Week Adjourned: 1.19.18 – Walmart, Wawa, Taco Bell

Top Class Action Lawsuits

Walmart on Trend? Walmart has started 2018 true to form. They’re being sued—by a whole lot of unhappy workers who have filed a wage and hour class action lawsuit alleging they were underpaid when they missed lunch breaks and were not provided with proper information on their pay stubs, has received certification. In fact, three classes of plaintiffs in the employment lawsuit have been certified. Continue reading “Week Adjourned: 1.19.18 – Walmart, Wawa, Taco Bell”

Week Adjourned: 1.12.18 – CA Wildfires, EAS Systems, Ibuprofen Male Infertility Study

Top Class Action Lawsuits

California wildfires take a predictable turn. Southern California Edison is facing a negligence class action lawsuit filed by nine plaintiffs who allege the company’s negligence let to the largest wildfire in the history of California state. Continue reading “Week Adjourned: 1.12.18 – CA Wildfires, EAS Systems, Ibuprofen Male Infertility Study”

Week Adjourned: 1.5.18 – Ford, PHH Mortgage, Vita-Mix

Top Class Action Lawsuits

Driven to court? Maybe…Marketsource Inc, a contractor of Ford Motor Company, is facing a potential unpaid overtime class action lawsuit filed by a former employee who alleges the company misclassified its Ford account managers as being exempt from overtime pay.

According to the complaint, Marketsource misclassified its Ford account managers as salaried workers and therefore they were exempt from overtime pay, in violation of the Fair Labor Standards Act (FLSA). Filed by Sivi Hoel, a former Marketsource account manager for Ford, the complaint states “Throughout the course of her employment by Marketsource, plaintiff was always denied overtime compensation even though she routinely worked overtime hours with the knowledge, encouragement and behest of Marketsource management.”

Hoel asserts she regularly had to work in excess of 40 hours a week and was not reimbursed for her time when required to travel to retail stores and car dealerships to perform their duties.

From April 2012 to March 2016, Hoel, who lives in California, was employed by Marketsource as an account manager to train and assist car dealership employees on how to sell certain Ford contracts. During that time, she was required to visit multiple car dealerships spread across a large geographic region, the lawsuit states.

Hoel seeks to certify a nationwide collective group of workers employed by Marketsource as account managers, who worked on the Ford program in the past three years. She is seeking unpaid overtime wages and liquidated damages, including interest, on behalf of that group, and attorneys’ fees.

The case is Sivi Hoel v. Marketsource Inc., case number 1:17-cv-05547, in the U.S. District Court for the Northern District of Georgia.

Go get ‘em.

Top Settlements

Where’s my mortgage payment? And a really scandalous one at that. A $45 million settlement has been reached by PHH Mortgage Corp and 49 state attorneys general who sued the company alleging the mortgage servicer committed financial fraud by failing to properly apply payments from borrowers and other loan service deficiencies.

While mortgage servicers do not directly issue home loans, they do collect and process borrower’s payments and are responsible for many anti-foreclosure measures, including loan modifications and other tools for homeowners. The lawsuit alleges that between 2009 and 2012 PHH Mortgage, based in New Jersey, failed in assisting borrowers to avoid foreclosures, failed to process loan modification applications and other vital documents, and did not properly maintain mortgage servicing and other files, among numerous other allegations.

According to the terms of the settlement, filed in the D.C. District Court, PHH will pay $45 million, with $30.4 million of that sum going directly to borrowers. The remainder of the funds will be used to cover costs of each of the 49 state’s investigations. PHH has also agreed to make changes to its servicing practices in its agreement with the Multi-State Mortgage Committee, a panel of state attorneys general and regulators set up to monitor mortgage markets after the 2008 financial crisis.

Notebly, the settlement does not release PHH from any potential liability for any alleged improper conduct from 2013 onward.

New York Attorney General Eric T. Schneiderman’s office reported that an estimated 1,600 New York residents would be eligible for payments. For those who lost their homes due to foreclosure, the payments could begin at $840. For those who did not lose their homes but did go into foreclosures initiated by PHH during the relevant period, they could expect a minimum of $285.

Attorney General Mike DeWine of Ohio has stated that as many as 2,000 residents would be eligible for those payments.

The case is State of Alabama et al v. PHH Mortgage Corp., case number 1:18-cv-00009, in the U.S. District Court for the District of Columbia.

Heads up all you Vitamix owners out there – a settlement has been reached in a defective products class action lawsuit pending against Vitamix. The lawsuit, styled Vicki Linneman, et al. v. Vita-Mix Corp., et al., Case No. 1:15-cv-748, pending in the U.S. District Court for the Southern District of Ohio, alleged that the top seal of blade assemblies in certain Vitamix containers may fleck, causing black flecks to enter food or drink during blending. These flecks are of a non-stick material (polytetrafluoroethylene or “PTFE”) that is common in cookware and many other products in the food industry.

As a result of this alleged defect, the plaintiffs claim that the Vitamix blenders are worth less than what consumers and businesses paid to purchase them. No allegations of personal injury were made in the lawsuit.

Eligible Class members are defined as those who: (a) own a Vitamix household blender with a blade assembly dated on or after January 1, 2007 but before October 1, 2016; or (b) own a Vitamix commercial blender that was (i) purchased on or after September 15, 2015 but before August 9, 2016 or before April 7, 2017 in the case of a commercial blender from the XL product line, (ii) never used in connection with the Replacement Seal, and (iii) purchased through a third- party, such as a dealer, distributor, or restaurant supply store and not acquired directly from Vitamix.

According to the terms of the agreed settlement, Class Members who timely submit a Valid Claim are eligible for certain benefits depending on whether they purchased a household or commercial Vitamix blender. Class Members who own a Vitamix household blender may choose between (1) a $70 gift card to purchase certain Vitamix products; or (2) a newly designed replacement blade assembly that does not produce flecks. Owners of one or more Vitamix commercial blenders submitting Valid Claims can receive a new replacement blade assembly from Vitamix, with a maximum of two blade assemblies.

Vitamix has also agreed to pay court-approved Service Awards of $3,000 each to the two Named Plaintiffs as well as legal and administrative fees and court costs.

To receive any settlement benefits, valid Claim Form must be submitted on or before September 28, 2018. A final settlement hearing is scheduled for March 2018.

So folks – on that happy note – this year’s a wrap –and welcome to 2018!!

Week Adjourned: 12.29.17 – Apple, Testosterone, CSC

Top Class Action Lawsuits

High-Speed Slow-Down? Fair to say – can’t end the year properly without a class action lawsuit against Apple? Try nine and counting! Unless you’ve been directly involved in space exploration—it is highly unlikely you’ve missed this little scandal. Apple’s been hit with a litany of allegations including consumer fraud following the tech giant’s admission in mid-December that it deliberately slowed down certain iPhones, including the iPhone 6. The slowdown was managed through Apple’s software updates. Apple claims the software was intended as a fix to deal with degraded lithium-ion batteries that could otherwise suddenly die. Ain’t that handy.

Other allegations include Apple’s failure to disclose its messing with your mobile in a timely fashion, and the fact that its software updates deliberately slowed down older-model phones so batteries would last longer. Apple said it released the fix for iPhone 6, iPhone 6s and iPhone SE and later extended it to iPhone 7, according to the Los Angeles Times.

Filed in US district courts in California, New York and Illinois, the iPhone slow-down lawsuits all allege that Apple’s failure to notify customers of the battery issues, and subsequent software slowdowns, led iPhone owners to wrongly conclude they needed to buy newer, more expensive iPhones instead of simply replacing the battery.

Allegations include consumer fraud, unfair business practices and breach of implied contract, specifically, asserting that when people buy iPhones, they do so with the assumption that Apple won’t “purposefully interfere with” the phones’ “usage or value.” The lawsuit states Apple did not get iPhone owners’ consent before interfering, through software updates, with the phones’ speed. Another lawsuit claims fraud, false advertising and unjust enrichment.

North Carolina resident Kirk Pedelty, a plaintiff in the Illinois lawsuit, contacted Apple when he noticed his phone slowing down. However, the lawsuit states: “Nobody from Apple customer support suggested that he replace his battery to improve the performance of his iPhone. … Frustrated by slowdowns and intermittent shutdowns of his iPhone 7, Pedelty purchased an iPhone 8.”

Every year we say this—and it remains true this year—you just cannot make this stuff up.

Top Settlements

Testosterone Deal. A global settlement deal has been reached by Eli Lilly and plaintiffs in multidistrict litigation alleging the company’s testosterone replacement therapy is associated with cardiovascular adverse health events.

The testosterone lawsuit deal comes about one month before the first bellwether trial was set to go to court. The judge cancelled two upcoming trial dates in January and March over Tracy Garner and John DeBroka Jr.’s cases alleging that Eli Lilly’s Axiron caused them to suffer from a heart attack and deep vein thrombosis, respectively.

More than 6,000 cases are pending against Eli Lilly, Auxilium and several other pharmaceutical companies in the MDL, all alleging the testosterone replacement therapies caused serious if not irreversible adverse health effects.

The MDL is In Re: Testosterone Replacement Therapy Products Liability Litigation, case number 1:14-cv-01748, in the U.S. District Court for the Northern District of Illinois.

Overtime just in time! Here’s hoping it’s the way forward for 2018. A jury has found in favor of current and former employees who filed an unpaid overtime class action lawsuit against Computer Sciences Corp (CSC). The plaintiffs alleged the defendant had misclassified them as exempt from overtime pay.

According to court records, the jury deliberated for just two days before finding “unanimously” for the employees. The employees alleged that CSC classified certain so-called system administrators as exempt from overtime pay under federal and state law. In fact, the plaintiffs should have been classified as non-exempt and compensated for time worked that exceeded 40 hours per week.

Damages have not yet been established, however a news release by the employees’ counsel states that the jury found CSC’s violations to be willful, which triggers additional damages.

CSC system administrators provide support to clients, including installation and maintenance of computer hardware and software, in addition to server maintenance and troubleshooting, according to the new release.

The case is Strauch et al. v. Computer Sciences Corp., case number 3:14-cv-00956, in the U.S. District Court for the District of Connecticut.

So folks – on that happy note – this year’s a wrap –A Very Happy, Peaceful and Prosperous 2018 to All!!

Week Adjourned: 12.22.17 – Sonic, Coppertone, Wells Fargo

Top Class Action Lawsuits

Here’s a little known data breach that’s making class action news. The Sonic Drive-in chain of restaurants is facing allegations that it was negligent in protecting its customer credit and debit card data, resulting in hackers accessing the data, which is now being sold the black market. What data breach, you ask?

On September 26, 2017, Sonic announced that its payment system had been breached and that personal identifying information for up to five million credit card and debit card owners had been stolen. The complaint alleges that the stolen data is sufficient to enable fraudulent charges to made to accounts of those five million credit and debit card holders.

Sonic has nearly 3,600 locations across 45 states. In its September statement, the restaurant chain noted that the stolen credit and debit card numbers may have been acquired without as part of a malware attack experienced at “certain Sonic Drive-In locations.” The company said it was working on an investigation in conjunction with third-party forensics firms, in addition to cooperating with law enforcement investigations.

Filed by Chicago resident Clara Hughes-Hillman, the lawsuit claims Sonic Corp, should have known to enable adequate protection of its consumer data particularly in light of recent, well publicized data breaches at other large chain restaurants and companies.

Notably, while Sonic has admitted to a data breach in September, the plaintiff alleges that she last frequented a Sonic restaurant in August and September of 2016, a full year prior to Sonic publicly admitting to the breach.

According to the proposed Sonic class action, the affected consumers are now vulnerable to unauthorized charges and theft of personal financial information, and must bear the costs of preventing and detecting identity theft, and may even lose financial standing as a result of the loss of access to funds, the possible inability to make payments on bills ad loans, and other adverse effects to their credit.

“Had Sonic implemented and maintained adequate safeguards to protect Customer Data, deter the hackers, and detect the beach within a reasonable amount of time, it is more likely than not that it would have been able to prevent the Data Breach,” the complaint states. “As a result of the Data Breach, the Customer Data of Plaintiff and the Class members have been exposed to criminals and is ripe for misuse.”

Hughes-Hillman seeks certification of a nationwide class of consumers whose personal financial information had been made vulnerable by Sonic to hackers who have put credit card numbers up for sale on the dark web. The complaint asks the court for damages, restitution and disgorgement from Sonic.

Hughes-Hillman and the putative class are represented by Kasif Khowaja and Frank Castiglione of The Khowaja Law Firm LLC, Brian Murray and Bryan Faubus of Glancy Prongay & Murray LLP, Paul Whalen of the Law Office of Paul C. Whalen PC, Jasper D. Ward IV of Jones Ward PLC, John Yanchunis of Morgan & Morgan Complex Litigation Group and Jean Martin of the Law Office of Jean Sutton Martin PLLC.

The case is Hughes-Hillman v. Sonic Corp., case number 1:17-cv-09062 in the U.S. District Court for the Northern District of Illinois.

Not so sunny days ahead for Bayer and Merck? —the owners of Coppertone, who find themselves on the end of a consumer fraud class action lawsuit. Filed against Bayer Healthcare LLC and Merck & Co. Inc. the Coppertone lawsuit alleges the advertising for their Coppertone Sport High Performance SPF 30 sunscreen is willfully false and misleading because the product does not provide greater protection against the sun as advertised, resulting in consumers paying for the product under false pretenses. And apparently, they’re not following their own scripts… read on.

Filed by consumer Andrew Roseman, the complaint states that Merck and Bayer acquired the Coppertone product line in 2014, and that they tested the products and found that their actual SPF is “substantially lower” than SPF 30. Therefore, they have mislabeled the spray and lotion versions of the sunscreen at SPF 30.

“Plaintiff and putative class members have been, and continue to be, injured by defendants’ pattern and practice of placing into the stream of commerce sunscreen products containing a false SPF number, and largely inflated UV protection numbers, which defendants manufactured, distributed, and sold,” the complaint states.

The spray and lotion versions of Coppertone Sport High Performance SPF 30 sunscreen each indicates on the front of the label that the product provides an SPF of 30, the lawsuit says.

The complaint cites the Coppertone website, which encourages consumers to buy a broad spectrum sunscreen with an SPF of at least 30 for protection from roughly 97 percent of the sun’s harmful rays.

However, the complaint notes that results from testing done by Consumer Reports indicate that the spray version’s actual SPF is less than half of that advertised.

Further, Roseman conducted his own testing which similarly found that the average SPF for Coppertone product’s was 13.9 as opposed to the SPF 30 as advertised. According to the complaint, Roseman’s test results show that the lotion’s SPF was 14.8.

Conversely, the label on Coppertone Sport High Performance SPF 30 product cautions against using products with an SPF of less than 15, according to the complaint.

“With a true SPF of only 13.9 and 14.8, the sunscreens do not even meet the minimum SPF value of 15 prescribed by their own labels, thereby subjecting users, according to those labels, to an ‘increase[d] … risk of skin cancer and early skin aging,’ not to mention sunburns,” the lawsuit says.

Roseman alleges Bayer and Merck conducted their own tests of the sunscreen prior to selling the Coppertone products, and therefore were aware that their labels were false. Roseman asserts that had he known the true SPF of the products, he would not have purchased them or would have paid less for them.

Roseman seeks to represent a class of New Jersey residents who have purchased Coppertone Sport High Performance SPF 30 sunscreen spray or lotion within the state since November 2, 2011.

The case is Roseman v. Bayer Healthcare LLC et al., case number 1:17-cv-13308, in the U.S. District Court for the District of New Jersey. 

Top Settlements

Santa’s bringing checks! Yup – Wells Fargo is going to pony up $13 million in settlement of an unpaid wages class action lawsuit, which will affect some 44,000 employees in California.  The lawsuit alleged the bank failed to pay for hours worked off-the-clock, including both overtime and straight-time pay, and failed to provide meal and rest breaks. If granted final approval, the settlement would end six and a half years of litigation.

The Wells Fargo settlement, reached in mediation, is non-reversionary, resolving California labor law and federal wage-and-hour claims. Plaintiffs state in their motion for approval that “If plaintiffs and the class prevailed on some or all of their class claims at trial, they would almost certainly face an additional appeal by Wells Fargo.” Further, plaintiffs would like not receive any relief until 2021, if they elected to pursue their case through the courts.

The average settlement payout is $174 per class member. Recipients include tellers who’ve worked for the bank from August 20, 2008, and certain service managers who worked for the bank from April 7, 2011. Additionally the seven named plaintiffs will receive $10,000 each under the agreement.

The case is Wells Fargo Bank Wage and Hour Cases, case number JCCP4702 in the Superior Court of the State of California, County of Los Angeles. 

Ok Folks – That’s a wrap for this week. Time for Santa – Happy Holidays!!!

Week Adjourned: 12.15.17 – Google, Marriott, Pier 1 Imports

Top Class Action Lawsuits

North of the 49th and just slightly south of the law? Google got hit with a Canadian privacy violation class action lawsuit this week, alleging the internet giant has been collecting location data from Android smart phone users even when “location services” are shut off and SIM cards are removed. Maybe I should be shocked, but hey…

Filed by Vancouver resident Kipling Warner, the complaint states “Google collects, uses, retains and commercialises [sic] the location data it takes from users, and profits from it. Google’s wrongful acts violated the Privacy Act … and unjustly enriched it at the expense of users. Through this suit, Canadian users seek to hold Google accountable for this unlawful conduct.”

The Google privacy lawsuit, filed on November 28 in BC Supreme Court, claims Warner owns a Samsung Galaxy S4 that runs Google’s Android operating system. Despite having had the phone’s location services feature disabled, Warner asserts that in 2017, Google “began a program of mass user surveillance.” The data, according to the lawsuit, enabled Google to monitor and identify users’ movements and locations.

“Google’s decision to collect the Location Data was planned and deliberate, and was made knowing that users had not consented to, and were not aware of, its collection,” the proposed class action states.

Further, Kipling claims, Android users’ privacy was violated and the data collection could allegedly facilitate “surveillance by hackers or undesireable state actors” while people who need their locations kept secret such as victims of abuse, journalists and confidential sources, or undercover police officers, are under “increased risk of personal harm from disclosure,” the claim states.

Kipling seeks an order certifying the lawsuit as a class proceeding, damages for breach of the Privacy Act, and “disgorgement of all benefits received by Google attributable to the unauthorised [sic] collection, retention, and use of the Location Data.”

Vacation spoiler? Those annoying and potentially illegal robocolls could put you off your poolside vibe for sure. This week, Marriott Vacation Club got hit with a proposed class action lawsuit alleging the company made unsolicited robocalls to the consumers’ cellphones using an autodialer, in violation of the Telephone Consumer protection Act (TCPA).

Filed in California federal court by lead plaintiff, Cheri Astrahan, the proposed action alleges Marriott Vacation Club had, without her permission, used an automatic telephone dialing system with an artificial or pre-recorded voice, to contact her cell phone. However, in 2003, she had added her cellphone number to the national do not call registry. Ah – does that matter?

“Plaintiff requested for defendant to stop calling plaintiff, thus revoking any prior express consent that had existed and terminating any established business relationship that had existed,” the complaint states. “Despite this, defendant continued to call plaintiff in an attempt to solicit its services and in violation of the National Do-Not-Call provisions of the TCPA.”

According to the proposed lawsuit, Marriott Vacation Club, a timeshare operator, made numerous unsolicited telephone calls to Astrahan’s cell phone over a 12-month period. Specifically, she claims that beginning in October, Marriott Vacation Club contacted her on her cellphone in an attempt to solicit her to buy the time share’s services.

However, on October 25, 2003, Astrahan claims, she revoked consent for the time-share company to call her cellphone by expressly requesting that the company cease its solicitation. The revocation ended any prior express consent that had existed and terminated any established business relationship that had existed between Astrahan and Marriott Vacation Club, according to the complaint.

In her complaint, Astrahan asserts Marriot Vacations Worldwide has committed four violations of the TCPA and she is seeking $500 in statutory damages for each negligent violation and treble damages of up to $1,500 for every knowing and willful violation.

The proposed nationwide class numbers in the thousands, so damages exceed the $5 million threshold for federal court jurisdiction under the Class Action Fairness Act of 2005, according to the lawsuit.

The case is Cheri Astrahan v. Marriott Vacations Worldwide Corp., d/b/a Marriott Vacation Club, case number 8:17-cv-02139, in the U.S. District Court for the Central District of California. 

Top Settlements

Good news for the holidays! A preliminary $3.5 million settlement has been reached potentially ending a California labor law class action lawsuit pending against Pier 1 Imports.

The lawsuit, filed by Lauren Mathein and Christine Sabas, alleged Pier 1 failed to reimburse the class for hours spent working without pay while checking in to find out if they had to work a “flex shift.” This involved Pier 1 enforcing what is known as a Flex Shift policy, which requires associates to report for work either by phone or in person, before they are told they have to work that day.

Pier 1’s policy, the lawsuit claims, is in violation of California wage laws and the California Private Attorneys General Act because it required employees to “mold their lives around the possibility that they will work each and every” so-called call-in shift, even though the home goods store often chose not to put them to work.

According to the preliminary Pier 1 settlement, each plaintiff will receive $12,500 in addition to his or her entitlement as a class member, which will be determined after all other deductions are taken into account.

The case is Mathein v. Pier 1 Imports Inc. et al., case number 1:16-cv-00087, in the U.S. District Court for Eastern California. 

Ok Folks – That’s a wrap! See you at the bar.

Week Adjourned: 12.8.17 – #metoo, Xarelto, Unpaid Overtime

Top Class Action Lawsuits

#metoo. Organized sexual assault? Think organized crime. That’s the underlying allegation in a new class action lawsuit filed against Harvey Weinstein and affiliates this week. The lawsuit claims the defendants engaged in an illegal organized enterprise to conceal and further Weinstein’s pattern of sexual assault.

The six plaintiffs, namely Louisette Geiss, Katherine Kendall, Zoe Brock, Sarah Ann Masse, Melissa Sagemiller and Nannette Klatt are representing a proposed class of hundreds of actresses who suffered sexual assault, false imprisonment, battery, rape and other heinous sexual acts at the hands of Harvey Weinstein.

According to the plaintiffs bringing the case, they were lured by Miramax or TWC employees and isolated with Weinstein at industry events, hotel rooms, Weinstein’s home, office meetings and/or auditions or to discuss involvement in a project. The lawsuit filed against Weinstein, Miramax, The Weinstein Company Holdings and the members of its Board of Directors states that these entities colluded together to perpetuate and conceal Weinstein’s widespread sexual harassment and assaults.

Further, the complaint states that Miramax and The Weinstein Company (which Weinstein co-founded) facilitated Weinstein’s organized pattern of predatory behavior, equating to an enterprise that violates the Racketeer Influenced and Corrupt Organizations Act, commonly referred to as the RICO Act, the same law brought against members of the Mafia for organized criminal behavior.

Each of the lawsuit’s six plaintiffs allege they were separately and systematically lured into isolating and intimidating environments by Weinstein, under false pretenses of industry-related meetings. They were assaulted, imprisoned in hotel rooms, airplanes and his home, and faced career-ending threats if they refused his unwanted advances and requests. In the instance of plaintiff, Sarah Ann Thomas, “Weinstein conducted the interview in his underwear, embraced Thomas in a sexual manner, and did not give her the job when she did not take him up on his sexual propositions.”

“Weinstein’s widespread sexual misconduct did not occur without the help of others,” the lawsuit states. “Rather, over time, Weinstein enlisted the aid of other firms and individuals to facilitate and conceal his pattern of unwanted sexual conduct. This coalition of firms and individuals became part of the growing ‘Weinstein Sexual Enterprise,’ a RICO enterprise.”

The complaint highlights reports from The New Yorker detailing “Weinstein’s Army of Spies” that Weinstein engaged to harass, threaten, extort, investigate and mislead his victims and the media to prevent the prosecution, reporting or disclosure of his sexual misconduct. This included members posing as fake journalists, and in the case of Plaintiff Katherine Kendall, contacting her, causing significant additional distress. These enterprise members also destroyed and concealed records and other evidence, the complaint states.

The lawsuit brings various charges against Weinstein, his companies, and members of The Weinstein Company’s Board of Directors for violating the RICO Act, witness tampering, mail and wire fraud, assault, civil battery, negligent supervision and retention, and intentional infliction of emotional distress.

It also seeks retribution for class members’ loss of work opportunities and devastating damage to their careers, the damages for which can be tripled under RICO law. Plaintiffs also seek damages for the significant physical and emotional distress they endured then, and continue to endure now.

The lawsuit highlights that at all times, Weinstein’s victims and those who met to discuss projects or audition for him “operated under duress and the threat of being blacklisted” by Weinstein and major producers at Miramax if they refused, or spoke up.

Top Settlements

Xarelto settlement news… This week saw a turnaround for plaintiffs suing units of Johnson & Johnson (J&J) and Bayer AG in the fourth bellwether (Rivaroxaban) case being heard as part of a Xarelto mass tort. The plaintiffs won, in fact they were awarded nearly $28 million. This is the first Xarelto jury verdict favoring a plaintiff, in this case Lynn Hartman, who alleged she suffered a serious gastrointestinal bleed while using the blood thinning medication.

The jury found that the pharmaceutical companies failed to provide adequate warnings regarding the risks for bleeding associated with Xarelto.

Hartman’s case is one of more than 1,500 pending lawsuits, constituting a mass tort program in the Philadelphia County Court of Common Pleas to consolidate Xarelto-related product liability claims.

Those claims essentially state that Janssen Pharmaceuticals Inc. and Bayer Healthcare Pharmaceuticals Inc, failed to provide information about the significantly higher rate of bleeding among US patients compared with those elsewhere in the world, reported in a clinical trial.

Evidence provided during the trial indicated that the annual rate of bleeding in US patients was 8.1 percent compared with 3.6 percent among study participants globally.

Further, Hartman claimed that the defendants did not provide adequate warning concerning the increased risk for bleeding in patients using aspirin as well as Xarelto, and that the companies failed to tell doctors that some patients end up with significantly higher levels of the medication in their blood than others.

Hartman’s attorneys also argued that the risk of adverse events associated with Xarelto was significantly higher than that of two other popular blood thinners Eliquis (apixaban) and Pradaxa (dabigatran).

Testimony from former Food & Drug Administration chief David Kessler, added gravitas to Hartmann’s allegations, when he told jurors that he believed the warning label for Xarelto lacked key information about the severity of the potential risk for bleeding associated with its use.

Xarelto (known generically as Rivaroxaban) is a new-generation anticoagulant, in a class of drugs known as direct thrombin inhibitors. It is a blood thinner used to reduce the risk of blood clots and strokes. Xarelto has also been marketed as being easier to use than warfarin (known by the brand name Coumadin), an older anticoagulant, because it does not require medical monitoring.

The case is Hartman v. Janssen Pharmaceuticals Inc. et al., case number 160503416, in the Court of Common Pleas of Philadelphia County, Pennsylvania.

Raising the stakes for unpaid overtime violation! Four fracking crane operators in Pittsburgh, who sued a drilling company for failing to compensate them for overtime worked, have had their compensation awards doubled by the federal judge hearing their case. Now that’s gotta feel good.

The decision follows a jury finding from October, stating that Oil States Energy Services “willfully and recklessly” failed to pay overtime wages to the operators. The jury awarded each of the plaintiffs tens of thousands of dollars in compensation. The company argued they were “highly compensated” and exempt under the Motor Carrier Act.

To avoid liquidated damages, Oil States would have had to prove that it tried to reasonably comply with the act, and it argued that its payment plan did just that.

“Oil States argues paying crane operators a salary and a job bonus, instead of hourly with overtime, conformed to industry standard practice and thus shows good faith. … Oil States offered no evidence it independently researched whether the industry standard salary and job pay plan for crane operators complied with the act,” the judge wrote.

The judge also found that Oil States did not act in good faith by determining that the employees were exempt under the highly compensated exemption.

Ok Folks – That’s a wrap! See you at the bar.

Week Adjourned: 12.1.17 – Toyota, Amazon, ADT

Top Class Action Lawsuits

Edible cars? Ask Toyota. They got hit with a proposed defective automotive class action alleging the car giant used soy-based materials in some of its wiring materials, which has attracted rats and mice – a meal too good to pass up? Apparently, because they rodents are  gnawing at the wiring, which require repairs that Toyota has so far refused to cover. And that’s hard fort car owners to swallow.

Filed by Plaintiff Ray Roscoe, the Toyota lawsuit claims that he was told by a Toyota dealership in December 2016 that an additional extended warranty he had purchased did not cover the extensive damage caused by mice on his 2012 Toyota Sequoia. This is because rodents are considered an “outside source of damage to the car”, even though the dealership has to retain a “mouse man” whose sole job is to repair the vehicle damage rodents cause, according to the complaint.

“The inclusion of soy-based materials in class vehicle electrical wiring and wiring components attracts rodents and other animals that nest under the hoods of class vehicles and feast on the soy insulation and electrical wires, thereby compromising the integrity of class vehicle electrical systems and rendering class vehicles fully or partially inoperable,” the complaint states.

The lawsuit goes on the state that complaints filed with the National Highway Traffic Safety Administration provide evidence that many consumers have experienced wire damage caused by rodents and other animals chewing the soy-based portions of the wiring in several Toyota models. Class vehicles include the 2009-2016 Camry, 2002-2016 Camry Hybrid and the 2014-2016 Corolla, among others.

Further, the lawsuit alleges Toyota must have been aware of the defect from the NHTSA records as well as various news reports and its own log of customers’ complaints, but nevertheless “routinely refuses” to repair the vehicles under warranty because it says rodent damage is an environmental problem.

“The environmentally friendly and less expensive soy-based coating is the problem,” the complaint states. “While class vehicles are essentially being attacked by rodents and other animals, older vehicles with non-soy-based insulated wires that are exposed to similar conditions do not experience rodent-caused damage.”

The plaintiff is seeking a minimum of $17,405.36 in damages to recoup the cost of repairs and a rental car he used while his car was in the shop. The proposed class is defined to include everyone in Massachusetts who owns or leases one of 17 Toyota vehicle models, which could involve “many thousand[s]” of class members, according to the complaint.

The case is Ray Roscoe individually and on behalf of all others similarly situated v. Toyota Motor Sales USA Inc., number 3:17-cv-12332 in the U.S. District Court for Massachusetts.

They’re working on it! Amazon employees that is… They filed an employment class action lawsuit against Amazon this week, alleging the online retailer fails to provide its fulfillment centers employees with rest breaks and overtime pay for shifts exceeding 10 hours in length.

Filed by named plaintiff Romeo Palma, who works for Golden State FC LLC, the business that operates several of Amazon’s fulfillment centers in California, the lawsuit asserts he and other workers haven’t received overtime wages, premium wages and timely and accurate wage statements as a result of working 10-hour shifts that don’t provide a requisite third rest break.

According to the Amazon complaint, workers’ duties include packaging, loading, unloading and other tasks. Further, workers are regularly scheduled for 10-hour shifts or more. Workers must walk through large warehouse facilities when they clock in and out of shifts, which can take several minutes, time they are not compensated for, according to the complaint. Further, they are not paid for the time it takes to travel to their location for work.

“This results in class members’ working on the clock more than 10 hours, when scheduled for a 10-hour shift, without receiving or being compensated for a third rest break, in violation of https California labor law”, the complaint states.

“The compensation for the third rest break, because it is for shifts exceeding 10 hours, must be at the overtime rate of one and a half time plaintiff and class members’ regular rate of compensation. Defendant’s failure to compensate plaintiff and class members for third rest breaks, as alleged herein, violated California law”, the complaint states.

Plaintiffs are seeking one hour of wages for each missed or uncompensated rest period, all unpaid overtime wages and liquidated damages on the overtime claim, statutory penalties and restitutionary disgorgement pursuant to the Unfair Competition Law.

The proposed class seeks to represent any California resident who worked for Golden State as a nonexempt employee in the past four years.

The case is Romeo Palma v. Golden State FC LLC d/b/a Amazon.com, in the Superior Court of the State of Sacramento. 

Top Settlements

Secure your ADT settlement payment! A $16 million settlement has received preliminary approval potentially ending a data breach class action lawsuit pending against home security company ADT.

According to the ADT lawsuit, ADT was negligent in securing its customers’ data, leaving it vulnerable to hacking. This settlement resolves claims brought in five separate ADT class action lawsuits filed between November 2014 and April 2016 in Arizona, California, Florida and Illinois.

Eligible class members include former and current ADT customers who, between November 13, 2009 and August 15, 2016, contracted with ADT or an ADT dealer for installation of a residential security system for at least one wireless peripheral sensor. Eligible class members can receive up to $45 from the settlement fund, once final approval is granted.

Under terms of the settlement, ADT will put up a $16 million in the fund to cover fees, court costs, incentive awards for the named plaintiffs, and costs of administering the settlement. Remaining settlement funds will be distributed among qualifying Class Members who submit valid and timely claims. Qualifying claimants will receive a larger payment if they contracted for installation of an ADT security system after July 23, 2014. Documents revealed in discovery show the wireless vulnerability at issue was brought to ADT’s attention as of that date. The higher payment reflects the greater strength of those Class Members’ claims.

The deadline to file a claim is February 26, 2018. A final fairness hearing is scheduled for February 2018.

The case is Edenborough v. The ADT Corporation and ADT, LLC d/b/a ADT Security Services, Case No. 16-cv-02233-JST, in the U.S. District Court for the Northern District of California.

So folks – on that happy note – this week’s a wrap –see you at the bar!!

Week Adjourned: 11.25.17 – Uber, Dave & Buster’s, Monitronics

Top Class Action Lawsuits

Uber trying to be hush-hush? Uber is facing a data breach class action lawsuit filed by a resident of Portland who alleges the ride share company was negligent in its safeguarding of customer data, resulting in a data breach in October 2016, in which hackers accessed and stole data from 57 million Uber customers and drivers.

What? You didn’t hear about the data breach? You’re not alone.

The Uber lawsuit contends that rather than reporting the data breach promptly, as required by state law, Uber paid hackers $100,000 to delete the data and keep the breach quiet. Seriously.

In a recent report to Bloomberg, Uber said it believes the information stolen in 2016 was never used but declined to disclose the identities of the hackers.

The proposed class action was filed by Medhi Seifian, alleging the compromised data includes names, email addresses and phone numbers of 50 million riders worldwide. Further, personal information of approximately seven million drivers also was accessed, including 600,000 US driver’s license numbers.

Contrary to Uber’s claims that the hacked data has not been used, Seifian alleges that since the data breach he has experienced undisclosed economic losses and his credit has suffered. Uber could have mitigated those losses had it promptly notified customers of the cyber attack, the lawsuit states. By the time it did, “the damage to their credit was already done.”

Seifian is seeking class action status, according to the lawsuit filed in US District Court in Portland. He says the cyber attack affected an estimated half-million Oregonians.

The lawsuit seeks fair compensation to cover credit repair and monitoring services on behalf of “an estimated 500,000 Oregon consumers harmed by Uber’s failure to adequately protect their personal information.”

Top Settlements

Buster’d benefits? Here’s one for the books. While the $7.425 million settlement is not huge, it is important. It will hopefully bring a satisfying conclusion to a class action lawsuit pending against the Texas-based restaurant and entertainment chain Dave & Buster’s Inc. The lawsuit alleged the company illegally cut its workers’ hours to deprive them of health-care benefits. Wow.

The two-year old lawsuit is brought by an employee who alleged her hours were cut from approximately 40 a week to less than 30. This resulted in her being ineligible for health benefits. According to the lawsuit, Dave & Buster’s reduced its workers’ hours to prevent them from continuing to receive health benefits under the company plan.

Should the proposed Dave & Buster’s settlement receive final court approval, some 1,200 class members would benefit. This is the first Employee Retirement Income Security Act lawsuit that alleged an employer, in response to the employer mandate of the Affordable Care Act, intentionally interfered with workers’ benefits by cutting their hours to make them part time. The number of full-time workers a company has factors into whether the mandate requires them to provide those workers with health coverage. The employee brought the case pursuant to an ERISA provision that prohibits employers from taking an employment action with the specific intent to interfere with benefits.

In 2016, a federal judge in New York refused to dismiss the lawsuit, finding instead that sufficient evidence existed to support the workers’ claims that the company acted with an “unlawful purpose” when it reduced the hours of hundreds of employees and thereby made them ineligible for health benefits.

A call you do want to get… If you received an unsolicited, automated phone call from Monitronics – this could net you some cash. The home security firm has agreed to pay $28 million to settle a Telephone Consumer Protection Act (TCPA) class action lawsuit alleging it made automated telephone calls to phone numbers listed on the national Do Not Call Registry (DNCR) and to consumers who had not provided their consent.

The settlement will address claims made in a class action lawsuit brought against Monitronics in May 2011 by plaintiff Diana Mey, which has been consolidated with more than 30 similar Monitronics TCPA proposed class action lawsuits.

The complaints all allege Monitronics, a home security company, used an automated dialing system or an artificial or pre-recorded voice to make telemarketing calls to people’s cell phones without their consent, or listed on the national DNCR, in violation of the TCPA.

Eligible class members include all persons who, since May 18, 2007, received a telemarketing call from an authorized Monitronics dealer, or a Monitronics dealer’s lead generator or sub-dealer, on a residential or cell phone using an automated telephone dialing system or pre-recorded voice, or two or more calls within a 12-month period to a residential number listed on the national DNCR.

A final fairness hearing is scheduled for March 2018.

The case is In re: Monitronics International Inc. Telephone Consumer Protection Act Litigation, Case No. 1:13-md-02493, in the U.S. District Court for the Northern District of West Virginia.

Ok Folks – Happy Thanksgiving! See you at the bar.

Week Adjourned: 11.17.17 – Eversource Energy, Wells Fargo, Defective Hip Implants

Top Class Action Lawsuits

Check your Electric Bill… If you live in any of the following states – Massachusetts, Maine, Vermont, New Hampshire, Connecticut and Rhode Island – you need to read this. New England residents have filed an antitrust class action lawsuit against Eversource Energy and Avangrid Inc, alleging the two energy companies caused its electricity consumers to incur overcharges of $3.6 billion in a years-long scheme that impacted six states and affected 14.7 million people.

According to the lawsuit, filed in the US District Court for the District of Massachusetts, 7.1 million retail electricity customers and an overall population of 14.7 million people have been affected by Eversource and Avangrid’s “unique monopoly” spanning at least from 2013 to 2016.

Specifically, the scheme raised electric prices by at least 20 percent for those living in Massachusetts, Maine, Vermont, New Hampshire, Connecticut and Rhode Island. The complaint alleges the scheme violates multiple federal and state competition laws and state consumer protection statutes.

Eversource and Avangrid own multiple electric utility subsidiaries, including United Illuminating, Connecticut Light and Power Company, Central Maine Power Company, Western Massachusetts Electric Company, NSTAR Electric Company and Public Service Company of New Hampshire.

The lawsuit centers on the electric overbilling scheme involving Eversource and Avangrid’s manipulation of the amount of natural gas available to power plants. The two companies regularly constrained the amount of natural gas that could flow throughout New England by reserving far more than they knew they would need, according to the complaint. This artificially limited the amount of gas, which is used to fuel many of the region’s power plants, therefore pushing electric costs higher.

The lawsuit calls the market manipulation scheme the largest since Enron: “Not since Enron’s greedy heyday during the California energy crisis, nearly two decades ago, have American energy markets been manipulated for private profit at such expense to everyday electricity consumers.”

The lawsuit states that Eversource and Avangrid’s anticompetitive scheme had an enormous and wide-ranging impact on the New England electricity market as a whole. Further, the lawsuit claims that their manipulation of natural gas supplies directly caused electricity prices across the region to spike 20 percent higher than they would have been otherwise, leaving utility customers paying the price.

Top Settlements

Wells Fargo Fraud Settlement… A $142 million settlement has been reached in the Wells Fargo account fraud class action lawsuit over the alleged creation of false customer accounts, services, and applications for products and services made without customers’ knowledge or consent.

The lawsuit names Wells Fargo & Company and Wells Fargo Bank, N.A., as defendants in the banking fraud lawsuit.

Customers included in the settlement had certain Wells Fargo credit cards, lines of credit, checking, or savings accounts opened or applied for in their name without their permission, or had authorized identity theft protection services from Wells Fargo, from May 1, 2002, to April 20, 2017.

The benefits of the Wells Fargo settlement include:

  • Fee Reimbursement: A payment to compensate individuals for fees they may have paid in connection with unauthorized accounts.
  • Credit Impact Damages: Cash to compensate individuals for damages caused by harm to their credit.
  • Additional Payment: Any money remaining in the fund, after paying the benefits above and all costs and expenses, will be paid out as additional compensation on a per-account basis.

Eligible customers can now submit a simple claim form online or by mail by February 3, 2018 to get a payment.

Eligible customers must object to or exclude themselves from the Settlement by February 19, 2018. Please note the Court recently extended these deadlines.

A final fairness hearing is scheduled for March, 2018, to consider whether to approve the Settlement.  he hearing date may be subject to change.

The lawsuit is Jabbari v. Wells Fargo, No. 3:15-cv-02159, in the Northern District of California.

Another Bellwether in the DePuy Hip Litigation… This week, a $247 million verdict was awarded against the maker of DePuy Orthopedics Inc, and its parent company Johnson & Johnson (J&J),  with $90 million in punitive damages against J&J and $78 million in punitive damages against DePuy. The settlement is the third consecutive multi-million dollar verdict delivered in this multidistrict litigation.

The verdict will settle claims made in this bellwether trial against DePuy’s Pinnacle hip replacements that the implants are essentially defective. The jury, hearing the case in Dallas, unanimously found J&J and DePuy liable for a series of design and manufacturing defects, fraud and deceptive business practices. Further, they found both defendants acted with wanton, reckless or malicious conduct.

More than $77 million was awarded for past and future medical expenses and pain and suffering to the six individual plaintiffs, each of whom is from New York. Additionally, the jury awarded four of the plaintiffs’ spouses damages for loss of consortium, totaling $1.7 million.

The trial took two months, and is the fourth bellwether case in multidistrict litigation that includes more than 9,000 cases, all alleging design defects in DePuy’s Pinnacle Ultamet line of metal-on-metal hip implants.

The jurors heard the six plaintiffs tell of their suffering resulting from a range of injuries, including severe tissue damage that caused permanent muscle loss, intense pain, loss of hip movement and walking with a permanent limp. All six plaintiffs claimed that the Pinnacle product shed microscopic metal ions into their bodies, a phenomenon known as metallosis. They alleged J&J and DePuy didn’t warn surgeons about these side effects, which could have been avoided with a safer design.

Specifically, the jury found J&J and DePuy liable for design defect, negligent design, inadequate warning, manufacturing defect, negligent manufacture, negligent misrepresentation, intentional misrepresentation to the surgeons who performed the initial hip implant surgeries on the plaintiffs, fraudulent concealment from the plaintiffs and from the surgeons and deceptive business practices as to the plaintiffs and the surgeons.

Additionally, J&J was found liable for negligent undertaking of a duty to provide services to DePuy and for aiding and abetting DePuy in its tortious conduct. Neither J&J or DePuy were  liable for intentional misrepresentation to the plaintiffs.

The consolidated cases are Alicea et al. v. DePuy Orthopaedics Inc. et al., case number 3:15-cv-03489; Barzel v. DePuy et al., case number 3:16-cv-01245; Kirschner v. DePuy et al., case number 3:16-cv-01526; Miura v. DePuy et al., case number 3:13-cv-04119; Stevens v. DePuy et al., case number 3:14-cv-01776; and Stevens v. DePuy et al., case number 3:14-cv-02341, in the U.S. District Court for the Northern District of Texas.

Ok – That’s quite enough for this week! See you at the bar.