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: 1.20.17 – Walmart, Apple, J&J

Top Class Action Lawsuits

What are a few screws worth these days? A lawsuit—that’s what! Walmart is facing a class action lawsuit brought by customers who allege the big-box retailer is negligent in its in-store assembly of bicycles, a free service offered at all Walmart stores where bikes are sold.

Filed in Florida federal court by plaintiff Boyd Johnson, the Walmart lawsuit claims that Johnson purchased a semi-assembled Roadmaster Granite Peak bicycle from a Walmart in Pompano Beach, Florida. He had the bike assembled completely by store employees upon purchase. However, shortly after bringing the bike home and taking it for a ride the handle bars allegedly slid down due to an improperly installed bolt, causing him to lose control and fall to the pavement, injuring his face, shoulder and right side of his body.

Walmart began using its own employees to assemble bikes in 2014. Prior to that, the company had used third party vendors to do full assembly of the bikes. Walmart employees also assemble patio furniture and other products in-store, according to the complaint.

The employees that now carry out the bike assembly received “inadequate training,” according to complaint, and carry out the assembly of a bike with no assembly checklist, which are “crucial to maintaining safety standards” and readily available.

“Walmart has already been sued on the subject of improper bike assembly, yet injuries are still occurring due to the continuance of careless and sloppy in-house assembly of their bikes,” the lawsuit states. “The public should expect Walmart’s bike assemblers to be trained in bike assembly and require inspections before placing the bikes in the stream of commerce.”

According to the complaint, Wal-Mart’s bike assemblers are allegedly not properly trained or certified, which has led to the “negligent and reckless bike assembly procedures” that ultimately injured Johnson and likely other consumers, the suit states. The retailer could have provided that training and certification for less than $30 per employee.

Further, the complaint states that the Walmart bike assemblers are under such “pressure to assemble bikes as fast as they can” in order to meet customer demands that they can’t conduct inspections of the bicycles they assemble before handing them off to customers.

“They do not have time to properly inspect the bikes after assembly and fail to inspect even the most basic safety features, such as making sure that bolts are properly tightened or that brakes and tires are properly installed,” the complaint states. Yes, no, that’s not good.

The lawsuit claims negligence and breach of warranties and is seeking certification of a class of Florida and national consumers who purchased a bike from Wal-Mart that was improperly assembled. The suit also asks that Walmart be enjoined from continuing its allegedly negligent practices among other things.  The case is Johnson v. Wal-Mart Stores, Inc., number 0:17-cv-60116, in the U.S. District Court for the Southern District of Florida.

Here’s hoping everyone rides off into the sunset happily ever after on this one.

Unsafe Apples? This is interesting…A proposed unfair business practices class action lawsuit has been filed against Apple alleging the tech giant doesn’t install a “lock-out-device” on iPhones to prevent California motorists from texting while driving, putting profits ahead of customer safety.

Filed in California state court the complaint represents proposed class plaintiff Julio Ceja who claims that Apple has been granted a patent by the U.S. Patent and Trademark Office in 2014 for the “lock-out-device” technology. However, Ceja claims the company has failed to modify iPhones with the device for fear of losing market share to other phone makers, to the detriment of public safety. According to the lawsuit, Apple has had the technology to prevent texting and driving since 2008.

The Apple complaint alleges unlawful, unfair and fraudulent business acts and practices by Apple. The suit seeks to block the company from selling iPhones in California that do not have the disabling lock-out device. Additionally, the suit seeks a court order that Apple update its existing iPhones with this technology.

BTW—if you were wondering how much Apple makes on sales of its iPhones—the complaint notes that the company generated $8.5 billion in profit from smartphone sales in the third quarter of 2016 alone, and an average of 586,000 iPhones per day in 2016.

Do here’s the math as it relates to texting and driving accidents:

“With 26 percent of these accidents being caused by motorists using their cellphones, and Apple’s 40 percent market share, this translates into at least 52,000 automobile accidents in California being caused by Apple’s iPhones each year,” the complaint states.  Wow.

Ceja, who lives in Orange County, CA, was waiting at a stoplight when a driver distracted by her iPhone struck him from behind, causing damage to his car and injuring his back, according to the complaint.

The lawsuit describes the proposed class as “all California residents whose safety has been put at risk as a result of Apple’s failure to install ‘lock-out devices’ on their iPhones,” starting from the time Apple began selling iPhones in the state, in 2007, to present day.

The case is Julio Ceja v. Apple Inc., case number BC647057, in the Superior Court of the State of California, County of Los Angeles.

Don’t think there’s any likelihood of driving off into the sunset with this baby—with or without the device.

Top Settlements

Asleep at J&J? Heads up if you bought Johnson & Johnson (J&J) bath and bedtime products: J&J is seeking final approval of a $5 million settlement of a consumer fraud class action lawsuit pending against it for alleged false advertising of certain bedtime and bath products. If you’re eligible—you could be in for a wee pay day.

The back story: The original lawsuit was filed by a mother in Illinois in July 2015, and combined with other similar lawsuits, which claimed Johnson & Johnson had violated Illinois’ Consumer Fraud and Deceptive Business Practices Act by labeling and advertising its bedtime bath products as “clinically proven” to help babies sleep better, even though the products had not been shown to have that effect.

The class covers consumers who purchased J&J bedtime products for home use within the United States or any U.S. territories from July 1, 2010, through August 31, 2016.

The agreement received preliminary approval in August 2016. According to the terms, J&J would pay $5 million and revise the language on its packaging of its bedtime bath products.

The case is Leiner v. Johnson & Johnson Consumer Companies, Inc., case number 1:15-cv-05876, in the U.S. District Court for the District of Illinois.

Well folks –that’s a wrap for this week. See you at the bar.

Week Adjourned: 10.7.16 – American Airlines, iPhone, VW

american-airlinesTop Class Action Lawsuits

Travel Insurance Woes…A consumer fraud complaint against American Airlines took off this week, alleging the airline markets travel insurance as a pass-through charge paid to a third party but doesn’t disclose its profits.

Filed by Kristian Zamber, the multi-million dollar complaint asserts American Airlines misled its customers about its interests in selling the insurance policies and that it aggressively marketed travel insurance sold through its website.

The American Airlines lawsuit is seeking class certification, a jury trial and injunctive and equitable relief for alleged unjust enrichment and violations of Florida’s consumer protection statutes prohibiting companies from posing as revenue conduits.

According to the complaint, Zamber paid roughly $24 to purchase travel insurance in April for a domestic flight from Tampa to Pennsylvania. American Airlines stated the policy had no affiliation with the airline, but instead came from Allianz Global Assistance, with plans underwritten by Jefferson Insurance Co. or BCS Insurance Co. But in reality, the policy sales contributed to a “hidden profit center” for the Fort Worth, Texas-based airline, the complaint states.

The complaint also claims the airline forces customers to choose whether or not to purchase trip insurance policies before allowing them to complete online ticket purchases. Yup—been to that destination….

Touch Disease has Spread North of the border. Apple is facing a defective products class action lawsuit in Canada over allegations that it’s iPhone 6 and 6 Plus models have a defect which effectively results in the smartphone freezing or not responding to touch commands.

Following on from a similar defective products lawsuit filed in the US, the Canadian lawsuit claims Apple was aware of the problem but failed to take action to remedy it.

Filed at the Court of Queen’s Bench for Saskatchewan, the Canadian iPhone complaint would include all Canadian iPhone 6 and 6 Plus customers. It alleges that Apple was negligent because it supplied a defective phone, “knowingly and intentionally concealed” from customers the defect and failed to provide a proper remedy.

According to attorneys who filed the Canadian complaint, Apple has so far only offered its customers around $300 as compensation.

Shortly after the product was launched in 2014, one of the plaintiffs in the class action alleges she bought the iPhone 6 for around $200, hundreds of dollars less than the regular price because she locked into a two-year phone plan contract. Then, a few months after the warranty had expired on her phone, it began to intermittently freeze up and failed to respond to touch commands.

The lawsuit alleges that that the underlying problem is the touchscreen controller chips in the phone’s motherboard, which are not properly secured and can malfunction with regular use.

Top Settlements

Here’s a whopper—but then the size of the Volkswagen defeat device scandal is, likely, unprecedented. A $1.2 billion settlement has been reached between Volkswagen AG and 650 US VW franchise dealerships, ending litigation brought by the dealerships over the VW emissions scandal. Specifically, the dealerships alleged that the value of their businesses had decreased as a result of Volkswagen’s attempts to cheat on vehicle emissions tests through its so called “defeat devices.” According to documents filed Friday in California federal court, the deal will provide an average payout of $.185 million to each Volkswagen-branded franchise dealer in the US.

Additionally, the VW settlement provides for VW buying back from its franchisees, affected vehicles that can’t be put into emissions compliance, using the same terms granted to car owners as part of the tentative consumer settlement.

“This recovery to the franchise dealer class is outstanding, particularly given the immediate need for cooperation among Volkswagen and its franchise dealers to effectuate the terms of the $10 billion-plus consumer class action settlement that is presently pending approval before this court,” the motion states. “Without any obvious deficiencies, the settlement agreement readily meets the standards for preliminary approval.”

Further, there will be no claims process, as dealerships that don’t opt out of the settlement will automatically receive a cash payment based on a formula of 71 times the monthly support payment VW made to dealers in November 2015. Take it or leave it? Almost.

The MDL is In re: Volkswagen “Clean Diesel” Marketing, Sales Practices and Products Liability Litigation, case number 3:15-md-02672, in the U.S. District Court for the Northern District of California.

Well, that’s a wrap for this week. See you at the Bar!

Week Adjourned: 9.2.16 – iPhone 6, Tropical Smoothie, Avon

.appleTop Class Action Lawsuits

Do you have Touch Disease? Or, more to the point—does your iPhone 6 or 6 plus? Here are the symptoms loss of functionality by reduced responsiveness or no responsiveness at all, when interacting with the touch screen. The defect is typically preceded by a flickering grey bar across the top of the display. According to the lawsuit, the loss of functionality results from a defective logic board.

Yes—touch disease is an alleged defect in the iPhone 6 generation. It’s referred to as “touch disease”, because the alleged defect, the lawsuit asserts, manifests as reduced touch screen functionality.

An iPhone 6 defective products class action lawsuit was filed against Apple this week. One to watch. 

Heads up Tropical Smoothie Fans…a food poisoning class action lawsuit was filed this week against Virginia-based Tropical Smoothie cafes. The strawberry smoothies have been linked to an outbreak of Hepatitis A. The infected strawberries reportedly come from Egypt.

According to Virginia State health officials, at least 28 cases of Hepatitis A have so far been linked to the tainted strawberries. Last week, 35 cases of Hepatitis A had been recorded, with a majority connected to stores in Northern Virginia, according to state health officials. Tropical Smoothie has locations in Hampton, James City and York counties and roughly 300 stores nationwide.

The Tropical Smoothie lawsuit is filed against by a plaintiff claiming damages and recovery of costs associated with vaccination shots she got to guard against hepatitis A.

According to court documents, the plaintiff had smoothies at a Yorktown store in the last month or so. After finding out she’d possibly been exposed to hepatitis A, she followed health official recommendations and had a series of vaccination shots.

According to Virginia State health officials, customers of Tropical Smoothie outlets could have been infected even if they didn’t order smoothies with strawberries, because the cafes use the same blender to make smoothies.

FYI—Hepatitis A is a disease often transmitted by contaminated food or drinks that can cause liver infections with fever, jaundice and malaise. 

Top Settlements

Avon Ladies to get Compensated…Avon has reached a proposed $1.8 million settlement in an unpaid  overtime class action brought by Avon’s district managers, who alleged the company misclassified them as exempt employees and therefore did not pay them time and half wages they were due.

According to the terms of the proposed Avon overtime settlement, anyone who worked as a district manager at one of Avon’s California locations between April 2009 and March 31, 2016 will be able to claim compensation for their unpaid wages.

The settlement must receive final approval.

So folks, on that happy note, this week’s a wrap. Happy Labor Day long weekend—we’ll see you at the bar!!

Week Adjourned: 7.22.16 – Apple, Blue Shield, Herbalife

.appleTop Class Action Lawsuits

Bad Apple, Again? Yet another lawsuit against Apple, this one set to take a bite over allegations of consumer fraud surrounding devices that are replaced via AppleCare+ warranty with refurbished replacements that don’t meet a specific clause in the contract.

Filed in California, on behalf of plaintiff Vicky Maldonado and others similarly situated, the proposed class action alleges the clause claiming refurbished devices are “equivalent to new in performance and reliability” is false.

According to the Apple lawsuit allegations, a refurbished device is a “secondhand unit that has been modified to appear to be new” and therefore can’t be equivalent in durability and functionality as a new unit. Maldonado filed the suit after she purchased a third generation iPad and then cracked the screen after owning it for six months.

As the damage to Maldonado’s iPad was accidental in nature, she was forced to replace her tablet at an out of pocket cost of $250, according to the suit. However, she was told that for another $100 the AppleCare+ program would replace the tablet if similarly damaged in the future. Allegedly, the replacement iPad Maldonado was given under the warranty did not function properly and since it had impaired functionality, the tablet wasn’t equivalent to new, the suit asserts.

Following this, in 2013 Maldonado bought another iPad, a fourth generation model. She claims that she wasn’t informed that she would get a refurbished device if she damaged the tablet. When she tried to get a repair for the device in May 2015, she was given a refurbished device instead. According to court filings, she claims the device she received wasn’t equivalent to that of a new device either in performance or reliability.

Policy Policing Needed? Blue Shield got slapped with a consumer fraud class action lawsuit this week, filed by enrollees who allege the insurer owes its members another $35 million in rebates due to errors in its medical-loss ratio calculation of 2014. That’s some accounting error, if true…

Brought by plaintiffs Becky Ebenkamp and Rebecca Morris, the Blue Shield class action lawsuit seeks to represent more than 446,000 individual policy holders from that year.

According to federal law, insurers are required to issue refunds if they don’t spend at least 80 percent of premium dollars on medical care or on improving the quality of care. The complaint alleges Blue Shield improperly counted certain payments as medical expenses it had made erroneously in 2014 to providers who were not in its network and patients whose coverage had lapsed. By counting those mistaken payments as legitimate medical expenses, Blue Shield pushed itself closer to the 80 percent threshold, thus reducing the size of the refunds it owed, according to the complaint.

The lawsuit states that under the consumer refund rule, those payments should have been logged as administrative expenses, and Blue Shield customers are therefore entitled to a bigger refund.

The rebate rule, part of the Affordable Care Act, is intended to contain the cost of health coverage by limiting the share of premiums insurers can spend on administrative functions, executive salaries, overhead and profits. If an insurer spends only 75 percent of premium dollars on care, for example, it must send refund checks to enrollees equal to 5 percent of the premiums they paid.

Who knew? Ah, precisely.

Top Settlements

Herbalife to Pay Up…Remember that old adage, if it sounds too good to be true? Well, Herbalife International of America, Inc., Herbalife International, Inc., and Herbalife, Ltd. have agreed to fully restructure their US business operations and pay $200 million to compensate consumers to settle Federal Trade Commission (FTC) consumer fraud charges that the companies deceived consumers into believing they could earn substantial money selling diet, nutritional supplement, and personal care products.

In its complaint against Herbalife, the FTC also charged that the multi-level marketing company’s compensation structure was unfair because it rewards distributors for recruiting others to join and purchase products in order to advance in the marketing program, rather than in response to actual retail demand for the product, causing substantial economic injury to many of its distributors.

According to the FTC’s complaint, Herbalife claims that people who participate can expect to quit their jobs, earn thousands of dollars a month, make a career-level income, or even get rich. But the truth, as alleged in the FTC complaint, is that the overwhelming majority of distributors who pursue the business opportunity earn little or no money.

For example, as stated in the complaint, the average amount that more than half the distributors known as “sales leaders” received as reward payments from Herbalife was under $300 for 2014. According to a survey Herbalife itself conducted, which is described in the complaint, Nutrition Club owners spent an average of about $8,500 to open a club, and 57 percent of club owners reported making no profit or losing money.

The small minority of distributors who do make a lot of money, according to the complaint, are compensated for recruiting new distributors, regardless of whether those recruits can sell the products they are encouraged to buy from Herbalife.

Finding themselves unable to make money, the FTC’s complaint alleges, Herbalife distributors abandon Herbalife in large numbers. The majority of them stop ordering products within their first year, and nearly half of the entire Herbalife distributor base quits in any given year.

The Herbalife settlement requires Herbalife to revamp its compensation system so that it rewards retail sales to customers and eliminates the incentives in its current system that reward distributors primarily for recruiting. It mandates a new compensation structure in which success depends on whether participants sell Herbalife products, not on whether they buy products.

The settlement also prohibits Herbalife from misrepresenting distributors’ potential or likely earnings. The order specifically prohibits Herbalife from claiming that members can “quit their job” or otherwise enjoy a lavish lifestyle.

In addition, the order imposes a $200 million judgment against Herbalife to provide consumer redress, including money for consumers who purchased large quantities of Herbalife products (such as many Nutrition Club owners, among others) and lost money. Information on the FTC’s redress program will be announced at a later date.

Ok, that’s a wrap folks… See you at the Bar!

Week Adjourned: 3.6.15 – Facebook, Celgene, Tech Workers

FB Dislike buttonTop Class Action Lawsuits

Is it Facebook’s Time to Face the Ringtone? Maybe…the social media giant is facing a proposed Telephone Consumer protection Act (TCPA) class action lawsuit alleging it sends unwanted text messages to peoples’ cellphones notifying them that their accounts have been logged into. The $5 million complaint alleges that Facebook knowingly violated the TCPA by sending these unwanted text messages. According to the Facebook lawsuit, Facebook provides an “extra security feature” in which it sends log-in notifications to alert users when their account is accessed from a new device. However, these text messages are allegedly sent, in some cases several times a day, to people who haven’t given Facebook authorization to do so, who have asked Facebook to stop this practice, and who allegedly do not even have Facebook accounts. Question—how does FB acquire emails of people who don’t have FB accounts?

Servicing over a billion Facebook accounts worldwide, Facebook’s automated systems are powerful and, when used improperly, capable of extreme invasions into the privacy of American consumers,” the complaint states. “Facebook operates a sloppy system and in doing so shows complete disregard for the privacy of consumers.”

According to lead plaintiff Noah Duguid, Facebook began sending text messages to his cellphone in January 2014, without his having given his cell phone number to FB, or his having had any business dealings with the social media company. Oh, you just gotta love that.

After Duguid allegedly sent the defendant a detailed email in April 2014 complaining about the messages and asking that they stop, Facebook replied with an automatic email telling him to log on to its website to report the problematic content. This continued until the following October when Duguid allegedly responded to an Facebook text using the word “off”. After this, the company replied “Facebook texts are now off. Reply on to turn them back on.” Regardless, the company continued to text Duguid, according to the complaint.

The proposed TCPA class action lawsuit seeks to represent a class of individuals in the U.S. who didn’t give Facebook their cell number and received one or more of the accused texts within the four years before the filing of the complaint, and a class of individuals who received texts in the same time frame despite telling Facebook they didn’t want them. Plaintiff seeks at least $500 in damages for each violation of the TCPA. Go baby go!

FYI—the case is Noah Duguid et al. v. Facebook Inc., case number 3:15-cv-00985, in the U.S. District Court for the Northern District of California.

How Much is the Medicine Worth? There’s the $65 million dollar question facing Celgene Corp. They were hit with an antitrust class action lawsuit filed by The City of Providence in New Jersey, alleging the pharmaceutical company monopolized the market for two of its blockbuster cancer drugs by blocking its competitors’ access to samples necessary to bring generic versions to market.

According to the potential class action, Celgene is using risk evaluation and mitigation strategies, a federal drug safety measure, to prevent competitors such as Mylan Pharmaceuticals Inc. from gaining access to samples for Thalomid and Revlimid. Those samples are necessary for the Food and Drug Administration test for generic equivalency.

According to the lawsuit, “Due to Celgene’s monopolistic and anticompetitive conduct, plaintiff, and all other consumers and third-party payors, paid higher prices to treat leprosy and multiple myeloma than they otherwise would have absent Celgene’s conduct.” Specifically, the plaintiff alleges those prices have risen upwards of 3,400 percent since the initial approval of the treatments by the FDA in 1998. The lawsuit contends that one Revlimid pill sells for approximately $500.

The suit is City of Providence v. Celgene Corporation, case number 2:15-cv-01605, in the U.S. District Court for the District of New Jersey. 

Top Settlements 

I’m betting there’s a lot of happy tech engineers in Silicon Valley this week. A $415 million settlement has received preliminary approval ending a closely watched antitrust class action lawsuit filed by tech workers in Silicon valley. The lawsuit alleged that Apple Inc., Google Inc., Intel Corp., and Adobe Systems Inc., conspired to refrain from poaching each other’s employees thereby limiting job mobility and, consequently, keeping salaries at a standstill. Nice.


The antitrust class action lawsuit was filed in 2011, and was based largely on emails in which Apple co-founder Steve Jobs, former GoogleChief Executive Officer Eric Schmidt and some of their rivals detailed plans to avoid poaching each other’s prized engineers.


Nearly 64,000 workers are affected by the case. They accused the companies of a corporate conspiracy to make it difficult for tech workers to negotiate better jobs at rival companies.


Judge Lucy Koh said she was satisfied this week after the companies increased their earlier offer of $324.5 million. Let’s hope this deal get’s final approval.

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


Week Adjourned: 1.3.15 – Apple, GM, Wells Fargo

The Week’s Top Class Action Lawsuits and Settlements. Top stories include Apple, GM and Wells Fargo.

Apple logoTop Class Action Lawsuits

Another year, another Apple Lawsuit. Yup. This week, iPhone users in Miami filed a consumer fraud class action lawsuit against Apple Inc, alleging the Cupertino-based tech giant greatly overstated the storage capacity of devices that run its latest mobile operating system, iOS 8.

Lead plaintiffs filed the complaint  in U.S. District Court in Northern California claiming operating system itself requires a significant percentage of the storage capacity on the iPhones, iPads and iPods that run it, thereby making a large portion of the advertised space unavailable to device owners.

According to the lawsuit, in some cases, the space used is 23.1 percent. Further, the complaint alleges, Apple entices customers in need of more space to pay for extra storage on iCloud.

“Using these sharp business tactics, [Apple] gives less storage capacity than advertised, only to offer to sell that capacity in a desperate moment, e.g., when a consumer is trying to record or take photos at a child or grandchild’s recital, basketball game or wedding,” the lawsuit states. “To put this in context, each gigabyte of storage Apple shortchanges its customers amounts to approximately 400-500 high resolution photographs.”

The plaintiffs allege Apple is violating California laws prohibiting unfair competition and false advertising. They claim that reasonable consumers do not expect the “marked discrepancy” between the advertised level of storage capacity and the available level of capacity on Apple devices running the OS.

GM’s Record Year? GM must be facing some kind of record for the number of defective automotive class action lawsuits filed against it in 2014. The latest GM lawsuit, filed in December, alleges a defect in the steering system of its Chevrolet Volts which causes the steering wheel to freeze intermittently while driving. Yes—that could certainly cause a few problems.

Filed in New Jersey federal court, by plaintiffs Christopher Johnson and Tara Follari-Johnson, the GM lawsuit claims that GM knew, or should have known, about the alleged defect, but continued to sell the cars. The lawsuit further claims that the alleged defect poses a hazardous safety risk to drivers and that even when GM agrees to fix the steering system, it only replaces the allegedly defective steering rack with the same or similarly defective components.

“When class members present to GM’s authorized dealerships complaining of the steering defect, the dealerships recommend repairs such as replacing the steering rack or steering gear assembly,” the plaintiffs said. “However, these repairs only temporarily mask the problem.”

The lawsuit alleges GM is in violation of the New Jersey Consumer Fraud Act and the Magnuson-Moss Warranty Act, and in breach of implied warranty of merchantability and express warranty and common law fraud.

The plaintiffs propose to represent a nationwide class of owners and lessees of 2011-2014 Chevrolet Volt bought or leased new in New Jersey and a subclass of national class members who live in New Jersey. There are at least 100 members of the proposed class, according to the plaintiffs, and their claims are more than $5 million.

“Complaints that consumers filed with National Highway Traffic Safety Administration and posted in discussion forums demonstrate that the defect is widespread and dangerous and that it manifests without warning,” the complaint states. “The complaints further indicate defendants’ knowledge of the defect and its danger.”

Top Settlements

Wells Fargo Agreed to Pony Up $14.5 million as part of a preliminary settlement agreement reached in a Telephone Consumer Protection Act (TCPA) class action lawsuit. The lawsuit was  brought on behalf of millions of customers who alleged Wells Fargo Bank NA called them on their cellphones to collect credit card debt.

Brought by lead plaintiff Lillian Franklin, the Wells Fargo settlement motion, if approved, will resolve her suit claiming the bank violated the Telephone Consumer Protection Act by making automated calls to alleged debtors without their consent. She filed suit in August, claiming the financial institution called her multiple times on her cellphone in 2010, to collect an alleged debt on her credit card. The calls featured a pre-recorded message and were made without Franklin’s consent, according to the lawsuit.

According to the settlement terms, a settlement fund will be shared evenly between class members who submit claims. Currently, the class consists of 4 million members. The fund will established after consideration of attorneys’ fees and administration costs, according to the motion.

The case is Franklin v. Wells Fargo Bank NA, case number 3:14-cv-02349, in the U.S. District Court for the Southern District of California.

Hokee Dokee—That’s a wrap folks…Time to adjourn for the week.  Happy New Year!

Week Adjourned: 12.5.14 – Apple, Football Concussions, Truvia

The week’s top class action lawsuits and settlements. Top stories include Apple, high school football concussions and Truvia sweetener.

Apple logoTop Class Action Lawsuits

Bad, Bad Apple! Again! Really? This week we report an antitrust class action lawsuit filed by three individuals who allege Apple violated federal and state laws by issuing software updates in 2006 for its iPod that prevented iPods from playing songs not purchased on iTunes.

At the risk of grossly oversimplifying the charges, the Apple lawsuit claims that the software updates caused iPod prices to be higher than they otherwise would have been.

The Court in charge of the case is the United States District Court for the Northern District of California, and the case is known as In re Apple iPod iTunes Antitrust Litigation, C-05-00037-JW.

The Court decided that everyone who fits the following description is a Class Member: All persons or entities in the United States (excluding federal, state and local governmental entities, Apple, its directors, officers and members of their families) who purchased one of the iPod models listed below directly from Apple between September 12, 2006 and March 31, 2009 (“Class Period”). A list of iPod models included in the class can be found here.

We’re losing count of the number of class action lawsuits filed against the technology giant. The Apple allegations have included price fixing, defective products (MacBook Pros, iPhones, iPods), personal data collection, download fees and unpaid overtime, among others. In fact, just last week we reported a proposed $450 million settlement of an antitrust class action against Apple over ebook pricing.

You know, it may just be time to stop drinking the KoolAid—sorry—juice.

Traumatic Brain Injury Trickle-Down…This is interesting—you had to know it was coming. It started with the pros, and now it’s at the high school level. A football concussion and brain injury class action lawsuit has been filed against an Illinois high school association claiming a former football player at one of its member schools developed health problems, including memory loss, because of injuries allegedly sustained as a result of playing high school football.

Filed in Illinois state court by Daniel Bukal, the Illinois football lawsuit claims Bukal played for the Notre Dame College Prep school for four years until 2003. The lawsuit claims that during that time the association failed to put in place policies that would have minimized the kind of concussion injuries Bukal allegedly sustained as a result of playing football. By way of example, the lawsuit claims the association had no policies for schools to follow regarding when to allow injured players to return to the field.

“It is now widely understood and acknowledged that concussions pose serious risks to participants in contact sports, and especially football,” Bukal states in his lawsuit. “Among those risks are brain trauma and potentially debilitating long-term brain injuries. But if the problem of concussions in sports is a crisis, then it would be accurate to call the particular problem of concussions in high school sports an epidemic.”

The lawsuit alleges that high school football players, who are typically between 14 and 19 years of age, are at a higher risk for lasting injuries as a result of physical trauma sustained during football games and practices, because their brains are still developing.

According to the lawsuit, the Illinois high school association does not have sufficient safety protocols in place to protect players against such injuries. The lawsuit also claims that the association does not require schools to conduct any baseline testing for concussions before and during the season.

Additionally, the lawsuit states that the Illinois high school association does not require any medical professionals to be present at games to monitor the safety of players.

Bukal, who has been a team captain and named an offensive MVP during his time on the team, said he continues to suffer the effects of the multiple concussions he sustained during his four years period as a player. According to the lawsuit, Bukal still experiences migraine headaches and “bouts of light-headedness.”

The case is Daniel Bukal v. Illinois High School Association, in the Circuit Court of Cook County Illinois. The case number could not immediately be identified Monday. 

Top Settlements

Not such a sweet deal for Cargill. The agribusiness giant got its knuckles wrapped for not telling the truth, and has agreed to pony up $6.1 million this week, as settlement of a consumer fraud class action. The allegations are that it falsely marketed its Truvia sweetener as being natural when it actually contains largely synthetic and chemically produced ingredients. You shouldn’t be surprised.

According to the settlement terms, the company will establish a $6.1 million fund which will cover attorney’s fees, incentive fess of $2,000 per named plaintiff and distribution among a nationwide class who purchased any of the Truvia products during a six-year period that ended in July. Eligible class members who file claims will be entitled to receive up to $45 in cash or $90 in vouchers.

Additionally, as part of the settlement, Cargill will make certain label changes that will clarify its “Nature’s Calorie-Free Sweetener” and “Truvia Natural Sweetener provides the same sweetness as two teaspoons of sugar” statements. Further it, will add language directing consumers to a new website with frequently asked questions, and update its Truvia website to better explain to consumers the manufacturing processes involved.

The lawsuit was originally filed in July 2013 alleging that in 2008 Cargill teamed up with Coca-Cola (what’s your first clue) to develop a purportedly natural sweetener that would capitalize on consumers’ desire for a health conscious, non-caloric alternative sweetener. The plaintiffs alleged the labelling and marketing campaign the company developed was deceitful, making consumers believe that Truvia is a natural sweetener made primarily from the stevia plant. Not so, apparently.

According to the complaint, the stevia-derived ingredient, Rebaudioside A, comprises only 1 percent of Truvia and is a highly chemically processed and purified form of stevia leaf extract. The main component of Truvia, erythritol, is synthetically fabricated. Feeling good?

The plaintiffs alleged that through this misleading advertising, the defendants were able to charge approximately 300 percent more per packet than Sweet ‘N Low and 67 percent more per packet than Splenda. That in itself is enough to give you heart failure!

The case is Denise Howerton, Erin Calderon and Ruth Pasarell, Individually and on Behalf of All Others Similarly Situated vs. Cargill Inc., case number 1:13-cv-00336, in the U.S. District Court for the District of Hawaii. 

Hokee Dokee—Time to adjourn for the week.  Have a good one!

Week Adjourned: 11.29.14 – Uber, Dollar General, Apple

The week’s top class action lawsuits and settlements. Top stories include Uber, Dollar General, Apple

UberTop Class Action Lawsuits

Uber Drivers being taken for a ride? Maybe… Uber Technologies got slapped with a class action filed by a Boston cabdriver who alleges the mobile app-based car service routinely violates the Fair Credit Reporting Act (FCRA) by using background checks without applicants’ knowledge or authorization to make hiring decisions.

Filed on behalf of lead plaintiff Abdul Mohamed, the Uber class action claims that by failing to obtain his authorization for a background check and not disclosing that the company would check his background when he applied for a job as an “Uber X” driver, Uber, its wholly-owned subsidiary Rasier LLC and their employment screening agency Hirease LLC knowingly violated fair credit reporting laws in Massachusetts and California in addition to the FCRA.

The lawsuit also claims that Uber violates the FCRA and state credit reporting laws by using background checks in hiring decisions without providing applicants with copies of their reports.

“In direct violation of the FCRA [and state laws], whenever adverse action is taken against an applicant on the basis of information disclosed on a consumer report, the defendants fail to afford the applicants the procedural safeguards mandated by law… including by failing to provide pre-adverse action notices and a reasonable opportunity to dispute information in such reports before taking adverse action,” the complaint states.

According to the Uber lawsuit, Mohamed applied to be an Uber X driver in September, after having previously worked for Uber as an “Uber Black” driver using his own car. Uber told him he must purchase a new car for the position, which he did at a cost of $25,000. Mohamed then began working as an Uber X driver in early October. However, on October 28, Mohamed received an email from Hirease stating that his contract with Rasier was terminated because of information obtained through a consumer reporting agency, the complaint states.

“[Uber and Rasier] terminated Plaintiff because Hirease’s consumer report concerning Plaintiff indicated he had a minor criminal record that, in fact, stems from his seven children receiving much-needed Medicaid benefits,” the lawsuit alleges. “[Uber] termination of Plaintiff deprived him of his livelihood and left him without an alternative means of providing for his family, including his seven children.” Mohamed alleges that despite an email stating he had received a copy of his consumer reports and rights under the FRCA, he did not receive the described materials.

Further, the lawsuit states that Mohamed did not have an opportunity to review the information on his consumer report and discuss it with Uber and Rasier.

As part of its employment screening services, Hirease provides a package that automatically generates pre-adverse action and adverse action notices to an applicant, along with a copy of the consumer report, whenever Hirease makes an adverse hiring decision based on pre-determined criteria.

“Consumer reporting agencies routinely provide a similar service and many employers purchase it,” the lawsuit states. “Uber and Rasier could have easily and cost-effectively complied with the mandates of the FCRA, CCRAA, and MCRA by purchasing such services, but failed to do so.”

The case is Mohamed v. Uber Technologies Inc et al., case number 3:14-cv-05200, in the U.S. District Court in the Northern District of California. 

Top Settlements

Dollar General Can’t Cheap Out on Its Staff. An $8.3 million settlement agreement has been approved by a federal judge in Alabama, potentially ending an unpaid overtime class action lawsuit pending against Dollar General. The Dollar General lawsuit alleged the discount retailer failed to properly pay store managers for overtime, in violation of the Fair Labor Standards Act (FLSA). The lawsuit dates back to 2006.

Specific allegations against Dollar General and its subsidiaries and sister companies, are that they required the store managers to work as much as 90 hours per week and misclassified them a exempt from overtime, even though they generally spent less than 10 hours weekly performing managerial duties. The settlement will cover some 2,722 individual claims.

According to the complaint, most of the store managers’ work hours involved non-managerial tasks such as operating cash registers. As a result, Dollar General allegedly short-changed the employees on overtime pay, according to the suit. Dollar General denied that it had misclassified the workers.

U.S. District Judge L. Scott Coogler granted approval of the settlement stating “The court finds that: the amended settlement agreement is fair; it reflects reasonable compromises of issues actually in dispute; the settlement was reached in an adversarial context in which the plaintiffs were represented by competent and experienced counsel; and the totality of the proposed settlement is fair and reasonable.”

The case is Richter v. Dolgencorp Inc. et al., case number 7:06-cv-01537, in the U.S. District Court for the Northern District of Alabama.

Settlement Takes a Bite out of Apple…Final approval of a $450 settlement has been granted ending an antitrust class action lawsuit against Apple Inc. The lawsuit alleged that Apple conspired publishers to raise e-book prices. While all the publishers settled their claims, only Apple went to trial.

The lawsuit was brought by the US Department of Justice and 33 states and claimed that in 2010 Apple signed distribution deals with five top publishers, namely Simon & Schuster Inc., Penguin Group USA, Macmillan Publishers USA, Hachette Book Group Inc. and HarperCollins Publishers LLC, that raised the prices for digital books from $9.99 to as much as $14.99. This resulted in consumers paying hundreds of millions of dollars. In July 2013, Judge Denise Cote ruled that Apple had “played a central role in facilitating and executing” the conspiracy. The company has since appealed that decision to the Second Circuit.

Under the terms of the settlement, consumers will receive $400 million. According to court documents, a claims administrator and e-book retailers have sent emails or postcards to almost 23 million addresses of people eligible to receive compensation.

The settlement contains a provision allowing Apple to pay $50 million to consumers and $10 million each to the states and class counsel if Judge Cote’s 2013 decision finding Apple liable is vacated and remanded on appeal or reversed and remanded with instructions for reconsideration or a new trial. If the decision is simply reversed, Apply will pay nothing.

The cases are In re: Electronic Books Antitrust Litigation, case number 1:11-md-02293, and State of Texas et al. v. Penguin Group (USA) Inc. et al., case number 1:12-cv-03394, both in the U.S. District Court for the Southern District of New York. 

Hokee Dokee—Time to adjourn for the week. Happy Thanksgiving!! Gobble Gobble!



Week Adjourned: 11.7.14 – Apple, Charles Schwab, Hertz

The week’s top class action lawsuits and settlements. Top stories include Apple, Charles Schwab and Hertz.

Apple logoTop Class Action Lawsuits

Sour Apples? Apple found itself on the end of yet another defective products class action lawsuit this week over allegations that the MacBook Pro series of laptop computers are defectively designed, causing the computers to malfunction.

Filed by Los Angeles resident Armen Soudijan, the Apple MacBook lawsuit claims that Soudijan purchased a MacBook Pro laptop in 2013, which came “with a defective graphics processing unit and/or defective graphics card implementation.” Specifically, the lawsuit claims that the defect “breaks the computer screen, causes computer freezes, crashes, and ultimately renders the laptop computers unusable.”

In the complaint Soudijan alleges “he was subjecting the laptop to normal use, including use of video processing, when he experienced a range of screen malfunctions, freezes, and ultimately crashes….The frequency and severity of the problem continued and increased. ”

According to the lawsuit, Soudijan’s MacBook Pro belongs to a line of Apple laptops released in 2011, which includes the 13 inch, 15 inch, and 17 inch screens. “Each of these products is designed, manufactured, marketed, sold, and built with a similar graphic processing unit and graphics processing card implementation and design, which is flawed and defective and causes the machine to unreasonably fail,” the lawsuit claims.

“Symptoms of failure include, but are not limited to, lines on the screen, garbled text, colored lines, rendering of the screen useless, freezes, shutdowns, and crashes, including data loss and full hardware malfunction,” the lawsuit states.

The lawsuit goes on to claim that the problems associated with the MacBook Pro have been reported by numerous customers through online and print forums, and that people experience these problems shortly after purchasing their Apple computers. The lawsuit further claims that “Apple is aware of the issue and had not take[n] adequate steps to remedy the situation either through warranty claims, recalls, or otherwise.”

The lawsuit against Apple in this MacBook Pro lawsuit cites violations of California’s Unfair Competition Law, breach of implied warranty, breach of express warranty, and unjust enrichment, and is seeking damages and injunctive relief, and prevention ofApple from selling defective products.

The Defective MacBook Pro Class Action Lawsuit is Soudjian v. Apple Inc., Case No. BC562621, in the Superior Court of the State of California, County of Los Angeles. 

Top Settlements

What was that about Accountability? At Charles Schwab & Co., they say it exists. But…yet another unpaid overtime class action was settled this week—this one filed by financial consultants who allege they were misclassified and subsequently denied overtime by Charles Schwab & Co.

A $3.8 million settlement has been approved, potentially ending claims that Charles Schwab & Co violated the Fair Labor Standards Act (FLSA) by classifying its international CDT financial consultants and associate financial consultants as exempt from overtime pay. They are responsible for cross-selling financial products to existing brokerage and banking customers.

According to the complaint, the consultants alleged that they did not fall under any federal or California exemptions to overtime laws. They allege that they were encouraged by the defendant “to work beyond their scheduled shifts without compensation, failing to allow them to record overtime hours they worked and failing to compensate them for overtime hours they worked,” according to the complaint.

Charles Schwab agreed to settle the complaint just days after it was filed. According to the terms of the settlement two thirds of the funds will be distributed among hundreds of employees working as financial consultants in Charles Schwab call centers around the country. The settlement covers work performed between November 2009 and February 2014, or in the case of the international consultants, between November 2010 and February 2014.

Named plaintiffs Dana Aboud, William Hicks, Michael Porowski and Albert Schweizer will each receive $7,500 as compensation for their part in the unpaid overtime class action.

The case is Aboud et al. v. Charles Schwab & Co. Inc., case number 1:14-cv-02712, in the U.S. District Court for the Southern District of New York.

Driving checks to the banks. A $53 million settlement has been reached in a consumer fraud class action lawsuit pending against Hertz Corp, and two Nevada airports brought by plaintiffs who alleged they were unlawfully charged undisclosed fees.

The Hertz settlement received final approval on October 30th, and contains $43.2 million restitution for Hertz customers who were billed for “airport concession recovery fees” at airports in Reno or Las Vegas between October 2003 and September 2009. Way to go!

The back story—the lawsuit was filed by plaintiffs Janet Sobel and Daniel Dugan, alleging Hertz violated a Nevada Revised Statute that requires car rental firms to include all charges in the rates they advertise in order to make rate comparisons reliable for those looking for the best deal. Specifically, Hertz allegedly tacked on a recovery fee separately from the rate it quoted its customers. The complaint stated that Hertz used that extra fee to pass along to consumers an assessment imposed on the company by the airports, which charge Hertz and other rental car firms a percentage of their gross revenues for the right to operate on site. 

Hokee Dokee- Time to adjourn for the week.  Have a fab weekend–See you at the bar!