And yes folks—you are a member of the class if you are a US resident who purchased a new Acer notebook computer that: (1) came pre-installed with a MicrosoftWindows Vista Home Premium, Business, or Ultimate operating system; (2) came with 1 gigabyte (“GB”) of RAM or less as shared memory for both the system and graphics; (3) was purchased from an authorized retailer; and (4) was not returned for a refund.

Class Members may claim either: (a) a 16GB USB Flash Drive with ReadyBoost technology; (b) a check for $10.00; (c) a check for up to $100.00 for reimbursement of any repair costs that were incurred before April 25, 2013 in an effort to resolve performance issues related to insufficient RAM; or (d) for Class Members who still own their computer, a 1GB or 2GB laptop memory DIMM that will allow the Acer notebook to operate with 2GB of RAM.

Any class member may seek to be excluded from the settlement by filing a notice of “opt out.” Class Members who remain in the settlement, either by submitting a claim or doing nothing, have the right to object to the settlement or ask to speak at the hearing. Opt out notices, objections, and any requests to appear are due by July 24, 2013. In order to get any benefits from the settlement, Class Members must submit a Claim Form by July 24, 2013. Claim forms will also be mailed and emailed to those class members for whom Acer has contact information. For more information about the settlement or to file a claim, visit www.AcerLawsuit.com.

Sony Display Resolution Class Action Resolved…And while we’re on the subject of technology—remember this one? The Sony Grand Wega SXRD rear-projection television defective products class action? (Sony Electronics, entitled Date v. Sony Electronics, Inc. & ABC Appliance, Inc., Case No. 07 CV 15474,United States District Court for the Eastern District of Michigan). Filed some time ago, granted, it does appear that a resolution may finally be in sight.

A proposed settlement has been granted preliminary approval, which includes all United States end user consumers who purchased, or received as a gift from the original retail purchaser, a KDS-R5OXBR1 or KDS-R6OXBR1 television.

The backstory—short version—allegations that Sony et al falsely advertised the display resolution of its Sony Grand Wega SXRD rear-projection television models KDS-R5OXBR1 and KDS-R6OXBR1, because the televisions were incapable of accepting input of 1080p signals and could not accept and display video content at 1080p resolution via the televisions’ PC and HDMI Input. Not good.

Here’s what you need to know if you are eligible for part of the settlement:

All class members who send in a valid claim form establishing that they own both (1) one of these televisions and (2) a 1080p output device like a Blu-ray player or 1080p-capable laptop computer or gaming device will be eligible to receive a $60.00 gift card that does not expire and is redeemable for the purchase of any item available on the store.sony.com website or at a Sony retail store.

If you do not own a 1080p output device, you will not be eligible to receive a benefit, but you will remain in the settlement class (and release your claims in this litigation, all of which relate to the 1080p capabilities of the televisions) unless you choose to opt out of the settlement.

All claim forms must be received by the claims administrator at the address provided in the claim form by no later than June 10, 2013 to be valid. To download claim forms, review your rights and find out more information on the settlement, visit http://esupport.sony.com.

Ok—that’s a wrap. See you at that bar…and Happy Friday Folks!

Week Adjourned: 4.12.13 – Apple, Skechers, Path, Fisker

This week, the top class actions in the news are Apple, Skechers, Path and Fisker. Week Adjourned is your weekly wrap of class action lawsuits and settlements for the week ending April 12, 2013.

Top Class Action Lawsuits

No, the Path to Profit is not through Spam…as Path social media can now attest to. The mobile social network got hit with a potential class-action lawsuit this week for allegedly sending unsolicited text ads to people’s cell phones, in violation of the Telephone Consumer Protection Act (TCPA).

Filed in Illinois, by Kevin Sterk, the Path lawsuit alleges that Sterk received an unsolicited SMS message in March from Path. The message stated that someone else wanted to show Sterk photos on the service, and contained a link to a site where he could register to join. Sterk claims he never authorized Path to contact him via SMS. Further, the lawsuit alleges the company has sent similar text messages to “thousands” of other cell phone users.

“By making these unauthorized text message calls, [Path] has caused consumers actual harm, not only because consumers were subjected to the aggravation that necessarily accompanies the receipt of unauthorized text message calls, but also because consumers frequently have to pay their cell phone service providers for the receipt of such unauthorized text message calls,” the TCPA lawsuit states.

The Path class action lawsuit contends that these unsolicited messages violate the TCPA, which prohibits companies from using automated dialing services to send SMS messages without the recipients’ consent. The law provides for damages of $500 per incident. Sterk, who is seeking class-action status, is asking for monetary damages and an order prohibiting Path from sending unsolicited text messages.

I wish someone would come up with an app that would enable the average Joe to spam the spammers. Now, that could be fun!

Forewarned isn’t Forearmed at Fisker? The folks at Fisker are facing an employment class action lawsuit filed over allegations it failed to provide 60 days notice to employees who were part of recent mass layoffs. Those layoffs are allegedly in violation of US and California labor laws.

FYI—the US Worker Adjustment and Retraining Notification (WARN) Act, a federal law, stipulates that companies with over 100 employees must provide 60 days notice prior to laying off their employees. There is also a similar requirement in place under California state law.

The employment lawsuit against Fisker alleges the company failed to pay the employees their 60 days pay and benefits that they would have been received had they been provided their duly entitled 60-day notice. Further, the lawsuit claims Fisker failed to notify California’s state Employment Development Department of its layoff plans, as well as the local workforce investment board, as well as the top elected officials in Anaheim and Orange County.

Top Settlements

A bit Sketchy on Skechers? Well, it’s official, but not approved. Confused? Don’t be. Last September we reported that Skechers has agreed to a preliminary $40 million settlement of a consumer fraud class action brought by disgruntled customers who claim the company misrepresented the benefits of the “toning shoes.”

Entitled Grabowski v. Skechers U.S.A., Inc., No. 3:12-cv-00204 (W.D. Ky.), the lawsuit concerns claims that Skechers violated certain state laws and consumer protection statutes in connection with the marketing and sale of its toning shoes. Not surprisingly, Skechers denies those allegations.

It looks as if final approval may be at hand, as the fairness hearing was scheduled for mid-March 2013. This matters to you purchased eligible Skechers toning shoes from August 1, 2008, up to and including August 13, 2012 in the United States.

To find out more information and to download claims forms, visit: http://www.skecherssettlement.com/

Bad Apples, eh? This one is all over the wires today…Apple—the faltering god of all things techno—has reportedly agreed to a $53 million settlement in the class action lawsuit pending over alleged defective iPhones and iPod Touch.

The unfair business practices class action was originally filed against Apple in 2010, and centered around claims that the company failed to honor its warranty obligations by fixing or replacing defective devices.

According to a report by CNET, thousands of owners of the original iPhone, iPhone 3G, iPhone 3GS, or the first three generations of the iPod Touch who were unsuccessful in getting Apple to honor its warranty related to repairs and replacements, can submit claims in the suit. These devices carried one-year standard and two-year extended warranties.

The settlement has yet to be approved, and full details have not been made public. Wired is reporting that depending on how many people submit claims, individual payouts could be approximately $200. Stay tuned for more on this one.

Ok—that’s a wrap. See you at that bar…

Week Adjourned: 4.5.13 – H&R Block, JP Morgan Chase, Asbestos

Just in time to send in those tax returns, H&R Block is hit with a class action lawsuit. That leads off our weekly top class action lawsuit and settlement news for the week ending April 5, 2013.

Top Class Action Lawsuits

Just in Time for Taxes! Oops…talk about adding insult to injury…A consumer fraud class action lawsuit has been filed on behalf of individuals who allege that their tax refunds were delayed due a tax return error by H&R Block.

“These individuals trusted and paid H&R Block to file their tax returns accurately so they could receive their refunds as soon as possible,” said Jordan L. Chaikin, a partner with Parker Waichman LLP, one of the law firms representing the plaintiffs. “However, H&R Block has made an error that has delayed thousands of people from receiving their tax refunds on time. Furthermore, consumers paid this company under the promise of a 100 percent guarantee for their services, yet they have not been justly compensated for this error.”

According to the H&R Block lawsuit filing, the Defendants erroneously and negligently prepared Form 8863 included with 600,000 tax returns. As a result, the suit alleges, tax refunds have been delayed up to six weeks past when they would have been paid. The lawsuit alleges, among other things, that H&R Block has breached its contract. According to the allegations, H&R Block promised its customers a “100% Satisfaction Money Back Guarantee” which states that if the consumer is dissatisfied for any reason within 60 days, they are entitled to a refund for the full purchase price. Despite this promise, the lawsuit alleges, H&R Block has failed to offer compensation to the Plaintiffs or any putative class members for the error caused solely by the company and its subsidiaries.

The lawsuit points out that H&R Block has admitted to making an error on Form 8863 that has led to a delay in tax refunds. According to the Complaint, Form 8863 is used to claim tax credits for qualified expenses paid to post-secondary education institutions. According to the lawsuit’s allegations and a report in Kansas City Business Journal, H&R Block mistakenly left a mandatory field blank instead of answering “yes” or “no” for questions #22 through 26. The lawsuit alleges that the error had delayed tax returns of Plaintiffs and putative members beyond the 21 day turnaround represented by the Defendants.

The lawsuit was filed on March 29, 2013 in the U.S. District Court for the Northern District of Ohio, Eastern Division (Case No.1:13-cv-00698-CAB). H&R Block, Inc, HRB Tax Group, Inc. and HRB Technology LLC have been named as Defendants.

Property Appraisers at JP Morgan Chase are Chasing their Unpaid Overtime. California Appraisers in the commercial lending division of JP Morgan Chase have filed an unpaid overtime class and collective action lawsuit, seeking to recover millions of dollars in unpaid wages based on the financial services giant’s practice of misclassifying these employees as “exempt” from overtime pay, among other violations of California and federal law.

Chase’s “Production Appraisers” complete form valuations of commercial and multi-unit residential properties based on well-defined criteria, allowing Chase to issue loans and refinancing secured by the properties. Chase’s “Review Appraisers” then proofread the appraisals based on Chase’s criteria.

The lawsuit, filed in the Los Angeles-based U.S. District Court for the Central District of California, alleges that Appraisers have unlawfully been deprived of overtime pay and meal and rest period premiums, itemized wage statements and certain reimbursements required under California law. The Appraisers allege that they are subject to detailed standards and internal guidelines for the production and review of each appraisal, placing the Appraisers squarely outside of the so-called “white collar” exemptions to the Fair Labor Standards Act and California wage and hour protections.

The California overtime lawsuit, filed by Long Beach residents Kenneth Lee and Mark Thompson, seeks to represent approximately 150 appraisers, who were or are classed as Administrators. Go get’em!

Top Settlements

Another large asbestos lawsuit settlement to report this week. A verdict was reached in March in the case of Michael Sutherland, a former drywaller diagnosed with mesothelioma, a cancer caused by asbestos. The Los Angeles Superior Court jury that heard the case returned its an asbestos verdict awarding $26.6 million to Michael and his wife Suszi.

Mike testified that he worked as a drywaller in northern San Diego County from 1967, while he was still attending Madison High School, through 1993—with frequent breaks for extended surfing trips to Hawaii and Mexico. He worked at countless residential and commercial jobsites during the construction “boom” that occurred in north county in the 1970s, the same time that cancer-causing asbestos was used in many construction products including joint compound, fire-rated drywall, caulk, stucco, roofing mastic and asbestos cement pipe.

“With all the trades working on top of each other trying to finish one job and move on to the next, it was always dusty,” Mike recalled, “It wasn’t until I became a lead maintenance mechanic at UC San Diego and attended a class on job safety in 2003 that I learned that so many of the materials used on the jobs back then contained asbestos.”

The Sutherlands’ case (LASC case # BC486980) was filed on June 20, 2012. Over 30 defendants were named in the case. Settlements were reached with a number of defendants prior to trial. Stucco manufacturer, Highland Stucco and Lime Products, Inc., the sole remaining defendant at trial, argued that other companies and even Mr. Sutherland himself were responsible for his exposure to asbestos. But the jury ultimately assessed blame on Highland for its role in subjecting Mr. Sutherland and other members of the public to its dangerous products.

“I was surprised to learn at trial just how much asbestos was in stucco,” Mike stated, “even though I rarely worked hands-on with the stuff, I was exposed to dust when the bags were dumped into large mixers and when we had to scrape off areas of over-spray that came into the homes through windows and doors.”

Mike is grateful for the jury’s award and for the hard work of his legal team, but would gladly trade it for the return of his health. Prior to his diagnosis in May 2012, Mike enjoyed his job at UCSD and had no plans of retiring. He also continued to indulge his life-long passion for surfing, hitting the waves on the iconic surf breaks of north county San Diego two or more times a week.

Ok—that’s a wrap. See you at that bar…

Week Adjourned: 3.29.13 – Ford, RadioShack, Toyota & Ford (again!)

Check out the latest class action lawsuit news for the week ending March 29, 2013. Top class action news includes Ford, Toyota and RadioShack.

Top Class Action Lawsuits

Will Ford Follow in Toyota’s Footsteps? This week, consumers from 14 states filed a federal class action against Ford Motor Co. in connection with alleged defects in Ford’s vehicles causing and failing to prevent the unintended acceleration of those vehicles. Umm, remember that one? Toyota comes to mind…and they settled recently (more on that later).

Here’s the dirt: the plaintiffs contend that Ford vehicles equipped with an electronic throttle control system are vulnerable to sudden unintended acceleration events, and that Ford has admitted that some of its vehicles are in fact prone to such acceleration. Their complaint alleges that the Ford vehicles share a common design defect in lacking adequate fail-safe features, including a reliable brake-over-accelerator (BOA) system (also referred to as a “brake override system”). Such a system is designed to allow a driver to overcome unintended throttle opening by returning the throttle to idle when certain conditions are met, allowing a driver to mitigate unintended acceleration by depressing the brake.

The Ford lawsuit also claims that Ford owners have experienced unacceptable rates of sudden unintended acceleration (SUA), citing a report issued in October 2011 by the U.S. Department of Transportation Inspector General. Plaintiffs allege that Ford should have prevented the SUA incidents by including the brake-over-accelerator system or other fail-safe systems in its vehicles. They maintain that, while Ford began installing a BOA system on some of its North American cars beginning in 2010, the company has failed to remedy, or even warn drivers about the lack of a brake-over-accelerator system on its earlier vehicles.

The cars named in the complaint are:

Ford vehicles: 2005-2007 500; 2005-2009 Crown Victoria; 2005-2010 Econoline; 2007 2010 Edge; 2009-2010 Escape; 2005-2010 Escape HEV; 2005-2010 Expedition; 2004-2010 Explorer; 2007-2010 Explorer Sport Trac; 2004-2010 F-Series; 2009-2010 Flex; 2008-2010 Focus; 2005-2007 Freestyle; 2006-2010 Fusion; 2005-2010 Mustang; 2008-2010 Taurus; 2008-2009 Taurus X; 2002-2005 Thunderbird; and 2010 Transit Connect.

Lincoln vehicles: 2003-2006 LS; 2006-2008 Mark LT; 2009-2010 MKS; 2010 MKT; 2007-2010 MKX; 2006-2010 MKZ; 2005-2009 Town Car; and 2006-2010 Zephyr.

Mercury vehicles: 2002-2005 Cougar (XR7); 2005-2009 Grand Marquis; 2009-2010 Mariner; 2005-2010 Mariner HEV; 2006-2010 Milan; 2005-2007 Montego; 2004-2010 Mountaineer; and 2008-2010 Sable.

The potential class action was filed in U.S. District Court for the Southern District of West Virginia in Huntington. The plaintiffs, both individually and on behalf of all other class members, seek compensatory damages for the lost value of their cars, the difference between what they originally paid for their cars versus the actual value of their defective vehicles. Plaintiffs also seek injunctive relief, requesting that Ford fix the problem.

Shack Sacked for Tracking? RadioShack got hit with a potential class action this week…The lawsuit claims the electronics retailer secretly tracks the Internet browsing activities of website visitors and shares this private information with third parties. Well, if so, they’re certainly not the first to do that, and I’m betting they won’t be the last…

Short version, the Radio Shack class action was filed in Missouri, by plaintiff Stephanie Hanson who alleges she visited the RadioShack website numerous times during the past five years but was unaware that the company, together with its website operator, GSI Commerce Solutions Inc., had accessed Adobe Flash Player on her computer. Adobe Flash Player is software that enables the playing of sound and video on websites. By accessing this software, the defendants were able to plant tracking devices known as Location Shared Objects (LSOs) on her computer, the lawsuit claims.

The lawsuit, entitled, Hanson v. RadioShack Corp. et al., Case No. 13-cv-00536, U.S. District Court for the Eastern District of Missouri, seeks to represent a proposed class comprised of all Missouri residents who, within the past five years, had their computers illegally tampered with by RadioShack and GSI. Additionally, the lawsuit is seeking damages for alleged invasion of privacy by unreasonable intrusion, computer tampering, trespassing and more.

Top Settlements

It was a very busy week for settlements, and car manufacturers Ford and Toyota led the pack.

First up—Toyota. The Toyota sudden and unwanted acceleration lawsuit claims that certain Toyota, Scion and Lexus vehicles equipped with electronic throttle control systems (ETCS) are defective and can experience unintended acceleration. Yes, that old chestnut…

As a result, the Toyota lawsuit pursues claims for breach of warranties, unjust enrichment, and violations of various state consumer protection statutes. Toyota denies that it has violated any law, denies that it engaged in any and all wrongdoing, and denies that its ETCS is defective. The parties agreed to resolve these matters before these issues were decided by the Court.

Heads up—this settlement does not involve claims of personal injury or property damage.

If you are class member, you may be entitled to one or more of the following:

A cash payment for alleged loss upon certain disposition of a Subject Vehicle during the period from September 1, 2009 and December 31, 2010 or upon early lease termination following an alleged unintended acceleration event that you reported.

Installation of a brake override system (BOS) in certain Subject Vehicles at no charge; A cash payment if your Subject Vehicle is not a hybrid and is not eligible for a BOS; Participation in a Customer Support Program; and other settlement benefits.

For more information including class member options and filing dates visit: toyotaelsettlement.com

Then there’s Ford. They reached a proposed settlement in the pending Ford defective engine class action lawsuit. The background: On April 13, 2011, the Judicial Panel on Multidistrict Litigation created MDL No. 2223, In re: Navistar 6.0L Diesel Engine Products Liability Litigation, and transferred seven lawsuits involving similar claims to the Court for pretrial proceedings. Thirty-two additional lawsuits have since been transferred to the Court. The plaintiffs contend that the 6.0-liter diesel engine installed primarily in 2003 – 2007 heavy-duty Ford trucks and vans contain defects that result in poor performance and expensive repair bills. Plaintiffs assert a variety of legal claims against Ford based on the engine’s design, the marketing of the vehicles, and Ford’s repair practices. Plaintiffs seek to pursue their lawsuits (the “Litigation”) as a class action on behalf of other owners and lessees of model year 2003_2007 non-ambulance Ford vehicles equipped with a 6.0 liter diesel engine (the “Class”).

If you:

1. purchased or leased a model year 2003_2007 non-ambulance Ford vehicle in the United States equipped with a 6.0-liter PowerStroke diesel engine; and

2. the vehicle received one or more repairs covered by Ford_s New Vehicle Limited Warranty during its first five years in service or 100,000 miles, whichever came first, to a fuel injector; the EGR valve; the EGR cooler; the oil cooler; or the turbocharger; and

3. you had not, as of November 1, 2012, filed (and not voluntarily dismissed without prejudice) an individual lawsuit based on that engine;

You may be a member of a proposed Settlement Class and entitled to reimbursement for certain engine-related repair costs and deductibles.

If the Court approves the proposed Settlement, Ford will provide Class Members a means of obtaining reimbursement for certain engine-related repair costs and deductibles. All persons (or entities) who agree to accept these benefits will be barred from pursuing individual lawsuits against Ford and others based on the 6.0-liter engines in these vehicles.

For complete information on the pending settlement, your legal rights, and obtaining and filing forms, visit: http://www.dieselsettlement.com/Casedocuments.html

Ok—that’s a wrap. See you at that bar…and Happy Easter, Happy Passover, Happy belated Holi, etc…

Week Adjourned: 3.22.13 – John Hancock, Dialysis Centers, Ab Circle Pro

The weekly wrap on top class action lawsuits and settlements for the week ending March 22, 2013. Top class actions include John Hancock Insurance, DaVita Dialysis Centers and Ab Circle Pro.

Top Class Action Lawsuits

Do You Trust John Hancock Insurance?…The John Hancock ad campaigns center on “trust”, but after a bad faith insurance class action lawsuit was filed against John Hancock Life Insurance Company over allegations it fails to settle death benefits, that trust may be out the window for some.

This latest class action lawsuit, filed by Richard Feingold and entitled Richard Feingold v. John Hancock Life Insurance Company, Case No. 13-cv-10185, U.S. District Court Massachusetts, Boston, claims that John Hancock only paid him as a beneficiary of his late mother’s life insurance policy, four years after her death in 2006, when Feingold discovered she had the policy. Feingold alleges he found information on the Illinois treasurer’s website which showed he had unclaimed property owed to him from John Hancock through his late mother’s policy. Up until that point, Feingold was unaware, he claims, that his mother had a life insurance policy, or that he was owed death benefits. He subsequently contacted the insurer and was paid, however John Hancock refused to provide him with a copy of his late mother’s policy, or any explanation about the benefits he received.

The potential class action claims that John Hancock routinely checks the Social Security Administration’s master death list so it can halt payments to annuity holders who have become deceased; however the insurer fails to check the same database to see if a life insurance policy holder has died so the company can promptly pay beneficiaries. Essentially, the John Hancock class action lawsuit claims, the insurer uses the information solely for its own benefit.

FYI—John Hancock recently ponied up $13 million to settle allegations brought by six states that it didn’t work hard enough to pay life insurance benefits. Slow learners maybe? Um. Maybe not.

More on Granuflo Lawsuits. This has been all over the news recently. DaVita Healthcare, a national dialysis treatment provider that uses Granuflo and Naturalyte during hemodialysis, is facing four potential personal injury class action lawsuits.

The DaVita dialysis class actions allege the clinics should have known of the risks for serious adverse health effects associated with Granuflo and Naturalyte and acted accordingly to reduce those risks to patients. Those serious health issues include cardiac arrest and sudden death.

Granuflo and Naturalyte are dialysis products made by Fresenius Medical Care. In March 2012, prompted by reports of adverse events, the Food and Drug Administration issued a Class I recall of both Naturalyte and Granuflo.

The four class action lawsuits have been filed by plaintiffs Donald Thornton, Melvin Nunes, Donald Young and Armando Moreno, all in the US District Court for the District of Colorado. The lawsuits seek to represent any person treated at a DaVita Healthcare clinic with Granuflo or Naturalyte products.

Top Settlements

3-Minute Abs? Really? How are your abs, by the way? Feeling a tad underutilized, ignored even? Are they retaliating by morphing into some indistinguishable, gelatinous shape that is slowly obliterating any view you had of your feet? Yeah, you know what I’m talking about…

So do the folks at Ab Circle Pro. Problem is, their fix ain’t on the level. So the makers of Ab Circle Pro have agreed to pay as much as $25 million to settle charges of consumer fraud brought by The Federal Trade Commission (FTC). You may be familiar with the consumer fraud claims, but if not, according to the FTC, Ab Circle Pro claimed, among other things, that their device could cause rapid and substantial weight loss and that three minutes of exercise on the Ab Circle Pro was equal to 100 sit-ups. (Oh yeah baby—sign me up!)

The official short version…According to the FTC, in advertisements, the defendants promised that a three-minute workout on the Ab Circle Pro—which is a fiberglass disk with stationary handlebars and two knee rests that roll on the edge of the disk, allowing consumers to kneel and rotate side-to-side—was equivalent to doing 100 sit ups. In the infomercial, pitchwoman Jennifer Nicole Lee compared the Ab Circle Pro to a gym workout, saying, “You can either do 30 minutes of abs and cardio or just three minutes a day. The choice is yours.” The infomercial claimed that consumers using the Ab Circle Pro for three minutes a day would “melt inches and pounds,” and featured Ab Circle Pro users claiming they had lost as much as sixty pounds. Consumers buying through the infomercial typically paid $200 to $250 for the device, while the price for those buying from retailers varied more widely. I think $250 could buy a lot of situps…

And, the FTC charged all the defendants except Lee and her companies with making false and/or unsupported claims, including that using the Ab Circle Pro caused rapid or substantial weight and fat loss; resulted in loss of weight, fat, or inches in specific parts of the body, such as the abdomen, hips, buttocks, and thighs; provided fat loss and weight loss equivalent to, or better than, a much longer gym workout; and provided the same rapid and substantial weight loss that people who provided testimonials for the infomercial said they experienced. The complaint also charges the Fitness Brands, Inc. defendants with providing the means to Direct Holdings Americas, Inc. and Direct Entertainment Media Group, Inc. to deceive consumers.

The defendants are Fitness Brands, Inc., Fitness Brands International, Inc., and the two individuals who control them, Michael Casey and David Brodess; Direct Holdings Americas, Inc. and Direct Entertainment Media Group, Inc.; infomercial producer Tara Borakos and two companies she controls, Tara Productions Inc. and New U, Inc.; and Jennifer Nicole Lee and two companies she controls, JNL, Inc. and JNL Worldwide, Inc.

So, in the interests of honesty and fair play, the defendants have agreed to pay money to provide refunds to eligible consumers who bought the Ab Circle Pro. The amount of the refund will depend on the number of claims submitted and approved. To find out about making a claim visit: http://www.ftc.gov/bcp/cases/abcirclepro/9—which doesn’t necessarily have to involve getting off the couch…

Ok—that’s a wrap. See you at the bar—and make mine a diet soda this time. Happy weekend!