Week Adjourned - Part 37

Week Adjourned: 1.21.11

Top Lawsuits

Dilantin on the Defense. Pfizer, Parke Davis and Warner Lambert are facing a drug-related class action—this time over the alleged development of what can be a fatal skin disease—Stevens Johnson Syndrome (SJS) or Toxic Epidural Necrolysis (TEN)—associated with the use of drugs that contain Dilantin.

The defendants make drugs used to treat epilepsy that contain Dilantin. The plaintiffs claim that it caused them or their deceased relatives to develop SJS/TENS.

Just in case you’re wondering what SJS/TENS is—it is characterized by the discoloration or exfoliation of skin, the shedding of hair and nails, hives or burns to the body, loss of eyesight and/or damage to internal organs, according to the suit. And it turns out that certain racial groups can be more susceptible to SJS/TENs that others.

The suit claims that despite mounting evidence of Dilantin’s risks, especially to different populations, the defendants aggressively marketed their products and failed to report associated severe reactions. The plaintiffs allege they were unaware of how dangerous their prescriptions containing Dilantin could be. One plaintiff was originally prescribed a medication containing Dilantin over 10 years ago, but claims that the statute of limitations has not expired because he was not aware of the source of his injuries until within the last two years.

The list of allegations reads like a rap sheet—strict products liability, negligence, failure to warn, negligence in bringing Dilantin to market, negligent misrepresentation, misrepresentation by omission, negligence per se, fraud and misrepresentation, fraud by concealment, violation of the Illinois Consumer Fraud Act and wrongful death.

Top Settlements

Is the tide finally turning? With BP and the Gulf Oil Spill at front of mind—this possible Continue reading “Week Adjourned: 1.21.11”

Week Adjourned: 1.14.11

Top Lawsuits

Still Bugged by Similac…Remember the Similac recall in September? Well, a class action lawsuit was filed this week over the beetle-laden baby formula.

Plaintiffs, John L. and Jennifer M. O’Neil filed the suit against Abbott Laboratories Inc. (Delaware) and Abbott Laboratories, the makers of Similac baby formula, claiming that the Similac Isomil Sensitive formula they gave their two-month old baby in September made the child sick with diarrhea. So, they wisely switched formulas on the advice of their doctor, and low and behold their infant recovered.

At the end of September, Abbott issued a voluntary recall order after small common beetles were found at its Michigan manufacturing facility. The O’Neils claim that the products were contaminated to such an extent that their baby became ill, and consequently required medical treatment.

Heads-up—the proposed class includes consumers who purchased Similac Advanced, Similac Sensitive and Similac Go and Grow in 2010 and who fed the Similac product to infant children who then subsequently became sickened.

Top Settlements

National City Bank Overdrew on Overdrafts…It looks like 2011 is going to be all about going after financial fraudsters—including banks. This latest settlement of a class action filed against National City Bank is no exception. In fact, it’s a preliminary $12 million settlement brought by Continue reading “Week Adjourned: 1.14.11”

Week Adjourned: 1.7.11

Top Lawsuits

Is New Balance Off-Balance? New Balance, the Boston-based sneaker maker is being sued over allegations of deceptive advertising, specifically, that its toning shoes create more sculpted legs than traditional walking shoes are not accurate.

The complaint, filed on Monday in the US District Court of Boston, is seeking class action status, and $5 million in damages.

The suit was filed by Bistra Pashamova of California, who claims that she and others like her have been harmed by New Balance. New Balance has promoted its toning shoes with claims that the shoes increase muscle activation by about 27 percent and increase calorie burn by as much as 10 percent with each step. Really?

Probably not. Results from a study completed by the American Council on Exercise, released in the summer of 2010, showed that “toning shoes” do not live up to the claims made by their manufacturers. In fact, the report concluded there were “no statistically significant increases in either exercise response or muscle activation as a result of wearing toning sneakers.”

Additionally, reports of injuries have raised concerns that the shoes, which retail for about $100 a pair, could in fact do more harm than good. You think? I have to ask the obvious question—if this is such a great idea—why are our feet designed to keep us balanced?

Top Settlements

Spelter Smelter Helter Skelter. (had to, sorry) Here’s a bit of a whopper—Harrison County, WV circuit judge Thomas A. Bedell, approved a $150 million lawsuit settlement that requires DuPont Co to clean up contamination of the community of Spelter and fund a program to Continue reading “Week Adjourned: 1.7.11”

Week Adjourned: 12.31.10

Top Lawsuits

This lawsuit is a suitable close to a year of lawsuits against big and small banks alike for conduct not befitting a cockroach.

Bank of America (BoA) and BAC Home Loans Servicing are facing a potential class action lawsuit over allegations that they refused to participate in foreclosure prevention programs even though they had accepted $25 billion in financing from the federal government through the Troubled Asset Relief Program (TARP).

Lead plaintiff Susan Fraser claims that by taking the TARP funds, BoA agreed to participate in at least one TARP-authorized program to minimize foreclosures. In April 2007, BoA signed a contract with the US Treasury stating that it would comply with the Home Affordable Modification Program (HAMP) to perform loan modifications and other foreclosure prevention services.

The suit also alleges that the HAMP program requires BoA to identify loans that are subject to modification; collect financial and other personal information from the homeowners to evaluate whether the homeowner is eligible for modification; institute a modified loan with a reduced payment amount as per a mandated formula that is effective for a three-month trial period; and provide a permanently modified loan to those homeowners who comply with the requirements during the trial period.

“Though Bank of America accepted $25 billion in TARP funds and entered into a contract obligating itself to comply with the HAMP directives and to extend loan modifications for the benefit of distressed homeowners, Bank of America has systematically failed to comply with the terms of the HAMP directives and has regularly and repeatedly violated several of its prohibitions,” the complaint states.

Wait—there’s more. The complaint also states, “Bank of America’s delay and obstruction tactics Continue reading “Week Adjourned: 12.31.10”

Week Adjourned: 12.25.10

Top Lawsuits

Fun and Games? Not so much for Electronic Arts (EA). The giant video game producer will face an antitrust class action after all. A federal judge certified a national class action this week that alleges video game consumers overpaid for popular sports titles including Madden NFL.

Specifically, the lawsuit claims that “Delaware-based Electronic Arts violated antitrust and consumer protection laws by holding exclusive license agreements with NFL, NCAA, and Arena Football League. Through these agreements, Electronic Arts developed and published highly coveted sports titles that generated billions of dollars in sales while allegedly restricting competition.”

And we’re not talking peanuts here—according to the lawsuit, the agreements may have inflated the price of some of the titles by as much as 70 percent. Ouch! That hurts.

Want some salt for that wound? Madden NFL is EA’s biggest sports franchise in the United States, and occupies four of the top 10 best selling games in the nation, industry reports claim. So, someone’s laughing all the way to the bank, and their making the trip on your dime.

Top Settlements

Unnecessary Deconstructive Surgery. This is the kind of story you hear about and shake your head—where do you turn when the experts get it wrong? The courts.

A woman who was mistakenly diagnosed with breast cancer and consequently underwent a double mastectomy she didn’t need to have—yes that’s right—had both breasts removed for no reason—has been awarded $198,000 in a settlement approved by the Los Angeles County Board of Supervisors.

Ana Jimenez-Salgado had her diagnosis of breast cancer confirmed by two pathologists who work outside of the Los Angeles County-USC Medical Center, where she had her breasts surgically removed.Both the outside pathologists determined the cells obtained from an August 2007 biopsy were cancerous. Umm.

But when Ms. Jimenez-Salgado went in for reconstructive surgery, the hospital’s pathologists also examined her breast tissue and determined that she did not have breast cancer but rather “a benign condition with features that are very similar to cancerous cells,” county documents state.

So, Ms. Jimenez-Salgado did what anyone would have done having frankly no other recourse, she filed a medical malpractice lawsuit, alleging the hospital was negligent in relying on the interpretation of the outside pathologists. She also claimed the breast reconstruction surgery was negligently performed. Oh boy.

For their part, the county did admit that it failed to review the biopsy specimens, which resulted in the “unnecessary mastectomy”. And, the hospital also agreed to pay Ms. Jimenez-Salgado’s medical bills that were not covered by Medi-Cal, in the amount was $24,756. I suppose the up side of this deeply disturbing situation would be that they didn’t operate on her arms or legs—or vital organs.

Cast your mind back to pretty much any time point in the past 18 months and think of Toyota. Recalls are likely what come to mind. Many recalls. One of those many recalls was over accelerator pedals that could get stuck because of badly fitted floor mats, causing the vehicles to literally take off on the driver. Remember that one? Well, this week Toyota agreed to pay $10 million as settlement of a lawsuit brought by the family of four people who were killed in a car accident involving their runaway Lexus.

The car crash, which took place in 2009, killed 45-year old Mark Saylor, an off-duty California Highway Patrol Officer, his wife, their daughter and Saylor’s brother-in-law. They were killed on a suburban San Diego freeway when their car reached speeds of more than 120 mph, struck a sport utility vehicle, launched off an embankment, rolled several times and burst into flames, the Associated Press reported.

Accident investigators later determined that a wrong-size floor mat trapped the accelerator and caused the crash. And it was this crash that prompted Toyota to recall millions of its vehicles over accelerator pedals becoming trapped by ill-fitting floor mats.

FYI, Toyota’s latest recall was issued December 14. It involves 94,000 Sienna Minivans in the US, 12,000 in Canada and 5,000 in Mexico.

For a complete list of Toyota recalls click here.

Ok – that’s a wrap for this week. Merry Christmas Everyone! And Safe Driving …

Week Adjourned: 12.18.10

Top Lawsuits

Un-Merit-orious Behavior. Well, it just wouldn’t be Christmas without some mention of banks. After all, ’tis the season for the ringing of cash registers, credit and debit cards and overdrafts!’ This week Akron-based FirstMerit Bank is front and center, facing allegations in a recently filed class action that customers in Ohio were charged overdraft fees based “unfair and deceptive overdraft fee practices.”

The lawsuit, filed on behalf of plaintiff Donald Stevens of Crestline, Ohio, contends that such practices violate Ohio law and FirstMerit Bank’s contracts with its customers. According to the suit, FirstMerit engaged in a systematic policy of re-ordering debit card transactions from highest dollar amount to the lowest dollar amount, depleting the customer’s available funds as quickly as possible while maximizing the overdraft fees. Sound familiar?

The suit further states that the bank charged overdraft fees in situations where a customer did not overdraw a checking account and, in addition, failed to disclose or properly disclose its overdraft policies. This resulted in the bank providing misleading account balance information and often charging overdraft fees on top of overdraft fees.

Ho, Ho, Ho! It’s off to court they go!

Top Settlements

Puts the Happy Meal Lawsuit in Perspective… Lorillard Tobacco Co, certainly made an impression this week, when a jury found the company guilty of attempting to entice African American children to become smokers, by giving out free cigarettes. Wouldn’t that also come under the heading of ‘drug dealing?’

The jury hearing the case has awarded $71 million in compensatory damages to the estate of a woman who died of tobacco-related lung cancer, and her son, Willie Evans. The facts, as presented by Mr. Evans, are frightening. In the suit, he claimed that his mother, Marie Evans, was introduced to smoking as a child in the 1950s when Lorillard gave her free Newport cigarettes at the Orchard Park housing project in Boston, where she lived at the time. Apparently, she was just nine years of age when she received her first free cigarettes. Initially, she passed them on to her older sisters or traded them for candy, but by the age of 13 she had begun to smoke. Mr. Evans claimed that as a result, his mother went on to smoke for the next 40 years, until her death from lung cancer at 54. And yes, Marie did try to quit, dozens of times, according to video testimony she made before her death.

Mrs. Evans’ estate was subsequently awarded $50 million in compensatory damages and the jury also awarded her son $21 million. A hearing on punitive damages is set to take place before the end of this year. Lorillard is expected to appeal the decision. No surprise there.

DanActive Don’t. Dannon Co Inc, agreed to a $21 million settlement this week, ending charges brought by federal regulators over claims that its DanActive drink and Activia Yogurt help boost a person’s immune system and relieve irregularity. The charges allege there is not enough evidence to support Dannon’s claims currently stated on the products’ packaging and in their marketing campaigns. Hey—if it sounds too good to be true…

Attorneys General from 39 states brought the case, which is the largest attorney general consumer protection multi-state settlement ever reached with a food producer, MSNBC.com reported.

The two lead states, Oregon and Tennessee, will receive $1.06 million under the agreement and the remainder of the money will be divided among the other states.

Attention Madoff-Watchers: The estate of Jeffrey M. Picower, a philanthropist and investor from Palm Beach, has reached a settlement with the Trustee charged with recovering assets from the Madoff bankruptcy, Irving H. Picard, and the United States attorney for the Southern District, Preet Bharara, that will see a total of $7.2 billion cash made available to compensate the victims of Bernard Madoff’s global ponzi scheme. The announcement comes on the heels of the suicide of 46-year old son Mark Madoff, who hung himself in his New York loft this week.

The terms of the settlement reportedly stipulate that $2.2 billion goes to a federal victims fund to resolve a lawsuit filed last year, and $5 billion will be placed in care with the Trustee.

Picower’s widow said in a statement released to the press on December 17, “I am announcing today that we have reached a settlement with the Trustee and the US Attorney for the Southern District of New York and that we will return every penny received from almost 35 years of investing with Bernard Madoff, an amount totalling $7.2 billion that will go to the Madoff victims’ compensation fund. “

The settlement constituted the largest single forfeiture in American judicial history, Mr. Bharara said.

Mrs. Picower said in her statement that she was confident that her husband had not been involved in the ponzi scheme, calling it ‘deplorable’, and that returning the gains was the right thing to do.

Okee dokee. That’s it for this week. See you at the bar…

Week Adjourned: 12.10.10

Top Lawsuits

Hilton’s in the news this week. This time it’s not Paris who’s behaving badly, but rather the hotel chain that is her family namesake. A former employee of Hilton Worldwide Inc, is suing the company over allegations of unlawful employment practices. No. Really?

Yes. Specifically, the Hilton lawsuit contains facts related to nonpayment of wages, harassment, and sexual favoritism.

In a nutshell, Brian Marcus was employed by Hilton as the Director of Food & Beverages at the Hilton San Diego Bayfront Hotel (“Bayfront”) in San Diego and during his employment, Marcus alleges that he was subjected to harassment and then terminated so that Hilton could avoid having to pay him a bonus that he had already earned. Both of these actions are in violation of California law.

Mr. Marcus alleges that “just over a month before the end of 2009, Hilton terminated Mr. Marcus’s employment and refused to pay him any portion of his bonus for 2009 which he had earned under Hilton’s bonus program. The Complaint alleges that Mr. Marcus’s termination was part of a plan by his supervisor to eliminate him from the hotel so that the supervisor could continue to take additional control without intervention. Hilton created the system by which this supervisor was able to manipulate others for her financial gain and the financial detriment of people like Mr. Marcus.”

In addition, “Hilton subjected Mr. Marcus to a hostile, abusive and intimidating work environment in which sexually inappropriate behavior permeated the workplace. Mr. Marcus is seeking lost pay and benefits and damages associated with mental suffering.”

Bad behavior, it seems, is the Hilton Modus Operandi…

Top Settlements

Just in time for Christmas—five years on. A jury in El Paso has awarded a $132 million settlement to the victims of a bus crash that killed two people and critically injured several Continue reading “Week Adjourned: 12.10.10”

Week Adjourned: 12.4.10

Top Class Actions

The House Always Wins? So, some bad news for folks that thought they might be onto a good deal through an online auction site called QuiBids. QuiBids, LLC, got slapped with a class action this week, alleging deceptive and unfair trade practices and fraud in its operation of QuiBids.com.

For those not in the know, QuiBids.com is an interactive online website which allegedly allows its users to buy consumer products at greatly reduced prices by participating in online auctions. QuiBids.com claims that users of their website will pay 80-95% less than retail prices for thousands of consumer products, including high-end items such as HDTVs, laptops, and even automobiles, by bidding on their merchandise via online auctions. That sounds just a little too good to be true…

The suit claims that virtually none of the consumers who participate in these “auctions” will win the right to purchase such high-end item products at those greatly reduced prices. And it also claims that the failure to win auctions is costly to QuiBids customers. Each auction draws hundreds or thousands of bids purchased at $.60 per bid. The losing bidders do not get back the cost of the losing bids. So—you guessed it—the overwhelming majority of customers will lose money using the QuiBids website, according to the suit.

The suit alleges that QuiBids.com does not tell its customers that they have virtually no chance to come out ahead financially. Thus, while QuiBids.com passes itself off as a legitimate auction house, its business operation is more akin to a casino or a lottery. Ummm.

By way of an example, in one auction, it is alleged in the suit, QuiBids’ profits exceeded $12,000 from the bidding on a $1,500 HDTV. “The ultimate winner paid $228.59, but 22,859 Continue reading “Week Adjourned: 12.4.10”

Week Adjourned: 11.26.10

Top Class Actions

More Buzz on Google…only this time it’s not about Buzz. A potential class action lawsuit was filed this week against the company that claims the mantra ‘do no evil’. The lawsuit alleges that Google violated privacy laws by scanning Gmail accounts in order to sell and place advertisements on account holder’s user screens. Ummm. That doesn’t sound like something a good corporate citizen would do, at least to me.

Specifically, the lawsuit claims that Google violates The Electronic Communications Privacy Act (ECPA) of 1986 by scanning the content of all Gmail from any sender and uses the information to sell and place advertisements. (Kind of makes me think back to that old Rockwell song (above)—only Google wasn’t even around back then…) “As result of Google’s actions in intercepting non-Gmail account holders’ emails, Google obtains a monetary benefit without consent of the Class members and without compensation to them,” the lawsuit states.

I have to admit, I have often wondered how all those topic specific ads crop up on the side of my Gmail screen…

Top Settlements

Isn’t ‘Wholesale’ Supposed to Mean ‘Discount’? ‘AstraZeneca hit the news rather quietly this week, with the announcement that they have reached two settlements—one nationwide, one in Massachusetts—related to two different classes of purchases of the drug Zoladex.

FYI—Zoladex is used to treat prostate cancer, advanced breast cancer, endometriosis, and Continue reading “Week Adjourned: 11.26.10”

Week Adjourned: 11.19.10

Top Class Actions

A couple of potentially large potential class actions filed this week.

There for the Taking. The first—and this one’s rather worrying—lawsuit to make Week Adjourned this week is a class action filed against AvMed Health Plans for data breaches of personal information.

Apparently, laptops that contained millions of AVMed’s members’ confidential medical records were left unattended and—you guessed it—the laptops were subsequently stolen and AvMed’s members’ personal records were compromised.

And yes, this situation could be your worst nightmare. The records contained AvMed members’ names, home addresses, phone numbers, Social Security Numbers, as well as other highly sensitive medical history data such as diagnosis information, medical procedure and prescription information.

A lawyer representing the plaintiffs says this is easily one of the largest medical record breaches in history, and the disastrous consequences may plague those affected for their lifetimes. Further, they believe that AvMed did not follow government-mandated HIPAA protocols. Merely taking the time to encrypt their laptops, likely would have obviated any harm done by this theft. Terrific.

The second potentially large class action is by a group of farmers alleging price fixing of magnesium oxide—a compound widely used in farming and in animal feed—by Premier Chemicals LLC, Sumitomo Corporation of America, and YAS, Inc.

Farmers Fixin’ to Fight some Fixin’. The proposed class action seeks to represent all US purchasers, such as farmers and ranchers, of magnesium oxide or products containing Continue reading “Week Adjourned: 11.19.10”