Week Adjourned: 2.27.15 – Beneful, Lenovo, Big Tobacco

Beneful logoTop Class Action Lawsuits

An Urgent Heads Up for Dog Owners…Nestle Purina Petcare Company is facing a consumer fraud class action lawsuit alleging its dog food Beneful contains toxic substances which can kill dogs. Filed by Frank Lucido, the lawsuit claims that the dog food is to blame for either the deaths or serious illnesses of thousands of dogs.

The Beneful lawsuit claims that while Beneful is advertised as a healthful and nutritional dog food, the Lucido’s experience and others has been the opposite. Specifically, the lawsuit claims that Beneful dog foods contain propylene glycol, which is “an automotive component that is a known animal toxin and is poisonous to cats and dogs.”

Further, the Lucidos claim that Beneful also contains mycotoxins, which are “a group of toxins produced by fungus that occurs in grains, which are a principle ingredient in Beneful.” The lawsuit cites the Association for Truth In Pet Food, which tested “Beneful Original and found that it contained dangerous levels of mycotoxins.”

According to the complaint, Lucido had a German Shepherd, an English Bulldog and a Labrador. In late December 2014 or January 2015 he purchased his first bag of Beneful dog food which he fed to each dog and which each dog began eating exclusively. On January 15, Lucido’s German Shepherd began to lose a large amount of hair and he began to have an unusual odor. Two days later the German Shepherd became violently ill, the lawsuit claims.

After being examined by a veterinarian, it was determined that the German Shepherd was suffering from internal bleeding in the dog’s stomach and the liver was also malfunctioning, which the veterinarian said was “consistent with poisoning.” Then, on January 23, the Lucidos found their English Bulldog dead in the yard. “Post-mortem veterinary examination revealed signs of internal bleeding in the dog’s stomach and lesions on his liver, much like [the German Shepherd],” the class action lawsuit claims. The Lucido’s Labrador is also now ill and is being tested for similar problems.

According to the lawsuit, the Lucidos “have suffered economic losses including the purchase price of Beneful and veterinary and related medical expenses” as result of the harm Beneful caused their dogs.

The lawsuit states that over 3,000 similar complaints have been posted by dog owners on the Internet “about dogs becoming ill, in many cases very seriously ill, and/or dying after eating Beneful.”

“The dogs show consistent symptoms, including stomach and related internal bleeding, liver malfunction or failure, vomiting, diarrhea, dehydration, weight loss, seizures, bloating, and kidney failure,” the lawsuit states.

The Beneful lawsuit seeks representation for two classes, specifically, a nationwide class and a California subclass for dog owners “who purchased Beneful dog food in the past four years and who incurred any out of pocket costs due to illness, injury or death of their dog resulting from the ingestion of Beneful.”

The class action lawsuit claims Nestle Purina is in breach of implied warranty, breach of express warranty, negligence, negligent misrepresentation, strict products liability, violating California’s consumer legal remedies act, violating California’s Unfair Competition Law, and violating California’s False Advertising Law.

The Lucidos are represented by Jeffrey B. Cereghino of Ram, Olson, Cereghino & Kopcyzynski, by John Yanchunis of Morgan & Morgan Complex Litigation Group, by Karl Molineux of Merrill, Nomura & Molineux, and by Donna F. Solen of Kimbrell Kimbrell & Solen LLC.

The Beneful Toxic Dog Food Class Action Lawsuit is Frank Lucido v. Nesltle Purina Petcare Company, filed in the U.S. District Court for the Northern District of California.

Deeply Creepy. A proposed spyware class action lawsuit has been filed against Lenovo and Superfish Inc, makers of software installed on many different types of Lenovo laptops, alleging the companies are in violation of the Computer Fraud and Abuse Act, the Federal Wiretap Act, the Stored Communications Act, as well as California’s Invasion of Privacy Act and its Unfair Competition Law.

Filed in California on behalf of a proposed class of Lenovo customers, the class action alleges the company sold computers preloaded with Superfish software which is capable of tracking customers’ online activity and leaving their computers vulnerable to hackers. Nice.

“Lenovo never disclosed the Superfish program and took affirmative steps to conceal it from consumers because the program is generally considered to be spyware, adware or malware and, aside from the fact that it allows companies to spy on user’s every move online, the program also creates serious security issues for any consumer accessing the Internet with a Lenovo notebook computer on which the Superfish program has been installed,” according to the legal documents. Does this nonsense ever end? Where is Edward Snowdon?

The lawsuit is Sterling International Consulting Group v. Lenovo, 15-807, and includes common law claims of trespassing and fraud, as well as a claim of negligent misrepresentation. 

Top Settlements

The Last Gasp—the Final Puff—? Maybe, just maybe. Big tobacco reached a $100 million settlement this week, potentially ending something like 400 personal injury lawsuits winding their way through a courtroom near you. Well, actually, Florida. The lawsuits are pending against Philip Morris, R.J. Reynolds Tobacco Co. and Lorillard Tobacco Co, and stem from the landmark Engle v. Liggett Group Inc. class action against tobacco companies that was decertified in 2006 by the Florida Supreme Court.

The potential tobacco settlement resolves only those cases pending in federal court, and if approved, would see R.J. Reynolds and Philip Morris each pay $42.5 million, and Lorillard $15 million.

The deal remains subject to the approval of all of the individual plaintiffs in the cases covered by the agreement. In the meantime, the affected cases have been stayed pending approval of the deal. 

Hokee Dokee- That’s a wrap folks…Time to adjourn for the week.  See you at the bar!

Week Adjourned: 2.20.15 – Caliber Collision, Payless, Actos

Caliber CollisionTop Class Action Lawsuits

Fix my Ride! A California collision repairs chain has reportedly been tinkering with California labor law according to a class action lawsuit filed against it this week. Caliber Collision is being sued by its mechanics who allege they were not paid for all the hours they worked. Heard this before?

Filed by lead plaintiff Samuel Castillo, the lawsuit alleges Caliber Bodyworks of Texas Inc., which operates the car repair chain Caliber Collision, pays its mechanics on a piece-rate system for each task they perform, and that the workers are assigned piece-rate hours per tasks, regardless of the time it actually takes them to perform. Castillo claims he recorded the hours he worked, but Caliber only paid him under the piece-rate system.

“As a result, defendants did not pay plaintiff for all hours worked at the minimum wage, as defendants failed to pay plaintiff for nonproductive hours, i.e. hours that he was not performing piece-rate work,” the complaint states.

Further, the lawsuit contends that Castillo worked for Caliber from 2007 through to the end of January 2014 classed as a nonexempt technician under the piece-rate system. According to the suit, under Caliber’s pay system, if a task were assigned a value of 0.8 hours, the mechanic would be paid for 0.8 hours of work, regardless of whether the task took 10 or 90 minutes to perform.

According to the suit, the method Caliber uses, of meeting their minimum wage obligations, dividing daily piece-rate earnings by daily hours worked, violates California labor law. The suit also alleges Caliber paid Castillo nondiscretionary bonuses and other forms of compensation that aren’t excludable from the regular rate of pay.

“Despite defendants’ payment of incentive pay to plaintiff, defendants failed to include all forms of incentive pay when calculating plaintiff’s regular rate of pay, thereby further causing plaintiff to be underpaid all of his required overtime wages,” the complaint states.

Castillo alleges that he regularly worked in excess of eight hours per work day and over 40 hours each week, without receiving overtime compensation. Further, because the company only pays its workers in the piece-rate system, it also fails to maintain any compensation system for compensating rest periods.

“As a result of defendants’ failure to pay all overtime and minimum wages, defendants maintained inaccurate payroll records and issued inaccurate wage statements to plaintiff,” the suit states.

Finally, the lawsuit contends that Castillo requires its mechanics to buy their own tools that are necessary to perform their job duties, without reimbursing the workers for the cost of the tools.

The employment class action is seeking certification on behalf of classes of workers denied minimum wage, overtime hours, expense reimbursements and more.

The suit is Castillo et al. v. Caliber Bodyworks of Texas Inc. et al., case number BC572767, in the Superior Court of the State of California, County of Los Angeles.

Top Settlements

If the Shoe fits… Coming out the other end of an employment lawsuit we have Payless Shoesource, which has reached a $2.9 million settlement in an employment class action alleging the retailer violated the Fair Labor Standards Act (FLSA) by misclassifying its store managers as a means of avoiding overtime pay.

According to the terms of the Payless settlement agreement,  two thirds of the funds will be shared among the 2,197 class members. According to court documents, most of the plaintiffs worked as store managers or leaders at Payless retail outlets from March 2011 on.

In 2006, Payless faced a similar lawsuit when employees in Mississippi alleged the shoe retailer had violated the FLSA by routinely requiring managerial employees to work 60 to 90 hours a week, and making them perform non-managerial tasks without paying them overtime. That case was settled out of court and the terms remain confidential.

Justice at what Cost? Takeda Pharmaceutical Co, the makers of the diabetes drug Actos, has been ordered to pay $1,334,636 million in punitive damages by the jury hearing the case of a retired school teacher who developed Actos bladder cancer.

The jury found that Takeda had acted with reckless indifference for the health of Mr. Kristufek, who alleged that Actos had caused him to develop bladder cancer.

The $1.3 million in punitive damages is additional to a $2.3 million award the jury handed down the day before, after agreeing that Takeda had failed to provide adequate warnings about the drug’s association with bladder cancer and that the medication had been a significant cause of Mr. Kristufek’s condition.

Kristufek’s is the fifth Actos-related case out of eight in which juries have returned verdicts on behalf of plaintiffs, and only the second in which the company has faced punitive damages. Further, his is the second Actos-related case to win in Philadelphia, with a jury awarding $2 million in damages in a case that cited similar allegations for a woman.  

Hokee Dokee- That’s a wrap folks…Time to adjourn for the week. See you at the bar!



Week Adjourned: 2.6.15 – Birchbox, Toyota, Bayer

The week’s top class action lawsuits and settlements. Top stories include Birchbox, Toyota and Bayer.

birchboxTop Class Action Lawsuits

Birchbox not a Beautiful Thing? Ah, no—you can’t automatically send me stuff and charge me for it without telling me first….According to an unfair business practices class action lawsuit filed against high end cosmetics retailer Birchbox Inc, that’s exactly what the company has been going on. Birchbox, an online subscription-based cosmetics seller that allows customers to sign up for monthly boxes of cosmetic samples based on their preferences. According to the lawsuit, the company is in violation of California state business laws because it fails to disclose to its users that their shipments automatically renew.

Tiffany Lapuebla, the plaintiff who filed the Birchbox class action, purchased a subscription to Birchbox in January 2013. According to the suit, Birchbox failed to show Lapuebla the renewal terms clearly. They charged Lapuebla’s credit card without getting her affirmative consent to the automatic renewal terms and failed to give information about how to cancel the service. The lawsuit also claims there is no disclosure in Birchbox’s acknowledgment for free trials about how to cancel before getting charged for the recurring subscription.

Lapuebla is also accusing Birchbox of violating the state’s unfair competition statute based on the name of the subscription in her shopping cart: “Women’s Rebillable Monthly Subscription.”

The proposed class includes any Birchbox subscribers since 2011 and seeks unspecified damages. 

Top Settlements

The Long Road to Justice—this is amazing! An $11 million verdict was handed down to the plaintiffs in a Toyota sudden acceleration personal injury lawsuit resulting from a defect in a 1996 Camry. The jury ruled that the defect contributed to an accident which left three people dead and two seriously injured.

While the jury found that the Camry’s driver, Koua Fong Lee, was 40% responsible for the crash, they cited Toyota as being 60 percent responsible. In the 2006 crash Lee rear-ended an Oldsmobile after exiting a highway. The driver of the Oldsmobile, Javis Trice-Adams Sr., and his son were instantly killed. His niece, also in the Oldsmobile, became a quadriplegic as a result of the crash and died 18 months later. Trice-Adams’ father and daughter were also injured.

The jury awarded both families a combined $11.4 million, though due to Lee’s partial responsibility, his $1.25 million award will be reduced to $750,000, according to his lawyers.

This is incredible—in 2008, Lee was convicted of negligent homicide and sentenced to eight years in prison. However, his conviction was overturned after Toyota’s recalls of later-model cars for acceleration defects, tied to floor mats and pedals, brought new attention to the case. Lee had claimed that the Camry started to accelerate by itself and that the car didn’t respond when he hit the brakes. Prosecutors declined to re-charge Lee, who served more than two years in prison.

In 2010, the Trice-Adams family sued Toyota claiming a defect in the Camry caused it to suddenly accelerate. Lee and his family intervened as plaintiffs later that year. The plaintiffs argued the accelerator got stuck in a “near wide-open position,” calling other Camry owners to testify at trial that they experienced similar problems.

It’s all very hush hush…but a potential settlement has been reached in a discrimination class action lawsuit facing Bayer Corp. Brought by former and current employees, the $100 million lawsuit alleges Bayer Corp. and four other Bayer HealthCare entities engaged in systematic discrimination against female employees.

The Bayer discrimination deal, if approved, could end the three year legal battle. The plaintiffs have agreed to dismiss the suit with prejudice in a short stipulation filed in New Jersey federal court on Friday, though the terms of the deal were not disclosed.

The class action, originally filed in 2011, claimed that male employees greatly outnumber female employees in management positions at Bayer, and discrimination regarding pay, promotion and pregnancy bias claims.

Hokee Dokee- That’s a wrap folks…Time to adjourn for the week.  See you at the bar!