Week Adjourned: 4.28.17 – Uber, VW, Audi, Hard Rock Cafe

Top Class Action Lawsuits

I always feel like…Uber is watching me…? Uber just can’t seem to stay out of court these days. This week they got hit with a privacy class action lawsuit brought by Lyft drivers who assert that Uber used “secret” software to spy on them, allegedly allowing Uber to see Lyft’s coverage areas and which drivers worked for both ride share companies.

Allegedly referred to internally by Uber as “Hell”, the software enables Uber personnel to gain unauthorized access to Lyft computer systems, pose as Lyft customers and see the locations of Lyft drivers and their unique Lyft identification, according to the complaint.

Filed by a former driver for Lyft, Michael Gonzales, against three related companies, Uber Technologies Inc., Uber USA LLC and Rasier-CA, the lawsuit seeks to represent Gonzales and other Lyft drivers whose electronic communications and locations were allegedly intercepted, accessed, monitored or transmitted by Uber.

According to the Uber privacy lawsuit, “Each Lyft ID is unique, akin to a Social Security number, which allowed Uber to track Lyft drivers’ locations over time.” Uber used the “Hell” software program from at least 2014 to 2016, the lawsuit asserts.

Uber allegedly cross-referenced location data it gathered on Lyft drivers with its own internal records to determine which drivers were working for both companies so it could target them “in order to improve the Uber platform and harm the Lyft platform,” the complaint states. “Uber accomplished this by incentivizing drivers working on both platforms to work primarily for Uber, thereby reducing the supply of Lyft drivers, which resulted in increased wait times for Lyft customers and diminished earnings for Lyft drivers.”

Allegedly, Uber would direct “more frequent and more profitable trips” to drivers who it knew were also working for Lyft, thereby encouraging those drivers to primarily work for Uber, the complaint alleges.

Gonzales worked as driver for Lyft from 2012 to 2014 but never worked for Uber, according to the complaint. He seeks to represent a national class and a California class of drivers.

The proposed national class is defined in the complaint as “all individuals in the United States who (1) worked as drivers for Lyft, (2) while not working for Uber, and (3) whose private information and whereabouts was obtained by Uber by accessing computer systems operated or used by Lyft and the class.” The proposed California class is defined identically, except for removing the words “in the United States.”

According to the complaint, public reports estimate some 315,000 people have driven for Lyft in the United States, and 60 percent of them may have also driven for Uber. As such, the number of members in the proposed national class may be in excess of 126,000, while “common sense dictates that thousands of those individuals are California residents,” the proposed lawsuit states.

The proposed class action claims violations of the Electronic Communication Privacy Act, the California Invasion of Privacy Act and the California Unfair Competition Law and seeks injunctive relief and damages for the alleged privacy invasion.

The case is Michael Gonzales v. Uber Technologies Inc. et al, case number 3:17-cv-02264, in the U.S. District Court for the Northern District of California.

Top Settlements

It’s a Record Settlement—and it’s Official. A $2.1 billion settlement has received final approval, ending the massive Canadian Volkswagen (VW) emissions scandal class action caused by VW and Audi vehicles fitted with the now infamous defeat device, which allowed VW and Audi to cheat emissions standards testing.

According to a report in the Canadian national newspaper, The Globe and Mail, members of a Canadian class action can submit claims for reimbursement this week, as an Ontario court has approved a $2.1 billion settlement plan.

Some 105,000 people who either purchased or leased certain Volkswagen or Audi vehicles with two-litre diesel engines that were involved in the emissions scandal will each receive a payment between $5,100 and $8,000, according to the written judgment by Superior Court Justice Edward Belobaba.

Additionally, many class members will be able to choose whether to return their vehicle at the buy-back price as of mid-September 2015, before knowledge of the defeat device was made public, or keep their car and receive an emissions modification that is approved by government regulators, according to the Canadian VW settlement.

This settlement, however, may not be the end of the litigation. Attorneys representing the plaintiffs said that if emissions modifications for any of the vehicles are not approved and implemented around summer 2018, and the owner chooses not to return their vehicle, they can choose to continue litigation. If enough such owners come forward, the court may choose to hear the case again as a class action lawsuit.

Currently, US regulatory authorities are evaluating fixes Volkswagen has provided for three generations of affected VW and Audi vehicles.

Another biggie this week… The Hard Rock enterprises has agreed to pony up a $51.5 settlement ending a consumer fraud class action lawsuit brought by the buyers of a Hard Rock Cafe condo-hotel complex and the company who alleged the developers of the condo hotel units violated land sale regulations. Get outta town!

According to the terms of the Hard Rock settlement, each class member would receive a payment of approximately $95K. Court fees and costs would also be paid from the settlement fund. The developer, Tarsadia Hotels, would contribute $10 million and third-party defendant Greenberg Traurig LLC would put in the remaining $41.15 million.

In May 2010, Laurie and Dean Beaver filed a lawsuit against the Hard Rock Café condo-hotel consortium, alleging the defendants failed to inform them that they could rescind their property purchases within two years of their signing date.

Development began on The Hard Rock San Diego in 2005. It is a 12-story building with 420 condo-hotel units located across the street from the San Diego Convention Center and a few blocks from the San Diego Marina and Seaport Village, according to court documents.

The proposed settlement requires final court approval.

The case is Dean Beaver et al. v. Tarsadia Hotels et al., case number 15-55106, in the U.S. Court of Appeals for the Ninth Circuit.



Ok – That’s a wrap for this week. See you at the bar!

Week Adjourned: 4.21.17 – Southwest Airlines, Bose, Google

Top Class Action Lawsuits

Southworst for Cancellation Credit? Think these guys are going to “Wanna Get Away” after dealing with all this…two men filed an an unfair business practices class action lawsuit against Southwest Airlines (SWA) this week, alleging the airline unfairly placed a redemption period on the money credits issued to travelers who cancelled their non-refundable tickets.

The Southwest Airlines lawsuit was filed by plaintiffs Paul Stewart and Michael Hicks who allege they bought Southwest Airlines non-refundable “Wanna Get Away” round-trip tickets from Tulsa, OK to Phoenix AZ in August 2013. They planned to depart Tulsa on November 14, 2013 and return on November 18, 2013. The complaint states the price for both round drip tickets was $695.

The plaintiffs were unable to travel on the dates they had booked and had to cancel their tickets, which they did, according to the lawsuit, by following the procedures stipulated on the Southwest website. Hicks and Stewart assert they cancelled their flight reservations on October 22, 2013.

According to the complaint, the plaintiffs knew their tickets were non-refundable and did not expect a refund. However, Southwest subsequently provided them with a credit they could use toward future tickets on other Southwest flights, the lawsuit states.

“[The plaintiffs] were completely satisfied having money-credits to use in the future, and had good experiences in the past using other money-credits they had with SWA,” the complaint states.

However, when Hicks and Steward tried to use their travel funds they discovered the Southwest money credits were only good for one year from the date they bought their original round trip tickets, which they had cancelled.

The plaintiffs state in the lawsuit that Stewart required significant medical treatment in 2014 and most of 2015, so they were unable to travel in a non-emergency capacity. However, by August 2015, Stewart was able to travel which is when he and Hicks tried to use their Southwest money credits to buy tickets.

“To their surprise and chagrin,” Southwest representatives allegedly informed the plaintiffs that they could not use their money-credits to purchase airline tickets. According to the Southwest Airlines class action lawsuit, the plaintiffs were told the funds had expired, the funds were no longer available, and that the funds were lost, among other things.

They plaintiffs claim they “attempted to resolve their dispute with SWA over their expired, unavailable, and lost money, but SWA simply stonewalled them and stopped responding.”

“The only logical conclusion is SWA confiscated [the plaintiffs’] money, and has kept it as free, unearned profits since August 2013,” the lawsuit states. Hicks and Stewart allege that the funds include federal transportation taxes, 9/11 security fees and passenger facility charges, in addition to the actual fare.

“Unbelievably, SWA has provided nothing in return to [Stewart and Hicks] for the money they paid to SWA,” the complaint states.

The Southwest Airlines class action lawsuit asserts claims for breach of contract, fraud and tortious breach of the covenant of good faith.

FYI – The lawsuit is Paul Stewart, et al. v. Southwest Airlines Co., Case No. 5:17-cv-00429-F, in the U.S. District Court for the Western District of Oklahoma.

Nosy Bose-y? And what about those Bose headphones—who is listening with you? A lot of interested parties, if the allegations in this federal Wiretap Act class action are correct. Filed this week, the lawsuit claims that Bose collects and shares information about app users’ listening habits, which also violates the Illinois Eavesdropping Statute and the Illinois Consumer Fraud and Deceptive Business Practice Act.

According to the lawsuit, filed by Kyle Zak, who bought a pair of Bose wireless headphones for $350, the electronics company secretly collects, transmits and discloses to third parties, including a data mining company, the private music and audio selections of customers who downloaded its Bose Connect mobile app.

The Bose headphone lawsuit also alleges claims for intrusion upon seclusion and unjust enrichment.

Zak is seeking injunctive relief requiring Bose to discontinue its illegal practices and destroy all data it has collected, as well as actual and statutory damages arising from the invasion of privacy and from customers’ purchases of Bose wireless products, including the return of the products’ purchase price and disgorgement of profits. According to the lawsuit, damages likely exceed $5 million.

The case filed Wednesday is Zak v. Bose Corp., case number 1:17-cv-02928, in the U.S. District Court for the Northern District of Illinois. 

Top Settlements

Possible AdWords Settlement…Google’s about to pony up $22.5 million if a proposed settlement in a consumer fraud class action lawsuit gets the green light.

The Google lawsuit was filed by a proposed class of AdWords advertisers, who allege Google failed to disclose that it placed AdWords customers’ ads on websites known as parked domains and error pages. Oh, that’s a good use of your advertising buck – not.

According to the allegations, Google did this from July 11, 2004 to March 31, 2008. Parked domains, as you may or may not know, are websites with little or no content, and error pages are websites that users visit when they enter an unregistered address into their web browser.

The proposed Google AdWords settlement was granted preliminary approval on March 9, 2017. If granted final approval, Google will pay $22.5 million into a settlement fund, which will be used to pay class members who submit valid claims, proportionate to the amount each class member spent on ads displayed on parked domains and error pages during the class period.

Heads up—if you are a United States resident and had a Google AdWords account and were charged for clicks on advertisements appearing on parked domains or error pages, during the period from July 11, 2004 through March 31, 2008, you are a class member and may be entitled to a settlement payment. Cha ching!

To receive payment, you must submit a claim form no later than June 21, 2017.

The case is In Re Google AdWords Litigation, No. 5:08-cv-03369-EJD.

Ok – That’s a wrap for this week. Happy Weekend!!! See you at the bar!

Week Adjourned: 4.14.17 – Nissan Sentra, Express Stores, DoorDash

Top Class Action Lawsuits

Senseless Sentra? They say there’s no such thing as bad publicity—I’ll bet Nissan would disagree. The automaker has just been hit with a defective automotive class action lawsuit…this one filed by a waste management company alleging the automotive manufacturer and Nissan World LLC, a local dealership in New Jersey, concealed transmission problems with the 2014 Nissan Sentra.

Here’s the skinny: the plaintiff, Pinto of Montville Inc, claims Nissan falsely advertised and sold its Sentras despite the presence of the alleged defect. “Notwithstanding this longstanding problem and extensive knowledge of the issue, Nissan and the dealership continued to advertise and sell the defective vehicles, failed to issue an appropriate recall, and, amazingly, continued to market the CVT as a more ‘durable’ and reliable transmission,” the complaint states.

FYI—the alleged defect, continuously variable transmissions, has been reported to the National Highway Safety Administration (NHSA) in consumer complaints during the past 10 years.

The Nissan lawsuit states that Pinto bought a Nissan Sentra in July 2014. The problems with the transmission began while the car had less than 20,000 miles on the clock. Those problems include engine revving during gear shifts and shaking and unexpected downshifts while driving. Despite bringing these issues to the dealership, managers claimed the vehicle did not have any problems, the plaintiff claims.

After being replaced four times between 2014 and 2016, (seriously?) due to damage from the alleged defect, Pinto states it tried to make a claim under New Jersey’s Lemon Law. The dealership, despite correspondence from retained counsel, allegedly refused to acknowledge the transmission had problems or preserve the defective transmission in the Sentra pending the lawsuit, amounting to evidence of spoilation, according to the complaint.

If any of this sounds familiar, the lawsuit seeks to represent a class consisting of all owners of the 2014 Nissan Sentra in New Jersey. In total, 11 claims are made, including those for violation of the state’s consumer fraud law, violation of express and implied warranties, product liability, false advertising, and violation of the state’s “lemon law,” among others. The complaint seeks damages and a recall and repurchasing of all 2014 Sentra models registered or sold in the state.

The case is Pinto of Montville Inc. v. Nissan North America, Inc. et al., case number L-753-17, in the Superior Court of New Jersey, Law Division, Morris County.

Exempt at Express? Maaaybe not. It’s time for our weekly employment class action. A federal employment and labor law class action lawsuit has been filed against Express Inc., alleging violations of the Fair Labor Standards Act (FLSA). Specifically, the lawsuit claims the clothing retailer misclassified co-managers as exempt employees, and denied paying them for required overtime when they worked in excess of 40 hours per week.

The lawsuit was filed by a former New Jersey employee, Karla Reynosa, who alleges she worked as a salaried co-manager at Express stores in New York as well as New Jersey. During her employment with the defendant, Reynosa and other co-managers were frequently required to work overtime but were paid “supplemental” pay equal to one-half of an hourly rate calculated off her annual salary, the lawsuit states.

The FLSA stipulates that time and a half is the hourly overtime rate. “Defendant knowingly and willfully operated its business with a policy of not paying overtime premiums equal to one and a half times Plaintiff’s regular hourly rate for hours worked in excess of forty in a workweek,” the complaint states.

According to the Express unpaid overtime lawsuit, Reynosa worked for Express from 1999 to 2013 at stores in Manhattan. In 2012 she became a co-manager and generally put in between 43-45 hours per week, and on occasion as much as 49 hours per week. She then moved to an Express in Jersey City, where she worked as a salaried co-manager from June 2015 to about September 2016, and again generally worked 42 hours per week.

Despite her title, Reynosa didn’t have duties that were meaningfully different than the hourly sales associates and wasn’t involved in management, hiring or operational decisions at either store, the complaint states.

The complaint alleges failure to pay overtime in violation of the FLSA, violations of New Jersey labor law for overtime and unpaid overtime wages, and a violation of New York labor law for unpaid overtime wages.

Reynosa seeks to represent a class of anyone who worked as a salaried, exempt co-manager for Express and put in more than 40 hours per week during any workweek in the past three years. She also seeks to represent a class of those who were allegedly misclassified pursuant to the New Jersey and New York claims.

The case is Karla Reynosa v. Express Inc., case number 2:17-cv-02424, in the U.S. District Court for the District of New Jersey. 

Top Settlements

DoorDash could be delivering checks… in the not so distant future. The food delivery start-up, has agreed to pay $5 million to settle an employment class action lawsuit brought by workers who claimed they were misclassified so the company would not have to pay expenses among other costs.

Two lawsuits were filed in September 2015, one by Cynthia Marciano and the other by Evan Kissner both alleging that DoorDash misclassified them and other delivery workers as independent contractors, and therefore violated certain provisions of the labor code.

Under the terms of the DoorDash settlement, both named plaintiffs, Marciano and Kissner, will receive $7,500 each. There are approximately 33,744 class members, including anyone who worked for DoorDash as an independent contractor at some point between September 23, 2011 and August 29, 2016, and completed at least one delivery. Each of those class members will receive payment as part of the settlement. According to the agreement, class members who “were most active” on DoorDash will “receive proportionally higher payments.”

For those of us who still venture out in person to the grocery store, DoorDash is a food delivery service located in 16 cities or regions throughout the country, which include San Francisco, San Jose/Silicon Valley, Oakland, Los Angeles, LA Valley, Orange County, San Diego, Boston, Phoenix, Brooklyn, Manhattan, Washington D.C., Minneapolis and Houston.

The settlement requires final court approval. Stay tuned! 

I wonder if the Easter Bunny is hiring? 

Ok – That’s a wrap for this week. Happy Easter Folks. See you at the bar!

Week Adjourned: 4.7.17 – Volkswagen, Audi, iOS, Halliburton

Top Class Action Lawsuits

Heads Up Volkswagen and Audi Owners! The automakers got hit with a proposed defective automotive class action lawsuit this week, over allegations they were aware of an engine defect in certain models, which they concealed and which resulted in thousands of dollars in damages to vehicles owners. Know this playbook?

Filed in federal court, the proposed lawsuit states that VW and Audi concealed a defect with the timing chain in certain vehicles built between 2008 and 2013. According to the complaint, the timing chain system is meant to operate normally for at least 120,000 miles, however, the alleged defect caused the timing chain to fail at any time prior to that, causing the vehicles to lose engine power and the ability to accelerate, maintain speed, control steering or fully engage the brakes, putting them at risk of rear-end crashes.

The VW and Audi complaint states that repairing the defect costs $1,200 at a minimum, but can reach $10,000 and involve replacing the entire engine.

The four named plaintiffs, Lloyd Artola, Angel Esquijarosa, Demetrie Hylick and Michael Spencer, are seeking to represent anyone who owned or leased certain Volkswagen or Audi vehicles with the alleged defect. They seek to establish two classes of plaintiffs, a nationwide class and a Florida subclass. The vehicles named in the complaint include various models of Volkswagen Beetles, Golfs, Jettas, Passats, Rabbits, Routans, Tiguans and Touaregs, as well as Audi A3s, A4s, A5s, A6s, A7s, Q3s, Q5s and Q7s.

Named plaintiff Artola claims he paid $6,700 to have his 2011 Audi Q5 repaired when the defect caused severe engine damage at 75,000 miles. Audi agreed to waive the cost of the repair after “much effort,” the complaint states.

Esquijarosa experienced similar trouble after the 2010 Volkswagen CC Sport, which he bought in 2013 from his daughter, suffered catastrophic engine failure at 38,000 miles. It cost him about $4,000 to repair. According to the complaint, “after much effort,” Volkswagen agreed to split the cost.

Hylick bought a used 2010 Volkswagen CC. The defect caused severe engine damage when the vehicles reached about 89,000 miles, costing the plaintiff $8,800 to repair. Spencer bought a used 2009 Volkswagen Passat, which failed to start when the vehicle reached 59,300. He spent $3,300 to have it fixed. Volkswagen refused to reimburse him, the complaint states.

The case is Artola et al. v. Aktiengesellschaft et al., case number 1:17-cv-21296, in the U.S. District Court for the Southern District of Florida.

Top Settlements

iOS Privacy Settlings…? More spooky stuff. This week, several major tech companies agreed to a $5.3 million settlement deal that, if approved, would end a privacy class action lawsuit accusing the companies of accessing the address book of iOS users without permission. Not surprised by these types of allegations anymore… sadly.

If court approval is granted, Foodspotting, Foursquare, Gowalla, Instagram, Kik, Path, Twitter and Yelp will share in creating the settlement fund which will pay out an estimated 0.53 cents per user, to more than 7 million users.

The lawsuit was filed in 2012 and alleges the tech and social media companies, through their services, used “unconscionable, illegal practices” in accessing contacts belonging to users without the users’ consent. The plaintiffs assert that this is equivalent to the contacts being “accessed and stolen.”

The lawsuit was brought following publicity around reported breaches of privacy. The Federal Trade Commission also investigated the charges, which resulted in an $800,000 settlement with the social network app Path over its practices. A settlement hearing will be held on May 25. If approved, the settlement would apply primarily to iOS users whose address books were accessed and contacts were viewed by the defendants, without permission, between 2010 and February 2012.

Settlement payments will be made to class members via the Amazon accounts of those affected, unless they request payment in the form of a check. Any unclaimed funds from the settlement will be given to the Electronic Frontier Foundation.

Ten Years After… Here’s one for the books. Already record-setting, this week a decade of litigation may have reached its end, with a $100 million settlement receiving preliminarily approval. The defendant is Haliburton, and the securities class action lawsuit centered around the company’s liability in its disclosure of asbestos use.

Not only has litigation of this lawsuit taken a decade but it has also included two trips to the US Supreme Court. If granted final approval, the $100 million settlement will effectively end one of the longest running securities fraud class actions in US courts, according to a copy of the settlement papers.

The lawsuit was filed in 2002, by a Milwaukee charitable organization that held Halliburton stock under its Erica P. John Fund as well as other plaintiffs. The lawsuit alleged Halliburton’s disclosure of a $30 million verdict stemming from asbestos liabilities sent the company’s stock price plummeting by 40 percent. The company’s stock prices were artificially inflated, the lawsuit claimed, resulting from misstatements issued about its financial liability for asbestos claims.

Chief US District Judge Barbara M.G. Lynn scheduled a settlement fairness hearing to take place at the end of July. Additionally, a deadline of August 12 has been set for any class members who want to participate in the settlement to submit a claim form.

The case is Erica P. John Fund Inc. v. Halliburton Co., case number 3:02-cv-01152, in the U.S. District Court for the Northern District of Texas. 

Ok…That’s a wrap for this week. See you at the bar!