wage and hour lawsuit

Week Adjourned: 1.27.12

A weekly wrap up of top class action lawsuits and lawsuit settlements for the week ending January 27,2012.

Top Class Actions

Ex Pro Football Players go head to head with NFL Over Concussions. Yup—that’s right. The NFL is facing a class action lawsuit filed on behalf of all former NFL players, including seven named players and four spouses over concussion and related health effects.

The named players include former Philadelphia Eagles Ron Solt, Joe Panos, and Rich Miano. The lawsuit charges that the NFL and other defendants intentionally and fraudulently misrepresented and/or concealed medical evidence about the short- and long-term risks regarding repetitive traumatic brain injury and concussions and failed to warn players that they risked permanent brain damage if they returned to play too soon after sustaining a concussion.

Ron Solt, age 50, was an all-star guard for the Eagles from 1988 to 1991 and also played for the Indianapolis Colts, playing 10 seasons in all from 1984 to 1993. He suffered at least one concussion during an NFL game while with the Eagles, as well as multiple head traumas and concussions during practice that were never medically diagnosed. He now suffers from substantial memory loss and persistent ringing in his ears.

Joe Panos, age 41, played as an offensive lineman in the NFL from 1994 to 2000 and was with the Eagles from 1994 to 1997. He sustained concussions while with the Eagles and Buffalo Bills. He currently experiences headaches, memory loss, irritability, rage, mood swings, and sleeplessness.

Rich Miano, age 49, played as a defensive back for 10 seasons in the NFL between 1985 and 1995 and was with the Eagles from 1991 to 1994. He is now associate head coach of the University of Hawaii football team. He sustained at least one concussion while playing but is currently asymptomatic.

Gennaro DiNapoli, age 36, was an NFL center and guard from 1998 to 2004 who sustained repeated head impacts during his NFL career. He suffers from severe depression, memory loss, headaches, anxiety and mood swings.

Adam Haayer, age 34, was an offensive lineman from 2001 to 2006 for four teams. He had at least four concussions or concussion-like symptoms and deals with memory loss, depression, and anxiety. Daniel Buenning, age 30, played as an offensive lineman in the NFL for four seasons from 2005 to 2008. He suffers from substantial memory loss, depression, trouble with concentration, short attention span, and mood swings.

Craig Heimburger, age 34, played on the offensive line for four teams between 1999 and 2002. He sustained multiple head impacts and concussions and suffers from dizziness, memory loss, and intense headaches.

Also named in the complaints were the wives of several players including Lori Miano, Summer Haayer, Ashley Buenning and Dawn Heimburger.

Lawyers representing the plaintiffs said this action is necessary because the NFL knew about the debilitating and permanent effects of head injuries and concussions that regularly occur among professional players, yet ignored and actively concealed the risks.

The lawsuit charges that the NFL voluntarily joined the scientific research as well as public and private discussions regarding the relationship between concussions and brain impairment when it created the Mild Traumatic Brain Injury (MTBI) Committee in 1994. Rather than naming a noted neurologist to chair this committee, it appointed Dr. Elliott Pellman, a rheumatologist who was a paid physician and trainer for the New York Jets, a conflict of interest, and had training in the treatment of joints and muscles, not head injuries. While the committee was established with the stated purpose of researching and lessening the impact of concussions on NFL players, it failed to inform them of the true risks associated with head trauma.

Although athletes who suffered brain trauma in other professional sports were restricted from playing full games or even seasons, NFL players with similar head injuries were regularly returned to play with devastating consequences.

The lawsuit seeks medical monitoring, compensation, and financial recovery for the short-term, long-term, and chronic injuries, financial and intangible losses, and expenses for the individual former and present NFL players and their spouses.

What can I say—it’s a wake-up call a long time in the making.

Top Settlements

Wonder if Payless texted this piece of news…A proposed settlement (the “Settlement Agreement”) has been reached in the class action lawsuit against Payless ShoeSource, Inc. (“Payless” or “Defendant”). You may be a Member of the Settlement Class and might be eligible to receive a merchandise certificate worth up to $25 if you are a person who received one or more text messages promoting Payless products between October 29, 2005 and October 4, 2010. If you are a Settlement Class Member and the Court gives final approval to the Settlement Agreement:

You may be entitled to receive a $25 merchandise certificate (a “Settlement Payment”) or a lesser pro rata amount if the total of all claims exceeds $6,000,000.

If you are a Settlement Class Member and would like to receive your Settlement Payment, you must submit a Claim Form, either through the mail or by filling out a claim form on the claims administrator’s website. You will be giving up legal claims against Defendant and other related entities. Your claim must be submitted or postmarked no later than February 6, 2012. To find out more about the terms of the settlement and how to qualify or be excluded—visit paylesstextsettlement.com.

One could argue this lawsuit went into overtime… but it looks like a happy ending… for the employees that is. An announcement this week—that Novartis Pharmaceuticals Corporation (NPC) has agreed to pay $99 million to settle a nationwide wage and hour class action brought by 7000 Novartis sales reps who allege NPC reps weren’t paid overtime.

The case has been working its way through the courts since 2006, and stems from claims that the sales reps don’t qualify as “outside sales” employees which would make them exempt from overtime pay. This issue has been the source of several wage and hour class actions brought by pharma sales reps from different companies who have alleged that Fair Labor Standards Act exemptions don’t apply to them.

Ok—That’s a wrap for this week. See you at the bar!

Week Adjourned: 11.19.11

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

Top Class Actions

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

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

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

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

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

Top Settlements

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

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

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

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

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

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

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

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

Week Adjourned: 10.28.11

Weekly wrap of class action lawsuits and settlements for the week of October 28, 2011.

Top Class Actions

Blackout at BlackBerry. Well—it took a while—but it’s finally here—BlackBerry maker Research In Motion (RIM) is facing a potential class action lawsuit over the major service interruption which occurred on October 11, 2011. The consumer fraud lawsuit was filed on behalf of all US consumers who are currently under an agreement and using a BlackBerry device.

According to the legal counsel, although the users’ contracts are through Sprint and not RIM, they pay the company fees through the carrier. The lawsuit estimates that RIM takes in roughly $3.4 million in revenue per day from the services paid through the wireless carriers. Better SMS this one.

Hey Oreck, when the Light is on the Germs are…where? If all I need to get rid of the common cold or flu viruses is a vacuum—I wonder what untapped potential lurks within my food processor? Oh, hold on a minute…Oreck is facing a class action lawsuit alleging that claims the company makes about its “flu-fighting” vacuum cleaners and air purifiers are false and misleading. Really?

The federal consumer fraud suit claims that Oreck, in its advertising, states its Halo vacuum and air purifier can “eliminate common viruses, germs and allergens, thereby helping to prevent the illnesses they cause.” The lawsuit claims that Oreck “represented to consumers that the products used scientifically proven technology to eliminate common viruses, germs and allergens, thereby helping to prevent the illnesses they cause.” And, Oreck claims its products can prevent colds, diarrhea, stomach upsets, asthma and allergies. “Unfortunately for plaintiffs and the class, defendants’ claims are not adequately supported by credible, scientific testing or other substantiation, and are not true.”

Thelaw suit goes on to state that “… these representations were false, deceptive and inaccurate. As such, Oreck’s actions violated the Magnum Moss Warranty Act (‘MMWA’), breached express warranties made by defendants, breached implied contractual warranties imposed by law, violated numerous California consumer protection statutes, and violated New York consumer protection statutes and common laws.

Top Settlements

Unpaid overtime to be paid – at last. A $4 million settlement has been reached in an unpaid overtime class action against Sutherland Global Servies Ltd.

The lawsuit, brought by call center telemarketers in 2005, (yes – 6 years ago – not kidding) alleged that Sutherland didn’t pay its call center employees the overtime owed.

The lawsuit was originally brought by two Rochester employees of the Perinton-based process outsourcing company, and grew to 10 named employees and hundreds of unnamed workers, all of whom claimed they regularly worked more than 40 hours a week but were not paid overtime.

Although Sutherland denied the allegations, it agreed to a $4 million settlement to be divided among members of the class and U.S. District Judge David G. Larimer gave final approval to the settlement last week, ending the litigation.

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

Week Adjourned: 9.16.11

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

Top Class Actions

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

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

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

Top Settlements

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

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

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

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

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

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

Week Adjourned: 5.13.11

Top Class Actions

Put your paycheck on a diet? These women don’t think it’s a such a good idea. Two Long Island women who worked for Jenny Craig filed a unpaid wages class action lawsuit, alleging that the well-known weight-loss chain put their paychecks on a diet.

The women, in a suit filed May 10 In New York State Supreme Court in Manhattan, claim that Jenny Craig Operations Inc., the Carlsbad, Calif.-based chain owned by multi-national food giant Nestlé’s, improperly shortchanged them by a 1/2 hour a day for every shift they worked, even though they worked during their 30-minute break times. The alleged underpayments violate New York’s labor laws, according to court papers.

The suit, which seeks class action status, was filed by Tammy Weinstein, of Bellmore, who has been a program director and weight loss consultant since November 2002 at Jenny Craig locations in Valley Stream and Massapequa, and by Melissa Pallini, of Holbrook, who was a weight loss consultant, program director, part time receptionist, and stocker from June 2008 until June 2010 at the chain’s East Patchogue location.

The suit seeks to represent all New York employees of Jenny Craig who worked as weight loss consultants, receptionists, stock persons, program directors and any other employee at Jenny Craig weight-loss centers. According to court papers, the class included more than 500 people who’ve worked at Jenny Craig since May 2005. The chain has 30 locations statewide, 10 of them on Long Island, in Centereach, E. Patchogue, Great Neck, Farmingdale, Freeport, Hicksville, Huntington Station, Massapequa and Valley Stream.

The employees worked about 15 to 35 hours a week on shifts of five to eight hours one day to five days per week, according to court papers.

Jenny Craig, a commercial program that features portion-controlled, prepackaged meals supplemented by store-bought vegetables and fruit, received top marks this week from Consumer Reports for diet success. The chain offers support through weekly counseling sessions.

The diet chain’s celebrity spokespersons have included actress Kirstie Alley, Valerie Bertinelli, Queen Latifah, actresses Sara Rue and Nicole Sullivan, actor Jason Alexander and, since January, actress Carrie Fisher.

Top Settlements

Where there’s smoke, there’s gas… This is certainly an interesting twist on an old theme. A Flordia judge recently ruled in favor of the plaintiffs in litagation over defective Chinese drywall. The Hillsborough County judge, Robert Foster, ruled that homeowners’ insurance should Continue reading “Week Adjourned: 5.13.11”