Week Adjourned - Part 10

Week Adjourned: 4.15.16 – 24-Hour Fitness, Cold FX, Goldman Sachs

Top Class Action Lawsuits

Fitness Flub…24 hour Fitness has its feet to the fire again, this time—well, as always—it’s a consumer fraud class action lawsuit alleging the national fitness chain raised its customers’ fees for use on lifetime memberships, in violation of various state laws in California, Texas, and Oregon.

Filed by Kevin O’Shea of California, Mark Vitcov of Oregon, and Rod Morris of Texas, individually and for all others similarly situated, the 24 Hour Fitness lawsuit claims sales representatives employ aggressive sales pitches to induce consumers into buying lifetime memberships to its gyms. Under the terms of these lifetime memberships, customers must prepay three years of membership fees, following which they pay only nominal renewal fees.

However, according to the lawsuit, while the annual renewal fees were supposed to remain constant for the rest of the member’s life, when the defendant came under new ownership it stopped honoring its lifetime fee guarantees and announced that it would raise lifetime members’ annual renewal fees beginning in 2016. Can you say “Scamorama?”

The lawsuit alleges fraud, violation of California’s Consumer Legal Remedies Act, its Unfair Competition Law, and its Health Studio Services Contract Law, violation of Oregon’s Unlawful Trade Practices Act, and violation of Texas’s Health Spa Act and its Deceptive Trade Practices Act. The case is US District Court for the Northern District of California San Francisco Division Case number 3:16-CV-01668-EDL.

Placebo FX? A Canadian consumer fraud class action lawsuit to report this week. It was filed against the makers of the popular over-the-counter cold treatment, Cold-FX, alleging the product is no more effective at preventing colds and flu than a placebo. Now there’s a thing.

The Cold FX lawsuit was originally filed by Vancouver Island resident Don Harrison in 2012, against Cold-FX, which is owned by Valeant Pharmaceuticals and its subsidiary, Afexa Life Sciences. The lawsuit cites advertising in which Cold-FX claims to provide “immediate relief of cold and flu” if taken over a three-day period at the first sign of symptoms.

Here’s the rub, according to the complaint, the defendants ignored their own research and misled consumers about the short-term effectiveness of the popular cold and flu remedy. Hey—if it’s true—they wouldn’t be the first.

According to Harrison’s notice of claim, Valeant and Afexa continued to “knowingly or recklessly” promote Cold-FX despite evidence the natural-health product only had a possible positive impact after being taken daily for prolonged periods of two-to-six months. That’s a long lead time for any cold remedy—you would be on this stuff for life, effectively. Or not. Wonder if it’s publicly traded…

The lawsuit claims that people paid money for a worthless product. According to the attorney representing Harrison, Valeant and Afexa failed to release data from an internal study conducted in the early 2000s that contradicted the health claims around Cold-FX. The defendants knew at least as early as 2004, when they had a study done themselves, that Cold-FX might be even less effective than a placebo, the lawsuit alleges.

An identical lawsuit has been filed in Saskatchewan.

Top Settlements

Goldman Sachs hit with $41 Million Bill…stemming from allegations brought by Illinois Attorney General Lisa Madigan in yet another residential mortgage-backed (RMBS) securities lawsuit. Ka-Ching!

The charges specifically allege misconduct during the bank’s marketing and sale of RMBS prior to the 2008 economic collapse—remember that? Goldman Sachs allegedly failed to disclose the true risk associated with many of its RMBS investments.

According to the terms of the settlement, GS will pay $25 million to the Illinois’ pension system and $16 million will be given in relief to Illinois consumers.

This settlement is part of a larger, $5 billion national settlement resulting from legal action taken by the US Department of Justice and state attorneys general and other entities.

Ok—That’s a wrap folks…Have a good one. See you at the Bar!

Week Adjourned: 4.8.16 – Hyundai, Kia, Hertz, J&J Hip Implants

Top Class Action Lawsuits

New Month, New Defective Auto Lawsuit… This time, it’s a Hyundai and Kia defective automobile class action. The car companies are facing the wrath of consumers, who allege the paint on 2006-2016 Hyundai Santa Fe, Sonata, and Elantra vehicles contain an identical and inherent defect which causes the paint to bubble, peel and flake off the vehicle, which can lead to rusting and corrosion.

Filed by Michelle Resnick, Shelby Cramer, Lauren Freed, Paul Sandlin, Patricia Reynolds, Christopher Baker, and Tara Mulrey, individually and for all others similarly situated, the lawsuit claims vehicle owners must either live with these problems or spend significant amounts of money to repair and repaint the vehicles.

The plaintiffs allege breach of express and implied warranties, negligent misrepresentation, fraudulent concealment, unjust enrichment, violation of California’s Consumer Legal Remedies Act, violation of California’s Business and Professions Code, and violations of unfair and deceptive trade practices acts in several states. Go get’em.

The case is US District Court for the Central District of California Case number 8:16-CV-00593-BRO-PJW.

Some Hurtin’ for Hertz…Heads up Hertz customers…in yet another consumer fraud class action filing this week, America’s largest car rental company stands accused of not playing fair with its terms and conditions as stated on its website. The Hertz lawsuit, in fact, alleges violations of the New Jersey’s Truth-in-Consumer Contract, Warranty and Notice Act (TCCWNA). Read on.

The skinny is that named plaintiff, David Hecht, claims the terms and conditions states on the Hertz website violate TCCWNA because of a failure to state how they affect New Jersey residents.

Here’s what that looks like: Hecht’s allegations target Hertz’s website for enrolling in the car rental company’s Gold Plus Rewards Program. Hecht’s lawsuit specifically references a portion of the TCCWNA that states “No consumer contract, notice or sign shall state that any of its provisions is or may be void, unenforceable or inapplicable without specifying which provisions are or are not void, unenforceable or inapplicable within the State of New Jersey.”

Hecht seeks to represent two classes in his lawsuit. The first would be those New Jersey residents enrolled in Hertz Gold Plus Rewards when the case was filed. This class also would include New Jersey residents enrolled in the program six years prior to whenever the website’s Terms and Conditions stated “in words or substance, that Gold Plus Rewards offers are void where prohibited, without specifying whether these provisions are or are not void, unenforceable or inapplicable within the State of New Jersey.”

The second proposed class would include New Jersey residents who rented a Hertz vehicle for personal, household or family purposes via company’s website within six years of the date of the filing. That class would cover a period when Hertz’s Terms of Use said “that except as otherwise required by law, price, rate and availability of products or services are subject to change without notice and that the Hertz’ General Terms of Use are void where prohibited, without specifying whether these provisions are void, unenforceable, or inapplicable within the State of New Jersey.”

Top Settlements

J&J $502M Hip Award. This should cause some serious thinking at J&J. The company was ordered to pay a whopping $502 million settlement this week, which was awarded by a jury in Dallas hearing the consolidated lawsuits of five plaintiffs who all allege that DePuy Orthopedics and Johnson & Johnson (J&J) Ultamet hip implant is defective and caused them pain, injury and suffering.

The plaintiffs who accused the company of hiding flaws in its Pinnacle artificial hips that caused the devices to prematurely fail and left them facing surgeries and pain.

FYI—the DePuy Ultamet hip replacement devices are metal-on-metal. The problem with metal-on-metal devices is that metal debris can reportedly come loose, resulting in metals being absorbed by the patient’s surrounding tissue and causing excess levels of chromium and cobalt in the patient’s blood. Furthermore, patients may experience pain, inflammation and soft tissue damage in the area around the hip, making mobility difficult if not impossible.

The jury awarded $142 million in actual damages and $360 million in punitive damages. You want to say congratulations, but “really?”

Ok, that’s a wrap folks…see you at the bar!

Week Adjourned: 4.2.16 – Facebook, Gun Safety, Corinthian College

Top Class Action Lawsuits

Facebook Data Mining for (Ad) Dollars? This is very disheartening, if the allegations are proved true. A privacy class action lawsuit has been filed against Facebook and several high profile cancer institutes, alleging FB mined private health data from websites of the cancer institutes to generate advertising campaigns.

The cancer institutes named as co-defendants in the proposed class action are: the American Cancer Society Inc., American Society of Clinical Oncology Inc., Melanoma Research Foundation, Adventist Health System, BJC Healthcare, the Cleveland Clinic, and the University of Texas-MD Anderson Cancer Center.

Filed by Winston Smith, a registered Facebook user and Missouri resident, the 88-page complaint claims the medical institutes’ websites include a secret “Facebook code” that allow users’ data to be transmitted to Facebook, which then creates targeted advertising campaigns.

“Without the knowledge, consent, or any action of the user, the entire process happens in milliseconds,” the complaint states.

According to Smith, he searched for lung cancer information on the American Cancer Society’s website, Cancer.org. The information he sought and any links he clicked then were sent to Facebook without his knowledge and without his consent.

“Despite Cancer.org’s Privacy Policy, the Plaintiff’s communications to and from Cancer.org were contemporaneously re-directed to, tracked, intercepted, and acquired by Facebook through the process described above,” Smith alleges. “Upon these and other communications, Plaintiff’s cancer-related communications were disclosed to, tracked, and intercepted by Facebook through cookies and other identifiers.”

In the complaint, Smith asserts that users of such websites “trust” that their personal details of their cancer-related searches and browsing with not be shared with third-parties. The complaint also notes that Facebook, itself, does not disclose in its data and privacy policies that it tracks and collects such “sensitive information.”

The lawsuit was filed in the US District Court for the Northern District of California.

Gun Safety Gone Wrong? This one kind of redefines defective products. A class action lawsuit has been filed against the gun manufacturer/importer Century Arms, alleging the safety levers on certain models are defective. Terrific.

Specifically, the Century rifles lawsuit contends that numerous Century-branded AK rifles and pistols are equipped with a safety selector lever that can be pushed above the “safe” position. In turn, a user can then unknowingly disengage the safety mechanism and accidentally discharge the gun without pulling the trigger.

According to the complaint, the problem is linked to the firearm’s “inadequate design, manufacturing, and testing,” and adds the feature “will not prevent and has not prevented accidental discharge of the guns.”

Further, the plaintiffs cite a YouTube video which shows the alleged defect as being the result of Century maintaining a full-auto safety selector rather than modifying it with a semi-auto safety selector, much like its competitors.

Based in Delray Beach, Florida, Century is a known importer of Russian surplus weapons including AK-47 rifles. According to federal law, the company must modify the firearms to comply with U.S. regulations before entering them in commerce.

The plaintiffs contend that Century is aware of the defect as it changed the safety selector on current models. However, the lawsuit notes, Century has never issued a warning to the public or recalled defective models.

“Century is aware that the Class AK-47 Rifles and Pistols have fired as result of the Safety Selector defect, and it is only a matter of time, if not already, before individuals are seriously injured or killed,” the lawsuit states. At a loss for words here.

The class consists of plaintiffs from across the US who have experienced an unintentional discharge with their Century firearm due to the safety lever. In most of the cases, the safety lever advanced beyond the safe position to cause the gun to fire without the pull of the trigger. In one case, a round discharged inside an apartment, ripping through the wall and entering the neighboring unit. None of the instances resulted in injury or death.

The class action suit accuses Century of violating 10 counts of state and federal laws that protect consumers.

Top Settlements

Corinthian College Takes a $1.1B Hit. And justice prevails…in the form of a $1.1 billion judgment handed down against the for-profit Corinthian Colleges Inc. (CCI), for its alleged predatory and unlawful business practices. It’s about time.

The lawsuit was filed by the office California Attorney General Kamala D. Harris.

The now defunct CCI allegedly misrepresented training programs and job placement rates, and pushed students into high interest loans. A lawsuit was also filed by Attorney General Martha Coakley, against the school.

According to Harris’ office, CCI intentionally targeted low-income, vulnerable Californians through false advertising and aggressive marketing campaigns. The organization purportedly misrepresented job placement rates and school programs. It conducted this false advertising via the Internet, telemarketing and television ad campaigns.

Ok, that’s a wrap folks…See you at the bar.

Week Adjourned: 3.25.16 – Old Spice, Tyson Foods, Dialysis Drug

Top Class Action Lawsuits

Heads up all Old Spice guys… And gals, too. Proctor & Gamble (P&G) got hit with a consumer fraud class action lawsuit alleging its Old Spice deodorant “ regularly and routinely causes rashes, irritation, burning and other injury to unsuspecting consumers.” How attrractive.

Filed by Rodney Colley on behalf of himself and all others similarly situated, the Old Spice lawsuit contains a photo of Colley’s armpit areas, alleging that the severe rash depicted in the images was caused by Old Spice deodorant.

Further, the lawsuit alleges numerous complaints have been registered against the product online, citing adverse reactions to the Old Spice deodorant and no adequate warnings or safety notices on the products.

The lawsuit names the following Old Spice brands:

Old Spice After Hours Deodorant, Old Spice Champion Deodorant, Old Spice Pure Sport High Endurance Deodorant, Old Spice Artic Force High Endurance Deodorant, Old Spice Bearglove Deodorant, Old Spice Lion Pride Deodorant, Old Spice Swagger Deodorant, Old Spice Fresh High Endurance Deodorant, Old Spice Aqua Reef Deodorant, Old Spice Classic Fresh Deodorant, Old Spice Fiji Deodorant, Old Spice Wolfhorn Deodorant, Old Spice Champion Deodorant.

Top Settlements

Big news on the Employment Lawsuit front this week… Tyson Foods lost its challenge to a $5.8 million class action judgment in an unpaid overtime and wages class action brought by Tyson workers at an Iowa pork-processing facility. The U.S. Supreme Court in a 6-2 ruling written by conservative Justice Anthony Kennedy, upheld a 2014 appeals court decision in favor of the Tyson workers.

The court has been considering an objection to the use of statistics to determine liability and damages claimed by the workers.

The Tyson lawsuit was filed by workers in at the meat-processing facility in 2007. The plant employs around 1,300 people. The plaintiffs claim they were entitled to overtime pay and damages because they were not paid for time spent donning and donning off protective equipment and walking to work stations. More than 3,000 current and former employees are suing Tyson.

The case is Tyson Foods Inc v. Bouaphakeo, U.S. Supreme Court, No. 14-1146.

Fresenius Dialysis agreement… Here’s another biggie in the defective medical products arena. Fresenius Medical Care reached a $250 million agreement potentially settling claims alleging harm from their dialysis drugs, GranuFlo and NaturaLyte. The settlement amount will be $250 million, but they need 97% of the plaintiffs to buy in by July of 2016 or the deal dies. If everyone’s onboard, funding will be provided in August of 2016.

The lawsuits, combined into a multi-district litigation (MDL), centers upon Fresenius’ two dialysates Granuflo and Naturalyte, which have been blamed for heart problems, strokes and death in thousands of patients. Reportedly, there are more than 1,800 lawsuits consolidated into MDL under US District Judge Douglas P. Woodlock in the District of Massachusetts (In re: Fresenius GranuFlo/NaturaLyte Dialysate Litigation, MDL No. 2428).

The lawsuits allege that Fresenius Medical Care knew of the danger in their products and failed to adequately warn and inform the public. Further, there are allegations that claim the company neglected to warn health care providers as well as properly train them on how to use these dialysis products safely.

Additionally, the lawsuits claim Fresenius failed to warn dialysis clinics, outside its own Fresenius clinics, of potential Alkali Dosing Errors.

Both Fresenius Medical Care products—Naturalyte and GranuFlo—are used in the treatment of acute and chronic renal failure during hemodialysis. The concentrate is formulated to be used with a three-stream hemodialysis machine, which is calibrated for acid and bicarbonate concentrates, according to the FDA safety recall initiated in March 2012. The recalled Naturalyte Liquid Acid Concentrate and Naturalyte GranuFlo (powder) Acid Concentrate was manufactured and distributed from January 2008 through June 2012.

Claims against Fresenius Medical Care include patients who have suffered injury or death as a result of using GranuFlo and/or NaturaLyte products during hemodialysis.

Ok, that’s a wrap folks…Happy Easter and all the jazz!

Week Adjourned: 3.18.16 – ADT, Hip Replacements, Risperdal

Top Class Action Lawsuits

Questionable Security? Heads up all you folks that have residential ADT security systems. The company got hit with a consumer fraud class action lawsuit this week, over claims they overstate the safety of its systems. That’s comforting.

Filed by Santiago L. Hernandez, individually and for all others similarly situated, the ADT lawsuit contends that, despite claims by ADT—that its home security equipment and monitoring services use the most innovative and advanced technology on the market—ADT’s wireless signals are both unencrypted and unauthenticated, and unauthorized third parties can easily intercept and interfere with them.

According to the lawsuit, Hernandez and other ADT consumers in the class are more vulnerable and less safe than ADT leads them to believe. The suit claims violation of the Florida Deceptive and Unfair Trade Practices Act, negligent misrepresentation and unjust enrichment.

The case is US District Court for the Southern District of Florida Case number 9:16-cv-80335-WJZ.

Top Settlements

Hip-Hip-Hooray! Well, sort of–though it probably doesn’t go far enough to take away all that the victims have been through. But here’s a whopper. To the tune of $502 million. That’s the verdict awarded to five plaintiffs in a bellwether trial concerning Johnson & Johnson’s DePuy Pinnacle metal-on-metal hip replacement devices.

The math goes $142 million in compensatory and $360 million punitive damages. The verdict was reached following 37 days of testimony in the US District Court for the Northern District of Texas Dallas Division.

The trial consolidated cases involving five separate plaintiffs who are residents of Texas. The lawsuits, including those of more than 7,000 plaintiffs nationwide in the multidistrict litigation (MDL), claim that the DePuy implants were defective and caused metal debris to enter into patients’ bloodstreams, causing severe injuries and sometimes leading to revision surgery.

According to attorneys for the plaintiffs, the evidence in the testimony against J&J was ground breaking, particularly in relation to what, in effect, amounted to hundreds of millions of dollars in bribes to orthopedic surgeons to use and recommend this product.

Plaintiffs’ attorneys also discovered several instances in which physicians lied in medical clinical testing of the devices and forged consent forms for patients who were using the product to lie about the results the patients experienced with the product.

Risperdal Settlement… Ortho-McNeil-Janssen Pharmaceuticals also got hit with a large Risperdal settlement this week—$124 million to be precise, ending nine years of litigation dealing with allegations it illegally promoted the anti-psychotic prescription drug Risperdal for unapproved or “off-label” uses. Ah, that old chestnut.

The charges were brought by South Carolina Attorney General Alan Wilson. In February he announced that Ortho-McNeil-Janssen will pay $124,324,700 in satisfaction of the settlement to South Carolina.

According to the lawsuit, Ortho-McNeil-Janssen employed aggressive marketing techniques to persuade doctors to prescribe the drug to their patients, including children with disabilities and elderly dementia patients. The company sent more than 7,000 letters to doctors, allegedly overstating the efficacy of Risperdal without FDA approval.

Risperdal (generic name Risperidone) is an atypical antipsychotic that works by changing the activity of certain natural substances in the brain. Developed by Janssen Pharmaceuticals, a subsidiary of Johnson & Johnson, Risperdal was approved by the FDA in 1993 for the treatment of schizophrenia in adults. Risperdal side effects include gynecomastia (male breast growth), tardive dyskinesia, high blood sugar and diabetes, stroke, heart attack and even death. As of September 2012 more than 420 Risperdal lawsuits had been filed, 130 of which are gynecomastia claims.

Ok, that’s a wrap folks…Have a good one. See you at the Bar!

Week Adjourned: 3.11.16 – J Crew, Swedish Med Center, Wheelchair Scam

Top Class Action Lawsuits

It’s on Sale—or—Maaaybe Not? J Crew got hit with a consumer fraud class action lawsuit this week, alleging the clothing retailer set an arbitrary “valued at” price for every item offered for sale on the J. Crew Factory store website. BUT—of course there’s a “but” —prices depicted as “original” or “regular” are allegedly misleading because no items are ever sold at the “valued at” price, but rather always sold at a price lower than the “valued at” price. So that would make those prices the regular prices, no?

Filed by Joseph A. D’Aversa, individually and for all others similarly situated, the J Crew sale pricing lawsuit further claims the defendants state their advertised sale prices are only available for a limited time. However each sale is immediately followed by another, similar sale. Consequently, the prices on J. Crew’s factory website are not discounts at all, but in fact the regular prices of the items, the complaints states, in violation of federal regulations prohibiting the advertising of “phantom” price reductions.

The lawsuit claims violations of consumer protection statutes in several states, violations of the New York General Business Law, violations of the New Jersey Consumer Fraud Act, breach of contract, breach of good faith and fair dealing, breach of express warranty, unjust enrichment and negligent misrepresentation.

Nasty, Negligent, and Not the First Time, Apparently. The Swedish Medical Center, in Denver, is facing a class action lawsuit alleging negligence regarding the hiring of an employee who, the three named plaintiffs Angelica Porras, Catherine Pecha and Gary Wolter, claim exposed themselves and other patients at the center to HIV, hepatitis B or hepatitis C.

Specifically, the Swedish Medical Center lawsuit claims the hospital negligently hired Rocky Allen, who has been indicted on two federal counts alleging he was caught stealing a syringe filled with fentanyl from an operating room. According to court documents, by the time the hospital hired Allen, he had been fired from four other hospitals. Further, he was court-martialed in 2011, when he was serving with the Navy in Afghanistan, for the theft of fentanyl. Court testimony revealed that he is carrying an undisclosed blood borne pathogen.

“By the time Allen appeared on the doorstep of SMC in August 2015 looking for a job as a surgical technician, all the warning signs of what would later occur at SMC were present,” the lawsuit states. “Allen already had been terminated by numerous other hospitals for the exact conduct that has now exposed thousands of SMC patients at an increased risk of blood borne pathogens.”

According to the complaint, despite having received negative test results for the three viruses, the three named plaintiffs were told that they remain at risk and should pursue continued blood testing.

The lawsuit claims the hospital negligently inflicted emotional distress and failed to properly supervise Allen after hiring him. The plaintiffs are seeking class-action status for anyone who had surgery at Swedish between August 17 and January 22. The hospital has offered free blood tests to 2,900 patients.

The named defendants are Swedish and its parent companies, Hospital Corp. of America and HealthONE of Denver Inc. The lawsuit also notes that another HealthONE hospital, Rose Medical Center, has experienced a drug-theft scandal. Yes, seem to remember that one.

Top Settlements

Wheelin’ & Dealin’ in the Worst Way? This is seriously uncool—Michael Mann, owner of Seattle-based Wheelchairs Plus, Inc., has been ordered to pony up $2.7 million to the Washington State Attorney General Bob Ferguson, who brought charges of consumer fraud against the company for overbilling Medicaid for some dodgy wheelchairs.

The facts, as reported, are that Mann billed the Medicaid program for 119 new wheelchairs, when in fact used wheelchairs were delivered to the disabled and poor across the state of Washington.

According to the allegations, between 2009 and 2012 Mann purchased used wheelchair parts from places including Craigslist and nursing home “graveyards.” He then assembled the mismatched parts into wheelchairs, painted them and sold them as new.

Ferguson’s office claims that Mann billed Medicaid as if these wheelchairs were new, unlawfully receiving $550,000 from the Medicaid program.

Wonder if there will be any new wheelchairs to replace the “recycled” ones?

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

Week Adjourned: 3.4.16 – Tampon Tax, Macy’s, HSBC

Top Class Action Lawsuits

They’re Taxing What?? Not that I have a bias or anything, but it’s about time! Yup—it’s time to end the tampon tax! And five women in New York are just the gals to do it. The filed a tampon tax class action against the New York State Department of Taxation and Finance, claiming that the 4% sales tax charged by the state on tampons and other feminine hygiene products violates the Equal Protection clauses of the United States and New York State Constitutions. The suit cites the fact that the same sales tax does not apply to “medical” items like Rogaine, adult diapers and dandruff shampoo. Seriously—Rogaine has a “medical” classification?

The ladies are seeking a permanent tax exemption for feminine hygiene products and a full tax refund for all women who have purchased tampons or pads in New York over the last two years.

According to the lawsuit, most women spend $70 on tampons and pads annually. The state of New York collects $14 million a year from taxes on tampons from 5 million New Yorkers. That’s a lot of dough, Joe.

Apparently, New York State exempts medical items from its sales tax, but excludes pads and tampons from the “medical” classification. According to the Department of Taxation’s guide for retailers, feminine hygiene products are “generally used to control a normal bodily function and to maintain personal cleanliness.” This differentiates them in the fine print from over-the-counter medication for a “vaginal infection,” which treats a “specific medical condition.” So, how do they define “treat” ? (Conveniently, it would seem. Pardon my bias).

However, the plaintiffs contend that pads and tampons are necessary for the preservation of health, especially when compared to medicated Chapstick for a coldsore, by way of example.

In February, legislation was introduced that would exempt feminine hygiene products like tampons and pads from state sales tax, calling the tax “a regressive tax on women and their bodies that harkens back to a time when the laws were written by men for women.”

Go get’em!!!

Wage & Hour Woes for Macy’s… Macy’s got hit with a proposed employment class action alleging unpaid wages and overtime and failure to pay minimum wage this week. Lost count of how many retailers have been slapped with these charges.

This suit is brought by former employee Yulie Narz, who alleged in the complaint that Macy’s Stores West Inc. has “systemic illegal employment practices” in place, enabling the retailer to not pay employees for mandatory security checks of their bags conducted before meal breaks and at the end of shifts.

Narez worked for Macy’s from November 2013 through July 2015, according to the lawsuit. She also alleges the retailer fails to pay employees, who work shifts of five hours or more, for a 30-minute meal break or 10-minute rest breaks for every 3.5 hours of work, as required by California labor law. This has resulted in a loss of overtime pay and generally improper wage statements, according to the complaint.

“Plaintiff is informed and believes … that defendants had a consistent and uniform policy, practice and procedure of willfully failing to comply with [labor laws],” Narez states. “Defendants … have acted intentionally and with deliberate indifference and conscious disregard to the rights of all employees in receiving minimum wages and overtime wages for all hours worked.”

The case is Narez v. Macy’s West Stores, Inc., number 5:16-cv-00936, in the U.S. District Court for the Northern District of California.

Top Settlements

Homeowners Win One. Here’s a win for the good guys. A force-place insurance settlement has been reached between HSBC and the office of the Massachusetts Attorney General Maura Healey for $4 million, ending allegations that HSBC took illegal commissions and kickbacks for forced-place insurance policies. Nice…and why not, right?

Reportedly, thousands of borrowers were allegedly improperly charged force-placed insurance premiums, however, the affiliate did not perform the traditional functions of an insurance company. HSBC allegedly received compensation tied to force-placed insurance premiums until 2012, which the AG’s office believes was a conflict of interest.

The settlement will provide $2.67 million in restitution to affected Massachusetts homeowners, and $1.4 million to the state of Massachusetts.

Ok, so that’s a wrap folks… The sun is over the yard-arm and cocktails are in order—see you at the Bar!

Week Adjourned: 2.26.16 – Walmart, Mercedes, J&J Talc Powder

Top Class Action Lawsuits

Pulp Reality at Walmart? If this is true, it has to be some kind of new low—even for Walmart. The discount retail behemoth got hit with a proposed consumer fraud class action this week, over claims its in-house brand of allegedly pure grated parmesan cheese contains a significant amount of fillers such as wood pulp. OMG.

So, in the spirit of, well, less is more—let’s cut through the filler and get to the allegations. Filed by Marc Moschetta of Dutchess County, New York, the Walmart parmesan cheese complaint states that the labels on Walmart’s Great Value brand grated parmesan cheese contains 100 percent parmesan cheese, and is false. The cheese is sold at Walmart stores across the US.

Are you sitting down? According to the suit, independent lab testing on the cheese product has shown it contains “significant quantities of adulterants and fillers” and between 7 percent to 10 percent of the cheese is made of cellulose, a filler and anti-clumping agent derived from wood pulp.

“Defendant makes only one marketing representation on the label: the product is ‘100%’ grated parmesan cheese [and] consumers, including plaintiff, reasonably rely on the label and believe defendant’s statement that the product consists of ‘100%’ parmesan cheese,” court documents state. “Because the product does in fact contain fillers and substitutes, the ‘100%’ parmesan claim is literally false and is also misleading to consumers.”

Moschetta stated that Walmart’s sale of the grated cheese was executed through deceptive marketing, labeling and advertising and the retailer has violated New York business laws, various consumer protection laws in a majority of the contiguous US, breached an implied warranty and benefited from unjust enrichment.

The complaint is seeking certification of both a nationwide class and a New York subclass of consumers and that Walmart be ordered to pay unspecified treble damages and punitive damages.

The case is Moschetta v. Wal-Mart Stores, Inc., number 7:16-cv-01377, in the U.S. District Court for the Southern District of New York.

O Lord, won’t you Give me a Clean Diesel Car? Mercedes, seemingly the only automotive maker not be sued for defective airbags, ignition switches and/or uncontrolled acceleration—to name but a few issues among the litany of defective automotive class actions currently winding their way through the courts, found itself on the end of a consumer fraud class action lawsuit this week.

What for, you ask? Allegations the company knowingly programs its Clean Diesel vehicles to emit illegally high levels of nitrogen oxide. Specifically, the Mercedes emissions lawsuit claims that like Volkswagen defeat devices certain Mercedes models contain a device that causes the vehicles to violate US emissions standards when run at cooler temperatures, making them less environmentally friendly than advertised.

The lawsuit was filed by a Mercedes owner in Illinois, who claims the automaker uses the device in its BlueTec cars to turn off a system meant to reduce nitrogen oxide in its exhaust. The law firm representing the plaintiff said in a statement that on-road testing had shown Mercedes’s Clean Diesel cars produced average on-road NOx emissions that were 19 times above the U.S. standard, with some instantaneous readings as high as 65 times more than the US limit.

According to the complaint, the device in Mercedes’s diesel models turns off pollution controls at temperatures below 50 degrees Fahrenheit (10 Celsius), allowing the autos to violate emissions standards.

Further, according to a study done by independent testing agency TNO for the Dutch Ministry of Infrastructure and the Environment, in real-world testing, the Mercedes C-Class 220 emits more nitrogen oxide than measured in laboratory results.

“Mercedes never disclosed to consumers that Mercedes diesels with BlueTEC engines may be ‘clean’ diesels when it is warm, but are ‘dirty’ diesels when it is not,” according to the complaint. “Mercedes never disclosed that, when the temperature drops below 50 degrees, it prioritizes engine power and profits over people.”

The lawsuit also contends that even if Mercedes is able to make the cars compliant with emissions standards, those who drive them will suffer harm because the vehicles won’t perform as promised or advertised.

The plaintiff is seeking to represent a nationwide class of includes all US-based residents and entities that bought or leased an affected vehicle as of this month, and a court order compelling Mercedes to recall the affected models or replace them for free, in addition to unspecified damages.

Among the enumerated models are Mercedes’s ML320 and 350 sport utility vehicles, its E- and S-Class cars, and GLE crossovers.

The lawsuit is Lynevych v. Mercedes-Benz USA, U.S. District Court, District of New Jersey.

Top Settlements

Pyrrhic Victory for Talc Powder Ovarian Cancer Victim. Here’s a stunner—in more ways than one—and it’s just the beginning for J&J. This week saw $75 million in damages awarded against the company in a lawsuit suit alleging the talcum powder Jacqueline Fox used caused her to develop ovarian cancer.

Fox claimed that for over 35 years she had used baby powder made by J&J and another talc product for feminine hygiene until she was diagnosed with ovarian cancer. She passed away at the age of 62, on October 6, 2015.

Her case was heard by a jury in St. Louis, Missouri, and is just one of more than 60 cases consolidated into a single suit alleging cancer caused by talcum powder.

During the trial, Fox’s attorney presented a document which revealed J&J knew their talcum powder was causing cancer. The letter, dated from 1997, was by a former J&J consultant and it warned the responses by the company to findings from no less than nine scientific studies could result in the talc industry being compared to the cigarette industry.

While the jury found 10-2 against J&J on claims of failure to warn, negligence and conspiracy, it did not find talc manufacturer Imerys Talc America Inc, another defendant, liable.

Another woman is scheduled to go to trial on April 11, 2016. Attorneys for Fox said that J&J is currently facing hundreds of lawsuits over talcum powder use.

Lawsuits have been filed against some talc companies alleging talc powder contains asbestos and consumers were not adequately warned about the risk of asbestos in talc powder. Although home talcum products are supposed to be asbestos-free, there are concerns some talcum products still contain asbestos. Furthermore, it can take decades for exposure to asbestos products to result in mesothelioma and other illnesses, meaning people who were exposed in the 1970s may still be diagnosed with asbestos-related illnesses.

Ok…So, that’s a wrap folks… Cocktails are in order—see you at the Bar!

Week Adjourned: 2.19.16 – Amazon, Maytag, Uber

Top Class Action Lawsuits

Amazon Primed for a Lawsuit? How much was that again? Amazon got hit with a consumer fraud class action lawsuit this week, alleging false advertising and consumer fraud. Brought by named plaintiff Gregory Harris, the lawsuit claims Amazon charged Harris, and others similarly situated, fees that were additional to advertised products’ purchase prices. Heard this one before? Oh yeah baby!

Specifically, Harris claims that Amazon represents to consumers they can use its services to purchase products directly from its website at no cost to the consumer besides the cost of the product. However, the lawsuit alleges, Amazon.com charged Harris and others in the class additional fees, specifically an “Amazon Prime” membership fee.

The Amazon lawsuit claims violations of the Electronic Funds Transfer Act, violations of California’s Consumer Legal Remedies Act, and violations of California’s Unfair Competition Law.

Harris and others in the class seek injunctive relief, actual damages, punitive and statutory damages, interests, attorney fees and other costs of the suit. The case is: Superior Court of California County of Los Angeles Case number BC606984

All Coming out in the Wash..? Round and round and round we go… what number lawsuit is this for Whirlpool? We’ve lost count. This consumer fraud class action lawsuit alleges the company misrepresents the efficiency of certain models of its washing machines.

Specifically, that Whirlpool promoted certain Maytag Centennial model washing machines as Energy Star-qualified, labeling the machines with the Energy Star logo. However, these washing machine models do not meet the Energy Star efficiency standards and in fact use more water and energy than stated on the labels. Oh, that’s great. So, just slap a sticker on and you’re good to go, is that the idea? Maybe…

According the Whirlpool Maytag lawsuit, the US Department of Energy requires that Energy Star-qualified washing machines must use approximately 50 percent less water and 37 percent less energy than standard models. However, the plaintiffs claim that he and others similarly situated paid more for these models but did not save as much as they should have on water and energy bills over time using the machines.

Filed by Walt Famular, individually and for all others similarly situated, the lawsuit alleges breach of express warranty, unjust enrichment, and violations of the New York General Business Law.

The lawsuit seeks statutory, compensatory and punitive damages, plus interests, restitution and disgorgement, injunctive relief, attorney fees and other costs of the suit. U.S. District Court for the Southern District of New York Case number 7:16-VC-00944-VB.

Plaintiffs are represented by attorneys Scott A. Bursor, Joseph I. Marchese, Frederick J. Klorczyk III and Neal J. Deckant of Bursor & Fisher PA in New York.

Top Settlements

Uber Feeling the Sting…of high fees—in the form of a settlement, that is. The ride share and taxi company has agreed to pay $28.5 million to settle a consumer fraud class action lawsuit involving some 25 million riders who allege it mislead customers about its fees and safety procedures.

Specifically, the lawsuit claimed that Uber, which uses a smartphone app to receive ride requests and then sends the requests to its drivers, charged an extra “safe rides fee” to cover what the company called “industry-leading background checks” on its drivers.

Additionally, under the terms of the Uber settlement, Uber will not describe or title any fee that it charges for its services, including any charge for its rideshare services, as the “safe rides fee.” Further, the company agreed that it will not use the terms “best available,” “industry leading,” “gold standard,” “safest” or “best-in-class” in connection with its background checks, in any of its commercial advertising.

Uber has also agreed not to use the phrases “safest ride on the road,” “strictest safety standards possible,” “safest experience on the road,” “best in class safety and accountability,” “safest transportation option,” “background checks that exceed any local or national standard” or “safest possible platform” to describe its rideshare services.

Uber said it will rename the safe ride fee a “booking fee,” explaining that “It will be used to cover safety as well as additional operational costs that could arise in the future.”

Better buckle up!

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

Week Adjourned: 2.12.16 – Nissan, Target, TVM

Top Class Action Lawsuits

Heads Up Owners of 2011-2012 Nissan Frontier Trucks… Nissan North America got hit with a defective automotive class action lawsuit this week over claims its side air bags are, well, just a little too enthusiastic. Plain English—the air bags deploy unnecessarily.

Filed by plaintiff Bobette Brantley, the Nissan airbag lawsuit asserts that the automaker designed side air bags in 2011-2012 Nissan Frontier trucks to inflate in rollover and near rollover conditions. However, it failed to warn consumers about how sensitive the air bags and seatbelt pretensioner igniters actually are. The seatbelt pretensioner igniters tighten any slack in seatbelts during an accident.

The lawsuit states that a defect in the class vehicles causes the side curtain air bags to deploy simultaneously and unnecessarily while also causing the seat belt pretensioner igniter to deploy. Once this happens, the vehicles are no longer safe to drive and consumers must pay thousands of dollars to have extensive repair work done. Adding insult to injury, Brantley also claims that Nissan refuses to pay for the resulting repairs.

According to the lawsuit, “The deployment of the side curtain air bags and the seatbelt pretensioner igniters is extremely distracting to drivers of class vehicles. The distraction is of such a magnitude that drivers of class vehicles are at risk of losing control of class vehicles, greatly increasing the possibility of a traffic accident, and injury.”

In the suit, Brantley states that while she was driving her vehicle in December, in a way that she said Nissan represented the vehicle can be driven, the side curtain air bags suddenly and unexpectedly deployed, causing her to nearly lose control of the vehicle. As a result, she spent thousands of dollars to restore her Frontier to a safe, driveable condition.

Brantley asserts that Nissan was aware of the alleged defect as a result of consumer complaints, internal testing and dealership repair records. However, she claims, the automaker failed to disclose the defect and, in fact, actively concealed it from consumers.

The suit further claims that evidence of Nissan’s knowledge of the alleged defect can be seen in the owner’s manual for the Frontier, which states that the curtain air bags are designed to inflate in rollover or near rollover conditions and can inflate due to certain vehicle movements such as severe off-roading.

“It is plaintiff’s contention, based upon plaintiff’s own experiences, and based upon plaintiff’s awareness of the complaints of other class members, that the class vehicles are too sensitive. As a result the ‘near rollover conditions’ design threshold, which signals the side curtain air bags and seatbelt pretensioner igniters to deploy, signals deployment under conditions where there is no true risk of a rollover,” the complaint states.

Brantley asserts Nissan refused to warn customers about the alleged defect, refused to remedy the defect and refused to compensate customers for any damages resulting from the defect.

The suit seeks certification of a class consisting of everyone who has bought or leased a class vehicle, as well as an order holding Nissan financially responsible for the defect, enjoining the automaker from continuing its deceptive practices, requiring the automaker to fix the defect and making Nissan disgorge part or all of its profits received from the sale or lease of the class vehicles.

The case is Brantley v. Nissan North America Inc. et al., case number BC609400, in the Superior Court of California, County of Los Angeles.

Target not on Target with Overtime Pay? The discount retailer got hit with an employment class action lawsuit this week. Filed in New York, by Robert LaPointe Jr, on behalf of himself and others similarly situated, the Target lawsuit claims violations of New York Labor Law, specifically, that Target failed to compensate him for overtime worked.

According to the suit, LaPointe worked for Target as an operations group leader in the company warehouses in New York from 2011 to 2015. While at work, the suit states that LaPointe regularly worked in excess of 40 hours per week.

LaPointe asserts that Target failed to pay an overtime premium to him and others in the class for additional hours worked. This, the suit states, is because the employees were misclassified as exempt from the overtime requirements of the New York Labor Law. Additionally, the suit claims Target failed to provide accurate wage statements.

LaPointe and others in the class seek to recover unpaid overtime wages, interests, statutory penalties, injunctive relief, attorney fees and other court costs.

The case is U.S. District Court for the Southern District of New York Case number 1:16-cv-00656-VSB.

Top Settlements

TVM Award for the Victim…This settlement makes two out of two for the plaintiffs. A $13.5 million verdict has been awarded by a Philadelphia jury in the second transvaginal pelvic mesh injury lawsuit pending against Johnson & Johnson, and its subsidiary Ethicon, makers of the defective pelvic mesh.

The jury agreed that an Ethicon Inc. transvaginal tape product, known as TVT, was not reasonably safe, and that plaintiff Sharon Carlino’s physician would never have implanted the product had he been aware of its risks.

In her suit, Carlino claimed that as a result of having the defective pelvic mesh implanted, she was in near constant pain and discomfort, and was unable to have sex.

The transvaginal mesh verdict is the second damage award against Ethicon. The company is facing nearly 180 cases consolidated as part of a mass tort program in Philadelphia County’s Court of Common Pleas, which began to go to trial in December.

In the initial case, the jury awarded $12.5 million to the plaintiff, agreeing that Ethicon’s Prolift pelvic mesh product was negligently designed and that a physician who implanted the product in plaintiff Patricia Hammons in 2009 received inadequate warnings about the risks.

This most recent verdict returned for Carlino includes $10 million in punitive damages, $3.5 million in compensatory damages, and another $250,000 to Carlino’s husband for loss of consortium.

The case is Carlino et al. v. Ethicon Inc. et al., case number 130603470, in the Court of Common Pleas of the State of Pennsylvania, County of Philadelphia.

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