Consumer Fraud

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: 5.10.13 – 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!

Week Adjourned: 5.3.13 – SoulCycle, Sega, eBooks

The top class action lawsuit stories for the week ending May 3, 2013. In class action news this week: SoulCycle, Sega and eBooks.

Top Class Action Lawsuits

SoulCycle not so full of Soul. Nick Oram, a former SoulCycle master instructor, has filed a California employment class action lawsuit alleging that he and other SoulCycle instructors were not paid consistent with New York and California laws. SoulCycle has built its reputation by providing what it describes as the “best instructors and staff, trained to deliver unique services and personal attention to all levels of riders.” However, as detailed in the SoulCycle class action lawsuit, SoulCycle only compensates these instructors for the time spent teaching their classes, and has failed to compensate them for numerous hours spent in training, preparing for classes, developing routines, compiling playlists, communicating with customers, attending meetings, leading special event classes and engaging in marketing.

As the complaint alleges, SoulCycle’s unlawful wage practices are consistent with its mistreatment of customers as SoulCycle does not provide any reimbursement to customers who are unable to attend classes they sign up for (unless they cancel the class by 5PM the night before), even when SoulCycle is able to re-sell the vacant bike spot. As a result, SoulCycle very often generates revenue from classes at a rate that exceeds the total number of bikes in a studio, to the detriment of its customers.

And, despite the dozens of hours per week SoulCycle instructors are required to work above and beyond the time instructing a class, SoulCycle only compensates these instructors for only the approximately 45 grueling minutes during which each class is taught. Mr. Oram stated that, “It is my goal in this lawsuit to ensure that SoulCycle pays all of the hard working and dedicated instructors what they deserve and compensates them fairly for all hours worked.” Go for it!

Heads up all you Sega Gamers out there… A consumer fraud class action lawsuit has been filed against Sega of America and Gearbox Software over allegations they misrepresented the quality of their new game “Aliens: Colonial Marines” prior to its release.

Damion Perrine, lead plaintiff in the Sega class action, alleges Sega and Gearbox induced consumers to buy “Aliens: Colonial Marines” through a “bait-and-switch” scheme that involved giving bogus gameplay demonstrations at video game expositions and trade shows leading up to the games’ February 2013 release.

Specifically, the class action lawsuit states: “Each of the ‘actual gameplay’ demonstrations purported to show customers exactly what they would be buying: a cutting edge video game with very specific features and qualities. Unfortunately for their fans, Defendants never told anyone, consumers, industry critics, reviewers or reporters, that their ‘actual gameplay’ demonstration advertising campaign bore little resemblance to the retail product that would eventually be sold to a large community of unwitting purchasers.”

And: “A major selling point of the ‘actual gameplay’ demonstrations were ‘iconic’ gameplay sections where consumers might essentially step into the role of a character from the ‘Aliens’ movie,” the lawsuit states. “Many of such sections previewed in the ‘actual gameplay’ demonstrations were either gutted beyond recognition or missing entirely from the final product.”

The Sega class action lawsuit is seeking class action status and damages and punitive damages, restitution, disgorgement of profit and an injunction for a proposed class of all US consumers who purchased “Aliens: Colonial Marines” on or before February 12, 2013.

Top Settlements

Worth a Read: eBook Lovers Get $20M Settlement… A $20 million settlement has been agreed in the consumer fraud class action lawsuit pending against Verlagsgruppe Georg von Holtzbrinck GmbH’s MacMillan unit, which alleged the publisher conspired with Apple Inc, and other US publishers to fix prices of electronic books, or eBooks.

The latest eBook settlement resolves the allegations brought in the consumer fraud lawsuit as well as a lawsuit brought by several US states. According to a report by Bloomberg, MacMillan will pay an additional $3 million in legal costs to the states that sued and $2.5 million to the lawyers for the consumers in the class-action case.

The case is In re Electronic Books Antitrust Litigation, 11-md-02293, U.S. District Court, Southern District of New York (Manhattan). The Justice Department and the other states led by Texas alleged publishers conspired with Apple in 2010 to undermine Amazon’s dominance in the eBooks market.

Ok—that’s a wrap. See you at that bar…and Happy Friday Folks!

Week Adjourned: 4.26.13 – Vitamin Shoppe, Acer, Sony TV

The weekly top class action lawsuit & settlement wrap for the week ending April 26, 2013. Top class actions include Vitamin Shoppe, Acer and Sony.

Top Class Action Lawsuits

True Athlete Training Formula Making Some Untrue Claims? Em, maybe. At least the folks who filed a consumer fraud class action lawsuit against Vitamin Shoppe Inc, who make and market a pre-workout muscle building and performance enhancing product called True Athlete Training Formula, believe so.

The True Athlete class action lawsuit, entitled Steven Hodges v. Vitamin Shoppe Inc., Case No. 13-cv-02849, U.S. District Court, Central District of California, contends that the Vitamin Shoppe “knowingly and/or recklessly ignored” all relevant scientific evidence which shows that L-Arginine Alpha Ketoglutarate, the main ingredient in True Athlete Training Formula, does not enhance athletic performance, build muscle, or improve cardiovascular function, as advertised. Well, it does sound a bit too good to be true. But hey—I’m an optimist.

However…the lawsuit also contends that the defendant “knowingly under-doses the remaining active ingredients to save money but still entice consumers by using efficacy claims for the compounds Creatine Monohydrate, Beta-Alanine (as Carnosyn), and AstraGin”, compounds well-known within the sports industry, according to the class action lawsuit. Specifically, the lawsuit states: “Defendant unapologetically, and with no remorse, boasts the inclusion of these popular ingredients in the Product, and then under doses them in the formula to make the Product useless.” And: “The inclusion of the ingredients at levels under the clinical dosage is nothing more than a new tactic at selling consumers ‘snake oil.’” Snake oil? I’ve had that stuff before!

Here’s the straight dope…the consumer fraud class action was filed on behalf of a proposed class of all California residents who purchased True Athlete Training Formula from the Vitamin Shoppe within the last four years.

Top Settlements

How’s your RAM these days? That would be Random Access Memory—the kind in your computer…(I don’t know about you, but the kind in my head is full and dates back to last century.) Well, it seems that Acer has decided to end a consumer fraud class action lawsuit alleging its RAM wasn’t up to the job either.

The official scoop on the Acer RAM class action— “The parties have reached a settlement in a nationwide class action lawsuit alleging that Acer America Corporation (“Acer”) advertised and sold Acer notebook computers that did not contain enough Random Access Memory (“RAM”) to support certain pre-installed versions of the Microsoft Windows Vista operating system. Acer denies the claims, but has agreed to the Settlement to avoid the costs and risks of a trial.“

And yes folks—you are a member of the class if you are a US resident who purchased a new Acer notebook computer that: (1) came pre-installed with a MicrosoftWindows Vista Home Premium, Business, or Ultimate operating system; (2) came with 1 gigabyte (“GB”) of RAM or less as shared memory for both the system and graphics; (3) was purchased from an authorized retailer; and (4) was not returned for a refund.

Class Members may claim either: (a) a 16GB USB Flash Drive with ReadyBoost technology; (b) a check for $10.00; (c) a check for up to $100.00 for reimbursement of any repair costs that were incurred before April 25, 2013 in an effort to resolve performance issues related to insufficient RAM; or (d) for Class Members who still own their computer, a 1GB or 2GB laptop memory DIMM that will allow the Acer notebook to operate with 2GB of RAM.

Any class member may seek to be excluded from the settlement by filing a notice of “opt out.” Class Members who remain in the settlement, either by submitting a claim or doing nothing, have the right to object to the settlement or ask to speak at the hearing. Opt out notices, objections, and any requests to appear are due by July 24, 2013. In order to get any benefits from the settlement, Class Members must submit a Claim Form by July 24, 2013. Claim forms will also be mailed and emailed to those class members for whom Acer has contact information. For more information about the settlement or to file a claim, visit www.AcerLawsuit.com.

Sony Display Resolution Class Action Resolved…And while we’re on the subject of technology—remember this one? The Sony Grand Wega SXRD rear-projection television defective products class action? (Sony Electronics, entitled Date v. Sony Electronics, Inc. & ABC Appliance, Inc., Case No. 07 CV 15474,United States District Court for the Eastern District of Michigan). Filed some time ago, granted, it does appear that a resolution may finally be in sight.

A proposed settlement has been granted preliminary approval, which includes all United States end user consumers who purchased, or received as a gift from the original retail purchaser, a KDS-R5OXBR1 or KDS-R6OXBR1 television.

The backstory—short version—allegations that Sony et al falsely advertised the display resolution of its Sony Grand Wega SXRD rear-projection television models KDS-R5OXBR1 and KDS-R6OXBR1, because the televisions were incapable of accepting input of 1080p signals and could not accept and display video content at 1080p resolution via the televisions’ PC and HDMI Input. Not good.

Here’s what you need to know if you are eligible for part of the settlement:

All class members who send in a valid claim form establishing that they own both (1) one of these televisions and (2) a 1080p output device like a Blu-ray player or 1080p-capable laptop computer or gaming device will be eligible to receive a $60.00 gift card that does not expire and is redeemable for the purchase of any item available on the store.sony.com website or at a Sony retail store.

If you do not own a 1080p output device, you will not be eligible to receive a benefit, but you will remain in the settlement class (and release your claims in this litigation, all of which relate to the 1080p capabilities of the televisions) unless you choose to opt out of the settlement.

All claim forms must be received by the claims administrator at the address provided in the claim form by no later than June 10, 2013 to be valid. To download claim forms, review your rights and find out more information on the settlement, visit http://esupport.sony.com.

Ok—that’s a wrap. See you at that bar…and Happy Friday Folks!

Week Adjourned: 4.19.13 – Kashi, Bankers Life, Bank of America

Hot Class Action Lawsuit News Update: Week Adjourned: 4.19.13 – Kashi, Bankers Life, Bank of America

Top Class Action Lawsuits

What’s in your cereal? Kashi Co, and parent company Kellogg are facing a class action lawsuit over allegations their cereal is mislabelled, effectively hiding the amount of sugar in the products.

And it’s not just cereal, apparently. According to the Kashi class action lawsuit, dozens of Kashi products are allegedly mislabeled, including cereal, chips, crackers and bars, pasta and frozen entrees.

The lawsuit, entitled Nadine Saubers v. Kashi Co., Case No. 13-cv-00899, U.S. District Court for the Southern District of California, states “Nearly all of Kashi’s products’ labels list ‘evaporated cane juice’ as an ingredient despite the fact that the FDA has specifically warned companies not to use the term because it is ‘false and misleading,’ is not ‘the common or usual name of any type of sweetener,’ and the ingredient is not, in fact, juice.”

Lead plaintiff Nadine Saubers, alleges Kellogg and Kashi are in violation of consumer protection laws which regulate food labeling, specifically by their use of the term “evaporated cane juice” instead of sugar, and by failing to disclose that the ingredient is still considered to be processed sugar. Yes, you have heard this one before …

The Kashi class action lawsuit seeks to represent a proposed class of all US residents who purchased Kashi mislabeled products since October 1, 2009, including a subclass of California purchasers.

Long Term Care Falls Short. Heads up to anyone with elderly parents who have paid into Chicago-based insurance company Bankers Life and Casualty long-term health benefits plans. The insurer is facing a bad faith insurance class action lawsuit alleging the company is denying benefits to those who paid for long term health care insurance so they would have security in their old age.

The Bankers Life class action, alleging elder abuse, was filed on behalf of four individuals (two harmed families) who have made claims as representatives of the class. Hundreds, possibly thousands of elderly customers are estimated to be affected by this action. The Oregon action is similar to other lawsuits against Bankers Life in other states.

Grants Pass resident Dennis Fallow, a plaintiff if the lawsuit, claims his mother has paid their premiums for years, counting on having support if she became ill. “That time came and all she got from Bankers Life was a cold shoulder, rejection and red tape. It was a total rip off,” he said in a statement to the press.

Fallow’s 79-year-old mother, Katherine Fallow, needed an in-home caregiver when she came home in 2009 following multiple hospitalizations. The family hired a caregiver certified as a home health aide by the State of Washington and an Oregon certified home health aide to care for Mrs. Fallow. Dennis Fallow began submitting the bills for that care to Bankers Life, anticipating payment under terms of his mother’s policy. What followed were several months of wrangling over aides’ qualifications, long delays in communications and denials of payments. Bankers Life eventually made payments in the amount of $11,388, far short of the $51,667 the family paid for Mrs. Fallow’s care. Mrs. Fallow died on July 6, 2011.

In 2011, Grants Pass attorney Christopher Cauble filed a lawsuit against Bankers Life on behalf of the Fallows. He soon learned the Grants Pass family wasn’t alone. “Bankers Life has likely refused long term health care benefits to many, many Oregonians,” Cauble told reporters. “I began hearing about other families with experiences similar to that of the Fallows. What we have in Bankers Life is a company with a history of raising premiums, delaying payments and denying legitimate claims.” Cauble’s findings prompted him to join with Portland attorney Mike Williams and his firm to file the federal class action against Bankers Life on behalf of all Oregon consumers.

FYI—in 2011, Bankers Life ranked worst (19th out of 19 companies) in the Oregon Department of Consumer and Business Services’ (DCBS) consumer complaint index. In fact, DCBS figures show Bankers Life ranked worst for consumer complaints every year from 2005 to 2011. Now there’s something to aspire to.

Top Settlements

News in the never-ending saga of mortgage-backed securities—this one was all over the wires this week—Bank of America reached a tentative settlement in the pending securities fraud class action lawsuit brought by investors who purchased mortgage investments from Countrywide Financial. BofA acquired Countrywide in 2008.

The proposed settlement would see BofA pay $500 million to settle the lawsuit, which would be paid out to plaintiffs that include Dubai’s Mashreq Bank and public and union pension funds in California, Maine, Nevada, Vermont and Washington states. The plaintiffs claimed they were misled about the risks of securities they bought from California-based Countrywide between 2005 and 2007.

The settlement surpasses the $315 million accord reached with Merrill Lynch in May 2012, making it the largest to resolve federal class-action litigation over mortgage-backed securities since the financial crisis began. The accord requires court approval.

Ok—that’s a wrap. See you at that bar…

Week Adjourned: 4.12.13 – Apple, Skechers, Path, Fisker

This week, the top class actions in the news are Apple, Skechers, Path and Fisker. Week Adjourned is your weekly wrap of class action lawsuits and settlements for the week ending April 12, 2013.

Top Class Action Lawsuits

No, the Path to Profit is not through Spam…as Path social media can now attest to. The mobile social network got hit with a potential class-action lawsuit this week for allegedly sending unsolicited text ads to people’s cell phones, in violation of the Telephone Consumer Protection Act (TCPA).

Filed in Illinois, by Kevin Sterk, the Path lawsuit alleges that Sterk received an unsolicited SMS message in March from Path. The message stated that someone else wanted to show Sterk photos on the service, and contained a link to a site where he could register to join. Sterk claims he never authorized Path to contact him via SMS. Further, the lawsuit alleges the company has sent similar text messages to “thousands” of other cell phone users.

“By making these unauthorized text message calls, [Path] has caused consumers actual harm, not only because consumers were subjected to the aggravation that necessarily accompanies the receipt of unauthorized text message calls, but also because consumers frequently have to pay their cell phone service providers for the receipt of such unauthorized text message calls,” the TCPA lawsuit states.

The Path class action lawsuit contends that these unsolicited messages violate the TCPA, which prohibits companies from using automated dialing services to send SMS messages without the recipients’ consent. The law provides for damages of $500 per incident. Sterk, who is seeking class-action status, is asking for monetary damages and an order prohibiting Path from sending unsolicited text messages.

I wish someone would come up with an app that would enable the average Joe to spam the spammers. Now, that could be fun!

Forewarned isn’t Forearmed at Fisker? The folks at Fisker are facing an employment class action lawsuit filed over allegations it failed to provide 60 days notice to employees who were part of recent mass layoffs. Those layoffs are allegedly in violation of US and California labor laws.

FYI—the US Worker Adjustment and Retraining Notification (WARN) Act, a federal law, stipulates that companies with over 100 employees must provide 60 days notice prior to laying off their employees. There is also a similar requirement in place under California state law.

The employment lawsuit against Fisker alleges the company failed to pay the employees their 60 days pay and benefits that they would have been received had they been provided their duly entitled 60-day notice. Further, the lawsuit claims Fisker failed to notify California’s state Employment Development Department of its layoff plans, as well as the local workforce investment board, as well as the top elected officials in Anaheim and Orange County.

Top Settlements

A bit Sketchy on Skechers? Well, it’s official, but not approved. Confused? Don’t be. Last September we reported that Skechers has agreed to a preliminary $40 million settlement of a consumer fraud class action brought by disgruntled customers who claim the company misrepresented the benefits of the “toning shoes.”

Entitled Grabowski v. Skechers U.S.A., Inc., No. 3:12-cv-00204 (W.D. Ky.), the lawsuit concerns claims that Skechers violated certain state laws and consumer protection statutes in connection with the marketing and sale of its toning shoes. Not surprisingly, Skechers denies those allegations.

It looks as if final approval may be at hand, as the fairness hearing was scheduled for mid-March 2013. This matters to you purchased eligible Skechers toning shoes from August 1, 2008, up to and including August 13, 2012 in the United States.

To find out more information and to download claims forms, visit: http://www.skecherssettlement.com/

Bad Apples, eh? This one is all over the wires today…Apple—the faltering god of all things techno—has reportedly agreed to a $53 million settlement in the class action lawsuit pending over alleged defective iPhones and iPod Touch.

The unfair business practices class action was originally filed against Apple in 2010, and centered around claims that the company failed to honor its warranty obligations by fixing or replacing defective devices.

According to a report by CNET, thousands of owners of the original iPhone, iPhone 3G, iPhone 3GS, or the first three generations of the iPod Touch who were unsuccessful in getting Apple to honor its warranty related to repairs and replacements, can submit claims in the suit. These devices carried one-year standard and two-year extended warranties.

The settlement has yet to be approved, and full details have not been made public. Wired is reporting that depending on how many people submit claims, individual payouts could be approximately $200. Stay tuned for more on this one.

Ok—that’s a wrap. See you at that bar…

Week Adjourned: 4.5.13 – H&R Block, JP Morgan Chase, Asbestos

Just in time to send in those tax returns, H&R Block is hit with a class action lawsuit. That leads off our weekly top class action lawsuit and settlement news for the week ending April 5, 2013.

Top Class Action Lawsuits

Just in Time for Taxes! Oops…talk about adding insult to injury…A consumer fraud class action lawsuit has been filed on behalf of individuals who allege that their tax refunds were delayed due a tax return error by H&R Block.

“These individuals trusted and paid H&R Block to file their tax returns accurately so they could receive their refunds as soon as possible,” said Jordan L. Chaikin, a partner with Parker Waichman LLP, one of the law firms representing the plaintiffs. “However, H&R Block has made an error that has delayed thousands of people from receiving their tax refunds on time. Furthermore, consumers paid this company under the promise of a 100 percent guarantee for their services, yet they have not been justly compensated for this error.”

According to the H&R Block lawsuit filing, the Defendants erroneously and negligently prepared Form 8863 included with 600,000 tax returns. As a result, the suit alleges, tax refunds have been delayed up to six weeks past when they would have been paid. The lawsuit alleges, among other things, that H&R Block has breached its contract. According to the allegations, H&R Block promised its customers a “100% Satisfaction Money Back Guarantee” which states that if the consumer is dissatisfied for any reason within 60 days, they are entitled to a refund for the full purchase price. Despite this promise, the lawsuit alleges, H&R Block has failed to offer compensation to the Plaintiffs or any putative class members for the error caused solely by the company and its subsidiaries.

The lawsuit points out that H&R Block has admitted to making an error on Form 8863 that has led to a delay in tax refunds. According to the Complaint, Form 8863 is used to claim tax credits for qualified expenses paid to post-secondary education institutions. According to the lawsuit’s allegations and a report in Kansas City Business Journal, H&R Block mistakenly left a mandatory field blank instead of answering “yes” or “no” for questions #22 through 26. The lawsuit alleges that the error had delayed tax returns of Plaintiffs and putative members beyond the 21 day turnaround represented by the Defendants.

The lawsuit was filed on March 29, 2013 in the U.S. District Court for the Northern District of Ohio, Eastern Division (Case No.1:13-cv-00698-CAB). H&R Block, Inc, HRB Tax Group, Inc. and HRB Technology LLC have been named as Defendants.

Property Appraisers at JP Morgan Chase are Chasing their Unpaid Overtime. California Appraisers in the commercial lending division of JP Morgan Chase have filed an unpaid overtime class and collective action lawsuit, seeking to recover millions of dollars in unpaid wages based on the financial services giant’s practice of misclassifying these employees as “exempt” from overtime pay, among other violations of California and federal law.

Chase’s “Production Appraisers” complete form valuations of commercial and multi-unit residential properties based on well-defined criteria, allowing Chase to issue loans and refinancing secured by the properties. Chase’s “Review Appraisers” then proofread the appraisals based on Chase’s criteria.

The lawsuit, filed in the Los Angeles-based U.S. District Court for the Central District of California, alleges that Appraisers have unlawfully been deprived of overtime pay and meal and rest period premiums, itemized wage statements and certain reimbursements required under California law. The Appraisers allege that they are subject to detailed standards and internal guidelines for the production and review of each appraisal, placing the Appraisers squarely outside of the so-called “white collar” exemptions to the Fair Labor Standards Act and California wage and hour protections.

The California overtime lawsuit, filed by Long Beach residents Kenneth Lee and Mark Thompson, seeks to represent approximately 150 appraisers, who were or are classed as Administrators. Go get’em!

Top Settlements

Another large asbestos lawsuit settlement to report this week. A verdict was reached in March in the case of Michael Sutherland, a former drywaller diagnosed with mesothelioma, a cancer caused by asbestos. The Los Angeles Superior Court jury that heard the case returned its an asbestos verdict awarding $26.6 million to Michael and his wife Suszi.

Mike testified that he worked as a drywaller in northern San Diego County from 1967, while he was still attending Madison High School, through 1993—with frequent breaks for extended surfing trips to Hawaii and Mexico. He worked at countless residential and commercial jobsites during the construction “boom” that occurred in north county in the 1970s, the same time that cancer-causing asbestos was used in many construction products including joint compound, fire-rated drywall, caulk, stucco, roofing mastic and asbestos cement pipe.

“With all the trades working on top of each other trying to finish one job and move on to the next, it was always dusty,” Mike recalled, “It wasn’t until I became a lead maintenance mechanic at UC San Diego and attended a class on job safety in 2003 that I learned that so many of the materials used on the jobs back then contained asbestos.”

The Sutherlands’ case (LASC case # BC486980) was filed on June 20, 2012. Over 30 defendants were named in the case. Settlements were reached with a number of defendants prior to trial. Stucco manufacturer, Highland Stucco and Lime Products, Inc., the sole remaining defendant at trial, argued that other companies and even Mr. Sutherland himself were responsible for his exposure to asbestos. But the jury ultimately assessed blame on Highland for its role in subjecting Mr. Sutherland and other members of the public to its dangerous products.

“I was surprised to learn at trial just how much asbestos was in stucco,” Mike stated, “even though I rarely worked hands-on with the stuff, I was exposed to dust when the bags were dumped into large mixers and when we had to scrape off areas of over-spray that came into the homes through windows and doors.”

Mike is grateful for the jury’s award and for the hard work of his legal team, but would gladly trade it for the return of his health. Prior to his diagnosis in May 2012, Mike enjoyed his job at UCSD and had no plans of retiring. He also continued to indulge his life-long passion for surfing, hitting the waves on the iconic surf breaks of north county San Diego two or more times a week.

Ok—that’s a wrap. See you at that bar…

Week Adjourned: 3.8.13 – ADT, Hertz, Asbestos

ADT hit with early termination fee class action lawsuit to top our weekly wrap of class action lawsuits and settlements. Other big stories involve Hertz and alleged overcharging on sales tax and a major asbestos settlement.

Top Class Action Lawsuits

ADT Billing Practices Setting Off Alarms…Oh yes, my friends. This week an unfair business practices class action lawsuit was filed in the United States District Court for the Central District of California against ADT, LLC d/b/a ADT Security Services (“ADT”) on behalf of all consumers who purchased ADT home monitoring services. That’s a lot of folks, I’m betting.

The proposed class consists of two groups of consumers: (1) all current or former consumer subscribers of ADT who have been charged an early termination fee or are subject to being charged an early termination fee (also called an Early Termination Fee or Early Cancellation Fee, collectively “ETF”, and comprising the “ETF class”); and (2) all current or former consumer subscribers of ADT whose rates were increased or are subject to increase by ADT without prior notice while in the initial contract period or during subsequent contractual extensions.

This ADT class action is intended to redress ADT’s wrongful practice of imposing early termination fees, the lynchpin of ADT’s “never let them go” strategy. Early termination fees are unlawful penalties used simply as an anti-competitive device and do not compensate ADT for any true costs of breach. These penalties, which are unilaterally imposed by ADT “even when ADT fails to perform the services promised” also violate the consumer protection statutes of California and Illinois and similar laws nationwide.

The early termination penalty is extracted under circumstances which cannot be justified, when ADT has failed to perform the very services that form the basis of ADT’s obligation. The penalty is also extracted from customers who contracted with ADT to simply monitor a system that was previously installed, requiring no equipment to be installed and resulting in a windfall to ADT upon termination. By charging the early termination fee ADT gets paid for years of monitoring without doing any monitoring to earn those fees.

In addition, Plaintiffs seek redress for ADT’s pattern of unilaterally increasing alarm monitoring fees while consumers are under contract for lesser fees. These increases are implemented without adequate prior notice and without providing the appropriate and required disclosures necessary to ensure that customers consent to these increases in advance. ADT relies on small boilerplate text neither signed nor highlighted for customers to claim its “right” to unilaterally increase fees.

In addition, California residents who received restitution as a result of a settlement of similar charges against ADT made by the Contra Costa District Attorney’s Office, may still be entitled to recovery under this lawsuit.

Taxing Situation at the Car Rental…And while we’re on the subject—which happens to be the most popular category on LawyersandSettlements.com—consumer fraud—a class action lawsuit was filed against Hertz Rent-A-Car this week by customers who allege the car rental company overcharges on sales tax. Really?

Specifically, the Hertz class action lawsuit, entitled Frederick Cohen et al v. The Hertz Corporation, et al., Case No. 13-cv-01205, U.S. District Court for the Southern District of New York, claims Hertz is in violation of New York state law, as well as other states, by charging sales tax on a pre-discount rental cost, that is charging tax before customer coupons and discounts are applied. Filed by Senior Partner Alan S. Ripka, of the national law firm of Napoli Bern Ripka Shkolnik, the lawsuit contends that, if true, this allegedly unlawful practice may have cost Hertz’s customers millions of dollars.

“New York and other states have passed legislation and regulations disallowing this predatory behavior and to protect the public from this unscrupulous business practice that attempts to overcharge customers under the veil of the tax code,” the plaintiff’s lawyers said in a statement about the proposed class action lawsuit. The consumer fraud class action lawsuit names The Hertz Corporation, Hertz Global Holdings, Inc. and Hertz Investors Inc, as defendants.

The lawsuit seeks Hertz’s compliance with these laws and regulations and the return of all improperly charged costs and fees to Class Members.

Top Class Action Settlements

$35 Million Asbestos Verdict. On March 1st, a $35 million verdict was returned in an asbestos personal injury lawsuit brought by Ivo John Peraica, an asbestos removal worker who died in December from cancer caused by asbestos. The New York Supreme Court jury that heard Peraica’s case returned its verdict Friday, awarding the multi-million dollar settlement to the Croatian-born worker.

Peraica, of Queens, worked for eight years for New York-area contractors removing asbestos insulation from boilers, pumps, and other equipment. He died from complications related to mesothelioma, a cancer whose only known cause is exposure to toxic asbestos fibers.

The asbestos lawsuit claimed that Peraica’s disease was caused by years of inhaling the asbestos dust stirred up each time he stripped asbestos insulation from the equipment at his jobsites—equipment which, according to testimony, was devoid of any warnings about the dangers of asbestos.

The sole defendant at the time of the verdict—industrial products manufacturer Crane Co.—argued that other companies and even Peraica himself were responsible for his exposure to asbestos, but the jury ultimately heaped blame on the Stamford, CT-based company, saying it had acted with reckless disregard for consumers’ safety.

Peraica, a Local 12 Heat and Frost Insulators union member, worked removing asbestos for almost a decade: from the week he moved his family to New York from Croatia in 1978 until he stopped doing asbestos removal work in 1986. Peraica’s widow, Milica, survives him, as do three daughters, one of whom testified at trial to her father’s pain and suffering.

Peraica was unable to testify in person, but before he died on December 28, provided four days’ worth of deposition testimony that was read into evidence.

Ok—that’s a wrap. See you at the bar.