Settlement - Part 5

Week Adjourned: 12.18.12 – Instagram, Toyota, BP Oil Spill

The weekly wrap of top class action lawsuits and settlements for the week ending December 28, 2012. Top class action stories include Instagram, Toyota and BP Oil Spill.

Top Class Action Lawsuits

Insta-cha-ching? You share your photos for free—and Instagram sells them for a profit? What? You have a problem with that? This week, Instagram got hit with a proposed unfair business practices class action lawsuit related to its recently updated terms of service. Specifically, the lawsuit, filed by California Instagram user Lucy Funes, alleges the company is in breach of contract: “[Instagram’s] unreasonable change of Terms accordingly violated the implied covenant of good faith and fair dealing inherent in Instagram’s current Terms,” the Instagram class action lawsuit states.

Instagram, now owned by Facebook, announced updates to its privacy policy and terms of service the week before Christmas, and one provision stood out: The right apparently reserved by Instagram to sell users’ photos without notice or compensation. Very crafty. Why is it no surprise that Facebook is somehow involved in this?

As a result of rapid and large user backlash, the photo-sharing site denied that it had plans to sell user photos, referring to the upset as a misunderstanding. The new terms of service will go into effect January 16, 2013.

According to the Instagram lawsuit, “On behalf of a class of Instagram’s California customers, Plaintiff is acting to preserve valuable and important property, statutory, and legal rights, through injunctive, declaratory, and equitable relief issued by this Court before such claims are forever barred by adoption of Instagram’s New Terms,” the filing said. “For this reason, even though the New Terms are not yet effective, this case is ‘ripe’ for adjudication.”

Top Settlements

Step On It Already! It’s about time—Toyota Motor Corp has agreed to a $1.1 billion settlement of a pending defective products class action lawsuit.

The Toyota class action lawsuit stemmed from complaints that a flaw in Toyota’s electronic throttle-control system, and not ill-fitting floor mats and sticky accelerator pedals, were to blame for unwanted acceleration of Toyota vehicles, which caused drivers to lose control and crash.

According to the terms of the settlement, as reported by the Wall Street Journal, Toyota will pay $1.1 billion to install new safety equipment and reimburse as many as 16 million customers.

BP’s cost of doing business? A $7.8 billion settlement against BP PLC has been approved by a federal judge, resolving economic and medical claims brought by more than 100,000 businesses and individuals who suffered from the massive BP oil spill in the Gulf of Mexico in April, 2010.

According to the terms of the settlement, approved by US District Judge Carl Barbier, there is no cap on the financial compensation—so the amount could be more or less than the estimated $7.8 billion, with the exception of $2.3 billion put aside to cover seafood-related claims by commercial fishing vessel owners, captains and deckhands.

The explosion of BP’s Macondo well that resulted in the worst oil spill in the history of the US, killed 11 rig workers and released over 200 million gallons of oil, closing much of the Gulf for months to commercial and recreational fishing and shrimping. While much litigation remains, this agreement provides for people and businesses in Louisiana, Mississippi, Alabama and some coastal counties in eastern Texas and western Florida, and in adjacent Gulf waters and bays.

According to a report in the Kansas City Star Judge Barbier said the settlement averts worries that litigation could continue for 15 to 20 years, as it did after the Exxon Valdez and Amoco Cadiz oil spills, creating a secondary disaster for those affected. The Star also notes that no ruling has been made on a medical settlement for cleanup workers and others who say exposure to oil or dispersants made them sick.

Still unresolved are environmental damage claims brought by the federal government and Gulf Coast states against BP and its partners on the Deepwater Horizon drilling rig, and claims against Switzerland-based rig owner Transocean Ltd., and Houston-based cement contractor Halliburton.

A trial is scheduled for next year, to identify the causes of BP’s blowout and assign percentages of fault to the companies involved.

Judge Barbier wrote that lawyers’ fees will not be taken from the settlements: BP has agreed to pay them separately.

I’ll drink to that! And on that note—Happy New Year—here’s to a peaceful and prosperous 2013!

Week Adjourned: 12.21.12 – Green Giant, Hurricane Sandy, Dillard’s Stores

The weekly wrap of top class action lawsuit and settlement news for the week ending December 21 2012. Top stories include Green Giant, Hurricane Sandy insurance claims and Dillard’s department stores.

Top Class Action Lawsuits

Ho-Ho-Ho are Those GMO’s? Nothing fresh about this old chestnut. Yet another in the rash of false labeling and misleading advertising consumer fraud class action lawsuits was filed this week against General Mills’ alleging its Green Giant 100% Natural Valley Fresh Steamers frozen vegetables are not 100% natural as claimed on the product labeling.

Ok. Here’s the dope. Filed by Elizabeh Cox, the Cox v. General Mills Inc., Case No. 12-cv-06377, consumer fraud lawsuit alleges the Valley Fresh Steamers contain genetically modified organisms (GMOs) in the form of corn, soy, corn derivatives and soy derivatives, thereby making the product labeling false or misleading.

In the Green Giant Class lawsuit, Cox claims she bought several of Green Giant 100% Natural Valley Fresh Steamers frozen vegetables in September, including Green Giant 100% Natural Valley Fresh Steamers Roasted Red Potatoes, Green Beans & Rosemary Butter Sauce and Green Giant 100% Natural Valley Fresh Steamers Broccoli, Carrots, Cauliflower & Cheese Sauce. Cox is claiming damages and harm which resulted from the misleading labeling because the product is not what is advertised. Specifically, the lawsuit states, “The harmful impact upon members of the general public who purchased and used the product outweighs any reasons or justifications by defendant for the deceptive labeling and advertising practices employed to sell the product that misleadingly claims to be ‘100% Natural.’”

The Green Giant class action lawsuit is brought on behalf of anyone who purchased Green Giant Valley Fresh Steamers containing corn or soy ingredients from October 22, 2008 through the present. Sign me up!

A Basement is a Basement is a….? You knew it had to happen. And it likely won’t be the only one. This week, a bad faith insurance class action lawsuit was filed against nine insurance companies, including Fidelity, Travelers and State Farm Insurance, over the definition of a basement related to insurance claims filed for damages caused by Hurricane Irene in 2011 and superstorm Sandy in late October. The lawsuit includes claims for Sandy in an effort to avoid improper insurance claim denials similar to those from Irene. Unbelievable.

At the heart of the Hurricane Sandy basement lawsuit is the issue of whether or not ground-floor units have been properly classified as basement units. Here we go. According to the lawsuit, the SFIP defines a basement as “any area of the building, including any sunken room or sunken portion of a room, having its floor below ground level (subgrade) on all sides.” The SFIP offers limited coverage for damages in basements, according to the lawsuit. Patrick Donnelly, from Jersey City, had flood insurance through WYO with New Jersey Re-Insurance Company and had a claim denied after Hurricane Irene because his ground floor was identified as a basement.

Part of the problem is that homeowners have a limited understanding of what a basement is under the terms of their policy. So, you might think you know your ground floor apartment is not basement—or vice-versa—but you don’t. Got that?

No? Well, you’re not alone. The lawsuit will represent everyone in New Jersey insured by the companies named in the lawsuit. Further, the lawsuit contains sub-classes specifically focused on Jersey City and Hoboken property and business owners.

Top Settlements

Dillard’s Disability Woes End in Settlement. Finally—some good news to end the year on! Well almost end the year on. A $2 million settlement has been reached in an employment class action lawsuit pending against department store chain Dillard’s Inc. The Dillard’s class action lawsuit contends that the retailer is in violation of federal disability laws by requiring workers seeking sick leave to disclose private medical conditions.

Dillards is under investigation by the US Equal Employment Opportunity Commission (EEOC) for firing a worker in El Centro in Southern California’s Imperial Count. The worker alleged she was fired in 2006 after refusing to reveal her exact medical problems to a manager who would not accept her doctor’s note when she requested sick leave.

According to a report in the Los Angeles Times, the EEOC alleges that in 2005 Dillard’s implemented a nationwide policy requiring those asking for excused absences for illness to not only give a doctor’s note but also disclose the medical condition they were being treated for. This affected thousands of workers, the EEOC claims, and is in violation of the Americans with Disabilities Act, which is meant to protect workers from being forced to disclose private medical information.

The EEOC has said it also investigated complaints that Dillard’s fired workers for taking more sick leave than the maximum number of days allowed by the retailer, which also violates federal disability discrimination laws.

As part of the settlement, Dillard’s has also agreed to hire a consultant to review and revise its employment policy.

I’ll drink to that! And on that note-Happy Holidays!

Week Adjourned: 12.14.12 – NHL & MBL, Norcold, Asbestos

The weekly wrap of class action lawsuits and settlements for the week ending December 14, 2012. Top stories include NHL, MBL, Norcold and asbestos litigation.

Top Class Action Lawsuits

It’s face-off time! …for the NHL, MBL and broadcasters Comcast and DirecTV. This week, an antitrust class action lawsuit against the National Hockey League and company, got the green light to move forward.

What’s the beef? Well, the plaintiffs allege the defendants have created a monopoly over sports broadcasts that forces consumers to pay high prices to watch games. Brought on behalf of telecast subscribers, the NHL & MBL lawsuit claims the defendants used anti-competitive practices in order to control the broadcasting market, enabling them to charge inflated prices for sports telecasts. Doesn’t sound improbable.

Specifically, the lawsuit, entitled, Laumann et al. v. National Hockey League et al., Case No. 12-cv-01817 states “The defendants have accomplished this elimination of competition by agreeing to divide the live-game video presentation market into exclusive territories, which are protected by anti-competitive blackouts [that don’t allow certain games in certain markets to air].” Be interesting to see who scores in this one!

Own a Norcold refrigerator for your boat or RV? You might be interested to know that some very frustrated brethren in California and Florida have filed a defective products class action lawsuit against the company. The Norcold lawsuit alleges the manufacturers of Norcold brand gas absorption refrigerators, used in RVs and boats, knowingly sold defective refrigerators that posed a serious fire risk but hid that information from the public and federal regulators.

Eligibility? The class action lawsuit seeks relief on behalf of all persons who purchased or owned RVs or boats in California and Florida equipped with three models of Norcold-brand gas absorption refrigerators. The complaint names Norcold, Inc., Thetford Corporation and Dyson-Kissner-Moran Corporation (DKM) as defendants.

The lawsuit alleges that since 1999, Norcold’s refrigerators have caused at least 2,000 fires (2000!) resulting in millions of dollars in property damage, personal injury and death. The refrigerators contain flammable gases under high pressure, including hydrogen. The gases are heated by electricity or propane to circulate and provide the refrigeration effect. Fires are caused when defects in the refrigerator design release the flammable gases, which can then explosively ignite and spread quickly through the refrigerator compartment and into the passenger area of the RV.

The Norcold lawsuit alleges that the companies knew of the potential fire hazard associated with its refrigerators, but rather than eliminate the design and manufacturing defects or provide an adequate warning of the potential safety risks to users of the product they tried to conceal and minimize these dangers through a series of limited manufacturer-initiated product safety recalls through the National Highway Traffic Safety Administration (NHTSA), beginning in 2000.

In each product safety recall, Norcold represented that there was a single failure modality in a limited portion of their product population. They provided a retrofit that would fix that defect, rendering the refrigerators safe to use. But in truth, the lawsuit alleges, the refrigerators had a number of different failures that were common to all of the product lines, information that was never adequately disclosed to NHTSA or users of the product, nor remedied by the retrofit campaigns. Further it’s alleged that the devices provided by the companies to “fix” the defects were not only ineffective to remedy the propensity of the refrigerators to cause fires, but were designed, when triggered, to render the refrigerators inoperable and unrepairable, requiring users to purchase new refrigerators that contained the same design and manufacturing defects as the originals, and which had the same propensity to cause fires.

Top Settlements

Two asbestos settlements …to report this week. The first, involves a 68-year old man who worked as a painter and handyman from the early 1960s until his diagnosis of asbestos mesothelioma. He was been awarded $8,465,738 in settlement of his asbestos lawsuit.

In the lawsuit, the plaintiff alleged his exposure to asbestos resulted from working with asbestos-containing products manufactured and supplied by the defendants, Union Carbide and CalPortland. Specifically, the lawsuit claimed that the joint compound and the plastic cement the plaintiff worked with contained asbestos.

Recently diagnosed with pleural malignant asbestos mesothelioma, the plaintiff subsequently underwent an extrapleural pneumonectomy. He and his wife brought suit against the various defendants alleging that the defendants were negligent in failing to warn of the dangers of asbestos contained in their products or sold to others to place in their products.

At the conclusion of the 37-day trial the jury returned its verdict in favor of the plaintiffs and against the defendants. The jury determined that defendants CalPortland and Union Carbide were responsible.

The second asbestos lawsuit settlement involves the family of a former employee at the GM Powertrain facility in the town of Tonawanda. The husband and father died of asbestos disease, and his family, who brought the GM asbestos lawsuit, were awarded $3 million by the jury hearing the case.

Gerald Suttner, formerly of Tonawanda, worked at the GM facility repairing valves manufactured by Crane Co. The job involved removing asbestos gaskets, which created asbestos dust Suttner would have inhaled. He did this from 1964 to 1979, when he retired.

Diagnosed in October 2010, Mr. Suttner died just one year later, from pleural mesothelioma, a form of cancer that is caused by asbestos. He was 77.

During the trial, lawyers for the Suttner family called expert witnesses who testified that there is no such thing as safe asbestos exposure and assured the jury that Suttner’s exposure is what led to his diagnosis. The dangers of asbestos have been known since the early 1900s, and the lawyers made the case that Crane was aware of these dangers since the 1930s. “But the company continued to use asbestos well into the late 1980s without placing warnings on its products,” the law firm’s statement reads.

And on that note, I’ll see you at the bar.

Week Adjourned: 12.7.12 – Rimmel London, Toys R Us, Facebook

Beauty Blunder! I love this one… A class action lawsuit has been filed alleging that Coty’s Rimmel London Lash Accelerator mascara is misleading to consumers as it falsely claims it enhances eyelash growth. Really? Find this and more in our weekly class action lawsuit wrap, Week Adjourned.

Top Class Action Lawsuits

Beauty Blunder! I love this one… A class action lawsuit has been filed alleging that Coty’s Rimmel London Lash Accelerator mascara is misleading to consumers as it falsely claims it enhances eyelash growth. Really?

Filed in federal court in California, the consumer fraud class action lawsuit, entitled Algarin v. Coty Inc., Case No. 12-cv-2868 JAH JMA, claims Coty deceives consumers by advertising that Rimmel London Lash Accelerator mascara with Grow-Lash Complex lengthens eyelashes by 37 percent within one month, and, with ‘regular use,’ increases their number. (The implications, if this is true, are a little worrying).

This is the latest in a rash of lawsuits aimed at wording/false advertising and generally misleading advertising tactics employed by our captains of industry. What I want to know is how much Rimmel London Lash Accelerator mascara actually ‘accelerated’ Zooey Deschanel’s lashes? And are there unretouched photos somewhere to prove it? Just asking. (Ms. Deschanel, btw, for those who don’t pay much attention to these things, is the Rimmel model for Lash Accelerator).

Back to the lawsuit. Filed by plaintiff Yanira Algarin, the class action states that the mascara does not physically grow or multiply eyelashes and certainly not within the 30-day timeframe advertised. (Have to say I am slightly relieved about that). Instead, the lawsuit states, “As a result of Coty’s deceptive grow lash claim, consumers — including Plaintiff and members of the proposed Class — have purchased a product that does not perform as advertised,” the Rimmel mascara class action lawsuit states. “Moreover, they have paid a price premium for Rimmel Lash Accelerator over other mascaras sold by Coty and its competitors that do not claim to physically grow or multiply eyelashes in 30 days.”

The Rimmel mascara lawsuit is seeking $5 million in damages for thousands of consumers who were allegedly mislead into purchasing Rimmel London Lash Accelerator mascara. It is also asking that Coty immediately stop marketing the mascara as having the ability to lengthen and multiply eyelashes and provide refunds to consumers. Sign me up!

Top Settlements

Toys R Us R All Over the News this Week – and not in a good way. News that a $1.1 million settlement was approved by a California judge in a consumer fraud class action lawsuit pending against the toy retailer was reported earlier this week.

Note, this is not a settlement for the Toys R Us bait-and-switch class action lawsuit filed by an angry customer who feels he was duped over the Thanksgiving weekend. That lawsuit alleges Toys “R” US engaged in a bait-and-switch scheme that lured in online shoppers with offers of valuable free gifts but turned out be small or non-existent, and it is alive and well.

The Toys R Us lawsuit that looks as if it may finally be resolved was the one filed by lead plaintiff Laura Maybaum in November 2009 and is entitled Laura Maybaum v. Toys “R” Us Inc., et al., Case No. BC466115.

In it, Maybaum alleged customers who purchased products that offered free gift cards, buy-one-get-one 50 percent-off discounts or other benefits, received less money than the full purchase price on returns. This was in directly violation of a California law, the lawsuit states, which prohibits retailers from giving less than full cash or credit refunds unless a more restrictive policy has been put in place.

Under the Toys “R” Us consumer fraud class action settlement, Class Members will receive a voucher for $10 off a purchase of $50 or more. Class Members include all California consumers who purchased products from Toys “R” Us stores since January 1, 2008 that qualified for a promotion and subsequently returned one or more items. One down. One to go. So far.

If it’s on Facebook – it Must be True… Right? Well, the news is preliminary approval of a $20 million consumer fraud class action lawsuit pending against Facebook was granted this week. The settlement seeks to resolve allegations that Facebook used its ‘users’ names, photos and identities to advertise products on the social network, without those ‘users’ permission. Remember this one?

The Facebook lawsuit, entitled Angel Fraley, et al. v. Facebook, Inc., Case No. 11-cv-1726, alleges the advertising program violated users’ right to privacy by publicizing their “likes” without asking for permission or offering compensation.

Facebook has agreed to pay $20 million to settle the class action lawsuit, which will be split amongst charities, attorneys and the 125 million US Facebook users who appeared in Sponsored Stories without their consent. If approved, class members may be eligible to receive up to $10 each.

As part of the settlement, Facebook has also agreed that users will be allowed to exclude themselves from the advertising program.

And on that note—I’ll see you at the bar—as planning for the “deck the halls” thing. Have a great weekend!

Week Adjourned: 11.30.12 – Toys R Us, Generic Lipitor, Lucky Brand Jeans

Ploys R Us? Toy retail giant Toys R Us, Inc, got hit with a potential consumer fraud class action lawsuit by an angry customer who feels he was duped over the Thanksgiving weekend. Essentially, the lawsuit alleges engaged in a Toys R Us bait-and-switch scheme that lured in online shoppers with offers of valuable free gifts that turned out be small or non-existent.

Top Class Action Lawsuits

Ploys R Us? Toy retail giant Toys R Us, Inc, got hit with a potential consumer fraud class action lawsuit by an angry customer who feels he was duped over the Thanksgiving weekend. Essentially, the lawsuit alleges engaged in a Toys R Us bait-and-switch scheme that lured in online shoppers with offers of valuable free gifts that turned out be small or non-existent.

Naughty, naughty!

The backstory: William Probert, (who filed the lawsuit), claims he was lured to the Toys R Us website to purchase four Lego building sets, worth $62 and $112 each, based on an ad promising he would receive $15 Lego building set as a free gift with purchase. Instead, Probert was offered a $5 Christmas tree figurine and a $5 magnet.

The short version on the allegations: that Toys R Us used misleading sales tactics which included promising customers free gifts like a $15 Barbie clothing outfit when they purchased a $75 Barbie Doll. However, most shoppers received much cheaper incentive gifts because the company either stocked an “exceedingly limited” number of the advertised free gifts or had no intention of giving expensive gifts.

Specifically, the Toys R Us lawsuit states, “Under this business model, consumers almost always receive a ‘free gift’ of substantially lesser value than what was advertised and which served as the basis of the bargain, or no ‘free gift’ whatsoever.” And, “This business practice, thus, constitutes a modern ‘bait and switch’ scheme. Toys R Us does not honor its promises to provide the promised free gift, and indeed never intended to honor its promises.”

Statin Trouble. Heads up anyone taking Atorvastatin (generic Lipitor) manufactured and sold by Ranbaxy Pharmaceuticals. A consumer fraud class action lawsuit has been filed in the United States District Court, District of New Jersey on behalf of a class of all purchasers of certain bottles of Atorvastatin (generic Lipitor) that were manufactured and sold by Ranbaxy Pharmaceuticals, Inc. (Read more on the generic Lipitor class action lawsuit here.)

In case you missed it—which was easily done by the way—the pharmaceutical company recently conducted a limited, voluntary recall of Atorvastatin calcium tablets, (generic Lipitor). The retail-only recall concerns its 10mg, 20mg and 40mg dosage strengths, packaged in 90’s and 500 count bottles and only with respect to certain select lot numbers. Ranbaxy admitted that the product contained glass particles.

The lawsuit alleges that the defendants manufactured and sold a dangerous and defective product, violated consumer fraud laws, and otherwise acted improperly with respect to the tainted Atorvastatin. For example, when Ranbaxy learned that their product was tainted, Ranbaxy conducted a recall but it was only at the retail level. The recall by Ranbaxy did not include a notice to consumers who purchased the tainted product as to what they should do with the tainted product or what they should do if they ingested it. The limited recall also did not include a notice to consumers or retail pharmacies about how the consumers could obtain a refund of the money paid for the product. In fact, Ranbaxy has not offered a refund to consumers.

The class action seeks a total product recall, with notice to consumers about the tainted product. The lawsuit also seeks a refund of the money paid for the product. Hey Ho!

Top Settlements

Lucky Brand Jeans—Not So Lucky? Possibly not. A federal judge has preliminarily approved a $9.9 million settlement of a class action lawsuit filed against Lucky Brand Dungarees, Inc. and its marketing subcontractors. The Lucky Brand lawsuit alleged the clothing company was in violation of the Telephone Consumer Protection Act (TCPA) because it sent unsolicited text spam as part of a 2008 back-to-school promotion.

The lawsuit, entitled Robles v. Lucky Brand Dungarees, Inc., Case No. 10-cv-4846, was filed by Juvenal Robles in October 2010, who represents an estimated 216,000 class members, all of whom may be eligible to receive up to $100 per claimant if the settlement receives final court approval.

The lawsuit claimed that Lucky Brand sent unsolicited spam texts to thousands of customers’ cellphones. Those messages offered $25 off Lucky jeans or offering store location services to consumers that responded with their ZIP codes.

According to the lawsuit, the Federal Telephone Consumer Protection Act (TCPA) prohibits companies from contacting people on their mobile phones by using an “automatic telephone dialing system” or using “an artificial or prerecorded voice” without their prior express consent. Some courts have even applied the TCPA to unsolicited text messages, or “text spam.”

Eligible class members include consumers that received the Lucky Brand text spam between August 24 and September 15, 2008. Further details on the preliminary settlement have not been made public.

And on that note—I’ll see you at the bar. Have a great weekend!

Week Adjourned: 11.16.12 – Time Warner, Iraq War Vets, Wal-Mart

The weekly wrap of top class action lawsuits and settlements, for the week ending November 16, 2012. Top class action news includes Time Warner, Iraq War Vets, and Wal-Mart workers comp.

Top Class Action Lawsuits

License to Steal? Depends how you define the term “Steal” – if Time Warner has its way, it will be defined as a “modem lease fee.” Not surprisingly, this seemingly minor addition to the monthly fees their customers already face is being challenged in not one but two consumer fraud class action lawsuits. The allegations involve said modem “lease” fees, and the way in which the company announced the new fees. As many as 15 million customers could be affected by the lawsuits.

In the Time Warner class action papers filed in New York and New Jersey courts, customers contend that the $3.95 fee is illegal because it’s not included in existing customer agreements, the company did not give mandatory 30-day notice and it notified customers with a “paltry postcard.”

Furthermore, while Time Warner told its customers that they could buy their own modems, it stipulated that customers could only use approved devices—all of which are the more expensive Motorola models.

“It’s just a scam to increase revenue,” said Steven Wittels, one of the lawyers representing the plaintiffs. The fee took effect October 15, and is projected to raise $40 million a month and more than $500 million a year in revenue for Time Warner, which is currently valued at around $19.7 billion. ChaChing!

Time Warner contends it was going to use the funds to improve its infrastructure and service. That’s a lot of infrastructure!

The suits were brought on behalf of Manhattan resident Kathleen McNally and Fort Lee resident Natalie Lenett as well as all customers in the 29 states where Time Warner operates.

Top Settlements

Iraq War Toxic Exposure Settlement. 12 soldiers who became ill after serving in the Iraq war have been awarded an $85 million settlement in their personal injury lawsuit against American military contractor Kellogg Brown and Root (KBR).

In their lawsuit, the first concerning soldiers’ exposure to a toxin at a water plant in southern Iraq, the servicemen allege that KBR was negligent. Specifically, they claim that as a result of exposure to sodium dichromate, they now suffer from respiratory diseases. Furthermore, they are deeply concerned that a carcinogen the toxin contains, hexavalent chromium, could cause cancer later in life.

Each of the dozen Army National Guardsman involved in the lawsuit was awarded $850,000 in non-economic damages and another $6.25 million in punitive damages for “reckless and outrageous indifference” to their health.

Another lawsuit from Oregon Guardsmen is on hold while until trial is completed. Additional, similar lawsuits are also pending in Texas involving soldiers from Texas, Indiana and West Virginia.

KBR was the engineering and construction arm of Halliburton during the Iraq war. Halliburton and KBR split in April 2007.

Wal-Mart Injured Workers Settlement. Wal-Mart’s back in our weekly wrap–can you guess what for? Yes—it’s employment related. Final approval of an $8 million settlement has been granted by a federal judge, ending a workers compensation class action lawsuit brought by injured Wal-Mart employees in Colorado against the retailer and its service providers. The workers compensation lawsuit was brought in March 2009. The plaintiffs alleged the retailer, Claims Management Inc (CMI) and Concentra Health Services hindered medical providers from making independent judgements on how to treat injured workers.

Under the terms of the Wal-Mart settlement, Wal-Mart Stores and its adjuster, CMI, must pay $4 million, while Concentra in Colorado, through its insurer, will pay another $4 million. Further, each injured Colorado Walmart worker who was treated at a Concentra facility will receive $520, while those treated at other facilities will receive $50.

The settlement also stipulates that Wal-Mart and CMI provide training to adjustors who will handle future worker compensations claims in the state. And, Concentra must also provide periodic training to its marketing and sales force regarding state laws that prohibit outside interference in how care is provided.

And on that note…I’ll see you at the bar–martinis are chilling! Have a great weekend!

Week Adjourned: 11.9.12 – Hyundai, Kia, 7Up, MoneyGram

The weekly wrap of top class action lawsuits and settlements for the week ending November 9, 2012. Top lawsuits include Hyundai/Kia Motors, Snapple’s 7Up soft drink and MoneyGram scams.

Top Class Action Lawsuits

Less is More: Less truth + Less miles per gallon than advertised = More fraud. At least that’s the math on the consumer fraud class-action lawsuit filed against Hyundai Motor America, Kia Motors America and Kia Motor Company of Korea. The class action was filed after regulators announced the companies overstated the fuel economy for many vehicles they sold in the United States. Now there’s a surprise.

Hyundai Motor Corporation admitted it overstated the fuel-economy estimates after independent tests by the Environmental Protection Agency (EPA) showed a discrepancy. Busted!

The Hyundai/Kia fuel economy class action lawsuit, filed in the U.S. District Court for the District of Central California, seeks to represent all consumers who own or lease Hyundai and Kia vehicles whose EPA fuel economy ratings were less than the fuel economy rating produced by the applicable federal test in that model’s year.

According to published reports, Hyundai will lower fuel-consumption estimates on most Hyundai and Kia models produced in 2012 and 2013. It will reportedly lower estimates by as much as five miles-per-gallon for its Kia Soul Eco, and by one or two miles-per-gallon for most other models.

The automaker apologized to consumers, according to published reports, and blamed the issue on what the South Korean company called “procedural errors” in its testing, which was done by a Korean lab.

The lawsuit was filed for a Seattle woman who purchased a 2012 Hyundai Accent; an Arizona man who purchased a Hyundai Genesis sedan; an Arizona woman who purchased a Hyundai Genesis sedan; and an Illinois man who purchased a 2012 Kia Sorento, all relying on the fuel-economy numbers provided by the car manufacturer.

The lawsuit contends that Hyundai, owned by Hyundai Motor Company of Korea (KSE:005380.KS), and Kia Motors America, owned jointly by Hyundai Motor Company and Kia Motor Company of Korea (KSE:000270.KS), violated California’s Unfair Competition Law, its false advertising law and its consumer legal remedy act. The lawsuit also claims that Hyundai committed a breach of express warranty, and committed fraud and negligent misrepresentation under California Common Law, among other violations.

What’s Up 7UP? A consumer fraud class action lawsuit was filed against Dr Pepper Snapple Group Inc., the maker of 7UP, over allegations the company misleads consumers about the health benefits of an antioxidant used in some varieties of some of the 7UP soft drinks. Antioxidants in soft drinks? What time did you say the tooth fairy was coming?

According to report by the Center for Science in the Public Interest, an advocacy group for food safety and nutrition, Dr Pepper Snapple Group’s advertising and packaging suggest that the 7Up beverages contain antioxidants from blackberries, cherries, cranberries, pomegranates and raspberries, rather than added Vitamin E.

According to the National Cancer Institute, antioxidants help protect cells from damage caused by free radicals, which are unstable molecules associated with cancer.

Thursday’s lawsuit, entitled Green v. Dr Pepper Snapple Group Inc., was filed US District Court, Central District of California, No.12-09567. It seeks class-action status on behalf of purchasers nationwide of the products, a variety of financial damages, and a halt to the alleged misleading advertising.

David Green, a resident of Sherman Oaks, California, and the named plaintiff in the class action lawsuit, alleges he would not have bought the soft drinks had he known their antioxidants did not come from fruit.

7UP Cherry Antioxidant was launched in 2009, and is also available as a diet drink. Other products include 7UP Mixed Berry Antioxidant and Diet 7UP Mixed Berry Antioxidant.

Top Settlements

MoneyGram Scam Busted. This is quite incredible. The money transfer company MoneyGram has agreed to forfeit $100 million and has admitted to wire fraud settling one of the biggest money laundering cases ever brought by the Justice Department.

According to documents filed on Friday, November 9, 2012, MoneyGram admitted that it failed to maintain an effective anti-money laundering program. The scams involved MoneyGram agents tricking customers into wiring money to the agents, who posed as relatives promising large cash prizes. MoneyGram reportedly knew about this, and the victims of the fraud–numbering in the thousands–complained to MoneyGram. However, the company took no action to stop it, instead they processed the transactions for those agents.

Customers reported fraud that added up to at least $100 million, the Justice Department said, and the money from the settlement will be used to compensate the victims. I should hope so.

And on that note- I’ll see you at the bar—time for some real antioxidants! Have a great weekend!

Week Adjourned: 11.2.12 – OTC Medicine, Bayer Aspirin, Burger King

This week’s wrap of top class action lawsuit news includes OTC Medicine expiration dates, Bayer Aspirin, and Burger King discrimination–the top class actions for the week ending November 2, 2012.

Top Class Action Lawsuits

What’s in an Expiration Date? According to three separate consumer fraud class action lawsuits filed this week, a whole lot of questionable motivation.

Filed against Pfizer (which makes Advil), Bayer (which makes Bayer aspirin) and Johnson & Johnson (which makes Tylenol Cold Multi-Symptom medications), the drug expiration date lawsuits allege the drug makers use “unconscionable, unfair, deceptive, unethical and illegal” means to promote the sales of their products. Specifically, the lawsuits claim that the these means involve the utilization of expiration dates to get consumers to throw away products that have passed their expiration dates, even though the companies know “that if stored properly these medications can and do remain chemically stable, safe and effective long after those dates.”

According to the consumer fraud lawsuits, studies by the Food and Drug Administration, Harvard Medical School, and Johns Hopkins University have found 90% of more than 100 prescription and over-the-counter drugs were fine and could be used for as much as 15 years after their expiration dates: this excludes certain drugs like tetracycline, nitroglycerin, insulin, and liquid antibiotics.

The lawsuit claims that the purpose of the expiration dates is “[T]o increase defendants’ sales and profits because consumers have to purchase replacement medications for those they have thrown out.” The class is seeking actual and punitive damages for consumers that purchased products from Pfizer, Bayer and Johnson & Johnson.

Top Settlements

And Speaking of Drug Marketing… A $15 million settlement has been reached in the consumer fraud class action against Bayer regarding allegations of false advertising around certain combination aspirin products that were sold without FDA approval.

The lawsuit, entitled In re: Bayer Corp. Combination Aspirin Products Marketing & Sales Practices Litigation, alleges Bayer violated state consumer fraud and deceptive business practices acts, express and implied warranty statutes, and unjust enrichment laws in connection with the sale and marketing of Bayer Women’s Low-Dose Aspirin plus Calcium and Bayer Aspirin with Heart Advantage.

If you purchased Bayer® Women’s Low Dose Aspirin + Calcium or Bayer® Aspirin with Heart Advantage, you may be a member of the Bayer Heart Advantage Class or the Bayer Women’s Class (collectively referred to as the “Settlement Classes”) – and thus eligible to receive money from the settlement – depending on (1) which Combination Aspirin Product you purchased, (2) whether you purchased it for personal, family or household uses, and (3) when it was purchased. Each Settlement Class only includes purchases of specific Combination Aspirin Products during specific periods of time.

If you purchased one or more of the Combination Aspirin Products for personal, family or household uses then you are eligible to participate in one or both of the Settlement Classes described in this Notice, provided that your purchase occurred during the time periods specified for each Settlement Class.

Class Members of the Bayer combination aspirin class action settlement include US consumers who purchased one or more of the following combination aspirin products for personal, family or household use during the following time period:

Bayer Aspirin with Heart Advantage Settlement Class: Purchase Date: January 1, 2008 to July 20, 2012

Bayer Women’s Low-Dose Aspirin plus Calcium Settlement Class: Purchase Date: January 1, 2000 to July 20, 2012

To learn more about making a claim and to download forms go to the Bayer Combination Aspirin Class Action Lawsuit Settlement at BayerCombinationAspirinSettlement.com.

Convenience Food not so Convenient… A proposed settlement has been reached in a discrimination class action lawsuit pending against Burger King. The lawsuit, brought by individuals who use wheelchairs and scooters for mobility, allege that they encountered access problems at certain California Burger King leased restaurants.

Specifically, the Burger King class action lawsuit alleges individuals who use wheelchairs and scooters for mobility have been subjected to discrimination at the restaurants that allegedly contain unlawful architectural barriers to access. The Burger King ADA lawsuit sought to remove the alleged barriers, and monetary damages for Class Members denied access to restaurants on or after October 16, 2006.

The proposed settlement terms includes a total of $19 million for monetary relief, which will provide an estimated average recovery per class member of over $8,200, after deductions for attorney’s fees and costs.

Burger King Corporation and the restaurant operators deny they did anything wrong. The parties have reached a settlement of this case. It is now up to the Court approve the proposed settlement.

To find out more and to obtain claim forms for the Burger King wheelchair class action, call 1-888-569-9477.

And on that note—I’ll see you at the bar. Have a great weekend!

Week Adjourned: 10.26.12 – Avon, Nurses & Aides, LoJack, Morgan Keegan

The weekly wrap on top class action lawsuits and settlements for the week of October 26, 2012. Highlights include Avon’s Anew line, Maxim Healthcare worker unpaid overtime, LoJack wage and hour settlement and Morgan Keegan proposed securities fraud settlement.

Top Class Action Lawsuits

Company for Women? Not for this woman—and many others sure to be in her ‘class’. Avon Inc., the cosmetics company of door-to-door fame, is facing a potential consumer fraud class action lawsuit over anti-aging claims of its Anew skin care line. The Avon Anew class action includes such would-be miracle creams as Anew Clinical Advanced Wrinkle Corrector, Anew Reversalist Night Renewal Cream, Anew Reversalist Renewal Serum and Anew Clinical Thermafirm Face Lifting Cream products.

And the woman who’s at the lead of all this? That would be Lorena Trujillo, the lead plaintiff in the lawsuit, who alleges Avon earned “handsome profits” by misleading consumers into believing Anew anti-aging products can boost collagen production, recreate fresh skin and fortify damaged tissue, offering “at-home answers” to “procedures found in a dermatologist’s office.” Tall order, for sure, but hey—who wouldn’t want to believe it?

Earlier this month, the Food and Drug Administration (FDA) issued a warning to Avon regarding these anti-aging products, indicating that they have been misrepresented to consumers. In the warning, the FDA demanded that Avon revise certain advertising claims about the products, including the suggestion that they can change the structure or function of the body (hello, collagen production?) which would classify them as drugs under FDA regulations and require FDA approval. Therefore, Avon’s Anew anti-aging products “are not generally recognized among qualified experts as safe and effective,” the FDA said.

The Avon Anew class action lawsuit seeks to represent all U.S. consumers who purchased Anew Clinical Advanced Wrinkle Corrector, Anew Reversalist Night Renewal Cream, Anew Reversalist Renewal Serum and Anew Clinical Thermafirm Face Lifting Cream products based on Avon’s allegedly misleading advertising claims about these products.

The Lawsuit is Lorena Trujillo v. Avon Products, Inc., Case No. 12-9084, California Central District Court. Trujillo is represented by the law firm Baron & Budd.

Unpaid Overtime in Overtime Already! An overtime class action lawsuit has been filed against Maxim Healthcare Services Inc, by Jasmine Lawrence, who was employed as a Home Health Aide by the defendant until October 2012.

In the Maxim Healthcare class action lawsuit, Lawrence alleges that Maxim Healthcare Services Inc, violated, and continues to violate, the Ohio Minimum Fair Wage Standards Act (OMFWSA) because of its willful failure to compensate her and the class members at a rate not less than one and one-half times the regular rate of pay for work performed in excess of 40 hours in a workweek. Lawrence claims she regularly worked over 70 hours per week while employed by Maxim Healthcare and the majority of her time was spent performing general housekeeping duties as opposed to patient care.

Lawrence also alleges that she and the members of the putative class who are employed by the Defendant in Ohio are “employees” within the meaning of the OMFWSA.

Lawrence, the lead plaintiff in the employment class action, seeks to bring her claim for violation of the Fair labor Standards Act (FLSA) as a nation-wide collective action, and as a statewide class action based for violation of the OMFWSA.

Maxim Healthcare Services, Inc, is a Maryland corporation which, through hundreds of office locations nationwide, provides in-home personal care, management and/or treatment of a variety of conditions by nurses, therapists, medical social workers, and home health aides. Lawrence and the class are represented by Ben Stewart of Stewart Law PLLC.

Top Settlements

Time to Pay Up–Finally. LoJack agreed a class action settlement agreement this week, ending, hopefully, two California wage-and-hour class action lawsuits. The LoJack settlement, which is subject to final approval, stipulates that LoJack will pay up to $8.1 million, including plaintiffs’ attorneys’ potential fees and costs, to resolve all remaining California state class action claims.

As previously disclosed, in the related California federal wage-and-hour case, the Company paid the class action plaintiffs $115,000 in 2011 to settle the federal claims. During 2011, the Company also recorded a $1.1 million accrual with respect to plaintiffs’ attorneys’ fee application in the federal case. In early August 2012, the federal court awarded plaintiffs’ attorneys’ fees and costs of $900,518 related to those claims. Although the Company filed a notice of appeal with respect to the attorneys’ fee award in the federal case, the Company has agreed to waive that appeal as part of this settlement.

The LoJack settlement agreement involves no admission of wrongdoing, liability or violation of the law by the Company. In addition, the agreement bars the named plaintiffs in the California state class action from pursuing further claims against the Company.

The Company expects the Court to issue a decision shortly regarding preliminary approval of the proposed settlement. Should the Court grant preliminary approval, California class members would be sent a notice of the settlement and given the opportunity to decide whether to participate. LoJack could pay less than $8.1 million in settlement of the state court case depending on the level of participation by class members in the settlement. Following the notice period, the parties may move for final approval of the settlement. LoJack anticipates that the Court would be in a position to rule on final approval of the proposed settlement by the first or second quarter of 2013. LoJack does not anticipate paying any portion of the settlement of the California state case until the Court has granted final approval.

And this Round’s on Them! Morgan Keegan & Co. Inc. has agreed to pay $62 million as part of a preliminary settlement of a securities class action involving more than 10,000 nationwide clients. The Commercial Appeal has reported the terms of the settlement won’t force the investment firm to admit any wrongdoing resulting from the 2008 meltdown of its mutual funds. Of course. Accidents happen…we all know that.

The lead plaintiff in this class action lawsuit is a Texas hedge fund which claimed a $2.1 million investment in Morgan Keegan’s closed-end mutual funds.

The Morgan Keegan settlement remains to be approved by a federal judge, and if approved, will leave one more class action outstanding against the investment firm, this one related to conventional mutual funds.

And on that note—I’ll see you at the bar. Have a great weekend!

Week Adjourned: 10.19.12 – Healthcare Workers, Madden NFL, Chantix

The weekly wrap on top class action lawsuits and settlements for the week ending October 19, 2012. This week’s top stories include Healthcare workers at Maxim Healthcare, Electronic Arts and NFL Madden games and the first Chantix settlement.

Top Class Action Lawsuits

Overworked and Underpaid on Overtime. An overtime class action lawsuit has been filed against Maxim Healthcare Services Inc, by Jas

mine Lawrence, who was employed as a Home Health Aide by the defendant until October 2012.

In the unpaid overtime lawsuit, Lawrence alleges that Maxim Healthcare Services Inc, violated, and continues to violate, the Ohio Minimum Fair Wage Standards Act (OMFWSA) because of its willful failure to compensate her and the class members at a rate not less than one and one-half times the regular rate of pay for work performed in excess of 40 hours in a workweek. Lawrence claims she regularly worked over 70 hours per week while employed by Maxim Healthcare and the majority of her time was spent performing general housekeeping duties as opposed to patient care.

Lawrence also alleges that she and the members of the putative class who are employed by the Defendant in Ohio are “employees” within the meaning of the OMFWSA.

Lawrence, the lead plaintiff in the employment class action, seeks to bring her claim for violation of the Fair labor Standards Act (FLSA) as a nation-wide collective action, and as a statewide class action based for violation of the OMFWSA.

Top Settlements

And it’s a Touchdown! The Plaintiffs score a proposed $27 million settlement that’s been reached in a class action lawsuit pending against Electronic Arts. The Electronic Arts settlement, if approved, will apply to anyone who purchased a new copy of an EA Madden NFL, NCAA Football or Arena Football video game between 2005 and 2012 and is an eligible class member.

The backstory—in case you missed it—The Electronic Arts video game antitrust lawsuit was filed in 2008 entitled Pecover v. Electronic Arts, Inc., and alleged that EA violated antitrust and consumer protection lawsuits by holding exclusive license agreements with the NFL, NCAA and AFL to market branded football software. The lawsuit further alleged that the arrangement shut out competitors, enabling EA to charge 70 percent more for “Madden NFL.”

And the skinny on the proposed deal: Class Members of the EA football game class action settlement include all U.S. consumers who bought a new copy of an Electronic Arts’ Madden NFL, NCAA Football, or Arena Football video game for Xbox, Xbox 360, PlayStation 2, PlayStation 3, GameCube, PC, or Wii, with a release date of January 1, 2005 to June 21, 2012.

If approved by the court at the February 7, 2013 Final Fairness Hearing, Settlement Class Members who submit timely and valid claim forms will receive the following CASH benefits:

If you are an eligible Settlement Class Member, your share of the net proceeds of the Settlement will be based upon the number of video game titles you purchased new, as well as the number of Settlement Class Members who submit valid claims.

Valid claims for the purchase of Madden NFL, NCAA Football, or Arena Football video games for the Xbox, PlayStation 2, PC, or GameCube platforms (“Sixth Generation Purchasers”) will be valued at $6.79 per new game purchased, up to a total of eight units ($54.32).

Valid claims for the purchase of Madden NFL, NCAA Football, or Arena Football video games for the Xbox 360, PlayStation 3, or Wii platforms (“Seventh Generation Purchasers”) will be valued at $1.95 per new game purchased, up to a total of eight units ($15.60).

The only way to receive cash benefits from the EA antitrust settlement is to submit a Claim Form either online at EASportsLitigation.com or postmarked no later than March 5, 2013.

Let’s hope this settlement levels the playing field…

Here’s a Bittersweet Ending… A settlement has been reached in a lawsuit against Pfizer and its anti-smoking drug Chantix. The Pfizer Chantix settlement, the details of which remain confidential, was reached just prior to the case going to trial.

The lawsuit was brought by the widow of Mark Alan Whitely, from Minnesota, who allegedly killed himself in November 2007 as a result of taking the controversial drug. The lawsuit alleged that Pfizer failed to sufficiently warn that Chantix could increase the risk of suicide.

FYI—in July 2009, the FDA announced an update to Chantix (known generically as varenicline) warnings, alerting patients to the risk of serious mental health events linked to use of the smoking cessation drug. Pfizer, maker of Chantix, was required to put a Boxed Warning on the Chantix label, highlighting the risk of depressed mood, hostility and suicidal thoughts when using the medication. When the FDA made its announcement in 2009, it had received 98 crude reports of completed suicide associated with Chantix (a crude report means the FDA had not examined each report in depth to ensure there were no duplicates). It had a further 188 crude reports of suicide attempts.

The Whitely lawsuit is reportedly the first of some 2,500 Chantix cases that have been combined in a multidistrict litigation (MDL) in Alabama for pretrial evidence-gathering and the first trials.

The consolidated cases are In re Chantix (Varenicline) Products Liability Litigation MDL 2092, 09-cv-2039 U.S. District Court, Northern District of Alabama (Florence). The consolidated cases are In re Chantix (Varenicline) Products Liability Litigation MDL 2092, 09-cv-2039 U.S. District Court, Northern District of Alabama (Florence).

And on that note—I’ll see you at the bar. Have a great weekend!