Week Adjourned

Week Adjourned: 11.3.17 – Vizio, TGI Friday’s, Amla Legend

Top Class Action Lawsuits

Flash in the Pan? Vizio got hit with a consumer fraud class action lawsuit this week over allegations its smart TVs aren’t up to the job, and the company knew it.

The complaint was filed by consumers who allege the “smart” televisions they purchased between 2012 and the present don’t work as advertised.

Specifically, the Vizio complaint alleges that Vizio “smart” TVs were marketed as such based on their ability to access Apps such as YouTube and others. However, they failed to warn consumers that there would come a time when the service would no longer work.

The reason that many of these TVs don’t function properly is due to the fact that they use an older Flash-based Application Programming Interface (API) and not the newer HTML5-based API systems. As of June 26, 2017, YouTube no longer works on TVs with the Flash-based API.

Although Vizio has sold TVs with the newer API since 2013, the company hasn’t offered any remedy to consumers with TVs using the Flash-based programming. Instead, they have offered them the same advise as YouTube, which is to buy an external streaming device such as a Google Chromecast.

According to the Vizio lawsuit, “Defendant sold Affected Smart TVs to consumers by promoting them as inherently different from traditional television sets based on their ability to access video streaming entertainment apps. Defendant promoted Affected Smart TVs as having all the convenience of smartphones and computers with the ease and convenience of using a familiar device – the television set – in the comfort of consumers’ living rooms. To lure consumers in, Defendant promoted its most popular Affected Smart TV video streaming entertainment apps, including Netflix, Hulu, and YouTube. Specifically, Defendant promoted Affected Smart TVs by placing the YouTube logo on its packaging, in-store displays, and by displaying the YouTube app in its commercials and in online advertising to inform consumers that Affected Smart TVs came with YouTube access included upon purchase.”

According to the complaint, Vizio notified consumers of the issue by a posting on its website listing the affected models.

The proposed class includes anyone in the United States who purchased a Smart TV with one of the model numbers listed below.

The proposed class action also seeks to represent consumers who bought and still own affected Vizio TV sets and reside in Alaska, Arizona, California, Connecticut, Delaware, the District of Columbia, Florida, Georgia, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Missouri, New Hampshire, New Jersey, New York, North Carolina, North Dakota, Ohio, Rhode Island, Texas, Vermont, Washington, and West Virginia.

The model numbers allegedly affected are:

241i-A1* E241i-A1w* E291i-A1* E320i-A0* E390iA1* E3D320VX* E3D420VX* E3D470VX* E3DB420VX* E420d-A0* E420i-A0* E420i-A1* E422VA* E422VL*E422VLE* E423VL* E470i-A0* E472VL* E472VLE* E500d-A0* E500i-A0* E500i-A1* E550i-A0*E550i-A0E*E551d-A0* E551i-A2* E551VA* E552VL* E552VLE*E601i-A3* E650i-A2* E701i-A3* M320KD*M320SL*M320SV* M370SL* M370SR* M370SV* M3D420SR* M3D421SR* M3D460SR* M3D470KD*M3D470KDE* M3D550KD* M3D550KDE* M3D550SL*M3D550SR* M3D650SV* M3D651SV* M420KD*M420SL*M420SR* M420SV* M470KD* M470NV M470SL*M470SV* M472VL* M550KD* M550SL*M550SV*VBR121* VBR122* VBR133* VBR135* VBR140* VBR370*

The Case is 3:17-cv-05897.

Top Settlements

TGI Settlement Time? This time TGI Friday’s might make it to the table after all. The settlement table that is. Further to a proposed settlement deal reached in September, 2017, preliminary approval has been granted for a revised $19.1 million settlement of an unpaid wage and hour action lawsuit brought against TGI Friday’s.

The original settlement was rejected by US District Judge Analisa Torres as she found the proposed class action’s confidentiality provision was impermissibly vague and its waivers and releases too broad. However, the revised settlement, if granted final approval, would see restitution for 28,000 TGI Friday’s tipped workers who had claimed violations of the Fair Labor Standards Act (FLSA), and the state and federal labor laws of California, Colorado, Connecticut, Florida, Illinois, Maryland, Michigan, New Jersey and New York.

TGI Friday’s has been ordered to transmit the settlement funds to the settlement account by November 9, and the claims administrator instructed to create and institute a dedicated website by the same date.

Upon final approval of the TGI Friday’s settlement, the workers would receive a pro rata share of the settlement based on the number of weeks they worked during the proposed class period, according to court documents.

The named defendants in the employment lawsuit are the restaurant chain TGI Friday’s Inc. and TGI Friday’s former owner, the hospitality firm Carlson Restaurants Inc.

The workers alleged the defendants improperly took a “tip credit” from their paychecks and paid them a reduced minimum wage, which in this case, is not allowed under the FLSA and state laws. The plaintiffs also claimed the restaurant owners failed to pay them all owed overtime and uniform-related expenses, misappropriated tips and took unlawful deductions for customer walkouts.

The case is Julio Zorrilla et al. v. Carlson Restaurants Inc., Carlson Restaurants Worldwide Inc. and TGI Friday’s Inc., case number 1:14-cv-02740, in the U.S. District Court for the Southern District of New York.

Burning Issue Resolved? L’Oreal has agreed to pony up some cash to settle a defective products class action lawsuit alleging the cosmetics giant misrepresented the safety of its hair relaxer, consequently causing injury to consumers. Relax and read on…

The lawsuit alleged that L’Oreal’s Amla Legend Rejuvenating Ritual Relaxer damages hair and causes burns and blisters on the scalp.

US District Judge Jed S. Rakoff certified a class of Florida purchasers who bought the product after December 1, 2012, and a class of New York purchasers who bought the product after August 19, 2013. Both classes are seeking full refunds based on allegations of unjust enrichment, according to court documents. Further, the New York class is seeking $50 in damages for each class member.

As well, classes of Florida and New York consumers seeking injunctive and declaratory relief were certified, because they claim they intend to buy hair relaxers in the future but can’t trust the advertising without injunctions barring L’Oreal from making the allegedly misleading statements, according to the filing. Judge Rakoff declined to certify national, multistate and non-economic injury classes of women.

According to court documents, “Each alleged injury in this case arose from the same product whose packaging contained the same allegedly misleading representations and omissions.”

The case is In re: Amla Litigation, case number 1:16-cv-06593, in the U.S. District Court for the Southern District of New York.

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

Week Adjourned: 10.27.17 – Dimensions Health, School Bus Stop, Lumber Liquidators

Top Class Action Lawsuits

Doctor Who? A medical malpractice class action lawsuit has been filed against Dimensions Health Corp., alleging it allowed a former OB-GYN, who obtained his medical license fraudulently using a false Social Security number, to perform hundreds of deliveries and emergency cesarean sections.

The lawsuit was filed by named plaintiffs Monique Russell and Jasmine Riggins, who assert they had unplanned emergency C-sections performed by Oluwafemi Charles Igberase who obtained medical privileges at Dimensions in Prince George’s County under a false identity.

According to the lawsuit, over the course of roughly four years, Igberase saw at least 1,000 patients and performed at least 500 C-sections. However, in 2016 he pled guilty to using a fraudulent Social Security number to obtain his medical license from the state of Maryland.

According to the complaint, Dimensions is responsible for patient safety and should have been able to discover and report any misconduct among its doctors, and that it was negligent in credentialing Igberase and letting him practice.

“Dimensions breached its common law duties and the applicable standards of medical practice on an ongoing basis by negligently failing to investigate, credential, qualify, select, monitor and supervise its medical personnel and to discover, stop and report Oluwafemi Charles Igberase,” the complaint states.

According to the complaint, the plaintiffs have suffered physical pain, emotional anguish, fear, anxiety, embarrassment and other emotional injures as a result of Dimension’s alleged violations of the standards of care.

“On information and belief, Oluwafemi Charles Igberase recommended and performed a statistically significant number of unplanned emergency cesarean section surgeries,” the complaint states. “Many of the unplanned emergency cesarean sections were not medically necessary.”

Further, the plaintiffs assert that Dimensions only terminated Igberase shortly after the criminal proceedings at federal court. In 2016, Igberase was sentenced to six months in prison and three years of supervised release, according to March court records.

However, in March 2012, the federal government denied Igberase’s application to enroll in Medicare reimbursement after determining he didn’t provide an accurate Social Security number. “In 2012, Dimensions knew or should have known that the Social Security number provided to Dimensions by Igberase belonged to another person,” the lawsuit states.

The civil lawsuit brings a claim for negligent and grossly negligent hiring, retention, supervision, selection, qualification and credentialing. Additionally, it brings claims for invasion of privacy, stating Igberase “intruded upon the solitude, seclusion or private affairs and concerns of named plaintiffs and class members by viewing private areas of each patient’s body, performing medical procedures on each patient, inserting his extremities inside each patient, performing surgical procedures on patients and other boundary violations all without authorization or consent.”

Further claims include intentional infliction of emotional distress, battery and negligent entrustment.

The lawsuit seeks to represent a class of patients examined or treated by Igberase and a subclass of anyone on whom he performed a C-section. The case is Russell et al. v. Dimensions Health Corp., case number 8:17-cv-03106, in the U.S. District Court of Maryland.

Top Settlements

Settlement for school bus stop injuries. Negligence leading to personal injury and finally, a settlement. A $36.1 million settlement has been awarded to the family of a young girl who was hit by a car while attempting to catch her school bus. The accident left her with severe injuries including fractures to her neck, arm, leg and pelvis, and a permanent traumatic brain injury that requires she is cared for by a licensed vocational nurse (LVN) 24 hours a day, seven days a week for the rest of her life.

On the morning of October 3, 2012, then six-year old Isabella Escamilla Sanchez, attempted to cross 9th street mid-block to get to the bus stop where her school bus was en route to Bonnie Oehl Elementary School. While attempting to cross the road, the driver of a Subaru Impreza struck her.

In filing their lawsuit, Isabella’s family named Durham School Services as a defendant for failing to report and prevent mid-street crossings, which is a blatant violation of their own policies and procedures. The family’s attorneys showed that it was a common practice for parents and students to cross 9th street mid-block directly in front of the Durham bus driver.

The family also argued that had the bus driver warned parents and students about the dangers of attempting to cross the street mid-block, this tragedy could have been prevented. During the trial, all the parents with children at the same bus stop testified that they never used the controlled intersection near the stop because they didn’t realize the danger and always crossed in the middle of the block.

Additionally, the parents stated that crossing mid street was common practice and that they did so in plain view of the Durham bus drivers who never took steps to prevent this behavior. The San Bernardino School District’s transportation director stated at trial that the drivers are the “eyes and ears for the school district” and that the district relies on drivers to report dangerous conditions at bus stops including unsafe mid-block crossings.

Other defendants names in the personal injury lawsuit include the County of San Bernardino, City of Highland, San Bernardino City Unified School District, Bonnie Oehl Elementary School, Shanita Cottia Mason, the bus driver, and Lillian Thanh Vo, the driver of the Subaru.

And the deal lumbers on… A $36 million settlement deal has been reached between Lumber Liquidators (LL) and two classes of consumers, potentially ending multidistrict litigation alleging LL manufactured and sold defective and hazardous laminate flooring.

According to litigation, one class alleged that the durability of the wood was not what not up to grade advertised, while the other class claimed the wood contained levels of formaldehyde beyond the legal standard.

According to the terms of the proposed deal, LL will pay $22 million in cash and another $14 million as in-store credit.

Class members include all persons who purchased Chinese-manufactured laminate flooring sold by LL between January 2009 and May 2015. They will be eligible for cash or vouchers, according to LL.

The proposed Lumber Liquidators agreement must receive final court approval. The case is Leticia Ruiz v. Lumber Liquidators Holdings Inc. et al., case number 1:15-cv-02745, in the U.S. District Court for the Eastern District of Virginia.

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

Week Adjourned: 10.20.17 – Subaru, Live Nation, Brickman Group

Top Class Action Lawsuits

Subaru Defect? Is your Subaru WRX and WRX STi suffering from defects? Read on. A defective automotive class action lawsuit has been filed against Subaru of America Inc. and Subaru Corporation alleging they failed to disclose a defect involving connecting rod bearings, defective connecting rod side clearances, and/or insufficient channels of engine lubrication, which results from an alleged defective rotating assembly. According to the complaint, the affected vehicles include model year 2013 and 2014 Subaru WRX and WRX STi vehicles.

The Subaru lawsuit, filed by Plaintiff Vincente Salcedo of California, claims Subaru used a rotating assembly that has a defect that existed at the time the vehicles were manufactured but typically manifested after the expiration of the limited warranty period.

Specifically, the defect manifests with the connecting rod bearings failing and metal debris allegedly begins to circulate throughout the engine via contaminated engine oil. This results in spun connecting rod bearings and catastrophic engine failure, potentially causing life-threatening stalling events while the vehicle is in operation, the complaint asserts.

“Despite notice and knowledge of the defect from the numerous complaints it has received, information from dealers, National Highway Traffic Safety Administration (‘NHTSA’) complaints, and its own internal records, including pre-sale durability testing and quality policies, Subaru has not recalled the Class Vehicles to repair the defect, offered its customers suitable repairs or replacements free of charge, or offered to reimburse its customers who have incurred out-of-pocket expenses to repair the defect,” the complaint states.

Salcedo states in the lawsuit that he purchased a 2013 Subaru Impreza WRX from a private party in August 2015. Nearly two years later, at approximately 68,759 miles, the vehicle’s engine allegedly made a “knocking” sound while he was driving on the highway and catastrophically failed.

Salcedo states that he had his vehicle towed to an authorized Subaru dealer for diagnosis and repair related to the engine failure and was allegedly quoted in excess of $5,700 to complete the necessary repairs. The complaint claims the dealer contacted Subaru of America, which offered to cover $2,000 of the repairs as a goodwill gesture. Salcedo subsequently paid $3,711.15 himself for parts and labor.

Salcedo claims he would not have purchased the Subaru Impreza vehicle, or would have paid far less for it, had Subaru publicly disclosed the engine defect prior to the time he purchased the vehicle.

The Subaru class action lawsuit alleges violations of the New Jersey Consumer Fraud Act, breach of express warranty, breach of the implied warranty of merchantability, breach of the duty of good faith and fair dealing, violations of California’s Consumers Legal Remedies Act, violations of California’s Unfair Competition Law, violations of the Song-Beverly Consumer Warranty Act, and breach of written warranty under the Magnuson-Moss Warranty Act.

The lawsuit is Vincente Salcedo v. Subaru of America Inc., et al., Case No. 1:17-cv-08173-JHR-AMD, in the U.S. District Court for the District of New Jersey.

Top Settlements

Live Nation has agreed to pony up $1.1 million to settle allegations it illegally denied breaks to 1,500 parking and traffic employees in California. If approved, this will end the employment class action it’s currently facing.

The entertainment company was sued in September, 2015, by named plaintiff Lee Webster, a former traffic controller at Live Nation’s Shoreline Amphitheater in Mountain View, CA. Webster alleged that she and other parking lot employees were required to work without meal and rest breaks as a matter of routine.

According to the terms of the settlement, the funds will pay litigation costs and fees, with the remaining funds distributed to class members pro rata based on the number of hours each class member worked performing parking or traffic control duties during the class period. The estimated net recovery for each class member will likely average $421.55 Any funds from checks that remain uncashed after 180 days will be split between two nonprofits: the Katherine & George Alexander Community Law Center and Lambda Legal, according to the settlement.

Further, the settlement allows for Webster to seek an additional award of $20,000 as class representative.

As per the terms of the Live Nation settlement, the class is defined as consisting of all current and former Live Nation nonexempt employees who performed parking or traffic control duties for the company in California from September 28, 2011, to the present.

The case is Lee Webster v. Live Nation Worldwide Inc. et al., case number 2015-1-CV-286202, in the Superior Court of the State of California, County of Santa Clara.

Brickman Group settles... Another group of happy plaintiffs this week. Final approval of a $4.4 million settlement has been granted ending an employment class action lawsuit involving hundreds of employees of The Brickman Group Ltd. LLC (now Brightview Landscapes LLC).

The plaintiffs claims filed in their October 2013 lawsuit that Brickman Group underpaid overtime to its salaried Supervisors by using a half-time “fluctuating workweek” overtime pay plan that allegedly did not comply with the Fair Labor Standards Act (FLSA) and state laws.

The Brickman Group settlement classes involve approximately 476 original opt-in Plaintiffs and Pennsylvania class members in Group 1, and approximately 345 individuals in Group 2 who did not originally join the case but accepted their settlement offers to join and participate in the settlement.

The case is Acevedo, et al. v. Brightview Landscapes, LLC (f/k/a/ The Brickman Group Ltd. LLC), No. 3:13-cv-02529-MEM (M.D. Pa.)

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

Week Adjourned: 10.13.17 – Whole Foods, Hip Implants, Burger King

Top Class Action Lawsuits

Whole Foods wholly implicated? …in a potential data breach class action lawsuit alleging that it wasn’t paying as much attention as it should have in safeguarding its customers’ personal info. In other words, negligence. According to the complaint, the hack took place in September and resulted in consumers’ personal information being stolen.

According to the Whole Foods lawsuit, filed by named plaintiff Patricia Banus, the data hack affected Whole Foods taprooms and restaurants. Banus alleges in the lawsuit that she paid for goods at a Whole Foods Market Group Inc. taproom four days before the September 28 announcement of the breach. As a result, she asserts she must now cancel her card, given that her personally identifiable information may have been compromised through the breach of the taproom’s point-of-sale system.

“Plaintiff, individually and on behalf of those similarly situated, brings this action to challenge the actions on Whole Foods in the protection and safekeeping of the plaintiff’s and class members’ personal information,” the complaint states. “Whole Foods’ failures to safeguard the consumer PII has caused plaintiff and class members damage.”

According to the complaint, Whole Foods had a duty under the Fair Credit Reporting Act to safeguard customers’ personally identifiable information from being disclosed to third parties. As part of those responsibilities, Whole Foods should have been following security protocols from Mastercard and VISA in the processing of card transactions. The breach may have resulted from a failure by Whole Foods to comply with these security standards, the complaint states.

Further, Whole Foods allegedly violated Ohio consumer protection laws and if consumers had known that their personal data was not properly protected, they would have potentially have shopped somewhere else, the complaint states.

The plaintiff claims there is a good probability that the full extent of the identity theft and fraud that could result from the Whlole Foods data breach has yet to be disclosed and consumers’ information might be available to purchase on the dark web.

The proposed class is made up of all US consumers whose personal data was released during the September breach. Banus also seeks to represent an Ohio subclass. The size of the proposed class is unclear with the company reporting that 117 venues were affected.

The case is Banus v. Whole Foods Market Group Inc., case number 1:17-cv-02132, in the U.S. District Court for the Northern District of Ohio.

Top Settlements

Wright to pay for what’s wrong… Wright Medical Technologies wants out and they’re willing to pay for it. This week, the company announced it will pay $340 million to end about 2,000 claims resulting from alleged failure of its hip implant devices. This settlement will augment the Wright defective hip implant settlement reached in 2016 by $90 million, according to the defendant’s legal counsel.

The lawsuits are consolidated in multidistrict product liability litigation (MDL) in the Northern District of Georgia or in Los Angeles Superior Court in judicial counsel coordinated proceedings, California’s equivalent to a federal MDL.

The first bellwether case was heard in 2015 and resulted in an $11 million jury verdict for Robyn Christiansen, a 73-year-old Salt Lake City ski instructor who had suffered a catastrophic failure of her Wright-manufactured hip implant. The award was eventually reduced by $9 million.

According to the terms reported for the 2016 settlements, each claimant with a Conserve Cup device received about $170,000. Each claimant implanted with either a Dynasty or Lineage replacement hip that had failed received $120,000.

The Wright hip implant metal-on-metal design was responsible for the device failures, because it caused metal wear, according to court records. This resulted in the shedding of metallic debris into the surrounding tissue, leading to a condition known as metallosis, which inflamed and poisoned tissue, dissolved bone that anchored the implant and ultimately caused the implant to fail, court records state.

According to attorneys for the plaintiffs, this new settlement agreement will include hundreds of cases excluded in the first agreement because Wright Technology, the medical device company’s new Chinese owners, and Wright’s insurance carrier did not have sufficient funds to cover all the claims.

The new cases include those with hip implants that failed after the statute of limitations on suing had expired, cases filed after the original settlement was consummated, and suits by plaintiffs who reconsidered after initially deciding not to accept a settlement offer last year, the attorneys said.

Those plaintiffs who refuse to settle as part of the $340 million agreement, will be dismissed and remanded to their states of origin, according to the attorneys.

Burger King BOGO Rewind… in the form of a settlement that could see consumers get $2 gift cards. Yup- it’s part of the terms of the settlement meant to end the pending consumer fraud class action lawsuit. Under those terms consumers who ordered Croissan’wiches with a coupon, will receive $2 gift cards. Well, shut the front door!

According to the lawsuit, some customers who ordered their sandwiches without eggs, cheese or meat may have been overcharged and those customers who presented a buy-one-get-one-free coupon paid a higher price for the sandwich.

The lawsuit was filed by Burger King customer Koleta Anderson, in Maryland federal court on May 2017, on behalf of aggrieved breakfast patrons who alleged they were overcharged when using a coupon. This resulted in Burger King conducting its own investigation into the allegations.

According to court documents, Burger King Corp did in fact find that customers who used a buy-one-get-one-free coupon to order two of the breakfast sandwiches that were modified to exclude eggs, cheese or meat may have been charged the cost of a regular Croissan’wich instead of the lower cost of the pastry without the eggs, cheese or meat.

The faulty point-of-sale programs that caused the overcharges have been updated, Burger King said. Further, the restaurant chain has agreed to give $5 to customers who have a receipt showing their overcharge on modified BOGO Croissan’wiches, and $2 gift cards to customers who meet certain other terms.

The proposed settlement also includes a permanent injunction barring the fast-food chain from repeating the mistake.

Anderson will receive a service award of $500 for assisting in the case. That’s a lot of sandwiches…

The case is Anderson v. Burger King Corp., case number 8:17-cv-01204, in the U.S. District Court for the District of Maryland.

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

Week Adjourned: 10.6.17 – Royal Caribbean, AndroGel, Align

Top Class Action Lawsuits

Your dream cruise turned nightmare. And it could have been avoided. That’s what a family is claiming it their negligence class action lawsuit against Royal Caribbean Cruise Lines. Filed by Canadian traveler Nikki McIntosh, the lawsuit alleges the cruise line should have cancelled a Galveston cruise scheduled during hurricane Harvey. You think?

According to the proposed class action lawsuit, rather than allowing would-be vacationers to reschedule their cruise in light of the category 4 hurricane, Royal Caribbean offered the choice of either taking the cruise or forfeiting all the money customers paid for their trip on the Miami-based cruise line’s Liberty of the Seas. The cruise was scheduled to depart on August 27th from Galveston, Texas.

According to the court filings, toddlers waded through flood waters as their stranded families searched for food after they were “strong-armed” into coming to Galveston when the cruise line “repeatedly” told passengers they would lose the entire cost of the trip if they cancelled.

The day before Harvey made landfall, Royal Caribbean issued an online notice that the Sunday cruise was still set to leave port as scheduled. The following day, as the storm made landfall in Texas, airlines started cancelling flights and officials closed the Port of Galveston, according to the complaint.

The port closure trapped Liberty of the Seas and three Carnival Cruise ships at sea, stranding more than 20,000 passengers set to disembark in Galveston. Regardless, Royal Caribbean told incoming travelers to expect an on-time departure that Sunday, plaintiffs claim.

The lawsuit notes that while Carnival rerouted its ships to other ports, Royal Caribbean “sailed straight ahead.” On the afternoon of Saturday, August 26, the cruise line’s chief meteorologist tweeted: “Weather looking favorable tonight and tomorrow,” according to court documents.

Just a few hours later, cruise passengers were again told that their cruise was going ahead, the ship would sail as planned. “By this time, catastrophic flooding had already begun,” the complaint states. “Hundreds of flights were cancelled, and highways were flooded, impassable and deadly. Yet RCCL was still attempting to find a way to make the scheduled sailing.”

However, late Saturday night, Royal Caribbean delayed the Sunday departure to Monday, as the closure of the port prevented it from docking and boarding the customers.

“At or around this time, was the last chance that these passengers likely could have escaped being trapped in Hurricane Harvey’s flood waters but RCCL did its best to convince these passengers to stay. Only on Sunday, August 27, the worst day of flooding in Galveston County, did the cruise line email the passengers offering them the ability to cancel for a full refund and future discount. A few hours later, they called off the cruise altogether. However, by this time, dozens of passengers were in the Galveston area.

“Had the cruise been cancelled a day or two earlier, just like Carnival did, then these passengers would not have been trapped in the path of Hurricane Harvey and subjected to 5-6 days of terror, hardship and inconvenience in a place foreign to them,” the lawsuit alleges.

The proposed class action lawsuit claims that Royal Caribbean was negligent in its refusal to cancel the sailing sooner and for failing to appropriately monitor the weather. The plaintiffs have suffered emotional distress with symptoms ranging from nausea to nightmares, as a result of the defendant’s actions, the lawsuit claims.

Unbelievable.

Top Settlements

The $140M settlement deterrent? AbbiVie, maker of the testosterone replacement therapy AndroGel, has been ordered to pay over $140 million to a man who alleges he suffered a heart attack as a result of using the drug.

The verdict is for second case of more than 6,000 such cases in an Androgel mass tort pending against AbbieVie and other companies, which have been consolidated in the Chicago court.

The case involves Tennessee resident Jeffrey Konrad, who filed the lawsuit, with his wife, in 2015. Konrad was awarded $140 million in punitive damages, intended to deter the defendant and others from engaging in similar behavior, and $140,000 in compensatory damages, according to Konrad’s attorneys.

According to the claims made by Plaintiffs across the US, AndroGel can cause heart attacks, strokes and other injuries.

In another case, a federal jury found AbbVie fraudulently misrepresented Androgel’s risk for cardiac events and consequently ordered the company to pay $150 million in punitive damages.

According to Konrad, aged 56, he suffered a heart attack in 2010, after using AndroGel for two months. He has since recovered from his injuries.

In 2014, the FDA convened an advisory committee to consider the adverse cardiovascular outcomes associated with testosterone replacement therapy. On the committee’s recommendation, the FDA required AbbVie to add a warning about cardiovascular risk to AndroGel’s label in May 2015, Reuter’s reports.

Proctor & Gamble’s gamble has ended up costing them $30 million. That’s the amount of a settlement deal agreed by P&G, potentially ending a consumer fraud class action lawsuit claiming the company falsely advertised its probiotic supplement Align as “clinically proven” to promote digestive health.

The proposed deal comes after seven years of litigation and months of negotiations and would, under the terms of the deal, see P&G pay up to $15 million in cash refunds to people who bought Align, and provide $5 million to $10 million worth of other benefits, in addition to fees and court costs.

Further, Procter & Gamble has also agreed not to make the “clinically proven” claim without new, reliable supporting clinical data or a change in Align’s formula.

Should the deal receive approval, the settlement class will consist of anyone who bought Align in the US or its territories for personal use between March 1, 2009, and June 6, 2016. Each class representative could receive up to $2,500.

Specifically, the terms of the proposed deal state that each class member could receive up to $49.26 in cash refunds, including $31.76 for two purchases of Align between March 1, 2009, and October 31, 2009, the time period in which Procter & Gamble specifically advertised Align’s benefits as clinically proven. For purchases made after that date, class members may receive one refund of $17.50.

The case is Rikos, et al. v. Procter & Gamble Co., case number 1:11-cv-00226, in the U.S. District Court for the Southern District of Ohio.

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

Week Adjourned: 9.29.17 – Herbalife, Snap-On Logistics, Medical Malpractice

Top Class Action Lawsuits

Not the Great Pyramid? Now here’s something with huge potential: Herbalife is facing a potential consumer fraud class action lawsuit alleging it operates as a pyramid scheme to bait consumers with the “promise of riches.” The Herbalife lawsuit, filed in Miami by eight former Herbalife distributors, also names 44 top Herbalife distributors as defendants.

The allegations center on Herbalife’s “Circle of Success” event cycle. These events allegedly consist of a series of expensive seminars held across the US. The seminars are allegedly a sales tool used by Herbalife representatives and inner circle top distributors, to create enthusiasm among the network’s hundreds of thousands of members and to convince them that success depends on attending as many of the “Circle of Success” events as possible.

According to the complaint, these events are systematic and scripted in nature, divided into separate tiers of semi-local Success Training Seminars, semi-annual Leadership Development Weekends, and “Extravaganza” and “January Spectacular” events run by Herbalife itself.

It’s quite the story. Allegedly, attendees are frequently required to travel in order to attend the events, for which ticket prices range between $30 and $200 per person. Further, once at the events, attendees are incentivized to make thousands of dollars in product purchases to achieve VIP status and other perks.

“With these acts, defendants have collectively persuaded hundreds of thousands of victims to invest substantial sums into attending events which are held out as the secret to becoming financially successful in a fraudulent scheme to which defendants know financial success is not possible,” the lawsuit states.

The lawsuit alleges violations of the federal Racketeer Influenced and Corrupt Organizations (RICO) Act for conducting a racketeering enterprise, for deceptive and unfair trade practices under the Florida Deceptive and Unfair Trade Practices Act and for unjust enrichment and negligent misrepresentation.

The lawsuit also claims separate violations of wire fraud, stating that the defendants’ acts of wire fraud are related because they share the same or similar purpose and target the same victims and have the same result: “hundreds of millions of dollars flowing from the plaintiff class into the coffers of Herbalife and its top few President’s Team distributors.”

The lawsuit is seeking certification of a class consisting of all people who purchased tickets and attended at least two “Circle of Success” events from 2009 to the present “in pursuit of Herbalife’s business opportunity.” The lawsuit states that this could involve hundreds of thousands plaintiffs.

Named plaintiffs Jeff and Patricia Rodgers, Michael and Jennifer Lavigne, Cody Pyle, Jennifer Ribalta, and Izaar and Felix Valdez, describe their losses as ranging from a few thousand dollars to over $100,000.

The defendants include Los Angeles-based Herbalife Ltd. and its wholly owned subsidiaries Herbalife International Inc. and Herbalife International of America Inc. Individual named defendants include top distributors, current and former members of the company’s board of directors, and members of its so-called President’s Team.

The case is Rodgers et al. v. Herbalife Ltd. et al., case number 1:17-cv-23429, in the U.S. District Court for the Southern District of Florida.

Top Settlements

Snap Judgment? Here’s a good news story –well – a happy ending at least. A $15 million settlement has been awarded to a manufacturing plant supervisor injured while at work and later demoted, then fired.

The plaintiff, 50-year old Cesar Astorga, alleged defamation, discrimination, and violations of California labor law against the defendant, Snap-On Logistics, a power tool manufacturer.

The trial took three weeks and the jury just a day and a half to reach its verdict. According to court documents, the plaintiff had worked for 15 years with the defendant as a supervisory employee.

The back story is that during the course of Astorga’s employment he suffered work-related injuries which required multiple surgeries and leaves of absence. The injuries were to both knees caused by falling off a scissor lift, and which were later aggravated when a 100-pound motor fell on top of him. He has had seven total knee surgeries (4 right-knee surgeries, 3 left-knee surgeries) to treat ongoing pain. From the beginning of 2002 through mid-2003, plaintiff was absent from work a total of nine and a half months. His next period of leaves of absence occurred from the beginning of April 2009 through February 2011, totaling 13 and a half months, according to court reports.

At one point, Snap-On provided Astorga with a golf cart so he could get around the 100,000 plus square foot facility. However, the defendant changed its policy in the 2009-2011 timeframe and told the plaintiff it no longer allowed employees to return to work with doctor-imposed work restrictions.

Astorga was demoted from his supervisor position during his most recent leave of absence, and fired on April 21, 2011. His medical bills, which were paid by Snap-On, exceeded $275,000.

Malpractice Win. Victory for the family who filed a medical malpractice lawsuit. They’ve been awarded a $3.2 million verdict by the jury hearing their case – the circumstances surrounding the death of a husband and father who died after receiving a vein implant designed to stop blood clots. The lawsuit claimed medical malpractice against three doctors at Mercy Suburban Hospital in Montgomery County, PA.

The Montgomery County jury reached their verdict after finding the doctors and Mercy Suburban Hospital negligent in their care of Ernest Lucchesi, who collapsed while refereeing a lacrosse game, was rushed to hospital and received the implant but later died.

The jury took seven hours to reach their verdict, after hearing evidence over the course of the nine day trial, which included, according to the Lucchesi family’s lawyer, two of the doctors admitting negligence: one before trial and one during trial. The third doctor took the stand to defend himself however, the jury didn’t like his excuses and assigned the majority of the negligence to him, the family attorney said.

According to the Lucchesi family’s pretrial memorandum, the doctors at Mercy implanted the vein filter in Lucchesi six months before he died. When Lucchesi was admitted to the emergency room, Bolden failed to note that the filter had migrated to his atrial valve, court papers said. He died three days after his discharge from Mercy.

The jury found Dr. John J. Flanagan 44 percent negligent, Dr. Hugh Lipshutz 31 percent negligent and Dr. David Bolden 25 percent negligent. The award was broken down into $1.5 million for wrongful death and just over $1.7 million under the Survival Act.

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

Week Adjourned: 9.22.17 – Defibrillators, Aggrenox, TGI Friday’s

Top Class Action Lawsuits

New Defibrillator Lawsuit. A new defective products class action lawsuit was just filed alleging Abbott and St. Jude Medical were aware of a battery-depletion defect in some of its cardiac defibrillators, as early as 2011. However, the lawsuit asserts, the defendants failed to adequately report the risk and waited almost five years before issuing the recall.

In the October 2016 defibrillator recall, the US Food and Drug Administration (FDA) and St. Jude state they had received reports “of rapid battery failure caused by deposits of lithium (known as “lithium clusters”), forming within the battery, and causing a short circuit. If the battery unexpectedly runs out before the patient is aware of the rapid battery drain and able to have it replaced, the ICD or CRT-D will be unable to deliver life-saving pacing or shocks, which could lead to patient death.”

The defibrillator lawsuit was filed September 18, 2017 in northern Illinois and centers on several ICD and CRT-D device models powered by lithium-based batteries, including the Fortify, Fortify Assura, Quadra Assura, Unify, Unify Assura, and Unify Quadra.

“On November 11 and 12, 2014, St Jude Medical’s management review and medical advisory boards were given two separate presentations on premature battery depletion,” the complaint alleges. “During these meetings, St Jude failed to tell its own boards about the full scope of the battery issue, presented false or incomplete evidence of the defect, and concealed from the boards evidence of a known death related to this battery defect, stating instead that there were no serious injuries or deaths directly related to lithium cluster bridging.”

Filed on behalf of ASEA/AFSCME Local 52 Health Benefits Trust and a collection of other third-party payers, the plaintiffs are seeking $9,999,000 in damages and medical costs related to their coverage of the defective implantable cardiac defibrillator (ICD) and cardiac resynchronization therapy defibrillator (CRT-D) devices from 2011 to the 2016 recall.

Top Settlements

Aggrenox Settlement. An almost heart-stopping settlement to report this week, coming in at $146 million, the proposed settlement has received preliminary approval potentially ending an antitrust class action lawsuit between direct purchasers of the stroke prevention drug Aggrenox and various pharmaceutical companies. The lawsuit claims that the defendants deliberately blocked generic alternatives to Aggrenox from reaching the market, in an attempt to own market share.

The lawsuit names Barr Pharmaceuticals Inc., which was acquired by Teva Pharmaceutical Industries Ltd. in 2008; Boehringer Ingelheim Pharmaceuticals Inc.; and the drugmakers’ affiliates as defendants. If approved, the deal would resolve claims brought forward in a lawsuit in 2013 made by direct buyers. It represents just a part of a massive multidistrict litigation accusing Barr Pharmaceuticals of agreeing to delay marketing its generic version of Aggrenox in exchange for a portion of Boehringer’s profits from the blockbuster drug.

According to the MDL, which includes 11 proposed antitrust class actions, Boehringer allegedly organized a $120 million pay-for-delay deal to keep generic versions of Aggrenox off the market.

According to the allegations, the US Food and Drug Administration approved Boehringer’s Aggrenox in 1998, and it proved a massive success, netting $366 million in US sales by 2008. Then, in 2007, when Barr Pharmaceuticals allegedly sought regulatory approval for its generic version of Aggrenox, Boehringer immediately filed a patent infringement lawsuit.

To settle the patent infringement lawsuit, Boehringer allegedly agreed to pay Barr Pharmaceuticals $120 million over a period of seven years and delay the introduction of a generic version of Aggrenox until 2015, according to court documents. Meanwhile, Boehringer granted Barr Pharmaceuticals a license to sell an authorized generic version of Aggrenox immediately, allegedly further suppressing the market for the generic drug, according to the allegations.

According to the terms of the proposed deal, each of the direct buyers will receive a pro rata share of the settlement. The proposed class includes at least 35 members, in 14 states and Puerto Rico. A final fairness hearing is scheduled for December 2017.

The MDL is In re: Aggrenox Antitrust Litigation, case number 3:14-md-02516, in the U.S. District Court for the District of Connecticut.

TGIF indeed!! Here’s a nice note to head into the weekend with…

Friday’s Tip Credits… A $19.1 million settlement has been reached in an employment class action lawsuit pending against TGI Friday’s. The putative class consists of some 28,800 TGI Friday’s workers who alleged the restaurant chain violated multiple state land federal labor laws.

According to the terms of the proposed agreement, the workers would get a pro rata share of the settlement based on the number of weeks they worked during the proposed class period.

The nationwide wage and hour class action lawsuit was brought by more than a dozen lead plaintiffs, alleging violations of the Fair Labor Standards Act (FLSA) and claims brought under the labor or unfair competition laws of nine states: California, Colorado, Connecticut, Florida, Illinois, Maryland, Michigan, New Jersey and New York. According to the lawsuit, the restaurant owners took a “tip credit” from the workers’ paychecks and paid them a reduced minimum wage, in violation of the FLSA and state laws s in this case. The workers also claimed that the restaurant owners failed to pay them all owed overtime and uniform-related expenses, misappropriated tips and took unlawful deductions for customer walkouts.

If the settlement agreement is approved, two classes of plaintiffs would be certified: a class of tipped workers who filed a written consent to join the litigation, and a class of tipped workers who worked in one of the nine states at issue in the suit and who did not file a timely consent to join the case. All eligible class members who submit a claims form will be paid a pro-rata portion of the net settlement based on the number of weeks they worked during the relevant period, court documents state.

According to the settlement memo, the estimated value of the unpaid wages is between $16.5 million and $91 million, representing between 20 percent and 115 percent of the estimated unpaid wages.

A hearing on the settlement’s preliminary approval has not yet been scheduled. The case is Julio Zorrilla et al. v. Carlson Restaurants Inc. et al., case number 1:14-cv-02740, in the U.S. District Court for the Southern District of New York.

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

Week Adjourned: 9.15.17 – PepsiCo, LensCrafters, BofA

Top Class Action Lawsuits

PepsiCo losing credit on this one… A subsidiary of PepsiCo is facing a employment class action lawsuit filed by a job applicant who alleges violations of the Fair Credit Reporting Act.

Specifically, plaintiff Altareek Grice alleges that during the job application process he was engaged in with Bottling Group LLC in August 2016, the company accessed his consumer credit report via Carco Group Inc., without making the necessary disclosures required by the FCRA.

According to the PepsiCo lawsuit, employers must provide a disclosure “in a document that consists solely of the disclosure,” if they wish to access a potential employee’s consumer report.

“Pepsi either knew or recklessly failed to know the disclosure requirements of [the FCRA] and that its acts in procuring or causing to be procured a consumer report regarding plaintiff and other class members without providing the required disclosure to them was facially contrary to the express language of [the act] and all administrative guidance available and violated the law,” the complaint states.

Grice seeks to represent a nationwide class of all individuals whose consumer reports were procured by Bottling Group LLC for employment purposes in the last two years and to whom the company did not provide a clear disclosure. The estimated size of the class could exceed 1,000 people, according to the complaint.

The case is Grice v. Pepsi Beverages Co. et al., case number 3:17-cv-01842, in the U.S. District Court for the Southern District of California.

Not exactly crystal clear… LensCrafters got hit with a proposed consumer fraud class action lawsuit alleging it falsely claimed that its prescription eyeglasses are made with pupillary distance measurements that are five times more precise than traditional measurements.

According to the LensCrafters complaint, filed by Kathleen Infante, LensCrafters, advertises its Accufit Digital Measurement System measures the distance between pupils to the tenth of a millimeter. Infante states that the defendant claims this system allows it to produce prescription glasses with more accurate lenses that put “the prescription exactly where you need it to see your best.” However, she asserts that this technology doesn’t, in fact, result in more accurate eye wear products.

“Because LensCrafters’ manufacturing process uses the same decades-old traditional methods, the end-product sold to customers cannot and does not have PD measurements that are ‘five times’ more accurate than traditional methods,” the complaint states.

According to the proposed lawsuit, the manufacturing equipment that LensCrafters uses doesn’t measure more precisely than 1 millimeter, which is the same precision as a standard ruler. Even if the Accufit system measures within a tenth of a millimeter, the manufacturing technology is incapable of actually producing glasses with that much accuracy, the complaint states.

“Even assuming the Accufit technology is, as advertised, five times more accurate than manual measurements, LensCrafters cannot and does not translate the measurements taken from the Accufit system into its manufacturing process,” the lawsuit asserts.

According to the complaint, while LensCrafters employees allegedly were aware of the equipment’s shortcomings, they were discouraged from discussing the manufacturing process with customers.

Infante seeks to represent a class of California residents who purchased prescription glasses from LensCrafters since September 5, 2011. The complaint states that LensCrafters introduced the Accufit system around 2011.

The case is Kathleen Infante v. Luxottica Retail North America, case number 3:17-cv-05145 in the U.S. District Court for the Northern District of California.Top Settlements

Top Settlements

BofA Interest & Fees for Military Servicemembers… No stranger to lawsuits, Bank of America (BoFA) has had a $41.9 million class action settlement preliminarily approval – without admitting any wrongdoing – (surprised?) potentially ending a consumer banking class action brought by military families who alleged that BoFA overcharged them on interest and fees related largely to mortgage and credit card accounts and then tried to conceal those violations. Seriously.

If final approval is granted, restitution will be made to more than 125,000 military members who alleged BoFA’s actions are in violation of the Servicemembers Civil Relief Act.

Under the terms of the settlement BoFA would, for a five year period, refrain from using a method for calculating interest subsidy that the service members contend could lead to higher costs for class members.

According to the deal, Class members will be divided into four groups, depending on the types of accounts they held. They will receive payments accordingly, with the first $15.4 million going to class members who did not previously receive or deposit payouts from Bank of America.

“After the class wide distribution, the value of any uncashed distribution checks will be redistributed further to the class, if the value is sufficient to make it economically feasible, or else such residual funds will be distributed as cy pres to a non-profit organization providing services to military service members and veterans,” court documents state.

The case is Childress et al. v. Bank of America Corporation et al., case number 5:15-cv-00231, in the U.S. District Court for the Eastern District of North Carolina.

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

Week Adjourned: 9.8.17 – Ford, Victoza, Honda Airbags

Top Class Action Lawsuits

Got a Ford? How are your lug nuts? The automaker got hit with a defective automotive class action lawsuit this week, alleging it sold vehicles with defective lug nuts that swell and delaminate to such an extent that drivers cannot remove them with a lug wrench provided by Ford. This results in drivers being forced to pay a professional to replace the parts.

The Ford vehicles involved include the Ford Fusion, Escape, Flex, Focus, F-150 and F-350. According to the complaint, while the drivers might reasonably expect to be able to replace a flat tire using the wrench that is supplied by Ford with these vehicles, in practice, they cannot because the wrench no longer fits over the lug nuts if they swell or delaminate.

Here’s the skinny: according to the Ford lug nut complaint, filed by Ford drivers from seven states, the lug nuts that secure the wheels to Ford’s Fusion, Escape, Flex, Focus, F-150 and F-350 vehicles are made with a steel core and a chrome, aluminum or stainless steel cap that improves the product’s appearance but swells and delaminates. This purported defect renders the Ford-provided wrench useless, making drivers pay more than $30 per wheel, plus labor, to replace the parts and often stranding the drivers on the side of the road with a flat tire.

Consequently, drivers who have a flat tire can become stuck on the side of the road they are unable to fix themselves, putting them in a “precarious and dangerous place,” the lawsuit states. When drivers do make it to a repair facility, they typically have to pay for the labor of removing the defective lug nuts as well as new parts, the complaint states.

Further, the drivers claim that Ford doesn’t replace the faulty lug nuts, even if the parts fail within the new vehicle warranty period. This forces the affected vehicles owners to “spend hundreds of dollars for new lug nuts and the labor to install them,” the lawsuit states.

Ford customers have submitted “numerous complaints” to the National Highway Traffic Safety Administration, which Ford monitors, the complaint states. Therefore, the automaker is aware of the problem, according to the lawsuit.

The drivers seek to represent a nationwide class of consumers who purchased or leased an affected vehicle as well as classes of drivers in each of the 50 states. It is estimated that millions of vehicles have been affected.

The drivers are represented by Steve W. Berman and Thomas E. Loeser of Hagens Berman Sobol Shapiro LLP and E. Powell Miller and Sharon S. Almonrode of The Miller Law Firm PC.

The case is Josh Wozniak et al. vs. Ford Motor Company, case number 2:17-cv-12794 in the U.S. District Court for the Eastern District of Michigan.

Top Settlements

Victoza Settlement… Sitting down? Good, now strap yourselves in. A $60 million deal has been agreed between Novo Nordisk Inc., and federal agencies who alleged the pharmaceutical company engaged in misleading marketing practices concerning its best selling type 2 diabetes drug Victoza.

The US Department of Justice (DOJ) charged that the company misled physicians and insurers about the associated risk of cancer associated with Victoza, specifically that the drug has been linked to a rare cancer called medullary thyroid carcinoma.

According to the DOJ, the allegations go back to 2010, when the US Food and Drug Administration (FDA) initially approved the drug. The FDA had required Novo Nordisk to modify its FDA-mandated risk evaluation and mitigation strategies, or REMS, after a 2011 survey revealed that half of primary care doctors polled were unaware of the potential cancer risks associated with the drug, according to the DOJ. The drug has been linked to a rare cancer called medullary thyroid carcinoma, the DOJ said.

According to the terms of the deal, Novo Nordisk will pay over $43 million to the federal government and about $3.3 million to state Medicaid programs. The deal will resolve claims made the by agencies under the False Claims Act. Additionally, Novo Nordisk has agreed to turn over $12.15 million in profits to resolve claims made that it knowingly violated the federal Food, Drug and Cosmetic Act from 2010 to 2012.

The deal also resolved seven whistleblower lawsuits filed between 2010 and 2016. Eleven whistleblowers were involved in bringing the lawsuits, and at least one, made by Peter Dastous, a Novo Nordisk sales representative who was responsible for selling Victoza to endocrinologists in South Carolina and northern Georgia, alleged Medicaid fraud against private commercial health insurers, and the deal brings the aggregate settlement amount the company will pay to $60 million.

You couldn’t make this stuff up – even if you wanted to.

The federal lawsuit is United States et al. v. Novo Nordisk Inc., case number 1:17-cv-01820, in the U.S. District Court for the District of Columbia. The whistleblower suit filed by Dastous is United States et al. ex rel. Dastous v. Novo Nordisk Inc., case number 1:11-cv-01662, in the U.S. District Court for the District of Columbia.

More About Airbags… Here’s another whopper. Honda has agreed to pay $603 million to exit the defective Takata air bag multidistrict litigation. This will hasten the removal of the exploding airbags from about 16.5 million Honda vehicles.

According to Honda, a $200 million fund will be established to expand the Takata air bag inflator recall in an effort to reach owners of affected Honda vehicles who have not been located or have not responded to recall notices.

If approved, the preliminary Honda airbag settlement would make Honda the sixth automaker to be exit the litigation, following Toyota, Subaru, Mazda and BMW who agreed to pay a combined $553.6 million. Nissan has also settled for $98 million. If Honda’s deal is approved, Ford would be the only remaining automaker in the lawsuit.

According to the terms of the deal, class members will be provided with rental or loaner vehicles while they deal with fixing their cars. Remaining funds will be distributed to class members in amounts up to $250.

The lawsuit was originally filed in 2014, claiming that Takata air bags contained volatile ammonium nitrate that when inflated, can misfire, especially in humid conditions, blasting chemicals and shrapnel at passengers and drivers. Takata’s air bag inflators have been linked to at least 11 deaths in the US and the company has faced massive global recalls.

Prior to filing for bankruptcy in June of this year, Takata pled guilty to wire fraud, agreed to pay $1 billion in fines and restitution, and acknowledged that it ran a scheme to use false reports and other misrepresentations to convince automakers to buy air bag systems that contained faulty, inferior or otherwise defective inflators.

The case is In re: Takata Airbag Products Liability Litigation, case number 1:15-md-02599, in the US District Court for the Southern District of Florida.

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

Week Adjourned: 9.1.17 – Wells Fargo, TD Bank, Wild Planet Tuna

Top Class Action Lawsuits

Does the term “Rate Lock Fees“ mean anything to you? Well, read on. Wells Fargo is facing a consumer banking class action lawsuit over charging improper mortgage-related fees to its customers. Specifically, the Wells Fargo mortgage loan lawsuit claims that home loan borrowers were being charged extra fees when their applications were delayed, even if the bank was the cause of the delay. Your first clue.

Filed in federal court in San Francisco, the lawsuit centers around fees known as rate-lock extension fees. These fees are charged, according to the allegations, when a borrower applies for a mortgage for which the lender promises a set interest rate, as long as the loan is approved within a certain time period, typically between 30 and 45 days. If the loan takes longer to approve, the borrower must pay a fee to keep the previously promised rate. Seriously.

As with most lenders, Wells Fargo is supposed to waive the fee if it is responsible for holdups. Borrowers only pay the fee if they are responsible for the delays by, for instance, failing to submit documents on time.

According to the allegations in the lawsuit, Victor Muniz, a Las Vegas security guard, was charged a rate lock extension fee by Wells Fargo of $287.50, despite the delays in his mortgage approval being caused by the bank and despite Muniz being told by a Wells Fargo banker that he would not have to pay the fee.

Muniz asserts that Wells Fargo was responsible for the delays approving his application partially because they hired an appraiser who was out of the country while Muniz’s mortgage application was being processed. Muniz has brought the suit on behalf of himself and all other borrowers who may have paid improper fees.

Top Settlements

TD Bank Penny Arcade Update… There’s a settlement – it’s received preliminary approval. So get your pencils out – time to file a claim. Of course, TD Bank denies any liability or wrongdoing, and the Court has not decided which side is right. However, to settle the case and avoid the costs and risks of litigation, TD Bank has agreed to a settlement.

Here’s the skinny: consumers who used a Penny Arcade machine at a TD Bank store between April 11, 2010 and July 12, 2017, may be entitled to a cash payment from the class action settlement.

Reportedly, TD Bank will calculate the amount each TD Bank customer would receive by using its records to determine the amount of Penny Arcade usage by those consumers. TD would multiply that sum by 0.26 percent to determine a customer’s distribution, or payment.

If you conducted a Penny Arcade transaction during the Class Period at a time when you did not hold a TD Bank Account, you must submit a Claim Form by October 27, 2017 to be eligible to receive a Settlement Payment based on such transaction(s).

If you conducted a Penny Arcade transaction during the Class Period at a time when you held a TD Bank checking, savings, personal loan, or business loan account (“Account”), you do not have to do anything to receive any Settlement Payment to which you are entitled.

Got Wild Planet and Sustainable Seas tins of Tuna? Well, heads up folks – a settlement has been reached in a consumer fraud class action lawsuit pending against Wild Planet and Sustainable Seas alleging their tinned tuna products were deliberately under-filled to below the 5-ounce weight stated on the product labels.

Under terms of the tuna settlement, Wild Planet will create a settlement fund of $1.7 million, part of which will be distributed to Class Members eligible to claim benefits, which include all US residents who between November 5, 2011 and May 12, 2017 who purchased a can of tuna under the Wild Planet or Sustainable Seas brands.

Eligible class members can claim a cash payment of up to $29. This amount could be lower depending on the number of timely and valid claims received. The settlement payout could also be reduced if the cost of the claims administration is more than $350,000.

The case is Ehder Soto v. Wild Planet Foods Inc., Case No. 5:15-cv-05082, and Heney Shihad v. Wild Planet Foods Inc., Case No. 1:16-cv-01478, in the U.S. District Court for the Northern District of California.

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