Employment - Part 2

Week Adjourned: 7.27.12 – Nurse Overtime Pay, Car Rentals, Wildfire Damage

The weekly wrap of top class action lawsuits and settlements for the week of July 27, 2012.

Top Class Action Lawsuits

Healthcare workers file overtime pay class action. Top of the list this week—one of the regulars—overtime, wage and hour violations—yes that old chestnut—again. This one’s a nationwide employment class action lawsuit filed against one the nation’s largest home health care service providers. Filed in the U.S. District Court for the District of Connecticut, the lawsuit asserts that Amedisys, Inc. (“Amedisys”) violates the Fair Labor Standards Act (FLSA).

The class action lawsuit, entitled Cook, et al. v. Amedisys, Inc., asserts that Amedisys, which has more than 16,000 employees, treats visiting nurses and other home health care providers as exempt from the overtime requirements of the FLSA and refuses to pay these employees for all hours worked or time-and-a-half for hours worked over 40 per week. Amedisys pays nurses and other health care providers on a “per visit” basis for some work, with visit rates set based on estimated average visit durations, an hourly rate for other work, and fails to pay anything at all for other hours worked. Plaintiffs allege this compensation scheme does not meet the requirements of state or federal wage and hour law.

The national lawsuit, if certified, would allow all current and former Amedisys registered nurses, physical therapists, occupational therapists, and speech language pathologists who have not been paid for all hours worked to be eligible to participate in this legal action.

Top Settlements

Did you rent a car from a major car rental agency with a pick-up at a California airport? If so—head’s-up—you may be entitled to part of this settlement: A settlement has been reached in an antitrust class action lawsuit filed against nine major rental car companies over allegations they improperly charged certain fees to consumers who picked up their rental cars at a California airport in 2007.

The lawsuit, entitled Shames v. The Hertz Corporation, alleges the Defendants violated antitrust and other laws by raising rental car prices at California airports by conspiring with each other to pass on the Airport Concession Fee (ACF) and Tourism Commission Assessment (TCA) to customers for rentals at certain California airport locations.

Bottom line for the car rental settlement —if you rented a vehicle directly from corporate-owned locations of Alamo, Avis, Budget, Dollar, Enterprise, Fox Rent a Car, Hertz, National or Thrifty for pick up at a California airport location from January 1, 2007 through November 14, 2007, and were charged and paid an ACF and/or TCA as a separate line item on their invoice, you may be entitled to benefits under a class action settlement.

If you are entitled to benefits under this settlement, you can elect to receive one of the options below based on the total number of days you rented one or more vehicles:

$2 for each day the vehicles were rented ($5 minimum payment); or

If the vehicles were rented for less than 8 days, one voucher good for free time and mileage for one rental day; or

If the vehicles were rented for 8 or more days, either two vouchers good for free time and mileage for one rental day; or one voucher good for free time and mileage for two rental days.

To download forms or find more information on the settlement visit acftcasettlement.com .

Negligence with staggering consequences. And now they’re going to pay for it. A $122.5 million settlement has been reached in an environmental lawsuit brought against Sierra Pacific Industries by the United States Department of Justice. The lawsuit was filed over a 2007 wildfire that was among the most devastating in California history, according to the Department of Justice.

The fire, known as the Moonlight Fire, effectively destroyed 65,000 acres, 46,000 acres of which were national forests. Further, the fire killed more than 15 million trees on public land, some of which were more than 400 years old. It also destroyed thousands of acres inhabited by sensitive species including the California spotted owl, the Sacramento Bee reports. “The Moonlight Fire was a devastating blow to National Forest land here in California,” U.S. Attorney for the Eastern District of California Benjamin B. Wagner said in a statement. “What was lost was priceless and will not return for over a century.”

The fire was caused by Sierra Pacific employees and a contractor who struck a rock with a bulldozer, according to government prosecutors. This sent sparks into the dry ground on a day the National Weather Service had issued a red flag warning, indicating a high fire danger. The smoldering fire went unnoticed because the employees skipped a company-required fire patrol, prosecutors said.

“Instead, the designated fire watch left the work area and drove 30 minutes away to get a soda. When he returned over an hour later, there was a 100-foot wall of smoke billowing from the work area,” the Department of Justice said in a statement. Yes – sadly – that is what happened. Incredible.

The Moonlight Fire settlement is the largest ever received by the United States for damages caused by a wildfire. It includes a $55 million cash payment and 22,500 acres of land in California owned by Sierra Pacific. The U.S. Forest Service will choose the land, which prosecutors said is expected to bridge gaps between existing national forests and will support critical watersheds and sensitive species habitats.

Ok—That’s a wrap. Happy Friday! See you at the bar!

Week Adjourned: 7.13.12 – Hyundai Elantra, Wells Fargo, ABM Security

The weekly wrap of top class action lawsuits and settlements for the week ending July 13, 2012. Top class actions include Hyundai Elantra, Wells Fargo and ABM Security Services.

Top Class Action Lawsuits

More mileage out of its customers than its cars? Maybe. At least the folks who filed a consumer fraud class action lawsuit against Hyundi Motor America think so.

The Hyundai Elantra class action lawsuit alleges that Hyundai deceived customers regarding gas mileage claims for the Elantra. The lawsuit, filed in Sacramento Superior Court, alleges that Hyundi’s ad for the Elantra was misleading because it included the phrase “The 40 mile per gallon Elantra.” The class action lawsuits, filed by Cuneo Gilbert and LaDuca, LLP, also claims Hyundai attempted to manipulate customers who are concerned about escalating gas prices and fuel economy.

The lawsuit further alleges that while the Elantra may average 40 mpg during ideal highway driving conditions, it does not achieve that same figure under most other driving scenarios.

Hyundai’s advertisements for the 2011 and 2012 Elantra models caused tens of thousands of California drivers to purchase the vehicle under false pretenses, the plaintiffs allege.

The lawsuit seeks to stop Hyundai from illegally using gas mileage numbers in its advertising of the Elantra without government-mandated disclosures and asks for damages on behalf of California residents who purchased or leased 2011 and 2012 Elantras.

Top Settlements

Wells Fargo hits the bottom of the well… A $175 million settlement has been agreed by Wells Fargo in a discrimination action brought against the nation’s largest residential home mortgage originator by the Department of Justice (DOJ).

The DOJ alleged Wells Fargo manipulated African-American and Hispanic borrowers into taking on more costly subprime loans or charging them higher fees than those issued to comparable white borrowers. More than 30,000 minority borrowers were affected between 2004 and 2009, the Justice Department said. Unbelievable!

“If you were African-American or Latino, you were more likely to be placed in a subprime loan or pay more for your mortgage loan, even though you were qualified and deserved better treatment,” Assistant Attorney General Thomas Perez said in a statement.

“This is a case about real people—African-American and Latino—who suffered real harm as a result of Wells Fargo’s discriminatory lending practices.”

As an example, in 2007 a typical African-American wholesale borrower in Chicago seeking a $300,000 loan from Wells Fargo paid nearly $3,000 more in fees than a similarly qualified white applicant, the Justice Department said.

Wells Fargo has denied the government’s allegations, saying it agreed to settle the case “solely for the purpose of avoiding contested litigation.”

If the settlement receives final court approval, as part of the agreement, Wells Fargo will pay $125 million in compensation to victims of discrimination, and $50 million in down-payment assistance to borrowers in affected communities, CNN Money reports.

Cha-Ching! An $89.7 million settlement has been awarded by a California state judge to 15,000 former and present security guards of ABM Security Services Inc, who filed an unpaid wages class action lawsuit concerning rest breaks.

The ABM Security Services class action lawsuit, entitled Jennifer Augustus vs. American Commercial Social Security Services et al, was filed in July 2005. It alleged the guards were given “on-duty” breaks during which they were required to keep their cellphones or pagers on.

In his ruling, Los Angeles County Superior Court Judge John S. Wiley said the company “balks at the notion that the employer must relieve workers of all duties for the rest break to be legally valid,” said in his ruling. “Put simply, if you are on call, you are not on break. That has been the law for many years.” Way to go!

Ok—That’s a wrap. Time for ‘tinis…see you at the bar!

Week Adjourned: 7.7.12 – Simply Orange, US Bank, Rite Aid

The weekly wrap of top class action lawsuits and settlements for the week of July 7, 2012. Top stories this week include class action lawsuits involving Simply Orange, US Bank, Rite Aid

Top Class Action Lawsuits

Putting the Squeeze on Coca-Cola. Well, maybe. Seems something’s going on down at the grove. First it was Tropicana, now Coke’s Simply Orange has been hit with a federal consumer fraud class action lawsuit this week over allegations it falsely advertises the Simply Orange orange juice as all pure and natural, when the juice is actually heavily processed and flavored.

Filed by Nezzie Rose Christina, on behalf of herself and all others similarly situated, the Simply Orange class action lawsuit claims that Coca-Cola has been falsely stating that the Simply Orange orange juice is “100% Purse Squeezed Orange Juice” and is “a pure, natural orange juice with a taste that’s the next best thing to fresh-squeezed.”

Well, you don’t have to be a chemist to squeeze an orange at home, compare the juice you get from that with what comes out of your grocer’s freezer, and see a difference—now do you?

So the Simply Orange class action lawsuit claims that Coca-Cola is deceptively promoting Simply Orange in order to take advantage of consumers’ preference for natural products and their willingness to pay a premium price for those products. “Mass marketed orange juice such as Simply Orange cannot be fresh squeezed as fresh squeezed orange juice is unstable and has a short shelf-life,” the lawsuit states.

The class action lawsuit alleges unjust enrichment, breach of express warranty, fraudulent concealment, and violation of the Missouri Merchandising Practices Act, and is asking for the return of the purchase price of the juice, plus interest, expenses, and attorney’s fees. This could be a juicy one! (Ok, ok—that’s bad, I know).

Top Settlements

Something to Bank on. One by one—it seems the banks are falling in line. Finally and at last. This week—it was US Bank—who agreed to pay $55 million to settle class action lawsuits that accused the bank of improperly manipulating its customers’ debit card transactions in order to generate excess overdraft fee revenues. The lawsuits, part of multi-district litigation involving more than 30 different banks entitled In re Checking Account Overdraft Litigation, are pending before U.S. District Judge James Lawrence King in Miami.

The US Bank class action lawsuits claim that the bank’s internal computer system re-sequenced the actual order of its customers’ debit card and ATM transactions, by posting them in highest-to-lowest dollar amount rather than in the actual order in which they were initiated by customers and authorized by the bank. According to the lawsuits, U.S. Bank’s practice resulted in its customers being charged substantially more in overdraft fees than if the debit card and ATM transactions had been posted in the order in which they were initiated and authorized.

FYI—US Bank is not the first bank involved in this multi-district litigation to settle similar claims. In addition to a $410 million settlement with Bank of America approved last year, settlements with JPMorgan Chase Bank ($110 million), Citizens Bank ($137.5 million), TD Bank ($62 million) and PNC Bank ($90 million) have been announced in recent months.

Employee Rites? Here’s one for the little guy! An unpaid overtime class action lawsuit brought against Rite Aid Corp by its employees, looks likely to be settled, as the company has agreed to pay up to $20.9 million in a settlement of the federal class action.

The Rite Aid class action lawsuit was brought in December 2008, by a store manager from Georgia, who alleged violations under the Fair Labor Standards Act, specifically, that she was denied overtime payment.

The settlement combines 13 cases from various federal court districts in which Rite Aid assistant store managers and co-managers alleged they put in more than 40 hours of work some weeks, but were denied overtime because the company classified them as supervisors. According to the Rite Aid class action lawsuit, the workers’ duties did not include store or department management, and workers lacked the authority to hire or fire or directly supervise other employees.

The class action settlement was recently approved by US District Judge John E. Jones III. The settlement could affect 6,100 people in 31 states.

Ok—That’s a wrap. Happy Friday—see you at the bar!

Week Adjourned: 6.8.12 – Catalina Restaurants, NobelTel, Hilton LAX

Weekly wrap of top class action lawsuits and settlements, for the week ending June 8, 2012; top stories include Catalina Restaurant Group, NobelTel, and Hilton LAX hotel

Top Lawsuits

Overtime Violations on the Menu at Catalina. First up this week, an overtime class action lawsuit. This one filed against Catalina Restaurant Group Inc. and JoJo’s California Family Restaurants, Inc. (“Catalina”) for alleged wage and hour violations.

Specifically? Violations of California labor laws in regards to overtime pay and requiring their employees to work off-the-clock without being paid for all their hours worked. McDermott, et al. vs. Catalina Restaurant Group Inc. and JoJo’s California Family Restaurants, Inc., was filed by attorneys at Blumenthal, Nordrehaug & Bhowmik, who are representing the plaintiffs.

According to the class action lawsuit, the restaurant “did not have in place an immutable timekeeping system to accurately record and pay Plaintiff and other California Class Members for the actual number of hours these employees worked each day, including overtime hours worked.” Specifically, the lawsuit claims that Catalina “consistently did not allocate enough labor hours such that there was not enough time for Plaintiff and California Class Members to complete their required duties.” As a result, the Complaint alleges Plaintiff and California Class Members were forced to clock out of Catalina’s timekeeping system, but were still required to perform additional work for Catalina for which they were not compensated for.

Furthermore, the complaint also alleges that the Plaintiff and California Class Members received non-discretionary quarterly bonuses from Catalina, but Catalina failed to include this extra bonus compensation in the regular rate of pay for the purposes of calculating the correct overtime pay rates owed to these employees. The failure to include the bonus compensation in the regular rate of pay for overtime purposes, according to the complaint, “has resulted in a systematic underpayment of overtime compensation” to the Plaintiff and members of the California Class.

The Complaint further claims that as a result of Catalina’s failure to record all hours worked by members of the California Class and Catalina’s failure to pay these employees the correct overtime rate, Catalina “failed to provide the Plaintiff and the other members of the California Class with complete and accurate wage statements which failed to show, among other things, the correct number of all hours worked and the correct overtime rate for overtime hours worked.”

Founding partner of Blumenthal, Nordrehaug, & Bhowmik, Norman Blumenthal asserts, “when employers exclude non-discretionary bonuses from the regular rate of pay when calculating their employee’s overtime rate, they are violating the law.”

Top Settlements

Ignobel NobelTel? A settlement has been proposed in the of a consumer fraud class action lawsuit captioned Sabaj et al. v. NobelTel, LLC et al. (aka, NobelTel Prepaid Calling Card class action lawsuit)

It could affect you if you purchased prepaid calling cards that were sold, serviced or distributed in California by Nobel, Inc., Nobel, Ltd., NobelCom, LLC, and NobelTel, LLC (“Defendants”), or if you purchased any prepaid calling services sold online and submitted a California billing address through www.nobelcom.com and www.enjoyprepaid.com, between April 8, 2006 and May 24, 2012 (“Nobel Prepaid Calling Cards”). If you made such a purchase, you may be a member of the Settlement Class. (This is only a summary legal notice. A detailed notice is available at the websites and toll free number listed below.)

What Is The NobelTel Lawsuit About?

The consumer fraud lawsuit claims that the Defendants did not inform consumers sufficiently about the applicable rates and charges for their prepaid calling cards and services, failed to deliver minutes voice prompted by the cards, and violated California consumer protection laws. Defendants deny they did anything wrong.

Am I Affected By The NobelTel Settlement?

You are a member of the Class if you purchased a prepaid calling card issued by Nobel, Inc., Nobel, Ltd., NobelCom, LLC, and NobelTel, LLC in California between April 8, 2006 and May 24, 2012. A list of eligible calling cards is available on the websites listed below.

You are also a member of the Class if you purchased any prepaid calling services sold online between April 8, 2006 and May 24, 2012 and you provided a California billing address through www.nobelcom.com and www.enjoyprepaid.com.

What Benefits Does The NobelTel Settlement Provide?

Defendants will provide 400,000 $5.00 calling card Settlement Personal Identification Numbers (“Settlement PINs”). These Settlement PINs can be used to make international and domestic calls, originating from California, to any place in the continental United States and to 879 foreign locations. A complete list of locations is available on the websites below. If you purchased Nobel Prepaid Calling Cards online, you may be entitled to receive one (1) Settlement PIN for up to the first $40 in Nobel Prepaid Calling Cards purchased, and an additional Settlement PIN for every $40 increment thereafter. If you purchased Nobel Prepaid Calling Cards in a physical store in California, you may be entitled to receive one (1) Settlement PIN for up to the first $20 in Nobel Prepaid Calling Cards purchased, and an additional Settlement PIN for every $20 increment thereafter, up to a maximum of six (6) Settlement PINs.

How Do I Make a Claim in the NobelTel Settlement?

If you purchased prepaid calling services sold online through www.nobelcom.com and www.enjoyprepaid.com, you will automatically receive the Settlement PIN(s) at the e-mail address you provided to Defendants without having to submit anything.

If you purchased a prepaid calling card in some other manner, you must submit a Refund Form to receive the Settlement PIN(s) by mail no later than November 20, 2012 to February 18, 2013.

What Are My Other Legal Rights?

Remain in the Settlement: You will be bound by the terms of the Settlement and give up your right to sue Defendants. To receive the Settlement PIN(s) see the instructions above.

Get out of the Settlement: If you wish to keep your right to sue Defendants, you must exclude yourself by August 13, 2012.

Remain in the Settlement and Object: If you stay in the Settlement, you can object to it by August 13, 2012. You give up your right to sue and are bound by all Court orders even if your objection is rejected.

A hearing in the case, Sabaj et al. v. NobelTel, LLC et al. Case No. BC435467 will be held on September 13, 2012 to consider whether to approve the Settlement and a request for attorneys’ fees and expenses up to $500,000.

Umm… the phone card that never runs out…

Hilton Settlement–No not with Paris, This one’s in LA…The Hilton Los Angeles Airport Hotel has agreed a $2.5 million settlement in the wage and hour class action brought by 1,200 of its hotel workers. The Hilton lawsuit alleged that the hotel withheld wages, failed to pay overtime and failed to provide meal and rest breaks.

Filed in 2008, the unpaid overtime class action covers all hourly workers who worked at the hotel from 2004 to 2011.

Other allegations included in the employment lawsuit were that the Hilton LAX did not pay its employees for time spent preparing for work and putting on and taking off work uniforms that were required to be left at the hotel. And, that plaintiffs were required to fill out time sheets saying they took breaks whether they truthfully did or not.

Well – someone had to pay for Paris’ exploits…

Ok – that’s a wrap. See you at the bar. Happy Friday Folks.

Week Adjourned: 1.6.12

A wrap of the week’s top class action lawsuits and settlements for the week ending January 6, 2012.

Top Class Actions

Pay your staff overtime? Just do it! A former employee of the San Francisco NikeTown Store has filed a wages and overtime class action complaint against Nike alleging that the sporting goods manufacturer failed to compensate him for overtime, meals and rest breaks as well as any additional shifts he worked. The lawsuit has two (2) potential classes: “All employees of Defendants who worked as Sales Associates, or any other non-exempt job position, who were subject to Defendants’ policy of searching Defendants’ employees upon exiting one of Defendants’ store locations in California from December 28, 2007, to the date of filing this Complaint.” This group is hereinafter referred to as the “California Class.” This period of time is hereinafter referred to as the “California Class Period.”

And, “All employees of Defendants who worked as Sales Associates, or any other non-exempt job position, who were subject to Defendants’ policy of searching Defendants’ employees upon exiting one of Defendants’ store locations in the United States of America from December 28, 2008, to the date of filing this Complaint.” This group is hereinafter referred to as the “Nationwide Class.” This period of time is hereinafter referred to as the “Nationwide Class Period.”

The employment lawsuit was filed by Webster Proctor, on behalf of himself and behalf of others similarly situated. According to the complaint, Proctor was employed by Nike from approximately April 2010 until approximately May 2011. During that time he alleges in the lawsuit that he generally worked four (4) 8-hour shifts per week and was deprived of pay for all the hours he worked, meal and rest breaks, and proper overtime pay.

Specifically, the wages and hour class action lawsuit alleges: failure to compensate employees for all hours worked; failure to pay overtime; failure to provide meal and rest periods; failure to furnish accurate wage statements; failure to maintain employee time records; and unfair competition.

Top Settlements

Is it snake oil? An unfair business practices lawsuit against dietary supplement distributors Iovate Health Sciences Inc., and Iovate Health Sciences USA Inc., look certain to be settled as the companies have agreed to pay $1.5 million in civil penalties and costs. This is reportedly the second largest multidistrict attorney dietary supplement settlement of its kind in California.

The lawsuit was brought by the District Attorney’s Office in Santa Cruz, Napa, Alameda, Marin, Monterey,

Pages: 12

Week Adjourned: 12.17.11

A wrap of the top class action lawsuits and settlements for the week ending December 17, 2011.

Top Class Actions

What Happened to that ‘Good Will Toward Men’ Thing? ‘Tis the season–and this thing called good will towards men apparently hasn’t caught on yet–in some parts. Case-in-point–Capital One. They’re facing a class action over allegations that they illegally obtain background checks on folks applying for jobs with the company. What’s in your wallet indeed!

The lawsuit was filed on behalf of Plaintiff Kevin Smith and seeks to represent a class of all Capital One employees and job applicants for the past three years.

Essentially, the lawsuit accuses Capital One of violating the Fair Credit Reporting Act (“the Act”) Act in a two ways. First, the lawsuit alleges that Capital One’s authorization form is flawed. The law imposes strict formatting requirements on companies who do background checks. The lawsuit alleges that by burying its background check authorization in a job application, including extraneous information, Capital One violated the law. On this claim, Capital One may be liable to all employees and prospective employees who signed Capital One’s standard job application.

Second, the lawsuit also alleges that Capital One failed to provide copies of the reports when it used them to take adverse employment actions, such as refusing to hire an applicant, refusing to promote an employee or terminating an employee. This practice also violates the Act, which requires companies to provide employees with copies of their background checks.

The lawsuit is potentially valuable to class members. Employees and prospective employees may be entitled to statutory damages of up to $1,000 for each violation. “Based on our understanding of Capital One’s practices, everyone who has applied or worked for Capital One in the past three years should be eligible to receive statutory damages if our lawsuit succeeds,” attorneys for the plaintiff(s) state.

Next up–Apple. All I have to say about this is Really? Here’s the skinny…

Cheap to the (Apple) Core? The uber cool icon of new technologies for the 21st century has been hit with an employment class action lawsuit. The suit alleges that Apple devised an illegal scheme of classifying at-home call center employees as independent contractors in order to avoid paying Apple’s share of payroll taxes and other business related expenses through the use of a Yellow Dog Contract.

According to the lawsuit, Apple “hires workers to answer calls from its customers in regard to billing questions and technical support” but has devised an unlawful scheme of classifying the employees as independent contractors in order to avoid paying for regular and overtime hours worked as well as the “the cost of the employer’s share of tax payments to the federal and state governments for income taxes, social security taxes, medicare insurance, unemployment insurance and payments for workers’ compensation insurance.” The complaint specifically alleges that in order to avoid the payment of these costs as required by law, the at home call center employees “are required by APPLE to each form a separate Virtual Services Corporation to act as a shell corporation as part of the scheme to insulate APPLE from APPLE’s liability for APPLE’s Business Related Expenses.” The class action lawsuit against Apple refers to these agreements between Apple and the employees as “Yellow Dog Contracts” that violate not only employment laws, but also fundamental public policy.

Top Settlements

A Fee-for-All at Walmart? Walmart has agreed to a $13.5 settlement of a securities class action this week. The lawsuit was brought by employee Jeremy Braden, and others, who alleged that the retail giant, together with Bank of America’s Merrill Lynch unit, passed along “unreasonably high fees and expenses” to its 2 million workers who had 401(k) plans. As with many 401(k) plans, Walmart’s contained a mixture of mutual funds representing investments in the bond and stock markets. The costs of managing those funds were passed along to employees.

According to a report in the AARP Bulletin the Walmart “settlement is a legal landmark because Walmart provides one of the largest 401(k) plans in the world and is the nation’s largest private employer, with more than $400 billion in annual sales.”

The timing is interesting in that the US Department of Labor is currently refining regulations around “fiduciary duty” and fee disclosure in 401(k) plans. And, the government is pressing for full disclosure of all fees paid to middlemen such as savings plan managers and wants stricter legal guidelines on how to provide the most prudent offerings at the lowest possible cost.

“I believe my account has experienced a loss in value, due to the reduced return on my investment in those plan investment options caused by the unreasonably high fees and expenses in those funds,” Braden stated in the lawsuit.

Under the terms of the settlement, Braden will collect $20,000. “Other employees covered by the class action suit will not receive payouts, but will benefit in the form of up to $9 million in reduced fees going forward. Lawyers for the plaintiffs will collect as much as $4 million,” AARP Bulletin reported.

Ok–That’s enough for this week. See you at the bar.

Week Adjourned: 11.19.11

Weekly wrap up of class action lawsuits and settlements for the week ending November 19, 2011

Top Class Actions

Under-performing, under investigation and in trouble–that could be the new tag line for Olympus, who got served with a securities lawsuit this week. And, to make matters worse for the Japanese manufacturer of imaging equipment–they are now under investigation by the SEC and FBI. Nice. That ought to keep them up at night…

The securities class action lawsuit was filed against Olympus Corporation (“Olympus”), on behalf of purchasers of Olympus American Depository Receipts (pinksheets: OCPNY, OCPNF) between November 7, 2006 and November 7, 2011, inclusive (the “Class Period”).

According to the lawsuit, Olympus falsely represented its finances for over five years and hid large losses by characterizing them in its financials as “fees” paid to investment advisers for work on corporate acquisitions.

Olympus’ false statements and material omissions, according to the lawsuit, artificially inflated its stock price and investors suffered heavy losses after Olympus disclosed the truth about its financial statements on November 7, 2011. Investors’ American Depository Receipts dropped dramatically from $13.72 on November 7, 2011, the last day of the Class Period, to $9.05 on November 8, 2011, or 34%. Olympus’ top executives resigned in what has become a financial scandal in Japan.

Recently, on its webpage, Olympus admitted discovering that it had been wrongfully “engaging in activities such as deferring the posting of losses on investment securities.” Olympus offered its “deepest apologies” to shareholders for the “inconvenience” caused by the fall of its share price. Uh–I don’t think an apology is going to cut it in this instance…

Top Settlements

Wal-Mart Netflix Antitrust Lawsuit News…A potential settlement agreement looks possible in an antitrust class action lawsuit brought by current and former Netflix customers against Wal-Mart and Netflix. Emails were recently sent out announcing that Wal-Mart wants to settle. Netflix has decided to continue its fight. Really?

The potential settlement would see Wal-Mart pay $27.25 million in cash and gift cards. The Wal-Mart settlement class includes anyone in the U.S. or Puerto Rico who paid a Netflix subscription fee for DVD rentals from May 19, 2005, through September 2, 2011. More details on the lawsuit are available at OnlineDVDclass.com.

FYI–in case the details of the Wal-Mart – Netflix lawsuit don’t immediately come flooding back to mind…(because it was filed in 2009 maybe) the allegations are basically: “This antitrust class action arises out of a conspiracy among defendants Netflix, Wal-Mart stores, and Walmart.com to divide the markets for the sales and online rentals of DVDs in the United States in order to avoid competition, monopolize, and illegally restrain trade in at least the online DVD rental market.”

Oracle Overtime Lawsuit Preliminary Settlement…Ah–this old chestnut, again. A California unpaid overtime class action lawsuit brought against Oracle reached preliminary settlement through a court in California last week, to the tune of $35 million.

The plaintiff class includes some 1,725 Oracle employees who alleged that they were not paid overtime and meal allowances. The suit was filed by quality software assurance engineers, customer support engineers and project managers who worked for Oracle and Peoplesoft in Redwood City and Pleasanton from 2003 to 2006.

According to California County law, staff working more than eight hours a day or 40 hours in a week are eligible for time-and-a-half. However, Oracle incorrectly classified the three groups of workers as administrative roles, making them exempt from the payments.

Oracle did not change its overtime policy for customer support engineers and project managers until 2007, though quality assurance engineers still do not qualify for overtime and the settlement for them extends to November 2010. A final hearing is set for March and will allow any workers to raise objections or go after individual claims against the software giant.

Ok–That’s enough for this week. See you at the bar. Bottoms Up!

Week Adjourned: 9.16.11

Weekly wrap up for September 16, 2011 of the latest class action lawsuits and settlements

Top Class Actions

Destination Maternity could find itself rerouted—make that destination courthouse as they got hit with an employment class action lawsuit this week. Why, you ask? Sadly, nothing very original. The lawsuit claims that the international retail clothing store violated both federal labor laws and New York labor laws by routinely requiring its sales associates to undergo off-the-clock bag checks and security screenings for which they were not compensated.

The lawsuit also claims that Destination Maternity, A Pea in the Pod, Motherhood Maternity (what other kind is there?), and Edamame stores all require their sales associates to have their bags checked before they leave the stores to have lunch and before they go home for the evening. These checks occur off-the-clock, adding as much as 30 minutes to sales associates’ workdays for which they receive neither overtime nor straight time pay. Of course the point of the lawsuit is to recover the wages and overtime pay each sales associate is due under the law.

So, if you work or have worked as a sales associate at either a Destination Maternity, A Pea in the Pod, Motherhood Maternity, or Edamame store, you may request to be included in the proposed class. Check it out.

Top Settlements

The Best or Nothing? Guess it’s nothing… Mercedes Benz will be shelling over some cash shortly, following federal approval of a $15 million settlement of a recent consumer fraud class action lawsuit. It seems that Mercedes Benz USA failed to inform buyers of its luxury vehicles with analog Tele Aid communication systems that they planned to phase out the analogue emergency communications systems altogether on its models from 2003-2006. Yes—that could influence your decision to buy, no doubt.

Back to the good news. Well, sort of. Under the terms of the Mercedes-Benz settlement purchasers of 2003 to 2006 Mercedes-Benz models with the analog Tele Aid systems installed in their vehicles could receive either a certificate for up to $1,300 off a new vehicle or $650 in cash. Ummm.

You’re Forgiven! I love this one! Thousands of people have been forgiven their debts in a historical unfair business class action settlement reached last Friday in Maryland. The class action lawsuit was brought by Jason Hauk and Freddy Velazquez who led the class action lawsuit, against LVNV Funding LLC, a Greenville, SC-based company that buys consumer debt.

According to the terms of the settlement some 3,500 people in the class will receive about $2000 each, for a total of $7 million. The total settlement forgives about $10 million in debt, according to filings in U.S. District Court in Baltimore.

Further, LVNV will not pursue the 3,500 debtors in order to collect the debt, nor will they be able to sell those debts to other third party collection agencies. And LVNV have to remove information it gave to the major credit bureaus for each of those debtors, a step taken to improve their credit ratings. The settlement is being hailed as historic, and a major win for the class. You gotta love the system when it works!

OK. That’s it for this week. See you at the Bar—and safe travels getting home.

Week Adjourned: 6.17.11

Top Class Actions

Logistical Error? Nothing like a lawsuit to improve your company’s standing—or attract quality employees—as FTDI West is about to find out. The company, located in California and Florida, got hit with an unpaid overtime class action lawsuit this week.

The gist of the lawsuit is labor code violations, well, that’s a no-brainer. Specifically, the lawsuit states that FTDI West Inc, violated: Sections 226.7 and 512 of the California Labor Code by failing to provide adequate meal breaks to employees involved, section 226.7 of the California Labor Code by failing to provide adequate rest breaks to employees involved, Section 510 of the California Labor Code by failing to pay proper overtime wages, Sections 203 and 226 (a) of the California Labor code by providing involved employees paystubs not in compliance with California law and not paying “waiting time” penalties, as well as two other causes of action as related to Business and Professions Code Section 17200 and the common law tort of unjust enrichment.

The overtime claims asserted deal with non-payment of “double time” wages. Double time wages are due for any work over 12 hours in a workday or any work beyond eight hours on any seventh consecutive day of a workweek.

The lawsuit defines its class members as “All current and former employees of Defendants who were employed as non-exempt employees at any of Defendants’ locations anywhere in California, at any time from four years prior to the initiation of this action until the present.”

Top Settlements

Drywall Might Settle but the Dust Surely Hasn’t… Remember all the defective Chinese drywall lawsuits of not so very long ago? Well, they are slowly making their way through the courts to settlement land. Case in point—Banner Supply has agreed a $54.4 million settlement of a class action lawsuit brought by homeowners in the Orlando, FL area. In fact, the agreement covers 2,000 to 3,000 homes south of Orlando.

According to Builderonline something like 95 companies have been implicated as distributors of the sulfur-tainted drywall and named in subsequent lawsuits filed against the Chinese manufacturers. The defendants are accused of being the source of tainted drywall. While Banner Supply tops the list, others suppliers reportedly include ProSales L&W Supply, ProBuild, Stock Building Supply, and 84 Lumber.

While $54.5 million might seem a large settlement, it may only work out to between $18,000 and $24,000 per home, and estimates suggest the cost of repairing the affected properties could reach $100,000.

Defective Boat Injury leads to $31M Award. Ok. There’s bad design, and BAD DESIGN. In this case, I’m not talking about an infraction of the Home & Garden variety, but rather something that warranted a $31 million award. Two women brought a defective product and personal liability lawsuit against MasterCraft, after suffering some pretty horrendous injuries that good design likely would have prevented.

Short version, in 2006 Nichollette Bell and Bethany Wallenburg were among 12 passengers riding in a MasterCraft X-45 wakeboarding craft. They were sitting on the bow of the boat when it was suddenly submerged as the driver of the boat went to retrieve a fallen wakeboarder. As a result the women were swept off the boat by the force of water and into the lake. The boat’s propeller struck Bell on the head, ripping out an eye and leaving her with brain damage. The propeller also slashed Wallenburg’s left elbow and lower back, resulting in muscle and nerve damage. In their lawsuit, the women alleged the boat was defectively designed. They also alleged the driver handled the boat negligently. Not surprisingly, the jury found MasterCraft 80 percent at fault and the driver 20 percent at fault.

OK. That’s it for this week. See you at the Bar.

Week Adjourned: 5.14.10

An overtrime pay lawsuit has been filed against Gentiva This week it’s all about bad employers and bad drugs…bad, bad, bad!

Top Class Actions

Whole New Meaning to Visitation Rights. A massive, nationwide class action lawsuit was filed this week by employees of one the largest healthcare service providers in the country—Gentiva Health Services, Inc. The employees are claiming the company violated the Fair Labor Standards Act (FLSA).

Apparently, Gentiva—which incidentally employs some 30,000 health care workers—treats visiting nurses and other health care providers as exempt from the overtime requirements of the FLSA and refuses to pay these employees for all hours worked. Sound familiar?

Instead, Gentiva pays nurses and other health care providers on a “per visit” basis for some work, an hourly rate for other work, and fails to pay anything at all for other hours worked. Plaintiffs allege that Gentiva’s rather creative take on employee compensation doesn’t quite meet the requirements of state or federal wage and hour law.

The lawsuit, if approved, seeks to represent all current and former Gentiva employees, including registered nurses, therapists, and other health care providers who are or were not paid for all hours worked.

You know these guys may end up rivalling Wal-Mart….

Top Settlements

Movin’ from Price to Wage Rollbacks? (Again?) Speaking of the devil…(I feel a rant coming on)… Continue reading “Week Adjourned: 5.14.10”