Emerging Issues

Week Adjourned: 4.10.15 – Popular Wines, Cruise Texts, AT&T

Top Class Action Lawsuits

Have your hangovers been getting worse recently? Ok—you don’t have to answer, but maybe—just maybe—it’s not only you… A defective products class action lawsuit has been filed against 28 California wineries alleging that they produced wine which contains dangerously high levels of arsenic, in violation of California law. Nothing like a bit of poison to help the relaxation process.

Don’t know how the ball got rolling, but someone/entity had a total 1,306 different types of wine tested by BeverageGrades in Denver. The results showed that 83 wines had dangerously elevated levels of inorganic arsenic. Two additional labs confirmed the results. According to the arsenic in wine lawsuit, some of the wines contained arsenic levels in excess of the safe daily intake limit by 500%. Oh great.

And the news gets worse, because the majority of the wines listed in the complaint are inexpensive white or blush varieties, including Moscato, Pinot Grigio and Sauvignon Blanc. Popular brands named in the lawsuit include Franzia, Sutter Home, Wine Cube, Cupcake, Beringer and Vendange.

The lawsuit is seeking “injunctive relief, civic penalties, disgorgement and damages.”

Time to take up cocktails.

“All aboard whose coming aboard”…The operators of two cruise lines were hit with a Telephone Consumer Protection Act (TCPA) class action lawsuit, alleging they’ve been sending unsolicited text messages to thousands of people’s cellular phones. And that’s not annoying, right?

Consolidated World Travel Inc., which does business as both Holiday Cruise Line and Bahamas Paradise Cruise Line, is the named defendant in the suit, which was filed by plaintiff Jason Huhn. The cruise text complaint alleges the Florida-based company sent Huhn an automated text message on his cellphone in March 2014 offering a free cruise. Free cruise? Really?

Huhn alleges the company never asked him for his consent to send him advertisements. “Defendants sent similar text messages to thousands of individuals nationwide using an automatic dialing system and without the consent of those individuals,” the complaint states. “At no point did plaintiff consent to receiving such text messages. At no point did plaintiff enter into a business relationship with defendants.”

According to the complaint, CWT sends automated text messages to individuals advertising a “free cruise” and providing a phone number that an individual must call to redeem the cruise. When the number in the text message is called, the caller is connected with a company identifying itself as “Travel Services.” The operator explains that he or she sees the caller is calling about a free cruise, and immediately “transfers” the caller to “Holiday Cruise Line,” the complaint states.

The lawsuit also names the cruise line’s Tampa-based marketing firm, Elite Marketing Inc., as well as CWT owner James H. Verrillo as defendants.

Top Settlements

Who said what you don’t know can’t hurt you? Well, Expose did sing it but…who knew about this? AT&T must pony up $25 million to resolve claims by the Federal Communications Commission (FCC) that the phone carrier failed to adequately safeguard personal data of approximately 300,000 customers. The data was stolen from call centers in Mexico, Colombia and the Philippines. Read: massive data breach.

According to the FCC, employees at call centers used by AT&T in the three countries accessed records belonging to roughly 280,000 U.S. customers without authorization. Those records were accessed without authorization, in order to obtain names, full or partial Social Security numbers and other protected account-related data. Terrific.

FYI—Those data are also known as customer proprietary network information, which require requests for handset unlock codes for AT&T mobile phones.

The FCC alleged in its complaint that the call center employees provided that data to unauthorized third parties, which included an entity that went by the alias El Pelon in Mexico, who appeared to have been trafficking in stolen or secondary market phones that they wanted to unlock. That entity allegedly used the information to make more than 290,000 unlock requests through AT&T’s website. Ringing any bells?

According to the terms of the settlement, AT&T, in addition to the $25 million penalty for the alleged violations of Sections 222 and 201 of the Communications Act, must also improve its privacy and data security practices by appointing a senior compliance manager who is a certified privacy professional, conducting a privacy risk assessment, implementing an information security program, preparing an appropriate compliance manual and regularly training employees on the company’s privacy policies and the applicable privacy legal authorities. You think?

Hokee Dokee- That’s a wrap folks…See you at the Bar!

Week Adjourned: 4.4.15 – Toyota Camry, Babies R Us, JP Morgan Chase

Top Class Action Lawsuits

Heads up Toyota Camry owners! The car maker is facing a defective products class action lawsuit alleging the car maker was aware of a defect in its Camry models that causes the cars’ air conditioning system to become moldy, emitting foul odors and potentially causing health problems.

Filed in Los Angeles earlier this week, the Toyota Camry lawsuit claims that Toyota’s 2012 Camry models have a “uniform and widespread defect” in the heating, ventilating and air conditioning systems that causes emissions of noxious and foul odors from the growth of mold in the system.

“Defendant has actively concealed and failed to disclose this defect to plaintiff and class members at the time of their purchase or lease of the class vehicles and thereafter,” the complaint states.

Further, the lawsuit contends that the affected Camry models’ HVAC system contains one or more design or manufacturing defect that causes the emissions of the bad odors from the mold. The plaintiffs allege that exposure to mold and its related smells is “extremely dangerous” and can lead to sickness, nasal stuffiness, eye irritation, wheezing and other health problems. Well, if it smells bad, it can’t be good for you, right?

The mold emanating from the HVAC system in the 2012 Toyota Camry vehicles allegedly grows on a part known as the evaporator, which is located inside the car dashboard. When cold refrigerant passes into the evaporator, it absorbs heat from the air in the passenger compartment and collects moisture from condensation, which creates a favorable growing condition for mold, the complaint claims.

When a consumer complains of the mold build-up in his or her Camry, Toyota “merely replaces” the defective HVAC components with the very same components, and doesn’t repair the defect, in violation of warranty, according to the lawsuit.

According to the plaintiffs, Toyota knew, or should have known, about the defect as early as 1997. However, the automaker “actively concealed” the defect and didn’t inform consumers.

Further, the complaint states that Toyota had “already offered” previous model year Camry vehicles that had similar HVAC systems and acknowledged the defects as early as 1997 and as recently as 2009.

The complaint seeks certification of a class of California purchasers of 2012 Camry vehicles.

Who’s really reaping the rewards here? Babies “R” Us, according to a consumer fraud class action lawsuit over allegations its rewards program was misleading and misrepresented what consumers actually receive when purchasing items from the retailer.

Filed by Stacy Tongate, the Babies R Us lawsuit claims that the Endless Earnings program promoted and run by Babies “R” Us offers shoppers up to 10 percent back on registry items purchased. The program, the lawsuit contends , is run in order to attract more customers to use the baby registry services.

According to the complaint, the popular children’s toy store launched the program in April 2014, offering benefits with no limits. However, The company in fact offers five percent of the first $300 spent by consumers. After the first $300, consumers are bumped up to 10 percent, Tongate claims.

The lawsuit is seeking class status for those who made purchases during the Endless Earnings program’s duration.

Top Settlements

JPMorgan Chase has agreed to pony up $950,000 …according to the terms of a preliminary settlement agreement reached in a California labor law class action lawsuit.The lawsuit was filed by the company’s California underwriters who alleged the bank failed to pay overtime and provide proper breaks. No comment.

The proposed agreement potentially ends the three-year-old lawsuit, which was filed by two loan modification underwriters who worked at a Chase location north of San Diego. They alleged the bank was in violation of federal and state labor laws and that they suffered from overwhelming workload requirements. Filed in 2012, by plaintiffs Mary Loeza and Angie Reveles, the suit claims that Chase saddled its underwriters with unrealistic quotas for processing mortgage loan modification applications that they could not achieve without working overtime.

The plaintiffs further claimed that Chase had a strict policy on approval of overtime and would punish employees who worked it without authorization, leaving employees to work off-the-clock and through meal breaks and rest periods to meet the elevated quota, according to the settlement agreement.

“Based on their knowledge of this action, plaintiffs determined that the settlement would constitute the best outcome for class members,” court documents state. “Likewise, Chase concluded that this action should be settled in order to avoid the expense, inconvenience and burden of further legal proceedings, and the uncertainties of trial and appeal.”

The proposed class consists of approximately 838 current and former Chase employees who worked at the bank between December 11, 2008, and the date the judge preliminarily approves the agreement. If certified, the settlement will see each class member receive a share of the settlement funds, fees and expenses are paid.

Hokee Dokee—That’s a wrap folks… Happy Easter! Go celebrate!

Week Adjourned: 3.20.15 – Homejoy, Target, Drywall Pricing

Top Class Action Lawsuits

Uhh…Maybe not Everyone Deserves a Happy Home? You’d think with a name like ”Homejoy Inc”, there’d be a lot of joy to go around. Well, maybe for the customer and business owners, but maybe not so much for the workers. The company is facing two potential employment class action lawsuits, alleging the company is in violation of California labor laws.

The house-cleaning business allegedly fails to pay its workers minimum wage or overtime, denies workers legally mandated breaks and requires house cleaners to incur their own business-related expenses, among other infractions, according to one lawsuit. Specifically, the lawsuit claims Homejoy misclassifies its workers as “cleaning professionals”–as independent contractors–rather than employees.

Additionally, the lawsuits allege Homejoy workers must wear a shirt with the Homejoy logo on it while servicing homes and can be subject to “performance improvement plans” if their ratings are too low. The complaints further claim that “cleaners are an integral part of Homejoy’s business of providing cleaning services, among other services, to its customers.”

The plaintiffs are seeking damages in the amount of unpaid overtime compensation, unpaid minimum-wage compensation, unpaid reimbursed business expenses, one hour of additional pay for each workday completed without meal breaks and another hour of compensation for each work day without rest breaks” all with interest. The Private Attorneys General Act action seeks civil penalties and attorney fees. Go get’em!

Top Settlements

Heads up all Target Customers: A $10 million settlement has been reached in the Target data breach class action lawsuit. If approved, the settlement will resolve multidistrict litigation (MDL) resulting from one of the largest data breaches to date, affecting as many as 110 million Target customers.

The data breach occurred late in 2013—one of many data breaches we’ve been reporting on recently—and compromised customers’ personal information including bank and debit card information. The settlement motion requests certification of a nationwide class of an estimated 110 million consumers whose credit or debit card information or other personal information was compromised following the breach.

If you ever needed a reason to keep your paperwork—this would be it. Under the terms of the proposed settlement, affected Target customers who can document their losses will be eligible for up to $10,000 in damages. For those who cannot produce documentation, a payment will be made from the remainder of the settlement fund, once outstanding costs are deducted. The remaining balance will be divided equally.

Additionally, the agreement stipulates that Target makes a greater effort to safeguard its customer data, which would include appointing a high-level executive as chief information security officer and maintaining a written information security program, as well as a process to monitor for information security events and to respond to any such events determined to present a threat.

Well, the proof is in the doing… we can only wait and see.

Sheetrock Settlement. A $55 million settlement has been reached in an antitrust multi-district litigation (MDL) alleging price-fixing among companies that make gypsum board, commonly called drywall, sheetrock or plasterboard. While that might seem like a lot for drywall—it’s reportedly a $5 billion dollar a year industry in the US.

Preliminary approval was granted by US District Senior Judge Michael Maylson of the Eastern District of Pennsylvania. He has been overseeing the case since consolidation two years ago.

The defendant TIN has agreed to pay $5.25 million to settle claims from direct purchasers of drywall and $1.75 million to settle with indirect purchasers. Similarly, USG has agreed to pay $39.25 million to settle with the direct purchasers and $8.75 million to settle with indirect purchasers. The action isn’t quite over yet—as several defendants still need to settle.

Judge Baylson has also certified several classes of plaintiffs for the explicit purpose of facilitating the settlement and without having any effect on the still-ongoing litigation.

According to the complaint, the defendants account for more than 99 percent of drywall sold in North America. They are USG, National Gypsum, CertainTeed, Georgia-Pacific, American Gypsum, Lafarge, Temple-Inland (TIN) and PABCO. Well, if it wasn’t price-fixing it was certainly one hell of a coincidence.

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

Week Adjourned: 12.12.14 – SeaWorld, CA Temp Workers, Nissan

The week’s top class action lawsuits and settlements. Top stories for the week include SeaWorld, California Temp Workers and Nissan.

Top Class Action Lawsuits

Is SeaWorld EZPay not EZ to get out of? Jason Herman, Florida believes so. He filed a consumer fraud class action lawsuit against SeaWorld Parks & Entertainment in Florida this week, alleging the marine park automatically renewed annual passes without consumers’ consent and didn’t follow the terms as stipulated in its own contract when confronted by consumers who allege they were charged excessively. Nice. Know this song…

The SeaWorld lawsuit claims Herman, a Florida resident, purchased a one-year adult EZPay to SeaWorld in Orlando and Busch Gardens in Tampa. He anticipated his first payment of $35.40 on March 18, 2013 would be followed by 11 additional monthly charges of the same amount. However, payments continued to be charged to his credit card through to September 18, he alleges.

According to the proposed class action, Herman was later told by a SeaWorld customer service representative that the wording on the contract stated that if a pass was not paid for in less than 12 months, it would renew automatically on a month-to-month basis. Herman contends that this wording was not included in confirming emails, receipts, tickets or passes, and that his request for a refund was declined.

The lawsuit claims that two separate telephone conversations with SeaWorld customer service representatives failed to provide access to a contract with that wording. Herman found the information online at a later date.

The lawsuit further contends that despite SeaWorld’s allegedly hidden contract, the company was not authorized to automatically renew the passes. In Herman’s case, he purchased his pass on March 18, 2013, and the 11th subsequent payment was charged to his credit card on February 18, 2014 – fully paying off the cost of the annual pass in 11 months.

The lawsuit seeks to represent a class of SeaWorld customers from Florida, Texas, Virginia and California who continued to be charged for their EZpay passes after fully paying for them in less than 12 months.

California Temp Workers Getting Temporary Paperwork? According to a California woman, the temporary employment agency Career Strategies Temporary Inc., (CST), she worked for is in violation of California labor law and she’s filed a class action lawsuit against CST as a result. She alleges CST intentionally failed to provide her and at least 1,000 others with accurate wage statements. That’s handy. The only thing worse than having to do paperwork is not having the paperwork to do the paperwork with, if you follow…

Heads up—the temp worker lawsuit seeks to represent a class of CST workers who were employed in California at any time from November 1, 2013, through the present and who were similarly deprived of accurate wage statements.

So, the allegations, specifically, are that CST violated California state labor law by issuing weekly wage statements that did not include the dates of the associated pay period. “Plaintiff and each class member suffered and suffer injuries as a result of the missing pay period because a reasonable person could not promptly and easily determine the pay period from the wage statement alone without reference to other documents or information,” the complaint states.

According to the employment class action, if an employer knowingly and intentionally fails to accurately itemize a wage statement, an employee can recover the greater of actual damages or statutory fines of $50 for the first violation and $100 for each subsequent violation up to $4,000.

Offering temporary and direct-hire staffing services, California-based CST has offices in seven states. It employed Bengel as a temporary employee “during the applicable statutory period,” during which time Bengal was paid on a weekly basis, according to the complaint. Wonder if anything else will come out of the woodwork on this one…

Top Settlements

Nissan Settlement puts the Brakes on…a defective automotive class action lawsuit it’s facing. Under the terms of the deal, Nissan North America Inc.will pay vehicle owners up to $800 each. If you’re confused as to exactly which defective automotive class action this settlement is for—cast your mind back—to a lawsuit that alleged the braking system in certain Nissan trucks and SUVs is prone to sudden failure, increasing the risk for injury and death.

The lawsuit was originally filed in April 2011 by Brandon and Erin Banks. It alleged the defective sensor posed a serious safety threat to consumers because it controls critical safety aspects of braking and was prone to failure. The defect caused drivers to be suddenly unable to stop their vehicles within a reasonably safe time and distance, or at all.

The complaint states the automaker knew about the defect but hid it from consumers “to [Nissan’s] significant financial gain.”

So to get to the deal, the proposed Nissan settlement terms would see current and former owners of approximately 350,000 2004-2008 Nissan Titans, Armadas and Infiniti QX56 vehicles in the US be able to file claims seeking reimbursement for out-of-pocket expenses they incurred in replacing or repairing a defective delta stroke sensor, which is a component of the faulty braking system.

According to court documents, the plaintiffs asked the court to certify a proposed nationwide class of consumers who own or formerly owned the affected vehicles and were forced to replace the faulty sensor. Plaintiffs with personal injury claims relating to the affected vehicles are excluded from the class.

Nissan will begin reimbursement at $20 for vehicle owners who had in excess of 120,000 miles at the time of the repair. Reimbursement will go up to $800 for vehicles that had less than 48,000 miles at the time of repair.

According to the settlement motions, Nissan will distribute notices to the class members via direct mail and to addresses obtained through Nissan or public records utilizing vehicle identification numbers, the motion says. Class members will be directed to a website and a toll-free number maintained by the settlement administrator that will provide information concerning the settlement, including, if requested, a copy of the long form notice.

The case is Banks et al v. Nissan North America, Inc. et al, case number 4:11-cv-02022, in the U.S. District Court for the Northern District of California.

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

Week Adjourned: 9.5.14 – Allstate, Radiology Bills, BofA Phone Calls

The week’s top class action lawsuits and settlements. Top stories include Allstate Insurance, Radiology Bills and BofA Phone Calls.

Top Class Action Lawsuits

You’re in good hands with Allstate? Maybe not so much if you’re a claims adjuster. This week the Insurance giant got a surprise. It’s green lights a go-go for a long-standing unpaid overtime class action against, involving 800 Allstate employees in California who allege Allstate had a practice or unofficial policy of requiring its claim adjusters to work unpaid off the-the-clock overtime in violation of California labor law.

The Allstate lawsuit was brought by casualty adjuster Jack Jimenez in 2010, on behalf of any claims adjuster working for the insurer in the state of California since September 29, 2006. The complaint alleges that Allstate’s managers are required to stay within an annual budget that includes overtime compensation, and that the performance evaluations and bonuses paid to managers are dependent on how closely they conform to the budget. This would mean that a manager would have a disincentive to approve and report overtime, the class claims.

The class action alleges that Allstate sees repeated requests for overtime as a performance issue to be addressed with individual workers “including “suggestions” on how a claims adjuster can be better trained on efficiency and alternative methods of getting the work done that do not require overtime. Managers would often see workers performing off-the-clock work outside of their scheduled shifts but not inquire if overtime was requested, the workers say.

The plaintiffs contend Allstate’s allegedly illegal conduct has been widespread and consistent. The class action suit alleges that Allstate had not paid overtime to current and former California-based claims adjusters in violation of California Labor Code and had not paid adjusters for missed meal breaks and that Allstate had not timely paid wages upon termination in violation of the California Labor Code. In addition, the lawsuit alleges that Allstate engaged in unfair competition in violation of California Business and Professions Code.

FYI—the case is: Jack Jimenez v. Allstate Insurance Company – CV 10-8486 AHM (FFMx).

How much for that X-Ray? Two Florida women recently filed a class action lawsuit alleges JFK Medical Center and parent company HCA, Inc., are in violation of Florida’s Deceptive and Unfair Practices Act. Specifically the plaintiffs allege they and others like them were billed exorbitant and unreasonable fees for emergency radiological services covered in part by their Florida Personal Injury Protection (PIP) insurance.

Under Florida’s No Fault Car Insurance Law, drivers are required to have $10,000 in PIP insurance, which has a 20 percent out-of-pocket deductible. The complaint, filed in the Thirteenth Judicial Circuit Hillsborough County, charges JFK Medical Center, of Atlantis, Fla., and other Florida HCA facilities with billing PIP patients’ rates for radiological services that are 20 to 65 times higher than the rates charged for similar services to non-PIP patients.

The lawsuit was brought by Marisela Herrera and Luz Sanchez, both of whom were PIP-covered patients who were treated through JFK Medical Center’s emergency department after their automobile accidents in April 2013 and May 2013, respectively. Herrera and Sanchez each received a CT of the brain for $6,404, a CT scan of the spine for $5,900, and a thoracic spine X-ray for $2,222. Herrera also received a lumbar spine X-ray for $3,359.

According to the South Florida Medicare rate, a standard used for customary and reasonable medical service rates, the brain CT scan provided is $163.96; the cervical spine CT scan, $213.14; and the thoracic spine x-ray, with three views, $38.

The complaint charges that because of the exorbitant rates, both Herrera’s and Sanchez’s $10,000 PIP coverage were prematurely exhausted and both were billed thousands of dollars by JFK Medical Center for radiological services not paid for by their PIP insurers.

The complaint also charges breach of contract since both women entered into a “Condition of Admission” contract that provides that patients must pay their accounts at the rates stated in the hospital’s price list. Neither woman was provided a price list at the time of medical treatment.

Plaintiffs are represented by Cohen Milstein Sellers & Toll PLLC, Boldt Law Firm, of Hollywood, FL, and Gonzalez & Cartwright, P.A., of Lake Worth, FL.

Top Settlements

Ah—one ringy dingy—that will be $32 million thank you! That’s right folks—a $32 million settlement has been reached in a Telephone Consumer protection Act (TCPA) class action pending against Bank of America (BofA). The BofA lawsuit claims the bank and FIA Card Services, also a defendant, violated the TCPA when it used automatic telephone dialing systems and/or an artificial or prerecorded voice to contact individuals without obtaining prior express consent from those individuals.

The ruling certifies a class for settlement purposes including all individuals who received allegedly unauthorized automated phone calls from BofA regarding mortgage loan and credit card accounts between 2007 and 2013. The class also includes people who allegedly received unauthorized text messages to their cell phones, between 2009 and 2010. The class is thought to total roughly 7 million members.

The preliminary settlement, if approved, could be an amount the parties claim to be the largest ever obtained in a finalized TCPA settlement, according to an order filed Friday approving the deal.

In addition to the monetary portion of the settlement, Bank of America has improved its servicing systems such that they prevent the calling of a cellphone unless a loan servicing record is systematically coded to reflect the customer’s prior express consent to receive calls via their cell phone.

Ok Folks–time to adjourn for the week. Have a fab weekend—see you at the bar!

Week Adjourned: 6.27.14 – Ford, Caterpillar, Kashi

The week’s top class action lawsuits and settlements. Top stories this week include Ford, Caterpillar and Kashi.

Top Class Action Lawsuits

It was Ford’s turn this week…its turn to face the class action blues…yessiree—they got hit with a consumer fraud lawsuit alleging personal harm from what appears to be a rather serious design defect.

The Ford lawsuit was filed in Florida by Ford Explorer owners and lessors alleging the automaker mislead consumers about the vehicles’ exhaust system that exposes passengers to dangerous levels of carbon monoxide.

Filed by lead plaintiff Angela Sanchez-Knutson, the complaint alleges that when the air conditioning is on in the Ford Motor Co. sport utility vehicle, the exhaust leaks into the passenger cabin of the cars. This poses a health risk to those in the cars and a safety risk to people on the road.

Sanchez-Knutson further claims that she and her daughter suffer from chronic headaches as a result of exposure to dangerous levels of carbon monoxide in her 2013 Ford Explorer. She alleges she took the car to the local dealership for repair numerous times because of a sulfuric smell. However, at no point in time was she informed that the odor actually signified exposure to the gas.

An internal technical service bulletin distributed by Ford to its dealerships showed that the automaker was aware that certain Explorer models’ exhaust systems were leaking into the cabins of the cars when the air conditioning was turned on, the complaint states.

The bulletin provided dealerships with instructions on how handle the smell in the vehicles but did not specify that carbon monoxide was seeping into the cabins or provide any remedies to protect consumers from the risk of exposure, according to the lawsuit.

“Ford knew or should have known that the 2011 through 2013 model year Ford Explorers were dangerous and defective such that drivers and passengers of those vehicles may be exposed to carbon monoxide and other dangerous gases while the vehicles are in operation,” the complaint states.

The complaint alleges Ford violated the vehicles’ express and limited warranties, since the contracts guaranteed that the vehicles were defect-free. All of the affected vehicles are still under warranty with the company, the lawsuit states.

As a result of filing the lawsuit, the National Highway Traffic Safety Administration announced that it is looking into the exhaust allegations. The agency said it was aware of complaints involving the vehicles but that it had not initiated a formal investigation.

The lawsuit seeks to certify a class of all consumers in Florida who purchased or leased the 2011 to 2013 Explorer models. The suit is Sanchez-Knutson v. Ford Motor Company, case number 0:14-cv-61344, in the U.S. District Court for the Southern District of Florida.

Exhausted yet? Wait–there’s more! Caterpillar Inc. also got hit with a class action lawsuit over claims that its heavy-duty on-highway diesel engines, designed to adhere to 2007 U.S. Environmental Protection Agency (EPA) emissions regulations, contain a design defect that requires extensive repairs and replacements. Nice!! This is all sounding so familiar!

The Caterpillar lawsuit alleges Caterpillar’s 2007-2010 model C-13 and C-15 engines have defective exhaust emission controls which make the vehicles unreliable for transportation. Further, despite repeated repairs, they cannot be permanently fixed.

According to the complaint, the engines’ exhaust emission control systems regularly detect warning and shutdown readings from the software used to regulate and monitor certain components, causing the vehicle to require authorized exhaust emission control diagnoses that eventually are unable to rectify the problem.

“This caused plaintiff and class members to incur significant damages in the diminution of the value of their vehicles, but also in the cost of replacing the … engines with other EPA 2007 Emission Standard compliant heavy-duty, on-highway, diesel engines.” the lawsuit states.

K Double D Inc, lead plaintiff in the class action, alleges it purchased a vehicle featuring the 2007 heavy-duty on-highway diesel engine that suffered engine and regeneration problems, which resulted in thousands of dollars in damages to the company.

Further, K Double D claims that despite extensive repair work, the engine experienced repeated instances of warning lights illuminating, engine derating and shutdown, regeneration failure and more, as well as other failures that prevented it from working properly.

“Despite defendant’s numerous attempts to correct the … failures, the … engine exhaust emission controls do not function as required under all operating conditions, and will not do so for the expected life of the vehicle,” the lawsuit states.

The lead plaintiff seeks to represent a class of all vehicle owners and lessees who purchased or leased a vehicle containing the engines. The lawsuit alleges claims of breach of express and implied warranty, negligence, unfair and deceptive acts and more.

The suit is K Double D Inc. v. Caterpillar Inc., case number 1:14-cv-01760, in the U.S. District Court for the District of Colorado.

Top Settlements

Heads up all you California crunchy granolas! A settlement has been reached in a consumer fraud class action lawsuit pending against Kashi Co. According to the terms of the settlement, a fund of $5 million will be established by Kashi, which will resolve claims of false advertising, the grounds for the lawsuit.

Ok—so I think we know the tune here—the Kashi lawsuit, Astiana v. Kashi Co., Case No. 3:11-cv-01967-H-BGS, alleged the food manufacturer misled consumers by claiming that certain of its products are “All Natural” and “Nothing Artificial” even though they contained synthetic ingredients, such as pyridoxine, hydrochloride, calcium pantothenate and/or hexane-processed soy ingredients. Got it?

Class Members of the Kashi class action settlement include California residents who purchased certain Kashi products between August 24, 2007 and May 1, 2014.

Ok–Folks–we’re done here–have a great weekend and we’ll see you at the bar!

Week Adjourned: 6.20.14 – GM, Petco, Best Buy

Top class action lawsuits and settlements for the week! Top stories include GM, Petco and Best Buy

Top Class Action Lawsuits

What’s your GM Vehicle Worth these Days? Less than it was a few months ago—according to a new class action lawsuit filed against General Motors Co., (GM) this week. The GM lawsuit follows the latest round of GM Recalls, alleging the automotive manufacturer’s reputation has been so badly damaged that even vehicles not included in the recalls have depreciated in value. The lawsuit is seeking in excess of $10 billion on behalf of all GM vehicle owners. The recalls allegedly constitute 25 percent more than what would be seen in a normal year, and almost 20 times more than the number or recalls issued during the same period in 2013, the lawsuit claims.

According to the GM lawsuit, GM marketed its vehicles as safe and reliable which mislead consumers into purchasing or leasing their cars, because the company was, at the same time, intentionally concealing known defects and valuing cost-cutting over safety, eventually leading all GM vehicles to depreciate in value due to its now-ruined brand.

“GM enticed … all GM vehicle purchasers to buy vehicles that have now diminished in value as the truth about the GM brand has come out, and a stigma has attached to all GM-branded vehicles,” the lawsuit states.

The lawsuit claims that the forced recalls of over 17 million vehicles has severely damaged the company’s reputation. According to the lawsuit there are about 40 different recalls covering 35 separate defects. All the recalls took place in the first few months of 2014.

“GM’s now highly publicized campaign of deception in connection with the ignition-switch defect sent shockwaves throughout the country, and jump-started the ever-burgeoning erosion of consumer confidence in the GM brand,” the complaint states.

The suit alleges that the 2010 and 2011 Chevrolet Camaro models have both been diminished between February, before the recalls began, and now, depreciating $2,000 in value. Further, the 2009 Pontiac Solstice went down $2,900 in value during that time, according to the lawsuit. According to the complaint, GM’s vehicles have depreciated in value because “no reasonable consumer” will pay the price they would have paid when the GM brand meant “safety and success.”

If certified, the class will represent GM consumers nationwide who own or lease a new or used vehicle sold between July 10, 2009, and April 1, as well as consumers who sold their GM vehicles at a “diminished price” on or after April 1. The class excludes consumers who own or lease certain Chevrolet Cobalt, Chevrolet HHR, Pontiac G5s, Saturn Ions and Saturn Sky vehicles.

The suit also seeks to certify a California subclass of GM vehicle owners and lessors, in addition to those who sold their cars at depreciated value.

The suit is Andrews et al v. General Motors LLC, case number 5:14-cv-1239, in the U.S. District Court for the Central District of California.

PetCode Problems? Heads up…Petco customers—they got zapped with Zip code class action this week. According to the proposed Petco class action lawsuit the animal supplies retailer is in violation of Massachusetts state law through their collection of customers’ zip codes.

According to lead plaintiffs Jeffrey Scolnick and Leah Crohn,Petco would not allow them to complete credit card purchases without their first providing the retailer with their ZIP codes, even though the store is not required by credit card issuers to collect this information from customers. Consequently, the plaintiffs allege they have received unwanted marketing materials from Petco. Further, they allege the store has sold their information to third parties without their consent and for marketing purposes.

“Petco recorded plaintiffs’ ZIP codes into an electronic credit card transaction form,” the complaint states. “Petco continues to store plaintiffs’ personal identification information, including plaintiffs’ name, ZIP code and credit card number, in its databases.”

The lawsuit, entitled, Scolnick et al. v. Petco Animal Supplies Store Inc., case number 1:14-cv-12547, states that Massachusetts’ high court has determined that ZIP codes constitute personal information under the Massachusetts Unfair Trade Practices Act, which prohibits the collection of personal information by retailers. Consumers place a high value on the privacy of their personal identifiable information, the lawsuit states.

The lawsuit seeks to represent all customers from whom Petco requested personally identifiable information when making a credit card purchase in Massachusetts, according to the complaint. The plaintiffs said they do not yet know the potential number of class members.

Top Settlements

Best Buy done for less than Best Practices. Plaintiffs in a Telephone Consumer Protection Act TCPA class action lawsuit against Best Buy have finalized a $4.55 million settlement deal. The lawsuit, with a Washington state class of 439,000 members, and a national class of 42,000 members, was initially filed in April 2010 by Michael Chesbro who alleged Best Buy automatically signed customers up for its Rewards Zone program without their knowledge when they purchased electronics under a payment plan. Best Buy then made unsolicited phone calls to those consumers with information about that program.

According to the terms of the Best Buy settlement, filed June 9 in the U.S. District Court for the Western District of Washington, class members will receive their pro rata share from the settlement fund, once court-awarded fees, litigation and administrative costs and the class representative incentive award have been deducted. This will leave an estimated $3.2 million for distribution among class members, equally between $50 and $100 per call.

Michael Chesbro is to receive a $5,000 service award for services he has rendered to the classes by stepping forward to bring this case, according to the settlement papers.

Ok – Folks – we’re done here – have a great weekend and we’ll see you at the bar!

Week Adjourned: 5.30.14 – Listerine, Daiichi Sankyo, Pradaxa

The week’s top class action lawsuits and settlements including Listerine, Daiichi Sankyo and Pradaxa.

Top Class Action Lawsuits

Listerine Total Care Missing Something? Johnson & Johnson (J&J) and subsidiaries may have to rebuild their advertising campaign if the allegations in this latest consumer fraud class action lawsuit prove true. The lawsuit claims J&J et al falsely label Listerine Total Care products as being capable of restoring tooth enamel despite the “overwhelming consensus” of experts that tooth enamel loss is permanent.

Specifically, the Listerine lawsuit, entitled Suzanna Bowling v. Johnson & Johnson et al., case number 1:14-cv-03727, in the U.S. District Court for the Southern District of New York, claims that J&J, McNeil-PPC Inc., and Johnson & Johnson Healthcare Products label various Listerine products as capable of enamel restoration. Bowling, who filed the lawsuit, states that the misleading claims are “highly material” to consumers and served to differentiate Listerine’s Total Care line from other mouthwash products. Oh yes.

The lawsuit further claims that the Listerine Total Care labeling enabled the defendants to charge a 35.8 percent price premium for Total Care products. “In fact, Listerine Total Care is essentially identical to Listerine Fluoride Defense Anti-cavity Mouthwash,” the complaint, states. “Both products have the same active ingredient, in the same amount, the same indicated uses, the same warnings, the same directions, and the same inactive ingredients. There are only three differences between Listerine Total Care and Listerine Fluoride Defense: the packaging, the color, and the price.” Terrific.

Bowling seeks an order certifying the nationwide class and the New York subclass, an order finding in favor of the plaintiff and an order of restitution, as well as compensatory, statutory and punitive damages, prejudgment interest and injunctive relief.

Pharmasexist? Well…it’s been a while since we’ve heard about this one—a nationwide sex discrimination class action lawsuit against of Daiichi Sankyo Inc. It was certified this week. The collective action is brought by about 1,500 female employees of the pharmaceutical company, who claim they were paid less than their male counterparts for the same work.

The sex discrimination lawsuit was brought in February 2013, by current and former sales workers and are seeking more than $100 million in damages. Named plaintiff Sara Wellens and several other current or former Daiichi sales employees sought collective action certification in March under the Equal Pay Act.

FYI—the case is Sara Wellens et al. v. Daiichi Sankyo Inc., case number 4:13-cv-00581, in the U.S. District Court for the Northern District of California.

Top Settlements

Pradaxa Settlement…Boehringer Ingelheim International GmbH looks set to pony up $650 million, after news a settlement deal has been struck—potentially ending claims in multidistrict litigation that its blood thinner Praxada (dabigatran) caused serious injuries including severe bleeding.

If approved, the Pradaxa settlement will resolve both state and federal personal injury lawsuits. Boehringer said in its statement that it expects the settlement will resolve roughly 4,000 claims over the drug, and noted that the US Food and Drug Administration has reaffirmed the drug’s positive benefit-risk profile.

During the past several years the number of Pradaxa lawsuits has increased, with users alleging they experienced bleeding events and other injuries associated with Pradaxa use. Lawsuits began to be filed in March 2012, according to court records, following the publication of a study in the Archives of Internal Medicine which linked Pradaxa with an increased risk of heart attack compared with other anticoagulants.

Boehringer received FDA approval in October 2010 for Pradaxa, to reduce clotting risks in patients with atrial fibrillation, an irregular heartbeat that causes problems with blood flow, that is not caused by a heart valve problem.

The case is In re: Pradaxa (Dabigatran Etexilate) Products Liability Litigation, case number 3:12-md-02385, in the U.S. District Court for the Southern District of Illinois.

Ok – Folks – we’re done here – have a great weekend and we’ll see you at the bar!

Week Adjourned: 5.24.14 – Google, US Foodservice, Citigroup

The week’s top class action lawsuits and settlements for the week ending May 24, 2014. Top stories include Google, US Foodservice and Citigroup.

Top Class Action Lawsuits

Heads Up Google AdWords Users…Google’s been hit with a national unfair business practices class action lawsuit alleging the god of all things Internet unlawfully denies payments to thousands of website owners and operators who place ads on their sites sold through Google AdWords.

The Google AdWords lawsuit, filed in the U.S. District Court for the Northern District of California, alleges that Google abruptly cancels website owners’ AdSense accounts often without explanation shortly before payments are due, and refuses to pay for the ads that ran prior to the cancelation.

According to the lawsuit, Google’s popular AdSense program translates annually to billions of dollars payable to website operators that host its ads via AdSense. Google’s AdSense advertising program induces website operators to host space for ads on their websites. Each time a visitor to the website interacts with the ad, the ad publisher who hosts the ad earns payment.

The complaint claims that the contracts and terms of service Google requires web publishers to sign are unconscionably one-sided, giving Google free reign to embark on what the lawsuit claims are actions devoid of good faith or fair dealing.

The complaint states, “Given Google’s contractual terms purportedly permitting it to withhold payment to publishers with disabled accounts, and in light of the experience of the plaintiff in seeing this policy actually effected, the total of earned funds that Google has refused to pay its AdSense publishers could be enormous.”

The lawsuit claims Google is in violation of contracts with users and in violation of the implied covenant of good faith and fair dealing, unjust enrichment, and violation of the California Unfair Competition Law.

The named plaintiff, Free Range Content, Inc., is a California corporation that owns and operates Repost.us. Free Range Content first noticed a spike in AdSense earnings in Feb. 2014. At the end of Feb. 2014, Google issued a report stating that the plaintiff’s estimated earnings for the covered period were over $40,000–a number that seemed far too high. Then on March 4, 2014, two days before a scheduled March 6, 2014 call with an AdSense representative was slated to occur, the plaintiff received word from the AdSense program that Google had disabled its account.

The lawsuit seeks damages for all U.S. Google AdSense publishers whose AdSense account was disabled or terminated, and whose last AdSense program payment was withheld permanently by Google.

Top Settlements

Major RICO settlement this week…thought to be among the largest civil Racketeer Influenced and Corrupt Organization Law (RICO) class action settlements in recent history: We’re talking $297 million—a preliminary agreement between plaintiffs in a multidistrict unfair business practices class action against U.S. Foodservice, Inc. and its former parent company, Koninklijke Ahold, N.V. The settlement agreement is pending approval by the United States District Court for the District of Connecticut.

This US Foodservice agreement was reached on behalf of a class of customers, primarily hospitals and restaurants, who purchased products from U.S. Foodservice under cost-plus arrangements between 1998 and 2005.

The class claimed that it was defrauded by U.S. Foodservice when it created six companies that it controlled to inflate the “cost component” of the products that were subject to the arrangement.

Citigroup Employee Shareholder Settlement…Bank employees got screwed too—and this week they got some justice, with the agreement of a $8.5 million settlement ending a securities class action lawsuit pending against Citigroup. The lawsuit, brought by Citigroup employee shareholders, alleged the company concealed its exposure to subprime mortgages prior to its stock price dropping.

The settlement class includes over 7,000 Citigroup employees who acquired securities between November 2006 and June 2009. Yikes! The damage seems endless. Probably is.

Under the terms of the agreement a $2.3 million settlement fund will be established, to include six payments of approximately $50,000 each to the six lead plaintiffs, as an incentive award for their service to the case. The Erisa lawsuit was brought in 2009 by former Citigroup employees who alleged the company prevented employees who had purchased the bank’s stock from obtaining information about subprime losses by means of a series of materially misleading statements and omissions concerning its subprime exposure, overall business outlook and financial results.

The lawsuit was originally filed in California, but was later consolidated into a multidistrict securities litigation against Citigroup through New York.

Ok—Folks—we’re done here—have a great weekend and we’ll see you at the bar!

Week Adjourned: 5.9.14 – CVS, Google, FiveFingers, Medtronic

The week’s top class action lawsuits and settlements. Top stories include CVS, Google, FiveFingersand Medtronic

Top Class Action Lawsuits

Caremark to get healthy over vitamin E advertising claims? That’s right folks, the pharmacy chain is facing a consumer fraud class action lawsuit filed by a customer who alleges the labeling on the pharmacy chain’s vitamin E pills state that they have heart health benefits.

Filed by plaintiff Ronda Kauffman, on behalf a proposed nationwide class of consumers who purchased vitamin E pills from the major pharmacy chain, and subclasses for customers in Rhode Island and New York, the CVS/Caremark complaint alleges that the CVS labels are misleading to customers, making them think the vitamins could reduce the risk of heart disease.

“The overwhelming majority of scientific studies find no ‘heart health’ benefit to taking vitamin E supplements,” the lawsuit states. Hey – what about the placebo effect?

7,600 CVS pharmacies nationwide carried the vitamins, which retail for approximately $8 to $20 per bottle, the lawsuit states. Kaufman alleges she bought vitamin E tablets from a CVS store in New York after reading the label and lost money on the purchase, which she wouldn’t have made if not for the heart health claims.

The CVS lawsuit mentions several studies that allegedly show vitamin E provides no heart health benefits. Further, it cites data from the US Centers for Disease Control and Prevention which show heart disease to be the leading cause of death in the US.

“Defendants have preyed upon these legitimate health concerns by misrepresenting to consumers that its vitamin E products have a ‘heart health’ benefit when they do not,” the complaint states.

The lawsuit claims CVS has violated deceptive business practice laws in New York and Rhode Island.

So, it’s back to eating your veggies.

Do no evil? Isn’t that it? Well, Google Inc. is facing a proposed antitrust class action lawsuit alleging the company is trying to monopolize the search engine feature on Android smartphones and tablets in violation of state and federal antitrust laws.

The Google lawsuit, Feitelson et al v. Google Inc., case number 5:14-cv-02007, in the U.S. District Court for the Northern District of California, claims that Google engages is anticompetitive behavior by allowing Android device manufacturers to preload its popular applications, such as Youtube and Google Maps, only if the companies agree to make Google’s search application the default search engine on their devices. Is that evil—or convenient?

The lawsuit states: “By way of Google’s coercive and exclusionary practice with Android OS device manufacturers … Google restrains and quashes competition for default search engine status before it even can begin. Google’s practice is a pure power play designed to maintain and extend its monopoly in handheld general search.”

Further, the plaintiffs claim that Google’s alleged conduct results in consumers overpaying for certain Android phones and tablets, as the price for the devices may have been lowered if rivals had been given a chance to compete for default search engine status, potentially by paying manufacturers.

“Such payments … would lower the bottom-line cost associated with production of the covered devices, which in turn would lead to lower consumer prices for smartphones and tablets,” the lawsuit states.

The class action seeks to represent all U.S. purchasers of Android phones and tablets made by manufacturers who have entered into an alleged agreements with Google requiring its search engine to be the default search tool on their devices. The suit seeks an injunction on these alleged practices, as well as monetary damages.

Could this end up like Microsoft?

Top Settlements

Can you sue for ugliness, too? Vibram’s set to fork over for false health claims about FiveFingers..Turns out reinventing the wheel may be costly afterall. Vibram, the maker of a glovelike running shoe that purported to have health benefits such as reducing foot injuries and strengthening foot muscles—has agreed to settle a consumer fraud class action lawsuit.

The FiveFingers lawsuit alleges the company’s health claims regarding its FiveFingers running shoes were false and misleading. Specifically, the lawsuit alleged that the claims were“deceptive” and stated “that FiveFingers may increase injury risk as compared to running in conventional running shoes, and even when compared to running barefoot.” The complaint also stated that the company misrepresented research on barefoot running, claiming “there are no well-designed scientific studies that support FiveFingers’ claims.”

Under the terms of the proposed settlement agreement, Vibram would pay $94 per pair of shoes bought. More than two dozen models of Vibram shoes will qualify for refund.

Further, Vibram has agreed to discontinue some aspects of its advertising and marketing campaigns and, in the absence of verifiable scientific evidence, will make no other statements about the health benefits of FiveFingers.

Medtronic, the maker of a spinal bone graft product called Infuse Bone Graft, has said it will pay $22 million to settle about 1,000 lawsuits stemming from claims of adverse health outcomes related to the product and claims that the manufacturer illegally promoted the Medtronic bone product for off-label uses. Medtronic is also reportedly preparing a further $140 million to settle an even larger number of anticipated claims.

Medtronic allegedly encouraged physicians to use its Infuse bone stimulator off-label in the cervical spine, which helped generate sales of more than $3 billion for the manufacturer. As of September of 2008, about 680,000 units of Infuse Bone Grafts had been used in the US, according to Medtronic. According to a report by the Senate committee investigating the product, the company’s undisclosed manipulation of information through the medical literature included overstating its benefits and downplaying concerns about serious complications. According to MedPage Today, during the past 15 years, Medtronic has paid $210 million in royalties and other payments to a group of 13 doctors and two corporations linked to doctors. Many of the lawsuits claim that it was by paying spinal surgeons the company was able to promote the off-label use of Infuse.

According to a press release Medtronic issued Tuesday, the $22 million will resolve the claims of some 950 people. A further 750 cases brought by 1,200 people are pending across the use, and there could be another 2,600 claims yet to be brought.

Ok—Folks—we’re done here—have a great weekend and we’ll see you at the bar!