Overtime Pay

Week Adjourned: 2.8.13 – Hipster, YoPlus, Ritz-Carlton

Nemo’s coming and your top class action lawsuit & settlement wrap for the week is now live! Latest class action lawsuits for the week ending February 8, 2013 include Hipster, YoPlus and the Ritz-Carlton

Top Class Action Lawsuits

Hipster ain’t so hip after all…at least according to the plaintiffs who have filed an in Internet privacy class action lawsuit against the photo-sharing App. The Hipster lawsuit alleges the company illegally obtained iPhone users’ personal information and contact lists without their permission.

The internet privacy lawsuit, entitled Francisco Espitia v. Hipster Inc., Case No. 13-cv-00432 in the U.S. District Court for the Northern District of California, alleges that a function of the Hipster App found and retrieved subscribers’ personal contacts and other highly sensitive information, including passwords and geo-location, and then transferred the data over unencrypted, publicly accessible data channels to Hipster’s third-party servers. (Maybe they should rename the App “Fetch”).

Specifically, the lawsuit states: “These actions involved the deliberate and intentional circumvention of technical measures within the mobile computing device in order to bypass the technical and code based barriers, including the plaintiffs’ and class members’ privacy settings which were intended to limit access by anyone other than the owner of the device.” Having transferred the users’ contact address data to its remote computing service, Hipster then allegedly proceeded to access and use such data without authorization or consent, according to the lawsuit.

The laundry list? Violations of the Electronic Communications Privacy Act, the Stored Communications Act, the California Computer Crime Law, and the California Invasion of Privacy Act, among other things.

The Hipster lawsuit seeks to represent all US residents that downloaded the Hipster App to their mobile phones from January 1, 2011 to the present.

Very uncool.

Top Settlements

Yo Dude! You may be eligible to share in the YoPlus $8.5 million settlement agreed this week by General Mills. If approved, the settlement would end a consumer fraud class action lawsuit alleging the food manufacturer misrepresented the digestive health benefits of its YoPlus probiotic yogurt. Well, they certainly wouldn’t be the first, and likely, they won’t be the last.

Filed in 2010, the consumer fraud class action lawsuit, entitled J Johnson v. General Mills Inc. et al., Case No. 10-cv-00061, U.S. District Court for the Central District of California, claims that consumers who purchased the YoPlus yogurt products were deceived into paying more for them as a result of General Mills misleading advertising.

In their motion to accept the settlement, the plaintiffs noted “Considering the strengths and weakness of this case, including the amount of potential damages available to the class after trial here and in other jurisdictions around the United States, the settlement represents an excellent result and includes relief for purchasers of YoPlus on a nationwide basis.”

Under the terms of the settlement, consumers who purchased YoPlus will be entitled to $4 per person for each unit they purchased. Not bad, really.

Putting on the Ritz? Em, maybe not. More like this one’s on the Ritz…The Ritz-Carlton that is. This week, the famous hotel chain agreed to pay $2 million in settlement of the Ritz-Carlton overtime class action lawsuit filed by 1,500 (yup—that’s the right number of zeros) current and former employees in California who allege they were not paid overtime wages.

Bottom line—eligible plaintiffs in the California overtime employment class action are for those who either work or worked at Ritz-Carlton hotels in San Francisco, Half Moon Bay and Lake Tahoe at any time from November 2007 on.

And just in case you need the details—the settlement, when approved, will resolve Lambson v. Marriott International, Inc. et al, Case No. 11-cv-06669, U.S. District Court for the Northern District of California, and allegations the Ritz Carlton, a subsidiary of Marriott International, violated California state wage and hour laws.

So—see you at the bar—who’s buying?

Week Adjourned: 9.7.12 – Olive Garden, Red Lobster, Chase, eBooks

An unpaid overtime class action lawsuit has been filed against all restaurant chains owned by Darden Restaurants, including The Capital Grille, Longhorn Steakhouse, Olive Garden and Red Lobster. Read more in our weekly wrap of top class action lawsuits and settlements for the week of September 7, 2012.

Top Class Action Lawsuits

We want you to work but we don’t want to pay you… sound familiar? An unpaid overtime class action lawsuit has been filed against all restaurant chains owned by Darden Restaurants, including The Capital Grille, Longhorn Steakhouse, Olive Garden and Red Lobster.

The Darden Restaurants lawsuit was filed on behalf of Amanda Mathis, a Florida resident and former server at several Longhorn Steakhouse locations, and James Hamilton, a Virginia resident and former Olive Garden server in Georgia. In their lawsuit, the plaintiffs allege that servers such as themselves were paid less than the minimum wage and were not compensated for time they were required to work off the clock.

The overtime pay lawsuit contends that Darden violated the Fair labor Standards Act by paying many of its servers below the applicable minimum wage, which can be as low as $2.13 an hour for tipped work and $7.25 an hour for non-tipped work. It also alleges that servers were required to work off the clock at the beginning and end of their shifts. Isn’t that called “volunteering”?

The proposed class seeks to represent current and former servers employed between August 2009 and the present. Darden is considered the world’s largest full-service restaurant group, with almost 170,000 employees.

Top Settlements

Chase chastised to the tune of $100 million…in settlement monies for improper loan and APR Rates. Preliminary court approval was granted this week, in a credit card class action lawsuit brought against Chase Bank over allegations that its loan and APR rates were increased improperly.

Specifically, the lawsuit, brought by Chase credit cardholders, claimed those customers accepted promotional loan offers whereby the loan was subject to a fixed interest rate (APR) until the loan balance was paid off in full. In November 2008 and June 2009, Chase sent some of these cardholders a “Change in Terms” notice, raising their minimum monthly payment from 2% to 5% of their outstanding account balance and, in some cases, applying a $10 monthly fee to their account.

Who Is Included in the Chase Credit Card Class Action?

The “class” for this lawsuit includes all persons or entities in the United States who entered into a loan agreement with Chase, whereby Chase promised a fixed APR until the loan balance was paid in full, and (i) whose minimum monthly payment was increased by Chase to 5% of the outstanding balance, or (ii) who were notified by Chase of a minimum payment increase and subsequently closed their account or agreed to an alternative change in terms offered by Chase.

How Will Chase Credit Card Class Action Settlement Payments Be Determined?

If the Settlement becomes effective, Class Members will be sent a settlement check by the Settlement Administrator in the amount of their individual share of the Settlement Fund available for distribution. Each Class Member’s share will be comprised of: (i) a $25.00 base payment; plus (ii) for most, but not all, Class Members, an additional payment intended to give the most compensation to those Class Members most affected by the Change in Terms, taking into account, among other things, the amount of the initial transaction fees paid for their fixed rate promotional loans (if there is no record of a transaction fee, an average transaction fee will be used), how much of the promotional balances were paid back before the Change in Terms occurred, how long the promotional loans were in the Class Member’s account before the Change in Terms, and whether and when the promotional balances were restored to their original terms after the Change in Terms were announced. A limited number of persons were notified of the change in terms but, for example, did not have balances at the time the change in terms took effect, and will not receive an additional payment (these Class Members will still receive the $25.00 base payment).

For more information, visit ChaseMinPaymentLawsuit.com.

Refunds on eBooks? Are you in line for some dosh? Check it out. A $69 million settlement has been reached in a lawsuit brought by US states and territories against Hachette, HarperCollins and Simon & Schuster over ebook pricing. According to Publishers Weekly, if the agreement for the eBook pricing lawsuit receives court approval, Hachette will pay $31,711,425, HarperCollins will pay $19,575,246, and Simon & Schuster will pay $17,752,480. The consumer fraud agreement includes fees and other costs to be paid by the publishers.

The eBook class action lawsuit centered around agreements made between publishers and Apple to move away from the industry’s traditional wholesale-retail model, in which retailers set the price of ebooks, to an agency model, in which the ebook stores served as agents that earned a percentage of each sale, allowing publishers to decide how much their ebooks would cost. Publishers who wanted to sell with Apple moved to a similar model with Amazon.

The settlement translates, at least to consumers, into refunds for ebooks purchased between April 1, 2010, and May 21, 2012, that had been priced according to the agency model.

According to report in the LA Times publishers will $1.32 for each bestselling title purchased by a consumers, 32 cents for books that were less than a year old but not bestsellers, and 25 cents for older e-books.

Refunds will appear in e-book buyers’ online accounts on iTunes, Amazon and Barnes & Noble. Readers who purchased e-books through Google or Sony’s storefronts will receive a check, and others can opt to. They can also opt not to receive any rebate at all.

That’s it for this week…See you—well, you know where.

Week Adjourned: 8.24.12 – Hotel Deals, Parkay, ACS

The weekly wrap of top class action lawsuits and settlements for the week ending August 24, 2012. Top stories include online hotel reservations, Parkay margarine and ACS overtime.

Top Class Actions

And you thought you were getting a hotel deal? Consumers (that would be you and me) have filed an antitrust class action lawsuit against several online travel sites including Expedia, Inc, Travelocity, Booking.com, a subsidiary of Priceline.com, and the nation’s largest hotel operators including Hilton Hotel, Sheraton Hotels and Resorts, a subsidiary of Starwood Hotels and Resorts Worldwide, and Marriott International, Inc, claiming the two groups conspired to use their market dominance to fix prices on hotel rooms across the country.

The hotel price fixing class action lawsuit, filed on behalf of hotel room purchasers nationally, alleges that the online hotel retailers conspired with major hotel defendants to secretly create and enforce Resale Price Maintenance (RPM) agreements to thwart competition on hotel room prices, especially from price-cutting online retailers.

The complaint contends that the defendants’ unlawful conduct caused plaintiffs and other class members to overpay for their purchases of room reservations and seeks to represent all consumers who have purchased hotel rooms from the online retailer defendants.

According to the complaint, online travel sites account for as much as 50 percent of hotel bookings in the United States and traditionally operate under one of two models. Under the agency model, online retailers charge a service fee to a hotel operator on a transaction basis for booking customers, and that customer pays the hotel directly at a rate set by the hotel.

Under the merchant model, online retailers purchase rooms outright at a negotiated rate from the hotel, and then resell the rooms to consumers at a higher price, increasing or decreasing margins depending on competitive influences.

More recently, a new model has emerged that has cut into the traditional online retailers’ profits, the complaint contends, and has led to the creation of the RPM agreements. In this model, known as the Wholesale Model, third-party companies buy up unsold blocks of rooms at the last-minute and resell them to smaller price-cutting online retailers, eroding the profits of the traditional online retailers.

Knowing hotels cannot afford to lose access to online distribution networks, online retailers allegedly devised an illegal scheme, extracting agreements from the hotels that online retailers may not sell rooms below the RPM rates—even through the wholesale model—on penalty of termination and as a condition of doing business through the online retailers, the lawsuit contends.

The complaint states that the online retailer defendants often use terms like “best price guarantee” to create the impression of a competitive market, but in truth these are nothing more than a cover for the price-fixing conspiracy. The suit alleges that the defendants’ activities violate both the federal antitrust laws, as well as California’s Cartwright Act.

What’s the fat content in Parkay Spray Butter advertising? Higher than indicated, apparently…ConAgra Foods got hit with a consumer fraud class action lawsuit over allegations they intentionally misrepresenting the contents of Parkay Spray butter substitute.

Nebraska resident Pamela Trewhitt filed the Parkay lawsuit claiming that ConAgra falsely marketed the butter substitute as “fat-free” and “calorie-free,” even though it contains 832 calories and 93 grams of fat per 8-oz bottle. The lawsuit also claims that the nutrition information on the label underestimates the amount of fat and calories in the products by using artificially small serving sizes of one to five sprays.

“Defendant knew or should have known that its product was mislabeled and engendered confusion among consumers,” the lawsuit states. It cites numerous Internet complaints about the spray by consumers who couldn’t figure out why they weren’t losing weight until they discovered that Parkay Spray was the culprit. “I was literally taking the top of the ‘fat and calorie free butter’ spray and pouring it on my carefully steamed veggies when I found out that a bottle of that stuff is 90 fat grams. I was going through two bottles a week, and working out and getting fat and unhealthy,” one plaintiff alleges.

The Parkay lawsuit accuses ConAgra Foods of violating the Nebraska Consumer Protection Act, intentional and negligent misrepresentation, reaping ill-gotten profits, and fraud. Plaintiffs are seeking more than $5 million in damages as well as an injunction barring ConAgra from labeling Parkay Spray as fat-free and calorie-free.

Top Settlements

Now here’s a happy ending…Workers employed at an Oregon call center by Affiliated Computer Services Inc, have won a $4.5 million settlement in a wage and hour class action lawsuit. The lawsuit alleged the employees were not properly paid all minimum and overtime wages for all the hours they worked.

Filed in 2009, the lawsuit, entitled Bell, et al. v. Affiliated Computer Services, claims that ACS violated federal and state wage and overtime laws by failing to pay employees for all hours worked, all overtime hours and failing to timely pay final wages to employees at the end of employment.

Eligible class members of the ACS settlement include all employees of ACS who worked as a phone agent or representative in an Oregon call center for the “Retail, Travel, and Insurance,” “BPS,” or “Telecommunication and technology” business groups from April 2, 2005 through April 25, 2012.

The settlement has three classes, under which members may make a claim. They are:

Subclass A: Class Members who were employed by ACS in Oregon as of April 25, 2012 will receive a Settlement Award in the maximum amount of $125, not to exceed 2,000 individuals.

Subclass B: Class Members who were employed by ACS in Oregon and whose employment ended at any time between November 6, 2006 and April 24, 2012 will receive a Settlement Award in the maximum amount of $260, not to exceed 13,000 individuals.

Subclass C: Class Members who were employed by ACS and whose employment ended at any time between April 2, 2005 and November 5, 2006 will receive a Settlement Award in the maximum amount of $50, not to exceed 5,000 individuals.

In order to receive a Settlement Award from the ACS settlement class members must submit a valid Claim Form to the Settlement Administrator postmarked or faxed on or before September 1, 2012. Claim Forms have been mailed to Class Members.

A Final Approval Hearing for the Affiliated Computer Services Class Action Lawsuit Settlement will be held October 22, 2012.

Ok—that’s it for this week—see you at the pool 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: 8.12.11

Top Class Actions

Latest Book Club? Apple, and some the publishing industry’s biggest names got hit with a nationwide antitrust class-action lawsuit this week, over allegations that they conspired to fix prices in electronic books (e-books)–at least that’s the short version.

According to published info, Apple Inc., HarperCollins Publishers, a subsidiary of News Corporation, Hachette Book Group, Macmillan Publishers, Penguin Group Inc., a subsidiary of Pearson PLC, and Simon & Schuster Inc., a subsidiary of CBS, colluded to increase prices for popular e-book titles to boost profits and force e-book rival Amazon to abandon its pro-consumer discount pricing. Nice!

Here’s the skinny: the publishers believed that Amazon’s enormously popular Kindle e-reader device and the company’s discounted pricing for e-books would increase the adoption of e-books, and feared Amazon’s discounted pricing structure would permanently set consumer expectations for lower prices, even for other e-reader devices.

So, according to the lawsuit, the five publishing houses forced Amazon to abandon its discount pricing and adhere to a new agency model, in which publishers set prices and extinguished competition so that retailers such as Amazon could no longer offer lower prices for e-books. That’s anti-free market for sure!

If Amazon attempted to sell e-books below the publisher-set levels, the publishers would simply deny Amazon access to the title, the lawsuit states. The defendant publishers control 85 percent of the most popular fiction and non-fiction titles. Lawyers for the plaintiffs note that while Amazon derived profit from the sale of its Kindle and related accessories, likely allowing the company to discount e-books, Apple was steadfast in maintaining the 70/30 revenue split it demanded with its App Store.

Still with me? Read on…

While free market forces would dictate that e-books would be cheaper than the hard-copy counterparts, considering lower production and distribution costs, the complaint shows that as a result of the agency model and alleged collusion, many e-books are more expensive than their hard-copy counterparts.

As a result of the pricing conspiracy, prices of e-books have exploded, jumping as much as 50 percent. When an e-book version of a best-seller costs close to—or even more than—its hard-copy counterpart, it doesn’t take a forensic economist to see that this is evidence of market manipulation, lawyers for the plaintiffs note. For example, “The Kite Runner” costs $12.99 as an e-book and only $8.82 as a paperback.

The lawsuit goes on to claim that because no publisher could unilaterally raise prices without losing sales, they coordinated their activities, with the help of Apple, in an effort to slow the growth of Amazon’s e-book market and to increase their profit margin on each e-book sold.

The lawsuit claims Apple and the publishers are in violation of a variety of federal and state antitrust laws, the Sherman Act, the Cartwright Act, and the Unfair Competition Act.

Once approved, the lawsuit would represent any purchaser of an e-book published by a major publisher after the adoption of the agency model by that publisher.

Does this affect you?

Top Settlements

Pharma Sales Reps Score One—in Overtime. Well now—here’s a great big slice of sunshine for all those hardworking pharmaceutical representatives. Schering Plough’s reps have won a complete victory in Federal Court in a nationwide collective lawsuit alleging unpaid overtime pay at the mandatory rate of time and one half. The federal class action was filed on behalf of all pharma reps who worked for SP during the last three years, anywhere in the United States.

No numbers have been made public as yet—but the press release states “The amount to be distributed to the class will be determined by the Court, but will likely include double damages for the violation.”

Apparently, the US Department of Labor recognizes that pharmaceutical reps are not exempt from overtime pay, and that the precedent for the class claim was set in the U.S. Court of Appeals for the Second Circuit, which found earlier this year that Novartis pharma reps were entitled to overtime compensation on the same grounds alleged against Schering Plough.

The US Supreme Court refused to hear the drug companies’ appeals. Saving tax payer dollars—always a good thing. The Second Circuit issued a similar ruling in a case brought by pharma reps against Schering Plough, as have district courts in Connecticut, Illinois, Florida and Texas in cases against Boehringer Ingelheim, Abbott, and Auxilum Pharmaceuticals. However, this ruling is the first of its kind as it found that pharma sales reps are not exempt under any of the parts of the exemption. Schering had to prove all the parts of the exemption, but it lost on all points.

Congratulations!

$5 Million Drunk Driving Accident Judgment. I wonder how many people are affected by drunk drivers? This guy certainly was. Twenty-two year old Dwight Grant—he was 22 in 2007 at the time of the incident—sustained brain damage as a result of an accident caused by a drunk driver. He was recently awarded $5 million in settlement of his personal injury lawsuit.

Apparently, he was a passenger in stopped vehicle when the vehicle was struck by Mathew Lyons who was being chased by the police. After hitting the car Grant was in, Lyons fled the scene.

Grant suffered fractures to his face and skull, which resulted in his sustaining brain damage, specifically, damage to his frontal lobe. This damage, Grant alleged, caused him a seizure disorder that now requires constant care.

The parties ultimately agreed to a $5 million final judgment.

OK. That’s it for this week. See you at the Bar—I’m taking a taxi.

Week Adjourned: 1.29.10

Top Class Actions

Citizen of your Wallet? It seems that no amount of bad PR or more importantly, federal regulations, are effective deterrents against bad business practices by banks. This week, a potential class action lawsuit was filed against Citizens Bank alleging that customers have been unfairly charged overdraft fees. Sound familiar? It should. This is just one in a spate of similar lawsuits involving overdraft fees—including a class action against Bank Atlantic, in November 2009.

In this particular lawsuit, Citizens Bank could be on the hook for hundreds of millions of dollars it allegedly unlawfully charged its customers by manipulating debit transaction postings to generate overdraft fees. In other words, CB seemingly put its customers into debt deliberately so it could charge overdraft fees. You do that to enough customers and presto—you’re rich—possibly even rich enough to afford those six figure senior management bonuses.

And the kicker? The fees were imposed under the guise of an ‘overdraft protection plan’ that the lawsuit alleges customers were not allowed to opt out of. I guess the epitaph to this could be—they don’t have your back—they have your wallet.

Top Settlements

If you Leave me Now, You’ll Pay an Early Termination Fee… (ok, so I’m not a lyricist) Keeping on the theme of Continue reading “Week Adjourned: 1.29.10”