Week Adjourned: 12.18.12 – Instagram, Toyota, BP Oil Spill

The weekly wrap of top class action lawsuits and settlements for the week ending December 28, 2012. Top class action stories include Instagram, Toyota and BP Oil Spill.

Instagram LogoTop Class Action Lawsuits

Insta-cha-ching? You share your photos for free—and Instagram sells them for a profit? What? You have a problem with that? This week, Instagram got hit with a proposed unfair business practices class action lawsuit related to its recently updated terms of service. Specifically, the lawsuit, filed by California Instagram user Lucy Funes, alleges the company is in breach of contract: “[Instagram’s] unreasonable change of Terms accordingly violated the implied covenant of good faith and fair dealing inherent in Instagram’s current Terms,” the Instagram class action lawsuit states.

Instagram, now owned by Facebook, announced updates to its privacy policy and terms of service the week before Christmas, and one provision stood out: The right apparently reserved by Instagram to sell users’ photos without notice or compensation. Very crafty. Why is it no surprise that Facebook is somehow involved in this?

As a result of rapid and large user backlash, the photo-sharing site denied that it had plans to sell user photos, referring to the upset as a misunderstanding. The new terms of service will go into effect January 16, 2013.

According to the Instagram lawsuit, “On behalf of a class of Instagram’s California customers, Plaintiff is acting to preserve valuable and important property, statutory, and legal rights, through injunctive, declaratory, and equitable relief issued by this Court before such claims are forever barred by adoption of Instagram’s New Terms,” the filing said. “For this reason, even though the New Terms are not yet effective, this case is ‘ripe’ for adjudication.”

Top Settlements

Step On It Already! It’s about time—Toyota Motor Corp has agreed to a $1.1 billion settlement of a pending defective products class action lawsuit.

The Toyota class action lawsuit stemmed from complaints that a flaw in Toyota’s electronic throttle-control system, and not ill-fitting floor mats and sticky accelerator pedals, were to blame for unwanted acceleration of Toyota vehicles, which caused drivers to lose control and crash.

According to the terms of the settlement, as reported by the Wall Street Journal, Toyota will pay $1.1 billion to install new safety equipment and reimburse as many as 16 million customers.

BP’s cost of doing business? A $7.8 billion settlement against BP PLC has been approved by a federal judge, resolving economic and medical claims brought by more than 100,000 businesses and individuals who suffered from the massive BP oil spill in the Gulf of Mexico in April, 2010.

According to the terms of the settlement, approved by US District Judge Carl Barbier, there is no cap on the financial compensation—so the amount could be more or less than the estimated $7.8 billion, with the exception of $2.3 billion put aside to cover seafood-related claims by commercial fishing vessel owners, captains and deckhands.

The explosion of BP’s Macondo well that resulted in the worst oil spill in the history of the US, killed 11 rig workers and released over 200 million gallons of oil, closing much of the Gulf for months to commercial and recreational fishing and shrimping. While much litigation remains, this agreement provides for people and businesses in Louisiana, Mississippi, Alabama and some coastal counties in eastern Texas and western Florida, and in adjacent Gulf waters and bays.

According to a report in the Kansas City Star Judge Barbier said the settlement averts worries that litigation could continue for 15 to 20 years, as it did after the Exxon Valdez and Amoco Cadiz oil spills, creating a secondary disaster for those affected. The Star also notes that no ruling has been made on a medical settlement for cleanup workers and others who say exposure to oil or dispersants made them sick.

Still unresolved are environmental damage claims brought by the federal government and Gulf Coast states against BP and its partners on the Deepwater Horizon drilling rig, and claims against Switzerland-based rig owner Transocean Ltd., and Houston-based cement contractor Halliburton.

A trial is scheduled for next year, to identify the causes of BP’s blowout and assign percentages of fault to the companies involved.

Judge Barbier wrote that lawyers’ fees will not be taken from the settlements: BP has agreed to pay them separately.

I’ll drink to that! And on that note—Happy New Year—here’s to a peaceful and prosperous 2013!

Week Adjourned: 12.21.12 – Green Giant, Hurricane Sandy, Dillard’s Stores

The weekly wrap of top class action lawsuit and settlement news for the week ending December 21 2012. Top stories include Green Giant, Hurricane Sandy insurance claims and Dillard’s department stores.

logoTop Class Action Lawsuits

Ho-Ho-Ho are Those GMO’s? Nothing fresh about this old chestnut. Yet another in the rash of false labeling and misleading advertising consumer fraud class action lawsuits was filed this week against General Mills’ alleging its Green Giant 100% Natural Valley Fresh Steamers frozen vegetables are not 100% natural as claimed on the product labeling.

Ok. Here’s the dope. Filed by Elizabeh Cox, the Cox v. General Mills Inc., Case No. 12-cv-06377, consumer fraud lawsuit alleges the Valley Fresh Steamers contain genetically modified organisms (GMOs) in the form of corn, soy, corn derivatives and soy derivatives, thereby making the product labeling false or misleading.

In the Green Giant Class lawsuit, Cox claims she bought several of Green Giant 100% Natural Valley Fresh Steamers frozen vegetables in September, including Green Giant 100% Natural Valley Fresh Steamers Roasted Red Potatoes, Green Beans & Rosemary Butter Sauce and Green Giant 100% Natural Valley Fresh Steamers Broccoli, Carrots, Cauliflower & Cheese Sauce. Cox is claiming damages and harm which resulted from the misleading labeling because the product is not what is advertised. Specifically, the lawsuit states, “The harmful impact upon members of the general public who purchased and used the product outweighs any reasons or justifications by defendant for the deceptive labeling and advertising practices employed to sell the product that misleadingly claims to be ‘100% Natural.’”

The Green Giant class action lawsuit is brought on behalf of anyone who purchased Green Giant Valley Fresh Steamers containing corn or soy ingredients from October 22, 2008 through the present. Sign me up!

A Basement is a Basement is a….? You knew it had to happen. And it likely won’t be the only one. This week, a bad faith insurance class action lawsuit was filed against nine insurance companies, including Fidelity, Travelers and State Farm Insurance, over the definition of a basement related to insurance claims filed for damages caused by Hurricane Irene in 2011 and superstorm Sandy in late October. The lawsuit includes claims for Sandy in an effort to avoid improper insurance claim denials similar to those from Irene. Unbelievable.

At the heart of the Hurricane Sandy basement lawsuit is the issue of whether or not ground-floor units have been properly classified as basement units. Here we go. According to the lawsuit, the SFIP defines a basement as “any area of the building, including any sunken room or sunken portion of a room, having its floor below ground level (subgrade) on all sides.” The SFIP offers limited coverage for damages in basements, according to the lawsuit. Patrick Donnelly, from Jersey City, had flood insurance through WYO with New Jersey Re-Insurance Company and had a claim denied after Hurricane Irene because his ground floor was identified as a basement.

Part of the problem is that homeowners have a limited understanding of what a basement is under the terms of their policy. So, you might think you know your ground floor apartment is not basement—or vice-versa—but you don’t. Got that?

No? Well, you’re not alone. The lawsuit will represent everyone in New Jersey insured by the companies named in the lawsuit. Further, the lawsuit contains sub-classes specifically focused on Jersey City and Hoboken property and business owners.

Top Settlements

Dillard’s Disability Woes End in Settlement. Finally—some good news to end the year on! Well almost end the year on. A $2 million settlement has been reached in an employment class action lawsuit pending against department store chain Dillard’s Inc. The Dillard’s class action lawsuit contends that the retailer is in violation of federal disability laws by requiring workers seeking sick leave to disclose private medical conditions.

Dillards is under investigation by the US Equal Employment Opportunity Commission (EEOC) for firing a worker in El Centro in Southern California’s Imperial Count. The worker alleged she was fired in 2006 after refusing to reveal her exact medical problems to a manager who would not accept her doctor’s note when she requested sick leave.

According to a report in the Los Angeles Times, the EEOC alleges that in 2005 Dillard’s implemented a nationwide policy requiring those asking for excused absences for illness to not only give a doctor’s note but also disclose the medical condition they were being treated for. This affected thousands of workers, the EEOC claims, and is in violation of the Americans with Disabilities Act, which is meant to protect workers from being forced to disclose private medical information.

The EEOC has said it also investigated complaints that Dillard’s fired workers for taking more sick leave than the maximum number of days allowed by the retailer, which also violates federal disability discrimination laws.

As part of the settlement, Dillard’s has also agreed to hire a consultant to review and revise its employment policy.

I’ll drink to that! And on that note-Happy Holidays!

Week Adjourned: 12.14.12 – NHL & MBL, Norcold, Asbestos

The weekly wrap of class action lawsuits and settlements for the week ending December 14, 2012. Top stories include NHL, MBL, Norcold and asbestos litigation.

Top Class Action Lawsuits

It’s face-off time! …for the NHL, MBL and broadcasters Comcast and DirecTV. This week, an antitrust class action lawsuit against the National Hockey League  and company, got the green light to move forward.

What’s the beef? Well, the plaintiffs allege the defendants have created a monopoly over sports broadcasts that forces consumers to pay high prices to watch games. Brought on behalf of telecast subscribers, the NHL & MBL lawsuit claims the defendants used anti-competitive practices in order to control the broadcasting market, enabling them to charge inflated prices for sports telecasts. Doesn’t sound improbable.

Specifically, the lawsuit, entitled, Laumann et al. v. National Hockey League et al., Case No. 12-cv-01817 states “The defendants have accomplished this elimination of competition by agreeing to divide the live-game video presentation market into exclusive territories, which are protected by anti-competitive blackouts [that don’t allow certain games in certain markets to air].” Be interesting to see who scores in this one!

Own a Norcold refrigerator for your boat or RV? You might be interested to know that some very frustrated brethren in California and Florida have filed a defective products class action lawsuit against the company. The Norcold lawsuit alleges the manufacturers of Norcold brand gas absorption refrigerators, used in RVs and boats, knowingly sold defective refrigerators that posed a serious fire risk but hid that information from the public and federal regulators.

Eligibility? The class action lawsuit seeks relief on behalf of all persons who purchased or owned RVs or boats in California and Florida equipped with three models of Norcold-brand gas absorption refrigerators. The complaint names Norcold, Inc., Thetford Corporation and Dyson-Kissner-Moran Corporation (DKM) as defendants.

The lawsuit alleges that since 1999, Norcold’s refrigerators have caused at least 2,000 fires (2000!) resulting in millions of dollars in property damage, personal injury and death. The refrigerators contain flammable gases under high pressure, including hydrogen. The gases are heated by electricity or propane to circulate and provide the refrigeration effect. Fires are caused when defects in the refrigerator design release the flammable gases, which can then explosively ignite and spread quickly through the refrigerator compartment and into the passenger area of the RV.

The Norcold lawsuit alleges that the companies knew of the potential fire hazard associated with its refrigerators, but rather than eliminate the design and manufacturing defects or provide an adequate warning of the potential safety risks to users of the product they tried to conceal and minimize these dangers through a series of limited manufacturer-initiated product safety recalls through the National Highway Traffic Safety Administration (NHTSA), beginning in 2000.

In each product safety recall, Norcold represented that there was a single failure modality in a limited portion of their product population. They provided a retrofit that would fix that defect, rendering the refrigerators safe to use. But in truth, the lawsuit alleges, the refrigerators had a number of different failures that were common to all of the product lines, information that was never adequately disclosed to NHTSA or users of the product, nor remedied by the retrofit campaigns. Further it’s alleged that the devices provided by the companies to “fix” the defects were not only ineffective to remedy the propensity of the refrigerators to cause fires, but were designed, when triggered, to render the refrigerators inoperable and unrepairable, requiring users to purchase new refrigerators that contained the same design and manufacturing defects as the originals, and which had the same propensity to cause fires.

Top Settlements

Two asbestos settlements …to report this week. The first, involves a 68-year old man who worked as a painter and handyman from the early 1960s until his diagnosis of asbestos mesothelioma. He was been awarded $8,465,738 in settlement of his asbestos lawsuit.

In the lawsuit, the plaintiff alleged his exposure to asbestos resulted from working with asbestos-containing products manufactured and supplied by the defendants, Union Carbide and CalPortland. Specifically, the lawsuit claimed that the joint compound and the plastic cement the plaintiff worked with contained asbestos.

Recently diagnosed with pleural malignant asbestos mesothelioma, the plaintiff subsequently underwent an extrapleural pneumonectomy. He and his wife brought suit against the various defendants alleging that the defendants were negligent in failing to warn of the dangers of asbestos contained in their products or sold to others to place in their products.

At the conclusion of the 37-day trial the jury returned its verdict in favor of the plaintiffs and against the defendants. The jury determined that defendants CalPortland and Union Carbide were responsible.

The second asbestos lawsuit settlement involves the family of a former employee at the GM Powertrain facility in the town of Tonawanda. The husband and father died of asbestos disease, and his family, who brought the GM asbestos lawsuit, were awarded $3 million by the jury hearing the case.

Gerald Suttner, formerly of Tonawanda, worked at the GM facility repairing valves manufactured by Crane Co. The job involved removing asbestos gaskets, which created asbestos dust Suttner would have inhaled. He did this from 1964 to 1979, when he retired.

Diagnosed in October 2010, Mr. Suttner died just one year later, from pleural mesothelioma, a form of cancer that is caused by asbestos. He was 77.

During the trial, lawyers for the Suttner family called expert witnesses who testified that there is no such thing as safe asbestos exposure and assured the jury that Suttner’s exposure is what led to his diagnosis. The dangers of asbestos have been known since the early 1900s, and the lawyers made the case that Crane was aware of these dangers since the 1930s. “But the company continued to use asbestos well into the late 1980s without placing warnings on its products,” the law firm’s statement reads.

And on that note, I’ll see you at the bar.

Week Adjourned: 12.7.12 – Rimmel London, Toys R Us, Facebook

Beauty Blunder! I love this one… A class action lawsuit has been filed alleging that Coty’s Rimmel London Lash Accelerator mascara is misleading to consumers as it falsely claims it enhances eyelash growth. Really? Find this and more in our weekly class action lawsuit wrap, Week Adjourned.

Top Class Action Lawsuits

Beauty Blunder! I love this one… A class action lawsuit has been filed alleging that Coty’s Rimmel London Lash Accelerator mascara is misleading to consumers as it falsely claims it enhances eyelash growth. Really?

Filed in federal court in California, the consumer fraud class action lawsuit, entitled Algarin v. Coty Inc., Case No. 12-cv-2868 JAH JMA, claims Coty deceives consumers by advertising that Rimmel London Lash Accelerator mascara with Grow-Lash Complex lengthens eyelashes by 37 percent within one month, and, with ‘regular use,’ increases their number. (The implications, if this is true, are a little worrying).

This is the latest in a rash of lawsuits aimed at wording/false advertising and generally misleading advertising tactics employed by our captains of industry. What I want to know is how much  Rimmel London Lash Accelerator mascara actually ‘accelerated’ Zooey Deschanel’s lashes? And are there unretouched photos somewhere to prove it? Just asking. (Ms. Deschanel, btw, for those who don’t pay much attention to these things, is the Rimmel model for Lash Accelerator).

Back to the lawsuit. Filed by plaintiff Yanira Algarin, the class action states that the mascara does not physically grow or multiply eyelashes and certainly not within the 30-day timeframe advertised. (Have to say I am slightly relieved about that). Instead, the lawsuit states, “As a result of Coty’s deceptive grow lash claim, consumers — including Plaintiff and members of the proposed Class — have purchased a product that does not perform as advertised,” the Rimmel mascara class action lawsuit states. “Moreover, they have paid a price premium for Rimmel Lash Accelerator over other mascaras sold by Coty and its competitors that do not claim to physically grow or multiply eyelashes in 30 days.”

The Rimmel mascara lawsuit is seeking $5 million in damages for thousands of consumers who were allegedly mislead into purchasing Rimmel London Lash Accelerator mascara. It is also asking that Coty immediately stop marketing the mascara as having the ability to lengthen and multiply eyelashes and provide refunds to consumers. Sign me up!

Top Settlements

Toys R Us R All Over the News this Week – and not in a good way. News that a $1.1 million settlement was approved by a California judge in a consumer fraud class action lawsuit pending against the toy retailer was reported earlier this week.

Note, this is not a settlement for the Toys R Us bait-and-switch class action lawsuit filed by an angry customer who feels he was duped over the Thanksgiving weekend. That lawsuit alleges Toys “R” US engaged in a bait-and-switch scheme that lured in online shoppers with offers of valuable free gifts but turned out be small or non-existent, and it is alive and well.

The Toys R Us lawsuit that looks as if it may finally be resolved was the one filed by lead plaintiff Laura Maybaum in November 2009 and is entitled Laura Maybaum v. Toys “R” Us Inc., et al., Case No. BC466115.

In it, Maybaum alleged customers who purchased products that offered free gift cards, buy-one-get-one 50 percent-off discounts or other benefits, received less money than the full purchase price on returns. This was in directly violation of a California law, the lawsuit states, which prohibits retailers from giving less than full cash or credit refunds unless a more restrictive policy has been put in place.

Under the Toys “R” Us consumer fraud class action settlement, Class Members will receive a voucher for $10 off a purchase of $50 or more. Class Members include all California consumers who purchased products from Toys “R” Us stores since January 1, 2008 that qualified for a promotion and subsequently returned one or more items. One down. One to go. So far.

If it’s on Facebook – it Must be True… Right? Well, the news is preliminary approval of a $20 million consumer fraud class action lawsuit pending against Facebook was granted this week. The settlement seeks to resolve allegations that Facebook used its ‘users’ names, photos and identities to advertise products on the social network, without those ‘users’ permission. Remember this one?

The Facebook lawsuit, entitled Angel Fraley, et al. v. Facebook, Inc., Case No. 11-cv-1726, alleges the advertising program violated users’ right to privacy by publicizing their “likes” without asking for permission or offering compensation.

Facebook has agreed to pay $20 million to settle the class action lawsuit, which will be split amongst charities, attorneys and the 125 million US Facebook users who appeared in Sponsored Stories without their consent. If approved, class members may be eligible to receive up to $10 each.

As part of the settlement, Facebook has also agreed that users will be allowed to exclude themselves from the advertising program.

And on that note—I’ll see you at the bar—as planning for the “deck the halls” thing. Have a great weekend!