Class Action Lawsuit

Week Adjourned: 10.2.15 – VRBO, Hyatt Hotels, Vitaminwater

Top Class Action Lawsuits

Another week…another data breach lawsuit. This one is filed against payment processor Yapstone, the company that handles the money for Vacation Rental By Owner (VRBO). Most seriously disturbing.

The class action was filed by a customer in New Jersey who claims the company is negligent and in breach of contract because it failed to protect customer data from a possible breach. In the VRBO complaint, Plaintiff, Jonathan Koles alleges that he was notified by letter by YapStone on September 11 that his “[e]mail and [b]ank [a]ccount were potentially exposed” in a possible breach that happened sometime between July 2014 and August 2015. According to the letter, Yapstone had first learned of the potential hack on August 4th.

Koles claims that YapStone Inc, failed to take reasonable measures to protect its customers’ personal information, promptly notify them of the possible breach and specify exactly what information may have been compromised.

According to the lawsuit, “As a result of Defendant’s ongoing failure to notify consumers regarding what type of [personally identifiable information] has been compromised, consumers are unable to take the necessary precautions to mitigate their damages by preventing future fraud.”

As a result of the data breach, Koles now pays $29.99 a month for identity protection services, has had to cancel credit cards and faces “imminent danger” that his personal information could be used for fraudulent purposes, the lawsuit states.

Because VRBO customers were required to accept payments online and provide their bank account information, YapStone breached an implied contract with customers in failing to safeguard their financial information, the complaint adds. In addition to his claims of negligence, breach of contract and unjust enrichment, Koles filed claims for violations of California’s Unfair Competition Law and the state’s Data Breach Law on behalf of a nationwide class. The suit also raises claims for violations of the New Jersey Consumer Fraud Act and the New Jersey Data Breach Act on behalf of Garden State consumers.

Koles asked the court to order YapStone to adopt “appropriate methods and policies” for consumer data collection and disclosure of personal information, pay for three years of credit card monitoring services and notify customers of the breach. He also seeks to recover damages, including actual, compensatory and statutory damages, as well as equitable relief, restitution, disgorgement, costs and attorneys’ fees.

The case is Jonathan Koles v. YapStone Inc., case number 3:15-cv-04429, in the U.S. District Court for the Northern District of California.

Hyatt feasting on ill-gotten gains? Maybe…Hyatt Hotels was hit with an unpaid wages and overtime class action lawsuit this week, alleging the global hotel chain fails to properly pay its banquet servers their tips and withholds overtime pay.

Filed by Nancy Livi, the Hyatt lawsuit is brought on behalf of current and former employees of Hyatt-branded hotels in Pennsylvania. Specifically, the complaint alleges Hyatt Hotels Corp. and its affiliates illegally diverts servers tips and refuses to pay overtime when certain employees have worked in excess of 40 hours per work week.

These actions, the lawsuit asserts, violate various laws including the Fair Labor Standards Act. The plaintiffs claims they have been seriously harmed by the company’s actions.

According to the lawsuit, customers who use the hotel for the special events at which banquet servers work are charged a set fee in addition to the charges for their events. These fees are regularly used to pay banquet servers a tip, forming part of their compensation. That fee, which is referred to as both a gratuity fee and service charge in the complaint, is divided amongst the banquet servers, with a portion of the fee being kept by the hotel, for the hotel.

The complaint alleges that Hyatt has refused to divulge information related to how much of the fee it keeps, despite requests by employees for information regarding the pay practices and lack of transparency.

According to the lawsuit, the negligible amount of gratuity banquet servers receive is not enough to be considered a tip for purposes of complying with the FLSA’s minimum wage provisions. In addition, the suit alleges that Hyatt, in its Pennsylvania hotels at least, has refused to pay overtime, even when banquet servers have worked over 40 hours in a week. “Defendants have been aware of the hours worked by the class members but have failed to pay the class members the full amount of wages to which they are entitled for this work time,” the complaint states.

The Hyatt lawsuit seeks class certification, as well as to recover unpaid tips and overtime wages, plus all available relief. According to the complaint, the class likely contains at least 40 members. Nancy Livi, et al v. Hyatt Hotels Corp., et al, case number 2:15-cv-05371 in the U.S. District Court for the Eastern District of Pennsylvania.

Top Settlements

Ok—if it sounds too good to be true….remember Vitaminwater? (yes—it’s a new noun apparently.) Well, Coke just reached a $2.7 million settlement to settle the Vitaminwater consumer fraud class action. The lawsuit alleges the company falsely marketed the sugar content of the drink. Ya think?

FYI—the lawsuit was filed six years ago. Now that’s dragging it through the courts…

Under the terms of the Vitaminwater settlement, Coca-Cola Co, and Energy Brands Inc. will advertise on the labels that the products contain sweeteners. Further, they will place the words “with sweeteners” on two panels of the product’s labeling. Additionally, the beverage makers must state the amount of calories per bottle of the product on the product’s main display panel and include the statement, “excellent source [of certain nutrients,]” on the product’s labeling.

If approved, the settlement also cites a number of statements the defendants can no longer use to market Vitaminwater, including “vitamins + water = all you need” and “made for the center for responsible hydration,” according to the motion.

The parties are also seeking to certify two settlement subclasses which are all New York residents who purchased Vitaminwater in New York at any time from Janauary 20, 2003 to the notice date and all California residents who purchased Vitaminwater in California at any time from Jan. 15, 2015 to the notice date.

According to the terms of the agreement, each of the class representatives (aka, lead plaintiffs) will be awarded $5,000.

The cases are Batsheva Ackerman et al. v. Coca-Cola Co. et al., case number 1:11-md-02215, and Juliana Ford v. The Coca-Cola Co. et al., case number 1:09-cv-00395, in the U.S. District Court for the Eastern District of New York.

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

Week Adjourned: 9.25.15 – Volkswagen, Chipotle, Hain Celestial

Top Class Action Lawsuits

Car of the People? Uhh…Mmaybe Not. This time a few weeks ago, the general public had not even heard of a defeat device—but this week? Volkswagen got hit with multiple lawsuits this week, including a $1-billion consumer fraud class action lawsuit in Edmonton, Canada, stemming from the admission by the automaker that it sold vehicles that were designed to skirt emissions laws. How? A little something called a Defeat Device.

Volkswagen has revealed that it had installed defeat devices in 11 million vehicles worldwide. So, likely this wasn’t an accidental memo misread… The devices are designed to ensure the autos pass emissions tests, but revert to producing emissions vastly in excess of emission standards once the tests are over.

The VW lawsuit states that “by manufacturing, testing, distributing and selling affected vehicles with defeat devices that allowed for improper levels of emission, Volkswagen violated the common law and legislative standards, was negligent, defrauded its customers, and engaged in unfair competition.”

Furthermore, the lawsuit claims that had the plaintiffs known of the defeat device, “they would not have purchased or leased those vehicles, or would have paid substantially less for the vehicles than they did.”

The Volkswagen complaint criticizes the alleged fraudulent behavior as “high-handed and reckless, intentional, fraudulent or grossly negligent,” worthy of a penalty that “recognizes the purposes of class actions” while protecting consumers and punishing or deterring “wrongful corporate conduct.”

There is also concern regarding loss of value to the vehicles on resale, the trouble consumers will be put through in order to get their vehicles repaired so they meet Canadian emission standards (ditto for US volks—hello California??), and whether in fact the vehicles can even be repaired without significant loss to power and performance.

And that’s just the people who bought these cars. True, an institutional investor has already filed a Volkswagen securities lawsuit—but can you imagine what’s going on with Volkswagen dealers? Nothing like a lot full of VW’s that are basically unsalable. If I had to wager a bet, it’s on VW dealership lawsuits next…

The following Volkswagen models re named in the action:

2009-2015 Jetta
2009-2015 Beetle
2009-2015 VW Golf
2014-2015 Passat
2009-2015 Audi A3

Did Chipotle have your Back(ground)? Chipotle Mexican Grill Inc, has been given food for thought this week, after being served with a class action lawsuit alleging the restaurant chain violated the Fair Credit Reporting Act (FCRA) by obtaining employment background checks after burying the required disclosure in its application materials. Filed by a job applicant, named plaintiff Lorena Mejia, the nationwide lawsuit asserts Mejia filled out a standard Chipotle application that contained a provision allowing the company to conduct a background check. However, the forms failed to make clear that the application contained authorization for Chipotle to perform background checks, in violation of the FCRA’s standard.

Specifically, the complaint states that the background-check disclosure was surrounded by potentially distracting language such as a provision for at-will employment. Who decided this was necessary?

“Under the FCRA, it is unlawful to procure or cause to be procured, a consumer report or investigative consumer report for employment purposes, unless the disclosure is made in a document that consists solely of the disclosure and the consumer has authorized in writing the procurement of the report,” the complaint states. I should hope so.

Further, the lawsuit contends that employers have been warned by the Federal Trade Commission stating that applicants are entitled to receive the disclosure as a separate document, not embedded into an employment application.

Mejia asserts that Chipotle failed to provide her a written summary of her FCRA rights, despite a provision of the statute requiring Chipotle to do so. Additionally, the company violated California privacy laws because it didn’t offer applicants a box to check as an indication that they wanted to receive copies of their reports, the complaint states.

The plaintiff is seeking to represent a nationwide class of Chipotle applicants seeking damages under the FCRA, as well as a subclass of California applicants bringing state-law claims. The case is Mejia v. Chipotle Mexican Grill Inc. et al., case number 5:15-cv-01911, in the U.S. District Court for the Central District of California.

Go get’em!

Top Settlements

Even the Crunchy Granolas have been at it… Hain Celestial Group Inc agreed a $7.5 million settlement this week, potentially ending a consumer fraud class action lawsuit alleging it falsely labeled products as organic. In addition to the cash payout, the company has agreed to provide up to $1.85 million in coupons.

So -who can you trust these days?

The lawsuit, filed by lead plaintiffs Rosminah Brown and Eric Lohela, claimed that the products failed to meet even minimum state requirements for being “organic.” Specifically, the organic components comprised less than 70 percent of the products’ ingredients, as required by the California Organic Products Act.

Hain Celestial, btw, is huge–their brands include many faves among all-natural and organic food shoppers. For example, they’ve got Arrowhead Mills, Casbah, Earth’s Best, Health Valley, MaraNatha, Rice Dream, Soy Dream, Mountain Sun, Boston’s, Garden of Eatin’, Bearitos, Sensible Portions, Terra Chips and Celestial Seasonings.

“The settlement provides substantial monetary relief for many thousands of purchasers of the challenged products who allegedly paid a premium over comparable personal care products that did not purport to be organic … [and] compensates class members for a significant portion of their alleged damages,” the plaintiffs stated. “The settlement accomplishes this while avoiding both the uncertainty and the delay that would be associated with further litigation.”

According to the reported terms of the Hain Celestial settlement, any class member who submits a valid claims form but does not have a receipt will be entitled to receive a cash refund equal to 50 percent of their Hain purchase up to $50 or a combination of cash and coupons for their claims. Those with a receipt for their purchases will receive a full refund.

The settlement needs final court approval and, if approved, all claims except one will be resolved. The remaining claim is concerns the water used in certain products – which Hain asserts is organic and which the plaintiffs state is not.

The settlement hearing is scheduled for October 8, 2015. The case is Rosminah Brown et al. v. Hain Celestial Group Inc., case number 3:11-cv-03082, in the U.S. District Court for the Northern District of California.

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

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: 9.11.15 – Facebook, E-Cigarettes, RV Refrigerators

Top Class Action Lawsuits

Is Facebook Big Brother in Disguise? Maybe….A federal privacy class action lawsuit against Facebook has been filed by a man who is not a Facebook user alleges the ubiquitous social media site violates the law in the same manner as Big Brother would. How, you ask? By collecting facial recognition data from user-uploaded photos without first notifying and receiving informed written consent from the people in the photos, both users and “unwitting” non-users of the site.

Specifically, Illinois resident Frederick Gullen contends that Facebook has stored over a billion templates of faces, which can uniquely identify a person in the same way a fingerprint or voiceprint does. However, the site fails to provide a publicly available policy of its guidelines for retaining and destroying non-users’ public information, according to the lawsuit.

In 2010, FB released its tagging feature, which works by scanning for faces in user-uploaded photos. It then extracts geometric data from each face, which is used to create a template of that face, “[u]nbeknownst to the average consumer,” according to Gullen.

“If no match is found, the user is prompted to ‘tag’ (i.e., identify by name) a person to that face, at which point the face template and corresponding name identification are saved in Facebook’s face database,” Gullen states. “However, if a face template is generated that matches a face template already in Facebook’s face database, then Facebook suggests that the user ‘tag’ to that face the name already associated with that face.”

The lawsuit contends that there could be tens of thousands of Illinois residents who aren’t Facebook users who but have had their photos uploaded to the social network.

According to the lawsuit, in May Gullen was “tagged” in a photo uploaded to Facebook by someone else without his permission. The template created from his facial features was also used by Facebook to recognize his gender, age, race and location.

Think all this is paranoid? Well, Google your image—you may be surprised at what comes up.

The lawsuit seeks to represent a class of Illinois residents who aren’t Facebook users but have been tagged in photos on Facebook.The case is Gullen v. Facebook Inc., case number 1:15-cv-07681 in the U.S. District Court for the Northern District of Illinois.

E-Cigarettes are Bad for You? Apparently, yes they are, according to a consumer fraud class action lawsuit brought against RJ Reynolds Vapor this week. The lawsuit claims the company’s electronic cigarettes contain carcinogens, which consumers were not warned about. Yes, that would make sense.

According to the e-cigarette lawsuit, filed by named plaintiff Jerod Harris, the manufacturer markets Vuse electronic cigarettes in a way that fails to inform customers of the potential health risks incurred by using the products, specifically, inhalation of the carcinogens formaldehyde and acetaldehyde. This violates California state consumer protection and unfair competition laws.

The lawsuit contends that RJ Reynolds began selling e-cigarettes in California during a time when consumers believed the product to be a healthy alternative to traditional cigarettes. This was because e-cigarettes contain nicotine but no carcinogens, they believed. However, RJ Reynolds knew this was not true, Harris claims in the lawsuit.

“Defendant knew of this public misperception regarding the true nature of e-cigarettes, yet introduced the products without disclosing the carcinogenic exposures resulting from ordinary use thereof,” the complaint states.

E-cigarettes are battery-operated products. They work by converting nicotine and other chemicals into an aerosol which is inhaled. According to Harris, consumers incorrectly believe that they are only inhaling water vapor, not aerosol. The suit cites a study and independent testing that shows aerosol contains cancer-causing formaldehyde and acetaldehyde.

The lawsuit also asserts that contrary to the marketing of e-cigarettes, which suggest they are a safer alternative than traditional cigarette, there are several studies which show they pose health risks to users and have adverse effects on the health safety of children and teenagers.

The lawsuit accuses RJ Vapors of violating California’s Unfair Competition Law and the California Consumers Legal Remedies Act by omitting the fact that the e-cigarettes expose users to carcinogenic chemicals.

The lawsuit seeks to represent a class of all California residents that purchased Vuse products from July 1, 2013, to the present. The case is Harris v. R.J. Reynolds Vapor Co., case number 3:15-cv-04075, in the U.S. District Court for the Northern District of California.

Top Settlements

They’ll be Driving Checks to the Bank…to the tune of $36 million—that’s the proposed settlement amount in a defective products class action lawsuit pending against Dyson-Kissner-Moran Corp, and two of its subsidiaries, who manufacture boat fridges.

In 2012, a lawsuit was filed alleging fridges intended for use in motor homes and boats (N1200, N6 and N8 models) had a defect that caused them to corrode, overheat and occasionally catch fire. That’s handy. A fridge that not only keeps food—it cooks it too. Nice touch.

Under the terms of the proposed settlement, the companies would pay $11 million a year for three years, with $3 million added in the third year.

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

Week Adjourned: 9.4.15 – Ashley Madison, Safeway, Schneider Drivers

Top Class Action Lawsuits

It Takes a Brave Man… A brave folk has manned up and filed a lawsuit against Ashley Madison in the US—this one in Alabama. The data breach class action, filed in federal court, claims the site and its owners and operators failed to protect its customers’ data or promptly alert them of the data hack that occurred in July. You think? The cyber attack publicly exposed information on 37 million Ashley Madison members. Oh yeah baby—that’s bad.

The lead plaintiff, who filed under the pseudonym “John Doe,” is claiming that Toronto-based Avid Life Media Inc, the parent company of Ashley Madison, was negligent and violated Alabama state and federal laws by not implementing proper security measures to protect its customers’ information and by not deleting its members’ data even after they paid $19 to have their information taken off the website.

According to the Ashley Madison lawsuit, in 2012 the plaintiff created an account with Ashley Madison. At that time he was not in a relationship, currently he is engaged. He states he became aware his information had been made public on August 21, roughly the same time his friends, customers and neighbors alerted him they were aware of his account. Doe contends he and his fiancée have also received a number of embarrassing messages from friends and family through social media. Ok—that’s not nice.

“Plaintiff was not in a relationship at the time he accessed the site, however, he is now in a committed relationship with his soon to be wife, and they have suffered much embarrassment and emotional distress as a result of Ashley Madison’s failure to protect Plaintiff’s private information,” the complaint states.

Doe claims that by allegedly misrepresenting to him that it had protected his data and deleted his account information when it hadn’t, Ashley Madison has violated the Federal Stored Communications Act and Alabama’s Deceptive Trade Practices Act.

Doe is also asserting breach of implied contract, bailment, conversion, fraud and misrepresentation and seeks compensatory and punitive damages. The case is John Doe v. Avid Life Media, Inc. et al, case number 6:15-cv-01464, in the U.S. District Court for the Northern District of Alabama.

You know, the truth really is stranger than fiction—you just can’t make this stuff up.

Top Settlements

Would you Like Those Delivered? Hell yes! And make sure the check’s in with the groceries. A big win for consumers who purchased groceries for delivery from Safeway—a federal judge in California has ruled that Safeway must pay about $30 million in damages to named plaintiff Michael Rodman and class members, because the grocery chain has been found liable in a breach of contract consumer fraud class action lawsuit. The lawsuit was brought by Rodman and fellow customers who allege the grocery chain overcharged for groceries purchased for delivery: it has promised price parity with store bought merchandise.

In the ruling, U.S. District Judge Jon S. Tigar held that $30 million is roughly the sum of what Safeway made by concealing markup prices for groceries delivered to class members from April 2010 to December 2012.

However, Judge Tigar ruled that Safeway was not liable for customers who used its delivery service prior to 2006 when the service was run by a third-party vendor.

“Class members are entitled to recover the aggregate amount of the difference between the prices charged during the class period for items purchased in the online store as compared to the price customers would have been charged for those items in the physical store from which they were selected and delivered,” Judge Tigar ruled.

The case is Rodman v. Safeway Inc., case number 3:11-cv-03003, in the U.S. District Court for the Northern District of California.

Truck Drivers Gettin’ a Break… Now here’s a result—to the tune of $28 million—a settlement has been reached in an employment class action lawsuit pending against Schneider National Carriers Inc. The lawsuit was brought by more than 6,000 California truck drivers who alleged the company had violated state wage-and-hour laws and failed to provide meal and rest breaks.

The plaintiffs are California-based truckers who worked for Schneider as intermodal, dedicated or regional drivers from November 2004 to the present.

As a class, they have asked the court to approve the settlement, thereby ending the litigation which began in 2008. A final hearing is scheduled for late September.

Under the proposed Schneider National Carrier settlement terms, 73 percent of the $28 million, or about $20.5 million, will be paid to settle claims made by the so-called dedicated and intermodal driver subclasses. The remaining $7.56 million would be used to settle the claims of the regional driver subclass.

“This settlement represents a substantial recovery for the class, and a well-crafted compromise of the divergent positions of the parties,” the motion states, and: “clearly meets, and exceeds, the standards for preliminary approval.”
The case is Morris Bickley et al. v. Schneider National Carriers Inc., case number 4:08-cv-05806, in the U.S. District Court for the Northern District of California.

Ok—That’s a wrap folks…Happy Labor Day—See you at the Bar!

Week Adjourned: 8.28.15 – Keyless Ignitions, Washio, Starkist Tuna

Top Class Action Lawsuits

Were Car Makers Keyless & Clueless? Heads up—Anyone with a keyless system for their Toyota, Ford, Nissan, Honda, BMW, General Motors, Volkswagen, Mercedes-Benz, or Hyundai—a defective automotive class action lawsuit has been filed against these car makers alleging that a flaw in the design of keyless fob systems has led to 13 documented deaths from carbon monoxide poisoning. The plaintiffs estimate that at least 5 million vehicles are affected by the alleged defect. Got that? Read on.

According to court documents filed in California court this week, the plaintiffs claim that reasonable drivers misunderstand that keyless-ignition fobs do not turn their vehicles engines off. Further, the cars don’t have a safety mechanism to automatically turn off the engine after it’s been left idling for a set amount of time. When the car engines are left running in owners’ garages, it can lead to in an increased risk of carbon monoxide poisoning.

“As a result, deadly carbon monoxide, often referred to as the ‘silent killer’ because it is a colorless, odorless gas, can fill enclosed spaces and spread to the attached homes,” the plaintiffs said. “The results have been at least 13 documented deaths and many more serious injuries requiring hospitalization, all from carbon monoxide poisoning.”

According to the keyless ignition fob lawsuit, in cars that use traditional keys, the engine can no longer operate once it’s removed from the vehicle. By contrast, keyless-ignition fobs can remotely turn on the engine, but have nothing to do with turning off the engine. Therefore, drivers can park their cars and exit with the keyless fob and still leave the engine running no matter how far the fob goes from the car.

The lawsuit alleges the defendants and their research and design companies installed the keyless fob systems without instituting proper safeguards and warnings.

Further, the plaintiffs contend that the lack of an auto-off feature is not mentioned in the car manuals, therefore failing to warn of the risk for carbon monoxide poisoning. The cars have no audible warnings alerting drivers that the engine is still running.

The plaintiffs assert that individuals personal injury lawsuits have been filed over the lack of an auto-off feature, resulting in confidential settlements. Similarly, consumers have filed complaints with the National Highway Traffic Safety Administration. However, the plaintiffs contend the automakers haven’t taken action in response to the complaints.

In fact, the plaintiffs assert that the automakers have known for years about the deadly consequences of drivers’ leaving their vehicles without hitting the start/stop button used in keyless-ignition cars, but that they refuse to act.

The lawsuit states that the auto-off feature is feasible and has already been implemented by some of the automakers. The plaintiffs claim that while some new vehicles are now outfitted with the auto-off system, the automakers are doing nothing to rectify older models or notify drivers about the potential safety risk.

The lawsuit asserts national claims for negligent failure to recall and unjust enrichment, as well as state claims for fraudulent concealment, violation of state consumer protection acts and breach of implied warranty, among others.

FYI—The case is Draeger et al. v. Toyota Motor Sales USA Inc. et al., case number 2:15-cv-06491, in the U.S. District Court for the Central District of California.

Washio Employees File Suit against the App’s Spin Cycle. This week, a potential employment class action lawsuit has been filed against Washio Inc., a mobile laundry application, over allegations it pays its employees below the minimum wage. Further, the complaint claims that Washio misclassifies its standard employees as independent contractors to avoid state labor laws. Washio, Uber, Lyft—are these the new face of employment law violators?

The Washio lawsuit was filed by Akil Luqman, a former Washio employee who worked for the company between March and June picking up and delivering customer laundry. In the lawsuit, he asserts the company paid employees for each customer stop, in violation of minimum and overtime wage laws. Further, he claims the company denied rest and break periods, failed to fully reimburse work expenses and issue correct pay stubs, and classified full-time hourly workers as independent contractors.

The complaint states that Washio’s classification of its employees as independent contractors “was in fact subterfuge by [Washio] to avoid granting employee status” because the company controlled the amount, time and place of the work performed and the level of pay the plaintiffs received.

The complaint also claims that Washio was in violation of California labor law because it failed to pay overtime or provide rest periods and breaks, despite frequently scheduling employees to work more than eight hours in a day and/or 40 hours in a week.

According to the complaint, Washio still operates in violation of state and federal labor laws, and therefore, the plaintiffs are seeking a permanent injunction halting the company’s actions, and an order requiring Washio to provide the names and contact information for all current and former employees that may be included in the proposed class.

Additionally, plaintiffs are seeking unspecified damages related to lost wages, undisclosed withholdings, unpaid overtime, unreimbursed expenses, denial of proper rest and break periods, and legal fees.

Luqman is represented by Kevin T. Barnes and Gregg Lander of The Law Offices of Kevin T. Barnes. The case is Luqman v. Wash.io Inc., case number BC592428, in the Superior Court of the State of California, County of Los Angeles.

Top Settlements

Here’s One for Every Tuna Lover—Sorry—Tinned Tuna Lover. A consumer fraud class action settlement has been reached between Starkist and consumers who alleged the company under-filled some of its 5-ounce canned tuna products by several tenths of an ounce. According to federal law a 5 ounce can of tuna must contain an average of 2.84 to 3.23 ounces of tuna, depending on variety.

According to the Starkist tuna settlement, if you purchased one or more of the StarKist Products between from February 19, 2009 through October 31, 2014, you may be eligible as a class member:

One or more 5 oz. can of Chunk Light Tuna in Water,

One or more 5 oz. can of Chunk Light Tuna in Oil,

One or more 5 oz. can of Solid White Tuna in Water, or

One or more 5 oz. can of Solid White Tuna in Oil (collectively, the “StarKist Products”)

Class Members who wish to file a claim must complete the appropriate form online or by mail, which must be postmarked no later than November 20, 2015 in order to be considered for benefits.

To file a claim and learn more about the settlement visit https://www.tunalawsuit.com

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

Week Adjourned: 8.21.15 – Ashley Madison, Time Warner, Lennox

Top Class Action Lawsuits

Were you “Outed”? …by the massive data breach of Ashley Madison? Are you one of some 37 million people who got caught with their firewalls down—sorry Ashley Madison’s firewalls? Well, further to all the talk about filing a class action, this week a data breach lawsuit was filed against the website.

The Ashley Madison lawsuit, filed on behalf of all Canadian subscribers, targets the dating website for married people as well as Avid Dating Life, Inc. and Avid Life Media, Inc., the corporations who run the website. The lawsuit is seeking $750 million in general damages and $10 million in punitive damages.

Eliot Shore, a widower from Ottawa, is the plaintiff in the lawsuit. He signed up with the website “for a short time in search of companionship” but, allegedly, never went on a date.

The plaintiffs are seeking compensation and access to justice for all affected. “Another major aspect of this is behaviour modification; (our clients) went to this website being promised anonymity and confidentiality, but their privacy has been violated. Corporations need to be accountable for what’s happened so that others can follow,” attorneys for the plaintiffs stated. True enough.

TWC got TCPA Troubles? Time Warner Cable Inc,(TWC) got hit with a putative class action lawsuit this week, filed by a former customer who asserts the company violated the Telephone Consumer Protection Act (TCPA). Specifically, the plaintiff, Raquel S. Mejia, alleges TWC used an autodialer to make at least two unsolicited sales calls a day to her cellphone in an attempt to win her business back.

Mejia claims she stopped using TWC in 2007 and never gave her consent to TWC to call her phone, nor did she have any business relationship with the cable provider after 2007.

According to the Time Warner Cable lawsuit, Mejia states that there were several indicators that the calls were made by autodialers, in violation of the TCPA. Specifically, she would sometimes answer a call and only hear background noise at what appeared to be a call center. A live call center representative would often take a few moments before engaging her, an indication they were not actively aware of an automatic dialing system’s activities, she claims.

“Based on the circumstances of the calls, including but not limited to the multiple calls over a short period of time, plaintiff was not immediately engaged by a live person … and defendant called despite plaintiff’s requests to defendant to stop calling (indicating a computer automatically dialed the number again), plaintiff believed defendant called her cellular telephone using an ATDS that automatically selected her number from a computer database,” the complaint states.

Stating that “the TCPA was enacted to protect consumers from unsolicited telephone calls exactly like those alleged in this case,” Mejia, on behalf of herself and all others who received similar allegedly illegal calls, is suing for an injunction against the practice and treble damages of $500 per TCPA violation. She is also seeking attorneys’ fees and costs, the complaint states.

The case is Raquel S. Mejia, individually and on behalf of all others similarly situated v. Time Warner Cable Inc., case number 15-cv-06445 in U.S. District Court for the Southern District of New York.

Top Settlements

Defective Air Conditioning Coils… remember those? A lawsuit against Lennox industries was the result and this week a settlement has been reached. The Lennox Air Conditioning lawsuit claimed the company’s air conditioning units are susceptible to formicary corrosion as a result of the deficient materials used in the manufacture of its coils. FYI—an evaporator coil is a part of an air conditioning system or heat pump system in the cooling mode.

Lennox denies all of the claims in the lawsuit, but has agreed to the settlement to avoid the cost and risk of further litigation.
The Lennox settlement class includes all U.S. residents who, between October 29, 2007 and July 9, 2015, purchased at least one new uncoated copper tube Lennox brand, Aire-Flo brand, Armstrong Air brand, AirEase brand, Concord brand, or Ducane brand evaporator coil, covered by an Original Warranty, for their personal, their family, or their household purposes, that was installed in a house, condominium unit, apartment unit, or other residential dwelling located in the United States.

Original Coils may have been purchased separately, as part of an air handler, or they may have been included as part of a Packaged Unit.

The final approval hearing is scheduled for December 2, 2015. The lawsuit is: Thomas v. Lennox Industries Inc., United States District Court for the Northern District of Illinois, Eastern Division, Case No. 13 CV 7747.

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

Week Adjourned: 8.14.15 – Tide Pods, MegaRed, SEPTA

Top Class Action Lawsuits

Are Tide Pods staining your laundry? According to a consumer fraud class action lawsuit, the candy-colored laundry detergent packets may end up staining Procter & Gamble Co’s bottom line as well. The Tide Pod lawsuit alleges that P&G’s Tide laundry pods can stain light-colored laundry. The lawsuit, filed on behalf of Lisa Guariglia, Micheline Byrne and Michele Emanuele, asserts that P&G engaged in deceptive trade practices and breached implied warranties. The complaint states that “Tide Pods have serious design defects … that cause them to produce permanent blue/purple stains on white and light-colored laundry, even when used as directed by P&G.”

In the lawsuit, Guariglia estimated that Tide Pods ruined at least $200 worth of her laundry, including towels, sheets and clothing, which had blue/purple stains that allegedly appeared after she began using Tide Pods. She further states that despite rewashing with other detergents and pretreating the stains with Shout stain remover, which is made by SC Johnson & Co., the stains remained. Similarly Emmanuele said she was unable to remove the stains she blamed on Tide Pods even with bleach. She estimated the detergent ruined at least $650 worth of towels, sheets and clothing. Plaintiff Byrne claims that in December 2012 her son and daughter had blue/purple stains on their clothes but she used Tide Pods for at least 18 more months before realizing the detergent was the cause. She estimated the detergent damaged at least $500 worth of clothing and other laundry.

The lawsuit states: “P&G failed to inform consumers, through the directions on the packaging or any other written disclosure, even when consumers use Tide Pods as instructed by P&G, that blue/purple staining will result due to defects in the design.” However, “on P&G’s own website, P&G has acknowledged that Tide Pods can cause blue/purple stains on laundry and insists that this staining can only occur when the consumer is not using the product correctly,” the suit states. The complaint cites an article in Consumer Reports magazine, published February 20, 2014, which quotes a P&G spokesperson who said such stains can be caused by not putting a Tide Pods pack into the washing machine before clothing is inserted or by overstuffing a machine with laundry. “P&G reiterated over and over, in its responses to consumer complaints, that it would not put a product on the market that would ruin laundry, that Tide Pods have been successfully tested, and it is certain that if used as directed, Tide Pods do not stain laundry,” the lawsuit states. “However, it is clear from plaintiffs’ experiences, as well as those of the customer complaints set forth above, and the hundreds of additional complaints on the Tide website, that even when used as directed, Tide Pods permanently stain white and light-colored laundry.” So—no more blaming dodgy washing on the laundry fairy! The lawsuit seeks to represent anyone in the United States who bought Tide Pods and had laundry damaged.

Is MegaRed a Mega Crock? Another wonder supplement got hit with a consumer fraud class action lawsuit this week. This one targets Reckitt Benckiser Group PLC and its subsidiary Schiff Nutrition International Inc, alleging the companies misled consumers about the health benefits of krill oil. According to the complaint, the defendants marketed the krill oil as a dietary supplement with cardiovascular benefits it does not have. Really? How unusual.

The nitty gritty is that the defendants made claims that an omega-3 fatty acid dietary supplement marketed as MegaRed would help prevent heart disease. According to the proposed MegaRed class action, these types of claims have drawn attention from the US Food and Drug Administration (FDA), which has allegedly condemned such advertisements, describing claims about omega-3’s health benefits as “false and misleading.” Well, that certainly did a lot of good.

“In conjunction with their extensive, long-term campaign of deceptive advertising and misleading statements,” the complaint states, “defendants have violated [the FDA’s] clear directives by … consistently and repeatedly falsely telling consumers that taking just ‘one small softgel per day’ may reduce the risk of coronary heart disease.” Further, the complaint cites a guideline by the American Heart Association recommending that patients consume 500 to 1,000 miligrams of omega-3 fatty acids daily to help combat heart disease. A single MegaRed capsule, the supplement’s recommended daily dose, contains only 50 mg of omega-3 fatty acids.

The proposed class action asserts the packaging for MegaRed is misleading because it claims that using “just one small softgel” of the supplement daily “may reduce the risk of coronary heart disease.” Schiff has marketed the size of the MegaRed capsules, which are slight in comparison to fish oil capsules, as having similar health benefits, which is one of the product’s main advantages. Named plaintiff in the complaint, Jeffrey Johnson, a “health-conscious individual” contends that he and others like him were misled by the marketing claims, and as a result paid a premium for the supplement, which costs significantly more than fish oil. The proposed class action complaint accuses Schiff of unjust enrichment, on behalf of a nationwide class; and violations of the California Consumers Legal Remedies Act; California Unfair Competition Law; California False Advertising Law; and California Sherman Food, Drug and Cosmetic law, on behalf of a Californian subclass. Plaintiffs are seeking an injunction prohibiting Schiff from further misleading advertisements, as well as actual and punitive damages.The case is Johnston v. Schiff Nutrition International et al., case number 3:15-cv-03669, in the US District Court for the Northern District of California.

Top Settlements

Strike One for the Little Guys. A $13.1 million settlement has been awarded to Southeastern Pennsylvania Transportation Authority workers who alleged the authority was in violation of the Fair Labor Standards Act shift work. According to court filings, “The parties now believe that considering the costs and risks of continuing this litigation, it is in their best interests to fully and finally resolve plaintiffs’ claims.” The parties filed a joint motion for approval, which involves some 2,300 current and former bus and trolley drivers. If approved, the SEPTA settlement will end a case first brought in June 2011, alleging SEPTA did not pay its drivers for off-the-clock time spent doing tasks before pulling their vehicles out at the start of their runs.

“Resolution of the FLSA claim requires a factual determination of the amount of time operators are required to work prior to their scheduled start, and a legal determination regarding whether this time is compensable and subject to the overtime provisions of the FLSA,” a three-judge Third Circuit panel stated. The case is David Bell et al. v. Southeastern Pennsylvania Transportation Authority, case number 2:11-cv-04047, in the U.S. District Court for the Eastern District of Pennsylvania.

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

Week Adjourned: 8.7.15 – uConnect, Soccer Injury, Residential Capital

Top Class Action Lawsuits

Car Hacking = Car Jacking = Lawsuit!!!! That’s all the math we need, and indeed three Fiat Chrysler customers, who have have filed a proposed consumer fraud lawsuit alleging the recent recall of 1.4 million Dodge, Ram and Jeep vehicles for a software patch is not enough to safeguard customers against hacking of uConnect and the 3G “infotainment” systems networked into the vehicles.

Cast your mind back…

“On July 21, 2015, Wired Magazine published an article in which security researchers demonstrated the ability to remotely hack into a 2014 Jeep Cherokee while it was driving on a highway in St. Louis,” the lawsuit states. “They were able to gain access to the vehicle through security vulnerabilities in the uConnect system. Once they were ‘inside,’ the researchers were able to rewrite encoded chips in the uConnect hardware which allowed them to access and issue commands.”

The Fiat Chrysler lawsuit is seeking a court order forcing Fiat Chrysler to physically disconnect the uConnect system from the controller area network, or CAN bus network, that links it to the rest of the vehicles electronics. The plaintiffs claim this is the only way to ensure those other systems are protected from hacking. The complaint also names Harmon International Industries, the maker of the infotainment system, as a defendant.

According to the plaintiffs, hackers could even use uConnect to shut down cars while on the highway, both through the 3G network, which cannot be disconnected, and through the radio, a separate hacking risk that is currently under investigation by the National Highway Traffic Safety Administration. That investigation is looking into an estimated 2.8 million additional vehicles with uConnect from other manufacturers on top of the ones Fiat Chrysler recalled.

The lawsuit contends that Fiat Chrysler was aware of the hacking vulnerability almost 18 months prior the recall, and waiting for the recall to be issued constituted a breach of the company’s responsibilities under the Transportation Recall Enhancement, Accountability and Documentation Act. Further, that wait means Fiat Chrysler cannot be trusted to expeditiously address vulnerabilities found in the future, the complaint states.

“It’s clear the defendant chose to finally update the software only because the flaw was being made public by the security researchers,” the lawsuit states. However, the plaintiffs contend that simply updating the software on affected cars is a complicated process that will not guarantee future safety. Therefore, Fiat Chrysler is liable for fraud for its characterization of the recall as a software issue rather than an inherent vulnerability resulting from the link between uConnect and the other systems, the plaintiffs assert.

“Defendants’ claims that this update makes these vehicles safe are untrue,” the plaintiffs contend. “By inaccurately describing the problem, the defendants are perpetrating a fraud on class members and giving them a false sense of security.” The case is Flynn et al v. FCA US LLC et al, case number 3:15-cv-00855 in the U.S. District Court for the Southern District of Illinois.

Where are those electric self-driven cars they’ve been promising?

Heads Up Soccer Moms! A personal injury and negligence class action lawsuit has been filed on behalf of several current and former soccer players against soccer’s worldwide governing body, FIFA, and affiliated soccer organizations in the United States including U.S. Youth Soccer and American Youth Soccer, leagues responsible for over three million child and adolescent soccer players in the United States, for allegedly failing to incorporate up-to-date guidelines into their concussion policies.

The soccer concussion lawsuit states that no rule limits headers in children’s soccer, and children are often taught to head the ball from the age of three. A dedicated youth player might sustain 1,000 headers per year, and a high school player more than 1,800 headers.

The lawsuit seeks the following:

– Require FIFA and its U.S. affiliates to implement up-to-date guidelines for detection of head injuries and for return to play after a concussion.

– Regulation of heading by players under 14 years old.

– A rule change to permit substitution of players for medical evaluation purposes.

The lawsuit alleges that these groups have failed to adopt effective policies to evaluate and manage concussions, a common occurrence at all levels of the game. They also claim that a lack of effective policies poses a greater danger to women and children players, who are more vulnerable to traumatic and long-lasting brain injury.

Top Settlements

Here’s a whopper…A $235 million settlement has been approved, ending a securities class action brought by a pension fund against Citigroup Global Markets Inc., Goldman Sachs & Co. and UBS Securities LLC, over allegations that the Residential Accredit Loans Inc. (RALI) certificates’ seller, Residential Capital, and the underwriter defendants failed to disclose weaknesses in the underlying loans in approximately 59 offerings.

The lawsuit was brought in 2008 by the New Jersey Carpenters Health Fund in New York over the sale of mortgage-backed securities to the fund as well as other investors in several offerings between 2006 and 2007 that were issued and sold by RALI. The class action claimed the prospectuses had material misstatements and omissions.

There are three tiers of putative class members, and the funds will be distributed based on the strength of their claims at the time of settlement.

The case is New Jersey Carpenters Health Fund et al. v. Residential Capital LLC et al., case number 1:08-cv-08781, in the U.S. District Court for the Southern District of New York.

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

Week Adjourned: 7.31.15 – CVS, Hip Implants, Fiat Chrysler

Top Class Action Lawsuits

How much did you Pay for Generic Drugs at CVS? There’s a potentially $65 million dollar question, which pharmacy customers of CVS Health Corporation (CVS) are looking to get answered. They filed a class action lawsuit in the United States District Court for the Northern District of California alleging that CVS employed a fraudulent scheme to overcharge millions of customers across the country for generic prescription drugs.

CVS is alleged to have implemented and maintained a false and deceptive pricing scheme affecting more than 400 generic drugs, forcing customers with health insurance to pay CVS copayments far higher than the usual and customary price CVS charged its cash-paying customers.

CVS generates approximately $67 billion in annual revenues from its retail pharmacy business, and plaintiffs allege that CVS’ wrongful overcharging is a significant percentage of those revenues.

According to the complaint, for seven years CVS has systematically been overcharging their insured consumers for prescriptions. The alleged scheme is especially harmful to those people with low or fixed incomes who use medications on a regular basis. Plaintiffs assert that the drug chain wrongfully has charged insured consumers inflated copayments on more than 400 generic medications, including some of the most commonly used drugs on the market today. According to the complaint, millions of people have been affected by this misconduct.

The plaintiffs seek to represent all consumers who were participants in third-party healthcare plans and who filled their prescriptions for certain generic drugs at CVS between November 2008 and the present, and paid more than prices available under the CVS Health Savings Pass program.

Top Settlements

Hip Implant Defect Award for Plaintiff. A first this week—with a jury in Los Angeles awarding $9.1 million to man who received a Durum Cup hip implant made by Zimmer. The defective products lawsuit alleged that Zimmer was aware of the design defect in its hip implant and was therefore negligent in designing it. The Durum cup implant allegedly causes bone and tissue damage that may lead to pain and replacement surgeries. This is the first such lawsuit to go against Zimmer, reportedly.

The Zimmer Durom Cup was implanted in some 13,000 patients before it was removed from the US market in 2008. Fifty-nine year old Gary Kline, from California, received the defective product in 2007 only to have it removed 15 months later. According to his lawsuit, he endured two “traumatic surgeries” in 15 months that caused scar tissue and muscle damage.

Finding in the plaintiff’s favor, the jury hearing Kline’s case found Zimmer negligent in the design of the Durom Cup and that the company failed to warn about the product’s defect.

The verdict includes about $153,000 in medical bills and $9 million in past and future non-economic damages such as pain and suffering and emotional distress. Although Los Angeles County Superior Court Judge Amy Hogue had denied a request for punitive damages, Kline’s lawyer said the jury awarded $3 million more than his client had asked.

Big Automotive News this Week… Fiat Chrysler is looking at ponying up a record $105 million in fines to the US government for violating laws in a series of vehicle safety recalls. Additionally, Fiat Chrysler will have to buy back 500,000 Ram pickup trucks and other vehicles in order to take them off the roads, the National Highway Traffic Safety Administration said.

The fines were prompted by Fiat Chrysler’s failure to act quickly enough on safety recalls. The fines are the biggest of their kind in US history.

According to media reports, owners of 1.54 million recalled older model jeeps with receive payments from the automaker. The jeeps have gas tanks behind the rear axle and are vulnerable and leak gasoline if damaged during a collision. Customers can bring them to dealers to install trailer hitches to help protect the tanks. FC is not buying back the Jeeps because it maintains those vehicles are as safe as comparable vehicles built at the time.

The NHSTA’s actions come less than a month after it held a public hearing into problems with 23 Fiat Chrysler recalls which affect over 11 million cars and trucks. At the hearing, NHTSA cited a long list of serious shortfalls, specifically, failure to notify customers of recalls; delays in making and distributing repair parts; and, in some cases, failing to come up with repairs that fix the problems. Some of the recalls date to 2013.

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