Actos

Week Adjourned: 9.18.15 – Best Buy, Actos, GM Ignitions

Top Class Action Lawsuits

Is it Time to Clear the Air? Best Buy was hit with a consumer fraud class action this week, alleging it falsely advertised a line of Electrolux vacuum cleaners as having HEPA filters. Filed in Virginia federal court on behalf of lead plaintiff Christopher L. Early, the Best Buy lawsuit asserts that the Electrolux model EL4071A, which he purchased from a Glen Allen, VA., Best Buy in June, does not contain a certified HEPA filter as claimed by the advertising. Rather, the filters in these vacuums are described by Electrolux as an “allergen” filter. The lawsuit contends that Best Buy knew or should have known the vacuum filter did “not meet the standards of efficiency for a HEPA filter … and is a substantially inferior filtration system.”

Certified by the US Department of Energy, a high-efficiency particulate arrestance or HEPA filter is a type of air filter frequently used to help with asthma and indoor allergies. When used in a vacuum cleaner, the filter works to limit the amount of allergen and dust particles emitted into the air while it’s running, according to the complaint.

“Notwithstanding the material differences between a HEPA vacuum cleaner filter and a non-HEPA vacuum cleaner filter, Best Buy deliberately and willfully misrepresented in advertising and selling the Electrolux model EL4071A vacuum cleaner to consumers that such vacuums provided HEPA air filtration performance when, in fact, they did not,” the lawsuit states.

The advertising referred to in the complaint includes in-store signage, advertisements and online product descriptions and specifications for the vacuum. Specifically, the lawsuit states that the online description of the vacuum made numerous references to its HEPA filter. It was because of these claims that Early decided he would buy the vacuum “in reliance on the accuracy of the Best Buy online advertisement.”

The vacuum is described as a “HEPA bagless canister vacuum” on Best Buy’s website and sells for $199.99. According to the complaint, after buying the vacuum, Early reviewed the manual for information on the HEPA filter and could not find mention of a HEPA filter. So he called Electrolux and the manufacturer confirmed that in fact that model only has an allergen filter, not a HEPA certified filter.

The plaintiff is seeking class certification, damages and legal fees. He claims Best Buy is in breach of express and implied warranties, the Magnuson-Moss Warranty Act, the Virginia Consumer Protection Act and consumer protection laws of various states and is guilty of false advertising.

“Best Buy’s massive campaign to deceive U.S. consumers concerning the supposed health benefits of the Electrolux model EL4071A vacuum cleaner have caused harm to the plaintiff and the members of the proposed class and will continue to do so as long as Best Buy continues to make such representations and fails to notify its customers of its false representations,” the complaint states.

The case is Christopher L. Early v. Best Buy Co. Inc., case number 3:15-cv-00549, in the U.S. District Court for the Eastern District of Virginia.

Top Settlements

Actos Billion Dollar Settlement. A previously announced $2.4 billion settlement has been approved by enough plaintiffs in a mass tort against Takeda Pharmaceuticals, to enable the deal to proceed. The plaintiffs had filed Actos bladder cancer lawsuits, across the country, totaling over 8,000 product liability complaints. They alleged that Takeda withheld information about the side effects of its diabetes medication.

Actos (pioglitazone hydrochloride) is a member of a class of drugs known as thiazolidinediones, which have been linked to bladder cancer, liver disease and cardiovascular issues. Actos side effects include increased risk of congestive heart failure (CHF), increased risk of rare but serious liver problems, an increased risk of fractures, and an increased risk for bladder cancer. A black box warning exists for Actos and heart failure, however, an Actos whistleblower lawsuit suggests a previously known but downplayed link between Actos and myocardial infarction (Actos heart attack). Actos is used to treat type 2 diabetes. According to a company press release, 96% of all eligible claimaints have opted in to an Actos settlement program that was initially made public on April 28.

Under the terms of the agreement, the Actos settlement should provide an average award of about $296,000 per case, for plaintiffs diagnosed with bladder cancer. However, the individual awards may be reduced based on the user’s age, exposure to other cancer-causing toxins and smoking history. The amount is set to rise to $2.4 billion if 97% of all eligible claimants participate.

Guess They Just Couldn’t Deny it Any Longer….Acting in its own best interests, no doubt, General Motors (GM) has agreed to pay $900 million to bring closure to criminal charges brought against by the US government over allegations the automaker hid a handle lethal ignition switch defect, which has resulted in at least 124 deaths.

According to a report in Automotive News, GM admitted to failing to disclose the defect to both the National Highway Traffic Safety Administration (NHTSA) and the public. The defect prevents the deployment of airbags in some vehicles.

Additionally, GM has also admitted to misleading consumers about the safety of vehicles affected by the defect.

Under the terms of the three year agreement, GM must have its internal safety practices independently monitored as well as its ability to fix defects and recalls. If GM adheres to its obligations set out in the agreement, the criminal charges will be dropped.

Ok – That’s a wrap folks… See you at the Bar!

Week Adjourned: 5.1.15 – Tinder, Hertz, Actos

Top Class Action Lawsuits

Tinder’s igniting a wee litigation storm it seems. The company behind the popular dating app of the same name, has been hit with another class action lawsuit filed by a customer who alleges the app charges men and users over the age of 30 more to use its premium service, and is therefore discriminating on the basis of age and gender. Isn’t that just good business? You use more, you pay more? No?

Maybe not. Filed in California federal court, by Plaintiff Michael Manapol, this Tinder lawsuit contends that Manapol paid $19.99 for a one-month subscription to the service, while Tinder charged $9.99 for those under 30. He also alleges he was charged recurring, automatic renewal fees, in violation of California law, and that his account was illegally debited, without his authorization.

“Defendant offers no discounts for its Tinder Plus services, than that offered to consumers based solely upon their age. However, [women] receive more favorable swiping terms than man, which is akin to free entrance to Ladies Night, a practice deemed illegal by the California Supreme Court,” the lawsuit states.

The lawsuit also alleges Tinder falsely advertised its service by claiming to be “free.” One Billy Warner filed a lawsuit over the free or not-so-free Tinder advertising back in March.

The Manapol lawsuit seeks to establish a nationwide class of people who downloaded the Tinder app before March 2, 2015. In addition, four subclasses are proposed, specifically: an auto-renewal subclass; a price discrimination subclass; a gender discrimination subclass; and an Electronic Funds Transfer Act subclass.

The complaint cites an interview with Tinder spokeswoman’s on National Public Radio, in which she allegedly said, “During our testing we’ve learned, not surprisingly, that younger users are just as excited about Tinder Plus but are more budget constrained and need a lower price to pull the trigger.”

FYI…The case is Michael Manapol et al. v. Tinder Inc. et al., case number 2:15-cv-03175, in the U.S. District Court for the Central District of California.

Hertz employees being taken for a ride? The Hertz Corp is facing a potential $4 million unpaid wages and overtime class action alleging the company doesn’t pay its employees for working through breaks, and fails to pay them overtime wages.

No stranger to employment lawsuits, this one, alleges that the vehicle rental chain systematically underpaid its customer service representatives in various ways, in violation of the California labor law. The Hertz overtime lawsuit was filed by Plaintiff Juan Herrera on behalf of himself and all other non-overtime exempt California Hertz employees for the previous four years.

“Defendants knew they had a duty to accurately compensate plaintiff and class members for all hours worked, including overtime wages and meal and rest period premiums, and that defendants had the financial ability to pay such compensation, but willfully, knowingly, recklessly and/or intentionally failed to do so,” Herrera states.

Specifically, the complaint states that Hertz fails to provide meal and rest periods for its employees by structuring its schedules, policies and workload requirements to not allow the workers their full meal and rest breaks. The company then fails to properly compensate them for the loss.

Additionally, Herrera alleges that Hertz requires its customer service representatives to prepare for their shifts without pay and failing to factor commissions into the employees’ regular rate of pay when calculating overtime pay rates.

That lawsuit also seeks to represent non-overtime exempt employees in California, which Hertz estimates amounts to as many as 2,000 former employees and as much as $11.5 million in alleged damages.

The case is Juan Herrera, individually and on behalf of all others similarly situated v. The Hertz Corp. et al., case number BC579320, in the Superior Court of the State of California County of Los Angeles.

Top Settlements

This is a biggie—to the tune of $2.4 billion… That’s the sum agreed to in a settlement between Takeda Pharmaceuticals USA Inc. and some 9,000 plaintiffs who filed personal injury lawsuits against the company, alleging it failed to warn of bladder cancer risks from taking its Type 2 diabetes drug Actos (pioglitazone hydrochloride).

Under the terms of the agreement, Takeda will establish a fund of between $2.37 billion and $2.4 billion, depending on how many Actos litigants opt into the settlement.

Over 4,000 cases are included in this agreement, and were coordinated in the U.S. District Court for the Western District of Louisiana, as well as lawsuits filed by about 4,000 people in Cook County, IL, according to lawyers for the plaintiffs.

While Takeda denies any wrongdoing in this agreement, the settlement will recover some compensation for the victims who have been injured and, in some cases, maimed by bladder cancer while taking Actos.

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

Week Adjourned: 2.20.15 – Caliber Collision, Payless, Actos

Top Class Action Lawsuits

Fix my Ride! A California collision repairs chain has reportedly been tinkering with California labor law according to a class action lawsuit filed against it this week. Caliber Collision is being sued by its mechanics who allege they were not paid for all the hours they worked. Heard this before?

Filed by lead plaintiff Samuel Castillo, the lawsuit alleges Caliber Bodyworks of Texas Inc., which operates the car repair chain Caliber Collision, pays its mechanics on a piece-rate system for each task they perform, and that the workers are assigned piece-rate hours per tasks, regardless of the time it actually takes them to perform. Castillo claims he recorded the hours he worked, but Caliber only paid him under the piece-rate system.

“As a result, defendants did not pay plaintiff for all hours worked at the minimum wage, as defendants failed to pay plaintiff for nonproductive hours, i.e. hours that he was not performing piece-rate work,” the complaint states.

Further, the lawsuit contends that Castillo worked for Caliber from 2007 through to the end of January 2014 classed as a nonexempt technician under the piece-rate system. According to the suit, under Caliber’s pay system, if a task were assigned a value of 0.8 hours, the mechanic would be paid for 0.8 hours of work, regardless of whether the task took 10 or 90 minutes to perform.

According to the suit, the method Caliber uses, of meeting their minimum wage obligations, dividing daily piece-rate earnings by daily hours worked, violates California labor law. The suit also alleges Caliber paid Castillo nondiscretionary bonuses and other forms of compensation that aren’t excludable from the regular rate of pay.

“Despite defendants’ payment of incentive pay to plaintiff, defendants failed to include all forms of incentive pay when calculating plaintiff’s regular rate of pay, thereby further causing plaintiff to be underpaid all of his required overtime wages,” the complaint states.

Castillo alleges that he regularly worked in excess of eight hours per work day and over 40 hours each week, without receiving overtime compensation. Further, because the company only pays its workers in the piece-rate system, it also fails to maintain any compensation system for compensating rest periods.

“As a result of defendants’ failure to pay all overtime and minimum wages, defendants maintained inaccurate payroll records and issued inaccurate wage statements to plaintiff,” the suit states.

Finally, the lawsuit contends that Castillo requires its mechanics to buy their own tools that are necessary to perform their job duties, without reimbursing the workers for the cost of the tools.

The employment class action is seeking certification on behalf of classes of workers denied minimum wage, overtime hours, expense reimbursements and more.

The suit is Castillo et al. v. Caliber Bodyworks of Texas Inc. et al., case number BC572767, in the Superior Court of the State of California, County of Los Angeles.

Top Settlements

If the Shoe fits… Coming out the other end of an employment lawsuit we have Payless Shoesource, which has reached a $2.9 million settlement in an employment class action alleging the retailer violated the Fair Labor Standards Act (FLSA) by misclassifying its store managers as a means of avoiding overtime pay.

According to the terms of the Payless settlement agreement, two thirds of the funds will be shared among the 2,197 class members. According to court documents, most of the plaintiffs worked as store managers or leaders at Payless retail outlets from March 2011 on.

In 2006, Payless faced a similar lawsuit when employees in Mississippi alleged the shoe retailer had violated the FLSA by routinely requiring managerial employees to work 60 to 90 hours a week, and making them perform non-managerial tasks without paying them overtime. That case was settled out of court and the terms remain confidential.

Justice at what Cost? Takeda Pharmaceutical Co, the makers of the diabetes drug Actos, has been ordered to pay $1,334,636 million in punitive damages by the jury hearing the case of a retired school teacher who developed Actos bladder cancer.

The jury found that Takeda had acted with reckless indifference for the health of Mr. Kristufek, who alleged that Actos had caused him to develop bladder cancer.

The $1.3 million in punitive damages is additional to a $2.3 million award the jury handed down the day before, after agreeing that Takeda had failed to provide adequate warnings about the drug’s association with bladder cancer and that the medication had been a significant cause of Mr. Kristufek’s condition.

Kristufek’s is the fifth Actos-related case out of eight in which juries have returned verdicts on behalf of plaintiffs, and only the second in which the company has faced punitive damages. Further, his is the second Actos-related case to win in Philadelphia, with a jury awarding $2 million in damages in a case that cited similar allegations for a woman.

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

Week Adjourned: 4.11.14 – Dog Treats, Hilton Hotels, Actos

The week’s top class action lawsuits and settlements. Top stories this week include deadly dog treats, Hilton hotels and Actos diabetes drug settlement.

Top Class Action Lawsuits

Dog treats manufacturer to be treated to a little justice perhaps? IMS Trading Corp, aka IMS Pet Industries—maker of Cadet duck jerky treats, is facing a consumer fraud class action lawsuit alleging it sold products containing duck jerky imported from China that caused dogs to become sick or die. The dog treat lawsuit alleges the company, IMS Trading Corp, aka IMS Pet Industries, is in violation of the New Jersey Consumer Fraud Act, and is guilty of unjust enrichment as they falsely assured consumers through the product packaging that the treats were healthy for dogs. Several unnamed companies involved in the manufacture and sale of the dog treats are also named as defendants in the lawsuit.

Lead plaintiff, Marie Dopico, who owns several small dogs, alleges her dogs nearly died after she fed them Cadet duck jerky dog treats she bought in October from a ShopRite grocery store in New Jersey. She claims she had to pay veterinary expenses and other related costs to save her dogs’ lives.

The proposed lawsuit claims that there could be thousands of plaintiffs, as other consumers in New Jersey and across the US have suffered similar damages as a result of defendants’ conduct. The putative class and subclass includes consumers who, up to six years prior to the January filing of the lawsuit, purchased IMS dog treats and whose dogs got sick or died as a result of consuming the allegedly unhealthy and dangerous treats.

According to the lawsuit, the packaging for IMS’ dog treats allegedly states the products do not contain artificial colors, additives, fillers or by-products. The packaging also states that the treats are “healthy and natural treats with only the finest ingredients.” The same claims are found on the company’s website, the plaintiffs allege.

The lawsuit states that in November 2011, the US Food and Drug Administration issued warnings stating that dogs can become ill after eating treats containing duck jerky made in China. The agency has said that more than 3,600 dogs in the US have become ill after eating Chinese jerky treats. This information was not fully disclosed on the company’s website, plaintiffs allege, and they accuse the defendants of hiding the warnings to increase or maintain sales.

“No reasonable person would feed dog treats to their dogs knowing that there was a substantial risk of death or illness from doing so,” the lawsuit states. “Dog owners consider their pets to be members of the family, and become very distressed when their dogs pass away or become seriously ill.”

Hey—no reasonable manufacturer would consider producing food that makes animals ill.

Hilton not honoring wage & hour laws? Maybe. They got hit with a putative wage and hour class action lawsuit this week, alleging violations of the Fair Labor Standards Act (FLSA) and the California labor law Act. In addition to Hilton Worldwide, named defendants include Doubletree LLC, and Crestline Hotels and Resorts LLC.

Filed by Nelson Chico, the Hilton wage & hour lawsuit, entitled Nelson Chico v. Hilton Worldwide Inc. et al., case number BC541043 in the Superior Court of the State of California, County of Los Angeles, alleges failure to pay overtime wages and failure to provide meal or rest breaks. Chico, a former employee, claims the defendants also allowed or required employees to work off the clock.

Further, the lawsuit states the defendants failed to provide itemized statements for each pay period, failed to keep accurate records and failed to compensate employees for necessary expenditures.

Heads up people—the potential employment class action seeks to represent aggrieved employees who worked for the defendants within the past four years.

Top Settlements

Actos maker ordered to pay up huge. Japanese drug maker Takeda Pharmaceutical Co Ltd, got hit with a heart-attack inducing jury award this week—they were ordered to pay $6 billion in punitive damages in settlement of allegations the company concealed information regarding the risk for cancer associated with its diabetes drug Actos. Eli Lilly and Co, a co-defendant in the case, was ordered to pay $3 billion in punitive damages and $1.45 in compensatory damages by the jury in Louisiana on Monday.

According to Lilly, 75 percent of the liability was allocated to Takeda and 25 percent to Lilly. Takeda plans to dispute the awards, stating that judgments were entered in its favor in all three previous Actos trials. This was the first federal case to be tried in a consolidated multidistrict litigation comprising more than 2,900 lawsuits. Germany and France suspended use of the drug in 2011 due to concerns of a possible link to cancer.

More to come on this? Very possibly. Stay tuned.

Ok Folks, That’s all for this week. See you at the bar!

Week Adjourned: 10.7.11

Weekly wrap-up of new lawsuits and settlements as of October 7, 2011

Top Class Actions

Ok, this one’s not a Class Action, but it’s news you should know about…Actos (pioglitazone) made the news this week with the launch of a nationwide Actos lawsuit filed by people who have taken the diabetes medication and allege it is associated with the development of bladder cancer. Although the risk for bladder cancer isn’t exactly news, the filing of the lawsuit is—it is not a class action, rather each qualifying individual will seek damages consistent with the merits of his or her individual case.

If you have or are taking Actos and are interested in this suit, you must meet basic criteria including that you have actually taken the drug and developed bladder cancer, sadly.

Actos is one of the most popular diabetes drugs in the world. Recently, however, studies have shown that Actos use is linked to serious side effects, particularly bladder cancer. These studies show that the longer one takes Actos, the greater the risk of developing bladder cancer. As a result of this mounting scientific evidence, the FDA has issued warnings regarding Actos and bladder cancer. In France, the French Agency for Safety of Health Products recalled Actos from the market on June 9, 2011. Regulators in Germany recommended that physicians not prescribe it.

FYI—time limits exist that limit the amount of time you have to join the lawsuit, so if you think you may have a claim check it out now.

Top Settlements

Oh Happy Honda—or not—as the case may be. A federal court has approved a settlement of a defective product class action filed against American Honda Motor Co. Inc. The lawsuit alleges that Honda failed to fix or warn customers that the sun visors in its hugely popular Honda Civics were defective.

Specifically, the Honda Civic sun visor lawsuit claims that defects on the sun visors on some Honda Civics caused the visors to split apart, possibly impairing their function. The class action lawsuit also alleges that Honda should have corrected the defective sun visors or should have disclosed the defect at the time of sale. Yes, but that would have been the right thing to do.

You are eligible as a class members of the “Honda Civic sun visor class action” if you are a U.S. resident who are current or former owners or lessees of one of many Civic models, including but not limited to all 2006-08 Civic. There are MANY more models which you can check out here.

Here’s another relevant detail, as part of the settlement, Honda has agreed to extend the warranty on sun visors on Class Vehicles to seven years or 100,000 miles, whichever first occurs. Wait—there’s more—Honda has also agreed to reimburse Class Members for out-of-pocket expenses incurred prior to the Effective Date of the settlement for the repair or replacement of a sun visor or sun visors on Class Vehicles. If you are a class member, you are eligible for a cash reimbursement if:

The Class Member has paid out-of-pocket to repair or replace the sun visor or sun visors in his or her Class Vehicle prior to the Effective Date of the settlement;
The cost of repair or replacement was not previously reimbursed by insurance, warranty, or goodwill; and
The Class Member mails a claim form within two years from the date of the sun visor repair or replacement, or within 90 days of the Effective Date of the settlement, whichever period of time is longer.

Another one for the books—the real estate trust Dynex Capital Inc, has agreed to pay $7.5 million to settle a New York class action lawsuit over securities in the sale of bonds backed by thousands of loans on manufactured homes.

In March 2011, U.S. District Judge Harold Baer issued one of the few decisions to ever have certified a class of investors pursuing federal fraud claims in connection with the sale of asset-backed bonds. The case is an important one for investors because it provides a road map for prosecuting fraud claims involving other asset backed bonds on a class-wide basis.

The lawsuit was filed in 2005 by Teamsters Local 445 Freight Division Pension Fund and Dynex lost multiple attempts to have the case thrown out of Court. The settlement still must be approved by Judge Baer of the U.S. District Court, Southern District of New York.

The Plaintiff charged that Dynex, its subsidiary Merit Securities Corp., and senior executives at both companies lied about the quality of mobile home loans that were collateral for bonds sold as Merit Series 12-1 and Merit Series 13 from Feb. 7, 2000 to May 13, 2004.

According to the lawsuit, Dynex and its representatives made misleading statements that artificially inflated the value of the bonds, understated the amount of delinquencies and repossessions affecting the bonds and violated its own publicly stated underwriting guidelines in making poor-quality loans. Defendants also made false statements about the deteriorating performance of the downgraded bonds because the company was scrambling to protect itself in the midst of a dramatic financial collapse, the lawsuit charged.

Ok—That’s it for this week. See you at the bar—that’s poolside baby.