Settlement - Part 8

Week Adjourned: 9.23.16 – SoftSheen, Chicago School, Domino’s

Top Class Action Lawsuits

Heads up—literally… for anyone who’s used SoftSheen-Carson Optimum Amla Legend No-Mix, No-Lye Relaxer. A defective products class action lawsuit has been filed by two women in the US against L’Oréal alleging the hair relaxer kits causes hair loss and scalp burns. Ouch!

While the advertising claims it helps Afro-Caribbean hair to feel fuller and silkier through the inclusion of amla oil from the Indian amla super fruit, the plaintiffs allege that thousands of women who bought and used the product have suffered distressing injuries including hair loss and breakage, and scalp irritation, blisters and burns.

According to the SoftSheen Relaxer complaint, despite not listing lye as an ingredient, the inclusion of lithium hydroxide can cause damaging effects like those experienced by the women who used the product. Further, it’s also not clear as to whether the product truly is a ‘no-lye’ relaxer as the retail lists sodium hydroxide in the products’ ingredients online.

Dorothy Riles, one of the key plaintiffs behind the lawsuit, claims that when she used the product she was left with bald patches, burns and scabs forcing her to wear a wig.

Another key plaintiff claims that when using the product she immediately experienced scalp irritation and, after washing it out, she saw “significant” hair loss.

The plaintiffs are demanding that L’Oréal is tried by jury and are seeking compensation on the grounds of false advertising, unfair competition, consumer fraud, deceptive business practices, breach of express warranty, breach of implied warranty of merchantability, unjust enrichment, fraud and negligence.

Top Settlements

Shrinking Credibility at School? A $11.2 million settlement in a consumer fraud class action lawsuit pending against The Chicago School of Psychology has received final approval. The lawsuit was brought by students who alleged they were provided with misleading information regarding the school’s accreditation and their job prospects after completing their courses.

The Chicago School settlement will provide financial recovery for 87 students who are class members. The average payout will be $95,000 per student.

Plaintiff Miranda Joe Truitt and other students filed the complaint in November, 2012 claiming they invested in a worthless education. They wanted to study at the Chicago School of Professional Psychology and were encouraged to attend classes at the graduate university’s Los Angeles campus, which was falsely promoted to them as being prestigious and accredited by the American Psychological Association (APA).

According to the settlement documents, the plaintiffs were “either negligently lured” to enroll at the Los Angeles campus or were caused to stay “by a series of statements or omissions allegedly made, issued or approved by defendants.” In 2013, Tara Fischer filed a similar class action which was later consolidated with the Truitt’s complaint.

According to Truitt’s complaint, the administration of the Chicago School of Psychology led the Los Angeles campus students to believe that they would get APA approval before their graduation.

The case is Miranda Jo Truit et al v. The Chicago School of Professional Psychology, number BC495518, in the Superior Court of the State of California for the County of Los Angeles.

Domino’s Pizza drivers got a delivery this week …in the form of a $995,000 award in a wage and hour lawsuit in Georgia. The action was brought against Domino’s franchisees Cowabunga Inc. and Cowabunga Three LLC, by drivers who alleged the franchisees shorted their drivers on vehicle expenses, resulting in the drivers’ pay going below below minimum wage in violation of the Fair Labor Standards Act (FLSA).

The named plaintiff, Chadwick Hines, will receive a $7,500 service award. The final approval of the settlement ends the lawsuit filed against Cowabunga in 2015. Cowabunga, one of the largest singly owned Domino’s franchises in the U.S.

A total of 565 Cowabunga delivery drivers opted into to the case. The drivers will receive damages from the $995,000 settlement in exchange for waiving their wage and hour claims against Cowabunga. The average award per driver is $1,138.

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

Week Adjourned: 9.16.16 – Perdue & Tyson Chicken, Walmart & Sam’s, Farmers

Top Class Action Lawsuits

Don’t know what to say about this. Tyson and Perdue Farms are facing an antitrust class action lawsuit over allegations they engaged in a chicken price-fixing scheme. The lawsuit calls the industry’s means of destroying its livestock “unparalleled.” There are other terms that come to mind, but let’s get to the allegations.

Which are, specifically, that the companies were involved in killing hens and flocks and destroying eggs to limit production and raise the price of 98 percent of the chicken sold in the U.S. by nearly 50 percent.

The lawsuit, filed Sept. 14, 2016, in the U.S. District Court for the Northern District of Illinois, Eastern Division states that the laundry list of defendants control 90 percent of the wholesale broiler chicken market, an industry with more than $30 billion in annual revenue.

If you purchased chicken from any of the following suppliers, you may be entitled to your money back: Tyson, Perdue Farms, Pilgrim’s Pride, Sanderson Farms, Simmons Foods, Koch Meats, JCG Foods, Koch Meats, Wayne Farms, Mountaire Farms, Peco Foods, Foster Farms, House of Raeford Farms, Fieldale Farms, George’s Farms or O.K. Foods. Find out your rights to compensation.

The Tyson and Perdue lawsuit describes in detail how the chicken industry conspired together to raise prices, stating that in 2007, Pilgrim’s and Tyson attempted to cut production levels enough to cause industry prices to rise, but failed to impact the market due to their market share.

“In January 2008 Pilgrim’s and Tyson changed tactics and concluded that only through broader cooperation among major producers in the Broiler industry could supply be cut enough to force prices to increase,” the suit states.

Pilgrim’s and Tyson publicly told the industry that neither company would continue to cut production while their competitors used the opportunity to take away Pilgrim’s and Tyson’s market share. But a few days after an industry event in late January 2008, things changed. The lawsuit says that “other Defendant Producers followed Pilgrim’s and Tyson’s call to arms and made substantial cuts to their own production.”

After attending the industry event, Tyson’s CEO announced Tyson would be raising prices because “we have no choice.” A day later, a Pilgrim’s executive announced publicly that Pilgrim’s would be cutting its production and “the rest of the market is going to have to pick-up a fair share in order for the production to come out of the system.”

According to the lawsuit, unlike Pilgrim’s and Tyson’s prior production cuts, in 2008 the defendant chicken producers did not rely solely on ordinary mechanisms to temporarily reduce production, which would have permitted production to be quickly ramped up if prices rose.

“Instead, Defendant Producers cut their ability to ramp up production for 18 months or more by destroying Broiler breeder hens in their Broiler breeder flocks responsible for supplying the eggs Defendant Producers raise into Broilers. This destruction of the Broiler breeder flock was unparalleled,” the lawsuit states.

Top Settlements

Walmart & Sam’s Club Head into OT (Sort of…) Hey, football season just started up so forgive the pun… So there’s a couple of nice unpaid overtime settlements to report this week. First up…Walmart and Sam’s Club. They were facing an unpaid overtime class action lawsuit brought by certain employees who worked at the big box retailers. The plaintiffs asserted that they were not paid for missed meal and rest breaks or for off-the-clock work while employed by Walmart.

The potential class of plaintiffs in the lawsuit who may be entitled to benefits from the settlement is approximately 187,000 current and former hourly Pennsylvania employees at Walmart of Sam’s Club.

The class period is between March 19, 1998 and May 1, 2006.

The Walmart settlement amount is $62.3 million in statutory damages.

The lawsuit is Braun v. Wal-Mart Stores Inc., et al., March 2002 Term, No. 3127 and Hummel v. Wal-Mart Stores Inc., et al., August 2004 Term, No. 3757, in the Pennsylvania Court of Common Pleas in Philadelphia County.

Farmers’ Time to Pay Up. And…a $4.9 million settlement has been reached in an unpaid wages and overtime class action pending against Farmers Insurance Exchange.

The lawsuit was filed by Farmers’ adjusters in February 2014, who claimed that their work volume, deadlines and competitive rankings meant they frequently worked overtime without meal and rest breaks. It also claimed that up to 2015, Farmers had no stated break policy. Farmers’ practices violated state and federal overtime statutes, as well as California meal and rest breaks and unfair competition laws.

Under the terms of the Farmers settlement, the funds will be divided among the 2,114 plaintiffs, less 25 percent to cover legal fees.

The class is made up of claims representatives specializing in liability, automotive damage and residential property who worked in California between September 2011 and August 2016. On average, I is estimated that each plaintiff will receive $2,000, and members who worked throughout the class period could see more than $7,000.

The case is Alvarez et al v. Farmers Insurance Exchange et al., case number 3:14-cv-00574, in U.S. District Court for the Northern District of California.

Ka Ching! That’s a wrap folks—see you at the Bar.

Week Adjourned: 9.9.16 – EpiPen, Nature Valley, Amgen

Top Class Action Lawsuits

Mylan Pharmaceuticals may need it’s own EpiPen if this gets to court. The maker of the EpiPen device, is facing a price gouging class action lawsuit. Filed by a resident of Ohio, the lawsuit asserts that the sharp increase in price the company has put in place violates Ohio state consumer protection laws.

Mylan has reportedly raised the US price of the device, which is used to for emergency treatment of life-threatening allergic reactions, from less than $100, when it acquired the device in 2007, to over $600. EpiPen works by injecting a dose of the drug epinephrine into the thigh to counter dangerous allergic reactions to things like bee stings, shellfish and peanuts. It has a 94 percent share of the market for such auto-injector devices.

The EpiPen lawsuit has been filed in the Court of Common Pleas for Hamilton County, Ohio, by Cincinnati resident Linda Bates, whose son requires an EpiPen. According to the complaint, “The outrageous, unconscionable and immoral high prices set by Defendant is nothing more than price gouging.”

The complaint further claims that the price increases violated the Ohio Consumer Sales Practices Act, which prohibits “unconscionable” acts in connection with consumer transactions, including taking advantage of a consumer’s “physical infirmities.”

What can one say?

Some Granola To Crunch On… Here’s another one—General Mills got hit with a consumer fraud class action lawsuit this week over allegations its Nature Valley products contain a chemical that could be carcinogenic. Hey—maybe it adds flavor. Or not. But somehow the descriptive “carcinogenic” doesn’t sound like its quintessentially from an idyllic fantasyland called “Nature Valley”.

Filed by Yesenia Nuez, a resident of New York, the Nature Valley lawsuit asserts that General Mills promoted its Nature Valley bars as “Made with 100% Natural Whole-Grain Oats.” According to Nuez, these claims are false, because the bars contain oats that are not 100 per cent naturally made. Rather, they contain the chemical glysophate. Glysophate is a potent biocide, a probable carcinogen and a human endocrine disrupter, according to the suit. Nuez claims that as a result, the Nature Valley bars could be causing harm to consumers.

Yesenia Nuez filed the class-action lawsuit, individually and on behalf of all others similarly situated, alleging false, deceptive and misleading advertising practices regarding its Nature Valley products. The case is U.S. District Court for the Eastern District of New York Case number 1:16-cv-04731-FB-VMS

Top Settlements

Amgen Securities Settlement. A $95 million settlement has been reached in a securities class action lawsuit pending against pharmaceutical company Amgen Inc.

Brought by investors, the lawsuit claims that Amgen failed to disclose the results of a study known as DAHANCA 10, which tested Aranesp in head and neck cancer patients in Denmark. When Amgen’s failure to disclose was discovered and reported, the company’s stock crashed.

The period in which class members were affected is between April 22, 2004 and May 10, 2007. Under the agreement, Amgen will pay $95 million into a settlement fund to be distributed to class members. The settlement is subject to court approval.

The lawsuit is In re Amgen Inc. Securities Litigation, CV-07-2536 PSG, pending in the United States District Court for the Central District of California.

Ka-Ching! That’s a wrap folks—see you at the Bar.

Week Adjourned: 9.2.16 – iPhone 6, Tropical Smoothie, Avon

Top Class Action Lawsuits

Do you have Touch Disease? Or, more to the point—does your iPhone 6 or 6 plus? Here are the symptoms loss of functionality by reduced responsiveness or no responsiveness at all, when interacting with the touch screen. The defect is typically preceded by a flickering grey bar across the top of the display. According to the lawsuit, the loss of functionality results from a defective logic board.

Yes—touch disease is an alleged defect in the iPhone 6 generation. It’s referred to as “touch disease”, because the alleged defect, the lawsuit asserts, manifests as reduced touch screen functionality.

An iPhone 6 defective products class action lawsuit was filed against Apple this week. One to watch.

Heads up Tropical Smoothie Fans…a food poisoning class action lawsuit was filed this week against Virginia-based Tropical Smoothie cafes. The strawberry smoothies have been linked to an outbreak of Hepatitis A. The infected strawberries reportedly come from Egypt.

According to Virginia State health officials, at least 28 cases of Hepatitis A have so far been linked to the tainted strawberries. Last week, 35 cases of Hepatitis A had been recorded, with a majority connected to stores in Northern Virginia, according to state health officials. Tropical Smoothie has locations in Hampton, James City and York counties and roughly 300 stores nationwide.

The Tropical Smoothie lawsuit is filed against by a plaintiff claiming damages and recovery of costs associated with vaccination shots she got to guard against hepatitis A.

According to court documents, the plaintiff had smoothies at a Yorktown store in the last month or so. After finding out she’d possibly been exposed to hepatitis A, she followed health official recommendations and had a series of vaccination shots.

According to Virginia State health officials, customers of Tropical Smoothie outlets could have been infected even if they didn’t order smoothies with strawberries, because the cafes use the same blender to make smoothies.

FYI—Hepatitis A is a disease often transmitted by contaminated food or drinks that can cause liver infections with fever, jaundice and malaise.

Top Settlements

Avon Ladies to get Compensated…Avon has reached a proposed $1.8 million settlement in an unpaid overtime class action brought by Avon’s district managers, who alleged the company misclassified them as exempt employees and therefore did not pay them time and half wages they were due.

According to the terms of the proposed Avon overtime settlement, anyone who worked as a district manager at one of Avon’s California locations between April 2009 and March 31, 2016 will be able to claim compensation for their unpaid wages.

The settlement must receive final approval.

So folks, on that happy note, this week’s a wrap. Happy Labor Day long weekend—we’ll see you at the bar!!

Week Adjourned: 8.26.16 – Nike, Hertz, Nesbitt Burns

Top Class Action Lawsuits

Unpaid Overtime? So File a Lawsuit – Just Do It. If indeed that proves to be the case. This week, a California overtime and labor law class action lawsuit was certified against Nike. The complaint is brought by employees who worked at Nike’s Gilroy store in California, who alleged the company failed to pay employees for the time they spent going through security inspection or bag checks at the end of every work shift.

According to the Nike lawsuit, Isaac Rodriguez is suing for himself and on behalf of a putative class of all current and former non-exempt retail store employees of defendant Nike Retail Services, Inc. (Nike) who worked in California during the period from February 25, 2010 to the present.

It is estimated that the class may consist of as many as 6,000 people who worked in 31 stores over the requested five-year period from February 25, 2010 to the present.

No Car Rental Returns? Here’s a crafty one. According to a couple of folks who rented cars from Regency Car Rentals and Hertz, they are owed their security deposits. Neither car rental agency has returned them, claiming charges against those deposits, so a consumer fraud class action has been filed.

Here’s the back story: filed by Nishil Patel and Gurraj Singh, the Hertz lawsuit asserts that in November 2015, Mr. Patel rented a vehicle from Regency for a two-day period. His Visa card was charged for the full amount of $3,254.25, while his American Express Card was charged $3,299.40 as a deposit, the lawsuit states. He alleges he was told it would be refunded upon return of the vehicle. He alleges that Regency assessed two unauthorized charges after the rental.

Similarly, Mr. Singh asserts that he also was assessed unauthorized charges against his security deposit, such that his security deposit was not refunded to his credit card. As a direct result, the plaintiffs and other class members allegedly have suffered injury, and have lost money or property.

The plaintiffs hold Regency Car Rentals LLC, Hertz Global Holdings Inc. and The Hertz Corp. responsible because the defendants allegedly deceived consumers by making false statements, misrepresented the cost of the rental of vehicles, double-billed and assessed unauthorized fees to consumers. Whoa!
The case is US District Court for the Central District of California case number 2:16-cv-05967.

Top Settlements

Meanwhile, in Canada…a $12 million settlement has been finalized in an unpaid overtime class action lawsuit pending against BMO Nesbitt Burns Inc, a Canadian finance company.

Filed in 2010, the lawsuit was certified as a class action in 2013. The settlement ends six years of litigation involving some 1,800 investment advisers who worked for Nesbitt between 2002 and 2016.

As part of the Nesbitt Burns settlement, Nesbitt will pay lead plaintiff Yegal Rosen, who worked as a Nesbitt investment adviser from 2002 to 2006, a $10,000 honorarium. As part of the settlement, $6.5 million is allocated for 705 trainee investment advisers and $1.3 million will go to 1,136 senior advisers.

Nesbitt cannot contest any class member’s entitlement to payment, and the amount each member will receive depends on the take-up rate.

Bet there’s gonna be some celebrating this weekend.

So folks, on that happy note, this week’s a wrap – see you at the bar!!

Week Adjourned: 8.19.16 – Wen Haircare, Bluegreen Vacations, Columbia U

Top Class Action Lawsuits

Your Dream Holiday? Or not. According to two women in California—it’s “or not.”. They filed a consumer fraud class action lawsuit against Bluegreen Vacations Unlimited Inc, alleging they sustained financial damages due to misleading information the defendant provided them on purchasing a time-share.

According to Kyle Miles and Jasmine Miles, Bluegreen Vacations made several false representations regarding a timeshare contract, including the total cost of the contract. Further, they assert the company promised that they would buy back the contract from the consumers if they were unhappy with the timeshare. I’m guessing that didn’t happen.

Kyle and Jasmine Miles seek a trial by jury, restitution, enhanced damages, legal fees and all relief the court deems just. They are represented by attorneys Todd M. Friedman and Adrian R. Bacon of the Law Offices of Todd M. Friedman in Beverly Hills, California.

The case is US District Court for the Eastern District of California Case number 1:16-cv-00937-LJO-JLT.

Here’s something we’re seeing a lot more of these days, an ERISA (Employee Retirement Income Security Act) class action lawsuit. This one has been filed against Columbia University alleging it breached its obligation under ERISA to prudently invest its employees’ retirement savings.

In the Columbia University class complaint alleging one hundred million dollars in damages, Plaintiff Jane Doe, a faculty member at Columbia University and a participant of the University’s retirement plans, sued on behalf of herself and a class of 27,000 current and former Columbia University employees who participated in Columbia University’s retirement plans. The complaint alleges that the University breached its fiduciary duties under ERISA. Columbia University, as well as University Vice President of Human Resources Dianne Kenney, who administers the deficient plans, are named as Defendants.

According to the complaint, Columbia University retained expensive and poor-performing investment options that consistently underperformed their benchmarks. This caused its 401(k) plans and their participants to suffer hundreds of millions of dollars in losses of retirement savings. As a result, the University’s 401(k) plan included $4.6 billion of investment options that were primarily poor to mediocre performers. Among the plans’ poor-performers, the complaint points to the plans’ retention of the TIAA-CREF Stock Account R3, which, it alleges, has historically underperformed its benchmarks and other lower-cost investments that were available for inclusion in its retirement plans.

In addition to retaining poorly performing funds, the lawsuit charges that the University’s plans offer excessively duplicative investments to beneficiaries. According to the complaint, this selection of funds violates the industry principle that too many choices harm participants, and can lead plan participants to “decision paralysis” and selection of inferior investments. In addition, the plans charge excessive fees for recordkeeping, administrative, and investment services, and retain excessively expensive retail share class options despite the lower-cost options available to their plans.

Top Settlements

WEN is there a Settlement? Big news for people who suffered damages from WEN Hair Care Products.

A proposed $26,250,000 settlement has finally been reached in the class action lawsuit pending against them.

Cast your mind back to December, 2015, when the class action lawsuit was actually filed, naming defendants Wen Hair Products and the manufacturer Guthy-Renker. The lawsuit resulted from thousands of complaints from women alleged severe and possibly permanent hair loss after using the products. Other Wen side effects include rash and burning eyes.

So here’s the skinny on the proposed WEN settlement: The settlement class is defined as All purchasers or users of WEN Hair Care Products in the United States or its territories between November 1, 2007 and August 1, 2016, excluding (a) any such person who purchased for resale and not for personal or household use, (b) any such person who signed a release of any Defendant in exchange for consideration, (c) any officers, directors or employees, or immediate family members of the officers, directors or employees, of any Defendant or any entity in which a Defendant has a controlling interest, (d) any legal counsel or employee of legal counsel for any Defendant, and (e) the presiding Judge in the Lawsuit, as well as the Judge’s staff and their immediate family members.

The settlement consideration consists of the $26,250,000 (the “Fund”) settlement fund which shall be used to pay for administration and court costs, legal fees, and other related costs, and to pay Class Member claims and provide Incentive Awards to the named plaintiffs.

There are two Settlement Classes, namely, Tier 1 and Tier 2.

Tier 1 Class-Wide Flat Rate Claims consists of any member of the Settlement Class who purchased Wen Hair Care products and does not timely request to opt-out of the settlement class. They shall be entitled to submit a claim against the Fund for a one-time flat payment of $25 per person as compensation for claims of misrepresentation regarding the qualities and attributes of WEN Hair Care Products, or undocumented claims of bodily injury, including but not limited to hair loss, hair damage, scalp pain or irritation, after using WEN Hair Care Products. Five Million Dollars ($5,000,000) of the Fund shall be set aside to pay Class Members making Tier 1 claims.

Tier 2 Documented Adverse Reaction Claims shall consist of any member of the Settlement Class who alleges to have suffered bodily injury, including but not limited to hair loss, hair damage, scalp pain or irritation,as a result of using WEN Hair Care Products, and does not timely request to opt out from the Settlement Class, may make a claim against the Fund for reimbursement of amounts spent to redress such alleged injuries, as well as an injury award designed to compensate the Class Member for any alleged injuries sustained, up to a maximum of $20,000 per Class Member, as set forth below. To make a claim under Tier 2, the Class Member must submit a valid Tier 2 Claim Form and supporting documentation, as set required by the Settlement Agreement.

The Defendant also agrees that all labels for WEN Cleansing Conditioner created after the Effective Date shall bear a common sense caution materially consistent with the following: “If you experience any adverse reaction after using this product, immediately cease use and consult a physician.”

The settlement remains to be approved – but watch this space for updates.

So folks, on that happy note—this week’s a wrap. See you at the bar!!

Week Adjourned 8.12.16: Pokemon Go, Banner Health, Synthes

Top Class Action Lawsuits

Pokemon Go Goes North… way north of acceptable it seems. At least that’s what a couple living in a small town—and I do mean small—179 people—claim in their class action lawsuit against Niantic, the makers of the “game”.

The lawsuit has been filed in Calgary, Alberta, on behalf of Barbra-Lyn Schaeffer who lives in Torrington, AB. According to the Canadian Pokemon Go lawsuit, she is suffering as a result of an invasion of privacy, resulting from the game.

In the suit, Schaeffer asserts that both herself and her husband have been inundated by Pokemon Go players at their home 160 kilometers northeast of Calgary ever since it became the site of a Pokemon gym. Schaeffer states that people are trying to crawl over the fence and enter their property, and not respecting their privacy. Ok—seriously people?

The game, which sends players into the real world to search for digital monsters called Pokemon, uses digital beacons called Pokestops and Pokegyms. Schaeffer claims there are several such Pokestops and Pokegyms in Torrington. This is actually quite creepy.

Schaeffer told the Globe and Mail, she sent a request to Niantic asking her home be removed and only received a computer-generated response saying the company would look into it. How helpful—thanks guys.

What’s the betting this is among the first of many such lawsuits…

Banner Health not having a Banner Year it Seems. They got hit with a data breach class action lawsuit this week, brought by Howard Chen, MD, who works at Banner Thunderbird Medical Center in Glendale, AZ.

The Banner Health lawsuit asserts that Banner, which is based in Phoenix, AZ, was negligent in protecting people’s information, essentially allowing the data breach to occur.

Chen is among the whopping 3.7 million patients, health plan members, customers and providers whose personal information may have been compromised in the cyber attack.

According to the lawsuit, the hackers gained access to Banner Health computer servers, including those that process payment card information where food and beverages are sold.

FYI—this is the largest data breach to date this year.

Apparently, as compensation, Banner is offering free credit and identity monitoring to all affected individuals for one year. However, the lawsuit asserts that these steps are not sufficient reparation, because cyber criminals will wait a couple of years to use stolen information, often after monitoring periods expire.

Banner Health owns and operates 29 hospitals in seven states including University Medical Center Phoenix, formerly Banner Good Samaritan Medical Center.

Top Settlements

Synthes Settles… J&J subsidiary, Synthes, has agreed to pony up $5 million in settlement of allegations it’s been sticking it to their employees. The employment class action lawsuit was filed by outside sales reps for Synthes who alleged the company failed to cover business expenses and illegal wage deductions.

The back story is that Lead plaintiff Troy Lindell worked for Synthes as an outside sales rep between 1999 and 2011 in Fresno County, CA. According to the complaint, although Synthes pledged to reimburse him for the 200 miles a week he spent on the road and for the office supplies and equipment he needed to do the job, the company failed to live up to that promise.

Further, Lindell alleges Synthes cut his wages for failing to provide completed purchase orders or for providing purchase orders with slight errors. Really?

Yup—according to the complaint, “His wages were reduced by 50 percent of the cost of the item sold to the medical facility, even though the item had many times already been implanted in a patient.” Lindell also accused Synthes of failing to provide him with a copy of his personnel file despite two requests.

According to court documents, the parties signed an agreement August 5 that would see each member of lawsuit’s two classes receive an average payment of more than $14,000.

After legal fees and associated costs, the remaining $3.2 million will be split among the 314 members of the two classes in the suit. The settlement still requires final approval.

So folks, on that happy note—this week’s a wrap—see you at the bar!!

Week Adjourned: 8.5.16 – Pokemon Go, Honda, Shell

Top Class Action Lawsuits

Pokemon Go Hotspot (of sorts)? Here we go—it’s time to play hunt the Pokemon Go class action lawsuit. This one, filed this week, was among the first to get filed, and alleges the maker of the hugely popular game, Niantic, has some rather troubling data requirements that would-be game players must agree to, before being allowed to download the game.

To be clear, the proposed unfair business practices class action lawsuit alleges that Niantic’s terms of service contract forces players to provide their personal and private information to the company in order to use the app.

Filed by a plaintiff in Florida, the lawsuit asserts that the plaintiff unwittingly granted Niantic, the Pokemon Go Developer, “perpetual” and “irrevocable” expansive rights to, amongst other things, collect his user data, when he began downloading the game.

In order to use Pokémon Go, players must agree to the Terms of Service and Niantic creates a user’s Pokémon Go account by allegedly extracting data from the gamer’s Google, Facebook, or other pre-existing third-party account certain personal information.

According to the plaintiff, he downloaded Pokémon Go onto his phone and in so doing, unwittingly provided Niantic with his private information under an irrevocable license.

The license allegedly gives Niantic the right to retain and share users’ data, including players’ location, recent web history, search terms and user messages, in perpetuity.

Consequently, “unsuspecting individuals, including [plaintiff], have downloaded and used ‘Pokémon Go’ … and [have] and will provide Niantic with information,” the lawsuit states.

According to the complaint, “The terms of service provide that [plaintiff] has granted to Niantic a perpetual and irrevocable license, which will survive cancelation, discontinuation or termination of [plaintiff’s] access to or use of Niantic’s services,” the plaintiff states, adding “such cancelation, discontinuation or termination may occur upon Niantic’s option, at its sole discretion, and at any time and without notice to plaintiff.”

Further, the suit asserts that Niantic reserves the right to unilaterally alter or terminate any or all of the separate parts of the Terms of Service and Privacy Policy. Because of this, the suit claims Niantic “is not bound by the Pokémon GO Terms of Service or the Pokémon GO Privacy Policy, and may perform if it wants to.” The plaintiff claims Niantic unfairly asserts the right to terminate a player’s account at the company’s sole discretion and refuses to refund virtual goods which the player uses in the game.

The lawsuit is seeking relief under the Florida Deceptive and Unfair Trade Practices Act and a declaratory judgment that the Niantic Pokémon Go Terms of Service and the Pokémon Go Privacy Policy are illusory and therefore the contract is unenforceable.

The Pokémon Go Terms of Service Lawsuit is Case No. 50-2016-CA-008330, in the Fifteenth Judicial Circuit for Palm Beach County, Florida.

Wow.

Honda Gets Hit…. with a defective automotive class action lawsuit this week, filed by owners of Acura vehicles. The lawsuit states that the automaker sold vehicles with a battery-draining defect that since at least 2005. According to the allegations, Honda knew all about the issue. No!

Here’s the skinny—according to the Honda complaint—the HandsFreeLink™ unit will get stuck in the “on” position, even if the feature is not in use and even after the car’s ignition switch is turned off. Once stuck, the HandsFreeLink™ unit creates a constant drain on the electric system, leading to drained and dead batteries, recurring battery replacement and premature failure of other essential electric components such as alternators.

As a result, Acura owners are faced with the choice of disabling the HandsFreeLink™ unit or replacing it at a cost in excess of $1,000, with no guarantee that the replacement will function properly, according to the complaint. Since 2005, Honda has issued internal Technical Service Bulletins, notifying only the dealers about the problem, but offering no meaningful solution, warranty coverage or recall for consumers.

The lawsuit also states that Acura owners are not only out the cost of potential replacement. According to the lawsuit filed in the US District Court for the Northern District of California, owners find themselves with cars that are less valuable than comparable cars with properly functioning hands-free systems. The lawsuit seeks reimbursement for vehicle owners related to the defect and an injunctive order to end Honda’s concealment of the defect and denial of warranty coverage for repairs related to the HandsFreeLink™ defect.

Go get ‘em!

Top Settlements

Shell Gift Cards not so Giving? Shell got nailed for some hanky panky with its gift and fuel rewards cards this week.

Santa Cruz District Attorney Jeffrey S. Rosell settled a consumer fraud and false advertising class action lawsuit brought by his office against Equilon Enterprises LLC, dba Shell Oil Products US (“Shell”).

The specific allegations were that Shell: (1) failed to adequately disclose that certain advertised discounts for using gift cards and fuel rewards cards could not be combined; (2) advertised discounts on gasoline when purchased by a gift card that Shell knew or should have known were not being honored by all stations; (3) failed to redeem gift cards with balances of less than $10 for cash as required by California law; (4) failed to adequately disclose limitations to Shell’s rewards programs; and (5) falsely advertised that certain gift cards could “be used like cash,” when Shell knew or should have known some stations were charging customers the credit price for gasoline when purchasing with a gift card.

The Shell gift card judgment includes an injunction that requires Shell to: implement new technology at stations to address technical limitations that prevented advertised discounts from being combined; more adequately disclose any limitations on advertised discounts; provide increased training materials to help Shell stations address the issues in the complaint; and more prominently notify consumers about their gift card redemption rights and where to call with questions or complaints about Shell gift cards or fuel rewards cards.

Under the terms of the stipulated judgment, Shell has agreed to pay $762,500 in civil penalties, costs, and restitution, and to injunctive provisions to ensure future compliance. A task force composed of the Santa Cruz County District Attorney’s Office, along with District Attorneys from Alameda, Monterey, Napa, Sonoma, Santa Clara and Solano counties conducted the investigation and filed the action in Alameda County.

Ok, that’s a wrap folks… See you at the Bar!

Week Adjourned: 7.29.16 – Kroger, T-Mobile, Enbridge Energy

Top Class Action Lawsuits

Good Food Gone Bad…it’s the subject of a food poisoning class action lawsuit filed against the Kroger Co., The Pictsweet Co. and CRF Frozen Foods LLC and frozen vegetable manufacturers over allegations that the family of Roger Coffelt Jr., was made sick from Listeria contaminated foods. That’s not funny.

Coffelt Jr. filed the complaint alleging the peas his family ate caused illness to and Listeria infection of Coffelt Jr.s’ family members. He claims The Kroger Co., The Pictsweet Co., CRF Frozen Foods LLC are responsible because the defendants allegedly had grown, processed and sold the adulterated subject frozen peas and maintained their food production and packing facilities in an unsanitary and unhygienic condition.

Coffelt, and all those in the class, are seeking damages for not more than $30,000,000 plus penalties, attorneys’ fees and costs and for such other and further relief as the court deems proper. The case is US District Court for the Central District of California Case number 5:16-cv-01471.

Orwellian Credit Checks by T-Mobile? According to an unfair business practices class action lawsuit filed by a consumer, yes.

Filed by Erik Shapiro on behalf of all others similarly situated, the T-Mobile complaint states that in February 2014, Shapiro contacted the defendant to inquire about its phone plans and the possibility of switching his provider to T-Mobile. He alleges that the defendant performed a hard credit check on him, rather than a soft credit check as they stated they would do. As a result of the defendant’s action, the plaintiff sustained damages.

The plaintiff holds T-Mobile USA Inc. responsible because the defendant allegedly misrepresented to plaintiff that they would only do a soft credit check but did a hard credit check without plaintiff’s permission and consent. If true—really not good.

Heads up—the case is US District Court for the Central District of California Case number 2:16-cv-04698-RGK-MRW.

Top Settlements

Oil Spill Settlement…A long time in coming—but at least it’s here—a $177 million settlement agreement has been reached between Canadian pipeline operator Enbridge Energy Limited Partnership and the US federal government regarding the 2010 oil spills in Michigan and Illinois.

The US Environmental Protection Agency and the Department of Justice announced a settlement with Enbridge Energy Limited Partnership and several related Enbridge companies to resolve claims stemming from its 2010 oil spills in Marshall, MI and Romeoville, IL.

Enbridge has agreed to spend at least $110 million on a series of measures to prevent spills and improve operations across nearly 2,000 miles of its pipeline system in the Great Lakes region. Enbridge will also pay civil penalties totaling $62 million for Clean Water Act violations—$61 million for discharging at least 20,082 barrels of oil in Marshall and $1 million for discharging at least 6,427 barrels of oil in Romeoville.

In addition, the proposed settlement will resolve Enbridge’s liability under the Oil Pollution Act, based on Enbridge’s commitment to pay over $5.4 million in unreimbursed costs incurred by the government in connection with cleanup of the Marshall spill, as well as all future removal costs incurred by the government in connection with that spill. The settlement includes an extensive set of specific requirements to prevent spills and enhance leak detection capabilities throughout Enbridge’s Lakehead pipeline system – a network of 14 pipelines spanning nearly 2,000 miles across seven states. Enbridge must also take major actions to improve its spill preparedness and emergency response programs. Under the settlement, Enbridge is also required to replace close to 300 miles of one of its pipelines, after obtaining all necessary approvals.

Ok, that’s a wrap folks… See you at the Bar!

Week Adjourned: 7.22.16 – Apple, Blue Shield, Herbalife

Top Class Action Lawsuits

Bad Apple, Again? Yet another lawsuit against Apple, this one set to take a bite over allegations of consumer fraud surrounding devices that are replaced via AppleCare+ warranty with refurbished replacements that don’t meet a specific clause in the contract.

Filed in California, on behalf of plaintiff Vicky Maldonado and others similarly situated, the proposed class action alleges the clause claiming refurbished devices are “equivalent to new in performance and reliability” is false.

According to the Apple lawsuit allegations, a refurbished device is a “secondhand unit that has been modified to appear to be new” and therefore can’t be equivalent in durability and functionality as a new unit. Maldonado filed the suit after she purchased a third generation iPad and then cracked the screen after owning it for six months.

As the damage to Maldonado’s iPad was accidental in nature, she was forced to replace her tablet at an out of pocket cost of $250, according to the suit. However, she was told that for another $100 the AppleCare+ program would replace the tablet if similarly damaged in the future. Allegedly, the replacement iPad Maldonado was given under the warranty did not function properly and since it had impaired functionality, the tablet wasn’t equivalent to new, the suit asserts.

Following this, in 2013 Maldonado bought another iPad, a fourth generation model. She claims that she wasn’t informed that she would get a refurbished device if she damaged the tablet. When she tried to get a repair for the device in May 2015, she was given a refurbished device instead. According to court filings, she claims the device she received wasn’t equivalent to that of a new device either in performance or reliability.

Policy Policing Needed? Blue Shield got slapped with a consumer fraud class action lawsuit this week, filed by enrollees who allege the insurer owes its members another $35 million in rebates due to errors in its medical-loss ratio calculation of 2014. That’s some accounting error, if true…

Brought by plaintiffs Becky Ebenkamp and Rebecca Morris, the Blue Shield class action lawsuit seeks to represent more than 446,000 individual policy holders from that year.

According to federal law, insurers are required to issue refunds if they don’t spend at least 80 percent of premium dollars on medical care or on improving the quality of care. The complaint alleges Blue Shield improperly counted certain payments as medical expenses it had made erroneously in 2014 to providers who were not in its network and patients whose coverage had lapsed. By counting those mistaken payments as legitimate medical expenses, Blue Shield pushed itself closer to the 80 percent threshold, thus reducing the size of the refunds it owed, according to the complaint.

The lawsuit states that under the consumer refund rule, those payments should have been logged as administrative expenses, and Blue Shield customers are therefore entitled to a bigger refund.

The rebate rule, part of the Affordable Care Act, is intended to contain the cost of health coverage by limiting the share of premiums insurers can spend on administrative functions, executive salaries, overhead and profits. If an insurer spends only 75 percent of premium dollars on care, for example, it must send refund checks to enrollees equal to 5 percent of the premiums they paid.

Who knew? Ah, precisely.

Top Settlements

Herbalife to Pay Up…Remember that old adage, if it sounds too good to be true? Well, Herbalife International of America, Inc., Herbalife International, Inc., and Herbalife, Ltd. have agreed to fully restructure their US business operations and pay $200 million to compensate consumers to settle Federal Trade Commission (FTC) consumer fraud charges that the companies deceived consumers into believing they could earn substantial money selling diet, nutritional supplement, and personal care products.

In its complaint against Herbalife, the FTC also charged that the multi-level marketing company’s compensation structure was unfair because it rewards distributors for recruiting others to join and purchase products in order to advance in the marketing program, rather than in response to actual retail demand for the product, causing substantial economic injury to many of its distributors.

According to the FTC’s complaint, Herbalife claims that people who participate can expect to quit their jobs, earn thousands of dollars a month, make a career-level income, or even get rich. But the truth, as alleged in the FTC complaint, is that the overwhelming majority of distributors who pursue the business opportunity earn little or no money.

For example, as stated in the complaint, the average amount that more than half the distributors known as “sales leaders” received as reward payments from Herbalife was under $300 for 2014. According to a survey Herbalife itself conducted, which is described in the complaint, Nutrition Club owners spent an average of about $8,500 to open a club, and 57 percent of club owners reported making no profit or losing money.

The small minority of distributors who do make a lot of money, according to the complaint, are compensated for recruiting new distributors, regardless of whether those recruits can sell the products they are encouraged to buy from Herbalife.

Finding themselves unable to make money, the FTC’s complaint alleges, Herbalife distributors abandon Herbalife in large numbers. The majority of them stop ordering products within their first year, and nearly half of the entire Herbalife distributor base quits in any given year.

The Herbalife settlement requires Herbalife to revamp its compensation system so that it rewards retail sales to customers and eliminates the incentives in its current system that reward distributors primarily for recruiting. It mandates a new compensation structure in which success depends on whether participants sell Herbalife products, not on whether they buy products.

The settlement also prohibits Herbalife from misrepresenting distributors’ potential or likely earnings. The order specifically prohibits Herbalife from claiming that members can “quit their job” or otherwise enjoy a lavish lifestyle.

In addition, the order imposes a $200 million judgment against Herbalife to provide consumer redress, including money for consumers who purchased large quantities of Herbalife products (such as many Nutrition Club owners, among others) and lost money. Information on the FTC’s redress program will be announced at a later date.

Ok, that’s a wrap folks… See you at the Bar!