Week Adjourned: 5.27.16 – Ruby Tuesday, Kmart, Blue Buffalo

ruby tuesdayTop Class Action Lawsuits

Ruby Tuesday Not Serving Up Overtime Pay? Employment—of the largely unpaid variety—was a bit of a theme song this week. Among the chorus is an unpaid overtime class action filed against the Ruby Tuesday national restaurant chain by two former employees who allege they were denied overtime pay.

Specifically, Oscar Sagastume of Meriden and Kevin Gibson of New York filed the lawsuit in U.S. District Court on May 19 to “recover unpaid overtime compensation for themselves and similarly situated employees as a collective action under the Fair Labor Standards Act (FLSA).   Additionally, Sagastume and any other Connecticut plaintiffs also assert violations of the Connecticut Minimum Wage Act.

The Ruby Tuesday lawsuit states that the former Ruby Tuesday employees worked many 50-hour or more weeks without proper compensation. “Defendant was aware that plaintiffs and the class members worked more than 40 hours per workweek, yet defendant failed to pay overtime compensation for hours worked over 40 hours in a workweek,” the lawsuit alleges. “Defendant did not keep accurate records of hours worked by the plaintiffs or the class members.”

In the complaint, Sagastume claims he worked for the national restaurant chain from February 2011 to April 2015. He worked at several locations across Connecticut as an assistant manager and frequently worked more than 40 hours a week.During the week of February 8, 2015, he worked “approximately 60 hours” but was only paid for 40. He claims that on average he worked between 57 and 62 hours per week.

“Ruby Tuesday required plaintiffs and [assistant managers] to work long overtime hours without paying them any overtime compensation,” the complaint states. “Ruby Tuesday classified all of its (assistant managers) as ‘executives’ and treated them as exempt from the overtime requirements of federal and state laws.”

Further, the lawsuit states that while assistant managers earned about $37,500 annually, job duties for both Sagastume and Gibson required them to do the same as the hourly employees, who were given overtime pay, such as greeting and waiting on customers, serving food, cooking and preparing food, clearing and setting tables and cleaning the restaurant.

The suit claims Ruby Tuesday willfully misclassified Sagastume, Gibson and other assistant managers as employees who are exempt from FLSA protection and failed to properly record the hours worked by their employees. “Defendant’s unlawful conduct has been widespread, repeated and consistent,” the lawsuit alleges.

Heads up—the lawsuit is looking to represent others similarly situated including managers, such as those running the kitchen and guest services, and for the Connecticut class action allegations, any assistant manager who worked in Connecticut from May 19, 2014, to the date of final judgment, if one is given. 

Top Settlements

Kmart Got a Damage Bill this week to the tune of $3.8 million. No stranger to employment lawsuits, the discount retailer agreed to settle this latest, effectively ending two collective actions brought on behalf of assistant managers who allege they were wrongly classified as exempt from overtime pay, in violation of the Fair Labor Standards Act (FLSA) and state labor laws.

What’s the betting the FLSA is one of most frequently cited pieces of law in class actions today…

The class is estimated to include some 422 people, with each plaintiff receiving roughly $9,000, depending on how long they worked for the company. Additionally, it provides $7,500 for each of the four named plaintiffs.

The Kmart settlement motion seeks preliminary certification of the class and scheduling of a final approval and fairness hearing. The settlement would encompass a suit filed in the U.S. District Court for the District of New Jersey, Fischer v. Kmart, and another in the Western District of New York, Hautur v. Kmart.

While unhappy class members will have the opportunity to opt out of the settlement, if the unhappiness total reaches more than 5 percent of class members,  will have the opportunity to terminate the settlement, according to court documents. And everyone’s a winner…

And now for something completely different…

Blue Buffalo Pet Food Settlement…A $32 million settlement has been approved in a consumer fraud class action lawsuit pending against Connecticut-based Blue Buffalo, a well known maker of “natural” pet food—whatever that means—which was the subject of the lawsuit.

The class actions, brought by consumers in several lawsuits across and country and which were consolidated into Multi District Litigation in 2014, alleged that certain Blue Buffalo products were not consistent with its “True Blue Promise.” The label indicates the products contain no chicken by-product, along with no corn, wheat, soy or artificial flavors, colors or preservatives. However, this, consumers claimed, was not the case, stating they paid a premium for the pet food products, but were misled. A total of 13 class actions were brought against Blue Buffalo over its alleged false advertising.

The Blue Buffalo settlement, originally reached in December 2015, will provide customers who filed a claim but couldn’t provide a receipt, with up to $100. Customers who filed a claim and have receipts will receive up to $2,000.

Full details available at – https://www.petfoodsettlement.com/.

According to Blue Buffalo, they are not guilty of any wrong doing, stating that it was defrauded by a supplier that provided its chicken byproduct. 

Ok, that’s a wrap folks…Have a good long weekend. See you at the Bar!

Week Adjourned: 5.20.16 – Uber, BMW, Hip Implants

uber-serp-logo-f6e7549c89Top Class Action Lawsuits

Dueling Rides… An unfair business practices class action lawsuit has been filed by the ride share company Lyft against its rival company Uber, alleging Uber creates and uses shell accounts to hurt business for Lyft. Yeah, that sounds pretty unfair, if true.

Lyft driver Ryan Smythe and “others similarly situated”, filed the Uber class action complaint against Uber Technologies Inc, and 100 unnamed entities said to exist as “mere shells and conduits” for Uber’s affairs.

Here’s the skinny: according to the complaint, Mr. Smythe started as a Lyft driver in September 2014, one month after accusations began concerning “Operation SLOG,” an alleged Uber-sponsored campaign that involved spamming Lyft drivers with false ride requests in an effort to negatively impact Lyft’s business.

This allegedly involved Uber creating dummy Lyft accounts with prepaid cellphones and credit cards which were then used to place fake requests with Lyft drivers. According to the lawsuit, Uber’s alleged operation amounted to unfair business practices under California law as well as intentional interference with prospective economic advantage.

The complaint asserts that Uber engaged in a “systematic course of creating fraudulent Lyft accounts from which sham orders were placed, at least in part to deprive Class members from earning income in violation of California Business and Professions Code which prohibits unfair business practice.”

Further, Smythe claims in the proposed class action that Uber directed its drivers and third-party companies to make these requests “for the sole purpose of luring Lyft drivers to locations in which a false request for service directed them.” So much for “just making a living.”

“Uber Technologies did this to discourage Lyft drivers from contracting with Lyft, to deprive the marketplace of Lyft drivers so that Uber drivers could benefit and to create a higher wait time for Lyft customers in order to steer their patronage to Uber Technologies in violation of California Business and Professions Code,” the complaint states.

75 to 45 in 2 Seconds? This sounds just a tad dangerous. BMW got hit with a nationwide defective automotive class action lawsuit for alleged defects in the electric BMW i3 vehicles—defects which cause the vehicle to rapidly drop speed. Read on.

The BMW lawsuit centers around the BMW i3 “Range Extender” feature. This option, called REx, outfits the vehicle with a two-cylinder gasoline engine producing 34 horsepower that switches on when the battery charge depletes to five percent, giving the vehicle another 70 miles of range. BMW claims that the Range Extender “doubles your electric driving range” from the vehicle’s standard 81-mile range.

However, the lawsuit alleges that in practice, when the gasoline engine kicks in, it doesn’t produce enough power to prevent a dramatic decrease in the vehicle’s performance. As alleged, if the car is under any kind of significant load (such as going up a hill, or loaded with passengers), the speed of the car will dramatically decrease as the battery charge diminishes. According to the complaint, this can result in the car slowing to speeds of 45 miles per hour on the freeway, without warning. This sudden and unexpected loss of power in a motor vehicle can result in a catastrophic situation for all those on the road. Yes, no—not a good thing at all.

The lawsuit seeks to have the vehicles redesigned and repaired at BMW’s expense, and to halt the sale of all i3 vehicles until repairs can be made. The claim also seeks compensation for all the owners of the vehicles, who were not told of the serious safety defect.

The case Edo Tsoar v. BMW North America, LLC (Case No. 2:16-cv-03386) was filed in U.S. District Court in Los Angeles. 

Top Settlements

Hip Settlement in Canada. Some news from north of the Border—two Canadian class actions have been certified—one in British Columbia (Jones v. Zimmer) and another in Ontario (McSherry v. Zimmer). Authorization (Certification) is pending in a proposed class action filed in Quebec (Major v. Zimmer), and the parties have consented to authorization (certification) of that action.

Translation? Settlement. Yup—subject to court approval, the hip implant settlement applies to “all persons who were implanted with the Durom Cup in Canada” and their estates and family members. Nice one.

No dollar figures to report, and of course, the defendants to the three actions do not admit liability, but have agreed to a settlement providing compensation to class members with certain injuries upon approval after receipt of supporting documentation, less deductions for legal fees.

FYI—Public health insurers are also entitled to compensation under the settlement agreement.

Motions to approve the settlement agreement will be heard in Vancouver on June 28, 2016, Ontario on July 14, 2016, and in Montreal on June 28, 2016.  

Ok…that’s a wrap folks! Have a good one–and see you at the Bar!

Week Adjourned: 5.13.16 – Colgate, Subaru, Air New Zealand

sparklingMintToothpasteTop Class Action Lawsuits

Show us your Pearly Whites, Darling. Oh, is your tube of Colgate Optic White Toothpaste just not cutting it? Teeth aren’t gleaming white as advertised? Well, you’re not alone. This week, Lori Canale, filed a consumer fraud class action lawsuit against the company alleging—you guessed it—consumer fraud.

Specifically, Canale claims in the Colgate toothpaste lawsuit, for herself and for all others similarly situated, that Colgate-Palmolive misrepresents that its Colgate Optic White Toothpaste “Goes beyond surface stain removal to deeply whiten” teeth and that its Colgate optic white platinum toothpaste “Deeply whitens more than three shades.” Which three shades, precisely?

According to the complaint, the toothpastes do not actually go beyond surface stain removal and do not deeply whiten teeth because their whitening ingredient, which is 1 percent hydrogen peroxide, is not a large enough amount of hydrogen peroxide. Further, the product is not in contact with teeth for a long enough time to do what the company claims it does.

The case is US District Court for the Southern District of New York Case number 7:16-CV-03308-CS.

Lights out for Subaru? Well, likely not. But they are facing a defective automotive class action lawsuit filed in California this week, alleging certain of its vehicles contain a design defect making those vehicles unsafe for drivers and passengers.

Filed by Kathleen O’Neill of Pismo Beach, California, individually and for all others similarly situated, against Subaru of America Inc., the Subaru lawsuit asserts that the car maker’s 2010 and 2011 Subaru Outback vehicles contain a design and/or manufacturing defect that causes the exterior lighting bulbs to fail prematurely and frequently.

Further, this alleged defect, in addition to the associated safety issues, results in vehicle owners paying more to replace the exterior bulbs. Yes, that could get seriously annoying in addition to expensive.

The complaint alleges breach of implied warranty, violation of the Magnuson-Moss Warranty Act, unjust enrichment, and violations of California’s Consumer Legal Remedies Act and its Unfair Competition Law.

The case is US District Court for the Central District of California Western Division Case number 2:16-CV-02774-R-KS. 

Top Settlements 

Anti-trust at 30,000 Feet… Air New Zealand down under has agreed to come up with $35 million as settlement of their share of a class action lawsuit brought in 2006 by several freight forwarders who allege the airline fixed prices in their cargo operations. FYI—Air New Zealand is just one defendant in the antitrust class action lawsuit.

Although the airline has not admitted liability, it has agreed to settle to mitigate further legal action and related court costs.

The class action named a list of global airlines, alleging that they conspired on cargo fuel and security surcharges between 2000 and 2006. The US class action is just one of several similar cases brought in other countries. The US Department of Justice launched a criminal investigation, from which Air New Zealand was released in 2011.

The settlement remains subject to court approval. The $35 million represents 2.8% of the $1.2 billion so far paid in settlements by 28 airlines accused of price-fixing. Hey—money in money out—right? 

Ok –That’s a wrap folks…Have a good one. See you at the Bar!

Week Adjourned: 5.6.16 – Wendy’s Data Breach, Honeywell, More Talc Powder

WendysTop Class Action Lawsuits

Drive Around to the First Window and… It’s been a while since we’ve reported a data breach class action. This week, one such lawsuit was filed against Ohio-based Wendy’s by First Choice Federal Credit Union, alleging a five-month long data breach could have been prevented if the company had acted faster.

From October 22, 2015 through to March 10, 2016, hackers accessed Wendy’s computer systems and stole what could be millions of consumer credit cards that had been used at certain Wendy’s locations. So someone besides was making change on your burger and fries. And let’s not get started on the issue of inconvenience!

“As a result of Wendy’s data breach, plaintiff and class members have been forced to cancel and reissue payment cards, change or close accounts, notify customers that their cards were compromised, investigate claims of fraudulent activity, refund fraudulent charges, increase fraudulent monitoring on potentially impacted accounts, and take other steps to protect themselves and their customers,” the Wendy’s data breach lawsuit claims.

Specifically, the plaintiffs claim that Wendy’s holds on to credit card information longer than necessary and failed to meet the October 2015 deadline for EMV cards and terminals.

“Despite the growing threat of computer system intrusion, Wendy’s systematically failed to comply with industry standards and protect payment card and customer data,” the lawsuit states, noting that as a consequence, financial institutions have borne the brunt of the data breach.

The complaint asserts that Wendy’s used outdated and easily hackable computer and credit card systems, and that the company failed to meet federal regulations and guidelines around computer and data security, stating that Wendy’s “refused to take steps to adequately protect its computer systems from intrusion.”

A Wendy’s spokesman has said that malware was discovered by third-party investigators, but the company has yet to confirm how many of its 6,000 stores had been hacked.

Honeywell Warranty Class Action Warranted… This is why you want your day in court: A proposed defective products class action brought by consumers against Honeywell International was given the green light this week, by a judge who just wasn’t buying the corporate line. US District Judge Berle M. Schiller of the Eastern District of Pennsylvania told the defendant, Honeywell International, that essentially they couldn’t make a case to have the suit tossed.

The Honeywell class action asserts that Honeywell TrueSTEAM humidifiers were defectively designed and inadequately covered by warranty. Feel the swamp waters rising? Yes, well, read on.

According to the complaint, the humidifiers are unreliable, difficult to maintain, and prone to malfunction and deterioration.

Judge Schiller wrote in his memorandum, “According to plaintiffs, Honeywell is aware of the problems with its humidifiers, but uses an ‘overly burdensome warranty claims process that is designed to, and does, deter customers from making claims under their warranties.” And, “Honeywell’s remedy to repair fails of its essential purpose because Honeywell simply replaces defective humidifiers with ‘the same defectively designed humidifiers that are prone to the problems complained of by plaintiffs and members of the classes.'” Thank you Judge Schiller.

The plaintiffs also allege they were told their defective units would not be serviced until technicians inspected them. They are seeking recovery for the related removal and repair costs, since they claim Honeywell promised that each unit would be free from defect, and if it wasn’t, the company would repair the unit. Oh yes, the fine print—but just wait…

“According to the amended complaint, however, that promise was false. Instead, plaintiffs were required to satisfy Honeywell, through an authorized technician and/or a contractor’s inspection, that the humidifier actually was defective,” Schiller wrote. “Thus, Honeywell placed an additional burden upon plaintiffs seeking to repair or replace their defective unit.”

The judge wrote that the plaintiffs have adequately alleged that the humidifiers were defective five years after the purchase date as the warranty promised, and that Honeywell failed to replace the units as it expressly warranted.

The plaintiffs asserted breach of express warranty, breach of implied warranty, unjust enrichment, and other claims.

I’ll bet those plaintiffs are happy campers this weekend.

Top Settlements

A Bittersweet Victory… This week, a $55 million settlement was leveled against Johnson & Johnson (J&J) by a jury hearing the case of a woman who alleges her use of the company’s talc-powder products for feminine hygiene caused her to develop ovarian cancer.

This is the second J&J talc powder verdict in a row against J&J in talc-cancer lawsuits J&J plans to appeal. The company is facing some 1200 such lawsuit all claiming the company failed to adequately warning consumers about its talc-based products’ cancer risks.

The trial took three weeks, and returned the verdict in favor of Gloria Ristesund in a day. She was awarded $5 million in compensatory damages and $50 million in punitive damages.

According to her suit, Ristesund used J&J’s talc-based powder products, which include the well-known Baby Powder and Shower to Shower Powder, on her genitals for decades. According to her lawyers, she was diagnosed with ovarian cancer and had to undergo a hysterectomy and related surgeries. Her cancer is now in remission.

The verdict in the first J&J talc-cancer lawsuit awarded $72 million to the family of a woman who died from ovarian cancer. She had also used the talc powder for feminine hygiene for years. 

Ok, that’s a wrap folks…Have a good one. See you at the Bar!