Week Adjourned: 9.30.11

This week’s wrap on Class Action lawsuits and Settlements, September 30, 2011

Top Class Actions

NCAA Concussion Lawsuit Filed. Again. It’s about time! Two former college football players who suffer from the residual effects of head injuries filed an class-action lawsuit against the National Collegiate Athletic Association (NCAA), accusing the governing body of neglecting to protect student-athletes from concussions and their aftermath.

The class action lawsuit accuses the NCAA of turning a blind eye to coaches who teach players to use their heads for tackling, failing to establish a NCAA-wide system for screening head injuries and shirking its financial obligations to injured student-athletes who need medical treatment after they’ve left college.

The case alleges that despite a mounting body of scientific evidence linking concussions to depression, dementia and early-onset Alzheimer’s, among a host of other medical problems, the NCAA has failed to enforce the safety measures it introduced in the 1970s. The lawsuit further claims that NCAA football coaches continue to encourage players to use tackling methods that promote head trauma, including helmet-to-helmet hits. The harshest penalty ever imposed on coaches who teach this tactic was a letter of reprimand, according to the complaint.

The lead plaintiffs in the suit are former University of Central Arkansas wide receiver Derek K. Owens and former Northwestern University offensive lineman Alex Rucks, who say their lives have been fundamentally altered as the result of brain trauma that could have been prevented.

Owens, 22, was hit in the head from behind while taking part in a voluntary practice the summer before his freshman season. According to the complaint, Owens never received medical attention from the team despite feeling dizzy, having difficulty seeing and being unable to drive home. The 2008 incident was the first of numerous head injuries for Owens, who was named Arkansas’ Top Offensive Player and one of the state’s top Scholar-Athletes his senior year of high school.

The second week of his first season, a linebacker knocked Owens unconscious in practice, according to the lawsuit. UCA’s trainers told Owens’ roommates he had a “severe concussion” and to wake him up every couple of hours. He sat out for several weeks until he was cleared to return to the practice team. During a 2010 game, Owens was returning a punt when he was leveled by an opposing player, who later called the play “the highlight of his career,” according to a story in the Tulsa World. Owens experienced memory loss, headaches, an inability to concentrate, anxiety and depression. His grades plummeted despite his once-sterling academic record. In May of 2011, he dropped out of school and football as a result of the debilitating effects of repeated head trauma.

Rucks, who played at Northwestern from 2004 to 2008, was never formally diagnosed with a brain injury, but suffered numerous blows to his head that led to symptoms consistent with a concussion. The NCAA never tested or followed-up with Rucks to determine whether he’d been concussed, or if he was experiencing post-concussion syndrome, the lawsuit alleges.

Since his playing days, Owens has suffered from the symptoms of post-concussion syndrome, including the loss of concentration and memory, according to the complaint.

The lawsuit alleges the NCAA never encouraged football players to report or complain about their physical well-being, nor does it educate players about head-injury prevention or the telltale symptoms of a concussion.

The lawsuit, a class action, seeks to represent current or former NCAA football players who have medical or team records indicating they sustained a concussion(s) or suffered concussion-like symptoms while playing football at an NCAA school, and who have, since ending their NCAA careers, developed chronic headaches, dizziness, dementia, Alzheimer’s disease or other physical and mental problems as a result of the concussion and have incurred medical expenses from such injuries.

All class members would be notified that they may require frequent medical monitoring. NCAA-wide return-to-play guidelines would be established. The NCAA would mandate that team physicians learn to detect concussions and sub-concussions, as well as determining when a player is at an increased risk of harm. It also seeks to redress the intangible losses suffered by these class members.

Top Settlements

Asbestos Mesothelioma Lawsuit Settlement. Another asbestos settlement to report this week. A jury in Orleans Parish Civil District Court has ruled that three companies are liable for $7.55 million in damages for exposing former employee Thomas Kenney to asbestos. Kenny has been diagnosed with malignant asbestos mesothelioma.

Mr. Kenney sued Rexam Beverage Can Co., John Crane Inc and Haveg Inc, among others, claiming that he was exposed to asbestos while working in a canning factory and a refinery in the 60s and 70s. The jury hearing his case found John Crane, Rexam and Haveg liable for Kenny’s asbestos exposure and Rexam liable for the dangerous levels of asbestos, which was located in its canning factory in New Orleans’ Mid-City neighborhood. The old canning factory has since been refurbished and converted into an apartment complex.

Reebok to Atone for its Toning Shoes Claims: While the jury may be out on whether or not these shoes actually do tone your butt and abs, the Federal Trade Commission isn’t wasting time making up its mind. Reebok has agreed to pay $25M to settle charges brought by the Federal Trade Commission alleging that the athletic shoe manufacturer falsely advertised its “toning” shoes, making claims that the shoes could measurably strengthen the muscles in the legs, thighs and buttocks.

Among the claims the FTC found offensive–and possibly downright misleading—are that the EasyTone footwear is proven to increase the strength and tone of your gluteus maximus muscles by 28% (really?) and give you 11% more strength in your hamstring and calf muscles—(really)—compared with regular walking shoes—whatever those are.

The FTC settlement is the first, and results from its investigation into the advertising claims made by Reebok. However, other companies such as New Balance and Sketchers have also aced lawsuits over their advertising claims.

Ok—That’s it for this week. See you at the bar!

 

Week Adjourned: 9.23.11

Weekly roundup of latest class action lawsuits and settlements, September 23, 2011

Top Class Actions

Engine Trouble for Mercedes-Benz? Well, last week we reported on a proposed settlement between Mercedes Benz and some unhappy customers who allege consumer fraud over Mercedes Benz USA failing to inform buyers of its luxury vehicles with analog Tele Aid communication systems that the company planned to phase out the analogue emergency communications systems altogether on its models from 2003-2006.

This week, Mercedes Benz is back on the books with a defective product class action. The allegations? Premature wear taking place with its M156 engines, specifically the cam shafts. The suit alleges that the premature wear in the M156 V8 (63 AMG) engine leads to engine problems and in some instances engine failure.

The lawsuit states that the camshafts used are made of cast nodular iron but the valve lifters used are made of 9310 grade steel, and that the combination of these metals as designed is contributing to premature wear of the M156 motors. The suit alleges that Mercedes and AMG (Aufrecht Melcher Grossaspach), a division of Mercedes that sells the high-end M156 have known about this issue since 2007. According to the lawsuit, the luxury vehicles sell for between $60K and $200K. OK, for that kind of money I would not be expecting engine problems – ever.

Top Settlements

Libby Montana Asbestos Settlement. This is a biggy and a long time in coming…long-suffering, potentially terminally ill residents of Libby, Montana, suffering from asbestos-related illnesses including asbestosis and mesothelioma have been awarded a $43 million settlement by a judge in that state. The people were made ill as a result of their exposure to asbestos from the infamous W.R. Grace asbestos mine in Libby, Montana. Reports indicate that a large part of the settlement will be paid by Warren Buffett’s Berkshire Hathaway.

The settlement resolves a lawsuit filed against the state and the mine by former miners and their families who accused the state of failing to properly oversee the mine or warn workers of dangers there. Miners had originally sued W.R. Grace but after the company filed for Chapter 11 bankruptcy in 2001, they sued the state for failing to adequately protect them, court documents state.

Some 1,400 people are expected to receive payouts from the settlement, which was approved September 8, by Montana District Court Judge Jeffrey M. Sherlock, ending ten years of legal wrangling. However, while the settlement ends numerous cases and claims against Montana it “expressly reserves their claims against all other responsible parties,” according to the agreement.

Many of the people who suffered asbestos exposure from the Libby mine are now over the age of 65, and others have since died of asbestos-related diseases such as asbestosis and cancers such as mesothelioma, records show. It may be a good ending but it’s certainly not a good story.

Snap, Crackle…Pop! Goes the Immunity Claim… Ok—hands up—how many of you actually believe a breakfast cereal could boost your immune system? Really.

But no matter, as long as the claim is made…

Kellogg, finding itself in a position of having to defend such a claim, to a potential class of consumers who filed a consumer fraud lawsuit, has proposed a settlement… cheaper than going to court after all.

In a nutshell, the lawsuit claims the Kellogg Company falsely advertised that Rice Krispies cereal and Cocoa Krispies cereal supported a person’s immunity system despite not having competent clinical evidence to support the claim. Now there’s a surprise.

So—if you purchased Kellogg’s Rice Krispies Cereal or Cocoa Krispies Cereal between June 1, 2009 and March 1, 2010, you may be entitled to a cash refund from a class action settlement.

The only way to get a cash refund: Claim Forms must either be submitted online or postmarked by November 16, 2011. If you wish, you can get out of the lawsuits and the settlement. Get no cash refund. If you wanted to exclude yourself, you must have sent an request postmarked no later than July 30, 2011. The deadline to file an objection to the settlement was July 25, 2011. If you do nothing, you will get no cash refund. However, any leftover money will be donated to one or more charities.

OK. That’s it for this week. See you at the Bar. (I’ve been told a Bloody Mary is also good for the immune system…)

Week Adjourned: 9.16.11

Weekly wrap up for September 16, 2011 of the latest class action lawsuits and settlements

Top Class Actions

Destination Maternity could find itself rerouted—make that destination courthouse as they got hit with an employment  class action lawsuit this week. Why, you ask? Sadly, nothing very original. The lawsuit claims that the international retail clothing store violated both federal labor laws and New York labor laws by routinely requiring its sales associates to undergo off-the-clock bag checks and security screenings for which they were not compensated.

The lawsuit also claims that Destination Maternity, A Pea in the Pod, Motherhood Maternity (what other kind is there?), and Edamame stores all require their sales associates to have their bags checked before they leave the stores to have lunch and before they go home for the evening. These checks occur off-the-clock, adding as much as 30 minutes to sales associates’ workdays for which they receive neither overtime nor straight time pay. Of course the point of the lawsuit is to recover the wages and overtime pay each sales associate is due under the law.

So, if you work or have worked as a sales associate at either a Destination Maternity, A Pea in the Pod, Motherhood Maternity, or Edamame store, you may request to be included in the proposed class. Check it out.

Top Settlements

The Best or Nothing? Guess it’s nothing… Mercedes Benz will be shelling over some cash shortly, following federal approval of a $15 million settlement of a recent consumer fraud class action lawsuit. It seems that Mercedes Benz USA failed to inform buyers of its luxury vehicles with analog Tele Aid communication systems that they planned to phase out the analogue emergency communications systems altogether on its models from 2003-2006. Yes—that could influence your decision to buy, no doubt.

Back to the good news. Well, sort of. Under the terms of the Mercedes-Benz settlement purchasers of 2003 to 2006 Mercedes-Benz models with the analog Tele Aid systems installed in their vehicles could receive either a certificate for up to $1,300 off a new vehicle or $650 in cash. Ummm.

You’re Forgiven! I love this one! Thousands of people have been forgiven their debts in a historical unfair business class action settlement reached last Friday in Maryland. The class action lawsuit was brought by Jason Hauk and Freddy Velazquez who led the class action lawsuit, against LVNV Funding LLC, a Greenville, SC-based company that buys consumer debt.

According to the terms of the settlement some 3,500 people in the class will receive about $2000 each, for a total of $7 million. The total settlement forgives about $10 million in debt, according to filings in U.S. District Court in Baltimore.

Further, LVNV will not pursue the 3,500 debtors in order to collect the debt, nor will they be able to sell those debts to other third party collection agencies. And LVNV have to remove information it gave to the major credit bureaus for each of those debtors, a step taken to improve their credit ratings. The settlement is being hailed as historic, and a major win for the class. You gotta love the system when it works!

OK. That’s it for this week. See you at the Bar—and safe travels getting home.