Settlement - Part 7

Week Adjourned: 12.2.16 – Oil Workers, DePuy Hip Implant, AMEX

Top Class Action Lawsuits

Overworked Oilers? Another week, another several employment lawsuits. This one, an unpaid overtime class action lawsuit, has been filed against oilfield services company Schlumberger Tech Corp, by workers who allege the company is in violation of the Fair Labor Standards Act (FLSA).

According to the lawsuit, the defendant schedules workers for long shifts but pays them salaries plus a day rate, instead of overtime rates as required by both state and federal labor law. The laborers are not exempt from overtime as they perform manual duties that fit within a checklist set by their superiors, the lawsuit states.

“All these workers are regularly scheduled to work 84 hours per workweek, but often worked more,” attorneys for the plaintiff Andrew Fritchman state. “Instead of paying them overtime, SLB paid its [measurement while drilling] employees a base salary plus a day rate.”

According to the complaint, Fritchman worked as a “measurement while drilling” employee, a largely manual job that didn’t leave room to deviate from the company’s outlined plan for how each day was to be conducted. Measurement while drilling workers are tasked with recording data gathered during drilling operations. A college education is not required to do this work, the plaintiff asserts.

Fritchman is claiming that he and other workers performing the same job worked grueling schedules, working and living in the field sometimes for weeks. Typically, a schedule would require one worker on the “day” shift and the other on the “night” shift. Those shifts were 12 hours, and the employees worked seven days a week. Ah, yeah, that doesn’t sound good…

The plaintiffs assert that instead of paying its workers overtime as required by FLSA, the Ohio Prompt Pay Act, the Ohio Minimum Fair Wage Standards Act, and the Pennsylvania Minimum Wage Act, the company paid them a salary plus a day rate.

The lawsuit is seeking back pay, liquidated damages, attorneys’ fees and costs under FLSA for the company’s misclassifying its workers as exempt from overtime rules.

The case is Fritchman v. Schlumberger Tech Corp., case number 2:16-cv-01752, in the U.S. District Court for the Western District of Pennsylvania.

Top Settlements

$1B Hip Award. I’m willing to bet Johnson and Johnson is not celebrating this weekend. A jury in Dallas this week awarded $1 billion to six plaintiffs who are suing Johnson & Johnson (J&J) alleging the DePuy Pinnacle hip implant made by the company’s subsidiary, DePuy Orthopaedics Inc., was defective and has caused them adverse health effects and subsequent surgeries to remove the device.

The DePuy Pinnacle metal-on-metal hip implant has an unreasonably high failure rate. The lawsuits filed against DePuy, claim the metal-on-metal design allows metal debris to come loose from the device, ultimately being absorbed by the patient’s surrounding tissue.

Although J&J won the first case in 2014, in March of this year another federal jury in Dallas awarded $502 million to five plaintiffs whose suits were combined. The DePuy Pinnacle hip award was later reduced to $150 million under Texas law. However, because this latest set of lawsuits was tried under California law, the award won’t be subject to a punitive damages cap.

J&J is currently facing 8,500 similar lawsuits brought together in an MDL in federal court in Dallas. All the plaintiffs allege the company failed to adequately warn of the side effects associated with the hip implant.

According to media reports, evidence presented in court showed J&J paid kickbacks to surgeons to promote the device, even though the company was aware that the implant was associated with greater risks than other similar devices.

DePuy stopped selling the metal-on-metal Pinnacle devices in 2013 after the U.S. Food and Drug Administration strengthened its artificial hip regulations.

It would be interesting to know how many hours J&J spends in court each year, defending itself against defective products litigation…

AMEX Calling? A $9.25 million settlement has received final approval this week, ending a class action lawsuit against American Express. The lawsuit claimed the company made numerous unsolicited telemarketing calls, in violation of the Telephone Consumer protection Act (TCPA). You think?

According to the terms of the AMEX settlement, the funds will be distributed between two plaintiff classes, specifically, those who received debt collection calls on AmEx accounts and those who received telemarketing calls on behalf of the credit card company.

$1 million will be distributed among the debt collection class, defined as those who received calls from third-party vendor West Asset Management Inc. between 2009 and 2013 hoping to collect on AmEx debt. Attorneys for the plaintiffs state that as only 135 members of that class filed claims, each plaintiff will receive over $4,400 from the fund. That’s a nice little pay day.

The class of plaintiffs who received telemarketing calls from vendor Alorica Inc. between 2009 and 2016 will share up to $8.25 million after attorneys’ fees have been paid. There are a reported 55,000 members of that class who filed claims, so the payment per class member will be $88.

The case is Ossola et al. v. American Express Co. et al., case number 1:13-cv-04836, in the U.S. District Court for the Northern District of Illinois.

Well, that’s a wrap for this week. See you at the bar.

Week Adjourned: 11.25.16 – Comcast, Walmart, Telemarketing

Top Class Action Lawsuits

Phantom at the Cable Co.? No stranger to the class action lawsuit, Comcast got hit with a proposed unfair business practices lawsuit filed by a former customer who claims the telecom company overbilled, misrepresented certain charges, and billed “phantom” charges upon account cancellation. Sound familiar?

According to the Comcast lawsuit, filed by Keven Danow, Comcast Corp., and its cable subsidiary continued to bill his late stepfather’s estate for two years following the man’s death in 2014. They did this through recurring automatic bank withdrawals. When Danow complained to Comcast, he was told that because the company had no active account information there was no business relationship and therefore they had no grounds upon which to address his concerns. Nice.

“Defendant routinely engages in deceptive and unfair business conduct to extract money from customers to which it is not entitled,” the proposed class action states. “Comcast is now targeting former customers who have no business relationship with Comcast.” Hard to have a business relationship if you’re deceased. Just sayin’.

Citing a similar proposed class action against Comcast, recently filed in California, and a $2.3 million fine paid by the company to the Federal Communications Commission for unauthorized charges for unwanted equipment or services, Danow asserts that Comcast’s behavior is part of a pattern of deceptive or unfair business practices. No comment.

“Having engaged in deceptive and unfair trade practices as a core component of its business, Comcast has now targeted former customers, who no longer have any business relationship with Comcast,” the complaint states. “Comcast has illegally accessed former customers’ bank accounts months or years after the end of any business relationship between the parties and absconded with funds on deposit.”

Danow is claiming violation of the Electronic Fund Transfer Act, unjust enrichment, violation of New York business law and applicable statutes for other states.

The case is Keven Danow v. Comcast Corp. et al., case number 2:16-cv-06052, in the U.S. District Court for the Eastern District of Pennsylvania.

Top Settlements

Walmart Pays Up. $54 million in damages has been awarded by a California federal jury against Walmart in an employment lawsuit brought by 839 truckers.

The Walmart lawsuit alleges the big box retailer violated California labor law as well as federal labor law by failing to compensate its drivers for pre- and post-trip inspections and California-required rest breaks.

The jury found in favor of the truckers on those charges, but did not award damages for time spent washing trucks, fueling, weighing the trucks’ load, waiting at vendor and store locations, performing adjustments, complying with U.S. Department of Transportation inspections, or meeting with driver coordinators.

Additionally, the jury found that the drivers were under Walmart’s control during federally mandated 10-hour layover breaks. The truckers alleged that during these breaks, for which they were required to stay with their trucks, they were paid $42 for the time, not the $67 to $90 they would have earned had they been paid minimum wage during the class period. The jury awarded the drivers $44.7 million in compensation.

Determinations for penalties and liquidated damages have yet to be made. Attorneys for the truckers stated that should the court find that Walmart’s defense was not carried out in good faith, the jury’s award would be doubled. Further, the jury found Walmart intentionally failed to pay class members for more than 100,000 pay periods, and that, according to the class attorneys’ math, each unpaid period will carry a $250 fine, adding approximately $25 million to the total settlement figure.

The case is Ridgeway et al. v. Wal-Mart Stores Inc. et al., case number 3:08-cv-05221, in U.S. District Court for the Northern District of California.

Take that Telemarketers! Here’s a win—one for the little guy and a hoorah on behalf of all of us who get those pesky unsolicited phone calls. This week, preliminary approval of a $1.1 million proposed settlement was granted, in a Telephone Consumer Protection Act (TCPA) class action lawsuit pending against Alpha Gas and Electric in New York.

Filed by Stewart Abramson in July 2015, the lawsuit asserted that Alpha Gas, which provides gas and electrical services for both residential and commercial customers in New York, New Jersey, Pennsylvania and Ohio, used telemarketing to obtain new clients and allegedly made a telemarketing call to Abramson’s cell phone.

Here’s the skinny: eligible class members are defined as: all persons who, at any time, used, regularly placed or received calls on or from or owned any of the phone numbers that are listed and/or contained in the Class List, and who, from July 8, 2011 through the date of class certification, the defendant called using an automated telephone dialing system or prerecorded voice, or who were listed on the Do Not Call list or otherwise did not consent to the receipt of such calls, or who otherwise have claims against the Released Parties arising under the TCPA or similar federal, state or local laws governing such matters, including, without limitation, the claims alleged in the Action, including calls placed to cell phones without the recipients’ consent.

Abramson, as named plaintiff, is seeking an incentive award of $10,000.00. Further, Alpha has agreed to review and amend its future telemarketing compliance with the TCPA and related laws.

A final settlement hearing is scheduled for April 2017. Potential class members will have until February 8, 2017 to object to the settlement agreement or otherwise opt-out of the settlement.

Well, that’s a wrap for this week. See you at the bar…

Week Adjourned: 11.18.16 – Chrysler, Toyota, Adderall

Top Class Action Lawsuits

So Volkswagen’s Not the Only Emissions Cheat? Maybe…Fiat Chrysler Automobiles NV and engine maker Cummins Inc. got hit with a proposed consumer fraud class action alleging the diesel engines in Dodge Ram trucks hide the trucks’ emissions, which are above the legal limit.

Specifically, the plaintiffs claims that Chrysler and Cummins conspired to knowingly deceive customers and regulators with respect to the emissions levels generated by Dodge Ram 2500 and 3500 trucks outfitted with the Cummins 6.7-liter turbo diesel engine, which were emitting dangerous levels of nitrogen oxides.

“The defendants never disclosed to consumers that the affected vehicles may be ‘clean’ diesels in very limited circumstances, but are ‘dirty’ diesels under most driving conditions,” the complaint states.

According to the Chrysler emissions lawsuit, the engines have a technology built in that traps and breaks down pollutants, a design feature meant to reduce the amount of NOx going into the atmosphere through the trucks’ exhaust. However, when the trucks are traveling for long distances or up hills, they emit far more pollutants that allowed under California and federal law. Nice.

The plaintiffs claim Chrysler and Cummins intentionally mislead the public, illegally sold non-compliant polluting vehicles, concealed emissions levels, knowingly profited from the dirty diesels and used fraudulently gained emissions credits from the US Environmental Protection Agency for use on future production of high-polluting vehicles.

The complaint states that in addition to hiding the true emission outputs, the affected Cummins diesel engines wore out the so-called catalytic converter more quickly because the engines burn fuel at a higher rate. Consequently, truck owners frequently had to replace the converter after the warranty had expired at a cost of approximately $3,000 to $5,000.

The case is James Bledsoe et al. v. FCA USA LLC et al., case number 2:16-cv-14024, in the U.S. District Court for the Eastern District of Michigan.

Top Settlements

Rusty Trucks? What a whopper! A $3.4 billion settlement has been agreed in a defective automotive class action brought against Toyota Motor Co. The lawsuit alleges that the frames in certain Tacoma, Tundra and Sequoia trucks are prone to rust corrosion and perforation.

Under the terms of the deal, approximately 1.5 million vehicles that may have defective frames will be inspected and an estimated 225,000 trucks will have their frames replaced.

The Toyota frame lawsuit was filed in 2015, alleging its 2005-2009 Tacoma trucks were made with frames that are inadequately protected from rust corrosion, rendering the vehicles unstable and unsafe to drive. The lawsuit also alleged that Toyota was aware of the defect but failed to correct it.

The settlement covers 2005 to 2010 Tacomas, 2007 to 2008 Tundras, and 2005 to 2008 Sequoias. The Japanese automaker has promised that vehicle owners will not be charged for the inspection and replacement campaign. The program will last 12 years from the date the vehicle was sold or leased, meaning any future perforations will also be covered. The replacement and inspection policy remains valid if an owner sells the vehicle to another party.

Further, the plaintiffs have asked for certification of a class of Tacoma, Tundra and Sequoia owners or lessees from the 50 states, Puerto Rico, Washington D.C. and all U.S. territories.

The case is Brian Warner et al v. Toyota Motor Sales USA Inc., case number 2:15-cv-02171 in the U.S. District Court for the Central District of California.

Adderall Generic Delay. Finally. A $15 million settlement has been approved by a federal judge, ending an antitrust class action against Shire US Inc, that alleged the pharmaceutical company paid competitors to delay selling their less expensive generic versions of Adderall, which is used to treat attention deficit hyperactivity disorder (ADHD).

Under the terms of the Adderall settlement agreement, plaintiffs Monica Barba and Jonathan Reisman were each granted service awards of $5,000, and 10 named plaintiffs in three related cases were granted $2,500 awards.

According to court documents, some 23,452 claims requesting reimbursement for more than 855,000 Adderall prescriptions have been received by the claims administrator. That’s not insignificant.

About $1 million is expected to be left over once all the claims are paid out, and will be donated to CHADD, a national nonprofit that promotes education and advocacy for people with ADHD.

Filed in 2013, the lawsuit was initially brought by consumers in Florida and Pennsylvania who alleged Shire created pay-for-delay settlements in false patent litigation against Teva Pharmaceuticals USA Inc. and Impax Laboratories Inc. to delay the generic competition for Adderall reaching the market.

The case is Barba et al. v. Shire US Inc. et al., case number 1:13-cv-21158, in the U.S. District Court for the Southern District of Florida.

Well, that’s a wrap for this week. See you at the Bar!

Week Adjourned: 11.11.17 – Lexus, Hip Implants, Depakote

Top Class Action Lawsuits

Heads up Lexus Drivers…some shattering allegations this week, pardon the pun, in the form of a defective automotive class action lawsuit filed against Toyota, the parent company of Lexus, alleging the sunroofs in its luxury vehicles spontaneously explode and shatter.

Filed by Ginger Minoletti, in California, the lawsuit alleges Minoletti was driving her Lexus RX 350 on Highway 101 in San Francisco in February 2016 when she heard a strange, loud cracking noise. Shortly afterwards, she found that the sunroof in her car had splintered, but that the broken glass was contained by the sliding cover shade.

The Lexus sunroof lawsuit states that Minoletti paid for repairs to the sunroof herself because Toyota refused to and the vehicle was no longer covered under warranty.

According to court documents, Lexus and Toyota have been aware of this issue since 2012, but have done nothing to warn consumers. The lawsuit also states that the National Highway Traffic Safety Administration has received numerous complaints about the defect, which is potentially dangerous and expensive to repair.

Wait—there’s more—the NHTSA is allegedly probing a number of automakers, including Ford Motor Co., Volkswagen AG, Hyundai Motor Co. and Audi AG, for sunroof defects.

The suit is brought on behalf of a proposed class of Californians who own or lease a Lexus with a sunroof and alleges violations of the Song-Beverly Consumer Warranty Act and California business code. The case is Minoletti v. Toyota Motors Sales USA Inc., case number BC636269, in Superior Court of the State of California, County of Los Angeles.

Top Settlements

Defective Hip Implant Settlement. Finally. This week saw some big and likely welcome news on the Wright defective hip implants multidistrict litigation (MDL). A $240 million settlement has been reached. The settlement effectively ends five years of litigation brought by 1,300 claimants who alleged their Wright hip implants failed anywhere from 150 days to eight years following hip replacement surgery.

Wright Medical Group announced the settlement on behalf of its wholly-owned subsidiary, Wright Medical Technology. Two years ago Wright sold its hip and knee implant division that produced the allegedly defective replacement hip devices to a Chinese company.

Under the terms of the agreement, Wright will pay $170,000 to each claimant who received the Conserve Cup device. Additionally, the company will pay $120,000 to each claimant who received either a Dynasty or Lineage replacement hip. Further, Wright will establish a fund to reimburse patients who suffered “extraordinary injury” resulting from the failure of their hip implants.

According to court documents, the defect causing the failure of the hip implants was a metal-on-metal design that resulted in metal wear and shedding of metallic debris into surrounding tissue. This led to “metallosis”, a condition in which the tissue becomes inflamed and toxic, dissolving bone that anchored the implant. Ultimately, the metallosis led to failure of the implants.

The settlement affects multidistrict litigation now pending in federal court in Atlanta and consolidated litigation in Los Angeles Superior Court in California.

Depakote Dealings…More good news on the class action settlement front—to the tune of $28.125 million. The agreement ends litigation against Omnicare Inc., alleging the country’s largest nursing home promoted Abbott’s prescription anti-epileptic drug Depakote to its patients, in exchange for kickbacks disguised as “grants” and “educational funding.”

FYI—Omnicare operates 160 nursing homes in 160 locations across 47 states, making it the largest provider of pharmaceutical services in nursing homes. That’s a lot of potential drug sales… just saying.

According to the terms of the settlement approximately $20.3 million of the settlement fund will go to the federal government, and $7.8 million to cover Medicaid program claims by states that elect to participate in the settlement. Medicaid is jointly funded by the federal and state governments.

Depakote (also known as valproate semisodium or divalproex sodium) is a popular drug used to treat epilepsy and manic episodes of bipolar disorder.

The cases are captioned United States ex rel. Spetter v. Abbott Labs., et al., Case No. 10-cv-00006 (W.D. Va.) and United States ex rel. McCoyd v. Abbott Labs., et al., Case No. 07-cv-00081 (W.D. Va.). The claims resolved by the settlement are allegations only, and there has been no determination of liability.

Well, that’s a wrap for this week. See you at the Bar!

Week Adjourned: 11.4.16 – GMC, CVS, Ulta

Top Class Action Lawsuits

Sierra Dim Lights. General Motors is facing a potential defective automotive class action lawsuit brought by GMC Sierra owners who allege the lack of headlight strength in their vehicles puts them at risk for accidents.

According to the GMC Sierra complaint, which GM argued to have dismissed earlier this year, the GMC Sierra owners are at a greater risk for crashes, have in some cases avoided driving at night and have paid out of their own pockets for brighter headlights.

The plaintiffs filed an amended complaint in April and since then more than 62 new complaints have been filed with the National Highway Traffic Safety Administration concerning the Sierras. The new complaint states that the volume of the complaints as well as technical bulletins issued by GM, reflects the fact that the automaker is aware of the defective head lights and does nothing.

“This is not a case about speculative future harm or a product defect that has not yet manifested,” the vehicle owners assert. “The inadequate headlights and the dangers associated with them are causing problems right now.”

The lawsuit was brought by Armando Becerra and Guillermo Ruelas brought in October 2015, alleging GM has long known that the 2014 and 2015 GMC Sierra 1500, and the 2015 GMC Sierra 2500HD and 3500HD, have headlights that are not sufficient for their purpose.

Becerra claims that despite taking his Sierra to the dealership to fix the headlights they remain problematic. He claims he spent $400 to $500 for a new headlight assembly to improve illumination. Similar claims are made by Ruelas.

According to the complaint, GM introduced a new headlight system in 2014 that uses one bulb for both high and low beam. Despite allegedly numerous complaints online, GM expanded the new headlight system to all its Sierra models for 2015, the lawsuit notes.

The case is Becerra et al. v. General Motors LLC et al., case number 3:15-cv-02365, in the U.S. District Court for the Southern District of California.

Top Settlements

Check Your Pay Check! It’s all about the workers this week, particularly in California. A $3 million settlement was agreed between CVS Pharmacy Inc. and store employees this week. The employees claimed they were provided inaccurate itemized wage statements in violation of California labor law.

Brought by Willie Brown, in September 2015, the complaint alleged the health care retailer failed to list the correct amount of total hours worked by its employees in their wage statements by incorrectly including shift differential pay hours. The suit alleged CVS violated California Labor Code.

The CVS settlement, which is awaiting court approval, will cover some 7,784 potential class members who, as store employees, received a shift differential pay on a wage statement between Sept. 29, 2014, and Sept. 1, 2016.

CVS, while denying any wrongdoing, has agreed to change its policy around itemized wage statements to reflect only the regular number of total hours worked.

The case is Willie Brown v. CVS et al., case number 2:15-cv-07631 in the U.S. District Court of the Central District of California.

Ulta to Pay Up for Bag Checks. Ulta Salon Cosmetics & Fragrance, Inc., also got hit with a preliminary unpaid wages and overtime settlement this week – to the tune of $2.7 million settlement.

The complaint was brought by story employees in California who claimed the company failed to pay them for the time it took to do required bag checks at the end of employee shifts.

The complaint was filed by former Ulta employee Sarah Moore in March 2012 on behalf of a proposed class of non-exempt Ulta employees. It alleged they were subject to required bag checks anytime they had to leave the store for a rest break, meal break or at the end of a shift. The proposed settlement includes an estimated 8,250 store employees who were considered non-exempt workers at the salon and beauty products, which operates about 69 stores in California. They would have worked at the chain from March 2, 2008, to the date the court grants preliminary approval or January 27, 2017, whichever date comes sooner.

If approved, the Ulta settlement would resolve claims brought under the California Labor Code that Ulta failed to pay overtime, compensate for all hours worked, pay wages due upon discharge or provide required meal or rest breaks to workers due to the mandatory exit inspections, also referred to as bag checks and donning and doffing.

According to court papers, some Ulta stores made employees clock out before getting their personal bags inspected. Other workers claimed the time it took to wait for a general manager to walk to the front of the store to perform the check would eat into their meal break time, which in some cases was as little as 30 minutes.

This settlement follows a $3.65 million preliminary class action settlement reached earlier this year, between Ulta and about 230 store managers in California, who alleged they were misclassified as being ineligible for overtime.

The case is Sarah Moore v. Ulta Salon Cosmetics & Fragrance Inc., case number 2:12-cv-03224, in the U.S. District Court for the Central District of California.

Well, that’s a wrap for this week. See you at the Bar!

Week Adjourned: 10.28.16 – Farmers, VW, J&J Talc Powder

Top Class Action Lawsuits

Getting Burned on Fire Damage Claims? Los Angeles resident, Ismael Frias, believes so. He filed a bad faith insurance class action lawsuit against a Farmers Insurance Co., unit alleging it illegally limited coverage of wildfire smoke damage by not providing adequate notice that it had changed its policies and stating that the damage was “not actual fire damage.”

Frias, who lives in the suburb of Sylmar, states in his Farmers lawsuit complaint that Mid-Century Insurance Co., applied a “Wildfire Smoke Sublimit” of $5,000 to his claim under his homeowner’s insurance policy, without clearly notifying him. Mid-Century allegedly added the sublimit to the policy when Frias renewed in March, but failed to clearly notify him of the change. Additionally, the suit states that the sublimit is in violation of California insurance law which standardizes fire damage policies.

“The purported $5,000.00 Wildfire Smoke Sublimit violates Insurance Code section 2071, is not reflected on the declarations Page, is not plain, clear and conspicuous, and is unenforceable,” the lawsuit states. According to the complaint, Frias claimed for damages he experienced as a result of a wildfire on July 23, 2016. On that date, the massive Sand Canyon Fire was raging through the mountains north of Sylmar. Ultimately, the fire scorched almost 65 square miles before fire crews were able to contain it in August, according to the National Wildfire Coordinating Group.

Frias received a letter from Mid-Century in September, stating the damage to his home wasn’t “actual fire damage” and thus was subject to the $5,000 sublimit, according to the lawsuit.

Frias is claiming breach of contract, breach of the implied covenant of good faith and fair dealing, and violation of California’s Unfair Competition Act.

The lawsuit seeks to establish a class of California homeowners who had policies containing the wildfire smoke sublimit and who had submitted claims for wildfire odor, soot, smoke, char or ash damage. He also seeks compensatory and punitive damages, along with attorney’s fees, according to the complaint.

“As a result of defendants’ conduct, plaintiff and members of the class and subclass have been damaged, including but not limited to, paying insurance premiums for coverage rendered illusory by the unlawful Wildfire Smoke Sublimit,” the complaint states.

Top Settlements

It’s VW Pay Up Time. It’s been a week of whoppers. Starting with a rather speedy settlement on the consumer end of the Volkswagen emissions scandal. Short version, a $14.75 billion settlement between consumers, the federal government and Volkswagen has been granted final approval. The deal includes an aggressive timeline for VW to begin buying back cars that have the infamous emissions cheating software, known as “defeat devices”.

Under the terms of the deal, VW will set aside $10 million to buy back its vehicles with the defeat devices from consumers.

Additionally, VW must spend $2.7 billion to mitigate the effects of the emissions from cars equipped the so-called defeat devices, and $2 billion over the next 10 years in projects that support the increased use of zero emission vehicles.

Starting in mid-November, Some 475,000 owners of affected VW and Audi 2.0L diesel vehicles will be able to seek buybacks of their cars or have them fixed. Additionally, most plaintiffs who bought their cars before last September, will receive payments of $5,100 to $10,000. About 336,000 car owners have registered for benefits under the settlement and only 3,300 have opted out, according to court papers signed by the judge.

Of note, 3.0 liter six-cylinder diesel vehicles equipped with the defeat devices are not included in this settlement. VW said it is still working toward a resolution with owners of those vehicles.

The multidistrict litigation is In re: Volkswagen “Clean Diesel” Marketing, Sales Practices and Products Liability Litigation, case number 3:15-md-02672, in the U.S. District Court for the Northern District of California.

Big Talc Powder Settlement. A $70 million award has been granted court approval for a woman in California who sued Johnson & Johnson (J&J) alleging J&J Talc Powder caused her cancer. The suit alleged “negligent conduct” in making and marketing its baby powder.

The case was brought by Deborah Giannecchini of Modesto, California, who was diagnosed with ovarian cancer in 2012. She is one of nearly 2,000 women who have filed similar lawsuits, and thousands more are under review by lawyers.

Giannecchini’s win follows earlier awards against J&J for $72 million and $55 million. The $72 million award was granted in February to relatives of a woman who died of ovarian cancer, and the $55 million award to an ovarian cancer survivor.

Talc is a mineral often used to absorb moisture in cosmetic products. Since the 1970s, studies have suggested that talc could be linked to ovarian cancer, according to the lawsuit. Lawyers argued that Johnson & Johnson knew of those studies but put profits ahead of human life by continuing to market their talc products for feminine hygiene use.

Well, that’s a wrap for this week. See you at the Bar!

Week Adjourned: 10.21.16 – Samsung, BB&B, Dreamworks

Top Class Action Lawsuits

Galaxy on Fire. Well folks, you knew it was coming…take Note (bad pun)… Samsung, not surprisingly, got hit with a defective products class action lawsuit this week, alleging its Galaxy Note 7 smartphone is prone to catching on fire and exploding. No kidding…

Specifically, the Samsung Galaxy lawsuit alleges that as a result of the defect, Samsung customers had to wait days or weeks for a replacement phone. In the meantime, they’re charged monthly fees by carriers for phones they can’t use.

The three plaintiffs from New Jersey who filed the suit allege users should be compensated for the money they paid for devices and plan charges to cellular operators while the South Korean phone maker took its time replacing and finally discontinuing the Note7’s.

The complaint alleges that many Note7 users were unable to use their devices due to the possibility they could overheat and burst into flames. When consumers who tried to exchange their phones during the initial recall period, they were often unable to because of limited stock.

Consequently, some customers were told that they would have to wait weeks until a replacement phone was available. “It was not until September 21 that Samsung announced that it would begin the Note7 exchanges nationwide. And even on that date, only an estimated 500,000 replacement devices had arrived in the United States,” the complaint states.

Further, the complaint alleges that users incurred monthly device and plan fees during that same period from their phone carriers.

The case is re: Waudby vs Samsung Electronics America, U.S. district court, district of New Jersey, Newark, No . 16-cv-07334-CCC-JBC.

Bed, Bath & Beyond has gone Beyond, according to the details of an unpaid overtime class action lawsuit filed by former department and assistant managers. They claim the retailer is in violation of the Fair Labor Standards Act (FLSA).

The allegations in the Bed, Bath & Beyond overtime lawsuit are that BB&B improperly denied the plaintiffs overtime by not meeting the FLSA requirements for a “fluctuating work week” model, which are that employees’ hours to change from week to week, they have a fixed salary that meets minimum wage requirements, and a 50 percent overtime premium for hours worked in excess of 50 hours. According to the lawsuit, the Bed Bath & Beyond department managers had relatively stable schedules and did not meet the fluctuating work week model.

“Upon information and belief, plaintiffs’ weekly work hours as [department managers] did not meaningfully fluctuate, their scheduled work hours and the actually hours they worked, including the numbers of overtime hours, were largely consistent from week to week,” according to the lawsuit. “Because the [department managers’] weekly work hours were substantially the same from week to week, defendant [unlawfully] applied the FWW model to avoid paying the [department managers] their overtime compensation under the regular 1.5 overtime premium.”

The plaintiffs also assert that assistant managers were unlawfully classified as exempt employees who did not receive any overtime pay, that the company violated labor laws by failing to provide a wage notice at the time of hire outlining terms and conditions, and that employees didn’t properly receive pay stub information.

“Consistent with defendant’s policy and pattern or practice, plaintiffs regularly worked in excess of 40 hours per workweek without being paid at premium overtime rate 1.5 times of their respective regular rate of compensation for the hours they worked in excess of 40 per workweek,” the complaint states.

The plaintiffs are claiming violations of the FLSA and state labor laws, and seek unpaid overtime wages, liquidated damages, prejudgment and post-judgment interest and attorneys’ fees. The complaint seeks to create a collective action for FLSA overtime compensation violations, consisting of those who are or were department managers or assistant managers from October 2013 through the present. Additionally, the lawsuit seeks to create a class of all non-exempt Bed Bath & Beyond employees within the past six years for failure to pay overtime and failure to provide proper wage notice at the time of hiring.

The case is Thomas et al. v. Bed Bath and Beyond Inc., case number 1:16-cv-08160, in the U.S. District Court for the Southern District of New York.

Top Settlements

Poached Dreams? If this doesn’t prove it pays to stand up for yourself, what does? A $50 million settlement has been agreed in an antitrust anti-employee poaching class action lawsuit pending against Dreamworks Animation. The lawsuit, filed in 2014, alleged that the animation company perpetuated a “no poach” gentleman’s agreement with other studios over the hiring of animators. Gentlemen’s agreement?

According to a statement by a group of animators and visual effects employees who worked for the studios, “The Proposed Settlement Agreement was the product of a thorough assessment of the strengths and weaknesses of plaintiffs’ case.” And, “It reflects nearly two years of discovery, uncovering the intricacies of a multi-faceted conspiracy.”

The group has asked the court to grant preliminary approval of the Dreamworks settlement, calling it fair and reasonable. They stated that the money represented about 40 percent of the damages sustained by class members, who were previous employees of Dreamworks, as a result of the scheme.

The lawsuit targeted some major studios including The Walt Disney Co., Pixar Inc., DreamWorks Animation SKG Inc., Lucasfilm Ltd. and ImageMovers Digital LLC.

The allegations of colluding to stop poaching and driving up pay rates, resulted from a U.S. Department of Justice probe into the hiring practices of Silicon Valley businesses. Earlier this year, the animators, while pushing for class certification in their case, told the court that the studios’ collusion dates back several years and suppressed their pay by as much as 30 percent in some years.

The case is In re: Animation Workers Antitrust Litigation, case number 5:14-cv-04062, in the U.S. District Court for the Northern District of California.

Well, that’s a wrap for this week. See you at the Bar!

Week Adjourned: 10.14.16 – Stewart’s Shops, Power Home, Nissan

Top Class Action Lawsuits

Stewing Over Pay at Stewart’s…It seems we just can’t get enough of the old employment class action lawsuit. This one, filed against Stewart’s Shops has been certified in New York. The complaint states that the Malta-based convenience store chain failed to properly compensate its employees for all the hours worked. There are so many instances of labor law violations, I wonder, does anyone actually get paid properly anymore?

The Stewart’s Shops lawsuit was filed by a former employee against the chain in January 2014, alleging she and other workers were not paid for all the hours they worked, and for mandatory call-in pay for store meetings and that they were deprived of an uninterrupted meal break.

The plaintiffs are seeking $20 million in damages on behalf of all non-exempt hourly employees who worked for Stewarts during the past three years.

Reportedly, a collective action has been certified under federal law for full-time employees who worked more than forty hours in any given week and were deprived of overtime compensation.

FYI—the Malta-based convenience store chain has 335 stores in upstate New York and Vermont, and $1.5 billion in sales. No comment.

Top Settlements

Power Home Power Calling You? You gotta love it when you actually stick it to a spammer. This week, court approval has been given to a $5.2 million settlement of a Telephone Consumer protection Act (TCPA) class action lawsuit pending against Power Home Remodeling Group LLC. The lawsuit claimed the company had violated the TCPA because it made automated marketing calls to over a million consumers without their consent.

The judge certified a class of more than 1.1 million people, and granted final approval of the Power Home Remodeling settlement, ending the lawsuit brought by plaintiff Teofilo Vasco. The autodialed telemarketing calls or prerecorded, computer-generated voice messages were made between October 2013 and April 2016, approximately.

The judge also awarded a $3,000 award to the named plaintiff, Vasco, who filed the lawsuit in August 2015. He alleged he gave his cellphone number to a Home Depot salesperson and later received 21 unsolicited phone calls from Power seeking his business by way of an autodialer or prerecorded voice message.

The case is Teofilo Vasco v. Power Home Remodeling Group LLC, case number 2:15-cv-04623, in the U.S. District Court for the Eastern District of Pennsylvania.

Nissan got hit this week, with a preliminary settlement deal reached in three defective automotive class action lawsuits. The first Nissan lawsuit, brought in 2014, alleged that the transmissions in certain model-year certain Pathfinder and Infiniti QX60 vehicles were defective. You may remember this one.

Under the terms of the proposed Nissan agreement, Nissan North America Inc. has agreed to give all owners and lessees of nearly 200,000 Nissan Pathfinders and Infiniti JX35s/QX60s vehicles from model years 2013 and 2014 a free, two-year 24,000-mile extended warranty for their transmissions. Also, owners will be instructed on how to update their vehicles’ software to include detection of the transmission vibration problem referred to as “judder.” Oh great, there’s computer technology involved.

According to the settlement, owners of affected vehicles that underwent two or more repairs to their transmissions may be eligible for discounts on future purchases of a Nissan or Infiniti vehicle. The deal requires court approval.

The case is Kenai Batista v. Nissan North America Inc., case number 1:14-cv-24728, in the U.S. District Court for the Southern District of Florida.

Well, that’s a wrap for this week. See you at the Bar!

Week Adjourned: 10.7.16 – American Airlines, iPhone, VW

Top Class Action Lawsuits

Travel Insurance Woes…A consumer fraud complaint against American Airlines took off this week, alleging the airline markets travel insurance as a pass-through charge paid to a third party but doesn’t disclose its profits.

Filed by Kristian Zamber, the multi-million dollar complaint asserts American Airlines misled its customers about its interests in selling the insurance policies and that it aggressively marketed travel insurance sold through its website.

The American Airlines lawsuit is seeking class certification, a jury trial and injunctive and equitable relief for alleged unjust enrichment and violations of Florida’s consumer protection statutes prohibiting companies from posing as revenue conduits.

According to the complaint, Zamber paid roughly $24 to purchase travel insurance in April for a domestic flight from Tampa to Pennsylvania. American Airlines stated the policy had no affiliation with the airline, but instead came from Allianz Global Assistance, with plans underwritten by Jefferson Insurance Co. or BCS Insurance Co. But in reality, the policy sales contributed to a “hidden profit center” for the Fort Worth, Texas-based airline, the complaint states.

The complaint also claims the airline forces customers to choose whether or not to purchase trip insurance policies before allowing them to complete online ticket purchases. Yup—been to that destination….

Touch Disease has Spread North of the border. Apple is facing a defective products class action lawsuit in Canada over allegations that it’s iPhone 6 and 6 Plus models have a defect which effectively results in the smartphone freezing or not responding to touch commands.

Following on from a similar defective products lawsuit filed in the US, the Canadian lawsuit claims Apple was aware of the problem but failed to take action to remedy it.

Filed at the Court of Queen’s Bench for Saskatchewan, the Canadian iPhone complaint would include all Canadian iPhone 6 and 6 Plus customers. It alleges that Apple was negligent because it supplied a defective phone, “knowingly and intentionally concealed” from customers the defect and failed to provide a proper remedy.

According to attorneys who filed the Canadian complaint, Apple has so far only offered its customers around $300 as compensation.

Shortly after the product was launched in 2014, one of the plaintiffs in the class action alleges she bought the iPhone 6 for around $200, hundreds of dollars less than the regular price because she locked into a two-year phone plan contract. Then, a few months after the warranty had expired on her phone, it began to intermittently freeze up and failed to respond to touch commands.

The lawsuit alleges that that the underlying problem is the touchscreen controller chips in the phone’s motherboard, which are not properly secured and can malfunction with regular use.

Top Settlements

Here’s a whopper—but then the size of the Volkswagen defeat device scandal is, likely, unprecedented. A $1.2 billion settlement has been reached between Volkswagen AG and 650 US VW franchise dealerships, ending litigation brought by the dealerships over the VW emissions scandal. Specifically, the dealerships alleged that the value of their businesses had decreased as a result of Volkswagen’s attempts to cheat on vehicle emissions tests through its so called “defeat devices.” According to documents filed Friday in California federal court, the deal will provide an average payout of $.185 million to each Volkswagen-branded franchise dealer in the US.

Additionally, the VW settlement provides for VW buying back from its franchisees, affected vehicles that can’t be put into emissions compliance, using the same terms granted to car owners as part of the tentative consumer settlement.

“This recovery to the franchise dealer class is outstanding, particularly given the immediate need for cooperation among Volkswagen and its franchise dealers to effectuate the terms of the $10 billion-plus consumer class action settlement that is presently pending approval before this court,” the motion states. “Without any obvious deficiencies, the settlement agreement readily meets the standards for preliminary approval.”

Further, there will be no claims process, as dealerships that don’t opt out of the settlement will automatically receive a cash payment based on a formula of 71 times the monthly support payment VW made to dealers in November 2015. Take it or leave it? Almost.

The MDL is In re: Volkswagen “Clean Diesel” Marketing, Sales Practices and Products Liability Litigation, case number 3:15-md-02672, in the U.S. District Court for the Northern District of California.

Well, that’s a wrap for this week. See you at the Bar!

Week Adjourned: 9.30.16 – Ford, LoyaltyOne, LifeLock

Top Class Action Lawsuits

Ford Losing Its Touch? Ford Motor Co. got hit with a defective products class action lawsuit filed by customers who allege the automotive maker sold vehicles with faulty touchscreen systems. Great! The last thing you want to try and figure out while you’re driving…why the technology isn’t working as advertised.

The Ford class action lawsuit, which represents no less than nine classes, alleges the defect resulted in the failure of safety functions such as rear view cameras and functioning navigation systems.

U.S. District Judge Edward M. Chen has certified nine different classes of Ford owners, divided by state: California, Colorado, Massachusetts, New Jersey, North Carolina, Ohio, Texas, Virginia and Washington. Each class brings its own set of claims related to breach of warranty, unfair trade practices, fraudulent concealment and other various other allegations.

According to plaintiffs, the MyFord Touch infotainment touchscreen systems often crash or freeze while the vehicle is in motion. The systems were introduced into Ford vehicles in 2010 with the promise of touch screen operating of audio and navigation systems, the ability to make phone calls, manage climate systems and play music from their smartphones. However, the systems have encountered a lengthy list of problems. In 2010, according to the lawsuit, Ford reported roughly 400 problems for every 1000 vehicles, which was an improvement from earlier numbers. The systems add about $1,000 to the cost of a Ford vehicle, according to the plaintiffs.

The case is In re: MyFord Touch Consumer Litigation, case number 3:13-cv-03072, in the U.S. District Court for the Northern District of California.

New Meaning To ‘Loyalty’? LoyaltyOne is facing a consumer fraud class action in Canada, over “unfair and unilateral” changes to its airmiles program’s terms and conditions.

Here’s the skinny. According to the allegations, LoyaltyOne, which owns Airmiles—an airmiles rewards program—is accused of not giving adequate notice of the changes to its customers about the expiration of their airmiles, including miles earned before December 31, 2011 that expire at the end of this year. The AirMiles lawsuit also accuses LoyaltyOne of failure to give adequate notice that miles collected after that date will expire five years after they are earned. Got all that? Oh yes, the complaint also asserts that the company has made it difficult for miles to be redeemed before their expiration.

“The net result is that Air Miles’ conduct will result in a large number of the class members’ miles expiring, resulting in a significant loss to the class, and a corresponding large windfall for Air Miles,” the claim states.

According to the complaint, some 10 million Canadian households belong to the Air Miles program. The award miles are earned by shopping at participating retailers and are meant to be exchanged for flights and other rewards.

According to the claim, users wanting to redeem points before they expire have had problems doing so because of “unduly long” wait times on the phone. As well, it says the website displayed reward items users did not have enough miles to purchase, but not those that were within reach.

Need a vacation after reading all that!

Top Settlements

Lifelock Locks Up $68 Million Settlement. The deal has received final approval, ending a consumer fraud class action lawsuit pending against it. The lawsuit alleged that LifeLock made false statements about its services and failed to follow through on promised that it would alert consumers of potential identify theft immediately.

Specifically, the class alleged that LifeLock would not pay any losses directly to the consumer and does not cover consequential or incidental damages to identity theft. It also alleged the guarantee is limited to fixing failures or defects in the LifeLock services and paying other professionals to attempt to restore losses. LifeLock illegally placed and renewed fraud alerts under consumers’ names with credit bureaus. However, under the federal Fair Credit Reporting Act, corporations such as LifeLock are not allowed to place fraud alerts on a consumers’ behalf, in fact, the law was written to specifically bar credit repair companies from improperly using fraud alerts.

In the LifeLock Settlement, U.S. District Judge Haywood Gilliam Jr. also approved attorneys’ fees of $10.2 million and a payment of $2,000 to each of four class representatives. Distribution of the remaining funds works out to $20 per class member, with members of a subclass receiving funds on a pro rata distribution of a cordoned off subclass fund. The class starts from September 2010 and the subclass period begins in January 2012.

In July, 2015 the FTC accused LifeLock of “failing to establish and maintain a comprehensive information security program to protect its users’ sensitive personal data, including credit card, social security, and bank account numbers [and of] falsely advertising that it protected consumers’ sensitive data with the same high-level safeguards as financial institutions.”

The case is Ebarle et al. v. LifeLock Inc., case number 3:15-cv-00258, in the U.S. District Court for the Northern District of California.

Well, that’s a wrap for this week. See you at the Bar!