Employment

Week Adjourned: 1.31.14 – Amazon, OxyElite, Hyundai

The week’s top class action lawsuits and settlements including Amazon wag and hour lawsuit, OxyElite weight loss and Hyundai gas mileage.

Top Class Action Lawsuits

Discount Wages as Well as Products? Well, we’re about to find out. Amazon got hit with an employment class action lawsuit filed by Plaintiff Kelly Pavuk (“Pavuk”) (Case No. 2013-11565-0, in the Luzerne County Court of Common Pleas) who alleges Amazon failed to compensate her adequately for time working at the Amazon facility in Pennsylvania. Pavuk makes this claim on behalf of herself and other similarly situated.

Specifically, the Amazon lawsuit claims the defendants failed to comply with the requirements of the Pennsylvania Minimum Wage Act (“PMWA”), thereby violating the PMWA by not compensating all Warehouse Workers during the end-of-shift screening process that “approximately takes between 10 and 20 minutes, and, with delays … can last longer.”

Further, the lawsuit claims the defendants violated the PMWA by not compensating all Warehouse Workers for passing through the same screening process during meal breaks or for walking to that screening area. And, the lawsuit claims the defendants “automatically deduct 30 minutes from Warehouse Workers’ compensable time each shift for an unpaid meal break,” “require Warehouse Workers to remain at their work locations within the Facility until the start of the purported 30-minute meal break,” and that “[a]fter the start of the 30-minute meal break, Warehouse Workers walk to the [Facility’s] time clocks and clock-out.”

Okee dokee. One to watch.

OxyElite “light” on the Facts… including possible liver injury? A proposed defective products class action lawsuit has been filed against General Nutrition Center Holdings Inc., and USPLabs LLC, alleging OxyElite Pro energy and weight loss dietary supplements cause liver damage.

Filed by Sandeep Barot, the OxyElite lawsuit (U.S. District Court for the District of New Jersey at Camden case number: 1:14-cv-000562) claims that OxyElite Pro is intended to safely provide weight loss, energy and mental focus, however, it instead causes severe adverse health effects.

The OxyElite complaint alleges that USPLabs sells a variety of energy and weight loss and dietary supplements under the brand name of OxyElite Pro through GNC, which are dangerous, sold pursuant to deceptive and unfair practices and are not fit for their intended purpose.

Barot claims that he and all others similarly situated “did not bargain for a product that causes adverse health effects in exchange for their payment of purchase price,” according to the lawsuit. And the lawsuit goes on to state that several adverse reactions, including serious liver injury and wrongful death, have been reported from consumers who have purchased and ingested the product.

According to the complaint, USPLabs and GNC had actual knowledge of the product’s shortcomings, but both failed to timely act to adequately warn consumers of the unfitness of the product, the extreme adverse side effects associated with the product or provide adequate relief to the class of consumers who purchased the product.

Further, On October 11, the US Food and Drug Administration issued a warning letter to USPLabs regarding OxyElite Pro for its inclusion of aegeline or dimethylamylamine, known as DMAA, the lawsuit states.

Barot claims that he purchased the product based on claims made by the manufacturer that the products would safely produce energy, increase weight loss and increase mental focus so long as the consumer used the product as directed. However, Barot alleges he suffered economic damages as a result of purchasing and using the product. Further, he claims that neither himself nor any other reasonable consumer would have purchased the product had they known about the severe adverse effects the product can cause to humans, the lawsuit states.

The lawsuit alleges that the defendants are in violation of the New Jersey Consume Fraud Act and was unjustly enriched at the plaintiffs’ expense.

Um, back to diet and exercise, I guess…

Top Settlements

Hyundai Canada to Shell out Cash for False Mileage Claims. This week, the automaker announced that it has entered into an agreement with plaintiffs in Canada—representing current and former owners and lessees of vehicles affected by the auto company’s November 2012 restatement of fuel economy ratings. The adjustment affected approximately 130,000 Hyundai 2011-2013 model year vehicles, increasing their combined city/highway fuel consumption by 0.2-0.8 L/100km. While today’s agreement is valued at up to $46.65 million in cash compensation plus other available options, that number is dependent on how many customers elect to participate in the settlement’s one-time lump sum payment option or remain in the existing reimbursement program Hyundai introduced at the time of the restatement.

At the time of the restatement, Hyundai provided a reimbursement program to cover the additional fuel costs associated with the rating change—plus a 15 percent premium in acknowledgement of the inconvenience—to customers for as long as they owned or leased an affected vehicle. Affected owners and lessees are compensated based on their actual kilometers driven and the fuel costs for the region in which they live.

Under the terms of the proposed settlement, a single lump sum payment will be provided as an option to the original reimbursement program. The lump sum payments will vary by type of vehicle, and will be reduced for any amounts already received through Hyundai’s existing reimbursement program. For example, an individual owner who purchased a new 2012 Elantra would receive a lump sum payment of $361, minus any previous reimbursement payments. Affected Hyundai owners may elect the one-time lump sum cash payment or remain in the auto company’s ongoing reimbursement program for as long as they lease or own the affected vehicle; the choice is theirs. Consumers can also elect other options, such as a dealership credit of 150 percent of the lump sum cash payment amount, or a credit of 200 percent of the cash amount toward the purchase of a new Hyundai vehicle.

Courts in Ontario and Quebec are expected to review the agreement for approval in early 2014. Assuming approval is granted, notices will then be provided to all affected customers.

Hopefully the snow will have stopped by then—and the roads will be driveable!

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

Week Adjourned: 1.3.14 – Facebook, Hyundai Kia, Royal Health

Top class action lawsuits and settlements for the week ending January 3, 2014. Top class actions include Facebook, Hyundai, Kia and Royal Health.

Top Class Action Lawsuits

Hashtag Privacy Please! Naughty, naughty! Facebook’s allegedly been peeping into your privates—messages that is…which, a potential class action lawsuit claims, is in violation of federal and state laws.

Filed by two Facebook users against Facebook the lawsuit alleges the social media platform scans messages between users labeled “private” for links and other information that can be sold to third parties including advertisers, marketers and data aggregators. The Facebook lawsuit is seeking class action status, with a potential 166 million Facebook users in the US eligible to join the class, if it is certified.

Plaintiffs Matthew Campbell from Arkansas and Michael Hurley from Oregon filed the lawsuit in a US district court in Northern California, alleging Facebook data mines “private” messages without disclosing it does so, or seeking users’ consent. Specifically, the lawsuit alleges Facebook’s intercepting and using links in “private” messages between users is in violation of the Electronic Communications Privacy Act, and California privacy and unfair competition laws.

“Facebook’s desire to harness the myriad data points of its users has led to overreach and intrusion … as it mines its account holders’ private communications for monetary gain,” the lawsuit contends.

Great start to the New Year guys!

Top Settlements

Holy Hyundai! (ok, bad, I know) A preliminary $395 settlement has been reached in a consumer fraud class action pending against Hyundai Motor Corp. and Kia Motors alleging gas mileage rating were overstated by the automotive manufacturers. The settlement will affect some 600,000 of Hyundai’s 2011-13 models and about 300,000 of Kia‘s 2011-13 models in the US.

The back story? ….In November 2012, Hyundai and Kia Motors agreed to restate expected gas mileage for 1.1 million vehicles in North America, following an investigation by the Environmental Protection Agency. The automakers admitted they after overstated mileage claims on vehicle window stickers for 900,000 vehicles in the United States. The settlement impacts about 600,000 of Hyundai’s 2011-13 models and about 300,000 of Kia‘s 2011-13 models in the U.S. Hyundai’s settlement is valued at up to $210 million, while Kia’s is valued at $185 million.

The 2012 restatement reduced Hyundai-Kia’s fleetwide average fuel economy from 27 to 26 mpg for the 2012 model year. Individual ratings, depending on the car, will fall from 1 mpg to 6 mpg. Most vehicles saw combined city-highway efficiency drop by 1 mpg, the Detroit News reports. Exact figures will depend on how many customers elect to participate in the settlement’s one-time lump sum payment option or remain in the lifetime reimbursement program, the automakers said.

The Hyundai Kia settlement will resolve more than 50 lawsuits filed across the country to address the issue. Hyundai agreed to add the option of taking a lump sum payment. The proposed cash amount, which varies by vehicle model and ownership type, will result in an average payment of $353 to Hyundai owners and lessees. For example, an owner of a 2012 Elantra would receive a lump sum payment of $320 minus any previous reimbursement payments. For Kia owners, the proposed average cash lump-sum amount will be about $667.

A federal judge is expected to review the proposed settlement for preliminary approval in early 2014. If approved, settlement notices will be sent to individual class members. To get the full skinny on initial details of the settlement, you can visit hyundaimpginfo.com or www.kiampginfo.com.

Royal Health to Shell Out a Royal $1.94 Million …in unpaid overtime. Yup. A preliminary settlement has been reached in an unpaid overtime class action lawsuit pending against Royal Health Care of Long Island LLC. Employees who filed the class action alleged the company violated the Fair Labor Standards Act and New York state labor laws by not paying them overtime pay.

In their employment lawsuit, the 411 plaintiffs allege Royal Health misclassified their positions as Representative, which are exempt from the overtime provisions stipulated under the FLSA and NYLL, and thereby failed to pay Plaintiffs overtime when they worked in excess of 40 hours in a workweek.

Under the terms of the Royal Health settlement, the Royal Health will pay $1.94 million to plaintiffs who worked eight weeks or more, between May 2006 to May 2013. If approved, funds will be distributed proportionally among the Class Members based on number of weeks each worked at Royal Health Care. An incentive award of $10,000 each will also be given to the four original named plaintiffs.

A Fairness Hearing is scheduled for January 6, 2014. The Royal Health Care Unpaid Overtime Class Action Lawsuit is Chandrakalli Sukhnandan et al. v. Royal Health Care of Long Island LLC, Case No. 1:12-cv-04216, U.S. District Court for the Southern District of New York.

Ok Folks, That’s all for this week. Happy New Year! Here’s to a peaceful and prosperous 2014 for all.

Week Adjourned: 12.27.13 – Target, Meningitis Outbreak, Costco

The week’s top class action lawsuits and settlements including Target data breach, the Meningitis outbreak of 2012, and Costco gender discrimination.

Top Class Action Lawsuits

Guess that 10% Discount wasn’t enough… This one made international headlines in December—well the data breach did. This week, a class action lawsuit was filed against retail giant Target, over the data breach of up to 40 million customer’s credit and debit cards.

Filed in California federal court by lead plaintiff Lisa Purcell (“Plaintiff”), the Target lawsuit seeks to represent all those similarly situated to obtain damages, restitution and injunctive relief for the Class. “The information Target lost, including Plaintiff’s identifying information and other financial information, is extremely valuable to thieves. As the Federal Trade Commission (“FTC”) recognizes, once identity thieves have personal information, they can drain your bank account, run up your credit cards, open new utility accounts, or get medical treatment on your health insurance,”’ the lawsuit states.

According to a statement issued by Target, the so-called track data was stolen in real time as payment cards were swiped in its stores between November 27, the day before Thanksgiving, and December 15.

The Target data breach lawsuit states “ Investigators believe the data was obtained via software installed on machines that customers use to swipe magnetic strips on their cards when paying for merchandise at Target stores.” And “The thieves may also have accessed PIN numbers for affected customers’ debit cards, allowing the thieves to withdraw money from those customers’ bank accounts. Thieves could not have accessed this information and installed the software on Target’s point-of-sale machines but for Target’s negligence, and that Target failed to implement and maintain reasonable security procedures and practices appropriate to the nature and scope of the information compromised in the data breach.”

Among the allegations is the clam that Target was negligent in its failure to implement and maintain reasonable security procedures and practices appropriate to the nature and scope of the information compromised in the data breach. Further, “Target unreasonably delayed informing anyone about the breach of security of Class Members’ confidential and personal information after Target knew the data breach had occurred,” the lawsuit states.

Not so very Ho Ho Ho.

Top Settlements

Remember this? 2012—Nationwide Meningitis Outbreak? Sure you do. The outbreak affected over 700 people, with 64 fatalities in 20 states? Well, this week a $100M settlement was reached between the compounding pharmacy allegedly behind a massive fungal meningitis outbreak last year and victims and their families.

Paul Moore, a trustee of the now bankrupt New England Compounding Center, supported the preliminary settlement agreement. “We are pleased that a significant amount of funds will become available for distribution to victims and their families as compensation for the deaths, injuries and suffering they endured as a result of this tragic meningitis outbreak,” Moore told CNN.com. If approved, the settlement will also be used to pay out the pharmacy’s creditors.

In a statement issued announcing the settlement, the pharmacy’s owners said they deny any liability or wrongdoing, but want to play a major role in establishing a fund for those who died or suffered “as a result of this tragic outbreak.”

Bet Women at Wal-Mart are Watching this one… Costco has agreed to a tentative $8 million settlement in a gender discrimination class action lawsuit At the heart of the lawsuit are allegations the wholesale retailer engages in promotion practices that disadvantage women in the company: rather than posting positions internally and letting qualified candidates apply, candidates were hand-picked for promotions to managerial positions. The result was that fewer women rose to senior managerial positions.

If the Costco settlement is approved, it would provide compensation for current and former employees who were incorrectly denied promotions. Claimants still with the company who were improperly denied promotions may be eligible to receive up to $50,000, and former employees up to $300,000, depending on the position. Also part of the settlement terms is an undertaking by Costco to reform its internal promotion process, to allow employees equal opportunity to apply for management jobs going forward. A fairness hearing is scheduled for February 2014.

The lawsuit alleges Costco has pursued policies and practices on a continuing basis which result in the denial of equal job opportunities to qualified women. Specifically:

Relying upon subjective, gender-based and/or arbitrary criteria utilized by a nearly all male managerial workers in making promotion and compensation decisions;

Failing to follow a uniform job posting procedure to guarantee that all employees have notice of openings;

Discouraging females from applying for senior level management positions;

Failing and refusing to consider females for promotion on the same basis as males are considered;

Failing and refusing to promote females on the same basis as males are promoted and compensated;

Failing to provide females with accurate and timely notice of promotional opportunities; and

Maintaining and fostering a reputation for discriminatory conduct which deters females from pursuing promotion opportunities with Costco.

The initial lawsuit was filed in 2002, and refiled in 2004. It was not certified until September 2012. Talk about “keeping the faith!”

Ok Folks, That’s all for this week. Happy Holidays, be safe, and we’ll see you at the bar in 2014!

Week Adjourned: 10.25.13 – Unpaid Overtime, Hershey’s, Honda

Top Class Action Lawsuits for the week: Honda Defect Settlement, Hershey’s workers and BJC Healthcare unpaid overtime.

Top Class Action Lawsuits

Paycheck Rounding Error? Seems unpaid overtime is a popular theme these days. This week, a new unpaid overtime class action lawsuit was filed in the City of St. Louis on behalf of current and former nurses and medical professionals employed by BJC Healthcare System for violations of Missouri’s wage and hour laws and other violations of Missouri law. The lawsuit seeks unpaid overtime and straight-time wages resulting from BJC’s wage and hour practices. The lawsuit is entitled Speraneo v. BJC Health System Inc., d/b/a BJC Healthcare.

The BJC class action lawsuit alleges that BJC failed to properly pay employees for all time worked through its time recording policies and failed to pay overtime compensation to employees working over forty hours per week.

BJC’s timekeeping rounds down the amount of time employees work to the nearest quarter hour, despite having the exact times employees clocked into work and having computerized documentation of exact work times. This practice deprived employees of pay for compensable work time in violation of established work time regulations.

BJC automatically deducts time for meal breaks resulting in employees, such as nurses, not being paid for time actually worked. The lawsuit alleges that BJC knew that its employees, such as nurses, worked during the automatically deducted break time and as a custom and practice failed to pay employees for such compensable work.

The lawsuit also alleges that BJC failed to properly compensate employees for shift differential bonuses and pay overtime compensation at statutorily required rates of pay.

Top Settlements

A sweet ending for Hershey employees? Seems that way—if a preliminary $500,000 settlement gets the green light. The preliminary settlement has just been approved in a California unpaid overtime and wage and hour class action lawsuit pending against Hershey.

The Hershey lawsuit alleges that the class members are owed wages including unpaid overtime and minimum wage pursuant to several sections of the California labor law and are owed premium pay for missed meal and rest periods also pursuant to various Labor Code sections. The lawsuit further claims that the class is entitled to “waiting time” penalties, and penalties for non-compliant wage statements and payroll records pursuant to various Labor Code sections, and that they are entitled to reimbursement for business expenses.

The lawsuit is brought by Shelley Rodrigues on behalf of herself and other similarly situated who were or are employed as retail sales merchandisers, as well as all other current and former hourly-paid or non-exempt merchandisers or person who held similar job titles and/or performed similar job duties in California.

The settlement class is defined as all current and former hourly part-time retail sales merchandisers employed by the Hershey Company in California at any time between July 23, 2008 and June 3, 2013, the Class Period.

Time for Honda to Feel the Burn? This is a biggie…Honda looks as if it’s ready to pony up some cash over a defective automobile class action lawsuit pending against it. The Japanese automaker was sued over allegations it made over 1.59 million vehicles that burn oil excessively and also require frequent spark plug replacements. That’s convenient.

The Honda lawsuit, filed in March 2012, alleges the Honda vehicles had a “systematic design defect that enables oil to enter into the engine’s combustion chamber.” The alleged defect led to “premature spark plug degradation and engine malfunction,” court documents state.

The lawsuit claims that Honda was aware of the problem but failed to notify consumers, allegations Honda denies, despite having issued a technical service bulletin notifying its technicians to check for the defect. The auto maker did not issue a recall because a safety issue was not discovered.

The preliminary Honda class action settlement includes all US purchasers and lessees of 2008-12 Accord, 2008-13 Odyssey, 2009-13 Pilot, 2010-11 Accord Crosstour and 2012 Crosstour vehicles equipped with six-cylinder engines that have variable cylinder management. Accord vehicles with four-cylinder engines are not included in the settlement.

Settlement terms include Honda extending the powertrain limited warranty for up to eight years after the original sale or lease of the vehicle. The preliminary settlement approval was given October 9, 2013, and the final fairness hearing is scheduled for March 21, 2014.

Ok Folks, That’s all for this week. Have a good one—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: 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: 5.3.13 – 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: 4.12.13 – 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: 3.1.13 – Walmart, Budweiser, Apple

The week’s top class action lawsuits and settlements. This week’s highlights include Wal-Mart, Budweiser and Apple.

Top Class Action Lawsuits

If at first you don’t succeed, try, try, try again…Good advice, we hope, for the women who have just filed a regional gender discrimination class action lawsuit against Wal-Mart.

Now, to be clear, Wal-Mart is not unfamiliar with the allegations, as a national gender discrimination and employment class action was filed against the world’s largest retailer only to be dismissed in 2011 by the US Supreme Court. Had that class action gone through, the class of plaintiffs would likely have been in the hundreds of thousands. But it didn’t. So—now, acting on the advice from the Supreme Court, women are filing discrimination class actions by state. The one filed this week is the fifth such regional lawsuit.

Filed in Wisconsin by one current and four former employees, the class action, entitled Ladik et al. v. Wal-Mart Stores Inc., Case No. 13-cv-00123, U.S. District Court for the Western District of Wisconsin, alleges that female employees are discriminated against when it comes to receiving compensation and promotions. The Wisconsin gender discrimination class action lawsuit is seeking to represent female workers employed by Wal-Mart since December 1998.

I’ll show my gender bias and wish them every success!

Hey Bud—this one’s for you! Oh heck yes. This week saw Anheuser Busch, the brewer of the self-proclaimed King of Beers—Budweiser —get hit with several consumer fraud class action lawsuits alleging that it waters down its Budweiser, Michelob and other top-selling beers. Tsk,Tsk. Do not go messing with people’s alcohol content gentlemen.

Filed in Pennsylvania, California and other states, the Budweiser lawsuits allege that consumers have been sold beer that contains less alcohol than advertised on the labels.

Specifically, the complaints allege that Anheuser Busch employs some of the most sophisticated process control technology in the world to precisely monitor the alcohol content at the final stages of production, and then adds additional water to produce beers with significantly lower alcohol content than is represented on the product labels, and depriving consumers of the value they paid for.

The lawsuits are based on information provided by former employees at the company’s 13 US breweries, some in high-level plant positions, according to lead lawyer Josh Boxer (MSN.com). “Our information comes from former employees at Anheuser-Busch, who have informed us that as a matter of corporate practice, all of their products mentioned (in the lawsuit) are watered down,” Boxer told MSN.com “It’s a simple cost-saving measure, and it’s very significant.”

The complaint alleges: “There are no impediments—economic, practical or legal—to AB accurately labeling its products to reflect their true alcohol content. Nevertheless, AB uniformly misrepresents and overstates that content.”

Nina Giampaoli who filed the California-based lawsuit, said “I think it’s wrong for huge corporations to lie to their loyal customers—I really feel cheated. No matter what the product is, people should be able to rely on the information companies put on their labels.”

I’ll drink to that!

Top Settlements

Nothin’ like a kid in an Apple—er, candy—store. This one is for all you parents out there who woke up on morning to find your credit card balance had magically grown—seemingly on its own. But wait—is that the patter of little feet I hear? Could it be the kids buying in-game extras from the Apple mobile apps store that’s the root of the mystery? You betcha!

And this week, Apple magnanimously agreed to pony up some gift cards, no total value given, by the way, in settlement of the consumer fraud class action it’s facing over what could only be described as unfair business practices.

If the Apple apps settlement is approved, parents would receive $5 iTunes gift cards. Wow—pack up the kids, you’re going on vacation!

Ok—here’s the skinny. The lawsuit is brought by parents who allege their children downloaded free games from the Apple mobile app store and then went on to buy in-game extras—effectively charging the cost of the games to their parents—without their parents’ knowledge. In some cases these charges ran into the hundreds of dollars. Yup.

If approved, Apple would build a website for people who wish to make a claim. As well the tech-giant would send e-mail notifications to some 23 million customers. OK, that ain’t chump change.

According to a report by CNN.com parents whose children incurred larger costs and who want more than $5 gift card, must provide proof that a larger amount was spent by their children during any 45-day period. Those who can show more than $30 in purchases may choose a cash refund instead of an Apple credit. Purchases made until the date of the settlement would be eligible for refunds, CNN.com reported.

Bad Apple! What kind of example does that set?

Ok—See you at the bar and Happy Friday!

Week Adjourned: 1.4.13 – Dole Food, Google, Viacom, Chase Bank Fees

The weekly wrap of top class action lawsuits and settlements. Top stories for the week ending January 4, 2013 include Dole Food, Google Privacy, Viacom Privacy, and Chase Bank Overdraft Fees.

Top Class Action Lawsuits

Dole Delivering Nutrition But Not Compensation? New year, old tricks…This time it’s Dole Food Company—they’re facing a wage and hour class action lawsuit over allegations it fails to pay its employees for the time they spend dressing and undressing in sanitary clothing, which they must wear during work. According to the Dole class action lawsuit, “The time that Dole requires its employees to work without compensation on a daily basis is substantial.”

The Dole lawsuit alleges specifically that dressing in protective gear and sanitizing hands and shoe soles are food safety practices that workers are required to use to comply with Dole’s policies. “All of these activities are performed for the benefit of Dole,” the lawsuit states.

Lead plaintiff, Jose Luis Hernandez, who worked in Dole’s Soledad plant, alleges Dole also routinely violated lunch and rest break requirements because employees were required to “don and doff” their gear, and that time shouldn’t be considered part of the employees’ break time. “Dole knew or should have known that its policies and practices were expressly contrary to California law and unfair,” the lawsuit states. Go get’em!

Heads Up! Got Kids On The Internet? Ok. Stupid question. Six internet privacy class action lawsuits have been filed against Google Inc. and Viacom Inc. over allegations the companies illegally track the online activities of children under 13. These actions, according to the Google and Viacom privacy lawsuits, violate both the federal Video Privacy Protection Act (VPPA) and the federal Wiretap Act.

Specifically, the lawsuits claim that Viacom and Google placed cookies on users’ computers enabling the companies to unlawfully track the Internet and video-viewing activities of minors who visited Viacom-owned sites like Nick.com and NickJr.com. The information was used to target advertising, the lawsuits allege.

The cookies allegedly remained on computers even after the children had informed Viacom through the sign-up process that they were under 13.

“The plaintiffs, and others similarly situated, suffered invasions of privacy in direct violation of federal law when Viacom and Google developed, implemented and profited from cookies designed to track the Internet communications and video viewing habits of minor children under the age of 13,” the lawsuits state.

The plaintiffs in all six class action lawsuits are seeking to certify a nationwide class of children under 13 who had cookies placed their computers by Google and Viacom for the purposes of tracking their viewing habits, without the plaintiffs’ knowledge. Plaintiffs are also proposing a subclass of children who engaged with video materials that Viacom knowingly allowed Google to track through a specialized cookie.

Top Settlements

Chase Maxed Out Its Good Credit…or so it seems, and will have to pony up a $110 million—the amount that recently received final court approval—as settlement of a Chase overdraft fees class action lawsuit.

The settlement is the latest settlement to be reached in the massive class action lawsuit involving over 30 banks who are alleged to have manipulated customers transactions in such a way as to maximize overdraft fees.

The allegations also state that rather than declining transactions on an account that has insufficient funds to cover a purchase, Chase Bank authorized the transactions and then processed them in highest to lowest dollar order, which effectively increased the number of overdraft fees charged.

As part of the settlement agreement, Chase will, for a period of at least two years, cease charging overdraft fees on individual debit card transactions of $5.00 or less.

Class members include anyone who (A) held a Chase, Bank One, or Bank of New York consumer deposit account accessible with a Chase debit card anytime between January 1, 2003 and March 29, 2010; and (B) were charged one or more overdraft fees as a result of Chase’s practice of posting debit card transactions from highest to lower dollar amount.

Ho Ho Ho, It’s to the Bar I go. See you there!