Week Adjourned - Part 13

Week Adjourned: 9.4.15 – Ashley Madison, Safeway, Schneider Drivers

Top Class Action Lawsuits

It Takes a Brave Man… A brave folk has manned up and filed a lawsuit against Ashley Madison in the US—this one in Alabama. The data breach class action, filed in federal court, claims the site and its owners and operators failed to protect its customers’ data or promptly alert them of the data hack that occurred in July. You think? The cyber attack publicly exposed information on 37 million Ashley Madison members. Oh yeah baby—that’s bad.

The lead plaintiff, who filed under the pseudonym “John Doe,” is claiming that Toronto-based Avid Life Media Inc, the parent company of Ashley Madison, was negligent and violated Alabama state and federal laws by not implementing proper security measures to protect its customers’ information and by not deleting its members’ data even after they paid $19 to have their information taken off the website.

According to the Ashley Madison lawsuit, in 2012 the plaintiff created an account with Ashley Madison. At that time he was not in a relationship, currently he is engaged. He states he became aware his information had been made public on August 21, roughly the same time his friends, customers and neighbors alerted him they were aware of his account. Doe contends he and his fiancée have also received a number of embarrassing messages from friends and family through social media. Ok—that’s not nice.

“Plaintiff was not in a relationship at the time he accessed the site, however, he is now in a committed relationship with his soon to be wife, and they have suffered much embarrassment and emotional distress as a result of Ashley Madison’s failure to protect Plaintiff’s private information,” the complaint states.

Doe claims that by allegedly misrepresenting to him that it had protected his data and deleted his account information when it hadn’t, Ashley Madison has violated the Federal Stored Communications Act and Alabama’s Deceptive Trade Practices Act.

Doe is also asserting breach of implied contract, bailment, conversion, fraud and misrepresentation and seeks compensatory and punitive damages. The case is John Doe v. Avid Life Media, Inc. et al, case number 6:15-cv-01464, in the U.S. District Court for the Northern District of Alabama.

You know, the truth really is stranger than fiction—you just can’t make this stuff up.

Top Settlements

Would you Like Those Delivered? Hell yes! And make sure the check’s in with the groceries. A big win for consumers who purchased groceries for delivery from Safeway—a federal judge in California has ruled that Safeway must pay about $30 million in damages to named plaintiff Michael Rodman and class members, because the grocery chain has been found liable in a breach of contract consumer fraud class action lawsuit. The lawsuit was brought by Rodman and fellow customers who allege the grocery chain overcharged for groceries purchased for delivery: it has promised price parity with store bought merchandise.

In the ruling, U.S. District Judge Jon S. Tigar held that $30 million is roughly the sum of what Safeway made by concealing markup prices for groceries delivered to class members from April 2010 to December 2012.

However, Judge Tigar ruled that Safeway was not liable for customers who used its delivery service prior to 2006 when the service was run by a third-party vendor.

“Class members are entitled to recover the aggregate amount of the difference between the prices charged during the class period for items purchased in the online store as compared to the price customers would have been charged for those items in the physical store from which they were selected and delivered,” Judge Tigar ruled.

The case is Rodman v. Safeway Inc., case number 3:11-cv-03003, in the U.S. District Court for the Northern District of California.

Truck Drivers Gettin’ a Break… Now here’s a result—to the tune of $28 million—a settlement has been reached in an employment class action lawsuit pending against Schneider National Carriers Inc. The lawsuit was brought by more than 6,000 California truck drivers who alleged the company had violated state wage-and-hour laws and failed to provide meal and rest breaks.

The plaintiffs are California-based truckers who worked for Schneider as intermodal, dedicated or regional drivers from November 2004 to the present.

As a class, they have asked the court to approve the settlement, thereby ending the litigation which began in 2008. A final hearing is scheduled for late September.

Under the proposed Schneider National Carrier settlement terms, 73 percent of the $28 million, or about $20.5 million, will be paid to settle claims made by the so-called dedicated and intermodal driver subclasses. The remaining $7.56 million would be used to settle the claims of the regional driver subclass.

“This settlement represents a substantial recovery for the class, and a well-crafted compromise of the divergent positions of the parties,” the motion states, and: “clearly meets, and exceeds, the standards for preliminary approval.”
The case is Morris Bickley et al. v. Schneider National Carriers Inc., case number 4:08-cv-05806, in the U.S. District Court for the Northern District of California.

Ok—That’s a wrap folks…Happy Labor Day—See you at the Bar!

Week Adjourned: 8.28.15 – Keyless Ignitions, Washio, Starkist Tuna

Top Class Action Lawsuits

Were Car Makers Keyless & Clueless? Heads up—Anyone with a keyless system for their Toyota, Ford, Nissan, Honda, BMW, General Motors, Volkswagen, Mercedes-Benz, or Hyundai—a defective automotive class action lawsuit has been filed against these car makers alleging that a flaw in the design of keyless fob systems has led to 13 documented deaths from carbon monoxide poisoning. The plaintiffs estimate that at least 5 million vehicles are affected by the alleged defect. Got that? Read on.

According to court documents filed in California court this week, the plaintiffs claim that reasonable drivers misunderstand that keyless-ignition fobs do not turn their vehicles engines off. Further, the cars don’t have a safety mechanism to automatically turn off the engine after it’s been left idling for a set amount of time. When the car engines are left running in owners’ garages, it can lead to in an increased risk of carbon monoxide poisoning.

“As a result, deadly carbon monoxide, often referred to as the ‘silent killer’ because it is a colorless, odorless gas, can fill enclosed spaces and spread to the attached homes,” the plaintiffs said. “The results have been at least 13 documented deaths and many more serious injuries requiring hospitalization, all from carbon monoxide poisoning.”

According to the keyless ignition fob lawsuit, in cars that use traditional keys, the engine can no longer operate once it’s removed from the vehicle. By contrast, keyless-ignition fobs can remotely turn on the engine, but have nothing to do with turning off the engine. Therefore, drivers can park their cars and exit with the keyless fob and still leave the engine running no matter how far the fob goes from the car.

The lawsuit alleges the defendants and their research and design companies installed the keyless fob systems without instituting proper safeguards and warnings.

Further, the plaintiffs contend that the lack of an auto-off feature is not mentioned in the car manuals, therefore failing to warn of the risk for carbon monoxide poisoning. The cars have no audible warnings alerting drivers that the engine is still running.

The plaintiffs assert that individuals personal injury lawsuits have been filed over the lack of an auto-off feature, resulting in confidential settlements. Similarly, consumers have filed complaints with the National Highway Traffic Safety Administration. However, the plaintiffs contend the automakers haven’t taken action in response to the complaints.

In fact, the plaintiffs assert that the automakers have known for years about the deadly consequences of drivers’ leaving their vehicles without hitting the start/stop button used in keyless-ignition cars, but that they refuse to act.

The lawsuit states that the auto-off feature is feasible and has already been implemented by some of the automakers. The plaintiffs claim that while some new vehicles are now outfitted with the auto-off system, the automakers are doing nothing to rectify older models or notify drivers about the potential safety risk.

The lawsuit asserts national claims for negligent failure to recall and unjust enrichment, as well as state claims for fraudulent concealment, violation of state consumer protection acts and breach of implied warranty, among others.

FYI—The case is Draeger et al. v. Toyota Motor Sales USA Inc. et al., case number 2:15-cv-06491, in the U.S. District Court for the Central District of California.

Washio Employees File Suit against the App’s Spin Cycle. This week, a potential employment class action lawsuit has been filed against Washio Inc., a mobile laundry application, over allegations it pays its employees below the minimum wage. Further, the complaint claims that Washio misclassifies its standard employees as independent contractors to avoid state labor laws. Washio, Uber, Lyft—are these the new face of employment law violators?

The Washio lawsuit was filed by Akil Luqman, a former Washio employee who worked for the company between March and June picking up and delivering customer laundry. In the lawsuit, he asserts the company paid employees for each customer stop, in violation of minimum and overtime wage laws. Further, he claims the company denied rest and break periods, failed to fully reimburse work expenses and issue correct pay stubs, and classified full-time hourly workers as independent contractors.

The complaint states that Washio’s classification of its employees as independent contractors “was in fact subterfuge by [Washio] to avoid granting employee status” because the company controlled the amount, time and place of the work performed and the level of pay the plaintiffs received.

The complaint also claims that Washio was in violation of California labor law because it failed to pay overtime or provide rest periods and breaks, despite frequently scheduling employees to work more than eight hours in a day and/or 40 hours in a week.

According to the complaint, Washio still operates in violation of state and federal labor laws, and therefore, the plaintiffs are seeking a permanent injunction halting the company’s actions, and an order requiring Washio to provide the names and contact information for all current and former employees that may be included in the proposed class.

Additionally, plaintiffs are seeking unspecified damages related to lost wages, undisclosed withholdings, unpaid overtime, unreimbursed expenses, denial of proper rest and break periods, and legal fees.

Luqman is represented by Kevin T. Barnes and Gregg Lander of The Law Offices of Kevin T. Barnes. The case is Luqman v. Wash.io Inc., case number BC592428, in the Superior Court of the State of California, County of Los Angeles.

Top Settlements

Here’s One for Every Tuna Lover—Sorry—Tinned Tuna Lover. A consumer fraud class action settlement has been reached between Starkist and consumers who alleged the company under-filled some of its 5-ounce canned tuna products by several tenths of an ounce. According to federal law a 5 ounce can of tuna must contain an average of 2.84 to 3.23 ounces of tuna, depending on variety.

According to the Starkist tuna settlement, if you purchased one or more of the StarKist Products between from February 19, 2009 through October 31, 2014, you may be eligible as a class member:

One or more 5 oz. can of Chunk Light Tuna in Water,

One or more 5 oz. can of Chunk Light Tuna in Oil,

One or more 5 oz. can of Solid White Tuna in Water, or

One or more 5 oz. can of Solid White Tuna in Oil (collectively, the “StarKist Products”)

Class Members who wish to file a claim must complete the appropriate form online or by mail, which must be postmarked no later than November 20, 2015 in order to be considered for benefits.

To file a claim and learn more about the settlement visit https://www.tunalawsuit.com

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

Week Adjourned: 8.21.15 – Ashley Madison, Time Warner, Lennox

Top Class Action Lawsuits

Were you “Outed”? …by the massive data breach of Ashley Madison? Are you one of some 37 million people who got caught with their firewalls down—sorry Ashley Madison’s firewalls? Well, further to all the talk about filing a class action, this week a data breach lawsuit was filed against the website.

The Ashley Madison lawsuit, filed on behalf of all Canadian subscribers, targets the dating website for married people as well as Avid Dating Life, Inc. and Avid Life Media, Inc., the corporations who run the website. The lawsuit is seeking $750 million in general damages and $10 million in punitive damages.

Eliot Shore, a widower from Ottawa, is the plaintiff in the lawsuit. He signed up with the website “for a short time in search of companionship” but, allegedly, never went on a date.

The plaintiffs are seeking compensation and access to justice for all affected. “Another major aspect of this is behaviour modification; (our clients) went to this website being promised anonymity and confidentiality, but their privacy has been violated. Corporations need to be accountable for what’s happened so that others can follow,” attorneys for the plaintiffs stated. True enough.

TWC got TCPA Troubles? Time Warner Cable Inc,(TWC) got hit with a putative class action lawsuit this week, filed by a former customer who asserts the company violated the Telephone Consumer Protection Act (TCPA). Specifically, the plaintiff, Raquel S. Mejia, alleges TWC used an autodialer to make at least two unsolicited sales calls a day to her cellphone in an attempt to win her business back.

Mejia claims she stopped using TWC in 2007 and never gave her consent to TWC to call her phone, nor did she have any business relationship with the cable provider after 2007.

According to the Time Warner Cable lawsuit, Mejia states that there were several indicators that the calls were made by autodialers, in violation of the TCPA. Specifically, she would sometimes answer a call and only hear background noise at what appeared to be a call center. A live call center representative would often take a few moments before engaging her, an indication they were not actively aware of an automatic dialing system’s activities, she claims.

“Based on the circumstances of the calls, including but not limited to the multiple calls over a short period of time, plaintiff was not immediately engaged by a live person … and defendant called despite plaintiff’s requests to defendant to stop calling (indicating a computer automatically dialed the number again), plaintiff believed defendant called her cellular telephone using an ATDS that automatically selected her number from a computer database,” the complaint states.

Stating that “the TCPA was enacted to protect consumers from unsolicited telephone calls exactly like those alleged in this case,” Mejia, on behalf of herself and all others who received similar allegedly illegal calls, is suing for an injunction against the practice and treble damages of $500 per TCPA violation. She is also seeking attorneys’ fees and costs, the complaint states.

The case is Raquel S. Mejia, individually and on behalf of all others similarly situated v. Time Warner Cable Inc., case number 15-cv-06445 in U.S. District Court for the Southern District of New York.

Top Settlements

Defective Air Conditioning Coils… remember those? A lawsuit against Lennox industries was the result and this week a settlement has been reached. The Lennox Air Conditioning lawsuit claimed the company’s air conditioning units are susceptible to formicary corrosion as a result of the deficient materials used in the manufacture of its coils. FYI—an evaporator coil is a part of an air conditioning system or heat pump system in the cooling mode.

Lennox denies all of the claims in the lawsuit, but has agreed to the settlement to avoid the cost and risk of further litigation.
The Lennox settlement class includes all U.S. residents who, between October 29, 2007 and July 9, 2015, purchased at least one new uncoated copper tube Lennox brand, Aire-Flo brand, Armstrong Air brand, AirEase brand, Concord brand, or Ducane brand evaporator coil, covered by an Original Warranty, for their personal, their family, or their household purposes, that was installed in a house, condominium unit, apartment unit, or other residential dwelling located in the United States.

Original Coils may have been purchased separately, as part of an air handler, or they may have been included as part of a Packaged Unit.

The final approval hearing is scheduled for December 2, 2015. The lawsuit is: Thomas v. Lennox Industries Inc., United States District Court for the Northern District of Illinois, Eastern Division, Case No. 13 CV 7747.

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

Week Adjourned: 8.14.15 – Tide Pods, MegaRed, SEPTA

Top Class Action Lawsuits

Are Tide Pods staining your laundry? According to a consumer fraud class action lawsuit, the candy-colored laundry detergent packets may end up staining Procter & Gamble Co’s bottom line as well. The Tide Pod lawsuit alleges that P&G’s Tide laundry pods can stain light-colored laundry. The lawsuit, filed on behalf of Lisa Guariglia, Micheline Byrne and Michele Emanuele, asserts that P&G engaged in deceptive trade practices and breached implied warranties. The complaint states that “Tide Pods have serious design defects … that cause them to produce permanent blue/purple stains on white and light-colored laundry, even when used as directed by P&G.”

In the lawsuit, Guariglia estimated that Tide Pods ruined at least $200 worth of her laundry, including towels, sheets and clothing, which had blue/purple stains that allegedly appeared after she began using Tide Pods. She further states that despite rewashing with other detergents and pretreating the stains with Shout stain remover, which is made by SC Johnson & Co., the stains remained. Similarly Emmanuele said she was unable to remove the stains she blamed on Tide Pods even with bleach. She estimated the detergent ruined at least $650 worth of towels, sheets and clothing. Plaintiff Byrne claims that in December 2012 her son and daughter had blue/purple stains on their clothes but she used Tide Pods for at least 18 more months before realizing the detergent was the cause. She estimated the detergent damaged at least $500 worth of clothing and other laundry.

The lawsuit states: “P&G failed to inform consumers, through the directions on the packaging or any other written disclosure, even when consumers use Tide Pods as instructed by P&G, that blue/purple staining will result due to defects in the design.” However, “on P&G’s own website, P&G has acknowledged that Tide Pods can cause blue/purple stains on laundry and insists that this staining can only occur when the consumer is not using the product correctly,” the suit states. The complaint cites an article in Consumer Reports magazine, published February 20, 2014, which quotes a P&G spokesperson who said such stains can be caused by not putting a Tide Pods pack into the washing machine before clothing is inserted or by overstuffing a machine with laundry. “P&G reiterated over and over, in its responses to consumer complaints, that it would not put a product on the market that would ruin laundry, that Tide Pods have been successfully tested, and it is certain that if used as directed, Tide Pods do not stain laundry,” the lawsuit states. “However, it is clear from plaintiffs’ experiences, as well as those of the customer complaints set forth above, and the hundreds of additional complaints on the Tide website, that even when used as directed, Tide Pods permanently stain white and light-colored laundry.” So—no more blaming dodgy washing on the laundry fairy! The lawsuit seeks to represent anyone in the United States who bought Tide Pods and had laundry damaged.

Is MegaRed a Mega Crock? Another wonder supplement got hit with a consumer fraud class action lawsuit this week. This one targets Reckitt Benckiser Group PLC and its subsidiary Schiff Nutrition International Inc, alleging the companies misled consumers about the health benefits of krill oil. According to the complaint, the defendants marketed the krill oil as a dietary supplement with cardiovascular benefits it does not have. Really? How unusual.

The nitty gritty is that the defendants made claims that an omega-3 fatty acid dietary supplement marketed as MegaRed would help prevent heart disease. According to the proposed MegaRed class action, these types of claims have drawn attention from the US Food and Drug Administration (FDA), which has allegedly condemned such advertisements, describing claims about omega-3’s health benefits as “false and misleading.” Well, that certainly did a lot of good.

“In conjunction with their extensive, long-term campaign of deceptive advertising and misleading statements,” the complaint states, “defendants have violated [the FDA’s] clear directives by … consistently and repeatedly falsely telling consumers that taking just ‘one small softgel per day’ may reduce the risk of coronary heart disease.” Further, the complaint cites a guideline by the American Heart Association recommending that patients consume 500 to 1,000 miligrams of omega-3 fatty acids daily to help combat heart disease. A single MegaRed capsule, the supplement’s recommended daily dose, contains only 50 mg of omega-3 fatty acids.

The proposed class action asserts the packaging for MegaRed is misleading because it claims that using “just one small softgel” of the supplement daily “may reduce the risk of coronary heart disease.” Schiff has marketed the size of the MegaRed capsules, which are slight in comparison to fish oil capsules, as having similar health benefits, which is one of the product’s main advantages. Named plaintiff in the complaint, Jeffrey Johnson, a “health-conscious individual” contends that he and others like him were misled by the marketing claims, and as a result paid a premium for the supplement, which costs significantly more than fish oil. The proposed class action complaint accuses Schiff of unjust enrichment, on behalf of a nationwide class; and violations of the California Consumers Legal Remedies Act; California Unfair Competition Law; California False Advertising Law; and California Sherman Food, Drug and Cosmetic law, on behalf of a Californian subclass. Plaintiffs are seeking an injunction prohibiting Schiff from further misleading advertisements, as well as actual and punitive damages.The case is Johnston v. Schiff Nutrition International et al., case number 3:15-cv-03669, in the US District Court for the Northern District of California.

Top Settlements

Strike One for the Little Guys. A $13.1 million settlement has been awarded to Southeastern Pennsylvania Transportation Authority workers who alleged the authority was in violation of the Fair Labor Standards Act shift work. According to court filings, “The parties now believe that considering the costs and risks of continuing this litigation, it is in their best interests to fully and finally resolve plaintiffs’ claims.” The parties filed a joint motion for approval, which involves some 2,300 current and former bus and trolley drivers. If approved, the SEPTA settlement will end a case first brought in June 2011, alleging SEPTA did not pay its drivers for off-the-clock time spent doing tasks before pulling their vehicles out at the start of their runs.

“Resolution of the FLSA claim requires a factual determination of the amount of time operators are required to work prior to their scheduled start, and a legal determination regarding whether this time is compensable and subject to the overtime provisions of the FLSA,” a three-judge Third Circuit panel stated. The case is David Bell et al. v. Southeastern Pennsylvania Transportation Authority, case number 2:11-cv-04047, in the U.S. District Court for the Eastern District of Pennsylvania.

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

Week Adjourned: 8.7.15 – uConnect, Soccer Injury, Residential Capital

Top Class Action Lawsuits

Car Hacking = Car Jacking = Lawsuit!!!! That’s all the math we need, and indeed three Fiat Chrysler customers, who have have filed a proposed consumer fraud lawsuit alleging the recent recall of 1.4 million Dodge, Ram and Jeep vehicles for a software patch is not enough to safeguard customers against hacking of uConnect and the 3G “infotainment” systems networked into the vehicles.

Cast your mind back…

“On July 21, 2015, Wired Magazine published an article in which security researchers demonstrated the ability to remotely hack into a 2014 Jeep Cherokee while it was driving on a highway in St. Louis,” the lawsuit states. “They were able to gain access to the vehicle through security vulnerabilities in the uConnect system. Once they were ‘inside,’ the researchers were able to rewrite encoded chips in the uConnect hardware which allowed them to access and issue commands.”

The Fiat Chrysler lawsuit is seeking a court order forcing Fiat Chrysler to physically disconnect the uConnect system from the controller area network, or CAN bus network, that links it to the rest of the vehicles electronics. The plaintiffs claim this is the only way to ensure those other systems are protected from hacking. The complaint also names Harmon International Industries, the maker of the infotainment system, as a defendant.

According to the plaintiffs, hackers could even use uConnect to shut down cars while on the highway, both through the 3G network, which cannot be disconnected, and through the radio, a separate hacking risk that is currently under investigation by the National Highway Traffic Safety Administration. That investigation is looking into an estimated 2.8 million additional vehicles with uConnect from other manufacturers on top of the ones Fiat Chrysler recalled.

The lawsuit contends that Fiat Chrysler was aware of the hacking vulnerability almost 18 months prior the recall, and waiting for the recall to be issued constituted a breach of the company’s responsibilities under the Transportation Recall Enhancement, Accountability and Documentation Act. Further, that wait means Fiat Chrysler cannot be trusted to expeditiously address vulnerabilities found in the future, the complaint states.

“It’s clear the defendant chose to finally update the software only because the flaw was being made public by the security researchers,” the lawsuit states. However, the plaintiffs contend that simply updating the software on affected cars is a complicated process that will not guarantee future safety. Therefore, Fiat Chrysler is liable for fraud for its characterization of the recall as a software issue rather than an inherent vulnerability resulting from the link between uConnect and the other systems, the plaintiffs assert.

“Defendants’ claims that this update makes these vehicles safe are untrue,” the plaintiffs contend. “By inaccurately describing the problem, the defendants are perpetrating a fraud on class members and giving them a false sense of security.” The case is Flynn et al v. FCA US LLC et al, case number 3:15-cv-00855 in the U.S. District Court for the Southern District of Illinois.

Where are those electric self-driven cars they’ve been promising?

Heads Up Soccer Moms! A personal injury and negligence class action lawsuit has been filed on behalf of several current and former soccer players against soccer’s worldwide governing body, FIFA, and affiliated soccer organizations in the United States including U.S. Youth Soccer and American Youth Soccer, leagues responsible for over three million child and adolescent soccer players in the United States, for allegedly failing to incorporate up-to-date guidelines into their concussion policies.

The soccer concussion lawsuit states that no rule limits headers in children’s soccer, and children are often taught to head the ball from the age of three. A dedicated youth player might sustain 1,000 headers per year, and a high school player more than 1,800 headers.

The lawsuit seeks the following:

– Require FIFA and its U.S. affiliates to implement up-to-date guidelines for detection of head injuries and for return to play after a concussion.

– Regulation of heading by players under 14 years old.

– A rule change to permit substitution of players for medical evaluation purposes.

The lawsuit alleges that these groups have failed to adopt effective policies to evaluate and manage concussions, a common occurrence at all levels of the game. They also claim that a lack of effective policies poses a greater danger to women and children players, who are more vulnerable to traumatic and long-lasting brain injury.

Top Settlements

Here’s a whopper…A $235 million settlement has been approved, ending a securities class action brought by a pension fund against Citigroup Global Markets Inc., Goldman Sachs & Co. and UBS Securities LLC, over allegations that the Residential Accredit Loans Inc. (RALI) certificates’ seller, Residential Capital, and the underwriter defendants failed to disclose weaknesses in the underlying loans in approximately 59 offerings.

The lawsuit was brought in 2008 by the New Jersey Carpenters Health Fund in New York over the sale of mortgage-backed securities to the fund as well as other investors in several offerings between 2006 and 2007 that were issued and sold by RALI. The class action claimed the prospectuses had material misstatements and omissions.

There are three tiers of putative class members, and the funds will be distributed based on the strength of their claims at the time of settlement.

The case is New Jersey Carpenters Health Fund et al. v. Residential Capital LLC et al., case number 1:08-cv-08781, in the U.S. District Court for the Southern District of New York.

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

Week Adjourned: 7.31.15 – CVS, Hip Implants, Fiat Chrysler

Top Class Action Lawsuits

How much did you Pay for Generic Drugs at CVS? There’s a potentially $65 million dollar question, which pharmacy customers of CVS Health Corporation (CVS) are looking to get answered. They filed a class action lawsuit in the United States District Court for the Northern District of California alleging that CVS employed a fraudulent scheme to overcharge millions of customers across the country for generic prescription drugs.

CVS is alleged to have implemented and maintained a false and deceptive pricing scheme affecting more than 400 generic drugs, forcing customers with health insurance to pay CVS copayments far higher than the usual and customary price CVS charged its cash-paying customers.

CVS generates approximately $67 billion in annual revenues from its retail pharmacy business, and plaintiffs allege that CVS’ wrongful overcharging is a significant percentage of those revenues.

According to the complaint, for seven years CVS has systematically been overcharging their insured consumers for prescriptions. The alleged scheme is especially harmful to those people with low or fixed incomes who use medications on a regular basis. Plaintiffs assert that the drug chain wrongfully has charged insured consumers inflated copayments on more than 400 generic medications, including some of the most commonly used drugs on the market today. According to the complaint, millions of people have been affected by this misconduct.

The plaintiffs seek to represent all consumers who were participants in third-party healthcare plans and who filled their prescriptions for certain generic drugs at CVS between November 2008 and the present, and paid more than prices available under the CVS Health Savings Pass program.

Top Settlements

Hip Implant Defect Award for Plaintiff. A first this week—with a jury in Los Angeles awarding $9.1 million to man who received a Durum Cup hip implant made by Zimmer. The defective products lawsuit alleged that Zimmer was aware of the design defect in its hip implant and was therefore negligent in designing it. The Durum cup implant allegedly causes bone and tissue damage that may lead to pain and replacement surgeries. This is the first such lawsuit to go against Zimmer, reportedly.

The Zimmer Durom Cup was implanted in some 13,000 patients before it was removed from the US market in 2008. Fifty-nine year old Gary Kline, from California, received the defective product in 2007 only to have it removed 15 months later. According to his lawsuit, he endured two “traumatic surgeries” in 15 months that caused scar tissue and muscle damage.

Finding in the plaintiff’s favor, the jury hearing Kline’s case found Zimmer negligent in the design of the Durom Cup and that the company failed to warn about the product’s defect.

The verdict includes about $153,000 in medical bills and $9 million in past and future non-economic damages such as pain and suffering and emotional distress. Although Los Angeles County Superior Court Judge Amy Hogue had denied a request for punitive damages, Kline’s lawyer said the jury awarded $3 million more than his client had asked.

Big Automotive News this Week… Fiat Chrysler is looking at ponying up a record $105 million in fines to the US government for violating laws in a series of vehicle safety recalls. Additionally, Fiat Chrysler will have to buy back 500,000 Ram pickup trucks and other vehicles in order to take them off the roads, the National Highway Traffic Safety Administration said.

The fines were prompted by Fiat Chrysler’s failure to act quickly enough on safety recalls. The fines are the biggest of their kind in US history.

According to media reports, owners of 1.54 million recalled older model jeeps with receive payments from the automaker. The jeeps have gas tanks behind the rear axle and are vulnerable and leak gasoline if damaged during a collision. Customers can bring them to dealers to install trailer hitches to help protect the tanks. FC is not buying back the Jeeps because it maintains those vehicles are as safe as comparable vehicles built at the time.

The NHSTA’s actions come less than a month after it held a public hearing into problems with 23 Fiat Chrysler recalls which affect over 11 million cars and trucks. At the hearing, NHTSA cited a long list of serious shortfalls, specifically, failure to notify customers of recalls; delays in making and distributing repair parts; and, in some cases, failing to come up with repairs that fix the problems. Some of the recalls date to 2013.

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

Week Adjourned: 7.24.15 – Priceline, JP Morgan Chase, Foot Locker

Top Class Action Lawsuits

Priceline’s “Name Your Own Price” …may be rebranded as “Name Your Own Settlement” if this goes to court. The internet-based hotel booking company is facing a proposed consumer fraud class action lawsuit alleging it conceals known, mandatory resort fees from “Name Your Own Price” bidders, misleading thousands of customers about the actual price of their bookings. Something to do with hidden resort fees—ringing any bells folks?

Filed in in Connecticut federal court by lead plaintiff Adam Singer, the Priceline lawsuit contends that travelers who use Priceline’s “Name Your Own Price” feature to bid on hotel rooms, end up paying undisclosed fees to Hilton and other hotels on top of what they offered.

“This conduct renders the ‘Name Your Own Price’ option illegal and deceptive,” the complaint states. “Due to defendant’s conduct, a consumer is not ‘naming his own price’ for a hotel stay at all.”

In the complaint, Singer states he used the “Name Your Own Price” option to find a hotel in Puerto Rico within his budget. Priceline matched him with a Hilton property and presented with a contract, which quoted his offer price plus $60.68 in taxes and fees, which he accepted.

However, the Priceline lawsuit contends that when Singer went to check out of the property, the hotel had added $66 in mandatory resort fees in addition to the price he had agreed to pay through Priceline, prior to his stay. The lawsuit alleges that Singer was not informed in advance of those fees as Priceline didn’t adequately inform him that any resort fees would be included in the total price for his accommodation.

“Priceline could easily have programmed its Name Your Own Price bidding system to account for resort fees which it knew full well would be charged and thus match consumers only with hotels truly willing to accept their bid amounts,” the lawsuit states. “Instead, it affirmatively chose to delete resort fees from ‘total’ ‘taxes and service fees,’ in order to make it appear to consumers that they were getting a better deal than they truly were.”

The lawsuit further claims that Hilton benefits from Priceline’s deception because it charge guests, after the fact, more than they would knowingly consent to pay.

“By the plain terms of the Priceline.com booking contract, Hilton had no right to charge mandatory resort fees on that booking,” the complaint states. “By recovering an additional, baseless fee in the form of the resort fee, defendants are able to reduce its advertised room rates by the amount of the resort fee without any negative impact when price-conscious consumers compare rates across hotels.”

Singer is seeking to represent a class of Priceline “Name Your Own Price” customers allegedly misled by the booking site’s silence on resort fees and a subclass of consumers who booked Hilton stays that cost more than expected for that reason.

The case is Singer v. The Priceline Group Inc. et al., case number 3:15-cv-1090, in the U.S. District Court for the District of Connecticut.

Top Settlements

They’re Baaaack...Here’s one for the record books, apparently, and likely in more ways than one.

A $388 million settlement has been agreed between JPMorgan Chase and a group of investors who alleged the bank misled them regarding the level of risk associated with certain investments. Specifically, the securities lawsuit refers to $10 billion worth of residential mortgage-backed securities (MBS) sold by JP Morgan Chase before the financial crisis of 2008. Remember those?

The lawsuit was brought on behalf of investors and two pension funds, namely Laborers Pension Trust Fund for Northern California and Construction Laborers Pension Trust for Southern California. In the lawsuit, they alleged the values of their investments were severely impacted by the losses incurred on the mortgage bonds during the financial crisis. (Whose investments weren’t impacted by MBS fraud?)

According to a statement issued by JP Morgan Chase, this settlement represents, on a percentage basis, “the largest recovery ever achieved in an MBS purchaser class action.” And that’s something they’re proud of?

Foot Locker Gets Clocked. Here’s a long-deserved bit of good news for Foot Locker employees. Final approval of a $7.1 million settlement has been granted, ending a long-running wage and hour class action against Foot Locker Inc. The lawsuit, brought by Foot Locker workers, alleged the retail shoe chain violated the Fair Labor Standards Act (FLSA).

Specifically, the plaintiffs alleged that Foot Locker workers were not compensated for maintenance work and time spent working before opening and after closing. Further, the lawsuit claimed that company employees were forced to do work off-the-clock or have their paid time cut in order to complete their tasks.

According to the allegations, Foot Locker directly tied the compensation of its store managers to its labor budget set by the corporate office, in order to enforce the compensation policy. If the managers exceeded the budget, they were punished, according to the original complaint filed in 2007 by named plaintiff Francisco Pereira.

The nationwide FLSA class includes all current and former Foot Locker employees who worked at least one hour from March 2007 to March 2010 in the US as a retail employee but not as an assistant store manager or higher. A separate Illinois class includes any retail employee excluding assistant store managers and above who worked in the state from October 2005 to May 2011.

The case is In Re: Foot Locker Inc. Fair Labor Standards Act (FLSA) and Wage and Hour Litigation, case number 2:11-md-02235, in the U.S. District Court for the Eastern District of Pennsylvania.

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

Week Adjourned: 7.17.15 – Walmart, Gerber, Hotel Wrongful Death

Top Class Action Lawsuits

Save Money. Live Better…? Words to live by…except for…Walmart got hit with a discrimination class action lawsuit this week, filed by an employee alleging the company denies its staff benefits for same-sex spouses. Filed by Jacqueline Cote, the lawsuit claims that Walmart repeatedly denied medical insurance for her wife before 2014, when the retail giant started offering benefits for same-sex spouses.

The back story…Cote and Simpson met in 1992, while they were both working at Walmart in Augusta, Maine. They subsequently moved to Massachusetts and remained employees of Walmart. They were married in May 2004, days prior to the legalization of same-sex marriage in that state.

In 2007, Smithson quit her job at Walmart to take care of Cote’s elderly mother. As a result Cote attempted to have Smithson added to her employee health plan the following year.

In 2012, Cote’s wife was diagnosed with ovarian cancer, which resulted in the couple incurring $150,000 in medical bills.

According to the proposed Walmart class action, Cote tried to enroll her spouse online, but the system wouldn’t let her proceed when she indicated her spouse was a woman. When she sought an official explanation, she was told that same-sex spouses were not covered. Cote continued to try and have Smithson enrolled in her Walmart employee health plan every year thereafter including the year Smithson was diagnosed with cancer.

The lawsuit seeks damages for the couple and any other Walmart employees who weren’t offered insurance for their same-sex spouses. A federal commission concluded that Walmart’s denial amounted to discrimination and said in May that Cote could sue.

Although no other Walmart employees are named in the suit, it seeks damages for those who come forward. Further, the suit seeks damages for Cote and her wife, Diana Smithson, and it asks Walmart to acknowledge a legal responsibility to continue offering benefits for same-sex spouses.

What’s Gerber been Puffing On? Gerber, famous maker of healthy baby foods and an instantly recognizable household brand, got slapped with a consumer fraud class action lawsuit alleging the company is misleading parents into buying a product that is far from nutritious. The product? Graduates Puffs food for toddlers. Puffs? Really?

According to the Gerber Graduates lawsuit, the packaging for Puffs is dominated by pictures of fruit or vegetables: juicy peaches, slices of ripe banana, nutritious sweet potatoes. But the ingredients list belies these pictures. Banana-flavored Puffs contain no bananas, only a trace amount of banana flavoring. Sweet potato-flavored Puffs don’t contain actual sweet potatoes, or any other vegetable, only miniscule amounts of sweet potato “flavor.” The closest thing to a fruit or vegetable in Puffs is a very tiny amount of dried apple puree, powder, in other words.

The suit alleges that parents trying to buy healthy and nutritious snacks for their toddlers have trusted Gerber’s reputation and package presentations, paid Gerber’s premium prices based on that reputation, and, in exchange, unwittingly provided their toddlers with empty calories. Far from the healthy treat the labels and Gerber’s reputation suggest, Puffs are little more than flour and sugar. Doesn’t sound like brain food to me…

The lawsuit was filed in the Superior Court of California, San Francisco County, and is titled Gyorke-Takatri, et al., v. Nestle USA, Inc. and Gerber Products Company.

Top Settlements

Huge Settlement for a Huge Loss…and a cautionary tale in more ways than one…a Florida jury awarded a $24,057,83.00 verdict in a wrongful death lawsuit involving The Riverside Hotel in Fort Lauderdale. In 2012, a newlywed couple were visiting the hotel on their honeymoon. They were killed by a speeding car. The lawsuit alleged that the Riverside Hotel had actual or constructive knowledge that motor vehicles regularly and routinely exceeded the posted speed limit in proximity to the hotel property.

Michael and Alanna DeMella, who were seven months pregnant, checked into the hotel and went to the pool. According to media reports they had stepped into the cabana restroom moments before the incident. Mrs. DeMella was killed on hotel property while in an on-site pool cabana, by Rosa Kim, who drove into a structure on hotel property utilized by hotel guests in the pool area as she used excessive speed on the adjacent road.

In hearing the evidence, the civil jury entered a verdict that found the Riverside was 15% responsible for the tragedy and that they should pay that portion of the verdict.

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

Week Adjourned: 7.10.15 – Ford, Capital One, Transvaginal Mesh

Top Class Action Lawsuits

Ford is not in the driver’s seat on this one…They got hit with a defective design class action this week, alleging certain Ford Explorer, Ford Edge and Lincoln MKX models allow carbon monoxide to enter the passenger compartment. Yeah, not so good guys. The suit covers 2011-2015 Ford Explorers as well as Edge and MKX models from 2011-2013 with 3.5L and 3.7L TIVCT engines.

The proposed Ford class action was filed on behalf of New Jersey owners or lessors of the vehicles in question. The complaint also proposes a subclass of consumers with claims under New Jersey’s Lemon Law for claimants who reported the defect to Ford in the first two years or 24 months of ownership.

According to the legal documents, Ford has known of the defect since 2012 but has not warned owners to get it fixed. Surprised? Apparently Ford has issued two technical safety bulletins to dealers about the problem but to date, has not notified owners, despite the related safety hazard. Ford has attempted to fix the problem on customers’ vehicles with a variety of remedies but none have proved effective, according to the complaint.

“Given that the defect renders driving the subject vehicles a health hazard that is potentially deadly, the vehicles are valueless,” the lawsuit states.

The lawsuit alleges breach of implied and express warranty, violation of the New Jersey Consumer Fraud Act, of the Magnuson-Moss Warranty Act, and of the New Jersey Motor Vehicle Warrant Act, also known as the Lemon Law. Love that Lemon Law!!!

Capital One should change its tag line…from “What’s in your Wallet” to “If at first you don’t succeed.” These guys are frankly, incorrigible—nay—unrepentant. They are facing yet another robocalls class action lawsuit—this one against Capital One Financial Group. Filed by plaintiff Nakia Pitr, this latest lawsuit alleges Capital One is in violation of the Telephone Consumer Protection Act by calling consumers through robodialing without their consent. Yeah, know this one off by heart.

Pitre claims in the Capital One lawsuit that within the space of two months, she received 37 calls on her cellphone from the bank, despite not being a customer. Capital One ignored her requests to stop calling, she claims.

According to the lawsuit, the calls were from the company’s credit card division. During each of the calls she received and answered, she told the bank they had the wrong number and asked them to stop calling. However, she continued to receive calls. According to the suit, the frequency and nature of the calls indicates they were made from an automatic telephone dialing system.

Pitre further alleges she has never been a Capital One customer, has never given the bank her number or given her consent for them to call her.

If approved, the class would include anyone contacted by Capital One using a robodialing system from July 1, 2014, through July 2, 2015, without prior consent and who received calls after asking not to be contacted.

FYI—the case is Pitre v. Capital One Financial Corporation, case number 1:15-cv-00869, in the U.S. District Court for the Eastern District of Virginia.

Top Settlements

Not a class action settlement—but a significant settlement none the less. Sadly, at great personal expense. Boston Scientific has been ordered to pay a $100 million settlement by a jury hearing the case of a women who suffered injury from the company’s Pinnacle and Advantage Fit vaginal mesh. Fifty-one year old Deborah Barba was awarded $25 million in compensatory damages with an additional $75 million in punitive damages.

In her personal injury lawsuit, Barba alleged she received a Boston Scientific’s Pinnacle mesh product in 2009 for pelvic organ prolapse (POP) and stress urinary incontinence (SUI). However, following the implant she began experiencing serious medical complications and despite two subsequent surgeries to rectify the problems, parts of the vaginal mesh implant remain in her body and continue to cause her pain.

The trial took just two weeks, after which the jury reached a decision within seven hours. They found Boston Scientific was negligent in designing and making the devices and that it had failed to warn patients and doctors about potential risks.

To date, this verdict is the largest regarding litigation over transvaginal mesh devices against Boston Scientific or any other mesh manufacturer. The company announced last month it had reached agreements to pay about $119 million to resolve 2,970 cases about transvaginal mesh. There are more than 25,000 defective product lawsuits pending against Boston Scientific concerning injuries resulting resulting from the Pinnacle mesh implant.

Reuters reports that this latest verdict is the sixth so far against the company by women who say that the devices are poorly designed and use subpar materials, resulting in painful physical injuries such as bleeding, infection and pain during sex.

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

Week Adjourned: 7.4.15 – Kenneth Cole, Pure Leaf Iced Tea, Toyota

Top Class Action Lawsuits

Kenneth Cole bagging profits at customers’ expense? At least those are the allegations in a consumer fraud class action lawsuit filed against Kenneth Cole Productions Inc.

Specifically, the Kenneth Cole Outlet lawsuit alleges that the retailer misleads customers into believing they are purchasing items at a savings at its exclusive outlet stores by listing artificially high “suggested retail prices” on its product tags next to the term “our price” which is significantly lower. The lawsuit claims that because these products were never for sale in any other store, Kenneth Cole is in violation of California and federal laws.

“The plaintiff, in short, believed the truth of the price tags attached to the products she purchased at a Kenneth Cole outlet, which expressly told her that she was getting a terrific bargain on her purchase,” the complaint said. “In fact, she was not getting a bargain at all.” Filed by lead plaintiff Peggy Cabrera, the lawsuit asserts that Cabrera was induced to purchase a sweater and shirt top from a Kenneth Cole Outlet store in California after noticing significant differences in price between the “MSRP” and “our price” label, particularly after observing that not all product price tags made this distinction.

“In reality, Kenneth Cole never intended, nor did it ever, sell the item at the represented ‘MSRP,’” the complaint states. “Thus, plaintiff was deceived by the false price comparison into making a full retail purchase with no discount.”

In the lawsuit, Cabrera contends that Kenneth Cole is taking advantage of the term “outlet store” because the idea of shopping there conveys to reasonable consumers that at least some products comprise merchandise formerly offered for sale at full-price retail locations, which is not the case at exclusive Kenneth Cole outlets.

Further, the complaint states that the Federal Trade Commission explicitly describes the fictitious pricing scheme employed by Kenneth Cole as deceptive, making it a violation of the FTC Act, as well as the California Business and Professions Code.

Pure Leaf Iced Tea = Pure B.S.? While we’re on the subject of consumer fraud…Unilever United States Inc. and PepsiCo. Inc. are facing a putative class action alleging false advertising regarding their jointly produced Pure Leaf iced tea products. Specifically, the lawsuit claims the teas are falsely branded as “All Natural” and free from preservatives when in fact they contain a non-naturally produced citric acid as a preservative.

Named plaintiff Momo Ren alleges that the defendants engaged in an aggressive marketing campaign that claimed the teas are “nothing but all natural, freshly brewed tea from tea leaves,” which was designed to attract consumers seeking those types of products.

According to the Pure Leaf lawsuit, citric acid is no longer made from fruit but rather manufactured through citric acid bacteria fermentation. It is classified by the USDA as a “synthetic allowed” substance. Therefore, PepsiCo. and Unilever, through a partnership with Unilever-owned Lipton Tea conspired to produce Pure Leaf, the advertising for which is in violation of federal and state consumer protection laws against misbranding.

“By marketing the products as being ‘All Natural’ and free of preservatives, defendants wrongfully capitalized on and reaped enormous profits from consumers’ strong preference for food products made entirely of natural ingredients and free of preservatives,” the suit states.

The plaintiff has filed claims of deceptive trade practices, negligent misrepresentation, breach of express warranty and unjust enrichment and seeks unspecified compensatory and punitive damages.

Top Settlements

Toyota Power Steering… Don’t have a dollar figure for this one BUT 800,000 Toyota customers are going to sleep easier as a result of a settlement reached with the car maker in a pending defective automotive class action lawsuit. The suit, filed in California federal court, claims that the power steering systems of some Corollas caused the vehicles to drift out control.

According to court documents, lead plaintiffs Irene Corson and Susan M Yacks, and Toyota, sought preliminary approval of the deal in March, the terms of which state that Toyota denies any defect with the electronic power steering system in the 2009 and 2010 model year Corollas at issue.

Under the terms of the settlement, class members who have complained about the on-center steering feel of their vehicle will have their retuned electronic control units installed at no cost. For those who haven’t previously complained, the retuned electronic control unit will be available at a 50 percent discount. Class members who paid out-of-pocket to have the returned electronic control unit installed may be reimbursed up to $695, according to the settlement memorandum.

Court documents show that The National Highway Traffic and Safety Administration opened an investigation in February 2010 of the electric power steering system in the Corolla and Matrix models. The investigation revealed related consumer complaints dealing with operational issues, not failure of steering elements. The investigation was closed by May 2011.

Under the terms of the deal, class counsel can ask for attorneys’ fees and expenses, and class representative incentive awards up to $750,000. The case is Irene Corson et al. v. Toyota Motor Sales USA Inc. et al., case number 2:12-cv-08499, in the U.S. District Court for the Central District of California.

Ok—that’s it for this week folks—see you at the bar! And Happy 4^th of July!