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

ruby tuesdayTop Class Action Lawsuits

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

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

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

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

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

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

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

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

Top Settlements

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

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

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

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

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

And now for something completely different…

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

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

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

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

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

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

Week Adjourned: 12.11.15 – MasterCard, Barbie, Blue Buffalo

MasterCard charityTop Class Action Lawsuits

Spirit of Giving Gone too Far? In the season of giving, MasterCard was served with a consumer fraud class action lawsuit this week, and it’s all about giving baby! Yeah—charitable donations. Filed by a New Jersey man, the lawsuit claims the company continued to advertise a donation promotion after its donation goal had been met. Hmm.

Filed by plaintiff Robert Doyle, individually and for all others similarly situated, the MasterCard lawsuit alleges breach of contract, breach of good faith and fair dealing, and violations of the District of Columbia Consumer Protection Procedures Act.

According to the lawsuit, every year since 2011 MasterCard has run a marketing promotion related to Entertainment Industry Foundation’s Stand Up To Cancer program, in which MasterCard advertises it will give one cent to the program for each credit or debit transaction made by a MasterCard cardholder.

Under the terms of the program, a donation can only be made if the cardholders use a consumer or small-business card issued by a US financial institution, and the transaction is for a minimum of $10. Further, it must be made at a qualifying restaurant in the US. MasterCard advertised that it had a goal of reaching $4 million to be donated to the program.

However, according to the suit, in 2012, 2013, 2014 and 2015, MasterCard continued to advertise the marketing promotion after it had reached and knowing it had reached its maximum donation goal. MasterCard would only announce it had reached its goal once it reached a scheduled end date, even though it knew it would meet its donation goal before that date, according to the complaint.

Doyle and others in the class seek damages of more than $5 million, including punitive damages, injunctive relief, attorney fees, and costs of the lawsuit. The case number is 1:15-CV-09360-LTS, Southern District of New York.

Covert Ops Barbie? This is creepy—no matter how you dice it. Barbie is violating children’s privacy—well actually—that would be Mattel. The toy maker got hit with a  proposed privacy violations class action alleging its new interactive doll, “Hello Barbie”, violates children’s privacy laws by recording their conversations with the doll without proper consent. OMG. Where do you start? Or perhaps—where does it stop?

According to the Hello Barbie lawsuit, named plaintiffs Ashley Archer-Hayes and Charity Johnson claim Mattel Inc. and interactive toy technology maker ToyTalk Inc. violate Children’s Online Privacy Protection Act by recording children’s voices during their conversations with the doll and storing them online without obtaining sufficient consent. The women also filed suit against kidSAFE, a seal-of-approval program that certified the doll as COPPA-compliant.

According to court documents, in December of this year Archer-Hayes bought “Hello Barbie” for her daughter. She registered it online and downloaded a smartphone app that would allow her to listen to, review and delete recordings the Barbie doll transmits to ToyTalk’s servers. However, several days later her daughter and her friends, one of whom is Johnson’s daughter, played with the toy at a Barbie-themed party, which recorded the voices of other children whose parents hadn’t consented to its use.

“Defendants knew or should have known that the ‘Hello Barbie’ doll, a toy directed at children six-years-old and over, would be used in the presence of and by children under thirteen, other than the child-owner of the doll,” the complaint states, “[and that] there was a great likelihood, if not a certainty, that in sharing and playing with the ‘Hello Barbie’ doll, children under the age of thirteen, other than the child-owner, would be recorded and such recording would be transmitted to ToyTalk’s cloud database for collection, maintenance, and use.”

According to the proposed suit, four classes of plaintiffs are proposed, specifically: Californians who have purchased the dolls for their children; Californians whose children’s voices were recorded without their consent; and nationwide classes in similar circumstances.

According to information on Mattel’s website, “Hello Barbie” is programmed with about 8,000 lines of kid-friendly dialogue, plays 20 games. The doll costs about $75. The doll records voices when kids press on its belt buckle and transmits them over Wi-Fi, the website says.

Wonder if Hello Barbie has a Twitter account…

The lawsuit suit alleges negligence, unjust enrichment, invasion of privacy and violations of California’s Unfair Competition Law, and it seeks unspecified damages. The case is Ashley Archer-Hayes et al. v. Toytalk Inc. et al., case number BC603467, in the Superior Court of the State of California, County of Los Angeles.

Top Settlements

It may just be cheaper to keep your promises…Blue Buffalo Pet Products has agreed to pony up $32 million as settlement of a consumer fraud class action litigation pending against it and its subsidiary Blue Buffalo Company, Ltd. The lawsuit alleges, among other things, that certain Blue Buffalo products were not consistent with the “True Blue Promise.” The class action lawsuits brought on behalf of consumers and consolidated in the Multi-District Litigation pending in the United States District Court for the Eastern District of Missouri.

Under the terms of the Blue Buffalo agreement, Blue Buffalo will pay $32 million into a settlement fund to settle the claims of the plaintiff class. Any attorneys’ fees awarded by the court and all costs of notice and claims administration will be paid from the settlement fund. The amount that each class member who submits a claim for reimbursement will receive will depend on the total amount of Blue Buffalo products purchased by the claimant during the class period and certain other conditions.

Blue Buffalo denies any wrongdoing, (naturally) and has agreed to this settlement to eliminate the uncertainties, burden and expense of further litigation. The settlement agreement is subject to preliminary and final approval by the court.

Ok—that’s it for this week folks—see you at the bar!