Month: May 2013

Week Adjourned: 5.31.13 – Twinings Tea, Apple, Wellbutrin

The top class action lawsuits for the week ending May 31, 2013. Top stories include Twinings Tea, Apple and Wellbutrin.

Twinings teaTop Class Action Lawsuits

“What’s in Your Cuppa?” Not what you think, if the allegations brought in a consumer fraud class action against Twinings North America prove true.

In fact, the Twinings lawsuit claims the tea company has falsely represented the health benefits of more than 50 different blends of its teas. Crikey!

Lead plaintiff Nancy Lanovaz, who filed the lawsuit, claims she paid a premium price for Twinings’ green and black tea and would not have purchased it without the allegedly unlawful labeling that the tea is a “natural source of antioxidants.”

Twinings filed a motion to dismiss the lawsuit, however, US District Judge Ronald M. Whyte has now ruled that the potential class action may move forward stating that that 51 of the 53 tea blends that Lanovaz claims are falsely labeled are made from the same camellia sinensis plant and are therefore the same product.

“Because the claims for 51 of the varieties of tea are based upon the exact same label describing the same product, camellia sinensis, the court finds that Lanovaz has standing to sue on behalf of the purchasers of these teas and thus denies Twinings’ motion with respect to these products,” Judge Whyte wrote. “Red tea, on the other hand, is made from a different plant and is thus a significantly different product.”

The consumer fraud class action lawsuit alleging false advertising of Twinings teas claims the company violated California’s Unfair Competition Law, False Advertising Law and the Consumers Legal Remedies Act.

Top Settlements

Apple Gets Bitten. Time for this week’s litigation update on Apple Inc—the company is seemingly dogged by consumer fraud and defective product lawsuits right now. But this week, we have a proposed settlement to report—it’s been all over mainstream media—Apple has agreed to pay $53 million in settlement of a defective products class action lawsuit alleging the tech giant used faulty indicators showing that iPhones and iPods were exposed to water, to deny customers’ warranty claims.

According to court documents regarding the settlement, eligible consumers could receive up to $300 depending on the device model they owned. Bloomberg reports that lawyers for consumers say the liquid submersion indicators on iPhones and iPods could be triggered by moisture during ordinary use and falsely indicated devices had been damaged by liquid spills or submersion, problems that were excluded from coverage under Apple’s warranty. Apple has denied the allegations, defending its indicators as reliable.

Customers whose warranty claims for iPhones were denied before December 31, 2009, on the basis of Apple’s liquid damage policy and claims for iPod Touches that were denied before June 2010 are eligible for settlement funds. Attorneys can seek as much as 30 percent of the $53 million settlement fund for their fees and expenses, Bloomberg reports.

FYI—The settlement is subject to court approval. So watch this space—we’ll keep you posted.

Last Call for Wellbutrin Claims…Heads up—if you purchased Wellbutrin—today is the last day—May 31—to object to or drop out of this class action, because an $11.75 million settlement has been tentatively agreed in the Wellbutrin XL antitrust class action filed against Valeant Pharmaceuticals International Inc, and GlaxoSmithKline (GSK). If you bought Wellbutrin XL® or its Generic equivalent, the proposed class action settlement could affect you.

This matter is a lawsuit against Valeant Pharmaceuticals, Inc., formerly Biovail Corp. (“Biovail”), and SmithKline Beecham Corporation doing business as GlaxoSmithKline and GlaxoSmithKline plc (collectively “GSK”) (together with Biovail, “Defendants”), the companies that manufactured and marketed the antidepressant Wellbutrin XL.

The lawsuit, entitled In re: Wellbutrin XL Antitrust Litigation, Case No. 8-cv-2433, U.S. District Court, Eastern District of Pennsylvania, alleges the pharmaceutical manufacturers worked together to delay the availability of less expensive, generic versions of Wellbutrin XL. Anyone who purchased Wellbutrin XL or its generic equivalent in the following states may be eligible to claim part of the settlement, if it is approved: California, Florida, Nevada, New York, Tennessee and/or Wisconsin.

For additional information regarding this lawsuit, proposed settlement, and for obtaining a Claim, visit: http://www.wxlclassaction.com/. Claim form submissions for this class action are due July 12, 2013.

A fairness hearing is set for June 18 at which time the proposed settlement will either be approved—or not.

Okee doke—that’s it for this week—happy weekend—see you at the bar!

Week Adjourned: 5.24.13 – Nike, Apple, Wolfgang Puck, Penguin Books

The weekly wrap of top class action lawsuits and settlements, for the week ending May 24, 2013.

Nike FuelbandTop Class Action Lawsuits

Nike Calorie Tracker Can’t “Just Do It”? Nike and Apple are facing a consumer fraud class action lawsuit alleging the Nike+ FuelBand, which is supposed to track every step and calorie a wearer burns, doesn’t work as advertised. Now there’s a surprise. The device costs $150, which really is shocking.

Filed by Carolyn Levin of California, the Nike+ FuelBand lawsuit contends that both Apple and Nike knew that the Nike+ FuelBand is defective because it registers inaccurate readings. Nevertheless, they marketed and sold it, and made exaggerated claims about its capabilities.

Specifically, the lawsuit states “In truth, the Nike+ FuelBand cannot and does not track each calorie burned, and users experience wildly inaccurate calorie burn readings when using the FuelBand.” And, “As a result of defendants’ conduct, buyers of the FuelBand, including class members, were in fact misled into purchasing a device that defendants purported would track calories burned when in fact it cannot and does not track calories burned, misleading and damaging customers.”

The class action, entitled Carolyn Levin, et al. v. Nike Inc., et al., Case No. BC509363, in the Superior Court of the State of California, seeks to represent all consumers who purchased the wristband device since January 2012, when it was initially brought to market. The lawsuit alleges that the defendants have made negligent and fraudulent misrepresentations, and have violated California’s business and professions code.

Is Wolfgang Passing the Puck? Ah yes—at least according to an employment class action lawsuit just filed by two former servers who allege the company knowingly withheld their tips and failed to pay overtime. Filed in Manhattan by plaintiffs Kristin Noriega and Oliver Gummert, the Wolfgang Puck lawsuit contends that a Wolfgang Puck catering company was charging its client venues, such as Irving Plaza and the Gramercy Theater, with a 22 percent service charge and then denying its servers and bartenders their tips. “Any charge for ‘service’ or ‘food service,’ is a charge purported to be a gratuity and therefore must be paid over to service employees,” the lawsuit claims. Failing to pass on a service charge that clients have been charged, violates state and federal laws.

And…according to the lawsuit… Noriega, a waitress, and Gummert, a bartender, were paid between $10 and $18 an hour and were not compensated for up to 30 hours of overtime a week. Both Noriega and Gummert left Puck’s employment in 2012, after working for the company for two to three years. That’s not ok…

Top Settlements

Penguin is re-writing the antitrust book on ebook pricing settlements—having agreed to a $75 million payment this week. Penguin’s settlement with the consumers and 33 states is the largest to date.

HarperCollins, Simon & Schuster, Hachette and Macmillan have all settled with both the states and the Department of Justice (DOJ)—HarperCollins, Simon & Schuster, Hachette settled for—get this—a combined $69 million, while Macmillan agreed to pay $20 million.

The settlement is the last of the major publishers to settle. Penguin settled with the DOJ several months ago. Apple, also a defendant in the class action, is going to court in a few weeks and will face the DOJ over antitrust pricing allegations.

The settlement is pending court approval, and a fairness hearing is scheduled for late summer. We’ll keep you posted—so watch this space.

Okee dokee—that’s it for this week—happy weekend—see you at the bar!

Week Adjourned: 5.17.13 – iPhone 4, Wells Fargo, Generic Drugs

The weekly wrap on top class action lawsuits and settlements for the week ending May 17, 2013. Top stories this week include iPhone 4, Wells Fargo and generic drugmaker Ranbaxy.

apple iphone 4Top Class Action Lawsuits

Bad Apple! The god of tech gadgets got slapped this week—with a potential defective products class action lawsuit (yes, another one), alleging its iPhone 4 has a defective power button, effectively preventing the operator from being able to use the phone. This power button failure allegedly occurs shortly after the phone’s one year warranty expires. And doesn’t that just figure…

The Apple iPhone 4 class action lawsuit, filed by plaintiff Debra Hilton, Debra Hilton v. Apple Inc., Case No. 13-cv-2167, U.S. District Court for the Northern District of California, claims “The failure of the power button that has plagued the iPhone 4 is more than an inconvenience… As a method by which the phone is toggled on and off, the failure of the button precludes general use of the phone and thereby effectively prevents iPhone 4 owners from being able to use the phone.” Yup.

According to the lawsuit, Hilton alleges the iPhone 4 power button defect is caused by the premature deterioration of a flex cable that connects the power button to the phone. When this cable deteriorates, the power button becomes harder and harder to depress, and eventually fails to work. Yup.

The iPhone 4 lawsuit contends that thousands of consumers who purchased the iPhone 4 have experienced this failure forcing them to throw away their phone or pay Apple $149.99 plus shipping for a replacement. Yikes! Better get on it boys.

Top Settlements

Two Better than One for Wells Fargo. Wells Fargo made headlines twice this week, two settlements to report—both biggies. The first was a judicial order to reinstate a $203 million judgment against the bank in settlement of an overdraft fees class action lawsuit.

In a nutshell, the judgment, based upon the court’s findings, as affirmed on appeal by the Ninth Circuit, states that Wells Fargo violated California’s unfair competition law by deceiving its customers that debit card purchases would be posted chronologically to their accounts when in fact Wells Fargo posted them in a high-to-low order for the sole purpose of generating overdraft fees.

The case was brought on behalf of California Wells Fargo customers who, from November 15, 2004 to June 30, 2008, incurred overdraft fees on debit card transactions as a result of the bank’s practice of sequencing transactions from highest to lowest.

The second settlement with Wells Fargo’s name on it involves a force-placed insurance class action lawsuit brought by homeowners in Florida. (Force-placed insurance, btw, is sometimes referred to as “lender placed insurance”.) The lawsuit alleged that the homeowners were overcharged for the insurance, and that Wells Fargo unfairly took commission on the insurance, which it assigned to the homeowners through QBE.

The class was certified in 2012, and more than 24,000 homeowners were notified. During the class period, from April 2006 to February 2013, the class members were charged $77 million for force-placed insurance, according to the settlement documents, the South Florida Business Journal reports.

But wouldn’t you know it, just two months before they were due to go to court, the parties reached a $19.5 million settlement.

The settlement will provide a refund of the amount charged for force-placed insurance to the members of the class. Borrowers who were charged and paid the premium will be refunded 25 percent in cash. Those who were charged the premium but didn’t pay will get a credit of 25 percent off their bill.

Bet those homeowners are breathing a huge sigh of relief this weekend.

Largest Generic Drug Safety Fine. Ever. We’d be completely remiss if we didn’t mention this one… Ranbaxy has pled guilty to federal drug safety violations and will pay $500 million in fines to resolve the claims. The generic drug manufacturer is alleged to have sold subpar drugs and made false statements to the Food and Drug Administration (FDA) about its manufacturing practices at two factories in India.

According to the Justice Department, the settlement is reportedly the largest in history involving a generic drug maker. Part of the settlement involves Ranbaxy pleading guilty to three felony counts of violating the federal drug safety law and four of making false statements to the FDA.

According to a report by the New York Times, Ranbaxy acknowledged it had failed to conduct proper safety and quality tests of several drugs manufactured at its Indian plants, known as Paonta Sahib and Dewas, including generic versions of many common medicines, such as the epilepsy drug gabapentin, and the antibiotic ciprofloxacin.

In the case of gabapentin, also known as Neurontin, Ranbaxy reportedly admitted that between June and August in 2007, it was aware that certain batches had tested positive for “unknown impurities” and had unreliable shelf lives. Nevertheless, the company didn’t report this to the FDA and announce a recall until October of that year. The recall ultimately involved more than 73 million pills.

Further, testing of certain batches of drugs to ensure their effectiveness was reportedly not done for weeks or months after the company had told the FDA the testing had been carried out.

Ranbaxy has set aside $500 million in anticipation of the penalties, which will break down as a $150 million in a criminal fine and forfeiture, and the remainder going to settle civil claims brought by the federal government and all 50 states. A former Ranbaxy executive who alerted the federal government to the problems will receive close to $49 million in compensation for his role as a whistleblower, the Times reports.

That’s a wrap. It’s cocktail hour—somewhere in the world—see you at the bar!

Week Adjourned: 5.10.13 – Capital One, H&R Block, QuickTrim

The weekly wrap of top class action lawsuits and settlements for the week ending May 10, 2013. Top stories include Capital One, H&R Block, QuickTrim

Capital One LogoTop Class Action Lawsuits

Not “What’s in your wallet?” but… “Who’s in Your Wallet – Again?” Can you guess? Yup—Capital One Bank. This time they’re facing a consumer fraud class action lawsuit alleging its Best Buy co-branded credit cards have an annual fee, in contrast to the advertising for the card, which claims there is no fee. Make sense?

Here’s the backstory. Filed by John Graham, the potential Capital One class action entitled, John Graham v. Capital One Bank (USA), NA, Case No. 13-cv-743, U.S. District Court, Central District of California, alleges that Graham applied for a “no annual fee” Best Buy Reward Zone Credit Card from Capital One but was issued a card that had an annual fee of $39. According to the lawsuit, disclosures for the credit card clearly stated in large type: “Annual Fee: NONE.” Graham claims that had he known there would by an annual fee, he would not have applied for the Capital One Best Buy credit card. FYI Best Buy is not named as a defendant.

This is a national lawsuit, so it seeks to represent all US residents who, between May 8, 2011 and the present, submitted a Best Buy Reward Zone Credit Card Application containing a promise of “no annual fee” but who were subsequently mailed a Capital One credit card that carries an annual fee. Gotcha! (pun intended).

H&R Block Lawsuits Piling Up. Another consumer fraud class action lawsuit has been filed against H&R Block, this time by a woman in Indiana on behalf of some 600,000 people allegedly affected by faulty tax returns prepared by the tax services company. H&R Block acknowledged the filing glitch earlier this year.

Plaintiff Lisa Marie Waugh filed the H&R Block class action lawsuit in federal court in April. The class action law suit claims that Missouri-based H&R Block incorrectly prepared hundreds of thousands of tax returns, and due to those errors tax refunds were delayed by as much as six weeks beyond when they supposed date of payment.

The problem specifically relates to a change in the way the IRS processes certain yes or no questions on this year’s tax forms. Previously, tax preparers like H&R Block could leave a space blank to indicate “no,” but now they must enter an “N.”

However, H&R Block did not update its software in time and follow the new IRS rule. According to an email H&R Block President Bill Cobb sent to customers, anyone that filed their returns before February 22 was affected by the technical glitch, the Indystar.com reports.

According to the lawsuit, some customers lost their eligibility for student loan and grant programs that are dependent upon proper tax filings.

Top Settlements

QuickTrim—the Diet Product that’s not only Light on Calories…This week, a proposed settlement was announced, which, if approved, would end the consumer fraud class action lawsuit pending against the Kardashian sisters, their product QuickTrim, and several retailers. LawyersandSettlements.com first reported on the QuickTrim lawsuit back in March, 2012.

Specifically, the QuickTrim settlement resolves allegations that improper statements were made on the labels and in advertisements for the Quicktrim Weight Loss System® and its component products including QuickTrim Sugar & Carb Cheater®, QuickTrim Fast Cleanse®, QuickTrim Extreme Burn®, QuickTrim Burn & Cleanse®, QuickTrim Hot Stix®, QuickTrim Fast Shake®, QuickTrim Satisfy®, and QuickTrim Celluslim® (“The Products”).

Unless you purchased directly from QuickTrim you must submit a timely Claim Form to get compensation or a coupon. Direct Purchasers will automatically receive payments unless they chose to receive a coupon by submitting a Claim Form or exclude themselves from the Settlement.

To download claim forms, learn more about your options, and for general information on the lawsuit, visit https://www.anayasupplementsettlement.com.

The laundry list of defendants, who, not surprisingly, admit no wrongdoing, includes Quick Trim LLC., Windmill Health Products, LLC, Kimberly Kardashian, Khloe Kardashian-Odom, Kourtney Kardashian, Kris Jenner, Jenner Communications, Inc., Kimsaprincess, Inc., Khlomoney Inc., 2Die4Kourt, Inc., GNC Corp., CVS Pharmacy, Inc., Walmart Corp., Amazon.com Inc., Drugstore.com., Christopher Tisi, Vitaquest International, LLC. (“collectively “the Quick Trim Parties” or “Defendants”).

And on that note, it’s time to consume some calories…

That’s a wrap. See you at that bar…Happy Friday folks and Happy Mother’s Day to all moms out there!

Week Adjourned: 5.3.13 – SoulCycle, Sega, eBooks

The top class action lawsuit stories for the week ending May 3, 2013. In class action news this week: SoulCycle, Sega and eBooks.

SoulCycleTop Class Action Lawsuits

SoulCycle not so full of Soul. Nick Oram, a former SoulCycle master instructor, has filed a California employment class action lawsuit alleging that he and other SoulCycle instructors were not paid consistent with New York and California laws. SoulCycle has built its reputation by providing what it describes as the “best instructors and staff, trained to deliver unique services and personal attention to all levels of riders.” However, as detailed in the SoulCycle class action lawsuit, SoulCycle only compensates these instructors for the time spent teaching their classes, and has failed to compensate them for numerous hours spent in training, preparing for classes, developing routines, compiling playlists, communicating with customers, attending meetings, leading special event classes and engaging in marketing.

As the complaint alleges, SoulCycle’s unlawful wage practices are consistent with its mistreatment of customers as SoulCycle does not provide any reimbursement to customers who are unable to attend classes they sign up for (unless they cancel the class by 5PM the night before), even when SoulCycle is able to re-sell the vacant bike spot. As a result, SoulCycle very often generates revenue from classes at a rate that exceeds the total number of bikes in a studio, to the detriment of its customers.

And, despite the dozens of hours per week SoulCycle instructors are required to work above and beyond the time instructing a class, SoulCycle only compensates these instructors for only the approximately 45 grueling minutes during which each class is taught. Mr. Oram stated that, “It is my goal in this lawsuit to ensure that SoulCycle pays all of the hard working and dedicated instructors what they deserve and compensates them fairly for all hours worked.” Go for it!

Heads up all you Sega Gamers out there… A consumer fraud class action lawsuit has been filed against Sega of America and Gearbox Software over allegations they misrepresented the quality of their new game “Aliens: Colonial Marines” prior to its release.

Damion Perrine, lead plaintiff in the Sega class action, alleges Sega and Gearbox induced consumers to buy “Aliens: Colonial Marines” through a “bait-and-switch” scheme that involved giving bogus gameplay demonstrations at video game expositions and trade shows leading up to the games’ February 2013 release.

Specifically, the class action lawsuit states: “Each of the ‘actual gameplay’ demonstrations purported to show customers exactly what they would be buying: a cutting edge video game with very specific features and qualities. Unfortunately for their fans, Defendants never told anyone, consumers, industry critics, reviewers or reporters, that their ‘actual gameplay’ demonstration advertising campaign bore little resemblance to the retail product that would eventually be sold to a large community of unwitting purchasers.”

And: “A major selling point of the ‘actual gameplay’ demonstrations were ‘iconic’ gameplay sections where consumers might essentially step into the role of a character from the ‘Aliens’ movie,” the lawsuit states. “Many of such sections previewed in the ‘actual gameplay’ demonstrations were either gutted beyond recognition or missing entirely from the final product.”

The Sega class action lawsuit is seeking class action status and damages and punitive damages, restitution, disgorgement of profit and an injunction for a proposed class of all US consumers who purchased “Aliens: Colonial Marines” on or before February 12, 2013.

Top Settlements

Worth a Read: eBook Lovers Get $20M Settlement… A $20 million settlement has been agreed in the consumer fraud class action lawsuit pending against Verlagsgruppe Georg von Holtzbrinck GmbH’s MacMillan unit, which alleged the publisher conspired with Apple Inc, and other US publishers to fix prices of electronic books, or eBooks.

The latest eBook settlement resolves the allegations brought in the consumer fraud lawsuit as well as a lawsuit brought by several US states. According to a report by Bloomberg, MacMillan will pay an additional $3 million in legal costs to the states that sued and $2.5 million to the lawyers for the consumers in the class-action case.

The case is In re Electronic Books Antitrust Litigation, 11-md-02293, U.S. District Court, Southern District of New York (Manhattan). The Justice Department and the other states led by Texas alleged publishers conspired with Apple in 2010 to undermine Amazon’s dominance in the eBooks market.

Ok—that’s a wrap. See you at that bar…and Happy Friday Folks!