Week Adjourned: 7.30.11

Top Class Actions

Guaranteed Rate but Not Guaranteed Pay? That’s the story according to loan officers who worked for Guaranteed Rate Inc (GRI) and filed a wages and overtime  class action lawsuit against the mortgage lender this week.

The lawsuit alleges that GRI violated the rights of loan officers under the California Labor Code. That’s not very nice. The lawsuit alleges that the mortgage lender unlawfully paid loan officers below minimum wage, failed to compensate them for overtime hours worked and unjustly deducted expenses from previously earned wages, in violation of state wage and hour laws.

The complaint also claims that Guaranteed Rate incorrectly and intentionally classified loan officers as “outside salespeople,” making them exempt from some minimum wage and overtime regulations. Oh, that old chestnut. Never dies, does it.

Predictably, these outside sales employees claim to have spent more than 50 percent of their working time in their homes, which the employees argue is considered the employer’s places of business for purposes of the outside sales exemption from minimum and overtime wage laws.

The Guaranteed Rate Loan Officer class action lawsuit further alleges that the mortgage lender intentionally misclassified the loan officers as outside salespeople in order to avoid overtime and minimum wage requirements in violation of California employment laws. Specifically, the complaint states, the sales plaintiff was paid a “percentage of the profit obtained from the sale of the loan” and as a result “there were pay periods during which the Plaintiff received less than minimum wage or no compensation.” This compensation structure caused the loan officers to often work more than 8 hours per day and/or 5 days per week, which was allegedly known by the the Mortgage Loan Company.

According to California overtime laws, employers are required to pay employees overtime compensation for all hours worked in excess of eight hours in a single workday or forty hours in a workweek.

Top Settlements

Another Big Asbestos Settlement. A painter who was recently diagnosed with terminal asbestos mesothelioma caused by his exposure to asbestos-laiden products, was awarded $8.5 million in settlement of his asbestos lawsuit.

Bernard Steffen alleged that while working as a commercial painter and handyman he was exposed to products including stucco, molding and construction materials that contain asbestos. In his lawsuit he named as defendants the many manufacturers of the products, claiming that they knew of the dangers associated with their products yet failed to provide appropriate warnings.

The named defendants who went to court were cement maker CalPortland Co., molding material maker Cytec Engineered Materials and product supplier Union Carbide,all of whom denied the allegations. The jury found CalPortland and Union Carbide each 10 percent liable; remaining liability was divided amongst defendants who were no longer in the case at trial. Cytec was found not liable.

The storm around Katrina—will it ever end? Maybe. Preliminary approval of a $25 million settlement of a class action lawsuit against Tenet Healthcare Corp and subsidiaries has been granted by Orleans Parish Chief Judge Rosemary Ledet.

The lawsuit was filed following and as a result of Hurricane Katrina in which Tenet’s Memorial Medical Center in New Orleans was flooded, and dozens of people, patients and visitors, suffered as a result. A class of plaintiffs represents patients and family of patients who died in the hospital during the storm: 45 patients died during in the hospital during the storm, and doctors later admitted to having used euthanasia on patients, but no criminal charges were brought.

According to a report in the Louisana Record, the lawsuit states that approximately 187 patients and 800 visitors were in the hospital during and after the storm.

The lawsuit alleges that Tenet was liable for failing to adequately prepare the hospital for flooding before Katrina despite warnings from the hospital’s maintenance staff. The back-up power source in the hospital failed during the hurricane, as a result of flooding caused when the federally built levees broke, letting floodwater into the city. According to court documents, Tenet had argued that the dangerous environment at the hospital was a result of the failed levees and shoddy government response to the storm.

Tenet staff spent several days urgently seeking help from several federal agencies including the Federal Emergency Management Agency and the Coast Guard. The Tenet settlement releases Tenet and its partners from all liability.

OK. That’s it for this week. See you at the Bar.

Week Adjourned: 7.23.11

Top Class Actions

Unlikely Couple Teams up vs DuPont Imprelis. A Pennsylvania homeowner and an Indiana golf course company filed a nationwide class action lawsuit this week, against E.I. du Pont de Nemours & Company (“DuPont”). The charges? You may have read about them—that the use of a weed killer called Imprelis, made by DuPont, is causing widespread death among trees and other non-targeted vegetation across the country. Non-targeted vegetation? What is that—environmental collateral damage?

No wait—non-targeted vegetation means anything that’s not a weed. According to the lawsuit, DuPont failed to adequately disclose the risks for Imprelis damage to trees, even when applied as directed (oh great), and failed to provide adequate instructions for its safe application. Even better.

Lead plaintiff Marsha Shomo, a resident of Johnston, Pennsylvania, claims that the trees at her house of are dying after her lawn was sprayed with Imprelis. Included are two trees Shomo’s sister bought after her diagnosis with cancer, which took her sister’s life in 2001. “My sister was so anxious that the new little trees she bought be taken care of,” Shomo stated. “I promised her I would do that. I want DuPont to know that there is a problem out there and people do have special trees with many years invested in them. This isn’t right. I am filing this lawsuit to make sure DuPont answers to everyone harmed, and make DuPont act more responsibly in the future.”

As for the golf course, Plaintiff R.N. Thompson Golf, LLC, in fact owns and manages several golf courses in the greater Indianapolis area, including the Winding Ridge Golf Course and the Ironwood Gold Course. “We have witnessed catastrophic tree loss around our golf courses after the application of Imprelis, and have received numerous complaints and inquiries about the tree damage and appearance of our courses from our customers,” explained Mark Thompson, Chief Executive Officer of R.N. Thompson Golf, LLC. “We filed this lawsuit to inform other businesses and homeowners about this problem to let them know there is reason their trees are dying and to give them a course of action to fix the problem.”

If Imprelis is affecting your environment, check this Imprelis lawsuit out.

The proposed class consists of all persons and entities whose property was exposed to Imprelis between October 4, 2010 and the date of trial, in particular, those who own: (a) property on which Imprelis was applied; (b) trees or other vegetation whose roots extend under property on which Imprelis was applied or; (c) property onto which Imprelis migrated. Anyone with damaged trees is being advised to preserve the evidence.

Top Settlements

Drilling Deal. Amidst all the media coverage of a rather dubious practice of extracting natural gas called fracking  —and the allegedly related water and health issues surrounding it, property owners on the Marcellus Shale belt in Pennsylvania have just won $14 million from a drilling company that reneged on their contracts to drill. Most people are trying to stop the drilling, but these property owners want it.

The out-of-court settlement was signed off by a Westmoreland judge, ending the two year civil suit brought by 230 property owners against State College-based Rex Energy. The fracking lawsuit was filed in 2009 by property owners in the rural areas of Cook, Derry, Fairfield, Ligonier, Mt. Pleasant and Unity townships. The lawsuit alleged that Rex Energy reneged on 137 drilling contracts the owners claimed they had finalized in 2008. The property owners also claimed that the company failed to honor promises of bonus and rental payments on the drilling leases.

According to a report on Triblive.com, the disputes involves oil and gas drilling rights on about 7,200 acres, or almost 11 square miles. The settlement permits landowners who had not signed leases with other companies and still wished to sign with Rex to do so at $2,500 per acre. The new, five-year leases give landowners a 15 percent royalty on any gas produced. Better get Fracking!

Finally…Score One for the Little Guy. Bank of Hawaii reached a tentative settlement with account holders this week concerning an overdraft fees class action lawsuit brought pissed-off customers who alleged the bank engaged in a systematic policy of re-ordering debit card transactions from highest dollar amount to lowest dollar amount. You could almost recite that sentence in your sleep it’s so common, unfortunately. The lawsuit claimed that this alleged practice allowed the bank to deplete the customer’s available funds as quickly as possible while maximizing the number of overdraft fees.

The Bank of Hawaii settlement amount is $9 million, and, if approved will be used to refund class members for overdraft fees they were charged. “The tentative settlement, subject to documentation and court approvals, provides for a payment by the company of $9 million into a class settlement fund the proceeds of which will be used to refund class members, and to pay attorneys’ fees, administrative and other costs, in exchange for a complete release of all claims asserted against the company,” the bank said in a filing with the Securities Exchange Commission.

OK. That’s it for this week. See you at the Bar.

Week Adjourned: 7.16.11

Top Class Actions

From small print to misprint? A consumer fraud class action lawsuit was filed this week against Genesis Financial Solutions, Inc.(GFS), NCO Portfolio Management Inc. and WebBank. What’s the problem?

Allegedly, the Defendants deceptively used an offer for a pre-approved Pearl Card® Gold MasterCard® to collect or receive payment for an alleged debt, when in fact the offer was a collection letter. Oops.

The lawsuit alleges multiple violations of the Fair Debt Collection Practices Act and the Texas Finance Code. According to court documents Plaintiff Mark Myers received a mailed communication on July 12, 2010 with an offer from NCO Financial Services and GFS Financial Solutions that stated in bold print at the top, “Transfer your debt to a Pre-Approved+ MasterCard®!”

The average consumer receives numerous credit card offers in the mail each month and may have perceived this offer, which was an attempt to collect a debt on behalf of the defendants, as a typical credit card application/offer, or junk mail and tossed it in the trash, and in the process, thrown away a communication that triggered specific rights under the Fair Debt Collection Practices Act.

Part and parcel of the FDCPA’s rights afforded to a debtor is what is commonly referred to as the “Mini-Miranda Warning”, a statement that identifies the name of the debt collector, the company they represent, and advises the debtor of his/her right to validate and dispute an alleged debt within 30 days. The Fair Debt Collection Practices Act mandates that each time a debtor is contacted by a debt collector via written communication, the “Mini-Miranda Warning” must be provided.

The complaint alleges that the communication received by Plaintiff Myers and others did not clearly display the “Mini-Miranda Warning” in its entirety where it could easily be viewed and read. This important information advising a debtor of his/her rights, appeared on the reverse side of the offer and thus could easily have been missed or overlooked and was overshadowed by the voluminous amount of fine print that has become standard in most credit card offers. A signature confirming acceptance of this new Pearl Card® Gold MasterCard® offer would validate the amount of the alleged debt and restart the clock on the statute of limitations, which may have already expired, unbeknownst to the debtor. By signing and agreeing to proceed with the credit card offer, the debtor has now waived his rights to validate and/or dispute the alleged debt.

The complaint also alleges that Defendant WebBank allowed GFS and NCO the use of its Utah banking charter for the credit card offer, though WebBank was not actually a party to the collection efforts. The communication itself states “GFS is not affiliated with WebBank…..” The Utah banking charter allows GFS and NCO, through alleged partnership, the opportunity to use Utah’s laws which allow for no caps on interest rates and fees for all 50 states other than what competition dictates, in the MasterCard® offer.

Okee Dokee! Go get’em!

Top Settlements

What part of ‘smoking causes chronic, debilitating illness including cancer’ is unclear? None apparently. RJ Reynolds recently settled a personal injury lawsuit brought by a woman who developed chronic obstructive pulmonary disease (COPD) and Stage II laryngeal cancer.

Julia Reese, a life-long smoker, was diagnosed with COPD and cancer at the age of 82. She required a full laryngectomy as treatment for her cancer.

Her story goes that she began smoking RJ Reynolds Tobacco Co. brand cigarettes when she was 10 years old and became addicted. Although she allegedly tried to quit smoking several times she was unsuccessful (what smoker doesn’t know how that works?), and still smokes despite her health status.

Interestingly, the jury hearing the case found Reese 70 percent liable and RJ Reynolds 30 percent liable. Consequently, the original settlement award was reduced from $3,551,277 to $1,065,383.

Blast those Blast faxes! But wait—good news! A settlement has been proposed in the class action Starkle Ventures, LLC v. United Artists Theatre Circuit, Inc. and American Blast Fax, Inc. Ringing bells? No?

Cast your mind back—way back—to September 1999 when United Artists Theatre Circuit, Inc. (“UA”) and American Blast Fax, Inc. (“ABF”) sent a fax advertising discount movie tickets to phone numbers in Maricopa County, Arizona. A class action lawsuit was subsequently filed against UA and ABF alleging the facsimile advertising violated the Telephone Consumer Protection Act,  U.S.C. section 227. Following certification of the class action, a tentative settlement was reached.

Plaintiff has entered into a (the “Settlement”). The settlement creates a fund in excess of $6.8 million to pay class members, costs of suit, attorneys’ fees and class representative incentive awards.

FYI—if you held (as of September 1999) one or more fax numbers on the list used to send the facsimile advertisement, you may be entitled to receive money pursuant to the settlement or, if the settlement is not approved by the Court, through continued litigation in the case. You could potentially receive as much as $500 per facsimile number that you held from the settlement.

OK. That’s it for this week. See you at the Bar.

Week Adjourned: 7.9.11

Top Class Actions

Pricey Prescriptions? This is nothing short of scandalous, if the allegations prove true. A nationwide consumer fraud class action lawsuit was filed against CVS Caremark, the largest pharmacy health care provider in the United States and the owners of CVS.com, for allegedly double-billing its customers for the price of prescription drugs.

The lawsuit claims that CVS’s nationwide billing system double-bills the price of prescription drugs to CVS customers who have a high deductible health plan that is coupled with a health reimbursement account or health savings account (HSA) and who use a prescription drug coupon. CVS’s billing system isn’t equipped to handle this coordination of benefits, and as a result, it’s alleged that CVS uniformly double-bills these customers–taking cash from the customer at the time of sale and then later taking cash from their HSA. Unbelievable!

The class action lawsuit brings the claim on behalf of all CVS customers who were allegedly double-billed the price of prescription drugs and seeks damages on behalf of those customers estimated to be in the hundreds of thousands across the country. Check your receipts and your statements!

Top Settlements

Asbestos Mesothelioma Settlement. Another large asbestos-illness lawsuit was settled this week, with an Orleans Parish Civil District Court jury hearing the lawsuit finding in favor of the plaintiff. The jury awarded Leopold Granier Jr, a $1.5 million settlement in general damages, and $104,160.77 in special damages.

Mr. Granier developed asbestos mesothelioma as a result of his exposure to asbestos, asbestos he was allegedly exposed to through the negligence of Avondale Shipyards, Cajun Insulation and Union Carbide Corp. The jury produced a four page verdict, which found that Avondale, Cajun and Union Carbide were strictly liable and that the products in their possession were a “substantial and contributing cause” of Granier’s mesothelioma.

The jury also found that Union Carbide, in particular, was strictly liable because asbestos materials incorporated into the company’s Taft, La., plant were a “substantial and contributing cause” of the man’s cancer. I guess there’s no surprise there.

Avondale shipyard was, at one time, the largest employer in the state of Louisiana, employing more than 20,000 people. The shipyard was acquired by Northrop Grumman Corp., and is now slated to close in 2013. Northrop Grumman made the decision as a result of a reduced order for warships from the US Navy.

20,000 employees is no small business…I wonder how many more asbestos lawsuits Avondale could find itself on the end of?

Would You Prefer Still, Sparkling or Tap Water? Maybe it’s further proof that tap is just fine, thanks, as this sounds like a nightmare come true—a woman who was mistakenly given a bottle containing a poisonous chemical instead of drinking water subsequently suffered second and third degree burns to her esophagus and permanent damage (no kidding). She sued, and was recently awarded $3.3 million in her product liability lawsuit.

Julia Ellis suffered the life-altering burns in 2007. She was at Harvey’s Lake Tahoe Hotel and Casino in Stateline, NV, when she was given a bottle labeled “Harrah’s Purified Drinking Water.”

As a result of her injuries, Ellis can now eat only pureed or soft foods. She sued Harvey’s and Harrah’s on claims of strict products liability, breach of warranty and premises liability.

OK. That’s it for this week. See you at the Bar. Watch what you’re drinking!

Week Adjourned: 7.1.11

Top Class Actions

Best Buy BOLO a NO-GO. Best Buy got hit this week with another potential class action—another discrimination lawsuit—but this time it’s all about you —the customer…

The nation’s largest electronics retailer is facing alleged discrimination in  in the form of customer racial and ethnic profiling. Ah, make that widespread racial and ethnic customer profiling in the District of Columbia and Virginia. The lawsuit was brought by an Arab American Muslim manager, Todd Abed, who was fired for protesting the practice, known internally as “BOLO”. Abed accuses Best Buy of terminating his 13-year career with the company because he objected to his district office’s “Be On the Look Out” policy (BOLO).

So, the allegations go that under BOLO, Best Buy employees circulated e-mails among all managers in the region containing images and descriptions of customers suspected of theft, intended to be posted in their respective stores. According to the lawsuit, the images and descriptions circulated under BOLO consistently involved racial and ethnic minorities who had done nothing to merit suspicion, accompanied by racially-tinged descriptions such as “bearded Middle Eastern guy who looked shady” or “black ghetto guy.” Really?

Abed, a supervisor in charge of loss prevention (read ” theft”), claims he refused to post the discriminatory emails. When this refusal became known to the district staff, they twice denied Abed promotions to General Manager—despite his being the most qualified applicant—and directed Abed’s new General Manager to trump up a reason to terminate him, according to the complaint.

The new General Manager, in turn, allegedly told Abed he would create a “paper trail” to have him fired, taunted his religion, sabotaged performance evaluations, placed him under a pretextual disciplinary “Action Plan,” and ultimately terminated him for allegedly poor performance.

The lawsuit seeks $1 million in damages and attorneys’ fees and costs. Most importantly, Abed seeks a court order permanently ending Best Buy’s customer profiling practices, which he believes continue to this day.

Top Settlements

Pond Drowning Case Settled. This is very sad. The family of a small boy who drowned in a pond while trying to save his younger brother who had also fallen in the pond, has been awarded a $30.7M settlement. The family had filed a premises liability lawsuit.

The story is devastating. Apparently, in 2001, Andrew Kennedy, who was just 11 years old at the time, tried to save his 10-year old brother James who had fallen through an ice-covered pond. Andrew drowned and James suffered severe brain damage. Andrew’s twin brother, Christopher Kennedy, claimed emotional and psychological trauma from witnessing the incident. And the parents alleged that the property owner, Lakes of the Four Seasons Property Owners Association Inc., did not have warning signs in place notifying the public of the dangers, nor did they try to restrict access to the pond. The family also claimed that Four Seasons failed to provide safety devices nearby. A cautionary tale…but at what price?

AON Account Specialists Settlement. And for all those ‘misclassified’ AON employees—justice at last. Los Angeles Superior Court judge gave final approval this week to a $10.5 million settlement of the employees overtime class action.

The story here is that California Account Specialists, whose work involves assisting Account Managers in providing insurance brokerage services to Aon’s clients, were misclassified by the defendant as exempt administrative employees. So the California Account Specialists filed a lawsuit—way back in 2007. And wouldn’t you know it, as the case was preparing for trial, the parties were able to reach a settlement. The settlement covers 534 class members, and best guess is they could have their money within 60 days.

OK. That’s it for this week. See you at the Bar.