Week Adjourned

Week Adjourned: 6.16.17 – Hyundai, National Penn Bank, Victoria’s Secret

Top Class Action Lawsuits

Heads Up Hyundai Owners! The automaker got hit with a defective automotive class action lawsuit alleging its power steering systems in certain vehicles can unexpectedly become difficult or impossible to steer, and that Hyundai willfully concealed the defect from consumers. Nice. Read this playbook?

Filed in California, by Houston Vinci and Jaehan Ku, the complaint asserts that the defect severely inhibits drivers’ ability to react to or avoid other cars, pedestrians and obstacles. The affected vehicles are model years 2013-2016 Accents and Elantras. According to the Hyundai lawsuit, the alleged defect results from conflicting steering wheel input data that causes power steering to turn off.

The lawsuit states that a similar defect had resulted in earlier models being recalled in April 2016. That recall involved 2011 model year Sonatas built between 2009 and 2010. The NHTSA said the cars were vulnerable to a loss of electronic power steering if a circuit board inside the drive assembly malfunctions or is damaged.

“A reasonable customer who purchases a vehicle that advertises power steering as a feature expects that feature to function properly,” the complaint states. “A reasonable consumer further expects and assumes that defendant will not sell vehicles with known safety defects, and will disclose any such defect to their customers.”

According to the lawsuit, Vinci, a resident of Oregon, bought a used 2013 Accent in June 2015. Since then, she has experienced repeated problems with steering in that vehicle. Despite taking it to Hyundai’s dealers for repairs, so far, the problem has not been fixed, she alleges. In January 2016, the power steering defect caused her to crash, the lawsuit states.

Ku, also a resident of Oregon, bought a new 2014 Elantra in March of that year. According to the lawsuit, Ku spent two years as a truck driver in the South Korean military. In May 2016, the steering wheel in his Elantra locked up and his car veered sharply to the left. At the same time the brakes and he was unable to stop before crashing into the barrier on the side of the highway. A camera Ku had installed in the car captured the incident on video.

According to the lawsuit, numerous similar complaints have been made to the National Highway Traffic Safety Administration. As of June 7, there were more than 100 such complaints involving Elantras and 10 involving Hyundai Accents. These include a report of a driver who allegedly was unable to turn away from a wooden wall on the side of a road and drove through it.

The class action lawsuit cites eight claims, including violations of California laws, the laws of 29 states, breach of implied warranty, fraudulent concealment and unjust enrichment.

The case is Houston Vinci et al. v. Hyundai Motor America et al., case number 8:17-cv-00997, in the U.S. District Court for the Central District of California.

Better steering at Hyundai may have prevented this defective automotive class action lawsuit, not to mention a lot of consumer grief.

Top Settlements

National Penn Bank Overdrawn on Overcharging? A recent settlement would certainly indicate so. The bank has agreed to pony up $975,000 in an improper overdraft fees class action lawsuit.

The National Penn Bank lawsuit was brought in 2012 by Jennifer Collier, who claimed that rather than charging overdraft fees on her actual account balance, the bank incorrectly charged overdraft fees based on the ledger balance in her account or the amount available at the beginning of the day.

If approved, the settlement will provide compensation to a class of National Penn Bank customers who were incorrectly charged overdraft fees. Collier, as lead plaintiff, would receive a $2,500 award for service.

National Penn was purchased by BB&T Corp., nearly two years ago. The proposed settlement comes after several rounds of briefing and appeals to both the state’s Superior Court and its Supreme Court.

The case is Jennifer Collier v. National Penn Bank et al., case number 120601036, before the Court of Common Pleas of Philadelphia County, Pennsylvania.

Victoria’s Secret Not So Secret Settlement… The lingerie company has reached a $12 million settlement in a California overtime and labor law class action lawsuit If approved, the deal will end allegations brought by sales clerks in Victoria’s Secret’s California stores that the company failed to properly compensate workers scheduled for “call-in” shifts.

The sales clerks allege in their class action that the company cheated them out of pay for shifts that required them to call in two hours prior to a scheduled shift to find out if they were going to be working that shift. Further, the plaintiffs claim that the defendant owes its workers unpaid wages for scheduling shifts for which they showed up, only to be sent home after they reported for work. Ok—seriously?

If approved, the Victoria’s Secret settlement will compensate some 40,000 class members, all of whom worked in California and who were classified by Victoria’s Secret as nonexempt from overtime pay. The payouts will be calculated based on the length of employment with Victoria’s Secret, with rewards going to the lead plaintiffs. Additionally, attorneys’ fees and expenses, and a payment to California regulators under the Private Attorneys General Act, would be paid from the settlement fund.

The case is Mayra Casas v. Victoria’s Secret Stores LLC, case number 2:14-cv-06412, in the U.S. District Court for the Central District of California.

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

Week Adjourned: 6.9.17 – Subaru, Five Guys, Honest Company

Top Class Action Lawsuits

Can Subaru see their way to fixing this? They got hit with a consumer fraud class action lawsuit this week, over allegations they knowingly sold vehicles with defective windshields that are prone to spontaneous shattering. Yes, that would certainly help your driving. Not.

Filed by Lucia Luong, who purchased a new 2015 Subaru Outback, the complaint asserts that the vehicle’s windshield spontaneously cracked in March. Subsequently, Subaru has denied valid warranty claims in an effort to minimize its own costs, Luong alleges.

“Subaru knew of and concealed the windshield defect that is contained in every class vehicle, along with the attendant dangerous safety problems and associated repair costs, from plaintiff and the other class members both at the time of sale and repair and thereafter,” the lawsuit states.

Luong alleges that hers is not an isolated incident, but rather “hundreds, if not thousands,” of drivers who bought or leased 2015-2016 Subaru Outback or Legacy vehicles in the US have also experienced a defective windshield. This is clearly evident by the number of customer complaints filed with the National Highway Traffic Safety Administration, the lawsuit asserts.

The complaint goes on to state that although Subaru was aware of the defect, the company did not notify the drivers or grant them any relief, and the value of the vehicles has consequently diminished.

“Defendant has deprived class members of the benefit of their bargain, exposed them all to a dangerous safety defect, and caused them to expend money at its dealerships or other third-party repair facilities and/or take other remedial measures related to the windshield defect contained in the class vehicles,” the lawsuit states.

The complaint notes that while Subaru claims it extended its new car warranty by two years for front windshield failure, the extension only applied to certain members of the proposed class. Further, when Subaru dealers have repaired the windshields, they often replaced them with other faulty units, according to the complaint. Oh yea, that makes sense.

According to the Subaru lawsuit, Subaru is in violation of California’s Consumers Legal Remedies Act and Unfair Competition Law, and is in breach of implied and express warranties, and fraudulent omission.

Luong is seeking replacement windshields—you think?—an extended windshield warranty; the reimbursement of costs related to the faulty windshields; a halt to sales of the faulty vehicles without first notifying consumers of the defect; compensatory, exemplary and statutory damages; disgorgement of profits from the sale of the defective vehicles; and fees and costs.

Five Guys got served this week. Yup—the popular burger chain is facing a potential class action lawsuit brought by a former employee who claims the company violated the Fair Credit Reporting Act (FCRA) and California labor law by conducting background checks on employees without properly notifying them and committing a number of wage and hour violations. Further, the lawsuit contends that Five Guys failed to provide employees with legally required rest and meal breaks.

Filed by plaintiff Jeremy R. Lusk, the complaint claims that Lusk was periodically required to perform off-the-clock tasks and denied meal and rest breaks, along with other employment law infractions.

“Plaintiff is informed and believes and thereon alleges that defendants have a policy or practice of failing to comply with the labor code and the business and professions code as alleged herein,” the Five Guys lawsuit states.

Additionally, the complaint asserts that the defendant regularly secured credit and background reports on employees, conducted background checks on potential, current and former employees and used this information to make hiring decisions without providing clear disclosures.

This practice violates the FCRA, as well as California’s Consumer Credit Reporting Agencies Act and Investigative Consumer Reporting Agencies Act, the complaint states.

Lusk seeks to represent several classes and subclasses, including an FCRA class of all current, former and prospective employees in the United States over the last five years and ICRAA and CCRAA classes of California workers and applicants within the last five and seven years, respectively.

The lawsuit alleges violations of the FCRA, ICRAA, CCRAA, California’s Unfair Competition Law and the state labor code. The complaint seeks unpaid wages, actual and liquidated damages, restitution, declaratory relief, pre-judgment interest, statutory and civil penalties, as well as fees and costs.

The case is Jeremy R. Lusk v. Five Guys Enterprises LLC et al., case number 1:17-cv-00762, in the U.S. District Court for the Eastern District of California, Fresno Division.

Top Settlements

It’s nearly over, Honest! That is for Jessica Alba’s home products company, Honest, which has agreed to pay $1.55 million to settle consumer fraud allegations brought in a lawsuit filed in 2016. Think back.

The Honest class action lawsuit claimed that the company misled consumers with claims that its products such as its laundry and dish soaps, as well as its surface cleaner were free of harsh chemicals, when in fact they contained the chemical sodium lauryl sulfate, or SLS, a known skin irritant. Under the terms of the settlement agreement, Honest will change its product formula in addition to the financial compensation to consumers.

“This non-monetary relief is significant because it directly addresses and remedies the central allegation in plaintiffs’ action for future purchasers, that Honest made misleading representations in connection with sale of the SCS-containing products based on its promise that they were SLS-free,” the settlement motion states.

According to independent lab tests conducted by lawyers representing lead plaintiff Staci Seed, Honest Laundry Detergent, Honest Dish Soap and Honest Multi-Surface Cleaner products contain significant percentages of SLS. In her complaint, Seed contended SLS can cause scalp, gum and skin irritation at concentrations of just 1 percent, while testing on the Honest products showed concentrations of as much as 14 percent.

Under the terms of the proposed deal, the Honest settlement class would include all persons who purchased Honest laundry detergent, dish soap and multi-surface cleaner from January 17, 2012, through to and including the date of preliminary approval.

Class members without a proof of purchase could claims up to $50. Class members with proof of purchase can request more per claim. Claims will be paid in cash or as a credit for products at Honest.com worth 1.5 times the cash payout.

The 10 named plaintiffs may receive settlement awards of up to $1,000 per plaintiff. The settlement requires court approval.

The case is In Re: The Honest Company Inc. Sodium Lauryl Sulfate SLS Marketing and Sales Practice Litigation, case number 2:16-ml-027919-AB-RAO in the U.S. District Court for the Central District of California.

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

Week Adjourned: 6.2.17 – Ford, Unsolicited Calls, Spotify

Top Class Action Lawsuits

Ford Focus & Fiesta Facing a Class Action… Another week, another defective automotive class action lawsuit. This one has been filed against Ford Motor Co. alleging that Ford’s model year 2012-16 Focus and 2011-16 Fiesta sedans have defective PowerShift transmissions, a problem that has been ongoing for years.

The nearly 7,000 Fiesta and Focus are enrolled in the class action describe the problem as faulty dual-clutch transmissions prone to “shuddering, slipping, bucking, jerking, hesitation while changing gears, premature internal wear, delays in downshifting and, in some cases, sudden or delayed acceleration.”

According to the Ford transmission lawsuit, Ford issued a technical service bulletin to dealers on January 1, 2011, which noted the Fiesta’s PowerShift transmission could suffer “a loss of power, hesitation, surge, or lack of throttle response while driving.” In total, Ford has issued more than 20 technical service bulletins relating to the affected models, but so far has been unable to find a “consistently reliable repair.”

Then, in 2014, Ford extended its powertrain warranty from five years/60,000 miles to seven years/100,000 miles to help cover the problems.

According to lawyers representing the class, each client’s award would be customized based on that client’s damages.

Top Settlements

One Ringy Dingy—and that will be $4.25 million thank you… Well not quite. There were a few more unsolicited calls made—but in any event, a settlement been reached in a Telephone Consumer protection Act (TCPA) class action lawsuit brought against Florida-based Insurer A&B Insurance and Financial LLC.

Filed by plaintiffs Jim Youngman and Robert Allen, the lawsuit alleged the defendants made unauthorized sales calls to consumers, including people on the federal Do Not Call registry.

Specifically, the complaint stated Youngman began receiving telemarketing calls from a company called Florida Blue, which did business as A&B Insurance, and which in one instance asked him for his Social Security number. These calls began in January 2016. Youngman alleges that not only did he have no history of a business relationship with those companies, but also the number they called had been registered on the federal Do Not Call list since 2003.

Similarly, Allen claimed he had received a pre-recorded phone call, using an automated telephone dialing system, to his cell phone on behalf of A&B Insurance in December 2015.

According to the terms of the robocalling settlement, a fund will be established, from which payments will be made to a proposed class consisting of any person in the US who either received a telemarketing call from the insurer within a year of being registered on the Do Not Call list, or received a call that employed an automatic telephone dialing system. The class period is from August 18, 2012, to April 26, 2017 inclusive.

Estimates suggest that class members could receive approximately $85 each. The case is Jim Youngman et al. v. A&B Insurance and Financial Inc., case number 6:16-cv-01478, in the U.S. District Court for the Middle District of Florida.

Spotify Settles… And now for some really big money. $43 million to be precise, pending the court’s ok. The settlement has been agreed in two consolidated copyright infringement class actions pending against the internet music content streaming service Spotify.

According to the lawsuit, instead of following legally established procedures for paying the mechanical royalties, Spotify engaged in “systemic and willful copyright infringement”.

The Spotify settlement, which requires court approval, will end a year of litigation for the two suits, filed in January 2016 by Camper Van Beethoven lead singer David Lowery and singer-songwriter Melissa Ferrick. They alleged Spotify had chosen to “infringe now, apologize later” rather than go through the effort of fully licensing its music.

“While Spotify has profited handsomely from the music that its sells to its subscribers, the owners of that music (in particular, songwriters and their music publishers) have not been able to share in that success because Spotify is using their music for free,” Ferrick’s complaint stated. “Spotify’s failure to properly obtain licenses is much more than what it euphemistically describes as an ‘administration system’ problem,” Ferrick’s alleged. “It is systemic and willful copyright infringement for which actual and statutory damages are the remedy.”

Under the terms of the Spotify settlement, thousands of songwriters will share in the $43.5 million settlement fund as payment for Spotify’s past use of their material. Additionally, the fund will go towards establishing procedures to pay for mechanical royalties, which go to songwriters and publishers when compositions are recorded or reproduced.

The case is Melissa Ferrick et al v. Spotify USA Inc. et al., case number 1:16-cv-08412, in the U.S. District Court for the Southern District of New York.

Hope the creators are singing all the way to the bank.

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

Week Adjourned: 5.26.17 – GM Emissions, Doctor Kickbacks, Target

Top Class Action Lawsuits

More Emissions Cheating?? Of course—you knew it was coming. General Motors (GM) got hit with a consumer fraud class action lawsuit this week, accusing the automaker of emissions cheating. A little late to the party—but maybe they figured why not?

Read on…

According to the complaint, GM used defeat devices similar to those used in Volkswagen’s diesel cars, to enable its Silverado and Sierra 2500HD diesel vehicles to pass emissions tests.

The GM emissions complaint alleges that despite GM’s claims that its top-selling Silverado and Sierra 2500HD vehicles are environmentally friendly with high fuel economy and low emissions, in fact they emit far more pollution while on the road than in emissions testing conditions. Well now there’s a surprise.

The complaint states that currently some 705,000 Silverado and Sierra diesels are on the road in the US. Data from emissions testing show that those vehicles emit levels of nitrogen oxide far above standards set by the US Environmental Protection Agency (EPA).

Auto parts supplier Robert Bosch GmbH is also named in the lawsuit, and allegedly plays a pivotal role in the emissions scandal that has plagued the auto industry since Volkswagen defeat devices were revealed in 2015. The auto parts supplier developed the electronic diesel control that enabled GM to implement the defeat devices in its cars.

According to the plaintiffs, there are at least three defeat devices in GM’s Duramax diesel engines. The GM vehicles affected are model years 2011 to 2016 Silverado 2500HD/3500 HD trucks and Sierra 2500HD/3500HD trucks.

“GM turned a blind eye to the two-fold to five-fold increase in deadly nitrogen oxide emissions its scheme caused, all to drive up its sales and profits,” the plaintiffs state.

The named plaintiffs are Andrei Fenner, a Californian who bought a used 2011 GMC Sierra from an authorized GM dealer in 2013, and Louisiana resident Joshua Herman, who bought a new 2016 Silverado in June, allege violations of the Racketeer Influenced and Corrupt Organizations Act and states’ deceptive trade practice and consumer violations laws. They seek to represent a nationwide class on the RICO claim and state classes for the residents of California, Louisiana and other states.

The case is Fenner et al v. General Motors LLC et al., case number 2:17-cv-11661 in the U.S. District Court for the Eastern District of Michigan.

Go get ‘em!

Top Settlements

Just Blowin’ that Whistle… Here’s an interesting tale. And the good guy won! A former employee who filed a wrongful termination lawsuit alleging he was let go by his employer after reporting illegal sale activity, has been awarded $22 million by the jury hearing his case.

Steven Babyak, who had worked from October 2012 to June 2015 as a sales manager for defendant Cardiovascular Systems Inc. (“CSI”), alleged he was let go from his job in June 2015 after acting as a whistleblower by revealing illegal kickbacks to doctors, as well as FDA policy violations and violations of the Sarbanes-Oxley Act (SOX).

The jury awarded a total award of $25,142,120, which includes economic damages regarding lost past and future earnings of $2,742,120, and punitive damages of $22,400,000.

The trial took just five days, during which time Babyak stated that as a result of complaining directly to CSI’s upper management about the alleged violations, he was immediately retaliated against.

When Babyak reported the alleged retaliatory behaviors and actions to CSI’s upper management, an investigation was launched, but CSI stated that they found “no evidence of retaliation” or wrongdoing by the company.

Several weeks after Babyak had reported his initial concerns and a resulting re-assignment of sales territory, he discovered new and additional legal violations which he reported to CSI’s regulatory department as a possible SOX violation. Upon hearing Mr. Babyak’s new complaint about possible SOX violations, CSI management became extremely displeased and even told plaintiff to stop reporting violations and to “get on the bus and move on.” Babyak then submitted a formal complaint outlining the SOX issue. Just weeks after his formal SOX complaint, CSI terminated Babyak.

Target on target to pay $18.5 million …in data breach class action settlement. Yup, the discount retailer will pony up the pennies to pay out 47 states in what is being touted as the largest multi-state data breach deal in US history. All stemming from the 2013 Target data breach, which happened just before US Thanksgiving… remember that?

Under the terms of the Target data breach agreement, Target must adopt improved measures to make secure customers’ information, including executive oversight of a comprehensive information security program, and hiring an independent third party to conduct a security assessment. The retailer must also update and maintain appropriate data encryption policies.

More than 41 million Target customer payment card accounts were affected by the massive 2013 data breach, with contact information compromised for more than 60 million customers. Shortly after the data breach became public, states’ attorneys general launched an investigation which found that hackers accessed Target’s server by using stolen credentials and exploiting weaknesses in its security systems.

Specifically, the investigation revealed that the hackers, after accessing a customer service database, were able to install malware in Target’s system that was able to capture the shoppers’ data, including full names, telephone numbers, email and mailing addresses, payment card numbers, expiration dates and encrypted debit PIN numbers.

Target announced the data breach in December 2013, stating that they were aware the breach had occurred between November 27 and December 15 2013, and confirmed that payment card data was stolen in real time as the cards were swiped in its stores.

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

Week Adjourned: 5.19.17 – Walmart, Airbags, Pelvic Mesh Lawsuits

Top Class Action Lawsuits

Walmart Not on Board with Babies? Well actually moms-to-be. Yes, Walmart is back in the news again…this time, Walmart is facing a potential discrimination class action lawsuit alleging the world’s largest retailer discriminates against pregnant women.

Filed by Talisa Borders and Otisha Woolbright, the complaint claims Wal-Mart forced pregnant workers to perform tasks that employees with similar limitations were excused from.

Specifically, the Walmart pregnancy discrimination lawsuit states: “Under its constellation of policies and practices, Walmart accommodated a large percentage of non-pregnant employees with physical limitations but failed to accommodate a large percentage of pregnant employees with physical limitations arising out of pregnancy.”

The named plaintiffs seek to represent a class consisting of all pregnant women who worked as Wal-Mart employees and were denied accommodations between March 2013 and March 2014, the period during which the defendant issued a revision to its disability accommodation policy that changed how pregnancy was classified.

The lawsuit states that managers at Wal-Mart’s O’Fallon, Illinois, store where Borders worked, refused her request to follow her doctor’s advice and avoid climbing ladders and heavy lifting. Rather, Walmart placed her on unpaid leave, according to the lawsuit. When Borders returned to work, she was not reinstated to her old position in the store pharmacy but was instead assigned to a number of lower-paying positions, the complaint asserts.

Further, according to plaintiff Woolbright, who worked as an associate at a Jacksonville, Florida, location, she was denied permission to follow medical advice and avoid heavy lifting or a transfer to another position until she sustained an on-the-job back injury. Woolbright states she was terminated just three days after requesting information on the company’s childbirth leave policies.

According to the proposed class action, Walmart had a three-tier disability policy, up until March 2014, with employees who sustained on-the-job injuries, pregnant employees and employees with all other disabilities receiving different treatment.

“Wal-Mart’s policies and practices provided that the only modifications or adjustments available to pregnant employees were those that would be both ‘easily achievable’ and ‘which will have no negative impact on the business,’” the complaint states. “Non-pregnant employees with disabilities, on the other hand, were entitled to ‘reasonable accommodations’ so long as the change would not create an ‘undue hardship’ for the company.”

Consequently, Borders was denied ladder and lifting accommodations that were granted to employees with similar medical limitations from on-the-job injuries, and Woolbright’s accommodation was denied until she sustained her on-the-job injury, the lawsuit asserts.

The lawsuit states that while the potential class size is unknown, based on statistics, about 48,000 Wal-Mart employees would have become pregnant during the relevant period, meaning the number of denied accommodations is likely “several thousand.”

The case is Talisa Borders et al. v. Wal-Mart Stores Inc., case number 3:17-cv-00506, in the U.S. District Court for the Southern District of Illinois.

Top Settlements

Airbag Settlements… And so it begins—this week—$553.6 million in settlements were agreed in multi-district litigation (MDL) involving Toyota, Subaru, Mazda and BMW, which will see the automakers pay the sum to end claims brought by plaintiffs over alleged defective Takata airbags. To date, the airbags, which can explode, have been linked with 11 deaths in the US.

According to the terms of the airbag settlements, BMW of North America LLC will pay $131 million, Mazda North American Operations will pay $75,805,050, Subaru of America Inc. will pay $68,262,257 and Toyota Motor Corp., $278,500,000.

Some 15.8 million vehicles currently have the defective airbag inflators installed, and the settlement is meant to expedite their removal. Additionally, compensation will be provided to class members who suffered economic losses as a result from the Takata air bag recall, such as car rentals. Additionally, a customer support program will be initiated that includes an extended warranty.

More than nine million Toyota vehicles, 2.6 million Subaru vehicles, 2.3 million BMW vehicles and 1.7 million Mazda vehicles, are covered by the settlement, according to the plaintiffs.

The airbag settlements also provide compensation to class members for their economic losses resulting from the recall in the form of reimbursement for reasonable out-of-pocket expenses; a possible residual distribution payment of up to $500; requirements to provide rental cars to the most at-risk class members while they wait for their recall remedies; and the provision of a customer support program for repairs and adjustments on the replacement inflators, including an extended warranty.

Further, a new independent outreach program that seeks to dramatically increase recall remedy completion rates will be established. The program will regularly contact class members through direct mail, phone calls, email, internet ads and social media to educate them about the settlement and incentivize them to receive the recall remedy and exercise their rights under this agreement.

Toyota, Subaru, Mazda and BMW are the first automakers to exit the massive MDL, which covers the largest auto recall in US history.

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

J&J to Pay after Mesh Verdict… What’s that expression—three strikes and you’re out? This week, a $20 million verdict was awarded against Johnson & Johnson (J&J) in punitive damages, in the third bellwether Ethicon pelvic mesh injury lawsuit, part of the pelvic mesh mass tort.

The 12-member jury hearing the case in Philadelphia returned the verdict after testimony was given by Plaintiff Margaret “Peggy” Engleman, demonstrating she suffered life-altering injuries when the mesh eroded inside of her. The mesh lawsuit verdict also includes a $2.5 million award for compensatory damages.

According to court documents, Engleman alleged she had underwent surgery to implant Ethicon’s TVT-Secur mesh to help with her stress urinary incontinence. However, just two months later, her doctor discovered erosions in the material. She claimed that the eroding mesh began causing her pain and she was eventually forced to undergo three additional surgeries, under anesthesia, to remove the material. However, portions of the mesh remain in her body and she has developed chronic pain and urinary dysfunction, according to court papers.

Engleman alleged that Ethicon’s TVT-Secur mesh was “defective in design, warnings and instructions” and that J&J released the product to market in full knowledge of the significant risk associated with the mesh implants, specifically, that the mesh would erode inside patients.

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

Week Adjourned: 5.12.17 – Burger King, IHG Hotels, Volkswagen

Top Class Action Lawsuits

BK BOGO NOGO? Two for one costs more, according to the latest lawsuit to hit Burger King. This week, a consumer fraud class action lawsuit was filed by Koleta Anderson, who alleges the restaurant chain’s offer of Buy One Get One Free (BOGO) is misleading. She alleges that more than once she has paid more using a BOGO coupon to buy two Croissan’wiches than she paid for one. Maybe BK just can’t add? Yeah? No.

Anderson asserts in the proposed class action that the BOGO price was higher than the regular price. According to the lawsuit, at one Washington, D.C., Burger King Anderson paid $4.19 for two Croissan’wiches, using a BOGO coupon, but buying a single Croissan’wich at the same restaurant was just $1. She says she found similar discrepancies between the single price and the BOGO price at different Burger Kings in Maryland, Virginia, and Washington, D.C.

Typically, “Buy one, get one free” offers, which are not uncommon in the restaurant business, would imply that if a person buys one item for the regular price, they could normally expect to receive two of the items for the price of buying one. However, that is not the case, Anderson asserts.

“Burger King’s nationwide BOGO scheme is deceptive to reasonable consumers who expect that, when using a BOGO coupon at any retail store or restaurant, absent any exclusions or other terms and conditions, they will pay the same regular price for two identical Croissan’wiches as they would pay to purchase a single Croissan’wich,” the lawsuit states.

The Burger King class action lawsuit seeks to represent anybody who bought two Croissan’wiches using a BOGO coupon in Maryland, the District of Columbia, and Virginia.

The Burger King BOGO Class Action Lawsuit is Koleta Anderson v. Burger King Corp., Case No. 1:17-cv-01204, in the U.S. District Court for the District of Maryland.

Staying at an Intercontinental Hotel Costing you more than the Room Charge? The international hotel chain got hit with a data breach class action lawsuit this week, alleging it failed to protect customer data resulting in a credit and debit card hack in 2016. The hackers allegedly stole private and valuable customer information over several months in 2016.

Filed in federal court in Georgia, by lead plaintiff David Orr, the lawsuit alleges breach of implied contract, negligence and unjust enrichment. Orr claims the U.K.-based hotel chain, which has in excess of 5,000 hotels worldwide, failed to take adequate steps to prevent the installation of malware on its payment system and failed to detect the security breach.

“IHG’s security failures enabled the hackers to steal plaintiff’s and class members’ private Information from within IHG’s hotels and subsequently make unauthorized purchases on their credit and debit cards,” the IHG lawsuit states. “The failures also put plaintiff’s and class members’ financial information and interests at serious, immediate and ongoing risk and, additionally, caused costs and expenses to plaintiff and class members attributable to responding, identifying and correcting damages that were reasonably foreseeable as a result of IHG’s willful and negligent conduct.”

According to the complaint, Orr stayed at an IHG Holiday Inn in Biloxi, Mississippi in October, 2016. During his stay he used his debit card to pay for his hotel room. His debit card contained private information, which was exposed due to IHG’s inadequate security.

On February 3, IHG announced that 12 of its locations had been affected by the data hack. Then, in April the company expanded the number of affected locations to over 1,000 and sent a data breach notification letter to affected customers, the lawsuit states.

The lawsuit seeks to represent a class of all consumers who used their credit or debit cards and were affected by the security breach at a hotel and time identified by IHG between September 29 and December 29, 2016.

The case is Orr v. InterContinental Hotels Group PLC et al., case number 1:17-cv-01622, in the U.S. District Court for the Northern District of Georgia.

Top Settlements

Do the VW Emissions Lawsuits ever end? For owners of VW 3.0 liter engines—they did this week. A US district judge hearing the Volkswagen AG emissions scandal lawsuits has said he will grant approval of a $1.2 billion settlement deal, effectively ending claims affecting VW’s 3.0-liter-engine vehicles.

The VW settlement is the latest in a series that total in excess of $17 billion. All the cases stem from the emission-cheating software installed in certain VW and Audi vehicles.

The settlement will involve 88,500 owners of VW 3.0-liter cars. Under the terms of a related consent decree with the US Department of Justice, the German automaker will pay $225 million to mitigate environmental effects of nitrogen oxide pollution.

This latest settlement follows the earlier $14.7 billion deal with owners of 2.0-liter vehicles reached in October 2016. That deal includes $2.7 billion for environmental remediation.

According to a statement issued by Department of Justice attorney Josh Van Eaton, who represented the US Environmental Protection Agency in the lawsuits, the consumer settlements of the VW emissions scandal is “the largest civil penalty ever under the Clean Air Act.”

The case is In re: Volkswagen “Clean Diesel” Marketing, Sales Practices and Product Liability Litigation, case number 3:15-md-02672, in the US District Court for the Northern District of California.

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

Week Adjourned: 5.5.17 – Honda CR-V, WEN, FedEx

Top Class Action Lawsuits

Honda in trouble—again? The got hit with a defective automotive class action lawsuit this week, over allegations of noxious fumes entering into the cabins of its 2015, 2016 and 2017 models of its CR-V sport utility vehicles. Sounds unpleasant, on a number of fronts.

The lawsuit also alleges Honda is guilty of consumer fraud, as it states the automaker knowingly sells cars with a defect causing the passenger cabin to fill with gasoline fumes. Honda has so far refused to take the cars back, or offer to replace or repair the vehicles.

According to the Honda CR-V lawsuit, new Honda vehicles come with a three-year or 36,000-mile warranty that provides free repairs or replacement of the vehicle for problems arising from defects in its design or construction. However, the plaintiffs state that when they complained to Honda about the alleged fumes, the company declined to honor the warranty. The plaintiffs claim the fumes are bad enough to keep them from driving the car, causing them to suffer headaches and stomach pain. They describe the smell as “intermittent and pungent” and doesn’t seem to be affected by the speed or duration of driving. The majority of the plaintiffs claim they first noticed it within a year of purchasing or leasing their CR-Vs.

“Plaintiffs and class members have no confidence and peace of mind in a manufacturer that continues to sell vehicles it knows reek of gasoline yet refuses to repair or replace as required by its warranty,” the lawsuit states.

According to the lawsuit, Honda has received hundreds of complaints regarding the fumes, dating back to July 2015. While Honda has acknowledged the problem, it said it does not know how to fix it.

The proposed class seeks to represent anyone who purchased a 2015, 2016 or 2017 CR-V, who complained to Honda about the leaking vapors, and who did not receive a repair or replacement of the car.

The lawsuit states that Honda is in breach of its own warranty and in violation of several state consumer fraud statutes. It seeks compensatory damages for the class.

The putative class is represented by Alexander Loftus of Stoltmann Law Offices PC. The case is Carol Miles et al v. American Honda Motor Co. Inc., case number 2017-CH-06331, in the Circuit Court of Cook County.

Top Settlements

Heads up! —pardon the pun—if you purchased WEN hair products. This week, a $26.25 million settlement was reached in a consumer fraud class action lawsuit pending against WEN by Chaz Dean Inc. and manufacturer Guthy-Renker LLC. The lawsuit alleged that the celebrity stylist’s hair products caused consumers’ hair to fall out.

In addition to hair loss, the plaintiffs alleged the WEN products contained sulfates when they were marketed as “sulfate-free.” Further, WEN and Guthy-Renker were aware of the problems for at least four years due to tens of thousands of customer complaints, yet issued no recall, according to the lawsuit.

The litigation has been going on for three years and involves, potentially, millions of customers. If the proposed settlement receives final court approval, WEN will be required to place a warning label on its Cleansing Conditioner.

The proposed WEN settlement establishes two avenues of compensation for class members: the first, a flat $25 refund for those who bought the products, and the second would be awards of up to $20,000 for those who used the product and experienced hair loss or scalp pain.

The settlement class covers consumers who purchased WEN hair care products between November 1, 2007, and August 1, 2016.

Final court approval is required.

The case is Amy Friedman et al. v. Guthy-Renker LLC et al., case number 2:14-cv-06009, in the U.S. District Court for the Central District of California.

FedEx to deliver—on unpaid overtime. Yup. This week, a $227 million settlement agreement received final approval ending an unpaid overtime class action lawsuit between FedEx Corp and its drivers in 19 states. The plaintiffs alleged they were misclassified as independent contractors by FedEx, rather than full time workers, and were therefore undercompensated.

According to FedEx settlement documents, 12,627 drivers are named as plaintiffs in class-action lawsuits in the 19 states. They will receive payouts ranging from $250 to in excess of $116,000, under terms of the separate settlements in each state.

Settlement distributions and resolution of the lawsuits under the terms laid out, are as follows:

Indiana: 791 drivers will divide a settlement of $33.95 million. Average recovery per class member will be $29,520. Settlements per driver may range from $250 to $116,028.

Alabama: 375 drivers will share a settlement of $3.2 million. Average recovery per class member will be $5,620. Settlements per driver may range from $250 to $20,100.

Arizona: 380 drivers will share a settlement of $4.95 million. Average recovery per class member will be $8,699. Settlements per driver may range from $250 to $28,149.

Georgia: 867 drivers will share a settlement of $4.94 million. Average recovery per class member will be $3,785. Settlements per driver may range from $250 to $13,711.

Louisiana: 315 drivers will share a settlement of $5.25 million. Average recovery per class member will be $11,061. Settlements per driver may range from $250 to $39,743.

Maryland: 533 drivers will share a settlement of $9.4 million. Average recovery per class member will be $12,047. Settlements per driver may range from $250 to $29,455.

Minnesota: 455 drivers will share a settlement of $8.3 million. The average recovery per class member will be $12,312. Settlements per driver may range from $250 to $44,701.

New Jersey: 901 drivers will share a settlement of $25.5 million. Average recovery per class member will be $19,301. Settlements per driver may range from $250 to $71,194.

New York: 1,602 drivers will share a settlement of $42.9 million. Average recovery per class member will be $18,421. Settlements per driver may range from $250 to $68,880.

North Carolina: 707 drivers will share a settlement of $20 million. Average recovery per class member will be $19,250. Settlements per driver may range from $250 to $53,440.

Ohio: 878 drivers will share a settlement of $8.35 million. Average recovery per class member will be $6,363. Settlements per driver may range from $250 to $20,611.

Pennsylvania: 1,265 drivers will share a settlement of $23 million. Average recovery per class member will be $12,442. Settlements per driver may range from $250 to $45,647.

Rhode Island: 125 drivers will share a settlement of $1.6 million. Average recovery per class member will be $7,352. Settlements per driver may range from $250 to $20,332.

South Carolina: 274 drivers will share a settlement of $3.1 million. Average recovery per class member will be $7,405. Settlements per driver may range from $250 to $19,682.

Tennessee: 762 drivers will share a settlement of $12.25 million. Average recovery per class member will be $10,863. Settlements per driver may range from $250 to $39,838.

Texas: 1,515 drivers will share a settlement of $8.9 million. Average recovery per class member will be $3,938. Settlements per driver may range from $250 to $13,880.

Utah: 171 drivers will share a settlement of $2.4 million. Average recovery per class member will be $9,130. Settlements per driver may range from $250 to $28,886.

West Virginia: 107 drivers will share a settlement of $3.75 million. Average recovery per class member will be $22,306. Settlements per driver may range from $250 to $76,456.

Wisconsin: 604 drivers will share a settlement of $5.5 million. Average recovery per class member will be $6,126. Settlements per driver may range from $250 to $21,842.

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

Week Adjourned: 4.28.17 – Uber, VW, Audi, Hard Rock Cafe

Top Class Action Lawsuits

I always feel like…Uber is watching me…? Uber just can’t seem to stay out of court these days. This week they got hit with a privacy class action lawsuit brought by Lyft drivers who assert that Uber used “secret” software to spy on them, allegedly allowing Uber to see Lyft’s coverage areas and which drivers worked for both ride share companies.

Allegedly referred to internally by Uber as “Hell”, the software enables Uber personnel to gain unauthorized access to Lyft computer systems, pose as Lyft customers and see the locations of Lyft drivers and their unique Lyft identification, according to the complaint.

Filed by a former driver for Lyft, Michael Gonzales, against three related companies, Uber Technologies Inc., Uber USA LLC and Rasier-CA, the lawsuit seeks to represent Gonzales and other Lyft drivers whose electronic communications and locations were allegedly intercepted, accessed, monitored or transmitted by Uber.

According to the Uber privacy lawsuit, “Each Lyft ID is unique, akin to a Social Security number, which allowed Uber to track Lyft drivers’ locations over time.” Uber used the “Hell” software program from at least 2014 to 2016, the lawsuit asserts.

Uber allegedly cross-referenced location data it gathered on Lyft drivers with its own internal records to determine which drivers were working for both companies so it could target them “in order to improve the Uber platform and harm the Lyft platform,” the complaint states. “Uber accomplished this by incentivizing drivers working on both platforms to work primarily for Uber, thereby reducing the supply of Lyft drivers, which resulted in increased wait times for Lyft customers and diminished earnings for Lyft drivers.”

Allegedly, Uber would direct “more frequent and more profitable trips” to drivers who it knew were also working for Lyft, thereby encouraging those drivers to primarily work for Uber, the complaint alleges.

Gonzales worked as driver for Lyft from 2012 to 2014 but never worked for Uber, according to the complaint. He seeks to represent a national class and a California class of drivers.

The proposed national class is defined in the complaint as “all individuals in the United States who (1) worked as drivers for Lyft, (2) while not working for Uber, and (3) whose private information and whereabouts was obtained by Uber by accessing computer systems operated or used by Lyft and the class.” The proposed California class is defined identically, except for removing the words “in the United States.”

According to the complaint, public reports estimate some 315,000 people have driven for Lyft in the United States, and 60 percent of them may have also driven for Uber. As such, the number of members in the proposed national class may be in excess of 126,000, while “common sense dictates that thousands of those individuals are California residents,” the proposed lawsuit states.

The proposed class action claims violations of the Electronic Communication Privacy Act, the California Invasion of Privacy Act and the California Unfair Competition Law and seeks injunctive relief and damages for the alleged privacy invasion.

The case is Michael Gonzales v. Uber Technologies Inc. et al, case number 3:17-cv-02264, in the U.S. District Court for the Northern District of California.

Top Settlements

It’s a Record Settlement—and it’s Official. A $2.1 billion settlement has received final approval, ending the massive Canadian Volkswagen (VW) emissions scandal class action caused by VW and Audi vehicles fitted with the now infamous defeat device, which allowed VW and Audi to cheat emissions standards testing.

According to a report in the Canadian national newspaper, The Globe and Mail, members of a Canadian class action can submit claims for reimbursement this week, as an Ontario court has approved a $2.1 billion settlement plan.

Some 105,000 people who either purchased or leased certain Volkswagen or Audi vehicles with two-litre diesel engines that were involved in the emissions scandal will each receive a payment between $5,100 and $8,000, according to the written judgment by Superior Court Justice Edward Belobaba.

Additionally, many class members will be able to choose whether to return their vehicle at the buy-back price as of mid-September 2015, before knowledge of the defeat device was made public, or keep their car and receive an emissions modification that is approved by government regulators, according to the Canadian VW settlement.

This settlement, however, may not be the end of the litigation. Attorneys representing the plaintiffs said that if emissions modifications for any of the vehicles are not approved and implemented around summer 2018, and the owner chooses not to return their vehicle, they can choose to continue litigation. If enough such owners come forward, the court may choose to hear the case again as a class action lawsuit.

Currently, US regulatory authorities are evaluating fixes Volkswagen has provided for three generations of affected VW and Audi vehicles.

Another biggie this week… The Hard Rock enterprises has agreed to pony up a $51.5 settlement ending a consumer fraud class action lawsuit brought by the buyers of a Hard Rock Cafe condo-hotel complex and the company who alleged the developers of the condo hotel units violated land sale regulations. Get outta town!

According to the terms of the Hard Rock settlement, each class member would receive a payment of approximately $95K. Court fees and costs would also be paid from the settlement fund. The developer, Tarsadia Hotels, would contribute $10 million and third-party defendant Greenberg Traurig LLC would put in the remaining $41.15 million.

In May 2010, Laurie and Dean Beaver filed a lawsuit against the Hard Rock Café condo-hotel consortium, alleging the defendants failed to inform them that they could rescind their property purchases within two years of their signing date.

Development began on The Hard Rock San Diego in 2005. It is a 12-story building with 420 condo-hotel units located across the street from the San Diego Convention Center and a few blocks from the San Diego Marina and Seaport Village, according to court documents.

The proposed settlement requires final court approval.

The case is Dean Beaver et al. v. Tarsadia Hotels et al., case number 15-55106, in the U.S. Court of Appeals for the Ninth Circuit.

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

Week Adjourned: 4.21.17 – Southwest Airlines, Bose, Google

Top Class Action Lawsuits

Southworst for Cancellation Credit? Think these guys are going to “Wanna Get Away” after dealing with all this…two men filed an an unfair business practices class action lawsuit against Southwest Airlines (SWA) this week, alleging the airline unfairly placed a redemption period on the money credits issued to travelers who cancelled their non-refundable tickets.

The Southwest Airlines lawsuit was filed by plaintiffs Paul Stewart and Michael Hicks who allege they bought Southwest Airlines non-refundable “Wanna Get Away” round-trip tickets from Tulsa, OK to Phoenix AZ in August 2013. They planned to depart Tulsa on November 14, 2013 and return on November 18, 2013. The complaint states the price for both round drip tickets was $695.

The plaintiffs were unable to travel on the dates they had booked and had to cancel their tickets, which they did, according to the lawsuit, by following the procedures stipulated on the Southwest website. Hicks and Stewart assert they cancelled their flight reservations on October 22, 2013.

According to the complaint, the plaintiffs knew their tickets were non-refundable and did not expect a refund. However, Southwest subsequently provided them with a credit they could use toward future tickets on other Southwest flights, the lawsuit states.

“[The plaintiffs] were completely satisfied having money-credits to use in the future, and had good experiences in the past using other money-credits they had with SWA,” the complaint states.

However, when Hicks and Steward tried to use their travel funds they discovered the Southwest money credits were only good for one year from the date they bought their original round trip tickets, which they had cancelled.

The plaintiffs state in the lawsuit that Stewart required significant medical treatment in 2014 and most of 2015, so they were unable to travel in a non-emergency capacity. However, by August 2015, Stewart was able to travel which is when he and Hicks tried to use their Southwest money credits to buy tickets.

“To their surprise and chagrin,” Southwest representatives allegedly informed the plaintiffs that they could not use their money-credits to purchase airline tickets. According to the Southwest Airlines class action lawsuit, the plaintiffs were told the funds had expired, the funds were no longer available, and that the funds were lost, among other things.

They plaintiffs claim they “attempted to resolve their dispute with SWA over their expired, unavailable, and lost money, but SWA simply stonewalled them and stopped responding.”

“The only logical conclusion is SWA confiscated [the plaintiffs’] money, and has kept it as free, unearned profits since August 2013,” the lawsuit states. Hicks and Stewart allege that the funds include federal transportation taxes, 9/11 security fees and passenger facility charges, in addition to the actual fare.

“Unbelievably, SWA has provided nothing in return to [Stewart and Hicks] for the money they paid to SWA,” the complaint states.

The Southwest Airlines class action lawsuit asserts claims for breach of contract, fraud and tortious breach of the covenant of good faith.

FYI – The lawsuit is Paul Stewart, et al. v. Southwest Airlines Co., Case No. 5:17-cv-00429-F, in the U.S. District Court for the Western District of Oklahoma.

Nosy Bose-y? And what about those Bose headphones—who is listening with you? A lot of interested parties, if the allegations in this federal Wiretap Act class action are correct. Filed this week, the lawsuit claims that Bose collects and shares information about app users’ listening habits, which also violates the Illinois Eavesdropping Statute and the Illinois Consumer Fraud and Deceptive Business Practice Act.

According to the lawsuit, filed by Kyle Zak, who bought a pair of Bose wireless headphones for $350, the electronics company secretly collects, transmits and discloses to third parties, including a data mining company, the private music and audio selections of customers who downloaded its Bose Connect mobile app.

The Bose headphone lawsuit also alleges claims for intrusion upon seclusion and unjust enrichment.

Zak is seeking injunctive relief requiring Bose to discontinue its illegal practices and destroy all data it has collected, as well as actual and statutory damages arising from the invasion of privacy and from customers’ purchases of Bose wireless products, including the return of the products’ purchase price and disgorgement of profits. According to the lawsuit, damages likely exceed $5 million.

The case filed Wednesday is Zak v. Bose Corp., case number 1:17-cv-02928, in the U.S. District Court for the Northern District of Illinois.

Top Settlements

Possible AdWords Settlement…Google’s about to pony up $22.5 million if a proposed settlement in a consumer fraud class action lawsuit gets the green light.

The Google lawsuit was filed by a proposed class of AdWords advertisers, who allege Google failed to disclose that it placed AdWords customers’ ads on websites known as parked domains and error pages. Oh, that’s a good use of your advertising buck – not.

According to the allegations, Google did this from July 11, 2004 to March 31, 2008. Parked domains, as you may or may not know, are websites with little or no content, and error pages are websites that users visit when they enter an unregistered address into their web browser.

The proposed Google AdWords settlement was granted preliminary approval on March 9, 2017. If granted final approval, Google will pay $22.5 million into a settlement fund, which will be used to pay class members who submit valid claims, proportionate to the amount each class member spent on ads displayed on parked domains and error pages during the class period.

Heads up—if you are a United States resident and had a Google AdWords account and were charged for clicks on advertisements appearing on parked domains or error pages, during the period from July 11, 2004 through March 31, 2008, you are a class member and may be entitled to a settlement payment. Cha ching!

To receive payment, you must submit a claim form no later than June 21, 2017.

The case is In Re Google AdWords Litigation, No. 5:08-cv-03369-EJD.

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

Week Adjourned: 4.14.17 – Nissan Sentra, Express Stores, DoorDash

Top Class Action Lawsuits

Senseless Sentra? They say there’s no such thing as bad publicity—I’ll bet Nissan would disagree. The automaker has just been hit with a defective automotive class action lawsuit…this one filed by a waste management company alleging the automotive manufacturer and Nissan World LLC, a local dealership in New Jersey, concealed transmission problems with the 2014 Nissan Sentra.

Here’s the skinny: the plaintiff, Pinto of Montville Inc, claims Nissan falsely advertised and sold its Sentras despite the presence of the alleged defect. “Notwithstanding this longstanding problem and extensive knowledge of the issue, Nissan and the dealership continued to advertise and sell the defective vehicles, failed to issue an appropriate recall, and, amazingly, continued to market the CVT as a more ‘durable’ and reliable transmission,” the complaint states.

FYI—the alleged defect, continuously variable transmissions, has been reported to the National Highway Safety Administration (NHSA) in consumer complaints during the past 10 years.

The Nissan lawsuit states that Pinto bought a Nissan Sentra in July 2014. The problems with the transmission began while the car had less than 20,000 miles on the clock. Those problems include engine revving during gear shifts and shaking and unexpected downshifts while driving. Despite bringing these issues to the dealership, managers claimed the vehicle did not have any problems, the plaintiff claims.

After being replaced four times between 2014 and 2016, (seriously?) due to damage from the alleged defect, Pinto states it tried to make a claim under New Jersey’s Lemon Law. The dealership, despite correspondence from retained counsel, allegedly refused to acknowledge the transmission had problems or preserve the defective transmission in the Sentra pending the lawsuit, amounting to evidence of spoilation, according to the complaint.

If any of this sounds familiar, the lawsuit seeks to represent a class consisting of all owners of the 2014 Nissan Sentra in New Jersey. In total, 11 claims are made, including those for violation of the state’s consumer fraud law, violation of express and implied warranties, product liability, false advertising, and violation of the state’s “lemon law,” among others. The complaint seeks damages and a recall and repurchasing of all 2014 Sentra models registered or sold in the state.

The case is Pinto of Montville Inc. v. Nissan North America, Inc. et al., case number L-753-17, in the Superior Court of New Jersey, Law Division, Morris County.

Exempt at Express? Maaaybe not. It’s time for our weekly employment class action. A federal employment and labor law class action lawsuit has been filed against Express Inc., alleging violations of the Fair Labor Standards Act (FLSA). Specifically, the lawsuit claims the clothing retailer misclassified co-managers as exempt employees, and denied paying them for required overtime when they worked in excess of 40 hours per week.

The lawsuit was filed by a former New Jersey employee, Karla Reynosa, who alleges she worked as a salaried co-manager at Express stores in New York as well as New Jersey. During her employment with the defendant, Reynosa and other co-managers were frequently required to work overtime but were paid “supplemental” pay equal to one-half of an hourly rate calculated off her annual salary, the lawsuit states.

The FLSA stipulates that time and a half is the hourly overtime rate. “Defendant knowingly and willfully operated its business with a policy of not paying overtime premiums equal to one and a half times Plaintiff’s regular hourly rate for hours worked in excess of forty in a workweek,” the complaint states.

According to the Express unpaid overtime lawsuit, Reynosa worked for Express from 1999 to 2013 at stores in Manhattan. In 2012 she became a co-manager and generally put in between 43-45 hours per week, and on occasion as much as 49 hours per week. She then moved to an Express in Jersey City, where she worked as a salaried co-manager from June 2015 to about September 2016, and again generally worked 42 hours per week.

Despite her title, Reynosa didn’t have duties that were meaningfully different than the hourly sales associates and wasn’t involved in management, hiring or operational decisions at either store, the complaint states.

The complaint alleges failure to pay overtime in violation of the FLSA, violations of New Jersey labor law for overtime and unpaid overtime wages, and a violation of New York labor law for unpaid overtime wages.

Reynosa seeks to represent a class of anyone who worked as a salaried, exempt co-manager for Express and put in more than 40 hours per week during any workweek in the past three years. She also seeks to represent a class of those who were allegedly misclassified pursuant to the New Jersey and New York claims.

The case is Karla Reynosa v. Express Inc., case number 2:17-cv-02424, in the U.S. District Court for the District of New Jersey.

Top Settlements

DoorDash could be delivering checks… in the not so distant future. The food delivery start-up, has agreed to pay $5 million to settle an employment class action lawsuit brought by workers who claimed they were misclassified so the company would not have to pay expenses among other costs.

Two lawsuits were filed in September 2015, one by Cynthia Marciano and the other by Evan Kissner both alleging that DoorDash misclassified them and other delivery workers as independent contractors, and therefore violated certain provisions of the labor code.

Under the terms of the DoorDash settlement, both named plaintiffs, Marciano and Kissner, will receive $7,500 each. There are approximately 33,744 class members, including anyone who worked for DoorDash as an independent contractor at some point between September 23, 2011 and August 29, 2016, and completed at least one delivery. Each of those class members will receive payment as part of the settlement. According to the agreement, class members who “were most active” on DoorDash will “receive proportionally higher payments.”

For those of us who still venture out in person to the grocery store, DoorDash is a food delivery service located in 16 cities or regions throughout the country, which include San Francisco, San Jose/Silicon Valley, Oakland, Los Angeles, LA Valley, Orange County, San Diego, Boston, Phoenix, Brooklyn, Manhattan, Washington D.C., Minneapolis and Houston.

The settlement requires final court approval. Stay tuned!

I wonder if the Easter Bunny is hiring?

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