2014 | Class Action News Blog

Week Adjourned: 10.10.14 – Mazda, Toyota, AT&T

Looking like The Year of Defective Automotive Recalls and Lawsuits… it’s the week’s top class action lawsuits and settlements.

Looking like The Year of Defective Automotive Recalls and Lawsuits…

Top Class Action Lawsuits

It’s getting hard to stay on top of the number of defective automotive lawsuits, and math was never my strong suit…but suffice to say there are many. Added to the list this week is a putative class action filed against Mazda Motor Company, alleging the automaker hid knowledge that Mazda 3 and Mazda 6 vehicle models have defective dashboards that melt when exposed to sunlight and subsequently give off a chemical odor and become reflective, posing a risk of temporary blindness in drivers. Talk about a one-two punch. Like I said, math is not my forte but even the most basic understanding indicates that selling a product that can injure or kill your customers can’t add up to good business.

According to the lawsuit: “Mazda’s conduct violates multiple state consumer protection statutes. On behalf of themselves and the proposed classes, plaintiffs seek to compel Mazda to warn drivers about the known defect and to bear the expense of replacing dashboards that Mazda should never have placed in the stream of commerce in the first place.”

Filed in California federal court by lead plaintiffs Danielle Stedman, Jody Soto and Gary Soto, the lawsuit claims Mazda refuses to cover repair costs for the melting dashboards in their vehicles because their cars were no longer under warranty. However, the allege that had they known about the defect prior to purchasing their vehicles, they would not have bought those cars in the first place. The consumers say the automaker failed to properly inform them about the defect.

The plaintiffs claim Mazda knew or should have known when it sold the defective vehicles that the dashboards would deteriorate when exposed to sunlight and “predictably high” summertime temperatures, presenting unsafe condition for drivers.

Like all other automobile manufacturers, Mazda has known “for decades” that dashboard reflections can impair drivers’ visions and make it difficult for them to see pedestrians or objects on the road, according to the suit. The information has been even been readily available through research published by the University of Michigan in 1996, the lawsuit states.

The complaint further claims that Mazda has had “extensive experience” working with the materials used in the dashboards and has personnel who specifically evaluate the durability of new vehicle parts, the company knew or should have known about the defect.

“Mazda thus had exclusive and superior knowledge of the dashboard defect and actively concealed the defect and corresponding danger from consumers who had no way to reasonably discover the problem before buying and driving their vehicles,” the complaint states.

The lawsuit seeks certification of a nationwide class of all people who owned or leased one of the defective vehicles, in addition to a separate Florida class of vehicle owners and lessors.

The suit is Stedman et al v. Mazda Motor Corporation et al, case number 8:14-cv-01608, in the U.S. District Court for the Central District of California.

And here’s a little more light reading…Toyota also got hit with a defective automotive class action lawsuit this week, filed by an Arkansas man, alleging its 2005-2009 Tacoma trucks are prone to experiencing excessive rust corrosion. Specifically, the lawsuit claims that the trucks were made with frames that are inadequately protected from rust corrosion, consequently, the frames corrode from rust, rendering the vehicles unstable and unsafe to drive. Refer to Math 101 at the top of the article.

The vehicles that experience excessive rust corrosion are essentially worthless, according to the complaint (U.S. District Court for the Western District of Arkansas case number: 1:14-cv-02208.) Lead plaintiff, Ryan Burns, alleges Toyota has, for quite some time, been aware of the alleged defect in the Tacoma vehicles’ frames, and despite this knowledge, has failed to disclose the existence of the defect to him and other class members at the time of sale, has not issued a recall to inspect and repair the vehicles and has not offered to reimburse owners for costs incurred to identify and repair the defect.

The lawsuit contends that earlier this year, Burns took his Tacoma in for service because the fan on the vehicle was coming into contact with the fan shroud. “Shortly thereafter, plaintiff was informed that the frame on his Tacoma vehicle was rusted out and that the vehicle was unsafe to drive,” the complaint states.

Burns alleges he was advised that the frame on his 2005 Tacoma had severely rusted and that it would cost approximately $10,000 to repair. “In… March 2008, after receiving numerous complaints that frames on approximately 813,000 model year 1995 to 2000 Tacoma vehicles had exhibited excessive rust corrosion, Toyota USA initiated a customer support program extending warranty coverage on the vehicles’ frames for frame perforation caused by rust corrosion,” the complaint states. “The program extended warranty coverage on concerned vehicles to 15 years with no mileage limitations.”

Allegedly, the terms of the program are that once confirmation of perforation of the frame due to rust corrosion has been determined, Toyota would either repair or repurchase the vehicle. Burns claims Toyota subsequently altered the customer support program to include 2001-2004 Tacoma models, with the exception that there was no buy-back option.

“In November 2012, Toyota USA recalled approximately 150,000 Tacoma vehicles to inspect and replace the spare-tire carrier on vehicles sold in 20 cold weather states,” the complaint states. “The recall was issued to prevent the spare-tire carrier from rusting through and resulting in the spare tire dropping to the ground.”

The lawsuit contends Toyota violated the Arkansas Deceptive Trade Practices Act and breached its express and implied warranty under Magnuson-Moss Warranty Act. “Toyota USA knew, or should have known, that the frames on…Toyota vehicles were not coated with adequate rust corrosion treatment,” the complaint states. Consequently, Toyota has been unjustly enriched at the cost of class members whose vehicles were damaged, according to the lawsuit. You think?

Burns is seeking class certification, compensatory damages, an order requiring Toyota to repair or replace the frames on the Tacoma vehicles and pre- and post-judgment interest.

I’m not a fully paid up member of the Cycling Taliban, but seriously, these recalls are almost enough to get me back in the saddle.

Top Settlements

Ah—One Ringy-Dingy…that will be $45 million please. Oh yes—AT&T is busted. They have agreed to a settlement in a Telephone Consumer Protection Act (TCPA) class action alleging the company violated the TCPA by placing calls using an automatic telephone dialing system and/or an artificial or prerecorded voice message to cellular telephone numbers without the prior express consent of the call recipients. Phew..that was a mouthful. Like the automated telephone calls themselves…

The lawsuit is led by plaintiff Joel Hagerman. Hagerman brought the suit in April 2013, (U.S. District Court for the District of Montana case number: 1:13-cv-00050). According to the terms of the settlement, the size of the per-call payment shall be determined on a pro rata basis of up to $500 per call, after the attorneys fees and costs, any incentive award to named plaintiff and any settlement administration costs are deducted from the settlement fund and the settlement administrator reviews all claim forms to determine a final number of claimants.

Specifically, the settlement states: “A class member shall receive payment for each call he or she received from [AT&T] or from an OCA acting on behalf of [AT&T] during the class period by submitting a short claim form.”

No more info than that at the moment—so stay tuned.

In the meantime…Time to adjourn for the week. Have a fab weekend–and HappyThanksgiving to all you Canucks out there. See you at the bar!

Week Adjourned: 10.3.14 – Home Depot, AMS Mesh, Lenovo

The week’s top class action lawsuits and settlements. Top stories include Home Depot, AMS Mesh, Lenovo.

Top Class Action Lawsuits

You Knew this was Coming… Home Depot got hit with a federal data breach class action lawsuit filed on behalf of all customers nationwide whose personal information was compromised as a result of the data breach announced in September 2014.

The Home Depot lawsuit alleges that Home Depot failed to take reasonable security measures to adequately protect its customers’ personal data. It also asserts that Home Depot failed to disclose the data breach in a timely manner to its customers. Well, sadly they are not the first to face these charges, and likely they won’t be the last.

In an official statement on September 18, 2014, Home Depot stated that an estimated 56 million credit and debit cards were exposed during a five-month-long attack on its payment terminals. That is a staggering number. As reported by the New York Times on September 19, 2014, in “Ex-Employees Left Home Depot Data Vulnerable,” former employees of Home Depot who have asked to remain anonymous have alleged that the retailer’s network was protected with outdated software, and that some cyber security team members left after managers allegedly dismissed their concerns. In the same article, the New York Times also stated that the breach may result in up to $3 billion in fraudulent charges.

The Home Depot data breach class action lawsuit is entitled Earls v. The Home Depot Inc., No. 3:14-cv-4315, and is currently pending in U.S. District Court for the Northern District of California.

Top Settlements

Mesh Mess gets Settlement… Endo made headlines this week after announcing it has reached a settlement agreement that reportedly will resolve most outstanding American Medical Systems (AMS ) transvaginal mesh lawsuits. The medical device manufacturer has agreed to pay more than $400 million to resolve the lawsuits, which claim the AMS vaginal-mesh implants eroded in some women and left them in pain. So far, no details have been released on the settlement.

What we do know so far is that the master settlement will resolve more than 10,000 outstanding AMS lawsuits in the US at an average of about $48,000 apiece, Bloomberg reports. AMS expects to fund the payments under all settlements in 2014, 2015, 2016 and 2017.

Sources close to the Endo settlement stated that some 5,000 AMS vaginal mesh lawsuits remain outstanding. Stay tuned.

Lenovo Wifi not Working? Hey—there’s a Settlement for that. In fact, there was a consumer fraud class action lawsuit filed against Lenovo that alleged the company knowingly sold Ultrabook computers with a design defect that impacted WiFi reception and accessing speeds.

Specifically, the lawsuit alleged that Lenovo marketed and sold defective Ideapad and “U Series” as being “ideal for any and all mobile needs.” The complaint alleged that in so doing Lenovo violated the California Consumer Legal Remedies Act, the California Unfair Competition Law and that the company breached express and implied warranties to the purchasers of the Ultrabook computers.

For complete information on the Lenovo Ultrabook class action settlement visit: https://www.lenovolaptopwifisettlement.com

Ok—Folks—time to adjourn for the week. Have a fab weekend—see you at the bar!

Week Adjourned: 9.26.14 – E-Cigarettes, GNC, BofA

The week’s top class action lawsuits and settlements. Top stories include e-cigarettes, GNC and Bank of America.

Top Class Action Lawsuits

Hmm, has Fumizer been Smokin’ Something? Consumers are fuming over false advertising claims made by a manufacturer of e-cigarettes—so much so they’ve filed a consumer fraud class action lawsuit. Filed by a smoker, not surprising there, the lawsuit accused Fumizer of falsely claiming its vaporizers could help users quit smoking or lead to “healthy smoking” (healthy smoking?—that is an oxymoron—not to mention the visual is totally counter-intuitive).

The e-cigarette lawsuit alleges the company made these claims despite the existence of adverse medical studies. Ya think?

The lawsuit, filed by plaintiff Joseph Sheppard, alleges that the manual for the Fumizer e-cigarette claims it can “help you quit smoking,” which contradicts other marketing materials that disclaim that any use of the e-cigarette is an aid to quit smoking. According to the lawsuit, the disclaimers are made to avoid U.S. Food and Drug Administration (FDA) regulation.

“These representations are contradictory and hypocritical because [the packaging] asserts Fumizer e-cigarettes are ‘neither intended nor marked as a quit smoking aid,’” the complaint states.

Further, the complaint contends that Fumizer misled consumers by referring to healthy smoking, and ignoring studies which show e-cigarettes still contain some of the carcinogens and toxins in tobacco cigarettes, along with additional potentially harmful chemicals.

Sheppard also states in the complaint that vaporizers require users to inhale more deeply compared with traditional cigarettes, which could be harmful. Claims about healthy smoking make consumers feel there are no risks to using the devices, the suit claims.

“There is widespread agreement in the scientific community that further research is necessary before the full negative effects of electronic cigarette use on users’ health can be known and that until then, manufacturers, sellers and distributors of electronic cigarettes should not make any representations relating to the safety, health or benefits, if any, of electronic cigarettes,” the complaint states.

Additionally, the lawsuit notes that Fumizer fails to list the ingredients for its products, thereby preventing consumers from being able to make an informed decision regarding whether or not they want to risk inhaling specific chemicals.

“By omitting the ingredients, defendant hides the fact that Fumizer e-cigarettes contain propylene glycol, a product found to cause throat irritation and induce coughing, and thus no longer used by certain of Fumizer’s competitors,” the lawsuit states.

The lawsuit also states that Fumizer’s claims its devices could be used anywhere, citing cities and counties in California that have banned e-cigarettes and public, along with statements that its vaporizers were top quality. However, the plaintiff’s Fumigo 650 Personal Vaporizer allegedly short-circuited, exploded and caused a fire in his home in March, according to the suit.

E-cigarettes that are good for you? Sounds like a Scamorama ding-dong to me.

Top Settlements

OxyElite been Beat? And while we’re on the subject of too good to be true—GNC Holdings Inc, the maker of USPLabs OxyELITE Pro just agreed to settle a class action that alleged the diet supplement does everything but take the garbage out. Unfortunately, it seems that included associated liver damage, which got the diet supplement pulled from the market by the FDA last November.

The ensuing lawsuit alleged GNC sold the supplements, which contain dimethylamylamine, better known as DMAA, and aegeline, despite widespread reports that the products cause severe liver damage.

This week, GNC agreed to pony up $2 million to shut the suit down. The GNC settlement motion, filed in the Northern District of Florida, asked the court to sign off on the deal, which will provide reimbursements for consumers who bought USPlabs’ OxyElite Pro and Jack3d lines of products.

Heads up—the settlement class includes anyone who bought the USPlabs products between Aug. 17, 2012, and the date of final approval, according to the motion. Eligible class members will receive $35 per container of OxyELITE Pro purchased, $20 per container of Jack3d and $20 per container of VERSA-1.

The case is Velasquez et al. v. USPLabs LLC et al., case number 4:13-cv-00627, in the U.S. District Court for the Northern District of Florida.

Force-placed Insurance Scams made the news this week, with final approval granted for a $31 million settlement of seven proposed force-placed insurance class actions, all alleging Bank of America NA (BofA) illegally forced homeowners to buy excessive amounts of flood insurance. It’s a lottery where the bank always wins, it seems. But not in these cases.

Approved by a federal judge in Oregon, the settlement will see BofA pay $31 million into a settlement fund, with plaintiffs receiving $2,500 each as an incentive award. The approval order also calls for certification of a class for settlement purposes only.

The lawsuits were filed in 2011 alleging BofA sent letters to homeowners and other borrowers informing them that they carried insufficient flood insurance because they lived in special flood zones, where there was a high risk of flooding and associated hazards. However, there is no federal requirement for homeowners living in those areas to carry additional insurance, the lawsuits claimed. BofA allegedly ignored proof sent by the plaintiffs demonstrating that they med the allegedly unnecessary requirement.

Under the terms of the settlement, BofA will make a series of changes to its insurance practices, including not taking any commission from force-placed flood insurance for three years. The bank also agreed to cease giving out opt-out letters from the forced policies in some of its future mailings and to refund co-op borrowers for any force-placed insurance that was not required by their loans.

The case is Larry Arnett et al. v. Bank of America NA. et al., case number 3:11-cv-01372, in the U.S. District Court for the District of Oregon.

Ok – Folks –time to adjourn for the week. Have a fab weekend –see you at the bar!

Week Adjourned: 9.19.14 – GNC, La-Z-Boy, Meriter Health

The week’s top class action lawsuits and settlements. Top stories include GNC, La-Z-Boy and Meriter Health

Top Class Action Lawsuits

Supersize me—or not—as the case may be. After all, if it sounds too good to be true… then maybe Magna-Rx Inc, is promising just a tad more than it can deliver. The supplement maker GNC got hit with a proposed consumer fraud class action lawsuit this week alleging the labeling on its male strength and performance enhancement supplement misleads consumers by implying it is an effective aphrodisiac. According to the Magna-Rx lawsuit, the company falsely markets “Magna-Rx+” as a medically endorsed aphrodisiac, although the supplement, a blend of herbal and root extracts, has never been scientifically studied, and there is no proof that its ingredients have an effect on male strength and performance. In plain English—snake oil.

In the complaint, Trevor Dixon, the plaintiff, states that he purchased Magna-Rx+ for $50 in March 2013, from a GNC store. In January 2014 Dixon discovered the company had violated California’s unfair competition and false advertising laws and Consumer Legal Remedies Act, as well as the Federal Food, Drug and Cosmetic Act, by marketing the supplement as an aphrodisiac. Further, as an over-the-counter drug sold as an aphrodisiac, Magna-Rx+’s label should have been evaluated by the U.S. Food and Drug Administration, the complaint states.

Magna-Rx+ includes the ingredients: horney goat weed (WTF?), muira puma, Asian ginseng, oat straw and catuaba. However, none of these are safe and effective for OTC use as an aphrodisiac,” the lawsuit states. “The FDA bars these false, misleading and unsupported by scientific data label claims.” Is there even such a thing as horney goat weed?
Wait—there’s more—“Further, consuming such random herbs and herbal extracts presents a risk of an allergic or other adverse reaction without any offsetting benefit,” the complaint states.

The complaint also notes that the president of Magna-Rx testified in a deposition that the company never scientifically tested Magna-Rx+’s efficacy. Only a few ingredients may be effective at treating certain conditions, none of which includes male virility, according to the suit.

According to the lawsuit, the Magna-Rx+ label contains the phrase “Dr. Aguilar’s Original,” suggesting that Magna-Rx was developed by medical professionals. However, Dr. Aguilar is not a licenced medical practitioner in the US, but has a small storefront ‘alternative medicine’ clinic in Mexico. And, no one from Magna-Rx has ever interacted with Aguilar. That’s encouraging.

Additionally, the complaint cites the phrase “Real Doctors, Real Results,” which appears on the product labeling and suggests Magna-Rx+ is medically endorsed. According to the suit, the “Rx” in the product’s name further implies that it is prescription-strength, and “Magna” indicates that it is effective in increasing male strength and performance.

Boy—this stuff makes the Tooth Fairy sound plausible. Wonder what it does do…

La-Z-Boy living up to its name…. in that it’s been a bit lazy about accommodating people with disabilities who need wheelchair access to their stores. So, the company now finds itself on the end of a discrimination class action lawsuit alleging its stores are not fully accessible to the disabled because they lack handicapped parking and wheelchair-accessible restrooms, in violation of California’s Unruh Civil Rights Act and Disabled Persons Act.

Filed in Los Angeles, by lead plaintiff George Zepeda, the complaint alleges La-Z-Boy discriminates against disabled California residents by not requiring its facilities be accessible for handicapped individuals. Zepeda claims that there are several La-Z-Boy stores that do not have accessible restrooms, handicapped parking spaces and appropriate accessibility signage. The lawsuit also states that the furniture manufacturer has so far refused to remedy the situation.

“As a result of that failure to remedy existing barriers to accessibility, plaintiff and others similarly situated have been denied access to the benefits of the goods, services, programs, facilities and activities of defendant’s stores, and have otherwise been discriminated against and have suffered damages caused by defendant’s accessibility violations,” the complaint states.

In the complaint, Zepeda states that in June he purchased end tables and a stationary chair at a La-Z-Boy’s in California. He alleges that as a result of being denied full and equal access, he was discriminated against. Zepeda is restricted to a wheelchair and therefore, because the store did not have fully accessible restrooms, he says he was discriminated against.

Specifically, Zepeda claims that opening the restroom door required excessive force to open and keep open while he entered and exited the restroom because the door closer was not adjusted to allow the door to remain open long enough for him to wheel himself inside without assistance.

Further, once he was inside the washroom, he was unable to use the facilities because the toilet seat was “excessively high” from the floor, making it hard for him to maneuver from his wheelchair to the toilet seat, and also because the toilet paper dispenser, toilet seat cover dispenser and soap dispenser were mounted too high for him to reach. He says he also couldn’t wash his hands because the pipes under the lavatory were not covered and he was worried about burning his legs on them.

Zepeda also states that he wrote La-Z-Boy management about the issues but he never received a response. According to the lawsuit La-Z-Boy has a number of locations in Southern California with similar accessibility issues, including numerous restroom violations and a lack of disabled and van parking spots, and that the company has not acknowledged any of his complaints.

“The … violations are ongoing and continue to result in the plaintiff and unnamed mobility impaired class members suffering discrimination as a result of being denied full and equal access to these stores,” the complaint states.

The lawsuit is seeking certification of a class of all mobility-impaired or wheelchair-bound people in California who have patronized La-Z-Boy stores. The complaint states the class will consist of thousands of members, since census statistics show that more than 150,000 non-institutionalized people over age 16 in California use wheelchairs.

Top Settlements

About those pension checks….employees at Meriter Health noticed they weren’t on the money. But this week they announced an $82 million settlement of an an employment lawsuit filed in 2010 alleging Meriter Health Services improperly calculated employee pensions. The settlement will see some 4,000 Meriter Health Services employees receive an average of $14,000 each in damages. A dozen people named as plaintiffs will each get an additional $5,000, and another 2,000 people will each receive about $250. Overall, more than $56 million will be allocated to about 6,000 people in 11 classes in the suit. Nice going!

The lawsuit alleged Meriter’s pension plan miscalculated benefits from 1987 to 2014. Both parties have agreed to the $82 million settlement, but a final settlement hearing is scheduled for some time in January.

Meriter Health Services became part of Iowa-based UnityPoint Health this year.

Ok—Folks—time to adjourn for the week. Have a fab weekend—see you at the bar!

Week Adjourned: 9.12.14 – SkinMedica, Intermountain Hotels, NFL Cheerleaders

The week’s top class action lawsuits and settlements. Top stories include SkinMedica skin care, Intermountain Hotels including Hilton and Marriott, and the Oakland Raiders.

Top Class Action Lawsuits

Is the fountain of youth cancer-inducing? Possibly…at least according to a dangerous drugs class action lawsuit filed this week against Allergan Inc’s subsidiary SkinMedica Inc. The lawsuit claims that the cosmeceutical company withheld information from consumers regarding its anti-aging creams specifically, that they contain human foreskin cells, and that these creams pose a risk for cancer.

Filed by plaintiff Josette Ruhnke, the complaint alleges that the sale of SkinMedica Inc.’s line of “Tissue Nutrient Solution” (TNS) products containing the compound “NouriCel” is illegal, because the products haven’t received approval from the U.S. Food and Drug Administration. U.S. District Judge David O. Carter ruled the case can go forward.

According to the complaint, TNS products are marketed for “skin rejuvenation” purposes. However, they contain a proprietary mix of human growth factors that originate from human foreskin tissue. The products are trademarked as NouriCel. The TNS creams have the ability to initiate cell division, which, according to Ruhnke’s complaint, are thought to contribute to the growth of tumor cells or other abnormalities.

The complaint, filed in 2013, also claims that, in addition to lacking FDA approval, SkinMedica had not performed required controlled safety studies before marketing TNS products. Judge Carter rejected arguments from SkinMedica that TNS products aren’t drugs under the Federal Food, Drug and Cosmetic Act because the growth factors they contain are “naturally occurring.”

“SkinMedica promotes TNS Products as ‘cosmeceuticals’ containing a mix of endogenous ‘growth factors’ for skin rejuvenation. The term ‘cosmeceutical’ conveys that a product is both a cosmetic and pharmaceutical,” Judge Carter wrote. “A product which occurs naturally or is derived from natural ingredients is capable of regulation as a drug.”

Additionally, Judge Carter noted that the creator of NouriCel has stated that more double-blind and controlled studies are needed to confirm the preliminary clinical effects of growth factor products. Judge Carter also cited the fact that the complaint stated that the two FDA-approved products on the market containing human growth factors provide prominent safety warnings the TNS products lack.

“The thrust of defendants’ argument is essentially that the evidence does not support plaintiff’s claim,” Judge Carter wrote. “Plaintiff’s allegations, taken as true, suggest that there are serious safety concerns associated with TNS Products.”

The case is Josette Ruhnke v. SkinMedica Inc., et al, case number 8:2014-cv-00420, in the U.S. District Court for the Central District of California.

It seems that growing old gracefully may be vastly underrated.

Hotels less than Hospitable? What would TWA be without our weekly update on unpaid wages and overtime class action lawsuits. This week, workers at the Hilton and Marriott properties filed against Intermountain Management LLC alleging the company failed to pay overtime and other wages due to employees. The lawsuit contends that Intermountain Management misclassified its current and former workers so as to make them exempt from payment for overtime and wages and missed rest and meal breaks.

Further, former Intermountain manufacturing engineer Indica Heredia, who filed the lawsuit, alleges the company failed to pay all wages due to employees when they were terminated.

“Intermountain routinely understaffs knowing that scheduled shifts will not permit employees to take their legal meal and rest periods and will require them to work through meal and rest periods as well as off the clock,” the complaint states. Heredia alleges the Louisiana-based hospitality management company had a policy of making its employees work five-hour shifts or longer without a 30-minute meal break within the first five hours or compensation for the missed break and didn’t pay all wages due to ex-employees when they were terminated.

Heredia performed routine system testing on Intermountain products, among other duties, and claims he was misclassified as exempt from overtime compensation in violation of California labor law, the complaint states. The lawsuit proposes the class would include current and former hourly, nonexempt employees who worked in the four years preceding the filing of the complaint at hotels owned, managed or operated by Intermountain in California, including Residence Inn, Courtyard Inn, TownePlace Suites, Fairfield Inn & Suites, Hampton Inn & Suites, Hilton Garden Inn and Homewood Suites hotels.

The lawsuit alleges Intermountain Management violated California labor law, specifically that the class, consisting of at least several-hundred employees, was not paid all regular and overtime wages, given meal and rest periods, or provided wage statements and personnel records.

Heredia seeks unpaid wages at time-and-a-half or double-time rates for all overtime work, as well as damages and penalties and a declaratory judgment against the company.

The case is Indica Heredia v. Intermountain Management LLC et al., case number 5:14-cv-04006, in the U.S. District Court for the Northern District of California.

They owe, they owe—so off to court they go…

Top Settlements

And while we’re on the subject of unpaid wages …

Hip-Hip-Hooray! A $1.25 million settlement has been reached in the landmark unpaid wages class action pending against the Oakland Raiders football team. The employment lawsuit was filed by the Oakland Raiders’ Cheerleaders alleging wage theft and other unfair employment practices.

If approved, the NFL cheerleader settlement would cover 90 cheerleaders who worked for the Raiders between 2010 and 2013 seasons. The Raiderettes would receive an average of $2,500 to $6,000 per season, depending on which seasons they worked, according to a joint statement by the parties.

Under the deal, Lisa T. and Sarah G., a second named plaintiff, would each receive a class representative payment of $10,000. The settlement is subject to court approval. A hearing on the motion has been scheduled for September 26.

Filed by lead plaintiff and Raiderette “Lacy T., the lawsuit alleged ” in January, alleged that the Raiders withheld all pay from the Raiderettes until after the end of the season, didn’t pay for all hours worked, and forced the cheerleaders to pay many of their own business expenses.

According to the class action, pursuant to their contract, the Raiderettes were each paid $1,250 for working a full season, amounting to less than $5 per hour for the time they spent rehearsing, performing and appearing at events. Further, the lawsuit claimed wages were also withheld until after the end of the season.

The case is Lacy T. et al. v. The Oakland Raiders et al., case number RG14710815, in the Superior Court of the State of California, County of Alameda.

Ok – Folks –time to adjourn for the week. Have a fab weekend –see you at the bar!

Week Adjourned: 9.5.14 – Allstate, Radiology Bills, BofA Phone Calls

The week’s top class action lawsuits and settlements. Top stories include Allstate Insurance, Radiology Bills and BofA Phone Calls.

Top Class Action Lawsuits

You’re in good hands with Allstate? Maybe not so much if you’re a claims adjuster. This week the Insurance giant got a surprise. It’s green lights a go-go for a long-standing unpaid overtime class action against, involving 800 Allstate employees in California who allege Allstate had a practice or unofficial policy of requiring its claim adjusters to work unpaid off the-the-clock overtime in violation of California labor law.

The Allstate lawsuit was brought by casualty adjuster Jack Jimenez in 2010, on behalf of any claims adjuster working for the insurer in the state of California since September 29, 2006. The complaint alleges that Allstate’s managers are required to stay within an annual budget that includes overtime compensation, and that the performance evaluations and bonuses paid to managers are dependent on how closely they conform to the budget. This would mean that a manager would have a disincentive to approve and report overtime, the class claims.

The class action alleges that Allstate sees repeated requests for overtime as a performance issue to be addressed with individual workers “including “suggestions” on how a claims adjuster can be better trained on efficiency and alternative methods of getting the work done that do not require overtime. Managers would often see workers performing off-the-clock work outside of their scheduled shifts but not inquire if overtime was requested, the workers say.

The plaintiffs contend Allstate’s allegedly illegal conduct has been widespread and consistent. The class action suit alleges that Allstate had not paid overtime to current and former California-based claims adjusters in violation of California Labor Code and had not paid adjusters for missed meal breaks and that Allstate had not timely paid wages upon termination in violation of the California Labor Code. In addition, the lawsuit alleges that Allstate engaged in unfair competition in violation of California Business and Professions Code.

FYI—the case is: Jack Jimenez v. Allstate Insurance Company – CV 10-8486 AHM (FFMx).

How much for that X-Ray? Two Florida women recently filed a class action lawsuit alleges JFK Medical Center and parent company HCA, Inc., are in violation of Florida’s Deceptive and Unfair Practices Act. Specifically the plaintiffs allege they and others like them were billed exorbitant and unreasonable fees for emergency radiological services covered in part by their Florida Personal Injury Protection (PIP) insurance.

Under Florida’s No Fault Car Insurance Law, drivers are required to have $10,000 in PIP insurance, which has a 20 percent out-of-pocket deductible. The complaint, filed in the Thirteenth Judicial Circuit Hillsborough County, charges JFK Medical Center, of Atlantis, Fla., and other Florida HCA facilities with billing PIP patients’ rates for radiological services that are 20 to 65 times higher than the rates charged for similar services to non-PIP patients.

The lawsuit was brought by Marisela Herrera and Luz Sanchez, both of whom were PIP-covered patients who were treated through JFK Medical Center’s emergency department after their automobile accidents in April 2013 and May 2013, respectively. Herrera and Sanchez each received a CT of the brain for $6,404, a CT scan of the spine for $5,900, and a thoracic spine X-ray for $2,222. Herrera also received a lumbar spine X-ray for $3,359.

According to the South Florida Medicare rate, a standard used for customary and reasonable medical service rates, the brain CT scan provided is $163.96; the cervical spine CT scan, $213.14; and the thoracic spine x-ray, with three views, $38.

The complaint charges that because of the exorbitant rates, both Herrera’s and Sanchez’s $10,000 PIP coverage were prematurely exhausted and both were billed thousands of dollars by JFK Medical Center for radiological services not paid for by their PIP insurers.

The complaint also charges breach of contract since both women entered into a “Condition of Admission” contract that provides that patients must pay their accounts at the rates stated in the hospital’s price list. Neither woman was provided a price list at the time of medical treatment.

Plaintiffs are represented by Cohen Milstein Sellers & Toll PLLC, Boldt Law Firm, of Hollywood, FL, and Gonzalez & Cartwright, P.A., of Lake Worth, FL.

Top Settlements

Ah—one ringy dingy—that will be $32 million thank you! That’s right folks—a $32 million settlement has been reached in a Telephone Consumer protection Act (TCPA) class action pending against Bank of America (BofA). The BofA lawsuit claims the bank and FIA Card Services, also a defendant, violated the TCPA when it used automatic telephone dialing systems and/or an artificial or prerecorded voice to contact individuals without obtaining prior express consent from those individuals.

The ruling certifies a class for settlement purposes including all individuals who received allegedly unauthorized automated phone calls from BofA regarding mortgage loan and credit card accounts between 2007 and 2013. The class also includes people who allegedly received unauthorized text messages to their cell phones, between 2009 and 2010. The class is thought to total roughly 7 million members.

The preliminary settlement, if approved, could be an amount the parties claim to be the largest ever obtained in a finalized TCPA settlement, according to an order filed Friday approving the deal.

In addition to the monetary portion of the settlement, Bank of America has improved its servicing systems such that they prevent the calling of a cellphone unless a loan servicing record is systematically coded to reflect the customer’s prior express consent to receive calls via their cell phone.

Ok Folks–time to adjourn for the week. Have a fab weekend—see you at the bar!

Week Adjourned: 8.29.14 – Whole Foods, Mazda, Daimler Trucks

The week’s top class action lawsuits and settlements–top stories include Whole Foods, Mazda, Daimler Trucks.

Top Class Action Lawsuits

Whole Foods not telling the Whole Story—that`s the contention in one of the latest consumer fraud class actions to be filed this week. The problem? The alleged mislabelling of the sugar content in Whole Foods Greek Yogurt. The class action alleges the grocery retail giant drastically understates the sugar content of its store-brand Greek yogurt so as to give it a competitive advantage.

According to the Whole Foods lawsuit, the label on Whole Food’s “365 Everyday Value Plain Greek Yogurt” states the product contains only 2 grams of sugar per serving. However, the plaintiffs claim that recent tests show the actual sugar content is nearly six times the stated amount. Just what the heck is “everyday plain value” anyway? What does that mean? I digress…

Filed by Los Angeles residents Chas Jackson and Josh Koffman, the lawsuit alleges that tests, done by Consumer Reports and published online in July, show an average of 11.4 grams of sugar per serving in six samples taken from six separate product lots. These results put the sugar content of Whole Food’s yogurt in the same region as a typical ice cream sandwich, which the US Department of Agriculture estimates to be around 13 grams of sugar.

“By falsely claiming a sugar content of only 2 grams per serving, [Whole Foods] sought to give itself a competitive advantage and to use this false statement of contents to induce consumers to purchase” the yogurt, the lawsuit states.

The plaintiffs claim that this discrepancy belies statements on Whole Foods’ website, which “brags” that a registered dietician reviews the labels on each of the company’s products for “accuracy and completeness.”

“Unless this statement on defendant’s website is false, then Whole Foods Market was fully aware of the contents of its store-brand plain Greek yogurt and of the fact that the yogurt’s actual sugar content was dramatically higher than what is stated on the label,” the lawsuit states.

Despite the publication of the Consumer Reports test results on July 17, Whole Foods has not removed the yogurt from its shelves and continues to market the product to consumers with the exact same allegedly inaccurate label, the plaintiffs claim.

In the lawsuit, Jackson and Koffman claim they purchased the yogurt on various occasions since 2000, and they each bought the product within the past month. They are seeking to represent a class of all Californians who purchased the yogurt since Aug. 26, 2000, a group they estimate at more than 10,000 people. Yeah, I would think so…

Another Car Maker gets Slapped with a Lawsuit… this time it’s a consumer fraud class action lawsuit filed against Mazda Motor of America Inc, in New Jersey federal court. The complaint alleges the automaker knew of an engine valve defect affecting certain model year Mazda vehicles, and failed to warn consumers. Further, the lawsuit claims Mazda refused to repair the alleged defect in breach of warranty.

According to the Mazda lawsuit complaint, Mazda falsely advertises and guarantees that its new vehicles are defect-free, when in fact, the company is aware that some of its vehicles’ engines have faulty continuous variable valve-timing assembly. This defect causes the affected engines timing chain to become loose or detach, which can lead to partial or total engine failure. While the defect is covered under Mazda’s warranty, the automaker refuses to honor the warrant and repair the defect.

“Mazda’s fraudulent and unlawful conduct has resulted in substantial harm to … the class. As a result of the defect, plaintiff and the class have not received the economic benefit of their bargain, overpaid for their vehicles and/or made lease payments that were too high, and suffered further damages by incurring out-of pocket costs associated with repairing the [variable valve-timing] assembly defect in their vehicles,” the complaint says.

In the lawsuit, lead plaintiff James Stevenson states he purchased a 2008 Mazda CX7 vehicle from a New Jersey dealership in 2009. The vehicle came with a warranty stating that it is free of defects. In 2012, his warranty was extended to seven years past the original warranty date. However, in November 2013, the vehicle experienced an engine valve-related failure. According to the complaint, Stevenson alleges that, despite regular maintenance, and the car still being under warranty, Mazda refused warranty coverage.

In the defective automotive lawsuit, Stevenson v. Mazda Motor of America Inc., case number 3:14-cv-05250, Stevenson alleges the valve defect occurs in Mazda’s L-series engines and that the automaker has known about the defect since at least 2007, when it issued a technical service bulletin about the problem to its dealers. While Mazda made several unsuccessful attempts to fix the issue internally, the automaker failed to notify consumers of the defect and continued to market its vehicles as defect-free, according to the class action.

Top Settlements

Auto Worker Medical Benefits Settlement… Good news! This week a settlement was reached in an employment class action lawsuit pending against Daimler Trucks North America LLC. The lawsuit claimed the truck manufacturer illegally cut workers’ benefits. Filed by a group of retirees and the United Auto Workers, the lawsuit claims Daimler told the UAW that it would cut medical benefits starting on January 1, because the medical benefits it agreed on were not vested.

Plaintiffs Alan J. Meyers, Rocco H. Colanero, Allen Penley and Eddie Warren Bridges, along with the International Union of United Automobile, Aerospace and Agricultural Implement Workers of America, filed the lawsuit in May on behalf of a class of former employees who were represented by the union in collective bargaining and who currently are receiving retiree medical benefits from Daimler Trucks, together with their covered and surviving spouses, according to the complaint.

According to the Daimler Trucks benefit settlement agreement, Daimler will contribute $480 million to a new employee benefit plan. According to court documents, the company, union and lead plaintiffs said the settlement would cover 1,100 proposed class members, and that the agreement is consistent with a recently ratified memorandum of understanding related to the retiree benefits owed to the active and recently retired UAW-represented employees.

Ok, Folks–time to adjourn for the week. Have a fab weekend–see you at the bar!

Week Adjourned: 8.22.14 – Gap, Walgreens, LinkedIn

The week’s top class action lawsuits and settlements featuring lawsuits involving the Gap, Walgreens and LinkedIn.

Top Class Action Lawsuits

Mind the Gap—the Credibility Gap that is. This week, two separate consumer fraud class action lawsuits were filed against The Gap Inc., Banana Republic LLC and Saks Fifth Avenue LLC in a California court alleging they deceived customers as to the quality and supposed savings of outlet store items.

According to the lawsuit against The Gap and Banana Republic, which The Gap owns, the company hides a “Factory Store” label with three squares on it, on clothing it sells at its outlets. The lawsuit claims that the label indicates the clothes were made specifically for the outlet and are of inferior quality to those sold in the traditional Gap and Banana Republic retail outlets.

In the Saks Fifth Avenue lawsuit, plaintiffs allege the retailer uses a manufactured “Market Price” inducing the consumer to believe that they would pay a higher price for the price at a traditional Saks Fifth Avenue store, in addition to putting the lower outlet price on the items, creating the impression that consumers are getting a discount.

However, the lawsuit contends that items sold at Saks Off 5th clearance stores were made specifically for the outlet. Named plaintiff Tova Malik says it was this perceived price savings that led her to purchase items from a Saks Off Fifth store at an outlet mall in Camarillo, California.

“Defendant labels its Saks Off 5th clothing with a tag that shows a markedly lower price from the “Market Price,” which corresponds to the price that appears to be used in traditional Saks Fifth Avenue retail stores,” the lawsuit states. “Plaintiff was lured in by this large price difference and as a result purchased items of clothing and accessories from defendant’s Saks Off 5th in July of 2014.”

The plaintiffs for the Gap and Saks Fifth Avenue lawsuits are represented by Michael Louis Kelly, Behram V. Parekh and Heather M. Baker of Kirtland & Packard LLP.

The cases are Malik v. Saks Fifth Avenue LLC, case number BC555134; and Rubenstein v. The Gap Inc., case number BC555010, in the Superior Court of the State of California, County of Los Angeles.

A Prescription for Walgreens: Pay the overtime. Yup. This week the national pharmacy chain got hit with an unpaid overtime class action lawsuit filed in California federal court by pharmacists alleging the company violated California labor law and the Fair Labor Standards Act (FLSA) by failing to pay them minimum wage and overtime for training hours and time spent maintaining their uniforms.

According to the Walgreens lawsuit, lead plaintiff Debra Short was a nonexempt pharmacist with the company from September 1997 to April 2012. During that period, Walgreens denied its pharmacists overtime hours for training and failing to pay them all of their owed wages upon termination.

“As a result of defendants’ unlawful conduct, plaintiff and the other class members have suffered damages in an amount, subject to proof, to the extent they were not paid the full amount of wages earned during each pay period during the applicable limitations period, including overtime wages,” the complaint states.

Under the California Labor Code, if an employer does not maintain its own employee uniforms, then it is obligated to pay employees who must wear uniforms for one hour per week of uniform maintenance. According to the lawsuit, Walgreens failed to pay its pharmacists minimum wage for uniform maintenance time each week.

Further, the lawsuit claims that Walgreens failed to pay its pharmacists for class training time, which required at-home work and other training, all of which was necessary so the pharmacists would become certified in immunization and CPR administration.

Short also alleges that Walgreen’s pharmacists are required to work more than seven days in a row without rest days and that the company fails to compensate them for all of their wages earned upon termination of their employment, in violation of California Labor Code.

Heads up folks—the lawsuit is seeking certification of five subclasses, including one in California comprising pharmacists who were employed over the past four years and one comprising pharmacists across the country over the past three years. Short is seeking payment of all unpaid wages and damages.

The case is Short v. Walgreen Co. , case number 3:14-cv-03747, in the U.S. District Court for the Northern District of California.

Top Settlements

So LinkedIn may be about to settle a data breach class action lawsuit for $1.25 million.

Plaintiffs in a federal class action lawsuit are seeking approval of the settlement, potentially ending the action which stems from a 2012 data breach of LinkedIn Corp. The lawsuit claims the social media site misled customers about its data protection policies in connection with the data breach.

In the lawsuit, lead plaintiff Khalilah Gilmore-Wright claimed she and other class members purchased premium LinkedIn accounts believing that the company provided industry-standard security. However, LinkedIn’s security was in fac outdated and insufficient, resulting in a massive data breach in June 2012 in which a hacker posted 6.5 million user passwords onto the Internet.

According to the terms of the proposed LinkedIn settlement, if approved, LinkedIn would set up a $1.25 million fund from which class members could receive as much as $50. The class would include everyone who paid a fee to LinkedIn for a premium subscription between March 2006 and June 2012. Gilmore-Wright would receive $7,500. There are approximately 800,000 premium subscribers.

The case is In re: LinkedIn User Privacy Litigation, case number 5:12-cv-03088, in the U.S. District Court for the Northern District of California.

Ok Folks—time to adjourn for the week. Have a fab weekend–see you at the bar!

Week Adjourned: 8.15.14 – Anheuser-Busch, SpaceX, FedEx

The week’s top class action lawsuits and settlements. Top stories include Anheuser-Busch, SpaceX, FedEx.

This week it’s all about getting paid!

Top Class Action Lawsuits

Hey Bud–this one’s for you! The maker of Budweiser—Anheuser-Busch—is facing an unpaid overtime class action lawsuit filed in California federal court alleging the company failed to pay its drivers overtime. The lawsuit was filed by Charles Hill and Joe Correa, each of whom drove delivery trucks for Anheuser-Busch in California, allege “Anheuser-Busch’s violations … were willful and intentional.” They are also claiming that the beverage giant implemented pay structure that discouraged workers from taking required meal breaks and rest periods, in violation of the Fair Labor Standards Act (FLSA) and California labor law. Nice! But we know this song…you work the hours, you don’t get paid, you can’t take your meal and rest breaks…. Why do so many big corporations have such a hard time paying their people? What is that about? Try it and see if you can get away with it? Then so much the better?

Well, not in this case…According to the Anheuser-Busch lawsuit, Hill has worked for Anheuser-Busch from about June 1999 through to the present, and Correa from 1985. During this time, a typical day work day for them involved picking up alcoholic beverages from a storage facility and delivering them to retail locations throughout the state of California. Drivers are allegedly paid a flat rate per day plus about 10 cents per case for every case delivered. Hill and Correa claim that the drivers can often work between eight to ten hours per day, which results in more than 40 hours per week, yet they are not compensated for the overtime.

Further, the lawsuit claims that despite there being a written policy in place regarding employees being able to take meal and rest breaks, Anheuser-Busch refused to allow the drivers to take them. The company further established a payment structure discouraging its drivers from taking meal and rest breaks because it would be impossible to be paid for the time.

The plaintiffs also allege the company does not pay its drivers for all hours worked including regular hours, because the company locates its clock out location in a remote area “to encourage drivers to clock out prior to finishing all their work.”

“The drivers routinely would clock out first and then proceed to the warehouse to finish their work duties [saving] them a trip back to the clock-out location,” the lawsuit states. “Anheuser-Busch knew about this practice but continued to allow the drivers to perform the work.”

The nitty gritty—the class action lawsuit seeks to represent all Anheuser-Busch truck drivers who drove routes exclusively in California during a four-year period prior to the filing of the instant case.

Additionally, the plaintiffs seek to represent a second “rest break” class comprised of all Anheuser-Busch’s California drivers who were paid a flat daily rate plus a piece rate for each case delivered over the course of the same four year period.

The FLSA claims are being brought as a collective action for Anheuser-Busch drivers during a three-year period preceding the complaint. The case is Charles Hill et al v. Anheuser-Busch InBev Worldwide Inc., case number 2:14-cv-06289, in the U.S. District Court for the Central District of California.

Failure to WARN? Some 400 employees—sorry—ex-employees at Space Exploration Technologies Corporation (SpaceX) allege they were just laid off in violation of the Worker Adjustment and Retraining Notification Law (WARN ACT) act, according to a wrongful termination lawsuit just filed. The plaintiffs are alleging the company has also violated California labor law when it laid off those factory workers—which incidentally total about 11% of the company workforce—without proper notice.

FYI—The WARN ACT requires that every industrial or commercial establishment in California that employed 75 or more people in the last 12 months “may not order a mass layoff [defined as 50 or more employees in a 30 day period], relocation, or termination at a covered establishment unless, 60 days before the order takes effect” the employer gives written notice of the order to the employees, California “Employment Development Department, the local workforce investment board, and the chief elected official of each city and county government within which the termination, relocation, or mass layoff occurs.”

Filed by employees at company headquarters in Hawthorne, CA, the lawsuit is seeking class action status and damages for back pay, wages, injunctive relief, restitution, and civil penalties for illegal mass layoffs of 200 to 400 factory workers on or about July 21st.

Go get ‘em!

Top Settlements

FedEx Ground will be delivering $2.1 million in funds as settlement of a California labor law class action lawsuit brought. Filed by a group of current and former package handlers, the lawsuit alleged the company failed to provide proper meal and rest breaks.

Lead plaintiff Aaron Rangel alleged in the class action filed in September 2013, that FedEx Ground Package System Inc., was in violation of the California Labor Code and the state’s Unfair Competition Law.

As part of the settlement motion, about $7,500 will be set aside as an award for Rangel. Additionally, FedEx will be required to clarify its meal and rest period policies, which the agreement says could itself be worth $100,000.

Rangel, a former FedEx employee, said FedEx was required, but failed to provide, class members who worked two shifts in a workday a meal period, as well as a second rest period. He also said FedEx failed to provide pay employees for time spent in security checks.

If approved, the settlement will provisionally certify a class of current and former nonexempt FedEx package handlers in California who worked for the shipping company at any time from Sept. 24, 2009, through either Sept. 1, 2014, or the date of preliminary settlement approval, whichever is earlier.

The settlement agreement weighs a worker’s share based on whether he or she was a part-time or full-time employee, with more money going toward those who were full-time or who worked more than one four-hour shift in a workday. It also gives more money to former employees who were entitled to waiting time compensation.

If there is any unclaimed money, it will not revert back to FedEx, but instead be allocated toward those who did claim a share of the settlement fund, according to the terms of the agreement.

The case is Aaron Rangel v. FedEx Ground Package System Inc et al, case number 8:13-cv-01718, in the U.S. District Court for the Central District of California.

Ok – Folks –time to adjourn for the week. Have a fab weekend –see you at the bar!

Week Adjourned: 8.8.14 – Gap, Hooters, MetLife

The top class action lawsuits and settlements for the week–top stories include the Gap, Hooters and MetLife

Top Class Action Lawsuits

Gap giving a whole new meaning to Loss Leaders …so much so they got slapped with a consumer fraud class action this week. The issue is Gap’s alleged misleading advertising over sale items…you know—it’s for sale—but the one next to it isn’t—that kind of thing… Essentially, the Gap class action lawsuit claims the clothing retailer uses advertisements for sale items that do not clearly indicate sale exclusions both in its stores and online.

The Gap lawsuit, entitled Misbah Etman, et al. v. The Gap Inc., et al., Case No. BC547161, in the Superior Court of the State of California, County of Los Angeles, alleges that lead plaintiff, Misbah Etman, was misled regarding which items were included in a sale display, which resulted in her paying full price for an item when she purchased it.

The backstory, in legal speak: “Because of the advertisement, Plaintiff believed that all the clothing on the rack bearing the advertisement was on sale at the price displayed on the advertisement and/or subject to the discount stated on the advertisement,” the lawsuit states. “Plaintiff looked through the clothing, selected three items she liked, waited in line for an open register, [Etman] found out at the register that Defendant would not sell her one of the items at the price displayed on the advertisement or would not discount one of the items in accordance with the advertisement.” Consequently, “[a]lthough she had been misled, Plaintiff purchased the non-discounted item and paid the higher price Defendant demanded.”

An example of an alleged advertisement Gap emailed “with a hyperlink to Defendant’s website stating clearly in dark letters against a white background ‘Hours to Shop!; Happy Monday; 40% Off Your Purchase; Ends Tonight.’” However, continues the complaint, “the email also states in barely noticeable lettering against a colored background ‘EXCLUSIONS APPLY.”

Further, “[o]nce a consumer clicks the hyperlink…the consumer is taken to Defendant’s website to shop [and], [w]hile shopping, Defendant’s website does not identify for consumers the items that are included in the sale, nor does it identify that items that are excluded from the sale,” alleges the Gap class action lawsuit.” And, “Defendant’s website does not even disclose whether an item is included in or excluded from the sale when a consumer selects an item to place in the consumer’s ‘shopping cart,’” the lawsuit states.

The consumer fraud lawsuit further claims that Gap also misleads consumers through its online stores by “enticing consumers to shop for, and to purchase, products from Defendant through Defendant’s website by means of false and misleading advertisements Defendant emails to consumers.”

The lawsuit seeks certification for a proposed Class of all other consumers who purchased products at Gap stores in California, or purchased products on the Gap website while in California, on days when Gap displayed the advertising described in the class action lawsuit.

So—heads up all you California Gap shoppers…

Not caring a Hoot for Hooters Text Messages.…What are you supposed to do when tits and ass just ain’t enough to get bums in seats in anymore (bad pun, I know). Send text messages to advertise your booty. Umm, maybe not. Hooters is facing class action lawsuit alleging the restaurant chain violated the Telephone Consumer Protection Act (TCPA)—just the TCPA? Filed by lead plaintiff Peyman Zandifaez, the lawsuit alleges that on June 14, Zandifaez received an unsolicited text message on his cell phone from Hooters and a second unsolicited text message on July 5.

“The… SPAM text messages were form texts that were sent consumers on mass and just solely to the plaintiff, which is indicative of the use of an automatic telephone dialing system,” the complaint states. “[The] defendant used telephone number 368-32 to send this unsolicited SPAM text message to plaintiff’s cellular telephone.”

The Hooters lawsuit alleges that at no time did the plaintiff provide Hooters with his cellular phone number, through any medium, nor did he consent to receive such an unsolicited text message. Further, the plaintiff alleges that at no time did he sign up for nor use the defendant’s services or products, nor has he ever had any form of business relationship with Hooters.

“Through the unsolicited SPAM text message, defendant contacted plaintiff on plaintiff’s cellular telephone regarding an unsolicited service via an ‘automatic telephone dialing system,’” the lawsuit states. The ATDS has the capacity to store or produce telephone numbers to be called, using a random or sequential number generator, according to the suit.

According to the lawsuit, Zandifaez is charged for incoming calls and text messages and the text message constituted a call that was not for emergency purposes. “Plaintiff did not provide defendant or its agent prior express consent to receive text messages, including unsolicited text messages, to her cellular telephone,” the complaint states. Nice…Go get’em!!

Top Settlements

And as one TCPA lawsuit is filed, so another is settled… This week, in Los Angeles, a settlement agreement was reached in a class action lawsuit against Metlife which alleges a former agent faxed millions of advertisements for life insurance to consumers and businesses in violation of the federal Telephone Consumer protection Act (TCPA).

According to the terms of the MetLife settlement, the company, one of the largest life insurance companies in the US, will pay $23 million to resolve two related lawsuits, one in state court in Illinois and the other in federal court in Florida.

Incredibly, an estimated 1 to 2.8 million recipients of the faxes across the country will be covered by the settlement. The settlement will cover faxes sent between 2008 to 2014, even though the lawsuits focus on faxes sent by the agent between 2010 and 2012.

According to the lawsuits, the former MetLife agent Scott Storkick paid a fax-blasting specialty firm run out of offices in Fort Lauderdale, to help generate leads so that he could maintain his standing as one of the company’s top-performing agents. Ultimately, Storick said that the fax blasting campaign generated between 30 and 50 of the approximately 200 MetLife life-insurance policies he sold annually between 2010 and 2012.

Ok – Folks –time to adjourn for the week. Have a fab weekend –see you at the bar!