Week Adjourned

Week Adjourned: 4.7.17 – Volkswagen, Audi, iOS, Halliburton

Top Class Action Lawsuits

Heads Up Volkswagen and Audi Owners! The automakers got hit with a proposed defective automotive class action lawsuit this week, over allegations they were aware of an engine defect in certain models, which they concealed and which resulted in thousands of dollars in damages to vehicles owners. Know this playbook?

Filed in federal court, the proposed lawsuit states that VW and Audi concealed a defect with the timing chain in certain vehicles built between 2008 and 2013. According to the complaint, the timing chain system is meant to operate normally for at least 120,000 miles, however, the alleged defect caused the timing chain to fail at any time prior to that, causing the vehicles to lose engine power and the ability to accelerate, maintain speed, control steering or fully engage the brakes, putting them at risk of rear-end crashes.

The VW and Audi complaint states that repairing the defect costs $1,200 at a minimum, but can reach $10,000 and involve replacing the entire engine.

The four named plaintiffs, Lloyd Artola, Angel Esquijarosa, Demetrie Hylick and Michael Spencer, are seeking to represent anyone who owned or leased certain Volkswagen or Audi vehicles with the alleged defect. They seek to establish two classes of plaintiffs, a nationwide class and a Florida subclass. The vehicles named in the complaint include various models of Volkswagen Beetles, Golfs, Jettas, Passats, Rabbits, Routans, Tiguans and Touaregs, as well as Audi A3s, A4s, A5s, A6s, A7s, Q3s, Q5s and Q7s.

Named plaintiff Artola claims he paid $6,700 to have his 2011 Audi Q5 repaired when the defect caused severe engine damage at 75,000 miles. Audi agreed to waive the cost of the repair after “much effort,” the complaint states.

Esquijarosa experienced similar trouble after the 2010 Volkswagen CC Sport, which he bought in 2013 from his daughter, suffered catastrophic engine failure at 38,000 miles. It cost him about $4,000 to repair. According to the complaint, “after much effort,” Volkswagen agreed to split the cost.

Hylick bought a used 2010 Volkswagen CC. The defect caused severe engine damage when the vehicles reached about 89,000 miles, costing the plaintiff $8,800 to repair. Spencer bought a used 2009 Volkswagen Passat, which failed to start when the vehicle reached 59,300. He spent $3,300 to have it fixed. Volkswagen refused to reimburse him, the complaint states.

The case is Artola et al. v. Aktiengesellschaft et al., case number 1:17-cv-21296, in the U.S. District Court for the Southern District of Florida.

Top Settlements

iOS Privacy Settlings…? More spooky stuff. This week, several major tech companies agreed to a $5.3 million settlement deal that, if approved, would end a privacy class action lawsuit accusing the companies of accessing the address book of iOS users without permission. Not surprised by these types of allegations anymore… sadly.

If court approval is granted, Foodspotting, Foursquare, Gowalla, Instagram, Kik, Path, Twitter and Yelp will share in creating the settlement fund which will pay out an estimated 0.53 cents per user, to more than 7 million users.

The lawsuit was filed in 2012 and alleges the tech and social media companies, through their services, used “unconscionable, illegal practices” in accessing contacts belonging to users without the users’ consent. The plaintiffs assert that this is equivalent to the contacts being “accessed and stolen.”

The lawsuit was brought following publicity around reported breaches of privacy. The Federal Trade Commission also investigated the charges, which resulted in an $800,000 settlement with the social network app Path over its practices. A settlement hearing will be held on May 25. If approved, the settlement would apply primarily to iOS users whose address books were accessed and contacts were viewed by the defendants, without permission, between 2010 and February 2012.

Settlement payments will be made to class members via the Amazon accounts of those affected, unless they request payment in the form of a check. Any unclaimed funds from the settlement will be given to the Electronic Frontier Foundation.

Ten Years After… Here’s one for the books. Already record-setting, this week a decade of litigation may have reached its end, with a $100 million settlement receiving preliminarily approval. The defendant is Haliburton, and the securities class action lawsuit centered around the company’s liability in its disclosure of asbestos use.

Not only has litigation of this lawsuit taken a decade but it has also included two trips to the US Supreme Court. If granted final approval, the $100 million settlement will effectively end one of the longest running securities fraud class actions in US courts, according to a copy of the settlement papers.

The lawsuit was filed in 2002, by a Milwaukee charitable organization that held Halliburton stock under its Erica P. John Fund as well as other plaintiffs. The lawsuit alleged Halliburton’s disclosure of a $30 million verdict stemming from asbestos liabilities sent the company’s stock price plummeting by 40 percent. The company’s stock prices were artificially inflated, the lawsuit claimed, resulting from misstatements issued about its financial liability for asbestos claims.

Chief US District Judge Barbara M.G. Lynn scheduled a settlement fairness hearing to take place at the end of July. Additionally, a deadline of August 12 has been set for any class members who want to participate in the settlement to submit a claim form.

The case is Erica P. John Fund Inc. v. Halliburton Co., case number 3:02-cv-01152, in the U.S. District Court for the Northern District of Texas.

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

Week Adjourned: 3.31.17 – Windows 10, Wells Fargo, GT’s Kombucha

Top Class Action Lawsuits

Windows 10 OS not Operating? Perhaps this doesn’t come as a surprise—particularly if you run Windows 10. Microsoft got hit with a consumer fraud class action lawsuit this week by Windows 10 users who allege the Microsoft Windows 10 operating system (OS) causes problems, including loss of data, and that Microsoft failed to ensure the operating system wouldn’t cause problems prior to launch.

The three named plaintiffs, Stephanie Watson, Robert Saiger, and Howard Goldberg, allege in the complaint that Windows 10 caused their computers to lose data and stop functioning properly. While Saiger and Goldberg said they voluntarily installed the new OS, Watson claimed her computer was upgraded to Windows 10 without her permission.

The Windows 10 lawsuit alleges that the plaintiffs have lost time and money trying to recover lost data and resolve other problems caused by the upgrade. Further, Watson alleges she had to buy a new computer because her old one could not be successfully repaired following the Windows 10 install.

Cast your mind back to 2015—when Windows 10 was released as a free upgrade—for one year—to Microsoft users running previous versions of the company’s operating system. Currently installed on more than 400 million devices, Microsoft promoted the platform as its most advanced and secure OS to date. Of course it did.

However, post-launch, many customers have complained about the company’s aggressive efforts to get people to upgrade.

The lawsuit also claims that the prompts and upgrade offers for Windows 10 sent out by Microsoft were difficult to dismiss and remove and, once installed, the operating system itself was not easy to uninstall, if users found the upgrade caused problems.

“A great number of people have installed the Windows 10 system inadvertently or without full realization of the extent of the download,” the complaint stated. “Once downloaded, the Windows 10 system does not have an option for its deletion. The program can be deleted but it takes a significant effort to find out how to do so; a typical user will not have the expertise to remove the system without professional IT help.”

Filed in the U.S. District Court for the Northern District of Illinois, the complaint is seeking in excess of $5 million in damages. The suit seeks to represent a class comprised of all users in the US who lost data or whose devices were damaged after installing Windows 10.

Top Settlements

Wells Fargo to Pay? The big news this week? Wells Fargo will pony up $110 million according to a preliminary settlement agreement that could potentially end 12 banking fraud class action lawsuits. The Wells Fargo lawsuits allege the bank workers opened accounts in customers’ names without those customers’ authorizations.

According to the terms of the deal, if approved, eligible class members would be reimbursed for fees they were charged related to the unauthorized accounts and out-of-pocket expenses. Once those losses have been reimbursed, together with court costs and attorneys’ fees, the remaining funds would be split among all claimants, based on the number and kinds of unauthorized accounts or services claimed.

Heads up—eligible class members would be anyone who alleges Wells Fargo opened an account in their name without consent, enrolled them in a product or service, or submitted an application for a product or service in their name without consent between January 1, 2009, and the date the settlement is executed.

As well, Wells Fargo has said it will continue its voluntarily review of bank accounts opened between 2009 to 2010, to determine and remediate any customer harm. It has also said it will continue its nationwide mediation program to address customer concerns.

The back story? A federal investigation uncovered 1.5 million fraudulent bank and 565,000 credit card accounts set up by bank employees in order to boost or hit sales targets. Further, the employees also made up PIN numbers and email accounts in connection with the false accounts, to get people to sign up for online banking services, the Consumer Financial Protection Bureau (CFPB) said in a statement. This has already cost the bank $185 million in fines. Lesson learned? Maybe…

Nearly 5,300 employees were fired after the scheme was revealed, and in February, Wells Fargo’s board of directors voted to fire four senior managers in connection with an ongoing investigation stemming from the scandal.

Kombucha Mislabeling Mess. Kombucha! Bought it? Then realized it’s not what it’s advertised to be? Read on. A proposed GT’s Kombucha settlement has been reached in a consumer fraud class action lawsuit pending against Millennium Products Inc., and Whole Foods over allegations the defendants misrepresented the alcohol, sugar, and antioxidant content of certain GT’s Kombucha products. Under the terms of the proposed deal, a fund of up to $8,250,000 will be established to pay claims for those who purchased one or more flavors of GT’s Classic Kombucha, GT’s Classic Synergy, GT’s Enlightened Kombucha, and GT’s Enlightened Synergy beverages.

Class members can receive up to $35 in cash or product vouchers without Proof of Purchase or up to $60 in cash or product vouchers with Proof of Purchase. To qualify, class members must have purchased one or more specified Kombucha beverages from March 11, 2011 through February 27, 2017.

What’s the issue? The class action lawsuit alleged that Millennium mislabeled certain Kombucha products, stating the products were non-alcoholic despite containing more alcohol than is permitted in order to label them as non-alcoholic beverages; failing to include added sugar as an ingredient on the label even though the products allegedly contain added sugar; understating the amount of sugar included in the Kombucha products; and including the term “antioxidant” on the labels even though the Kombucha products do not actually contain antioxidants.

Whole Foods was named as a defendant in the Kombucha class action lawsuit because the grocery chain allegedly violated the law by reselling the allegedly mislabeled GT’s Kombucha products.

The settlement agreement, if approved, would also see Millennium make labeling changes to address the issues alleged in the Kombucha class action lawsuit and to have samples of the products tested by a third-party laboratory to ensure they continue to comply with federal and state labeling standards.

The final hearing for settlement approval is scheduled for July, 2017. The case is Retta, et al. v. Millennium Products Inc., et al., Case No. 2:15-cv-01801-PSG-AJW, 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: 3.24.17 – SoyNut Butter, Subway, Neiman Marcus

Top Class Action Lawsuits

SoyNut Butter & E. coli for lunch? Nasty stuff, literally. Check your cupboards! A food poisoning class action lawsuit has been filed against The SoyNut Butter Company of Illinois and the manufacturer of the product, Dixie Dew Products of Erlanger, Kentucky. The complaint was filed by the parents of a young child, identified as L.S. in the complaint, who became ill after eating E. coli O157:H7-contaminated I.M. Healthy SoyNut Butter. They allege their daughter developed hemolytic uremic syndrome, a life-threatening complication of E. coli infection, after ingesting the contaminated product.

According to the Centers for Disease Control (CDC), 16 people from nine states have so far been confirmed as infected with the strain of E. coli O157:H7 connected to the SoyNut Butter outbreak. Like L.S., 14 of the 16 people who became ill in this outbreak are under the age of 18, eight of whom have required hospitalization.

The affected states include includes Arizona (4), California (4), Maryland (1), Missouri (1), New Jersey (1), Oregon (2), Virginia (1), Washington (1), and Wisconsin (1). That number is expected to increase.

The plaintiffs, Travis and Morgan Stuller, allege L.S. regularly ate SoyNut Butter in the days leading up to her illness. On or about February 21, 2017, L.S. developed painful gastrointestinal symptoms, which worsened to include grossly bloody diarrhea. She was seen by her treating physician for ongoing symptoms, but, on March 5, was hospitalized at Seattle Children’s Hospital and remained so until March 8. While in the hospital, an illness of E. coli O157:H7 was confirmed and she was treated for hemolytic uremic syndrome (HUS), a potentially life-threatening condition. L.S. continues to recover at home, but faces uncertain future medical complications, according to statements.

FYI—the case number is 1:17-cv-02138.

Top Settlements

Check those Subway receipts… Strap yourselves in—it’s a record $30.9 million settlement for the maker of “foot long” sandwiches, potentially ending a Fair and Accurate Credit Transactions Act (FACTA) class action brought against Subway, over allegations the company unlawfully printed full credit card expiration dates on receipts. If approved, this will be the largest settlement ever made under FACTA.

The lawsuit was filed against Doctor’s Associates Inc., which does business as Subway, on behalf of nearly 2.6 million people who claim their credit or debit card information was potentially compromised by the printed receipts.

Named plaintiff Shane Flaum filed his complaint in June 2016, alleging Subway violated FACTA through its practice of printing customers’ cards’ full expiration dates even after it had been sued in the past for similar violations, specifically twice in 2007, and again in 2008 and 2009, he states.

FACTA regulations require retailers to omit card expiration dates on receipts, as emphasized in the Credit and Debit Card Clarification Act.

According to the Subway lawsuit, the deal “sets a new record for FACTA class actions” and is believed to be the “largest FACTA settlement in the history of FACTA.”

The class includes all Subway patrons who received receipts upon purchase that showed their credit or debit cards’ full expiration dates between January 1, 2016, and the date of preliminary approval of the settlement.

The lawsuit is Flaum v. Doctor’s Associates Inc., case number 0:16-cv-61198, in the U.S. District Court for the Southern District of Florida.

Neiman Marcus hack? Neiman Marcus reached a $1.6 million settlement this week, potentially ending a data breach class action lawsuit its facing stemming from a cyber attach reported in December 2013. That hack allegedly affected some 350,000 customers. Ugly.

If the settlement receives approval, eligible class members will include US residents who held credit or debit card accounts used at any physical locations operating under the Neiman Marcus Group LLC name, including its namesake, Bergdorf Goodman, Cusp or Last Call, from July 16, 2013, to Jan. 10, 2014.

In March 2014, Neiman Marcus customers Hilary Remijas, Melissa Frank, Debbie Farnoush and Joanne Kao sued the retailer after it said that a December 2013 data breach had exposed the credit card data of 350,000 shoppers. The company had claimed that just 9,200 accounts were impacted.

The Neiman Marcus lawsuit asserted that the luxury Dallas-based retailer was negligent in its failure to protect its customers’ privacy and in waiting a full 28 days to inform them of that breach.

According to the terms of the deal, each class member who submits a valid claim is eligible to receive up to $100 from the settlement fund. The settlement also calls for each class representative to receive up to $2,500 in service awards.

The case is Hilary Remijas et al. v. the Neiman Marcus Group LLC, case number 1:14-cv-01735, in the U.S. District Court for the Northern District of Illinois, Eastern Division.

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

Week Adjourned: 3.17.17 – State Farm, Samsung, We-Vibe

Top Class Action Lawsuits

What a strange week…nothing is spared, it seems.

Coverage you thought you paid for… This week, news out that State Farm will face a bad faith insurance class action lawsuit brought by policy holders who allege they were wrongfully denied personal injury benefits after physicians found the policyholders achieved “maximum medical improvement”.

The class was certified by a Washington federal judge, who granted named plaintiff Brett Durant’s motion for class certification, dismissing State Farm Mutual Automobile Insurance Co.’s statement that the case was unfit for class treatment because, among other things, each policyholder’s damages needed to be calculated individually.

US District Judge Richard A. Jones stated that “Despite the possible individualized nature of damages calculations in this matter, the court nevertheless finds that ‘[c]lasswide resolution of the common issues is superior to the filing of multiple and duplicative lawsuits and will result in the efficient and consistent resolution of overarching questions.”

Durant had sued State Farm in 2014, alleging the insurer had improperly denied his request for coverage of ongoing medical treatment for injuries he suffered in a 2012 car accident. The reason the insurer would not pay for treatment, the lawsuit alleges, is because a chiropractor reported that Durant had reached maximum medical improvement, or MMI.

The personal-injury-protection section of Durant’s State Farm policy extended coverage for “reasonable medical expenses” incurred within three years following the date of an accident. The policy indicated that reasonable medical expenses may include costs “essential in achieving maximum medical improvement for the bodily injury sustained in the accident,” according to court documents. Durant sought class certification in 2016, asking to represent a class of insureds and third-party beneficiaries who, under any State Farm policy issued in Washington, had their benefits terminated or limited based on the MMI determination.

Durant claims that State Farm’s behavior is in violation of the Washington Administrative Code and state Insurance Fair Conduct Act.

In certifying the class, Judge Jones found that Durant had met the various requirements, in that Durant had identified enough potential class members, and that all the individual insureds’ claims involve the same alleged unfair conduct by State Farm.

The case is Durant v. State Farm Mutual Automobile Insurance Co., case number 2:15-cv-01710, in the U.S. District Court for the Western District of Washington.

Coverage you really DIDN’T pay for… Big brother may indeed be watching, that is according to a proposed privacy class action lawsuit filed against Samsung over allegations its Smart TV devices enable the company to record consumers’ private conversations without their knowledge.

According to the complaint, filed by Joshua Siegel, the Samsung Smart TV devices are equipped with the capability to respond to human voices through a built-in “always on” recording device, and that enables the company to intercept and record consumers’ private communications inside their homes for profit, in violation of the New Jersey Consumer Fraud Act.

The Smart TVs are made by Samsung Electronics America Inc. and its Korean parent company Samsung Electronics Co. Ltd. The lawsuit states that the electronic companies have failed to safeguard the capabilities of the devices, resulting in third parties like the CIA being able to remotely hack into the devices and turn them into hidden spying systems.

Interestingly, the source of information is WikiLeaks, make of that what you will. The lawsuit asserts that this information was disclosed by WikiLeaks in its most recent set of released documents purporting to reveal the full capability of the CIA’s hacking.

“While Samsung has marketed the convenience of its voice-recognition capable Smart TV, it has negligently and/or recklessly failed to consider or properly address the privacy consequences of its Smart TV’s configuration, specifically its susceptibility to hacking of private consumer information,” the lawsuit states.

According to the Samsung privacy lawsuit, in Samsung’s privacy policy the company states that some of the voice commands collected by the television’s voice recognition feature may be transmitted to a third-party service that converts speech to text. But what the company doesn’t disclose is the fact that everything a user says in front of the TV is recorded and shared, the lawsuit states.

“Consumers have no reason to expect that defendants engaged in second-by-second tracking and recording by surreptitiously recording content and sending it back to their own servers and then transmitting that information to third parties,” the suit contends. “Further, defendants’ representations were not sufficiently clear or prominent to alert consumers to their practices related to defendants’ recording of consumers’ private recordings in their home.”

Samsung’s actions “are an unconscionable commercial practice” that violate New Jersey’s consumer protection law, Siegal asserts. Siegal is seeking injunctive relief and compensation for damages caused by Samsung’s deceptive and misleading practice and is looking to represent anyone in the U.S. who purchased or leased a Samsung Smart TV since January 2012, according to the complaint.

Better stop watching cartoons.

Top Settlements

Coverage that’s downright a bit too uhh, personal… A $3.75 million settlement has been reached potentially ending a wire tap class action brought against the manufacturer of an internet-connected vibrator. Oh yeah baby!

The federal lawsuit alleged that Standard Innovation, makers of the We-Vibe Smart Vibrator, improperly tracked customers’ use of the sex toy, including which settings were used and how often it was used. The technology in a 2014 update to the We-Vibe vibrator, allegedly enabled the defendant to collect its customers’ usage data.

The Plaintiffs assert that Standard Innovation breached Illinois consumer fraud laws and the federal Wiretap Act by programming We-Connect , which is a service connecting users and their partners remotely, to “contemporaneously monitor, intercept, and transmit” data sent to the We-Vibe devices from consumers’ smartphones.

According to the lawsuit, customers state that they would not have purchased the vibrator had they known their actions would be monitored, collected, and transmitted.

If approved, the proposed settlement would see Standard Innovation designate $3 million for customers who downloaded the app and used it with the We-Vibe device. Each Plaintiff could receive about $10,000.

The remaining $750,000 would be divided among consumers who purchased the devices alone, with each receiving about $199.

The proposed We-Vibe settlement, which needs final court approval, would also require Standard Innovation to destroy the data it collected from users and cease collecting emails and personal user information. The company denies any wrongdoing. Seriously?

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

Week Adjourned: 3.10.17 – Nissan, Mesh Implants, Home Depot

Top Class Action Lawsuits

Nissan is listening…maybe literally & maybe too much. The automaker got slapped with a proposed privacy class action lawsuit this week, over allegations the company recorded calls between themselves and customers to or from customers’ cell phone without consent. Nice.

Filed in California state court by Dave Vaccaro, the complaint states that this is regular practice for Nissan, which records both inbound and outbound calls that are placed in California, without first obtaining permission or informing customers, in violation of the California Penal Code.

“Defendant concealed the fact that it was recording the aforementioned phone calls to create the false impression in the minds of plaintiff and those similarly situated without their knowledge or consent that they were not being recorded,” the complaint states. “At the outset of the phone calls there was no warning that the phone calls were, or even may, be recorded. Such warnings are ubiquitous today.”

According to the Nissan lawsuit, Vaccaro and Nissan were in contact by cell phone several times during February but at no time was he aware the automaker was recording the conversations, as they had not asked his permission to do so. Further, the complaint alleges that Nissan failed to provide an automated advisory at the beginning of the calls explaining that they could be monitored or recorded, nor did the company’s representatives give him warning. It’s enough to make you go back to writing letters…

Vaccaro states that he remained unaware of the recording until the end of one of the later calls. It was then that a Nissan agent informed him that Nissan’s calls, including collection and sales calls are recorded. Vaccaro claims that as he had no way of knowing the calls were being recorded until August and that recording calls is part of Nissan’s policy, he is justified in not bringing the claim earlier.

The plaintiff seeks to represent a class of all people in California who, in the last year, had inbound or outbound conversations on their cellphones recorded by Nissan without their permission. Although he doesn’t know how many members of the class there are, plaintiff believes the number to be in the tens of thousands, if not more, according to the complaint.

The complaint brings one count for invasion of privacy in violation of the California Penal Code, seeking the greater of statutory damages of $5,000 per violation or three times the actual damage per violation, as well as $2,500 per violation, exemplary or punitive damages, costs and prejudgment interest.

Vaccaro also seeks injunctive relief in the form of an order requiring Nissan to disgorge its ill-gotten gains and provide the class with full restitution, plus an injunction barring the company from recording calls with California residents without permission.

The case is Dave Vaccaro v. Nissan North America Inc., case number BC653385, in the Superior Court of California for the County of Los Angeles.

Top Settlements

Mesh Mess. A good ending for a bad story… A proposed $12.5 million settlement has been approved by a California federal judge, resolving litigation involving Caldera Medical’s transvaginal mesh (TVM) implant. Thousands of insurance claims were filed against Caldera alleging the TVM caused injuries to some 2,700 women.

According to the terms of the Caldera mesh settlement, in which class members are not able to opt-out, Federal Insurance will distribute $10.58 million among 2,710 class member claimants. Further, it will pay class counsel attorneys’ fees and costs. In exchange, the claimants release Caldera and Federal Insurance from all future claims, according to court documents.

The Caldera TVM implant was used to treat pelvic organ prolapse and stress urinary incontinence in women. According to the suits, which were consolidated in California state court, Caldera knew or should have known that the TVM devices it manufactured and sold were hazardous and dangerous to people’s health. The claims were filed against Caldera which were then turned into insurance claims with Federal Insurance.

According to court documents, Federal Insurance had already paid out more than $6.3 million in settlements, notwithstanding the thousands of additional claims pending. Federal Insurance asked the court to certify a class of claimants and enjoin the claimants from pursuing further suits affecting the insurance policy.

The state litigation is In Re. Transvaginal Mesh Litigation, case number JCCP 4733, in the Superior Court of the State of California for the County of Los Angeles.

Home Depot bringing it home—$25 million that is—to the banks. A settlement has been reached between Home Depot and financial institutions who brought a class action against the home hardware retailer alleging it was negligent in preventing a massive data breach in 2014.

The putative class action alleged that the data breach compromised 56 million credit and debit card numbers of Home Depot customers.

According to court documents, if approved, the Home Depot data breach settlement would require Home Depot to pay $25 million into a non-revisionary fund to be distributed to financial institutions that have not already released their claims against the retailer for losses stemming from the catastrophic data breach.

For financial institutions with a valid claim, a fixed payment estimated to be $2 per compromised card could be forthcoming, without the institutions having to submit documentation of their losses and regardless of whether any compensation already has been received from another source, according to the agreement.

Class members that submit proof of losses also are eligible for a supplemental award of up to 60 percent of their documented, uncompensated losses from the data breach, documents state.

The retailer also has agreed to pay up to $2.225 million to institutions whose claims were released by a sponsor, such as a card processor, in connection with the card brand recovery program provided by MasterCard.

The MDL is In Re: The Home Depot Inc., Customer Data Security Breach Litigation, case number 1:14-md-02583, in the U.S. District Court for the Northern District of Georgia.

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

Week Adjourned: 3.3.17 – Paypal, AT&T, Airbags

Top Class Action Lawsuits

PayPal no pal of small charities? Maybe… The online payment processor got hit with a consumer fraud class action lawsuit this week, claiming the company’s charitable arm takes funds from donors for various causes but fails to make the donations unless the charity had set up several accounts. Nice.

The complaint was filed by Friends For Health, a nonprofit supporting the North Shore Health Center in Highland Park, Illinois, and one of 10 charities that plaintiff Terry Kass attempted to donate.

The Paypal lawsuit claims that the funds donated were never received by the charities as the PayPal Giving Fund took control of the money and donated it to organizations of its choosing. The lawsuit asserts that PayPal did this because the charities chosen by Kass hadn’t set up the requisite PayPal accounts.

Specifically, the lawsuit states “On its face, PayPal Giving Fund is an admirable endeavor; however, in practice, it falls woefully short of that mission on numerous fronts.” And: “PayPal Giving Fund is currently listing charities on its website that are not registered to receive donations, failing to inform donors that unregistered charities will not receive their donations, failing to notify unregistered charities that donations have been made to them and redirecting unclaimed donations from the intended unregistered recipient charities to organizations of their own choosing without notice to the donor or intended recipient.”

According to the complaint, while many large charities have established PayPal Giving Fund accounts, hundreds of thousands of smaller charities have not. PayPal Giving Fund platform was established by PayPal in 2013 to make it easier for their customers to donate money to their favorite charities.

If a PayPal customer’s chosen charities don’t establish accounts and fail to claim the donations within six months, PayPal doesn’t inform them that an attempted donation has been made, according to the complaint. Rather, PayPal’s charitable platform “surreptitiously” donates the money without regard to the customer’s donation wishes, the complaint states.

The case is Friends for Health: Supporting the North Shore Health Center et al. v. PayPal Inc. et al., case number 1:17-cv-01542, in the U.S. District Court for the Northern District of Illinois.

Text in any language… This week’s Telephone Consumer Protection Act (TCPA) class action was filed against AT&T alleging the company has violated the TCPA by sending unsolicited spam text messages in Spanish, to people’s cellphones. No!

Filed by plaintiff Ali Gadelhak, who is not an AT&T customer, the AT&T text lawsuit claims that AT&T used an automated dialing service to deliver text messages to Gadelhak’s cellphone, knowing they were doing so and without his prior consent, which is in direct violation of the TCPA.

Gadelhak alleges the messages caused harm in numerous ways, including by diminishing the battery life of his cellular phone and wasting its data storage capacity.

“Defendant has caused plaintiff and members of the putative class actual harm, not only because consumers were subjected to the aggravation, waste of time and invasion of privacy that necessarily accompanies mobile spam, but also because consumers frequently have to pay their cellphone service providers for the receipt of such spam,” the complaint states. According to the suit, Gadelhak received a text message from AT&T on July 15 that was in Spanish and which asked him to participate in a customer satisfaction survey. Gadelhak isn’t an AT&T customer and doesn’t speak Spanish.

Gadelhak claims he responded to the text message twice, asking the sender to identify himself or herself. However, he then received more survey questions in Spanish that appeared to be automated. According to the complaint, Gadelhak’s cellphone number has been registered on the National Do Not Call Registry since May 23, 2014.

Gadelhak is seeking actual damages of up to $500 and treble* damages up to $1,500 per class member for every call that violated the TCPA. Further, Gadelhak is asking for certification of a subclass of individuals who received the text message specifically asking recipients to complete the customer satisfaction survey.

The case is Ali Gadelhak v. AT&T Corp., case number 1:17-cv-01559, in the U.S. District Court for the Northern District of Illinois.

*What the heck is ‘treble damages’, you ask? Good Q. It’s when a statute permits a court to triple the amount of the compensatory damages to be awarded; treble damages are a multiple of, and not an addition to, actual damages.

Top Settlements

Airbag settlement in the works… Here’s the blockbuster this week—this year and possibly this century—at least so far. But, not everyone is happy.

Takata Corporation agreed to pay $1 billion to settle multi-district litigation this week. In case missed this—the allegations are that the airbag manufacturer was aware of the fatal defect with its airbags but sold them anyway. At least 11 deaths have been linked to the airbags, which can explode due to a design defect.

According to the proposed airbag settlement terms Takata will plead guilty to wire fraud. However, Plaintiffs have objected to the proposed deal on the grounds that it doesn’t address the culpability of TK Holdings Inc., Takata’s US, subsidiary, and that the Department of Justice had been misled in its investigation.

Additionally, Takata has agreed to pay a $25 million criminal fine and will establish a $125 million restitution fund for people who were injured or will be injured by a malfunctioning Takata air bag inflator.

Automobile manufacturers will also benefit from the deal, with the creation of an $850 million fund to benefit for automakers who received the falsified data and reports or who purchased the potentially dangerous inflators.

The cases are United States of America v. Takata Corp., case number 2:16-cr-20810, in the U.S. District Court for the Eastern District of Michigan, and 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.

Good thing Takata may be putting this one behind them as they’ll need to focus on the latest airbag recall: Ford just issued a recall for about 32,000 2016-2017 Ford Edge, 2016-2017 Lincoln MKX and 2017 Lincoln Continental vehicles. The affected models have built dates between November 11, 2014 and February 15, 2017. Why? If the front driver airbag deploys, the airbag might only partially fill—or its cushion might also separate from the airbag module. Not the best situation in an accident…

According to reports, Ford will notify owners of the issue and have them return to dealerships for installation of a replacement part to correct things.

Onwards….

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

Week Adjourned: 2.24.17 – Walmart Beer, Kia Sorrento, Wells Fargo

Top Class Action Lawsuits

Walmart a purveyor of craft beer? Seriously? Maybe not. The world’s largest retailer is facing a consumer fraud class action lawsuit over allegations its craft beer is mass manufactured, and is falsely marketed at an inflated price. You think?

Filed by Matthew Adam of Ohio, the Walmart craft beer lawsuit claims four brands of beer sold by defendant Wal-Mart Stores Inc, are falsely labeled as craft beers. The lawsuit states that the beer is mass-produced at industrial-scale breweries that don’t even resemble what a reasonable consumer would consider a craft brewer.

“Defendant’s Craft Beer has never been a ‘craft beer,’ nor has it been produced by a craft brewery,” Adam claims. “Rather, it is a wholesale fiction created by the Defendant that was designed to deceive consumers into purchasing the Craft Beer at a higher, inflated price.”

According to the complaint, Walmart has been marketing this line of beer since 2016, which includes Cat’s Away IPA, After Party Pale Ale, ‘Round Midnight Belgian White, and Red Flag Amber. Walmart currently stocks these beers at 3,000 retail locations in 45 states.

Further, while Walmart allegedly claims its craft beers are brewed by a company called Trouble Brewing, the Treasury Department lists a company called WX Brands, with the same brewery address as the offices of Genesee Brewing in Rochester, NY. Genesee does not meet the definition of a “craft brewer” put out by the Brewers Association, a trade organization that promotes and protects American craft brewers, the complaint states.

The lawsuit contends that consumers are willing to pay more for beer marketed as craft beer, on the assumption that craft beer is of a higher quality than other beers. Adam claims Walmart craft beer is purposely marketed to exploit that higher dollar value associated with craft beer, when it is, in fact, mass produced.

According to the lawsuit, Adam purchased a 12-pack of Trouble Brewing beer for himself from a Walmart in Sharonville, Ohio. He says he relied on Walmart’s representations that what he was buying was a genuine craft beer. However, the beer was not what he was led to expect, he claims. And he would not have paid a premium price for the beer, had he known the beer he was buying was not actually craft beer.

Adam’s proposed plaintiff Class would include all persons in the state of Ohio who purchased Walmart craft beer. Adam is represented by attorneys Brian T. Giles and Bryce Lenox of Giles Lenox.

The Walmart Craft Beer Class Action Lawsuit is Matthew Adam v. Wal-Mart Stores Inc., Case No. A1700827, in the Court of Common Pleas for Hamilton County, Ohio.

Top Settlements

Kia Sorrento Settlement… Heads up all you current and prior owners and lessees of a Kia Sorento. Kia has reached a proposed settlement in a pending defective automotive class action lawsuit alleging that its Sorento model is prone to catastrophic engine failure. Remember that one?

Here’s the skinny: the lawsuit, known as Yvonne Robinson et. al., v. Kia Motors America, Inc. et. al., alleges that some 2003 to 2006 model year Kia Sorento vehicles with 3.5 liter engines were equipped with a defective crankshaft pulley bolt that, under certain conditions, could result in the bolt breaking. Those vehicles are referred to as the “Class Vehicles”. KMA has not been found liable for any of the claims alleged in this lawsuit. The parties have instead reached a voluntary settlement in order to avoid a lengthy litigation.

Under the proposed Settlement, and subject to proof and certain limitations, KMA will provide certain financial and/or other benefits to Class Members for past and future crankshaft pulley bolt repairs in Class Vehicles.

Purchasers of the 2003-2006 Kia Sorento automobile now have the opportunity to be reimbursed for their expenses if their crank shaft bolt snapped and caused additional engine damage. Part of the Kia Sorrento settlement includes the opportunity for new and used car purchasers of the 2003-2006 Kia Sorento to submit a claim for reimbursement up to $4,900.00.

Kia Motors Company produced over 200,000 Kia Sorentos and current and prior owners and lessees of Class Vehicles, known as “Class Members”, may be entitled to compensation if they submit valid and timely claims that are approved, and provided the settlement agreement receives final court approval.

Got it?

Who’s calling? Wells Fargo? Perhaps not anymore… One Ringy Dingy, and we’re off to the bank—thank you so much. Wells Fargo has reached a proposed $15.7 million settlement in a class action lawsuit brought by a man who claims the bank violated the Telephone Consumer protection Act (TCPA) by allegedly using an autodialer to make calls to some 3.4 million consumers.

If approved, the deal would compensate 3.38 million proposed class members who allegedly received collection calls to their cell phones regarding a retail installment sale contract from Wells Fargo. The calls were made, the suit claims, using an auto dialer, between April 2011 to March 2016.

The settlement amount per class member would be $4.65 each, according to the settlement motion. The lead plaintiff is seeking an incentive award not exceeding $20,000.

According to the lawsuit, Frederick Luster claims Wells Fargo made autodialed calls to his phone number for the past four years in an attempt to collect debts apparently owed by two people he didn’t know. Luster states that at no time did he give permission to Wells Fargo to call his cellphone. However, Wells Fargo made the calls despite being aware that they were violating the TCPA.

“The telephone calls were intentionally, willfully and knowingly initiated,” the complaint states. “The telephone calls were not initiated by accident or mistake.” According to the settlement motion, Wells Fargo maintains that it had prior express consent to call the members of the proposed class.

The case is Luster v. Wells Fargo Dealer Services Inc., case number 1:15-cv-01058, in the U.S. District Court for the Northern District of Georgia.

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

Week Adjourned: 2.17.17 – Oracle, Sprint, Ohio Water Contamination

Top Class Action Lawsuits

Oracle not seeing labor law clearly? Oracle America Inc. is facing a $150 million California labor law class action filed in California federal court over allegations that it knowingly shorted its sales force on commissions of past sales.

File by former Oracle sales representative Marcella Johnson, the lawsuit asserts that Oracle alerted her she would have a negative commission balance of about $20,000 after it “re-planned” how much she would be paid for sales she made in 2013. According to Johnson, she had already received payment of commissions in November and December 2013 under a previously stated “comp plan.” However, Oracle had subsequently applied the new rate for calculating commissions retroactively, to June 2013, the lawsuit states.

“Oracle’s Compensation Department informed plaintiff that pursuant to the T&C [Terms and Conditions of Incentive Compensation], if she stopped working for Oracle, Oracle would have the right to collect the negative balance from her, including through a lawsuit,” the complaint states.

The lawsuit goes on to state that “Plaintiff could not afford to repay Oracle…As a result, plaintiff felt she had no choice but to continue working for Oracle for months without being paid any commissions. The new commissions she earned were levied by Oracle to offset the ‘negative commission balance’ resulting from retroactive imposition of the inferior commission rate.”

Johnson alleges that employees are coerced by Oracle into accepting re-plans by giving the employees just 24 hours to accept the new commission terms and threatening to withhold paid pending commissions.

“Even if a bold employee refuses to agree to an inferior replan, Oracle barrels ahead anyway, applying the re-plan terms to both past and future sales,” the lawsuit states.

Allegedly, through this practice, Oracle has been able to withhold millions of dollars in due commission wages. The commissions are reduced to align the employee pay with the company’s “financial forecasts and bottom line goals.”

The Oracle lawsuit alleges causes of action for failure to pay commission wages in breach of California labor code and contract, failure to pay wages upon separation, and unfair competition. Marcella Johnson is seeking certification of the claims as a class action, restitution, statutory penalties, an award of damages in excess of $150 million and related legal fees and costs.

The case is Marcella Johnson v. Oracle America Inc., number 3:17-cv-00725, in the U.S. District Court, Northern District of California.

Sprint’s at it again? Maybe… they got slapped with a consumer fraud class action lawsuit this week over allegations it deceives customers regarding savings in its “cut-your-cell-phone-bill-in-half” promotion, and fails to deliver as advertised.

Filed in California federal court by Sylvia Nixon of Los Angeles County, the lawsuit claims Sprint deceived her into changing cell phone services in May then failed to deliver on alleged promises to cut her bill in half, pay termination fees she says cost her $1,500, and give her three $350 Visa gift cards.

Nixon claims that had she been aware that Sprint’s “sales tactics rely on falsities that have a tendency to mislead and deceive a reasonable customer,” she would not have changed carriers.

“Defendant misrepresented and falsely advertised to plaintiff and others similarly situated that it would provide these services when defendant had no intention of doing so,” the complaint states. Further, “Defendant’s conduct will continue to cause irreparable injury to consumers unless enjoined or restrained.”

According to statements from 2014 promoting Sprint’s service-change enticements, Sprint indicates that it offers Visa gift cards of up to $350 for each line switched in order to pay for termination fees.

Regarding the cards, the lawsuit states that Sprint “failed to provide … all three $350 visa cards.” Sprint provided her with two, “and even charged the plaintiff for them.” While the complaint does not say how much Nixon paid, nor does it specify the degree to which Sprint failed to offer the promised rate, it does state that Nixon’s rate with Sprint was “well over fifty percent of what she had previously paid.”

The Sprint lawsuit seeks certification of a class of all Sprint customers who accepted the offers, an injunction on current practices, unspecified actual damages, attorneys’ fees and punitive damages. Nixon is also asking the court to make Sprint “at its own cost, notify all class members of the unlawful and deceptive conduct therein,” and to force the company to amend its advertising.

“[T]he injury suffered by plaintiff and members of the class is not an injury which these consumers could reasonably have avoided,” the complaint states. “Plaintiff’s reliance upon defendant’s deceptive statements is reasonable due to the unequal bargaining powers of defendant and plaintiff. For the same reason, it is likely that defendant’s fraudulent business practice would deceive other members of the public.”

The case is Nixon v. Sprint Communications Inc., case number 2:17-cv-01149, in the U.S. District Court for the District of Central California.

Top Settlements

Here’s big news – in case you missed it – DuPont and Chemours Co have reached a $671 million settlement in multi-district litigation brought against them, that alleged the chemical manufacturers deliberately dumped carcinogenic chemicals, specifically Teflon ingredient C8 or PFOA, into the Ohio River. Seriously.

Their actions, according to the allegations, resulted in 70,000 people being put at risk for cancer as the chemical contaminated their drinking water.

The settlement was preceded by three previous trials brought against DuPont and which had awarded damages to plaintiffs who alleged because of the decades of dumping C8 into the air and water around the plant, DuPont’s actions had resulted in clusters of cancer in six Ohio water districts. DuPont and Chemours, which now owns the plant in West Virginia, each agreed to pay $335.35 million in cash to resolve its obligations concerning about 3,500 total claims.

The first cases were brought in 2001, with allegations DuPont contaminated the drinking supply of 70,000 people in and around the Ohio River where the DuPont plant was situated. The company has already paid or committed to pay $350 million for water filtration systems in the affected communities, health data collection for the class and health studies, the statement said.

Further, Chemours has agreed to pay the initial $25 million of future PFOA costs not covered by the settlement annually for the next five years. DuPont will cover additional amounts up to $25 million, according to the company statement.

DuPont was facing a total of $19.7 million in liability. The first bellwether trial involving plaintiff Carla Bartlett, settled in October 2015 with an award of $1.6 million in compensatory damages. The second bellwether case was brought by plaintiff David Freeman and saw a $5.1 million award in compensation plus a $500,000 punitive award.

Kenneth Vigneron was the plaintiff in the third case. He received $2 million in compensatory damages in December, followed by the a further $10.5 million in punitive damages awarded by the jury. Vigneron’s case alleged that his testicular cancer resulted from exposure to the chemicals DuPont dumped into the water.

According to a statement from a law firm representing the plaintiffs, “The really sad part of this whole mess is that it would have cost DuPont almost nothing to properly dispose of the C8 waste in a safe manner instead of irresponsibly dumping it in the river, pumping it into the ground, and spewing it up into the air. DuPont’s conduct was egregious, dumping the chemical into community water sources with full knowledge that it would likely cause cancer and other diseases among the residents,” the firm said. Notably, neither DuPont nor Chemours have admitted fault, as part of the settlement.

According to media reports, had a settlement had not been reached, US District Judge Edmund Sargus had promised to try 40 cancer cases in 2017 and had already set dates for 10 such trials and was recruiting judges from other districts to assist.

The cases are Moody v. DuPont, case number 2:15-cv-00803, and In re: E.I. du Pont de Nemours and Co. C-8 Personal Injury Litigation, case number 2:13-md-02433, both in the U.S. District Court for the Southern District of Ohio.

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

Week Adjourned: 2.10.17 – Yahoo, Raisinets, Deja Vu Dancers

Top Class Action Lawsuits

Yoohoo! Another Data Breach Lawsuit for Yahoo….Cast your mind back to 2015—end of the year—and an announcement by Yahoo concerning two major—and I do mean major—data breaches. Well, the Internet giant just got hit with a class action lawsuit brought by a small business owner in Texas who alleges his identity and information for his websites and online advertising, which he runs through Yahoo, were compromised during the two large data breaches the Internet giant disclosed in 2015. You knew more were coming…

Specifically, Brian Neff claims that Yahoo and its subsidiary, Aabaco Small Business LLC, breached its contract and negligently allowed hackers to access data on a billion Yahoo users during the two breaches.

Filed in California federal court, the lawsuit claims Yahoo failed to protect the “treasure trove” of personal information he provided to the company in order to set up and pay for an account in 2009. The theft of that data has resulted in a number of fraudulent charges on his bank accounts, as well as an unauthorized card being opened in his name.

In September 2015, Yahoo announced that in late 2014, information from 500 million accounts was stolen. While that Yahoo data breach was considered to be the largest in history, in December Yahoo then revealed that in 2013, hackers had stolen account data for one billion of its users in 2013.

Neff alleges that while Yahoo claims that the data taken was just email addresses and passwords, not bank account information, at this early stage it is unknown whether Yahoo’s descriptions of the breadth of the breaches are accurate.

“Given that more than three years elapsed before Yahoo disclosed the 2013 data breach and more than two years passed before Yahoo disclosed the 2014 data breach, Mr. Neff is rightfully skeptical of Yahoo’s self-serving statements,” the complaint states.

Neff states that in addition to paying Yahoo thousands of dollars “for services that subjected him to a security breach,” he was also the victim of actual identity theft as a result of either or both of the hacks. According to the complaint, Neff has incurred fraudulent charges on his Capital One credit card and his Chase debit card, both of which were on file with Yahoo to pay for the website services. Yahoo was the only company to which Neff had given that information to, the complaint alleges.

Further, the Yahoo lawsuit states that concurrent with the fraudulent charges, an unauthorized credit card account was opened at Credit One Bank in his name, and additional charges were made to that account.

The complaint includes claims for breach of contract, breach of implied contract, negligence, fraudulent and negligent inducement, and violations of California’s Unfair Competition Law.

Head’s up, Neff is seeking to represent a national class of Yahoo and Aabaco small business customers whose personal identifying information was disclosed in the 2013 or 2014 data breaches.

The case is Brian Neff v. Yahoo Inc. et al., case number 5:17-cv-00641, in the U.S. District Court for the Northern District of California.

And what about those Raisinets? No—not talking about exotic dancers or cheerleaders, but the little chocolate covered goodies contained in arguably short supply but a rather large box. Read on.

Nestle is facing a consumer fraud class action lawsuit filed by a customer who alleges the company under-fills its boxes of Raisinets, deliberately deceiving customers as to the quantity of product they are actually buying.

Filed by Plaintiff Sandy Hafer, the Raisinets lawsuit asserts that the opaque packaging of Nestle USA Inc.’s Raisinets candies leads customers to believe they are buying a full box of the chocolate-coated raisins. According to the lawsuit, however, the boxes are only 60 percent full. Hafer claims that this underfilling is intentional and enables Nestle “to reduce its food product costs to the detriment of unwitting customers, who are not receiving the full benefit of their bargain.”

“Unbeknownst to consumers, who cannot see the contents inside the products’ packaging at the time of purchase, approximately 40 percent each [Raisinets’] packaging is non-functional slack-fill, empty space which serves no functional purpose under the law,” the complaint states.

Hafer claims that had she known that the Raisinets box she purchased was underfilled, she would not have bought it. This deception, she asserts, is a violation of California’s false advertising and unfair competition laws.

Hafer, a California resident, is bringing the putative action on behalf of herself and other Raisinets consumers who have similarly found their candy boxes underfilled. Hafer wants the court to restore the money she and consumers allegedly lost as a result of such deceptive practices.

The case is Sandy Hafer v Nestle USA Inc., case number 2:17-cv-00034, in United States District Court for the Central District of California.

Top Settlements

Deja Vu Dancer Settlement in the Works… These dancers may be dancing for joy soon, or relief perhaps. A $6.M million preliminary settlement has been reached in an employment class action lawsuit filed by dancers at the gentleman’s club chain Deja Vu Consulting Inc. In the more than one dozen complaints, the dancers alleged they were misclassified as independent contractors. The settlement covers between 45,000 and 50,000 dancers at 64 clubs nationwide.

According to the terms of the settlement, the funds will be divided into two pools. The first pool, consisting of $2 million, includes $30,000 in rewards for two proposed class representatives, up to $50,000 in settlement notice and administration costs, and about $935,000 for dancers who opt for cash payments.

The second pool, consisting of $4.5 million, will be divided into credits toward dancers’ rent for stage time or other fees dancers pay the club for the right to perform, depending on the structure of an individual club’s operation. The credit amounts will range from $200 for workers who performed at a club for at least one month to a maximum of $2,000 for dancers who performed for 18 months or longer.

Further, in the hopes of resolving misclassification claims going forward, the settlement also includes injunctive relief in the form of a new process for evaluating employment status. This process involves an evaluation period, after which dancers at the clubs covered in the settlement, will meet with management and answer an economic realities test-based questionnaire designed to determine whether or not a dancer is better classified as an employee or an independent contractor. Those classified as employees will be paid a minimum wage and take home their tips, less the legal costs of their employment and other fees. By contrast, independent contractors will have more freedom to set their hours and pick their costumes.

If the Deja Vu settlement receives final approval, it will cover all former and current dancers who worked at 64 Deja Vu-affiliated clubs across the country, over three class periods that vary depending on the clubs’ geographic location and whether the class members are involved in other lawsuits against Deja Vu.

A fairness hearing is scheduled for June 6, 2017. The case is Jane Doe et al v. Deja Vu et al., case number 2:16-cv-10877, in the U.S. District Court for the Eastern District of Michigan.

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

Week Adjourned: 2.3.17 – Krazy Glue, BP Solar, Lowe’s

Top Class Action Lawsuits

Krazy Glue maker hit with Consumer Fraud Class Action—but will it stick? Elmer’s Products is facing a consumer fraud lawsuit alleging the glue packaging contains slack fill, and that Elmer’s is profiting by way of the packaging, by misleading consumers.

According to the Krazy Glue lawsuit, filed by plaintiff David Spacone, the large and opaque packaging for Krazy Glue misleads customers into thinking the package contains significantly more glue than it actually does. Specifically, the lawsuit states that the opaque container is more than five times larger than the “tiny tube of glue” that contains the product.

“This packaging prevents the consumer from directly seeing or handling the product and leads the reasonable consumer to believe that the package contains significantly more product than it actually does,” the complaint states.

Spacone claims that he bought Krazy Glue at a True Value hardware store in Los Angeles, believing he was buying the amount represented by the “Stay Fresh” container, instead of the smaller tube inside of it. However, because the container is opaque, consumers cannot see how much product they are actually buying, the complaint states.

“If plaintiff had known at the time of purchase the actual size of the tube of product contained in the packaging, he would not have purchased the Krazy Glue or paid less for it,” the lawsuit states.

Here’s an interesting bit of info: The allegation that the container is misleading is based on the amount of nonfunctional slack fill, which is defined in California state law as “the empty space in a package that is filled to substantially less than its capacity,” according to the complaint.

The size and slack fill of the container do not fall within any safe harbor protections provided under state business law, according to the lawsuit, which goes on to state that the container does not protect its contents or have any significant value. Further, the larger container does not have any labeling information that can’t also be found on the tube.

“The use of non-functional slack-fill allows [Elmer’s] to lower their costs by duping customers into thinking they are getting a better bargain than they actually receive,” the complaint says. “As a result, [Elmer’s] has realized sizable profits.

Three classes are proposed, namely a nationwide class of those who purchased a .07-ounce tube of Krazy Glue in a .37-ounce outer container, a California sub-class and a Consumer Legal Remedies Act California subclass.

The complaint alleges violations of California’s Consumer Legal Remedies Act and two violations of unfair competition law. The case is David Spacone v. Elmer’s Products Inc. et al., Case Number BC648907 in the Superior Court of the state of California for the County of Los Angeles.

Top Settlements

Defective BP Solar Panels? No—they can’t blame it on the weather. A $67 million settlement is moving ahead potentially ending a class action lawsuit alleging that solar panels manufactured and sold by BP Solar and Home Depot are defective.

According to the lawsuit, the BP solar panels at issue were substantially certain to fail within their warranted lives due to an inherent defect in the junction box, the small casing on the back of the panel where soldered output cable connections are housed.

Specifically, the BP solar panels at issue were manufactured between 1999 and 2007 with an S-type junction box (“Class Panels”). The lawsuit claims these panels are defective and prone to junction box failures which could cause burn marks at the junction box, shattered glass, and a potential fire hazard. Oh dear. No power but potentially one big bang?

The panels were sold through various distributors and retailers, including but not limited to Solar Depot and Home Depot.

Here’s the skinny getting some cash: The settlement includes anyone in the United States who: (1) purchased certain BP solar panels for installation on a property, or (2) currently owns a property on which these panels are installed and, in either case, who still owns some or all of the BP solar panels.

Settlement Class Members with certain higher failure rate models, or with high failure rates in their arrays, will be eligible for complete replacement of their solar panels. Others will receive replacement of failed panels and a new inverter with advanced safety technology. Owners of large, non-residential systems will be entitled to a mediated commercial negotiation with BP, with extended opt-out rights.

Lowe’s Installers see Settlement…This week’s employment lawsuit is, in fact, a proposed settlement—to the tune of $2.85 million. If approved, it will resolve allegations brought against Lowe’s Home Centers LLC by installation workers who claim they were deliberately misclassified as independent contracts rather than employees. Heard this one before?

Lead plaintiff Thomas Mittl filed the lawsuit in August 2015 claiming that Lowes classified installers and installation companies providing services to Lowe’s customers as independent contractors rather than employees. This, the suit states, is in violation of the New Jersey Construction Industry Independent Contractor Act and common law unjust enrichment.

The result of the alleged misclassification of “independent contractor” was that it prevented the installers from receiving benefits including liability insurance coverage, workers compensation, temporary disability and health insurance. Further, they were barred them from eligibility for Social Security and Medicare, according to the complaint.

Mittl claimed in the lawsuit that he worked 80 hours a week on Lowe’s jobs, however, he didn’t receive benefits and was required to pay self-employment tax on all income earned from Lowe’s.

Mittl owns Toms River Automatic Door & Window Company in New Jersey. In his complaint, he argues that installation workers should be classified as employees because Lowe’s controlled the work they performed, including designating which customers the installers would work for, inspecting their work, requiring customers to pay Lowe’s directly for all work, submitting the installers to background checks, and requiring them to wear Lowe’s hats and shirts while working.

The Lowe’s settlement class consists of all installation workers or installation companies that signed a contract with Lowe’s to perform installation services on behalf of the company in New Jersey. If the settlement receives preliminary approval it will impact some 450 installation workers and companies, according to court papers.

The proposed settlement motion seeks class certification, appointment of Mitl as class representative and a $20,000 incentive award for Mitl as such a representative, among other things. The case is Thomas Mittl v. Lowe’s Home Centers LLC, case number 3:15-cv-06886 in the U.S. District Court for the District of New Jersey.

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