Week Adjourned: 5.20.16 – Uber, BMW, Hip Implants

uber-serp-logo-f6e7549c89Top Class Action Lawsuits

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

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

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

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

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

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

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

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

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

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

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

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

Top Settlements

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

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

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

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

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

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

Week Adjourned: 6.1.12 – Chobani Yogurt, Exxon Mobil, BMW Privacy

The weekly wrap on the latest class action lawsuits and settlements for the week ending June 1, 2012; this week’s highlights include Chobani Yogurt, Exxon Mobil and BMW.

Top Lawsuits

Food fraud de jour… We’re talking about Chobani Greek Yogurt to be specific. The “nothing but good” yogurt, if you recall. Chobani Inc is facing a class action lawsuit over alleged deceptive marketing claims (aka consumer fraud)  concerning the use of certain terms on its Greek yogurt products. Who would have thought? Yogurt “terminology”? The Chobani lawsuit claims the terms violate federal and state food labeling laws.

Yes indeed, folks, that old chestnut—again. I bet if all food ingredients were listed by their chemical names—in any or all products—the average consumer would likely need a chemistry degree to read food labeling … although you pretty much do now…

Ah yes. The facts: Filed at the US District Court for the Northern District of California by California consumer Katie Kane, the lawsuit alleges Chobani’s use of ‘evaporated cane juice’, ‘all natural ingredients’ and ‘only natural ingredients’ as terms used to describe its 18 flavors of Greek yogurt products. The lawsuit claims Chobani failed to disclose that ‘evaporated cane juice’ is commonly referred to as sugar or dried cane syrup.

Federal and California state food labeling laws forbid the use of ‘natural’ labeling if the product contains artificial ingredients, flavoring, coloring or chemical preservatives, the lawsuit claims. Kane also alleges that Chobani made false claims in violation of these laws to actively promote the “naturalness and health benefits of its products” and drive sales.

Ok—well if you want to go down that road—show me company that isn’t on the green/health bandwagon? Oh yes, Exxon Mobil. But that’ll be coming up in Top Settlements.

The Chobani lawsuit further states, “For example, the Nutrition Facts for Chobani’s Greek Yogurt, Pomegranate flavor, state that it has 19 grams of sugar, but the ingredient section fails to list ‘sugar’ and/or ‘dried cane syrup’ as an ingredient.”

“If a manufacturer is going to make a claim on a food label, the label must meet certain legal requirements that help consumers make informed choices and ensure that they are not misled. In promoting the naturalness and health benefits of its Misbranded Food Products, Defendant claims to understand the importance of communicating responsibly about its products,” the lawsuit states.

“Nevertheless, Defendant has made, and continues to make false and deceptive claims on its Misbranded Food Products in violation of federal and California laws that govern the types of representations that can be made on food labels.”

It’s off to court they go…

Top Settlements

Ten Years After…As I was saying about Exxon Mobil—here’s one for the little guy. Bit late, bit small, never should have happened in the first place, but hey—it’s a result—because the townspeople of Pascoag, RI stood up for themselves. A Providence Superior Court Judge has approved a $7 million settlement of an environmental class action lawsuit brought by the citizens of the Town of Pascoag, Rhode Island and the Rhode Island Water District against Exxon Mobil Corporation as a result of the contamination of their well water supply by MTBE in 2001. According to attorneys for the class, the Exxon Mobil settlement finally brings some satisfaction to the citizens of Pascoag after almost ten years of litigation against Exxon Mobil for the contamination of the Town of Pascoag’s water supply.

Methyl Tertiary Butyl Ether (MTBE), a gasoline additive that was mandated by the Clean Air Act of 1990, requiring that fuel oxygenates be added to gasoline to reduce carbon dioxide in the air, was first noticed in the Summer of 2001, when a strong disagreeable odor had been reported by various Public Utility District customers.

On August 30, 2001, a resident of Pascoag, Rhode Island requested that a sample of his tap water be tested, as it had a bad taste. MTBE concentrations, above allowable state limits, were detected. Thereafter, an investigation by the Department of Environmental Management (DEM) revealed that gasoline containing MTBE had leaked from the Main Street Mobil Gasoline Service Station and contaminated the town’s well water. The DEM ordered that the Pascoag well pumping stations be shut down, and arrangements were made to pipe in well water from the neighboring Town of Harrisville.

In 2003 a lawsuit was filed against Exxon Mobil (yes—it’s really taken 9-10 years) alleging that the use of MTBE in gasoline was among other things, a defective product. The investigation revealed that Exxon Mobil and other oil companies knew MTBE posed a threat to drinking water years before the industry began blending the additive with gasoline.

According to a statement issued by attorneys for the town of Pascoag, “the Pascoag, Rhode Island case was the largest MTBE case in the history of the state.” Court documents showed that the oil companies knew about MTBE’s problems as early as the early 1980’s. The oil industry defended the use of MTBE, claiming that the federal government allowed MTBE to be used with knowledge of its characteristics.

MTBE readily dissolves in water and does not cling to soil near a spill site, as most chemicals do. It degrades slowly and travels quickly and travels far in water.” Other dangerous gasoline compounds, like benzene, are rarely found more than 300 feet from a spill site, while MTBE has been found, as in this case, thousands of feet away,” the plaintiffs attorney stated in the press release. Documents and statements from Exxon Mobil and other oil companies show they knew all this almost as soon as they began producing MTBE in the late 1990’s. When 20 percent of the tanks nationwide were known to leak, they put MTBE in tanks knowing it would make its way to ground water and drinking water supplies.

In this case, the utility and citizens that sued over MTBE were not seeking damages because customers got sick from drinking the additive. Such claims are nearly impossible to prove, said the attorney for the plaintiffs. Instead, the damages were to compensate the homeowners for their inconvenience and to the Pascoag Public Utility District to allow them to install new wells, plus pipe lines to bring the water to homes once served by private wells. This includes the cost of putting filters in, digging up dirty soil and installing systems to pump the MTBE out of the water.

Better in a Beamer? …maybe not… Here’s something we’re seeing a lot more of these days—privacy class actions. The offenders in this class action lawsuit are BMW and its telematics services provider, Agero Connected Services, Inc. (formerly known as ATX Group, Inc.) The lawsuit claims that BMW recorded BMW Assist calls without first disclosing that a call may be monitored or recorded. (Can you imagine listening to all those recordings? OMG.)

The skinny: The BMW Assist settlement will resolve a class action lawsuit, entitled Skuro v. BMW of North America, LLC, that alleges BMW and its telematics services provider, Agero Connected Services, Inc. (formerly known as ATX Group, Inc.) violated several consumer privacy laws by allegedly recording BMW Assist calls.

Class Members of the BMW Assist class action settlement include all individuals who connected to the BMW Assist program between October 13, 2009 and February 1, 2011 and the BMW vehicle owner was receiving benefits in the BMW Assist program with a California billing address. The settlement could affect anyone who connected to the BMW Assist program during the class period, including entitlement to benefits, including up to $50 cash.

BMW and ATX deny any wrongdoing, but have agreed to a class action lawsuit settlement to avoid the expense of ongoing litigation.

Class Members of the BMW Assist class action lawsuit settlement can choose to receive one of the following two benefits:

1. Service Benefit. “Service Benefit” means either a 6-month upgrade to the BMW Assist “convenience plan” (for Class Members who currently have an active basic safety plan on their BMW vehicle), or a 6-month extension to the BMW Assist basic safety plan (for Class Members who currently have an active basic safety plan on their BMW vehicle, or Class Members who have no BMW Assist Service on their Class Vehicle). To receive the Service Benefit, Class Members must enter into a Subscription Agreement Addendum no later than July 10, 2012.

2. Non-Revisionary Fund. Class Members who decline or who do not have the option for the Service Benefit can file a claim for a cash payment from the Non-Revisionary Fund, which will be paid on a pro rata basis, up to $50, to Class Members who file a valid claim postmarked no later than July 10, 2012.

More information about the settlement, a Subscription Agreement Addendum and claims forms can be found at the Settlement Administrator’s website: www.BMWAssistSettlement.com.

See you at the bar—happy, happy…and don’t ask to see the ingredients in your Martini.

Week Adjourned: 10.8.10

BMW under fire for turbo lag and more...Top Class Actions

“It’s Not Turbo Lag, it’s Foreplay”. Well, that’s what the t-shirts say, but clearly the makers of the ultimate driving machine—BMW—and their drivers must think foreplay’s a bad thing. BMW got hit with a national class action this week over high pressure fuel pumps (HPFP) and turbo chargers.

The allegations in the case concern certain BMW’s produced between 2007 and 2010, and focus on two design defects. 

First, the suit claims that BMW’s new fuel injection system that supposedly incorporates a new ‘state of the art’ fuel pump actually malfunctions at an alarmingly high rate. As a result, many BMW owners have had to repeatedly replace their fuel pumps, sometimes within 1,000 miles of vehicle ownership.

The second problem relates to the BMW turbo chargers. Specifically, the complaint alleges that owners of the affected vehicles were told that BMW’s new engine had eliminated ‘turbo lag.’ ‘Turbo lag’ is the delay between the time that the driver of a vehicle presses the accelerator and the time that turbo chargers on the engine essentially ‘kick in’ to provide added power to the engine.

However, shortly after the vehicles were released, BMW began to receive complaints from Continue reading “Week Adjourned: 10.8.10”

Week Adjourned: 6.19.09

Top class actions

Get a Whiff of Zicam. Oh wait, maybe you can’t. At least that’s what’s at the heart of the latest Zicam news. No, it’s not a class action yet—but it could be. And it wouldn’t be the first one. At issue are 3 Zicam cold remedies that cause a loss of sense of smell—a condition known as anosmia. As if the cold wasn’t enough of a problem.

In 2005 more than 300 people filed a class action lawsuit against Matrixx, the makers of cold remedies marketed under the name Zicam, alleging the zinc nasal spray caused a loss of sense of smell and taste. Matrixx settled the suit in 2006 for $12 million.

This week, on June 16, 2 years and 130 adverse event reports later, the FDA released a public health advisory urging consumers not to use the Zicam cold remedies, for the same reasons the lawsuit was brought in 2005.

The products named in the FDA’s advisory are Zicam Cold Remedy Nasal Gel, Zicam Cold Remedy Nasal Swabs and Zicam Cold Remedy Swabs, Kids Size (a discontinued product). What part of this didn’t Matrixx get the first time round?

Top settlements

MySpace Ain’t Your Space. What would you do if you were forced to give your employer your ID and password to an online group you had created with the express purpose of venting your frustrations about your employer? Well, 2 waiters in New Jersey who were faced with that very situation filed a class action lawsuit. And they won.

Restaurant managers who worked at Houston’s in Hackensack, NJ, were fined by a federal jury for surreptitiously monitoring employees’ postings in a MySpace gripe group. The jury ruled that the managers had violated state and federal laws designed to protect privacy of internet communications. The jury awarded the waiters a total of $3,400 in back pay and $13,600 in punitive damages.

BMW: Sheer Driving Pleasure? (if you excuse the faulty subframes). If you or someone you know owns a fourth-generation 3-series model BMW—say the E46—you will be happy to hear there is a settlement pending in the 2006 class action suit against the automaker. So far, BMW has agreed to begin inspections and repairs of potentially faulty subframes in these models.

Currently the settlement is only valid for US residents, and no recall is planned. BMW customers with questions can visit www.E46subframeclassactionsettlement.com.

That’s it for this week. See you at the Bar…