Class Action Lawsuit

Week Adjourned: 7.12.13 – Ford, BofA Mortgages, Ticketmaster

The top class actions and settlements for the week ending July 12, 2013. This week’s highlights include Ford hybrids, Bank of America loan modifications and Ticketmaster Entertainment Rewards program.

Top Class Action Lawsuits

Heads-up all you Ford Hybrid owners. A defective automotive class action lawsuit has been filed against Ford alleging the car manufacturer’s hybrid sedans can shut down without warning. Not good!

Specifically, the Ford Hybrid class action claims that because of a flaw in the engine-cooling systems, two of Ford’s hybrid sedans can shut down without warning while traveling at highway speeds. The lawsuit further claims that Ford has known of the defects since 2005 based on pre-release testing data, consumer complaints, warranty reimbursement rates and data from Ford dealerships.

The Ford lawsuit claims the defects are present in the 2005 through 2008 models of the Ford Escape Hybrid and the 2006 through 2008 models of the Mercury Mariner. These models were the first hybrid crossovers to be released by a US car manufacturer.

The backstory: Filed by lead plaintiff Jean MacDonald, the lawsuit, entitled MacDonald v. Ford Motor Co., Case No. 3:13-cv-02988, in the U.S. District Court for the Northern District of California, alleges MacDonald purchased a new 2007 Ford Escape hybrid from a California dealership and put more than 43,000 miles on it without incident. Then, in December 2012, the car’s “Stop Safely Now” light went on and the vehicle went powerless in the middle of the freeway.

A dealership determined the vehicle there was a malfunction of a cooling pump associated with the MECS, and replaced it at a cost of $767. The MECS (Motor Electric Cooling System) is used in the Ford hybrids to diffuse the heat generated by the hybrid vehicles’ battery-powered motor component. The MECS releases hot air into the atmosphere. To prevent the vehicles from sustaining damage from the heat, the vehicles are designed to shut down whenever the MECS becomes inoperative.

According to the lawsuit, Ford’s MECS coolant pumps are “substantially certain” to fail suddenly and without warning, causing the vehicle to shut down immediately. Because the engine shutdown can occur while the vehicle is traveling at highway speeds, drivers may find themselves in an extremely dangerous situation.

“The coolant pump causes unsafe conditions in the class vehicles, including but not limited to abrupt losses of acceleration, inability to manoeuvre the vehicle due to reduced speed, slowed steering, and in certain cases, complete vehicle failure,” the lawsuit states. This sudden engine failure can leave a driver stranded in the middle of a busy highway if a shoulder cannot be reached before the vehicle comes to a complete stop.

“Defendant knew about and concealed the coolant pump defect present in every class vehicle, along with the attendant dangerous safety and driveability problems, from plaintiff and class members, at the time of sale, lease and repair,” the Ford complaint states.

In bulletins issued by Ford, the company issued instructions on how Ford mechanics were to replace the allegedly defective coolant pump with a nondefective model, but the carmaker has allegedly told consumers that they are on the hook for the costs of a new system rather than repairing it under warranty.

“Instead of repairing the defect in the MECS coolant system, Ford either refused to acknowledge their existence, or performed ineffectual repairs that simply masked the effect,” according to the lawsuit.

The Ford class action lawsuit seeks to represent a nationwide class of buyers and lessees of the allegedly defective Escape and Mariner models, as well as a subclass of California-based customers under the state’s Consumer Legal Remedies Act.

Bank of America—at it again? If you hold a BoFA mortgage, read this: A consumer banking deceptive practices class action lawsuit has been filed alleging that Bank of America (NYSE:BAC) created and headed an illegal enterprise designed to defraud homeowners seeking loan modifications as part of the government’s Home Affordable Modification Program, or “HAMP.”

The BofA loan modification class action, filed in US District Court in Colorado on July 10, alleges that Bank of America masterminded a scheme which allowed it to deny help it had promised to give thousands of its customers in exchange for $45 billion it took in bailout funds.

“We believe that Bank of America gamed the system, perpetrating a fraud on both its customers and American taxpayers,” said Steve Berman, managing partner of Hagens Berman and one of the attorneys who filed the lawsuit. “BofA promised that it would work with homeowners to modify their mortgages under the HAMP program. Instead it took $45 billion in taxpayer money and fought as hard as it could to avoid granting modifications, squeezing every last dollar from its customers and wrongfully foreclosing thousands of people’s homes in the process.”

The lawsuit alleges that Bank of America employed contractors, including co-defendant Urban Lending Solutions (“Urban”), who repeatedly lied to Bank of America’s customers. For instance, the suit claims that Urban employees answered the phone, “Bank of America – Office of the President,” when they did not work directly for Bank of America.

Former employees, according to the complaint, have confirmed that Bank of America instructed its employees to delay modifications, claim that it had not received paperwork and payments when it had received them, and declined modifications en masse in periods known internally as “blitzes.”

The complaint also alleges that Bank of America went to great lengths to keep its employees silent about these issues. According to the BofA class action, employees who questioned the ethics of declining modifications for fraudulent reasons, or of lying to customers, were subject to discipline including termination.

The lawsuit claims that Bank of America is guilty of violating the Racketeering Influenced Corrupt Organizations Act, or RICO. It asks for damages to be awarded to a proposed class defined as:

“All individuals whose home mortgage loans have been serviced by BOA and who, since April 13, 2009, (1) applied to BOA for a HAMP loan modification, (2) fulfilled an FHA Trial Period Plan Agreement or any other trial-payment agreement that was not issued pursuant to SD-09 (form 3156), (3) sent documents to, or received documents or other communications from, Urban employees in connection with their attempts to modify their home mortgage, and (4) did not receive, within 30 days after making all required trial payments, a permanent loan modification that complied with HAMP rules.”

Top Settlements

This one’s on Ticketmaster! A proposed settlement has been reached in the Ticketmaster consumer fraud class action lawsuit which alleges the company deceptively enrolled website visitors into an “Entertainment Rewards” program.

The Ticketmaster lawsuit, entitled John Mancini, et al. v. Ticketmaster, et al., Case No. 7-cv-01459 DSF, U.S. District Court, Central District of California, alleges that Defendants enrolled customers of Ticketmaster.com into the “Entertainment Rewards” program through a process that was likely to deceive reasonable consumers. In particular, Plaintiffs allege that Defendants did not adequately disclose that customers were being enrolled in an online coupon service and that they would be charged a monthly fee for that service, typically $9, on the credit or debit card they used at Ticketmaster.com.

Plaintiffs further allege that the vast majority of enrollees who were charged for the Entertainment Rewards program did not use the program or otherwise benefit from it. Excluding customers who have previously obtained a full refund, Plaintiffs allege that there are approximately 1,120,000 such customers and that the total paid by these customers (net of partial refunds) for membership in Entertainment Rewards was approximately $85 million. Plaintiffs assert violations of California and federal law.

Class Members eligible for part of the Ticketmaster settlement include all US residents who: made a purchase on Ticketmaster.com between September 27, 2004 and June 9, 2009: were enrolled in the “Entertainment Rewards” discount coupon program via a process that included Ticketmaster’s transfer of their credit or debit card information to Entertainment Publications, Inc,: were subsequently charged for their membership in the Entertainment Rewards program: did not receive a full refund of amounts charged, and as of May 8, 2013, have not printed any coupon or applied for any cashback award in connection with the Entertainment Rewards program.

Eligible class members will receive a cash refund of the amounts they paid for membership in the Entertainment Rewards program (other than amounts that have already been refunded), up to a maximum of $30, however this is dependent on the number of successful claims filed.

A final hearing is set for July 29, 2013, and if approved, the settlement will resolve the lawsuit against Ticketmaster, Entertainment Publications, Inc. and IAC/InterActiveCorp (“Defendants”) brought by several Ticketmaster customers (“Plaintiffs”).

Complete information and claim forms are available at www.EntertainmentRewardsSettlement.com.

Ok folks, Have a great weekend—see you at the bar!

Week Adjourned: 7.5.13 – Kendra Wilkinson AbCuts, BofA, BP Bad Gas

The week’s top class action lawsuits and settlements. This week, top stories include Kendra Wilkinson and AbCuts diet supplements, Bank of America debt collection harassment, and BP contaminated gas.

Top Lawsuits

The Girls Next Door are in trouble—well—one of them at any rate. Kendra Wilkinson, the former star of “The Girls Next Door” and “Kendra,” is facing a consumer fraud class action lawsuit over allegations she advertised a fat loss supplement that is ineffective and possibly dangerous to people’s health. The other named defendants are marketer Corr-Jensen Inc, and nutritional supplement retailer GNC Corp.

Adam Karhu filed the Kendra Wilkinson weight loss lawsuit, alleging the diet supplement “Ab Cuts” (Abdominal Cuts) fat loss supplement was advertised by Wilkinson as “a health supplement, not a diet pill,” which was false and misleading. Ok people, really? In what universe does the name Ab Cuts sound like a health supplement?

Entitled Karhu v. Corr-Jensen Labs Inc. et al., Case No. 13-cv-03583, in the U.S. District Court for the Eastern District of New York, the lawsuit specifically claims that Wilkinson promotes Ab Cuts on her website and through Facebook and Twitter, in addition to appearing on almost all product promotions, including appearances on talk show appearances and in celebrity magazines. According to the lawsuit, Wilkinson makes paid appearances at GNC stores across the country, claiming that Ab Cuts is her “I-Cheat-Every-Day Diet.” Note to Kendra: careful what you say…this lawsuit may give new meaning to “cheat”…)

The Ab Cuts product line has 11 different dietary supplement products all made with the same active ingredient, conjugated linoleic acid (“CLA”). According to the product advertising, CLA promotes fat and weight loss. But—according to the lawsuit, the science just ain’t there. In fact, the complaint alleges that CLA may actually increase the risk of type 2 diabetes, cardiovascular disease and hypertension. That sounds healthy!

Putative members of the Kendra Wilkinson diet lawsuit include anyone in the US who bought Ab Cuts, excluding people who purchased the products for resale. The AbCuts lawsuit alleges breach of express warranty, breach of the implied warranty of merchantability, unjust enrichment, violation of the Magnuson Moss Warranty Act, and for violation of New York’s consumer protection laws.

Bank of America (BoFA) got nailed this week, with a debt collection harassment class action lawsuit alleging America’s biggest bank is in violation of the federal Telephone Consumer Protection Act (TCPA) and the Florida Consumer Collection Practices Act. Add this to the list of possible legal digressions.

Filed by Broward County resident Marc Katz, the lawsuit, entitled, Marc Katz v. Bank of America NA, case number 0:13-cv-61372, U.S. District Court for the Southern District of Florid, alleges BoFA uses automated dialers to call the cell phones of people who have debt with the bank. That would certainly raise your blood pressure.

Specifically, Katz claims that in 2010 BoFA launched a mortgage foreclosure action against him in Florida state court. The bank then continued to call his cellphone using automated dialing systems in an effort to try and collect the purported debt. This occurred even after the bank was told to contact Katz’s attorney for anything related to the foreclosure action, according to the lawsuit.

“Despite receipt of a letter of representation, and its inherent cease communication directive, defendant’s continued collection efforts involved the placement of auto-dialed calls and/or recorded messages to the cellular telephones of allegedly delinquent consumers,” the debt collection harassment class action lawsuit states.

Further, Katz claims that when he answered the calls a machine-operated voice would advise him to “please hold for the next available representative,” forcing him to wait and listen to music or “dead air” before an actual person came on the line, the lawsuit states. “Defendant’s persistent and unlawful calling campaign was carried out with the intent to abuse and harass the plaintiff,” the lawsuit claims.

Heads up—the lawsuit has been filed on behalf of a putative class consisting of all individuals in Florida who were the subject of Bank of America’s debt collection activities related to their residential property in Florida and who were represented by counsel with respect to said debt and still received pre-recorded or auto-dialed calls on their cellphones from the bank over the past four years.

Top Settlements

Did you buy dodgy gas from BP? If so, you may be in line for some cash. The petrochemical giant (BP Products North America Inc), reached a $7 million defective product settlement concerning allegations it sold contaminated gasoline. Contaminated gasoline? Don’t get me started.

According to a statement issued on the settlement, the BP contaminated gas lawsuit was filed after BP recalled approximately 4.7 million gallons of contaminated gasoline, which it distributed from its Whiting, Indiana, refinery to more than 575 retail outlets in Indiana, Illinois, Wisconsin and Ohio.

Various problems, ranging from engine issues to damaged fuel systems, resulted from the use of the contaminated gasoline, affecting thousands of customers. According to the statement, people who are eligible for a portion of the settlement will be notified in the near future…

Ok folks, Happy July 4 Weekend! See you at the bar!

Week Adjourned: 6.28.13 – Apple, Mesh Implants, Jackson National

The week’s top class action lawsuits and settlements in our weekly wrap, Week Adjourned. Top stories include Apple, Mesh Implants and Jackson National

Top Class Action Lawsuits

Hey Apple, iAin’t got HD. Apple is facing yet another consumer fraud class action lawsuit. This week’s lawsuit contends that the tech giant charges its iTunes customers extra for accessing high definition (HD) media products for older Apple devices, despite the fact that those devices lack HD capability.

Hmm.

In the Apple iTunes class action lawsuit, lead plaintiff Scott J. Weiselberg claims that the default download option provided on Apple’s iTunes is HD, which is more expensive than non-HD options for movie and TV show rentals, for example.

The backstory—in 2008, Apple began offering movie and video download rentals for its iPhone, iPod and iPad devices. However, early models of these devices were not equipped with HD, and so cannot run HD content, but are restricted to playing standard definition (SD) content instead. Only newer versions of Apple products are HD-capable.

The lawsuit alleges that in June 2010 Weiselberg, who owned a 3G SD iPhone, rented the movie “Big Daddy” from iTunes, paying $4.99 in rental fees. He alleges he was unaware that a cheaper option was available for rental—the SD version of the movie. Had he known, he claims, that would have been the version of the movie he would have rented. Makes sense.

Weiselberg alleges that while Apple eventually added a notice to the iTunes download notifying customers of the availability of SD, by that time Apple had already collected “millions of dollars in undeserved profits.”

The consumer fraud class action claims that Apple’s failure to notify its customers of the SD option is a violation of California’s Unfair Competition Law. He is seeking restitution, an injunction and damages for unjust enrichment. We shall see….

Top Settlements

TVM Settlement, For Some. A victory at last—for some women—but the battles go on. A $54.5 million settlement has been reached, potentially ending several transvaginal mesh lawsuits which allege the implants eroded in the plaintiffs, leaving them incontinent and suffering from chronic pain.

Endo Health Solutions Inc, which acquired American Medical Systems Inc., (AMS), the maker of the vaginal-mesh devices, which include the Perigee, Apogee and Elevate implants, said in a statement that is set to resolve an undisclosed number of the vaginal mesh personal injury lawsuits. However, AMs is facing over 5,000 such lawsuits, which have been consolidated: the first lawsuit set to go to court in December 2013. This settlement agreement doesn’t address these lawsuits.

The AMS settlement will resolve a small number of vaginal mesh injury lawsuits filed in both federal and state courts. Lawyers representing the plaintiffs stress that no universal settlement has been made. The first cases are set to go to court later this year.

In August 2011, the US Food and Drug Administration issued a report stating vaginal-mesh products should be classified as high risk devices, based on a review of side-effect reports from January 2008 to December 2010. Women’s groups are demanding that the devices be recalled. I should think so.

Better late than never! Heads up anyone who purchased or knows an elderly person who purchased Jackson National annuities—A $25 million settlement has been proposed, which, if approved, would settle the proposed consumer fraud and elder financial abuse class action pending against Jackson National Life Insurance Co. The insurer has agreed to pay the settlement which would end the litigation and bring economic relief to over 44,000 elderly customers in California who bought their fixed deferred annuity products. Yes—44,000 customers.

The Jackson National annuities lawsuit alleges that Jackson National targeted its senior citizen customers in the selling of its deferred annuities that had hidden fees, commissions and surrender penalties, essentially defrauding these clients.

According to court documents, the terms of the proposed class action stipulate that Jackson National make cash payments or account credits equal to 22 percent of any past surrender charges the affected policyholders incurred. The insurer will also reduce any future surrender charges by 22 percent. If the Jackson National settlement is approved, these benefits will go into effect automatically; there will be no claims process, and Class Members will not be required to do anything to receive the full settlement benefit.

“The price of delay is particularly high in this litigation because a substantial portion of the class consists of elderly consumers who cannot wait years for relief,” the memorandum said. “Continuation of the litigation would be extremely expensive and risky.” To say the least— perhaps?

The proposed Class includes all California individuals who were age 60 years or older when they purchased misleading deferred annuities from Jackson National insurance, between October 24, 2002, and January 12, 2012.

Okee dokee—that’s it for this week. A safe and happy weekend to all. See you at the bar!

Week Adjourned: 6.21.13 – Intern Pay, McDonald’s, Flonase

The top class action lawsuits and settlements for the week ending June 21, 2013. Top stories include intern pay, McDonald’s paying workers with plastic, and the much-awaited Flonase settlements.

Top Class Action Lawsuits

Unpaid Interns Going for Big Payday… or at least their day in court. A former unpaid intern at Atlantic Records claims the record company required him to work full-time over eight months without pay, often 10 hours a day, according to a proposed employment class-action law suit filed in State Supreme Court in Manhattan.

Of note, the Atlantic Records class action is the first unpaid internship lawsuit to be filed against a music industry business, according to lawyers involved in lawsuit; the class action alleges that Atlantic Records and its parent, Warner Music Group Corp, violated New York State Labor law by requiring the intern, Justin Henry, of Brooklyn, to work full time without pay.

Henry was an intern in 2007 for Atlantic engaged in filing, faxing, answering phones and fetching lunch for paid employees, according to the suit. He alleges his internship existed solely for the benefit of Atlantic Records, and that he received no training or mentorship. Sadly, we’ve heard this before.

According to the Fair Labor Standards Act and New York Labor Law, unpaid internships must exist for training purposes and employers may derive “no immediate advantage” from the work provided by interns.

So, Henry is seeking to recover unpaid minimum wages ($7.15 per hour) and overtime, as well as attorney’s fees.

Plastic Pay at McDonald’s? No stranger to employment lawsuits, McDonald’s is facing a potential employment class action, with a new twist. The lawsuit was filed by an employee in Pennsylvania who alleges she was issued with a fee-loaded Chase Bank Debit card, instead of a paycheck. Yes, really.

Natalie Gunshannon, a 27-year old single mother, worked at McDonalds in Luzerne County, PA, at an hourly rate of $7.44 from April 24 through May 15. When she received her first paycheck, it was not a check at all but rather a JP Morgan Chase debit card which would cost her $1.50 for ATM withdrawals, $5 for over-the-counter cash withdrawals, $1 per balance inquiry, 75 cents per online bill payment, and $15 for a lost or stolen card. Nice. I wonder who thought this one up.

When Gunshannon asked if she could be paid by check she was allegedly told that the debit card was the only option. Furthermore, her future earnings would be deposited into the debit card account and she could access her money from there. “McDonald’s does not provide a choice for hourly employees to receive their justly earned wages through a bank check, cash or direct deposit,” the lawsuit said. Pennsylvania law states that employees are entitled to have a choice to be paid by check or cash.

Go get’em!

Top Settlements

Flonase Settlements Approved. GSK will have to pony up $185 million in two recently approved settlements involving the marketing—or not—of Flonase nasal spray. They were facing two antitrust class actions both of which allege that GSK deliberately prevented generic versions of Flonase nasal spray from going to market.

The Flonase settlements total $185 million, with $150 million designated for reimbursement to people and entities in the US who purchased Flonase directly from GSK at any time from May 19, 2004 until March 6, 2006. For complete information on this settlement, and to download forms, visit flonasedirectsettlement.com The case is, In re Flonase Antitrust Litigation, No. 08-CV-3149, is pending in the United States District Court for the Eastern District of Pennsylvania.

A second class involving those who indirectly purchased Flonase and generic Flonase—will receive reimbursement from a $35 million settlement fund. These class members include anyone who purchased Flonase or generic Flonase for personal, family or household consumption in the United States and its territories from May 18, 2004 through March 31, 2009. Also included in the class is anyone who made co-payments or other partial out-of-pocket payments through their health plans. For complete information on this settlement visit flonasesettlement.com The case is In re Flonase Antitrust Litigation, Case No. 8-cv-3301 and Medical Mutual of Ohio v. GSK, Case No. 12-cv-4212 in the Eastern District of Pennsylvania.

Okee dokee—that’s it for this week. A safe and happy weekend to all. See you at the bar!

Week Adjourned: 6.14.13 – Class Action against Obama?

Takes a set of you-know-what to sue the President, but… That’s the lead story in this week’s wrap of top class action lawsuits and settlements, for the week ending June 14, 2013.

Top Class Action Lawsuits

If You’re Gonna Sue, Sue Big. In the unlikely event any of us were napping last week—and missed this—it’s among the first of what’s likely to be an onslaught of wiretap class actions resulting from, well, surveillance activities undertaken by the federal government. First up to bat, these plaintiffs are certainly not shy about naming defendants: The wiretap class action names President Obama, US Attorney General Eric Holder, the director of the National Security Agency (NSA), the NSA, the CEO of Verizon, the US Department of Justice, and Judge Roger Vinson of the US Foreign Intelligence Surveillance Court as defendants. Judge Vinson is named as a defendant because he signed the secret order directing Verizon to turn over all phone records “on an ongoing daily basis.”

According to the wiretap class action lawsuit, this constituted an “outrageous breach of privacy” and a violation of Verizon users’ “reasonable expectation of privacy, free speech and association, right to be free of unreasonable searches and seizures, and due process rights.” The wiretap lawsuit challenges the legality of the NSA’s “secret and illegal government scheme to intercept and analyze vast quantities of domestic telephone communications.”

The potential class action lawsuit, entitled Klayman, et al. v. Barrack Hussein Obama II, et al., Case No. 13-cv-00851, U.S. District Court for the District of Columbia, seeks to represent a class of American citizens in the United States and overseas who are either curren or previous Verizon customers, including, but not limited to customers between April 25, 2013 and July 19, 2013.

The class is seeking a cease-and-desist order to prohibit the collection of Verizon customers’ phone records and more than $3 billion in damages and attorney fees. Plaintiffs are represented by Larry Klayman of Freedom Watch Inc.

Here we go!

Top Settlements

USPS Workers Get Special Delivery? Looks like the US Postal Service was not delivering the goods for all its employees: the agency has agreed to a $17.3 million settlement in the discrimination class action brought by its employees with disabilities.

Some 41,000 past and current postal service employees are involved in the discrimination class action, which details complaints over restricted work hours from 2000 through to 2012. These reduced work hours are allegedly due to employees’ permanent disabilities. The lawsuit alleges the practice violated the 1973 Rehabilitation Act, which bars federal agencies from discriminating against disabled employees.

The USPS class action settlement has received preliminary approval from an Equal Employment Opportunity Commission (EEOC) administrative judge and is expected to receive final approval from the EEOC in July. If finalized, class members may be eligible to receive up to $300 per employee—but it depends on how many people file claims.

Although the settlement still needs final approval from the EEOC, members of the class are supposed to get formal notification of the agreement next week.

Second-Hand Asbestos Settlement. Good news bad news…as the asbestos debacle continues. On June 5, 2013, an Oakland jury completed its award to plaintiffs Rose-Marie and Martin Grigg of a total of $27,342,500 in damages stemming from Mrs. Grigg’s asbestos mesothelioma (Alameda County Superior Court Case No. RG12629580).

Mrs. Grigg, now 82, was exposed to asbestos in the course of shaking out and washing her husband’s work clothing. Mrs. Grigg’s then husband was an insulator for a company that used Owens-Illinois, Inc. Kaylo brand insulation products from 1950-1958.

Evidence introduced during trial showed that Owens-Illinois, Inc. knew that asbestos exposure could cause death as early as the 1930s and that test results on Kaylo showed that exposure to the asbestos in the product could cause fatal disease.

According to court documents, Owens-Illinois nonetheless advertised Kaylo as “non-toxic” and did not state that the product contained asbestos. Kaylo was packaged in boxes without warning about the health hazards associated with asbestos exposure.

The jury found that Owens-Illinois, Inc. manufactured a defective product, failed to adequately warn Mrs. Grigg, was negligent, and intentionally failed to disclose information about Kaylo-related health hazards to Mrs. Grigg. The jury also found that Owens-Illinois, Inc. acted with malice, oppression or fraud toward Mrs. Grigg. The jury awarded Mrs. Grigg $12,000,000 in damages for her pain and suffering, Mr. Grigg $4,000,000 in damages for his loss of consortium, and $342,500 in economic damages. The jury also levied an $11,000,000 punitive damages verdict against Owens-Illinois, Inc.

Okee dokee—that’s it for this week—happy Father’s Day and safe weekend to you all—see you at the bar!

(Image: northjersey.com)

Week Adjourned: 6.7.13 – Crest Toothpaste, Organic Seed Mix, Lipitor

Organic Seed Mix, Lipitor, and Crest Toothpaste top our Week Adjourned wrap of top class action lawsuits and settlements for the week ending June 7, 2013

Top Class Action Lawsuits

Going Organic Leads to Going to Hospital? Heads-up anyone who bought Townsend Farms Organic Anti-Oxidant Blend frozen berry and pomegranate seed mix: A woman who alleges she fell ill with a hepatitis A infection and was hospitalized after eating this product has filed a lawsuit against Oregon-based Townsend Farms.

According to the food poisoning lawsuit, plaintiff Karen Echard purchased and consumed Townsend Farms Organic Anti-Oxidant Blend in the Phoenix area in April of 2013. Attorneys allege that she fell ill with symptoms of hepatitis A infection, including fever, chills, nausea, abdominal pains and jaundice during an illness that started on May 21.

The Organic Frozen Berry Seed Mix class action states that Karen sought medical treatment for her illness on more than one occasion and was hospitalized for 5 days. Her attorneys allege that Karen, a healthcare practitioner and student, fears she will lose her job and be forced to discontinue her schoolwork due to her illness, as she continues to experience the effects of her hepatitis A infection. The Townsend Farms lawsuit asks for damages including physical injury, medical and medical-related expenses, wage and lost earning capacity damages.

On June 6, the Centers for Disease Control and Prevention announced that at least 61 people from 7 states had fallen ill with hepatitis A infections in a “Multistate outbreak of Hepatitis A infections potentially associated with ‘Townsend Farms Organic Anti-Oxidant Blend’ frozen berry and pomegranate mix.”

Lipitor Diabetes Link Looking at Lawsuit. Lipitor is making news—this time it all about what the anti-cholesterol drug shouldn’t be doing—allegedly. Pfizer, the maker of Lipitor (atorvastatin) is facing a mounting number of these personal injury lawsuits, alleging the drug causes diabetes. In fact, several of the initial Lipitor diabetes lawsuits have just been green lit for a Multi-district litigation—or MDL.

The Lipitor lawsuits allege that Pfizer has failed to adequately warn consumers of the risk for developing diabetes associated with the statin. In 2012 Pfizer updated the Lipitor labeling to include warnings of increased risk for diabetes, however, the lawsuits contend that this was insufficient.

Lipitor belongs to a class of drugs called statins, which are used to lower cholesterol by reducing blood levels of low-density lipoprotein (LDL) cholesterol, or “bad” cholesterol, a contributing factor in heart disease. A study (Culver AL, Ockene IS, Balasubramanian R, et al. “Statin Use and Risk of Diabetes Mellitus in Postmenopausal Women in the Women’s Health Initiative.” Archives of Internal Medicine, 2012,172(2): pp.144-152.), completed in 2012, as part of the Women’s Health Initiative (WHI) found an association between the statin class of medications and the development of type 2 diabetes in women, particularly post-menopausal women.

Among the most recent Lipitor diabetes lawsuits filed is that of Margaret Clark, filed in the US District of South Carolina, this April. She contends she was prescribed Lipitor in 2002 to address her risk for heart disease. At the time, according to her lawsuit, she was considered a healthy weight. However, in February 2012, Clark was diagnosed with type 2 diabetes.

Clark’s lawsuit alleges Pfizer knew or should have known that there was a connection between Lipitor and diabetes before it was made publically available in 1997. Instead, the warning was only added to the product labeling in February 2012, after the FDA’s Division of Metabolism and Endocrinology Products requested that a warning be provided for consumers and the medical community.

According to the lawsuit, the warning did not actually mention type 2 diabetes, but rather stated “Increases in HbA1c and fasting serum glucose levels have been reported with HMG-CoA reductase inhibitors, including LIPITOR.”

The Lipitor lawsuit also states “Until the February 2012 label change, Lipitor’s label never warned patients of any potential relation between changes in blood sugar levels and taking Lipitor.” And, “Despite the February 2012 label change, Lipitor’s label continues to fail to warn consumers of the serious risk of developing type 2 diabetes per se when using Lipitor.”

Top Settlements

Crest Toothpaste, er, Crestfallen? A preliminary settlement has been reached in the consumer fraud class action lawsuit pending against Procter & Gamble Co (P&G). The lawsuit alleges the company falsely advertised the benefits of its Crest Sensitivity Treatment & Protection toothpaste. Specifically, the Crest lawsuit, entitled, Edward Rossi v. The Procter & Gamble Co., Case No. 11-07238 (JLL) (MAH), U.S. District Court, District of New Jersey, claims P&G engaged in misleading and deceptive advertising and marketing of its Crest Sensitivity Toothpaste.

The tentative Crest toothpaste settlement, if approved, could include anyone in the US who purchased Crest Sensitivity Treatment & Protection toothpaste between February 2011 and March 2013. If you purchased this toothpaste between those dates, you may be eligible to claim a full or partial refund from the settlement. If approved, potential class members must submit a valid claim form and proof of purchase in order to receive damages. Class members with with proof of purchase will be able to claim a full refund of the purchase price they paid. Those without documentation will receive a refund of $4. Only one tube of Crest Sensitivity toothpaste will be refunded.

Valid claim forms and any supporting documents must be postmarked no later than August 19, 2013. Detailed claims filing instructions are provided below.

A Final Fairness Hearing will be held on September 12, 2013.

For complete details on filing a claim, and to download forms, visit: http://www.sensitivitytoothpastesettlement.com

Okee dokee—that’s it for this week—happy and safe weekend to you all—see you at the bar!

Week Adjourned: 5.31.13 – Twinings Tea, Apple, Wellbutrin

The top class action lawsuits for the week ending May 31, 2013. Top stories include Twinings Tea, Apple and Wellbutrin.

Top Class Action Lawsuits

“What’s in Your Cuppa?” Not what you think, if the allegations brought in a consumer fraud class action against Twinings North America prove true.

In fact, the Twinings lawsuit claims the tea company has falsely represented the health benefits of more than 50 different blends of its teas. Crikey!

Lead plaintiff Nancy Lanovaz, who filed the lawsuit, claims she paid a premium price for Twinings’ green and black tea and would not have purchased it without the allegedly unlawful labeling that the tea is a “natural source of antioxidants.”

Twinings filed a motion to dismiss the lawsuit, however, US District Judge Ronald M. Whyte has now ruled that the potential class action may move forward stating that that 51 of the 53 tea blends that Lanovaz claims are falsely labeled are made from the same camellia sinensis plant and are therefore the same product.

“Because the claims for 51 of the varieties of tea are based upon the exact same label describing the same product, camellia sinensis, the court finds that Lanovaz has standing to sue on behalf of the purchasers of these teas and thus denies Twinings’ motion with respect to these products,” Judge Whyte wrote. “Red tea, on the other hand, is made from a different plant and is thus a significantly different product.”

The consumer fraud class action lawsuit alleging false advertising of Twinings teas claims the company violated California’s Unfair Competition Law, False Advertising Law and the Consumers Legal Remedies Act.

Top Settlements

Apple Gets Bitten. Time for this week’s litigation update on Apple Inc—the company is seemingly dogged by consumer fraud and defective product lawsuits right now. But this week, we have a proposed settlement to report—it’s been all over mainstream media—Apple has agreed to pay $53 million in settlement of a defective products class action lawsuit alleging the tech giant used faulty indicators showing that iPhones and iPods were exposed to water, to deny customers’ warranty claims.

According to court documents regarding the settlement, eligible consumers could receive up to $300 depending on the device model they owned. Bloomberg reports that lawyers for consumers say the liquid submersion indicators on iPhones and iPods could be triggered by moisture during ordinary use and falsely indicated devices had been damaged by liquid spills or submersion, problems that were excluded from coverage under Apple’s warranty. Apple has denied the allegations, defending its indicators as reliable.

Customers whose warranty claims for iPhones were denied before December 31, 2009, on the basis of Apple’s liquid damage policy and claims for iPod Touches that were denied before June 2010 are eligible for settlement funds. Attorneys can seek as much as 30 percent of the $53 million settlement fund for their fees and expenses, Bloomberg reports.

FYI—The settlement is subject to court approval. So watch this space—we’ll keep you posted.

Last Call for Wellbutrin Claims…Heads up—if you purchased Wellbutrin—today is the last day—May 31—to object to or drop out of this class action, because an $11.75 million settlement has been tentatively agreed in the Wellbutrin XL antitrust class action filed against Valeant Pharmaceuticals International Inc, and GlaxoSmithKline (GSK). If you bought Wellbutrin XL® or its Generic equivalent, the proposed class action settlement could affect you.

This matter is a lawsuit against Valeant Pharmaceuticals, Inc., formerly Biovail Corp. (“Biovail”), and SmithKline Beecham Corporation doing business as GlaxoSmithKline and GlaxoSmithKline plc (collectively “GSK”) (together with Biovail, “Defendants”), the companies that manufactured and marketed the antidepressant Wellbutrin XL.

The lawsuit, entitled In re: Wellbutrin XL Antitrust Litigation, Case No. 8-cv-2433, U.S. District Court, Eastern District of Pennsylvania, alleges the pharmaceutical manufacturers worked together to delay the availability of less expensive, generic versions of Wellbutrin XL. Anyone who purchased Wellbutrin XL or its generic equivalent in the following states may be eligible to claim part of the settlement, if it is approved: California, Florida, Nevada, New York, Tennessee and/or Wisconsin.

For additional information regarding this lawsuit, proposed settlement, and for obtaining a Claim, visit: http://www.wxlclassaction.com/. Claim form submissions for this class action are due July 12, 2013.

A fairness hearing is set for June 18 at which time the proposed settlement will either be approved—or not.

Okee doke—that’s it for this week—happy weekend—see you at the bar!

Week Adjourned: 5.24.13 – Nike, Apple, Wolfgang Puck, Penguin Books

The weekly wrap of top class action lawsuits and settlements, for the week ending May 24, 2013.

Top Class Action Lawsuits

Nike Calorie Tracker Can’t “Just Do It”? Nike and Apple are facing a consumer fraud class action lawsuit alleging the Nike+ FuelBand, which is supposed to track every step and calorie a wearer burns, doesn’t work as advertised. Now there’s a surprise. The device costs $150, which really is shocking.

Filed by Carolyn Levin of California, the Nike+ FuelBand lawsuit contends that both Apple and Nike knew that the Nike+ FuelBand is defective because it registers inaccurate readings. Nevertheless, they marketed and sold it, and made exaggerated claims about its capabilities.

Specifically, the lawsuit states “In truth, the Nike+ FuelBand cannot and does not track each calorie burned, and users experience wildly inaccurate calorie burn readings when using the FuelBand.” And, “As a result of defendants’ conduct, buyers of the FuelBand, including class members, were in fact misled into purchasing a device that defendants purported would track calories burned when in fact it cannot and does not track calories burned, misleading and damaging customers.”

The class action, entitled Carolyn Levin, et al. v. Nike Inc., et al., Case No. BC509363, in the Superior Court of the State of California, seeks to represent all consumers who purchased the wristband device since January 2012, when it was initially brought to market. The lawsuit alleges that the defendants have made negligent and fraudulent misrepresentations, and have violated California’s business and professions code.

Is Wolfgang Passing the Puck? Ah yes—at least according to an employment class action lawsuit just filed by two former servers who allege the company knowingly withheld their tips and failed to pay overtime. Filed in Manhattan by plaintiffs Kristin Noriega and Oliver Gummert, the Wolfgang Puck lawsuit contends that a Wolfgang Puck catering company was charging its client venues, such as Irving Plaza and the Gramercy Theater, with a 22 percent service charge and then denying its servers and bartenders their tips. “Any charge for ‘service’ or ‘food service,’ is a charge purported to be a gratuity and therefore must be paid over to service employees,” the lawsuit claims. Failing to pass on a service charge that clients have been charged, violates state and federal laws.

And…according to the lawsuit… Noriega, a waitress, and Gummert, a bartender, were paid between $10 and $18 an hour and were not compensated for up to 30 hours of overtime a week. Both Noriega and Gummert left Puck’s employment in 2012, after working for the company for two to three years. That’s not ok…

Top Settlements

Penguin is re-writing the antitrust book on ebook pricing settlements—having agreed to a $75 million payment this week. Penguin’s settlement with the consumers and 33 states is the largest to date.

HarperCollins, Simon & Schuster, Hachette and Macmillan have all settled with both the states and the Department of Justice (DOJ)—HarperCollins, Simon & Schuster, Hachette settled for—get this—a combined $69 million, while Macmillan agreed to pay $20 million.

The settlement is the last of the major publishers to settle. Penguin settled with the DOJ several months ago. Apple, also a defendant in the class action, is going to court in a few weeks and will face the DOJ over antitrust pricing allegations.

The settlement is pending court approval, and a fairness hearing is scheduled for late summer. We’ll keep you posted—so watch this space.

Okee dokee—that’s it for this week—happy weekend—see you at the bar!

Week Adjourned: 5.17.13 – iPhone 4, Wells Fargo, Generic Drugs

The weekly wrap on top class action lawsuits and settlements for the week ending May 17, 2013. Top stories this week include iPhone 4, Wells Fargo and generic drugmaker Ranbaxy.

Top Class Action Lawsuits

Bad Apple! The god of tech gadgets got slapped this week—with a potential defective products class action lawsuit (yes, another one), alleging its iPhone 4 has a defective power button, effectively preventing the operator from being able to use the phone. This power button failure allegedly occurs shortly after the phone’s one year warranty expires. And doesn’t that just figure…

The Apple iPhone 4 class action lawsuit, filed by plaintiff Debra Hilton, Debra Hilton v. Apple Inc., Case No. 13-cv-2167, U.S. District Court for the Northern District of California, claims “The failure of the power button that has plagued the iPhone 4 is more than an inconvenience… As a method by which the phone is toggled on and off, the failure of the button precludes general use of the phone and thereby effectively prevents iPhone 4 owners from being able to use the phone.” Yup.

According to the lawsuit, Hilton alleges the iPhone 4 power button defect is caused by the premature deterioration of a flex cable that connects the power button to the phone. When this cable deteriorates, the power button becomes harder and harder to depress, and eventually fails to work. Yup.

The iPhone 4 lawsuit contends that thousands of consumers who purchased the iPhone 4 have experienced this failure forcing them to throw away their phone or pay Apple $149.99 plus shipping for a replacement. Yikes! Better get on it boys.

Top Settlements

Two Better than One for Wells Fargo. Wells Fargo made headlines twice this week, two settlements to report—both biggies. The first was a judicial order to reinstate a $203 million judgment against the bank in settlement of an overdraft fees class action lawsuit.

In a nutshell, the judgment, based upon the court’s findings, as affirmed on appeal by the Ninth Circuit, states that Wells Fargo violated California’s unfair competition law by deceiving its customers that debit card purchases would be posted chronologically to their accounts when in fact Wells Fargo posted them in a high-to-low order for the sole purpose of generating overdraft fees.

The case was brought on behalf of California Wells Fargo customers who, from November 15, 2004 to June 30, 2008, incurred overdraft fees on debit card transactions as a result of the bank’s practice of sequencing transactions from highest to lowest.

The second settlement with Wells Fargo’s name on it involves a force-placed insurance class action lawsuit brought by homeowners in Florida. (Force-placed insurance, btw, is sometimes referred to as “lender placed insurance”.) The lawsuit alleged that the homeowners were overcharged for the insurance, and that Wells Fargo unfairly took commission on the insurance, which it assigned to the homeowners through QBE.

The class was certified in 2012, and more than 24,000 homeowners were notified. During the class period, from April 2006 to February 2013, the class members were charged $77 million for force-placed insurance, according to the settlement documents, the South Florida Business Journal reports.

But wouldn’t you know it, just two months before they were due to go to court, the parties reached a $19.5 million settlement.

The settlement will provide a refund of the amount charged for force-placed insurance to the members of the class. Borrowers who were charged and paid the premium will be refunded 25 percent in cash. Those who were charged the premium but didn’t pay will get a credit of 25 percent off their bill.

Bet those homeowners are breathing a huge sigh of relief this weekend.

Largest Generic Drug Safety Fine. Ever. We’d be completely remiss if we didn’t mention this one… Ranbaxy has pled guilty to federal drug safety violations and will pay $500 million in fines to resolve the claims. The generic drug manufacturer is alleged to have sold subpar drugs and made false statements to the Food and Drug Administration (FDA) about its manufacturing practices at two factories in India.

According to the Justice Department, the settlement is reportedly the largest in history involving a generic drug maker. Part of the settlement involves Ranbaxy pleading guilty to three felony counts of violating the federal drug safety law and four of making false statements to the FDA.

According to a report by the New York Times, Ranbaxy acknowledged it had failed to conduct proper safety and quality tests of several drugs manufactured at its Indian plants, known as Paonta Sahib and Dewas, including generic versions of many common medicines, such as the epilepsy drug gabapentin, and the antibiotic ciprofloxacin.

In the case of gabapentin, also known as Neurontin, Ranbaxy reportedly admitted that between June and August in 2007, it was aware that certain batches had tested positive for “unknown impurities” and had unreliable shelf lives. Nevertheless, the company didn’t report this to the FDA and announce a recall until October of that year. The recall ultimately involved more than 73 million pills.

Further, testing of certain batches of drugs to ensure their effectiveness was reportedly not done for weeks or months after the company had told the FDA the testing had been carried out.

Ranbaxy has set aside $500 million in anticipation of the penalties, which will break down as a $150 million in a criminal fine and forfeiture, and the remainder going to settle civil claims brought by the federal government and all 50 states. A former Ranbaxy executive who alerted the federal government to the problems will receive close to $49 million in compensation for his role as a whistleblower, the Times reports.

That’s a wrap. It’s cocktail hour—somewhere in the world—see you at the bar!

Week Adjourned: 5.10.13 – Capital One, H&R Block, QuickTrim

The weekly wrap of top class action lawsuits and settlements for the week ending May 10, 2013. Top stories include Capital One, H&R Block, QuickTrim

Top Class Action Lawsuits

Not “What’s in your wallet?” but… “Who’s in Your Wallet – Again?” Can you guess? Yup—Capital One Bank. This time they’re facing a consumer fraud class action lawsuit alleging its Best Buy co-branded credit cards have an annual fee, in contrast to the advertising for the card, which claims there is no fee. Make sense?

Here’s the backstory. Filed by John Graham, the potential Capital One class action entitled, John Graham v. Capital One Bank (USA), NA, Case No. 13-cv-743, U.S. District Court, Central District of California, alleges that Graham applied for a “no annual fee” Best Buy Reward Zone Credit Card from Capital One but was issued a card that had an annual fee of $39. According to the lawsuit, disclosures for the credit card clearly stated in large type: “Annual Fee: NONE.” Graham claims that had he known there would by an annual fee, he would not have applied for the Capital One Best Buy credit card. FYI Best Buy is not named as a defendant.

This is a national lawsuit, so it seeks to represent all US residents who, between May 8, 2011 and the present, submitted a Best Buy Reward Zone Credit Card Application containing a promise of “no annual fee” but who were subsequently mailed a Capital One credit card that carries an annual fee. Gotcha! (pun intended).

H&R Block Lawsuits Piling Up. Another consumer fraud class action lawsuit has been filed against H&R Block, this time by a woman in Indiana on behalf of some 600,000 people allegedly affected by faulty tax returns prepared by the tax services company. H&R Block acknowledged the filing glitch earlier this year.

Plaintiff Lisa Marie Waugh filed the H&R Block class action lawsuit in federal court in April. The class action law suit claims that Missouri-based H&R Block incorrectly prepared hundreds of thousands of tax returns, and due to those errors tax refunds were delayed by as much as six weeks beyond when they supposed date of payment.

The problem specifically relates to a change in the way the IRS processes certain yes or no questions on this year’s tax forms. Previously, tax preparers like H&R Block could leave a space blank to indicate “no,” but now they must enter an “N.”

However, H&R Block did not update its software in time and follow the new IRS rule. According to an email H&R Block President Bill Cobb sent to customers, anyone that filed their returns before February 22 was affected by the technical glitch, the Indystar.com reports.

According to the lawsuit, some customers lost their eligibility for student loan and grant programs that are dependent upon proper tax filings.

Top Settlements

QuickTrim—the Diet Product that’s not only Light on Calories…This week, a proposed settlement was announced, which, if approved, would end the consumer fraud class action lawsuit pending against the Kardashian sisters, their product QuickTrim, and several retailers. LawyersandSettlements.com first reported on the QuickTrim lawsuit back in March, 2012.

Specifically, the QuickTrim settlement resolves allegations that improper statements were made on the labels and in advertisements for the Quicktrim Weight Loss System® and its component products including QuickTrim Sugar & Carb Cheater®, QuickTrim Fast Cleanse®, QuickTrim Extreme Burn®, QuickTrim Burn & Cleanse®, QuickTrim Hot Stix®, QuickTrim Fast Shake®, QuickTrim Satisfy®, and QuickTrim Celluslim® (“The Products”).

Unless you purchased directly from QuickTrim you must submit a timely Claim Form to get compensation or a coupon. Direct Purchasers will automatically receive payments unless they chose to receive a coupon by submitting a Claim Form or exclude themselves from the Settlement.

To download claim forms, learn more about your options, and for general information on the lawsuit, visit https://www.anayasupplementsettlement.com.

The laundry list of defendants, who, not surprisingly, admit no wrongdoing, includes Quick Trim LLC., Windmill Health Products, LLC, Kimberly Kardashian, Khloe Kardashian-Odom, Kourtney Kardashian, Kris Jenner, Jenner Communications, Inc., Kimsaprincess, Inc., Khlomoney Inc., 2Die4Kourt, Inc., GNC Corp., CVS Pharmacy, Inc., Walmart Corp., Amazon.com Inc., Drugstore.com., Christopher Tisi, Vitaquest International, LLC. (“collectively “the Quick Trim Parties” or “Defendants”).

And on that note, it’s time to consume some calories…

That’s a wrap. See you at that bar…Happy Friday folks and Happy Mother’s Day to all moms out there!