Week Adjourned - Part 22

Week Adjourned: 8.2.13 – Apple Store, Pfizer, Chester Career College

The week’s top class action lawsuits and settlements for the week ending August 2, 2013. Top lawsuits include Apple employees claiming wage and hour violations, Pfizer Rapamune Off Label marketing fines and Chester Career College settling consumer fraud charges.

Top Class Action Lawsuits

Bad Apple! It seems Apple may be entering the ever-growing list of wage and hour offenders. This week, a class action lawsuit was filed against the tech giant, alleging that Apple store staff are not paid for the time they spend undergoing bag searches, as required by the company’s policy.

Apple has a policy of requiring its retail store employees to undergo two mandatory bag searches per day. Two former Apple store employees from New York and Los Angeles filed a complaint in San Francisco federal court on Thursday regarding this policy. They allege they had to stand in lines up to 30 minutes long every day for store managers to check their bags and ensure they weren’t smuggling home stolen goods. The Apple unpaid wages lawsuit claims that the cumulative time employees spend having these bag searches done totals dozens of hours of unpaid wages, roughly $1,500 per year.

“Apple has engaged and continues to engage in illegal and improper wage practices that have deprived Apple Hourly Employees throughout the United States of millions of dollars in wages and overtime compensation,” the complaint reads.

“These practices include requiring Apple Hourly Employees to wait in line and undergo two off-the-clock security bag searches and clearance checks when they leave for their meal breaks and after they have clocked out at the end of their shifts.”

According to the complaint, Apple’s retail stores employ some 42,400 people in 13 countries. The retail outlets generated net sales of $156.5 billion in 2012. Most hourly workers make between minimum wage and $18.75 per hour and work 40 hours per week.

Amanda Frlekin and Dean Pelle, the two former employees who filed the wage and hour lawsuit, worked as “specialists,” essentially an in-store customer support position. The Apple lawsuit describes the bag searches as “required but uncompensated security checks,” claiming that Apple violated the Fair Labor Standards Act (FLSA), and New York labor law, and California labor law.

Top Settlements

Off-label Drug Marketing Saga Continues—this week, it’s news that Pfizer will have to pony up $491 million to settle criminal and civil charges relating to its off-label marketing of Rapamune. The US Justice Department had claimed the drug company marketed the kidney-transplant drug for patients who received non-kidney organ transplants.

The Justice Department began its investigation over four years ago, and Pfizer inherited the probe when it bought Wyeth in 2009.

According to the Justice Department, Wyeth trained sales reps to push Rapamune for unapproved uses and offered bonuses to persuade them to flog the drug for patients it wasn’t cleared to treat. “This was a systemic, corporate effort to seek profit over safety,” U.S. Attorney Sanford Coats said in a statement. “Companies that ignore compliance with FDA regulations will face criminal prosecution and stiff penalties.”

Under the Pfizer Rapamune settlement agreement, Pfizer’s Wyeth division pleaded guilty to a criminal misbranding violation under the Food, Drug and Cosmetics Act. The deal includes a criminal fine of $157.58 million and asset forfeiture amounting to $76 million, or $233.5 million total. Civil payments to the government and states add another $257.4 million, for a total of $490.9 million. Okee dokee…

Looks like Chester Career College hit the Learning Curve on this one—at a cost of $5 million. That’s the settlement that was just approved ending a financial consumer fraud class action lawsuit pending against the college, formerly known as Richmond School of Health and Technology. The lawsuit alleged that the for-profit college practices predatory lending practices affecting thousands of students, primarily African American students, while offering sub-par education.

The back story—Chester Career College purportedly offers classes leading to careers in nursing, massage therapy and other medical-related fields, and specifically targeted inner city students with ads on hip-hop stations and other media aimed at their demographic. According to the lawsuit, the college enrolled “almost exclusively” students who qualified for federal financial aid, primarily in the form of student loans.

The Chester Career College settlement, approved by US District Judge John A. Gibney, will also see the school reimburse more than 4,000 students and for attorneys’ fees and requires Chester Career College to institute changes that will provide prospective students with “much more transparency” before they enroll. Further, the settlement also provides for continued tracking of students and career placement “to strengthen the school” and its educational mission as it moves forward.

Here’s the skinny—the settlement covers students enrolled at the school from July 2004 through February 2013. Students who qualify for claims will receive settlement notices by mail. Any money left unclaimed from the remaining funds in the escrow account after one year will be donated to nonprofit organizations dedicated to assisting the economically disadvantaged.

Ok folks, have a good one—see you at the bar!

Week Adjourned: 7.26.13 – Huggies Diapers, Mini Cooper, Major Asbestos Verdict

Top class action lawsuit wrap for the week ending July 26, 2013. Top lawsuits include Huggies Natural Diapers and Wipes, Mini Cooper defective auto claims, and the largest consolidated asbestos verdict in NY history.

Top Class Action Lawsuits

Maybe Huggies Not So Tree-Hugging After All? ….Huggies maker, Kimberly-Clark Corp, is facing a consumer fraud class action over allegations the company promotes its disposable diapers and baby wipes as “natural” baby products, when they are not only environmentally unfriendly, but also contain dangerous toxins.

Filed by lead plaintiffs Dianna Jou and Jaynry Young, the Huggies diapers class action lawsuit, entitled Jou, et al. v. Kimberly-Clark Corp., Case No. 13-cv-03075, in the U.S. District Court for the Northern District of California, alleges that Kimberly-Clark profits through misleading information about its Huggies baby wipes and diapers, by capitalizing on consumer demand for organic, environmentally friendly, natural products.

The lawsuit contends that Huggies diapers are made with potentially harmful ingredients and that Huggies Natural Wipes contain two chemicals that have been either banned or restricted in other countries because they are considered hazardous to human health.

Specifically, the class action lawsuit alleges Huggies Natural Wipes are made with methylisothiazolinone, a chemical, the plaintiffs maintain, is associated with skin toxicity, immune disruption and allergic reactions. The substance, which may also act as a neurotoxin, has been restricted for use in cosmetics in Japan and Canada, according to the complaint.

“That the products are not natural, yet marketed and distinguished primarily upon this characteristic, is sufficiently deceiving to the customer,” the Huggies lawsuit claims. “The fact that evidence tends to indicate that products’ contents, in current and past iterations, may be hazardous only highlights the defendant’s deception. “Further, the plaintiffs claim Huggies Natural Wipes also contain sodium methylparaben, a substance which allegedly acts as an endocrine disruptor, immune toxicant and allergen, and has been banned entirely in the European Union. According to the lawsuit, the U.S. Food and Drug Administration limits the use of parabens in food and drinks, and, in an Environmental Working Group report cited by the plaintiffs the substance can reportedly “strip skin of pigment.”

Additionally, the plaintiffs contend that Huggies Natural Diapers are not a great deal different from standard diaper products because while they contain organic cotton, it is used on the outside of the diapers, and therefore never actually comes into contact with the baby. Jou and Young also claim that the liners of the diapers also contain several of the same unnatural, potentially harmful ingredients used in the company’s standard diapers, including polypropylene and sodium polyacrylate, therefore, they are not environmentally friendly.

“Defendant’s prominent representations on the packaging for the products deceptively mislead consumers into believing that Kimberly-Clark offers two natural, environmentally sound, and relatively safer product alternatives to traditional offerings,” the plaintiffs said. “While superficial differences do exist, these immaterial changes do not come close to matching a consumer’s reasonable expectation resulting from the company’s advertised benefits.”

Jou and Young are suing on behalf of a class of consumers across the country who bought Huggies Natural Wipes or Natural Diapers since December 2006, asserting violations of the California Consumer Legal Remedies Act, False Advertising Law, the Environmental Marketing Claims Act, Unfair Competition Law and the Wisconsin Deceptive Trade Practices Act.

Top Settlements

Sadly, a Settlement for the Record Books. An asbestos verdict of $190 million has been awarded in a lawsuit brought by five men, three of whom are now deceased, who were exposed to asbestos-tainted products and equipment during their jobs as steamfitters, plumbers, and construction workers.

A panel of New York Supreme Court jurors found the two defendant companies had acted negligently and recklessly, then rendering a verdict worth a total of $190 million, the largest consolidated asbestos verdict in New York history. It is believed that the $60 million individual amounts two of the men received are the largest individual sums awarded in a New York asbestos case.

The jury found both defendants—boiler companies Cleaver Brooks and Burnham—negligent in having failed to warn about the dangers of the asbestos used in connection with their equipment. The verdict said both companies had acted with reckless disregard for human life.

All five of the plaintiffs were tradesmen from the New York tri-state area.

One man, from Toms River, NJ, worked in the 1950s and 1960s as a pipefitter in the Brooklyn Navy Yard. He was exposed to asbestos daily while fitting pipes into the salt-water distilling units aboard aircraft carriers like the USS Constellation and USS Independence.

Another, from Oyster Bay, NY, worked for nearly 30 years as a plumber, handling dozens of different types of products contaminated with asbestos.

A third, of Middle Village, NY, was also exposed to asbestos working as a plumber in Brooklyn, Queens, and Rockland County.

Another man, from Howard Beach, NY, was exposed to asbestos on the job as a painter and construction worker. He was involved with the removal and demolition of boilers containing asbestos-laden parts.

The final client, from Kent, CT, also worked with boilers and boiler parts in the course of his job as a steamfitter.

All five men developed asbestos mesothelioma as a result of asbestos exposure. Three have died of complications related to the disease.

The trial (Index Nos. 190008/12, 190026/12, 190200/12, 190183/12, 190184/12) was held in New York Supreme Court before Judge Joan Madden.

Mini Makes Good….A preliminary settlement of a defective automotive class action has been approved, potentially ending the lawsuit pending against BMW over allegations the German auto-maker concealed a defect in the transmission of its Mini Cooper cars. But there a couple of details that BMW needs to clear up before the settlement is granted final approval.

US District Judge Philip S. Gutierrez, who is hearing the Mini Cooper complaint, (Aarons v. BMW of North America LLC, Case No. 11-cv-07667, in the US District Court for the Central District of California), has requested additional information about the class size and suggested some revisions to the existing preliminary settlement. However, if the Mini Cooper settlement is approved , thousands of Mini Cooper owners could be eligible to receive as much as $9,000 for vehicle repairs.

According to attorneys representing the plaintiffs, approximately 1,200 Mini Cooper owners had to have their transmissions replaced at BMW dealerships. However, many drivers took their Mini Coopers to a third-party facility for repair, and that number is not known.

The Mini Cooper lawsuit claims that the transmission defect, which can cause significant delays in acceleration, loss of forward propulsion and total transmission failure while driving, was concealed from Mini Cooper customers, by BMW. However, BMW, at the same time, allegedly issued bulletins to BMW dealerships acknowledging the defect. The transmission defects also included the failure of the transmission without warning. These failures and defects may have contributed to traffic accidents resulting in serious injury or death.

The plaintiffs further claim that in an effort to keep the prices of the Mini Coopers low, BMW sacrificed quality, thereby making cars of a substandard quality and putting consumers at risk.

Ok Folks, Have a safe and happy weekend—see you at the bar!

Week Adjourned: 7.12.13 – Ford, BofA Mortgages, Ticketmaster

The top class actions and settlements for the week ending July 12, 2013. This week’s highlights include Ford hybrids, Bank of America loan modifications and Ticketmaster Entertainment Rewards program.

Top Class Action Lawsuits

Heads-up all you Ford Hybrid owners. A defective automotive class action lawsuit has been filed against Ford alleging the car manufacturer’s hybrid sedans can shut down without warning. Not good!

Specifically, the Ford Hybrid class action claims that because of a flaw in the engine-cooling systems, two of Ford’s hybrid sedans can shut down without warning while traveling at highway speeds. The lawsuit further claims that Ford has known of the defects since 2005 based on pre-release testing data, consumer complaints, warranty reimbursement rates and data from Ford dealerships.

The Ford lawsuit claims the defects are present in the 2005 through 2008 models of the Ford Escape Hybrid and the 2006 through 2008 models of the Mercury Mariner. These models were the first hybrid crossovers to be released by a US car manufacturer.

The backstory: Filed by lead plaintiff Jean MacDonald, the lawsuit, entitled MacDonald v. Ford Motor Co., Case No. 3:13-cv-02988, in the U.S. District Court for the Northern District of California, alleges MacDonald purchased a new 2007 Ford Escape hybrid from a California dealership and put more than 43,000 miles on it without incident. Then, in December 2012, the car’s “Stop Safely Now” light went on and the vehicle went powerless in the middle of the freeway.

A dealership determined the vehicle there was a malfunction of a cooling pump associated with the MECS, and replaced it at a cost of $767. The MECS (Motor Electric Cooling System) is used in the Ford hybrids to diffuse the heat generated by the hybrid vehicles’ battery-powered motor component. The MECS releases hot air into the atmosphere. To prevent the vehicles from sustaining damage from the heat, the vehicles are designed to shut down whenever the MECS becomes inoperative.

According to the lawsuit, Ford’s MECS coolant pumps are “substantially certain” to fail suddenly and without warning, causing the vehicle to shut down immediately. Because the engine shutdown can occur while the vehicle is traveling at highway speeds, drivers may find themselves in an extremely dangerous situation.

“The coolant pump causes unsafe conditions in the class vehicles, including but not limited to abrupt losses of acceleration, inability to manoeuvre the vehicle due to reduced speed, slowed steering, and in certain cases, complete vehicle failure,” the lawsuit states. This sudden engine failure can leave a driver stranded in the middle of a busy highway if a shoulder cannot be reached before the vehicle comes to a complete stop.

“Defendant knew about and concealed the coolant pump defect present in every class vehicle, along with the attendant dangerous safety and driveability problems, from plaintiff and class members, at the time of sale, lease and repair,” the Ford complaint states.

In bulletins issued by Ford, the company issued instructions on how Ford mechanics were to replace the allegedly defective coolant pump with a nondefective model, but the carmaker has allegedly told consumers that they are on the hook for the costs of a new system rather than repairing it under warranty.

“Instead of repairing the defect in the MECS coolant system, Ford either refused to acknowledge their existence, or performed ineffectual repairs that simply masked the effect,” according to the lawsuit.

The Ford class action lawsuit seeks to represent a nationwide class of buyers and lessees of the allegedly defective Escape and Mariner models, as well as a subclass of California-based customers under the state’s Consumer Legal Remedies Act.

Bank of America—at it again? If you hold a BoFA mortgage, read this: A consumer banking deceptive practices class action lawsuit has been filed alleging that Bank of America (NYSE:BAC) created and headed an illegal enterprise designed to defraud homeowners seeking loan modifications as part of the government’s Home Affordable Modification Program, or “HAMP.”

The BofA loan modification class action, filed in US District Court in Colorado on July 10, alleges that Bank of America masterminded a scheme which allowed it to deny help it had promised to give thousands of its customers in exchange for $45 billion it took in bailout funds.

“We believe that Bank of America gamed the system, perpetrating a fraud on both its customers and American taxpayers,” said Steve Berman, managing partner of Hagens Berman and one of the attorneys who filed the lawsuit. “BofA promised that it would work with homeowners to modify their mortgages under the HAMP program. Instead it took $45 billion in taxpayer money and fought as hard as it could to avoid granting modifications, squeezing every last dollar from its customers and wrongfully foreclosing thousands of people’s homes in the process.”

The lawsuit alleges that Bank of America employed contractors, including co-defendant Urban Lending Solutions (“Urban”), who repeatedly lied to Bank of America’s customers. For instance, the suit claims that Urban employees answered the phone, “Bank of America – Office of the President,” when they did not work directly for Bank of America.

Former employees, according to the complaint, have confirmed that Bank of America instructed its employees to delay modifications, claim that it had not received paperwork and payments when it had received them, and declined modifications en masse in periods known internally as “blitzes.”

The complaint also alleges that Bank of America went to great lengths to keep its employees silent about these issues. According to the BofA class action, employees who questioned the ethics of declining modifications for fraudulent reasons, or of lying to customers, were subject to discipline including termination.

The lawsuit claims that Bank of America is guilty of violating the Racketeering Influenced Corrupt Organizations Act, or RICO. It asks for damages to be awarded to a proposed class defined as:

“All individuals whose home mortgage loans have been serviced by BOA and who, since April 13, 2009, (1) applied to BOA for a HAMP loan modification, (2) fulfilled an FHA Trial Period Plan Agreement or any other trial-payment agreement that was not issued pursuant to SD-09 (form 3156), (3) sent documents to, or received documents or other communications from, Urban employees in connection with their attempts to modify their home mortgage, and (4) did not receive, within 30 days after making all required trial payments, a permanent loan modification that complied with HAMP rules.”

Top Settlements

This one’s on Ticketmaster! A proposed settlement has been reached in the Ticketmaster consumer fraud class action lawsuit which alleges the company deceptively enrolled website visitors into an “Entertainment Rewards” program.

The Ticketmaster lawsuit, entitled John Mancini, et al. v. Ticketmaster, et al., Case No. 7-cv-01459 DSF, U.S. District Court, Central District of California, alleges that Defendants enrolled customers of Ticketmaster.com into the “Entertainment Rewards” program through a process that was likely to deceive reasonable consumers. In particular, Plaintiffs allege that Defendants did not adequately disclose that customers were being enrolled in an online coupon service and that they would be charged a monthly fee for that service, typically $9, on the credit or debit card they used at Ticketmaster.com.

Plaintiffs further allege that the vast majority of enrollees who were charged for the Entertainment Rewards program did not use the program or otherwise benefit from it. Excluding customers who have previously obtained a full refund, Plaintiffs allege that there are approximately 1,120,000 such customers and that the total paid by these customers (net of partial refunds) for membership in Entertainment Rewards was approximately $85 million. Plaintiffs assert violations of California and federal law.

Class Members eligible for part of the Ticketmaster settlement include all US residents who: made a purchase on Ticketmaster.com between September 27, 2004 and June 9, 2009: were enrolled in the “Entertainment Rewards” discount coupon program via a process that included Ticketmaster’s transfer of their credit or debit card information to Entertainment Publications, Inc,: were subsequently charged for their membership in the Entertainment Rewards program: did not receive a full refund of amounts charged, and as of May 8, 2013, have not printed any coupon or applied for any cashback award in connection with the Entertainment Rewards program.

Eligible class members will receive a cash refund of the amounts they paid for membership in the Entertainment Rewards program (other than amounts that have already been refunded), up to a maximum of $30, however this is dependent on the number of successful claims filed.

A final hearing is set for July 29, 2013, and if approved, the settlement will resolve the lawsuit against Ticketmaster, Entertainment Publications, Inc. and IAC/InterActiveCorp (“Defendants”) brought by several Ticketmaster customers (“Plaintiffs”).

Complete information and claim forms are available at www.EntertainmentRewardsSettlement.com.

Ok folks, Have a great weekend—see you at the bar!

Week Adjourned: 6.28.13 – Apple, Mesh Implants, Jackson National

The week’s top class action lawsuits and settlements in our weekly wrap, Week Adjourned. Top stories include Apple, Mesh Implants and Jackson National

Top Class Action Lawsuits

Hey Apple, iAin’t got HD. Apple is facing yet another consumer fraud class action lawsuit. This week’s lawsuit contends that the tech giant charges its iTunes customers extra for accessing high definition (HD) media products for older Apple devices, despite the fact that those devices lack HD capability.

Hmm.

In the Apple iTunes class action lawsuit, lead plaintiff Scott J. Weiselberg claims that the default download option provided on Apple’s iTunes is HD, which is more expensive than non-HD options for movie and TV show rentals, for example.

The backstory—in 2008, Apple began offering movie and video download rentals for its iPhone, iPod and iPad devices. However, early models of these devices were not equipped with HD, and so cannot run HD content, but are restricted to playing standard definition (SD) content instead. Only newer versions of Apple products are HD-capable.

The lawsuit alleges that in June 2010 Weiselberg, who owned a 3G SD iPhone, rented the movie “Big Daddy” from iTunes, paying $4.99 in rental fees. He alleges he was unaware that a cheaper option was available for rental—the SD version of the movie. Had he known, he claims, that would have been the version of the movie he would have rented. Makes sense.

Weiselberg alleges that while Apple eventually added a notice to the iTunes download notifying customers of the availability of SD, by that time Apple had already collected “millions of dollars in undeserved profits.”

The consumer fraud class action claims that Apple’s failure to notify its customers of the SD option is a violation of California’s Unfair Competition Law. He is seeking restitution, an injunction and damages for unjust enrichment. We shall see….

Top Settlements

TVM Settlement, For Some. A victory at last—for some women—but the battles go on. A $54.5 million settlement has been reached, potentially ending several transvaginal mesh lawsuits which allege the implants eroded in the plaintiffs, leaving them incontinent and suffering from chronic pain.

Endo Health Solutions Inc, which acquired American Medical Systems Inc., (AMS), the maker of the vaginal-mesh devices, which include the Perigee, Apogee and Elevate implants, said in a statement that is set to resolve an undisclosed number of the vaginal mesh personal injury lawsuits. However, AMs is facing over 5,000 such lawsuits, which have been consolidated: the first lawsuit set to go to court in December 2013. This settlement agreement doesn’t address these lawsuits.

The AMS settlement will resolve a small number of vaginal mesh injury lawsuits filed in both federal and state courts. Lawyers representing the plaintiffs stress that no universal settlement has been made. The first cases are set to go to court later this year.

In August 2011, the US Food and Drug Administration issued a report stating vaginal-mesh products should be classified as high risk devices, based on a review of side-effect reports from January 2008 to December 2010. Women’s groups are demanding that the devices be recalled. I should think so.

Better late than never! Heads up anyone who purchased or knows an elderly person who purchased Jackson National annuities—A $25 million settlement has been proposed, which, if approved, would settle the proposed consumer fraud and elder financial abuse class action pending against Jackson National Life Insurance Co. The insurer has agreed to pay the settlement which would end the litigation and bring economic relief to over 44,000 elderly customers in California who bought their fixed deferred annuity products. Yes—44,000 customers.

The Jackson National annuities lawsuit alleges that Jackson National targeted its senior citizen customers in the selling of its deferred annuities that had hidden fees, commissions and surrender penalties, essentially defrauding these clients.

According to court documents, the terms of the proposed class action stipulate that Jackson National make cash payments or account credits equal to 22 percent of any past surrender charges the affected policyholders incurred. The insurer will also reduce any future surrender charges by 22 percent. If the Jackson National settlement is approved, these benefits will go into effect automatically; there will be no claims process, and Class Members will not be required to do anything to receive the full settlement benefit.

“The price of delay is particularly high in this litigation because a substantial portion of the class consists of elderly consumers who cannot wait years for relief,” the memorandum said. “Continuation of the litigation would be extremely expensive and risky.” To say the least— perhaps?

The proposed Class includes all California individuals who were age 60 years or older when they purchased misleading deferred annuities from Jackson National insurance, between October 24, 2002, and January 12, 2012.

Okee dokee—that’s it for this week. A safe and happy weekend to all. See you at the bar!

Week Adjourned: 6.7.13 – Crest Toothpaste, Organic Seed Mix, Lipitor

Organic Seed Mix, Lipitor, and Crest Toothpaste top our Week Adjourned wrap of top class action lawsuits and settlements for the week ending June 7, 2013

Top Class Action Lawsuits

Going Organic Leads to Going to Hospital? Heads-up anyone who bought Townsend Farms Organic Anti-Oxidant Blend frozen berry and pomegranate seed mix: A woman who alleges she fell ill with a hepatitis A infection and was hospitalized after eating this product has filed a lawsuit against Oregon-based Townsend Farms.

According to the food poisoning lawsuit, plaintiff Karen Echard purchased and consumed Townsend Farms Organic Anti-Oxidant Blend in the Phoenix area in April of 2013. Attorneys allege that she fell ill with symptoms of hepatitis A infection, including fever, chills, nausea, abdominal pains and jaundice during an illness that started on May 21.

The Organic Frozen Berry Seed Mix class action states that Karen sought medical treatment for her illness on more than one occasion and was hospitalized for 5 days. Her attorneys allege that Karen, a healthcare practitioner and student, fears she will lose her job and be forced to discontinue her schoolwork due to her illness, as she continues to experience the effects of her hepatitis A infection. The Townsend Farms lawsuit asks for damages including physical injury, medical and medical-related expenses, wage and lost earning capacity damages.

On June 6, the Centers for Disease Control and Prevention announced that at least 61 people from 7 states had fallen ill with hepatitis A infections in a “Multistate outbreak of Hepatitis A infections potentially associated with ‘Townsend Farms Organic Anti-Oxidant Blend’ frozen berry and pomegranate mix.”

Lipitor Diabetes Link Looking at Lawsuit. Lipitor is making news—this time it all about what the anti-cholesterol drug shouldn’t be doing—allegedly. Pfizer, the maker of Lipitor (atorvastatin) is facing a mounting number of these personal injury lawsuits, alleging the drug causes diabetes. In fact, several of the initial Lipitor diabetes lawsuits have just been green lit for a Multi-district litigation—or MDL.

The Lipitor lawsuits allege that Pfizer has failed to adequately warn consumers of the risk for developing diabetes associated with the statin. In 2012 Pfizer updated the Lipitor labeling to include warnings of increased risk for diabetes, however, the lawsuits contend that this was insufficient.

Lipitor belongs to a class of drugs called statins, which are used to lower cholesterol by reducing blood levels of low-density lipoprotein (LDL) cholesterol, or “bad” cholesterol, a contributing factor in heart disease. A study (Culver AL, Ockene IS, Balasubramanian R, et al. “Statin Use and Risk of Diabetes Mellitus in Postmenopausal Women in the Women’s Health Initiative.” Archives of Internal Medicine, 2012,172(2): pp.144-152.), completed in 2012, as part of the Women’s Health Initiative (WHI) found an association between the statin class of medications and the development of type 2 diabetes in women, particularly post-menopausal women.

Among the most recent Lipitor diabetes lawsuits filed is that of Margaret Clark, filed in the US District of South Carolina, this April. She contends she was prescribed Lipitor in 2002 to address her risk for heart disease. At the time, according to her lawsuit, she was considered a healthy weight. However, in February 2012, Clark was diagnosed with type 2 diabetes.

Clark’s lawsuit alleges Pfizer knew or should have known that there was a connection between Lipitor and diabetes before it was made publically available in 1997. Instead, the warning was only added to the product labeling in February 2012, after the FDA’s Division of Metabolism and Endocrinology Products requested that a warning be provided for consumers and the medical community.

According to the lawsuit, the warning did not actually mention type 2 diabetes, but rather stated “Increases in HbA1c and fasting serum glucose levels have been reported with HMG-CoA reductase inhibitors, including LIPITOR.”

The Lipitor lawsuit also states “Until the February 2012 label change, Lipitor’s label never warned patients of any potential relation between changes in blood sugar levels and taking Lipitor.” And, “Despite the February 2012 label change, Lipitor’s label continues to fail to warn consumers of the serious risk of developing type 2 diabetes per se when using Lipitor.”

Top Settlements

Crest Toothpaste, er, Crestfallen? A preliminary settlement has been reached in the consumer fraud class action lawsuit pending against Procter & Gamble Co (P&G). The lawsuit alleges the company falsely advertised the benefits of its Crest Sensitivity Treatment & Protection toothpaste. Specifically, the Crest lawsuit, entitled, Edward Rossi v. The Procter & Gamble Co., Case No. 11-07238 (JLL) (MAH), U.S. District Court, District of New Jersey, claims P&G engaged in misleading and deceptive advertising and marketing of its Crest Sensitivity Toothpaste.

The tentative Crest toothpaste settlement, if approved, could include anyone in the US who purchased Crest Sensitivity Treatment & Protection toothpaste between February 2011 and March 2013. If you purchased this toothpaste between those dates, you may be eligible to claim a full or partial refund from the settlement. If approved, potential class members must submit a valid claim form and proof of purchase in order to receive damages. Class members with with proof of purchase will be able to claim a full refund of the purchase price they paid. Those without documentation will receive a refund of $4. Only one tube of Crest Sensitivity toothpaste will be refunded.

Valid claim forms and any supporting documents must be postmarked no later than August 19, 2013. Detailed claims filing instructions are provided below.

A Final Fairness Hearing will be held on September 12, 2013.

For complete details on filing a claim, and to download forms, visit: http://www.sensitivitytoothpastesettlement.com

Okee dokee—that’s it for this week—happy and safe weekend to you all—see you at the bar!

Week Adjourned: 5.31.13 – Twinings Tea, Apple, Wellbutrin

The top class action lawsuits for the week ending May 31, 2013. Top stories include Twinings Tea, Apple and Wellbutrin.

Top Class Action Lawsuits

“What’s in Your Cuppa?” Not what you think, if the allegations brought in a consumer fraud class action against Twinings North America prove true.

In fact, the Twinings lawsuit claims the tea company has falsely represented the health benefits of more than 50 different blends of its teas. Crikey!

Lead plaintiff Nancy Lanovaz, who filed the lawsuit, claims she paid a premium price for Twinings’ green and black tea and would not have purchased it without the allegedly unlawful labeling that the tea is a “natural source of antioxidants.”

Twinings filed a motion to dismiss the lawsuit, however, US District Judge Ronald M. Whyte has now ruled that the potential class action may move forward stating that that 51 of the 53 tea blends that Lanovaz claims are falsely labeled are made from the same camellia sinensis plant and are therefore the same product.

“Because the claims for 51 of the varieties of tea are based upon the exact same label describing the same product, camellia sinensis, the court finds that Lanovaz has standing to sue on behalf of the purchasers of these teas and thus denies Twinings’ motion with respect to these products,” Judge Whyte wrote. “Red tea, on the other hand, is made from a different plant and is thus a significantly different product.”

The consumer fraud class action lawsuit alleging false advertising of Twinings teas claims the company violated California’s Unfair Competition Law, False Advertising Law and the Consumers Legal Remedies Act.

Top Settlements

Apple Gets Bitten. Time for this week’s litigation update on Apple Inc—the company is seemingly dogged by consumer fraud and defective product lawsuits right now. But this week, we have a proposed settlement to report—it’s been all over mainstream media—Apple has agreed to pay $53 million in settlement of a defective products class action lawsuit alleging the tech giant used faulty indicators showing that iPhones and iPods were exposed to water, to deny customers’ warranty claims.

According to court documents regarding the settlement, eligible consumers could receive up to $300 depending on the device model they owned. Bloomberg reports that lawyers for consumers say the liquid submersion indicators on iPhones and iPods could be triggered by moisture during ordinary use and falsely indicated devices had been damaged by liquid spills or submersion, problems that were excluded from coverage under Apple’s warranty. Apple has denied the allegations, defending its indicators as reliable.

Customers whose warranty claims for iPhones were denied before December 31, 2009, on the basis of Apple’s liquid damage policy and claims for iPod Touches that were denied before June 2010 are eligible for settlement funds. Attorneys can seek as much as 30 percent of the $53 million settlement fund for their fees and expenses, Bloomberg reports.

FYI—The settlement is subject to court approval. So watch this space—we’ll keep you posted.

Last Call for Wellbutrin Claims…Heads up—if you purchased Wellbutrin—today is the last day—May 31—to object to or drop out of this class action, because an $11.75 million settlement has been tentatively agreed in the Wellbutrin XL antitrust class action filed against Valeant Pharmaceuticals International Inc, and GlaxoSmithKline (GSK). If you bought Wellbutrin XL® or its Generic equivalent, the proposed class action settlement could affect you.

This matter is a lawsuit against Valeant Pharmaceuticals, Inc., formerly Biovail Corp. (“Biovail”), and SmithKline Beecham Corporation doing business as GlaxoSmithKline and GlaxoSmithKline plc (collectively “GSK”) (together with Biovail, “Defendants”), the companies that manufactured and marketed the antidepressant Wellbutrin XL.

The lawsuit, entitled In re: Wellbutrin XL Antitrust Litigation, Case No. 8-cv-2433, U.S. District Court, Eastern District of Pennsylvania, alleges the pharmaceutical manufacturers worked together to delay the availability of less expensive, generic versions of Wellbutrin XL. Anyone who purchased Wellbutrin XL or its generic equivalent in the following states may be eligible to claim part of the settlement, if it is approved: California, Florida, Nevada, New York, Tennessee and/or Wisconsin.

For additional information regarding this lawsuit, proposed settlement, and for obtaining a Claim, visit: http://www.wxlclassaction.com/. Claim form submissions for this class action are due July 12, 2013.

A fairness hearing is set for June 18 at which time the proposed settlement will either be approved—or not.

Okee doke—that’s it for this week—happy weekend—see you at the bar!

Week Adjourned: 5.24.13 – Nike, Apple, Wolfgang Puck, Penguin Books

The weekly wrap of top class action lawsuits and settlements, for the week ending May 24, 2013.

Top Class Action Lawsuits

Nike Calorie Tracker Can’t “Just Do It”? Nike and Apple are facing a consumer fraud class action lawsuit alleging the Nike+ FuelBand, which is supposed to track every step and calorie a wearer burns, doesn’t work as advertised. Now there’s a surprise. The device costs $150, which really is shocking.

Filed by Carolyn Levin of California, the Nike+ FuelBand lawsuit contends that both Apple and Nike knew that the Nike+ FuelBand is defective because it registers inaccurate readings. Nevertheless, they marketed and sold it, and made exaggerated claims about its capabilities.

Specifically, the lawsuit states “In truth, the Nike+ FuelBand cannot and does not track each calorie burned, and users experience wildly inaccurate calorie burn readings when using the FuelBand.” And, “As a result of defendants’ conduct, buyers of the FuelBand, including class members, were in fact misled into purchasing a device that defendants purported would track calories burned when in fact it cannot and does not track calories burned, misleading and damaging customers.”

The class action, entitled Carolyn Levin, et al. v. Nike Inc., et al., Case No. BC509363, in the Superior Court of the State of California, seeks to represent all consumers who purchased the wristband device since January 2012, when it was initially brought to market. The lawsuit alleges that the defendants have made negligent and fraudulent misrepresentations, and have violated California’s business and professions code.

Is Wolfgang Passing the Puck? Ah yes—at least according to an employment class action lawsuit just filed by two former servers who allege the company knowingly withheld their tips and failed to pay overtime. Filed in Manhattan by plaintiffs Kristin Noriega and Oliver Gummert, the Wolfgang Puck lawsuit contends that a Wolfgang Puck catering company was charging its client venues, such as Irving Plaza and the Gramercy Theater, with a 22 percent service charge and then denying its servers and bartenders their tips. “Any charge for ‘service’ or ‘food service,’ is a charge purported to be a gratuity and therefore must be paid over to service employees,” the lawsuit claims. Failing to pass on a service charge that clients have been charged, violates state and federal laws.

And…according to the lawsuit… Noriega, a waitress, and Gummert, a bartender, were paid between $10 and $18 an hour and were not compensated for up to 30 hours of overtime a week. Both Noriega and Gummert left Puck’s employment in 2012, after working for the company for two to three years. That’s not ok…

Top Settlements

Penguin is re-writing the antitrust book on ebook pricing settlements—having agreed to a $75 million payment this week. Penguin’s settlement with the consumers and 33 states is the largest to date.

HarperCollins, Simon & Schuster, Hachette and Macmillan have all settled with both the states and the Department of Justice (DOJ)—HarperCollins, Simon & Schuster, Hachette settled for—get this—a combined $69 million, while Macmillan agreed to pay $20 million.

The settlement is the last of the major publishers to settle. Penguin settled with the DOJ several months ago. Apple, also a defendant in the class action, is going to court in a few weeks and will face the DOJ over antitrust pricing allegations.

The settlement is pending court approval, and a fairness hearing is scheduled for late summer. We’ll keep you posted—so watch this space.

Okee dokee—that’s it for this week—happy weekend—see you at the bar!

Week Adjourned: 5.17.13 – iPhone 4, Wells Fargo, Generic Drugs

The weekly wrap on top class action lawsuits and settlements for the week ending May 17, 2013. Top stories this week include iPhone 4, Wells Fargo and generic drugmaker Ranbaxy.

Top Class Action Lawsuits

Bad Apple! The god of tech gadgets got slapped this week—with a potential defective products class action lawsuit (yes, another one), alleging its iPhone 4 has a defective power button, effectively preventing the operator from being able to use the phone. This power button failure allegedly occurs shortly after the phone’s one year warranty expires. And doesn’t that just figure…

The Apple iPhone 4 class action lawsuit, filed by plaintiff Debra Hilton, Debra Hilton v. Apple Inc., Case No. 13-cv-2167, U.S. District Court for the Northern District of California, claims “The failure of the power button that has plagued the iPhone 4 is more than an inconvenience… As a method by which the phone is toggled on and off, the failure of the button precludes general use of the phone and thereby effectively prevents iPhone 4 owners from being able to use the phone.” Yup.

According to the lawsuit, Hilton alleges the iPhone 4 power button defect is caused by the premature deterioration of a flex cable that connects the power button to the phone. When this cable deteriorates, the power button becomes harder and harder to depress, and eventually fails to work. Yup.

The iPhone 4 lawsuit contends that thousands of consumers who purchased the iPhone 4 have experienced this failure forcing them to throw away their phone or pay Apple $149.99 plus shipping for a replacement. Yikes! Better get on it boys.

Top Settlements

Two Better than One for Wells Fargo. Wells Fargo made headlines twice this week, two settlements to report—both biggies. The first was a judicial order to reinstate a $203 million judgment against the bank in settlement of an overdraft fees class action lawsuit.

In a nutshell, the judgment, based upon the court’s findings, as affirmed on appeal by the Ninth Circuit, states that Wells Fargo violated California’s unfair competition law by deceiving its customers that debit card purchases would be posted chronologically to their accounts when in fact Wells Fargo posted them in a high-to-low order for the sole purpose of generating overdraft fees.

The case was brought on behalf of California Wells Fargo customers who, from November 15, 2004 to June 30, 2008, incurred overdraft fees on debit card transactions as a result of the bank’s practice of sequencing transactions from highest to lowest.

The second settlement with Wells Fargo’s name on it involves a force-placed insurance class action lawsuit brought by homeowners in Florida. (Force-placed insurance, btw, is sometimes referred to as “lender placed insurance”.) The lawsuit alleged that the homeowners were overcharged for the insurance, and that Wells Fargo unfairly took commission on the insurance, which it assigned to the homeowners through QBE.

The class was certified in 2012, and more than 24,000 homeowners were notified. During the class period, from April 2006 to February 2013, the class members were charged $77 million for force-placed insurance, according to the settlement documents, the South Florida Business Journal reports.

But wouldn’t you know it, just two months before they were due to go to court, the parties reached a $19.5 million settlement.

The settlement will provide a refund of the amount charged for force-placed insurance to the members of the class. Borrowers who were charged and paid the premium will be refunded 25 percent in cash. Those who were charged the premium but didn’t pay will get a credit of 25 percent off their bill.

Bet those homeowners are breathing a huge sigh of relief this weekend.

Largest Generic Drug Safety Fine. Ever. We’d be completely remiss if we didn’t mention this one… Ranbaxy has pled guilty to federal drug safety violations and will pay $500 million in fines to resolve the claims. The generic drug manufacturer is alleged to have sold subpar drugs and made false statements to the Food and Drug Administration (FDA) about its manufacturing practices at two factories in India.

According to the Justice Department, the settlement is reportedly the largest in history involving a generic drug maker. Part of the settlement involves Ranbaxy pleading guilty to three felony counts of violating the federal drug safety law and four of making false statements to the FDA.

According to a report by the New York Times, Ranbaxy acknowledged it had failed to conduct proper safety and quality tests of several drugs manufactured at its Indian plants, known as Paonta Sahib and Dewas, including generic versions of many common medicines, such as the epilepsy drug gabapentin, and the antibiotic ciprofloxacin.

In the case of gabapentin, also known as Neurontin, Ranbaxy reportedly admitted that between June and August in 2007, it was aware that certain batches had tested positive for “unknown impurities” and had unreliable shelf lives. Nevertheless, the company didn’t report this to the FDA and announce a recall until October of that year. The recall ultimately involved more than 73 million pills.

Further, testing of certain batches of drugs to ensure their effectiveness was reportedly not done for weeks or months after the company had told the FDA the testing had been carried out.

Ranbaxy has set aside $500 million in anticipation of the penalties, which will break down as a $150 million in a criminal fine and forfeiture, and the remainder going to settle civil claims brought by the federal government and all 50 states. A former Ranbaxy executive who alerted the federal government to the problems will receive close to $49 million in compensation for his role as a whistleblower, the Times reports.

That’s a wrap. It’s cocktail hour—somewhere in the world—see you at the bar!

Week Adjourned: 5.10.13 – Capital One, H&R Block, QuickTrim

The weekly wrap of top class action lawsuits and settlements for the week ending May 10, 2013. Top stories include Capital One, H&R Block, QuickTrim

Top Class Action Lawsuits

Not “What’s in your wallet?” but… “Who’s in Your Wallet – Again?” Can you guess? Yup—Capital One Bank. This time they’re facing a consumer fraud class action lawsuit alleging its Best Buy co-branded credit cards have an annual fee, in contrast to the advertising for the card, which claims there is no fee. Make sense?

Here’s the backstory. Filed by John Graham, the potential Capital One class action entitled, John Graham v. Capital One Bank (USA), NA, Case No. 13-cv-743, U.S. District Court, Central District of California, alleges that Graham applied for a “no annual fee” Best Buy Reward Zone Credit Card from Capital One but was issued a card that had an annual fee of $39. According to the lawsuit, disclosures for the credit card clearly stated in large type: “Annual Fee: NONE.” Graham claims that had he known there would by an annual fee, he would not have applied for the Capital One Best Buy credit card. FYI Best Buy is not named as a defendant.

This is a national lawsuit, so it seeks to represent all US residents who, between May 8, 2011 and the present, submitted a Best Buy Reward Zone Credit Card Application containing a promise of “no annual fee” but who were subsequently mailed a Capital One credit card that carries an annual fee. Gotcha! (pun intended).

H&R Block Lawsuits Piling Up. Another consumer fraud class action lawsuit has been filed against H&R Block, this time by a woman in Indiana on behalf of some 600,000 people allegedly affected by faulty tax returns prepared by the tax services company. H&R Block acknowledged the filing glitch earlier this year.

Plaintiff Lisa Marie Waugh filed the H&R Block class action lawsuit in federal court in April. The class action law suit claims that Missouri-based H&R Block incorrectly prepared hundreds of thousands of tax returns, and due to those errors tax refunds were delayed by as much as six weeks beyond when they supposed date of payment.

The problem specifically relates to a change in the way the IRS processes certain yes or no questions on this year’s tax forms. Previously, tax preparers like H&R Block could leave a space blank to indicate “no,” but now they must enter an “N.”

However, H&R Block did not update its software in time and follow the new IRS rule. According to an email H&R Block President Bill Cobb sent to customers, anyone that filed their returns before February 22 was affected by the technical glitch, the Indystar.com reports.

According to the lawsuit, some customers lost their eligibility for student loan and grant programs that are dependent upon proper tax filings.

Top Settlements

QuickTrim—the Diet Product that’s not only Light on Calories…This week, a proposed settlement was announced, which, if approved, would end the consumer fraud class action lawsuit pending against the Kardashian sisters, their product QuickTrim, and several retailers. LawyersandSettlements.com first reported on the QuickTrim lawsuit back in March, 2012.

Specifically, the QuickTrim settlement resolves allegations that improper statements were made on the labels and in advertisements for the Quicktrim Weight Loss System® and its component products including QuickTrim Sugar & Carb Cheater®, QuickTrim Fast Cleanse®, QuickTrim Extreme Burn®, QuickTrim Burn & Cleanse®, QuickTrim Hot Stix®, QuickTrim Fast Shake®, QuickTrim Satisfy®, and QuickTrim Celluslim® (“The Products”).

Unless you purchased directly from QuickTrim you must submit a timely Claim Form to get compensation or a coupon. Direct Purchasers will automatically receive payments unless they chose to receive a coupon by submitting a Claim Form or exclude themselves from the Settlement.

To download claim forms, learn more about your options, and for general information on the lawsuit, visit https://www.anayasupplementsettlement.com.

The laundry list of defendants, who, not surprisingly, admit no wrongdoing, includes Quick Trim LLC., Windmill Health Products, LLC, Kimberly Kardashian, Khloe Kardashian-Odom, Kourtney Kardashian, Kris Jenner, Jenner Communications, Inc., Kimsaprincess, Inc., Khlomoney Inc., 2Die4Kourt, Inc., GNC Corp., CVS Pharmacy, Inc., Walmart Corp., Amazon.com Inc., Drugstore.com., Christopher Tisi, Vitaquest International, LLC. (“collectively “the Quick Trim Parties” or “Defendants”).

And on that note, it’s time to consume some calories…

That’s a wrap. See you at that bar…Happy Friday folks and Happy Mother’s Day to all moms out there!

Week Adjourned: 5.3.13 – SoulCycle, Sega, eBooks

The top class action lawsuit stories for the week ending May 3, 2013. In class action news this week: SoulCycle, Sega and eBooks.

Top Class Action Lawsuits

SoulCycle not so full of Soul. Nick Oram, a former SoulCycle master instructor, has filed a California employment class action lawsuit alleging that he and other SoulCycle instructors were not paid consistent with New York and California laws. SoulCycle has built its reputation by providing what it describes as the “best instructors and staff, trained to deliver unique services and personal attention to all levels of riders.” However, as detailed in the SoulCycle class action lawsuit, SoulCycle only compensates these instructors for the time spent teaching their classes, and has failed to compensate them for numerous hours spent in training, preparing for classes, developing routines, compiling playlists, communicating with customers, attending meetings, leading special event classes and engaging in marketing.

As the complaint alleges, SoulCycle’s unlawful wage practices are consistent with its mistreatment of customers as SoulCycle does not provide any reimbursement to customers who are unable to attend classes they sign up for (unless they cancel the class by 5PM the night before), even when SoulCycle is able to re-sell the vacant bike spot. As a result, SoulCycle very often generates revenue from classes at a rate that exceeds the total number of bikes in a studio, to the detriment of its customers.

And, despite the dozens of hours per week SoulCycle instructors are required to work above and beyond the time instructing a class, SoulCycle only compensates these instructors for only the approximately 45 grueling minutes during which each class is taught. Mr. Oram stated that, “It is my goal in this lawsuit to ensure that SoulCycle pays all of the hard working and dedicated instructors what they deserve and compensates them fairly for all hours worked.” Go for it!

Heads up all you Sega Gamers out there… A consumer fraud class action lawsuit has been filed against Sega of America and Gearbox Software over allegations they misrepresented the quality of their new game “Aliens: Colonial Marines” prior to its release.

Damion Perrine, lead plaintiff in the Sega class action, alleges Sega and Gearbox induced consumers to buy “Aliens: Colonial Marines” through a “bait-and-switch” scheme that involved giving bogus gameplay demonstrations at video game expositions and trade shows leading up to the games’ February 2013 release.

Specifically, the class action lawsuit states: “Each of the ‘actual gameplay’ demonstrations purported to show customers exactly what they would be buying: a cutting edge video game with very specific features and qualities. Unfortunately for their fans, Defendants never told anyone, consumers, industry critics, reviewers or reporters, that their ‘actual gameplay’ demonstration advertising campaign bore little resemblance to the retail product that would eventually be sold to a large community of unwitting purchasers.”

And: “A major selling point of the ‘actual gameplay’ demonstrations were ‘iconic’ gameplay sections where consumers might essentially step into the role of a character from the ‘Aliens’ movie,” the lawsuit states. “Many of such sections previewed in the ‘actual gameplay’ demonstrations were either gutted beyond recognition or missing entirely from the final product.”

The Sega class action lawsuit is seeking class action status and damages and punitive damages, restitution, disgorgement of profit and an injunction for a proposed class of all US consumers who purchased “Aliens: Colonial Marines” on or before February 12, 2013.

Top Settlements

Worth a Read: eBook Lovers Get $20M Settlement… A $20 million settlement has been agreed in the consumer fraud class action lawsuit pending against Verlagsgruppe Georg von Holtzbrinck GmbH’s MacMillan unit, which alleged the publisher conspired with Apple Inc, and other US publishers to fix prices of electronic books, or eBooks.

The latest eBook settlement resolves the allegations brought in the consumer fraud lawsuit as well as a lawsuit brought by several US states. According to a report by Bloomberg, MacMillan will pay an additional $3 million in legal costs to the states that sued and $2.5 million to the lawyers for the consumers in the class-action case.

The case is In re Electronic Books Antitrust Litigation, 11-md-02293, U.S. District Court, Southern District of New York (Manhattan). The Justice Department and the other states led by Texas alleged publishers conspired with Apple in 2010 to undermine Amazon’s dominance in the eBooks market.

Ok—that’s a wrap. See you at that bar…and Happy Friday Folks!