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: 11.23.12 – Pepperidge Farms, Bear Stearns, Medifast Diet

Here’s the weekly wrap of top class action lawsuits and settlements for the week ending November 23, 2012. Top lawsuits include Pepperidge Farms, Bear Stearns and Medifast diet claims.

Top Lawsuits

Something’s Fishy with those Fishy Crackers. Is nothing sacred? Pepperidge Farm is facing a potential consumer fraud class action lawsuit over the use of the word “natural” on the product label for its Cheddar Goldfish crackers.

Filed by Colorado resident Sonya Bolerjack, the fish cracker class action lawsuit alleges the company “mistakenly or misleadingly represented that its Cheddar Goldfish crackers are ‘Natural,’ when in fact, they are not, because they contain Genetically Modified Organisms (GMOs) in the form of soy and/or soy derivatives.” Specifically, Bolerjack claims that the product is not natural due because it contains soybean oil. Really?

The lawsuit contends that Pepperidge Farm violated Colorado’s Consumer Protection Act by engaging in deceptive trade practices; breached express warranties including that the product is natural even though it contains GMOs; and negligently misrepresented to the public through its packaging and labeling that the product is natural even though it contains GMOs. That laundry list ought to tie things up nicely for a while.

The plaintiff is seeking certification of a class of “all United States persons who have purchased Pepperidge Farm Cheddar Goldfish crackers containing Soybean Oil, for personal use, during the period extending from November 6, 2008, through and to the filing date of this Complaint.” FYI—that was roughly, approximately, don’t quote me, around the 19th of November.

Top Settlements

Remember Bear Stearns? Not fondly, I’ll bet. They were one of the first investment houses to fall in the 2008 financial crisis. Well, a while back they agreed to pony up $294 million to settle securities and ERISA  lawsuits and this week a federal judge approved those settlements. The lawsuits were filed against The Bears Stearns Cos. Inc, certain of its former officers and directors, and the company’s former outside auditor, over allegations they misrepresented Bear Stearns’ exposure to the subprime mortgage lending crisis. No comment.

This week, a federal judge ruled that the settlements are procedurally and substantively fair (In re Bear Stearns Companies Inc. Securities, Derivative, and ERISA Litigation, MDL No. 08-md-1963, No. 08-2793, S.D. N.Y.).

So, according to the terms of the Bear Stearns settlements, US$ 275 million will be paid by current owner of The Bear Stearns Cos. JPMorgan Chase & Co. Inc., while another $ 20 million will be paid by former outside auditor Deloitte & Touche LLP. The judge also certified a class of all purchasers of Bear Stearns common stock from December 14, 2006, to March 14, 2008. I’ll bet there are a more than a few former employees who will be happy about this news.

Medifast Told to Reduce the Hyperbole—after being put on a diet of honest advertising (?), which they didn’t stick to. And, they’ve been told to avoid all unsupported claims (otherwise known as consumer fraud) about the benefits of their weight loss products for the good of their future health. Yep—this week, Jason Pharmaceuticals, a subsidiary of Medifast Inc, and the Federal Trade Commission (FTC), agreed to a $3.7 million Medifast settlement resolving charges about the claims the company made about their weight loss products and programs.

Medifast-brand low-calories meal substitutes, including its most popular plan called the Medifast “5 and 1” plan that consists of 800-1,000 calories per day, are sold by Jason Pharmaceuticals. The FTC alleges the company made false and misleading claims about the success people have had with the programs, in achieving or maintaining weight loss or weight control. Notably, these claims were in direct violation of a ban imposed on the company in 1992, by the FTC. Each day the company violated the ban, it could be fined up to $16,000. And they were thinking maybe they wouldn’t get caught? Seriously?

In their case, United States of America (for the Federal Trade Commission), Plaintiff, v. Jason Pharmaceuticals, Inc., Defendant (United States District Court for the District of Columbia), Case No. 1:12-cv-01476, FTC Docket No. C-3392, the FTC claims Jason Pharmaceuticals made unsupported representations since at least November 2009. These claims implied or stated that using Medifast programs and products would allow consumers to lose 2-5 pounds per week. The company also represented that the experiences of consumer endorsers featured in the advertisements were typical, and that consumers would lose more than 30 pounds. So, we’re back to exercise and sensible eating? Not good timing, given the season.

And on that note—I’ll see you at the bar—the Turkey is calling! Have a great Thanksgiving 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.

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

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!

Week Adjourned: 10.12.12 – Meningitis, Nexium, Strip Club Dancers

The weekly wrap of top class action lawsuits and settlements for the week ending October 12, 2012. Top stories include the Meningitis Outbreak, Nexium and Exotic Dancers.

Top Class Action Lawsuits

Outbreak Turning into a Rash?—of lawsuits, that is. The first in what could be a string of fungal meningitis class actions was filed on Thursday against New England Compounding Pharmacy—the maker of the steroid injections suspected to be the cause of the multi-state meningitis  outbreak.

The meningitis outbreak class action lawsuit entitled Barbe Puro v. New England Compounding Pharmacy Inc, U.S. District Court, District of Minnesota, No. 12-2605, was filed in federal court in Minnesota.

According to the lawsuit, the victim, Barbe Puro, of Savage, MN, experienced headaches and nausea after receiving the steroid shots. Puro claims she suffered “bodily harm, emotional distress, and other personal injuries” after she received the steroid injection on September 17.

The contaminated steroid injections were recalled on September 26 by Framingham, MA based compounding pharmacy, New England Compounding Center (NECC). As many as 14,000 individuals may have received the tainted injections which were distributed to medical facilities across 23 states. To date, the Centers for Disease Control (CDC) has reported 14 deaths associated with the contaminated steroid.

The meningitis lawsuit proposes a class comprised of Minnesota residents who may have received tainted steroid injections since June of this year. According to the CDC, so far there have been three cases of fungal meningitis reported in Minnesota  connected to the contaminated steroid injections.

Top Settlements

This might Help your Heartburn…A proposed settlement has been reached in a consumer fraud class action lawsuit against AstraZeneca alleging deceptive marketing practices around their anti-heartburn medication Nexium.

In the Nexium lawsuit, entitled Commonwealth Care Alliance v. AstraZeneca Pharmaceuticals L.P., Docket No. 05-0269, the plaintiffs allege Astra Zeneca violated a Massachusetts state law by deceptively marketing the drug Nexium as superior to another drug, Prilosec or its generic version, omeprazole.

The lawsuit asks the Court to order AstraZeneca to pay restitution to purchasers for amounts they allegedly overpaid, to award money damages, or to grant other relief.

The terms of the proposed Nexium consumer fraud class action settlement have not been disclosed. However, the Court has certified a class of individuals and entities that purchased Nexium in Massachusetts (the“Class”). The Court has not made any finding or reached any conclusion as to whether AstraZeneca is liable to the Class.

You are a member of the Class if you have purchased Nexiumin Massachusetts since March 2001. If you purchased Nexium since March 2001 in Massachusetts, you may be eligible to receive money or benefits from the Lawsuit, if any are recovered. For more information on the status of this settlement visit massachusettsnexiumlitigation.com.

Good News at the Poles…I love this one. A $12.9 million settlement has been approved by a federal judge ending a three year long employment class action brought by exotic dancers who alleged the strip clubs they worked for denied them benefits by classifying the dancers as independent contractors.

The strip club dancer lawsuit alleged that the owners of the nightclubs, located in California, Kentucky, Idaho, Texas, Nevada and Florida, helped themselves to over half of the dancers’ tips, penalized them for not selling enough drinks to customers and made the dancers pay stage fees for dancing. The Spearmint Rhino nightclub is among the defendants.

Under the terms of the strip club settlement, the clubs will treat dancers as employees, partners or shareholders in their businesses, and in California, dancers will no longer have to cough up pay-to-perform fees. Dancers who do not make a written claim to the fund will not be paid; any remaining funds will go back to the strip clubs. The dancers who were named plaintiffs in the class action will receive incentive fees for the time and “professional and personal risk” they incurred by being named in the lawsuit.

And on that note—I’ll see you at the bar (no, not the strip joint). Have a great weekend!

Week Adjourned: 10.5.12 – Suave Haircare, Discover Card, Bank of America

The weekly wrap of top class action lawsuits and settlements for the week ending October 5, 2012. Top stories include Suave haircare, Discover credit card and Bank of America.

Top Class Action Lawsuits

Will Sauve/Unilever Smooth their Way out of This? Unilever, the parent company of Suave, got hit with a defective product class action lawsuit this week over allegations its now defunct Suave Professionals Keratin Infusion 30-Day Smoothing Kit actually ruins your hair. I guess you can’t smooth what you don’t have!

The Suave class action lawsuit was filed by 14 women who all allege they suffered permanent hair damage as a result of using the product. Tonja Millet, one of the plaintiffs in the class action lawsuit, claims the product melted her hair, made it sticky and impossible to comb. Now, that doesn’t really jive with the product advertising, which one Suave Professionals Keratin Infusion 30-Day Smoothing Kit commercial reportedly claimed “…transforms frizzy, unmanageable hair into hair that’s sleeker and easier to style.”

After using the product, Millet said it kinked her hair instead of straightening it. When she called the product’s consumer hotline to complain, she was told that she had likely used the Suave Professionals Keratin Infusion 30-Day Smoothing Kit incorrectly. (Ummm. Should it be on the market in that case?) When she went to her salon a few days later, Millet’s stylist told her that her hair had been chemically melted. As a result, Millet had 10 inches cut off her hair. Talk about a “bad hair day.”

Unilever pulled the Suave Professionals Keratin Infusion 30-Day Smoothing Kit from stores after receiving a greater than expected number of complaints. (What was the expected number?) The kit has since been discontinued. But apparently the story ain’t over.

Top Settlements

Were you “Discovered?” Did you buy into what you thought were free credit card services promoted by Discover Bank between December 1, 2007 and August 31, 2011? If so, you may be interested to learn that the bank has agreed to pay $200 million to settle consumer fraud allegations brought by federal investigators concerning credit card add-ons that consumers were led to believe were free.

After a one year investigation into the telemarketing and sales tactics used by Discover agents, federal investigators found that consumers were misled credit (otherwise known as consumer fraud) into paying for credit card services including credit score tracking, payment protection, identity theft protection and wallet protection.

The $200 million Discover credit card settlement is in addition to a class action lawsuit settlement of $10.5 million agreed last year by Discover, and a $2 million settlement agreed this year with the Minnesota Attorney General, both of which alleged deceptive marketing practices.

Eligibility for refund would include customers who were charged for one or more of these products between December 1, 2007 and August 31, 2011, and based on the products they purchased and how long they held them. Customers will reportedly be notified directly by Discover Bank.

Additionally, all consumers will receive at least 90 days’ worth of fees paid, minus any refunds they have already received. As many as two million customers will receive full refunds of all of the fees they paid.

In addition to the $200 million refund to consumers, Discover will pay a $14 million civil penalty.

To find out more about the settlement, visit the Discover Card Product Settlement at consumerfinance.gov/pressreleases/discover-consent-order/

Boffo BoFA Settlement.  And the big story this week—Bank of America Corp (BoFA) has reached a preliminary settlement in a securities class action lawsuit, which will see BoFA shelling out $2.43 billion to end claims it was not forthcoming with financial information about Merrill Lynch & Co to the banks shareholders, prior to BoFA buying the securities house. (Just what does compel banks to tell the truth—or does that responsibility fall solely to the people who bring lawsuits against them? I digress.)

The BoFA settlement backstory, short version: BoFA agreed to buy Merrill Lynch in 2008, at the height of the financial crisis, however it tried to scrap the deal just weeks after signing but was unsuccessful. Merrill Lynch generated more than US$15 billion of losses and its executives agreed to award employees up to US$5.8 billion of bonuses, according to a report by Reuters.

In December 2008, BoFA’s shareholders approved the Merrill Lynch deal, but once the merger was complete, there was a dramatic drop in BoFA share value, and investors subsequently sued, alleging Merrill’s losses and bonuses should have been disclosed before the vote.

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