Settlement - Part 4

Week Adjourned: 3.15.13 – Timeshares, Asbestos, AT&T

The weekly wrap on top class action lawsuits and settlements for the week ending March 15, 2013. Top class action stories include timeshares, AT&T and another large asbestos settlement.

Top Class Action Lawsuits

Owners call “Time Out” on Timeshare! Owners are calling out Celebration World Resort’s Timeshare deceptive practices. Yep—a deceptive practices class action lawsuit has been filed on behalf of timeshare owners at Festiva’s Orlando Resort, formerly known as Celebration World Resort, alleging that the resort’s developers and managers have engaged in unfair and deceptive practices in the sale of timeshare upgrades and reservation point allocation.

The resort timeshare class action lawsuit, Reeves, et al. v. Zealandia Holding Company Inc., et al., cause no. 13-CA-866-MF, was filed March 1 in the 9th Judicial Circuit Court of Florida, in Osceola County.

Here’s the skinny: According to the class action lawsuit, beginning in 2004, approximately 900 parties purchased timeshare interests in Celebration World Resort Owners Association, located in Kissimmee, FL, from B.L. Vacation Ownership Inc. Between 2008 and 2011, representatives of B.L. Vacation Ownership sold upgrades to existing timeshare owners that would increase the number of points they had to apply to timeshare reservations.

After the homeowners purchased the upgrades, B.L. Vacations sold the resort to Festiva Hospitality Group, now known as Zealandia Holding Co., and the resort’s name was changed to Festiva’s Orlando Resort. After the sale, the lawsuit alleges, the reservation point system was changed and the upgrades that had been purchased by the timeshare owners were not honored. Nice.

The lawsuit names the Orlando Homeowners Association, B.L. Vacation Ownership Inc., Zealandia Holding Co. and its subsidiary and affiliate companies, and RCI LLC as defendants. The suit alleges that one or more of the defendants:

Violated the resort’s declaration of covenants by improperly reallocating reservation points

Violated the resort’s declaration of covenants for failing to give proper notice of the reallocation

Breached the fiduciary duty owed to the timeshare owners

Violated Section 721.18(5) of Florida’s timeshare law

So—be interesting to see how this is resolved…

Top Settlements

Another Big Asbestos Settlement this week. A construction worker who, is not named, and who developed a highly aggressive cancer after his exposure to asbestos, has resolved his lawsuit against the defendant companies for $7.5 million prior to trial. The plaintiff brought suit against several of the companies that manufactured the materials. The defendants severally denied liability.

Heads up all you construction workers out there: In the 1970s and 1980s, the plaintiff was a construction worker helping install underground water and sewer lines beneath the Sacramento Valley city of Chico. His job involved working with pipes made from a concrete-asbestos compound, which he would cut with a gasoline-powered saw. The cutting generated an enormous amount of cement-asbestos dust, which left the plaintiff covered head to toe by the end of the day. The plaintiff was later diagnosed with pleural mesothelioma, an aggressive form of cancer, also rare except where attributable to asbestos exposure.

The plaintiff filed suit in the Superior Court of Los Angeles County, seeking damages on a defective product liability action. The plaintiff sought recovery of medical expenses, lost wages, and non-economic recovery. The defendants named were several companies who manufactured, sold or delivered the asbestos-containing pipes the plaintiff worked with, including Parex USA, Westburne Supply, John K. Bice Co., Los Angeles Rubber, Hajoca Corp., Hanson Permanente Cement, Keenan, Properties, J-M Manufacturing, Certainteed Corp., Ferguson Enterprises, Grinnell Corp., Amcord, Ameron International and Calportland.

One Ringy Dingy—for anyone out there who received pre-recorded messages from AT&T: There is a proposed Settlement in a class action pending in the US District Court for the Western District of Washington. The class action lawsuit concerns the alleged failure by AT&T Corp. to comply with the law in its delivery of a pre-recorded telephone message between July 30, 2008, and May 29, 2012.

If you received the pre-recorded message during that time you may be eligible to receive a payment from the AT&T class action Settlement.

This lawsuit alleges that AT&T Corp. did not comply with the Telephone Consumer Protection Act (“TCPA”) and the Washington Automatic Dialing and Announcing Devices Act (“WADAD”) in its program to deliver the following pre-recorded message (the “Calling Program”) between July 30, 2008, and May 29, 2012:

“Hi this is AT&T calling with an important message regarding your recent long distance calling. This call is to alert you that someone in your household recently made one or more international calls which will appear on your next AT&T bill at a non-discounted rate. Thank you for using AT&T. Our number is 800-235-9920.”

No judgment has been made, and AT&T Corp. has not agreed with the allegations or admitted any wrongdoing, but the parties have agreed to resolve the lawsuit with a Settlement that would provide payment to Class Members.

Class Members in the Settlement are:

All persons within the United States who between July 30, 2008, and May 29, 2012 received a telephone call pursuant to the Calling Program who had not selected AT&T Corp. as their presubscribed long distance carrier at the time of the call, plus all California residents who received a call under the Calling Program and were on AT&T’s internal do-not-call list at the time they received the call.

If you are a member of the Settlement Class and received a pre-recorded message as identified above, you may be eligible to receive (a) a cash sum of $135 if you were NOT a resident of the State of Washington at the time you received the pre-recorded message, or (b) a cash sum of $270 if you were a resident of the State of Washington at the time you received the pre-recorded message.

The Court will determine whether to approve the Settlement at a Fairness Hearing scheduled to take place on March 8, 2013.

Ok—that’s a wrap. See you at the bar. Happy weekend everyone!

Week Adjourned: 3.8.13 – ADT, Hertz, Asbestos

ADT hit with early termination fee class action lawsuit to top our weekly wrap of class action lawsuits and settlements. Other big stories involve Hertz and alleged overcharging on sales tax and a major asbestos settlement.

Top Class Action Lawsuits

ADT Billing Practices Setting Off Alarms…Oh yes, my friends. This week an unfair business practices class action lawsuit was filed in the United States District Court for the Central District of California against ADT, LLC d/b/a ADT Security Services (“ADT”) on behalf of all consumers who purchased ADT home monitoring services. That’s a lot of folks, I’m betting.

The proposed class consists of two groups of consumers: (1) all current or former consumer subscribers of ADT who have been charged an early termination fee or are subject to being charged an early termination fee (also called an Early Termination Fee or Early Cancellation Fee, collectively “ETF”, and comprising the “ETF class”); and (2) all current or former consumer subscribers of ADT whose rates were increased or are subject to increase by ADT without prior notice while in the initial contract period or during subsequent contractual extensions.

This ADT class action is intended to redress ADT’s wrongful practice of imposing early termination fees, the lynchpin of ADT’s “never let them go” strategy. Early termination fees are unlawful penalties used simply as an anti-competitive device and do not compensate ADT for any true costs of breach. These penalties, which are unilaterally imposed by ADT “even when ADT fails to perform the services promised” also violate the consumer protection statutes of California and Illinois and similar laws nationwide.

The early termination penalty is extracted under circumstances which cannot be justified, when ADT has failed to perform the very services that form the basis of ADT’s obligation. The penalty is also extracted from customers who contracted with ADT to simply monitor a system that was previously installed, requiring no equipment to be installed and resulting in a windfall to ADT upon termination. By charging the early termination fee ADT gets paid for years of monitoring without doing any monitoring to earn those fees.

In addition, Plaintiffs seek redress for ADT’s pattern of unilaterally increasing alarm monitoring fees while consumers are under contract for lesser fees. These increases are implemented without adequate prior notice and without providing the appropriate and required disclosures necessary to ensure that customers consent to these increases in advance. ADT relies on small boilerplate text neither signed nor highlighted for customers to claim its “right” to unilaterally increase fees.

In addition, California residents who received restitution as a result of a settlement of similar charges against ADT made by the Contra Costa District Attorney’s Office, may still be entitled to recovery under this lawsuit.

Taxing Situation at the Car Rental…And while we’re on the subject—which happens to be the most popular category on LawyersandSettlements.com—consumer fraud—a class action lawsuit was filed against Hertz Rent-A-Car this week by customers who allege the car rental company overcharges on sales tax. Really?

Specifically, the Hertz class action lawsuit, entitled Frederick Cohen et al v. The Hertz Corporation, et al., Case No. 13-cv-01205, U.S. District Court for the Southern District of New York, claims Hertz is in violation of New York state law, as well as other states, by charging sales tax on a pre-discount rental cost, that is charging tax before customer coupons and discounts are applied. Filed by Senior Partner Alan S. Ripka, of the national law firm of Napoli Bern Ripka Shkolnik, the lawsuit contends that, if true, this allegedly unlawful practice may have cost Hertz’s customers millions of dollars.

“New York and other states have passed legislation and regulations disallowing this predatory behavior and to protect the public from this unscrupulous business practice that attempts to overcharge customers under the veil of the tax code,” the plaintiff’s lawyers said in a statement about the proposed class action lawsuit. The consumer fraud class action lawsuit names The Hertz Corporation, Hertz Global Holdings, Inc. and Hertz Investors Inc, as defendants.

The lawsuit seeks Hertz’s compliance with these laws and regulations and the return of all improperly charged costs and fees to Class Members.

Top Class Action Settlements

$35 Million Asbestos Verdict. On March 1st, a $35 million verdict was returned in an asbestos personal injury lawsuit brought by Ivo John Peraica, an asbestos removal worker who died in December from cancer caused by asbestos. The New York Supreme Court jury that heard Peraica’s case returned its verdict Friday, awarding the multi-million dollar settlement to the Croatian-born worker.

Peraica, of Queens, worked for eight years for New York-area contractors removing asbestos insulation from boilers, pumps, and other equipment. He died from complications related to mesothelioma, a cancer whose only known cause is exposure to toxic asbestos fibers.

The asbestos lawsuit claimed that Peraica’s disease was caused by years of inhaling the asbestos dust stirred up each time he stripped asbestos insulation from the equipment at his jobsites—equipment which, according to testimony, was devoid of any warnings about the dangers of asbestos.

The sole defendant at the time of the verdict—industrial products manufacturer Crane Co.—argued that other companies and even Peraica himself were responsible for his exposure to asbestos, but the jury ultimately heaped blame on the Stamford, CT-based company, saying it had acted with reckless disregard for consumers’ safety.

Peraica, a Local 12 Heat and Frost Insulators union member, worked removing asbestos for almost a decade: from the week he moved his family to New York from Croatia in 1978 until he stopped doing asbestos removal work in 1986. Peraica’s widow, Milica, survives him, as do three daughters, one of whom testified at trial to her father’s pain and suffering.

Peraica was unable to testify in person, but before he died on December 28, provided four days’ worth of deposition testimony that was read into evidence.

Ok—that’s a wrap. See you at the bar.

Week Adjourned: 3.1.13 – Walmart, Budweiser, Apple

The week’s top class action lawsuits and settlements. This week’s highlights include Wal-Mart, Budweiser and Apple.

Top Class Action Lawsuits

If at first you don’t succeed, try, try, try again…Good advice, we hope, for the women who have just filed a regional gender discrimination class action lawsuit against Wal-Mart.

Now, to be clear, Wal-Mart is not unfamiliar with the allegations, as a national gender discrimination and employment class action was filed against the world’s largest retailer only to be dismissed in 2011 by the US Supreme Court. Had that class action gone through, the class of plaintiffs would likely have been in the hundreds of thousands. But it didn’t. So—now, acting on the advice from the Supreme Court, women are filing discrimination class actions by state. The one filed this week is the fifth such regional lawsuit.

Filed in Wisconsin by one current and four former employees, the class action, entitled Ladik et al. v. Wal-Mart Stores Inc., Case No. 13-cv-00123, U.S. District Court for the Western District of Wisconsin, alleges that female employees are discriminated against when it comes to receiving compensation and promotions. The Wisconsin gender discrimination class action lawsuit is seeking to represent female workers employed by Wal-Mart since December 1998.

I’ll show my gender bias and wish them every success!

Hey Bud—this one’s for you! Oh heck yes. This week saw Anheuser Busch, the brewer of the self-proclaimed King of Beers—Budweiser —get hit with several consumer fraud class action lawsuits alleging that it waters down its Budweiser, Michelob and other top-selling beers. Tsk,Tsk. Do not go messing with people’s alcohol content gentlemen.

Filed in Pennsylvania, California and other states, the Budweiser lawsuits allege that consumers have been sold beer that contains less alcohol than advertised on the labels.

Specifically, the complaints allege that Anheuser Busch employs some of the most sophisticated process control technology in the world to precisely monitor the alcohol content at the final stages of production, and then adds additional water to produce beers with significantly lower alcohol content than is represented on the product labels, and depriving consumers of the value they paid for.

The lawsuits are based on information provided by former employees at the company’s 13 US breweries, some in high-level plant positions, according to lead lawyer Josh Boxer (MSN.com). “Our information comes from former employees at Anheuser-Busch, who have informed us that as a matter of corporate practice, all of their products mentioned (in the lawsuit) are watered down,” Boxer told MSN.com “It’s a simple cost-saving measure, and it’s very significant.”

The complaint alleges: “There are no impediments—economic, practical or legal—to AB accurately labeling its products to reflect their true alcohol content. Nevertheless, AB uniformly misrepresents and overstates that content.”

Nina Giampaoli who filed the California-based lawsuit, said “I think it’s wrong for huge corporations to lie to their loyal customers—I really feel cheated. No matter what the product is, people should be able to rely on the information companies put on their labels.”

I’ll drink to that!

Top Settlements

Nothin’ like a kid in an Apple—er, candy—store. This one is for all you parents out there who woke up on morning to find your credit card balance had magically grown—seemingly on its own. But wait—is that the patter of little feet I hear? Could it be the kids buying in-game extras from the Apple mobile apps store that’s the root of the mystery? You betcha!

And this week, Apple magnanimously agreed to pony up some gift cards, no total value given, by the way, in settlement of the consumer fraud class action it’s facing over what could only be described as unfair business practices.

If the Apple apps settlement is approved, parents would receive $5 iTunes gift cards. Wow—pack up the kids, you’re going on vacation!

Ok—here’s the skinny. The lawsuit is brought by parents who allege their children downloaded free games from the Apple mobile app store and then went on to buy in-game extras—effectively charging the cost of the games to their parents—without their parents’ knowledge. In some cases these charges ran into the hundreds of dollars. Yup.

If approved, Apple would build a website for people who wish to make a claim. As well the tech-giant would send e-mail notifications to some 23 million customers. OK, that ain’t chump change.

According to a report by CNN.com parents whose children incurred larger costs and who want more than $5 gift card, must provide proof that a larger amount was spent by their children during any 45-day period. Those who can show more than $30 in purchases may choose a cash refund instead of an Apple credit. Purchases made until the date of the settlement would be eligible for refunds, CNN.com reported.

Bad Apple! What kind of example does that set?

Ok—See you at the bar and Happy Friday!

Week Adjourned: 2.22.13 – Carnival Cruises, Merrill Lynch, Toyota

Carnival gets sued, Toyota pays up, and Merrill Lynch settles in this week’s edition of Week Adjourned–the weekly wrap of top class action lawsuits and settlements for the week ending February 22, 2013.

Top Class Action Lawsuits

“The Fun Ships?” Fun for who? While everyone jokes about the trip from hell—who hasn’t had a bad holiday experience—this time it really happened. So bring on the lawsuits. Possibly the first class action out the gate was filed against Carnival this week, by Miami based maritime law firm Lipcon, Margulies, Alsina & Winkleman, PA. on behalf of passengers who were onboard the Carnival Triumph.

According to the Carnival class action lawsuit, the conditions Carnival Triumph passengers were subjected to onboard after the vessel was impaled from a fire were hazardous to their health. I would have said that was putting it mildly?

Michael A. Winkleman, an experienced maritime lawyer with the Lipcon firm, discussed the fire onboard the Triumph on a recent interview on Fox Network’s ‘Fox & Friends’, detailing the conditions passengers had to suffer through. Mr. Winkleman also appeared on the network’s ‘America Live with Megyn Kelly’, ‘Justice with Judge Jeanine’ and ‘The O’Reilly Factor’ shows. Lipcon’s Jason R. Margulies was interviewed by CNN regarding the situation.

According to the firm, cruise lines are responsible for the safety of everyone on board, including passengers and crew members, which entails making sure illness and disease don’t spread among those aboard a vessel. When an incident onboard a cruise vessel or a boat accident does take place, whether it is a medical complication resulting from disease, an injury related to a slip and fall, or a passenger going overboard, the line may be found at least partially responsible for any injuries or fatalities.

Apart from the shipboard conditions caused by the cruise ship fire, Lipcon also points out that Carnival’s decision to tow the Triumph to Mobile, instead of the closer port of Progreso, Mexico, caused passengers to endure more time onboard the disabled vessel than was necessary, prolonging their exposure to disease, accidents and trauma.

Attorney Margulies said “an evacuation in Progreso would have allowed Carnival to contain its passengers’ suffering and would have enabled Carnival, from civilization, to systematically coordinate the passengers’ transport back to the United States.” Maritime lawyer Margulies further stated that “If investigations uncover that either the fire itself or the delay in docking may have contributed to any illnesses or injuries onboard the Carnival Triumph, this can be considered a violation of passenger safety.”

Unfortunately, some cruise lines, including Carnival, have stipulations on their ticket contracts that make it difficult for passengers and crewmembers to obtain their rightful benefits, including medical care and money damages. Because Carnival in particular is not a U.S. corporation, Mr. Winkleman explained to Fox News that the line is “not subject to U.S. taxes or labor laws,” a factor which prevents victims from making a full recovery following cruise ship accidents and injuries.

Although Carnival released a statement on its website explaining Triumph passengers will be compensated with a “full refund of the cruise and transportation expenses, a future cruise credit equal to the amount paid for the voyage, reimbursement of all shipboard purchases made during the voyage, with the exception of casino, gift shop and artwork purchases, and further compensation of $500 per person,” Mr. Winkleman said passengers do not have to settle for this meager compensation and that the firm has found sufficient evidence providing grounds for Triumph victims to file a proposed class action lawsuit against Carnival.

My question—what about the crew—conditions would have been just as bad for them—if not worse? Can they sue?

Top Settlements

Merrill Lynch OT Settlement. Former and current Merrill Lynch employees will be celebrating this week, after having an agreement on a $12 million settlement in their unpaid overtime class action. The Merrill Lynch lawsuit was brought by employees who provided support services to brokers, and still has to receive final court approval—but it looks destined for a happy ending.

I would imagine support staff to brokers in banks and financial institutions the world over could relate to claims in this lawsuit. Filed in June 2011, The unpaid overtime class action alleges Merrill Lynch client associates were paid overtime based on an incorrect and low regular rate of pay and that Merrill failed to properly record and account for all overtime hours they worked. Client associates typically handle paperwork for brokers, and some can assist with order entries.

The $12 million fund will provide financial recovery for client associates who worked for Merrill Lynch between 2010 and 2012. The time period is longer for client associates who were employed in California, New York, Maryland and Washington. Maybe the start of a trend—I’m betting the support staff aren’t pulling down seven figure salaries.

Is this Déjà vu? Some 20 million current and former owners of Toyota vehicles may share in a $1 billion settlement of an Toyota Unintended Acceleration class action lawsuit, if the proposed settlement received final court approval.

The Toyota settlement would resolve a series of class action lawsuits, consolidated in 2010 as In Re: Toyota Motor Corp. Unintended Acceleration Marketing, Sales Practices and Products Liability Litigation.

In the consolidated action, plaintiffs claimed that certain Toyota, Scion and Lexus vehicles equipped with electronic throttle control systems (“ETCS”) are defective and can experience acceleration that is unintended by the driver. This alleged defect has resulted in a drop in the value of the vehicles. Consequently, the plaintiffs claim breach of warranties, unjust enrichment, and violations of various state laws.

Short list of must knows?

Eligible members of the class include any person, entity or organization who, at any time before December 28, 2012, owned, purchased, leased and/or insured for residual value one several models of Toyota, Lexus and Scion vehicles.

If you are a 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.
Other settlement benefits.

For complete information on your rights in the Toyota unintended acceleration class action lawsuit settlement, visit: ToyotaELSettlement.com.

Ok—that’s this week done and dusted. See you at the bar and Happy Friday!

Week Adjourned: 2.15.13 – Gender Discrimination, Motrin, Zetia & Vytorin

Motrin, Zetia, Vytorin and gender discrimination are top stories in this week’s Weed Adjorned wrap on top class action lawsuits and settlements for the week ending February 15, 2013.

Top Class Action Lawsuits

Gender discrimination? Sorry—what year is this? Maybe the year Daiichi Sankyo gets nailed for the unlawful practice, if the allegations are true…Allegations made by six current and former female pharmaceutical sales professionals who filed a $100 million class and collective action gender discrimination lawsuit against the Japanese Pharmaceutical company.

Filed in the US District Court for the Northern District of California, these women seek to end pervasive gender discrimination in their workplace on behalf of themselves and a class of several hundred female Daiichi Sankyo sales professionals who have worked for the company in the United States.

The short version, like we don’t know it chapter and verse by now, is that Daiichi Sankyo pays female sales employees less than male employees for doing the same work; promotes or advances female sales employees at a slower rate than male sales employees; treats pregnant employees and working mothers of young children adversely compared to non-pregnant employees, male employees, or non-caregivers; and subjects women to other discriminatory terms and conditions of employment.

According to the Daiichi Sankyo lawsuit, a discrete group of predominantly male Daiichi executives and senior sales managers keep a tight rein on employment decisions, including decisions regarding sales employees’ compensation, advancement, and other terms and conditions of employment. Through this male dominated leadership structure, the Company has approved and implemented policies, practices and decisions that have systemically discriminated against female employees. No, this is not a Mad Men script. This, sadly, is real life.

Just in case there are any doubts as the validity of the allegations, the Plaintiffs cite Daiichi Sankyo’s violations of Title VII of the Civil Rights Act of 1964 and the federal Equal Pay Act of 1963, as well as the California Fair Employment and Housing Act, the California Equal Pay Act and the California Unfair Business Practices Act in today’s Complaint. Umm… 1963—1964 the laws changed and yet we’re still fighting for gender equality in 2013. No comment.

Top Settlements

Major Motrin Award. A landmark award this week—but brace yourself for the backstory. Boston, MA was the scene of a personal injury lawsuit against Johnson & Johnson (J&J) and its subsidiary, McNeil-PPC Inc, that ended this week with the jury awarding $63 million in damages to the Reckis family who brought the lawsuit involving Motrin.

The two pharmaceutical companies were ordered to pay 16-year old Samantha Reckis $50 million in compensatory damages, and her parents $6.5 million each.

What happened? Samantha suffered toxic epidermal necrolysis (TEN), a late stage of Stevens Johnson Syndrome (SJS), as a result of taking Motrin brand ibuprofen. Just seven-years old at the time, Samantha was given Motrin brand ibuprofen by her parents, and shortly thereafter began presenting with symptoms of TEN, which resulted in her losing 90 percent of her skin and her eyesight.

Samantha also suffered brain damage involving her short-term memory, and surgeons had to drill through her skull to relieve some pressure on the brain, the Reckis’ attorney noted. Additionally, Samantha suffered damage to her respiratory system, in which her lungs were burnt, leaving her with only 20 percent lung capacity.

Samantha had taken Motrin previously with no side effects. However, in 2003, the day after Thanksgiving, her parents began giving her the medication to reduce fever. The resulting toxic epidermal necrolysis, which can be fatal, causing inflammation of the mucus membranes and eyes and is marked by a rash that burns off the outer layer of skin, had her physicians puzzled. Samantha suffered inflammation of her throat, mouth, eyes, esophagus, intestinal tract, respiratory system and reproductive system. Her doctors were forced to put her in a medically induced coma.

The family filed the lawsuit in 2007. The trial took five weeks. The Reckis’ claimed that Samantha was blinded by Motrin and alleged that Johnson & Johnson failed to warn consumers that the drug could cause life-threatening reactions. Another positive, in addition to the award, is that while Samantha has to work twice as hard as her fellow classmates, she is in school and is an honor student, demonstrating a remarkable spirit.

Zetia & Vytorin False Statements Settlement. Here’s another record-breaking settlement from the world of pharmaceuticals—this time it’s a securities class action settlement. Actually, make that two securities settlements totaling $688 million. Whoppa! The securities class actions are pending against Merck & Co. Inc. (“Merck”), Schering-Plough Corporation (“Schering”), Merck/Schering-Plough Pharmaceuticals, certain of the Companies’ directors and officers, and the underwriters of a 2007 Schering stock offering over allegations the companies made false and misleading statements about results from a clinical trial called “ENHANCE” involving the anti-cholesterol drugs Zetia and Vytorin.

The actions, currently pending in the US District Court for the District of New Jersey before Judge Dennis M. Cavanaugh, are In re Schering-Plough Corporation/ENHANCE Securities Litigation, Master File No. 08-397, which settled for $473 million; and In re Merck & Co., Inc. Vytorin/Zetia Securities Litigation, Master File No. 08-2177, which settled for $215 million.

The two class actions stem from claims that Merck and Schering (which merged in November 2009) artificially inflated their securities by concealing material information and making false and misleading statements regarding the blockbuster anti-cholesterol drugs Zetia and Vytorin.

Namely, the lead plaintiffs alleged that even though the Defendants knew that a clinical trial of Vytorin, called “ENHANCE,” demonstrated that Vytorin (a combination of Zetia and a generic statin medication) was no more effective than the cheaper, generic statin drug at reducing artery thickness, the Companies nonetheless championed the “benefits” of the drugs, attracting billions of dollars of capital in the process. Yielding to public pressure to release the results of the ENHANCE trial, Lead Plaintiffs allege that the companies reluctantly announced that the cholesterol drugs showed “no statistically significant difference” in plaque buildup, and that news of these negative results and their related consequences caused sharp declines in the value of the companies’ securities, resulting in significant losses to investors.

The combined $688 million in settlements is the second largest securities class action settlement in the Third Circuit, among the top 25 securities class action settlements of all time, and among the ten largest recoveries in a securities class action not involving a restatement.

So—the moral of the story? You tell a Whoppa, you pay a Whoppa—quid pro quo baby!

See you at the bar—I know who’s buying…

Week Adjourned: 2.8.13 – Hipster, YoPlus, Ritz-Carlton

Nemo’s coming and your top class action lawsuit & settlement wrap for the week is now live! Latest class action lawsuits for the week ending February 8, 2013 include Hipster, YoPlus and the Ritz-Carlton

Top Class Action Lawsuits

Hipster ain’t so hip after all…at least according to the plaintiffs who have filed an in Internet privacy class action lawsuit against the photo-sharing App. The Hipster lawsuit alleges the company illegally obtained iPhone users’ personal information and contact lists without their permission.

The internet privacy lawsuit, entitled Francisco Espitia v. Hipster Inc., Case No. 13-cv-00432 in the U.S. District Court for the Northern District of California, alleges that a function of the Hipster App found and retrieved subscribers’ personal contacts and other highly sensitive information, including passwords and geo-location, and then transferred the data over unencrypted, publicly accessible data channels to Hipster’s third-party servers. (Maybe they should rename the App “Fetch”).

Specifically, the lawsuit states: “These actions involved the deliberate and intentional circumvention of technical measures within the mobile computing device in order to bypass the technical and code based barriers, including the plaintiffs’ and class members’ privacy settings which were intended to limit access by anyone other than the owner of the device.” Having transferred the users’ contact address data to its remote computing service, Hipster then allegedly proceeded to access and use such data without authorization or consent, according to the lawsuit.

The laundry list? Violations of the Electronic Communications Privacy Act, the Stored Communications Act, the California Computer Crime Law, and the California Invasion of Privacy Act, among other things.

The Hipster lawsuit seeks to represent all US residents that downloaded the Hipster App to their mobile phones from January 1, 2011 to the present.

Very uncool.

Top Settlements

Yo Dude! You may be eligible to share in the YoPlus $8.5 million settlement agreed this week by General Mills. If approved, the settlement would end a consumer fraud class action lawsuit alleging the food manufacturer misrepresented the digestive health benefits of its YoPlus probiotic yogurt. Well, they certainly wouldn’t be the first, and likely, they won’t be the last.

Filed in 2010, the consumer fraud class action lawsuit, entitled J Johnson v. General Mills Inc. et al., Case No. 10-cv-00061, U.S. District Court for the Central District of California, claims that consumers who purchased the YoPlus yogurt products were deceived into paying more for them as a result of General Mills misleading advertising.

In their motion to accept the settlement, the plaintiffs noted “Considering the strengths and weakness of this case, including the amount of potential damages available to the class after trial here and in other jurisdictions around the United States, the settlement represents an excellent result and includes relief for purchasers of YoPlus on a nationwide basis.”

Under the terms of the settlement, consumers who purchased YoPlus will be entitled to $4 per person for each unit they purchased. Not bad, really.

Putting on the Ritz? Em, maybe not. More like this one’s on the Ritz…The Ritz-Carlton that is. This week, the famous hotel chain agreed to pay $2 million in settlement of the Ritz-Carlton overtime class action lawsuit filed by 1,500 (yup—that’s the right number of zeros) current and former employees in California who allege they were not paid overtime wages.

Bottom line—eligible plaintiffs in the California overtime employment class action are for those who either work or worked at Ritz-Carlton hotels in San Francisco, Half Moon Bay and Lake Tahoe at any time from November 2007 on.

And just in case you need the details—the settlement, when approved, will resolve Lambson v. Marriott International, Inc. et al, Case No. 11-cv-06669, U.S. District Court for the Northern District of California, and allegations the Ritz Carlton, a subsidiary of Marriott International, violated California state wage and hour laws.

So—see you at the bar—who’s buying?

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

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

Top Class Action Lawsuits

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

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

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

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

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

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

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

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

Top Settlements

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

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

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

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

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

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

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

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

Top Class Action Lawsuits

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

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

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

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

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

Top Settlements

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Top Class Action Lawsuits

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

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

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

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

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

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

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

Top Settlements

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

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

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

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

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

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

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

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

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

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

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

Top Class Action Lawsuits

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

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

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

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

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

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

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

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

Top Settlements

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

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

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

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