Week Adjourned: 10.13.17 – Whole Foods, Hip Implants, Burger King

Top Class Action Lawsuits

Whole Foods wholly implicated? …in a potential data breach class action lawsuit alleging that it wasn’t paying as much attention as it should have in safeguarding its customers’ personal info. In other words, negligence. According to the complaint, the hack took place in September and resulted in consumers’ personal information being stolen.

According to the Whole Foods lawsuit, filed by named plaintiff Patricia Banus, the data hack affected Whole Foods taprooms and restaurants. Banus alleges in the lawsuit that she paid for goods at a Whole Foods Market Group Inc. taproom four days before the September 28 announcement of the breach. As a result, she asserts she must now cancel her card, given that her personally identifiable information may have been compromised through the breach of the taproom’s point-of-sale system.

“Plaintiff, individually and on behalf of those similarly situated, brings this action to challenge the actions on Whole Foods in the protection and safekeeping of the plaintiff’s and class members’ personal information,” the complaint states. “Whole Foods’ failures to safeguard the consumer PII has caused plaintiff and class members damage.”

According to the complaint, Whole Foods had a duty under the Fair Credit Reporting Act to safeguard customers’ personally identifiable information from being disclosed to third parties. As part of those responsibilities, Whole Foods should have been following security protocols from Mastercard and VISA in the processing of card transactions. The breach may have resulted from a failure by Whole Foods to comply with these security standards, the complaint states.

Further, Whole Foods allegedly violated Ohio consumer protection laws and if consumers had known that their personal data was not properly protected, they would have potentially have shopped somewhere else, the complaint states.

The plaintiff claims there is a good probability that the full extent of the identity theft and fraud that could result from the Whlole Foods data breach has yet to be disclosed and consumers’ information might be available to purchase on the dark web.

The proposed class is made up of all US consumers whose personal data was released during the September breach. Banus also seeks to represent an Ohio subclass. The size of the proposed class is unclear with the company reporting that 117 venues were affected.

The case is Banus v. Whole Foods Market Group Inc., case number 1:17-cv-02132, in the U.S. District Court for the Northern District of Ohio.

Top Settlements

Wright to pay for what’s wrong… Wright Medical Technologies wants out and they’re willing to pay for it. This week, the company announced it will pay $340 million to end about 2,000 claims resulting from alleged failure of its hip implant devices. This settlement will augment the Wright defective hip implant settlement reached in 2016 by $90 million, according to the defendant’s legal counsel.

The lawsuits are consolidated in multidistrict product liability litigation (MDL) in the Northern District of Georgia or in Los Angeles Superior Court in judicial counsel coordinated proceedings, California’s equivalent to a federal MDL.

The first bellwether case was heard in 2015 and resulted in an $11 million jury verdict for Robyn Christiansen, a 73-year-old Salt Lake City ski instructor who had suffered a catastrophic failure of her Wright-manufactured hip implant. The award was eventually reduced by $9 million.

According to the terms reported for the 2016 settlements, each claimant with a Conserve Cup device received about $170,000. Each claimant implanted with either a Dynasty or Lineage replacement hip that had failed received $120,000.

The Wright hip implant metal-on-metal design was responsible for the device failures, because it caused metal wear, according to court records. This resulted in the shedding of metallic debris into the surrounding tissue, leading to a condition known as metallosis, which inflamed and poisoned tissue, dissolved bone that anchored the implant and ultimately caused the implant to fail, court records state.

According to attorneys for the plaintiffs, this new settlement agreement will include hundreds of cases excluded in the first agreement because Wright Technology, the medical device company’s new Chinese owners, and Wright’s insurance carrier did not have sufficient funds to cover all the claims.

The new cases include those with hip implants that failed after the statute of limitations on suing had expired, cases filed after the original settlement was consummated, and suits by plaintiffs who reconsidered after initially deciding not to accept a settlement offer last year, the attorneys said.

Those plaintiffs who refuse to settle as part of the $340 million agreement, will be dismissed and remanded to their states of origin, according to the attorneys.

Burger King BOGO Rewind… in the form of a settlement that could see consumers get $2 gift cards. Yup- it’s part of the terms of the settlement meant to end the pending consumer fraud class action lawsuit. Under those terms consumers who ordered Croissan’wiches with a coupon, will receive $2 gift cards. Well, shut the front door!

According to the lawsuit, some customers who ordered their sandwiches without eggs, cheese or meat may have been overcharged and those customers who presented a buy-one-get-one-free coupon paid a higher price for the sandwich.

The lawsuit was filed by Burger King customer Koleta Anderson, in Maryland federal court on May 2017, on behalf of aggrieved breakfast patrons who alleged they were overcharged when using a coupon. This resulted in Burger King conducting its own investigation into the allegations.

According to court documents, Burger King Corp did in fact find that customers who used a buy-one-get-one-free coupon to order two of the breakfast sandwiches that were modified to exclude eggs, cheese or meat may have been charged the cost of a regular Croissan’wich instead of the lower cost of the pastry without the eggs, cheese or meat.

The faulty point-of-sale programs that caused the overcharges have been updated, Burger King said. Further, the restaurant chain has agreed to give $5 to customers who have a receipt showing their overcharge on modified BOGO Croissan’wiches, and $2 gift cards to customers who meet certain other terms.

The proposed settlement also includes a permanent injunction barring the fast-food chain from repeating the mistake.

Anderson will receive a service award of $500 for assisting in the case. That’s a lot of sandwiches…

The case is Anderson v. Burger King Corp., case number 8:17-cv-01204, in the U.S. District Court for the District of Maryland.

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




Week Adjourned: 5.12.17 – Burger King, IHG Hotels, Volkswagen

Top Class Action Lawsuits

BK BOGO NOGO? Two for one costs more, according to the latest lawsuit to hit Burger King. This week, a consumer fraud class action lawsuit was filed by Koleta Anderson, who alleges the restaurant chain’s offer of Buy One Get One Free (BOGO) is misleading. She alleges that more than once she has paid more using a BOGO coupon to buy two Croissan’wiches than she paid for one. Maybe BK just can’t add? Yeah? No.

Anderson asserts in the proposed class action that the BOGO price was higher than the regular price. According to the lawsuit, at one Washington, D.C., Burger King Anderson paid $4.19 for two Croissan’wiches, using a BOGO coupon, but buying a single Croissan’wich at the same restaurant was just $1. She says she found similar discrepancies between the single price and the BOGO price at different Burger Kings in Maryland, Virginia, and Washington, D.C.

Typically, “Buy one, get one free” offers, which are not uncommon in the restaurant business, would imply that if a person buys one item for the regular price, they could normally expect to receive two of the items for the price of buying one. However, that is not the case, Anderson asserts.

“Burger King’s nationwide BOGO scheme is deceptive to reasonable consumers who expect that, when using a BOGO coupon at any retail store or restaurant, absent any exclusions or other terms and conditions, they will pay the same regular price for two identical Croissan’wiches as they would pay to purchase a single Croissan’wich,” the lawsuit states.

The Burger King class action lawsuit seeks to represent anybody who bought two Croissan’wiches using a BOGO coupon in Maryland, the District of Columbia, and Virginia.

The Burger King BOGO Class Action Lawsuit is Koleta Anderson v. Burger King Corp., Case No. 1:17-cv-01204, in the U.S. District Court for the District of Maryland. 

Staying at an Intercontinental Hotel Costing you more than the Room Charge? The international hotel chain got hit with a data breach class action lawsuit this week, alleging it failed to protect customer data resulting in a credit and debit card hack in 2016. The hackers allegedly stole private and valuable customer information over several months in 2016.

Filed in federal court in Georgia, by lead plaintiff David Orr, the lawsuit alleges breach of implied contract, negligence and unjust enrichment. Orr claims the U.K.-based hotel chain, which has in excess of 5,000 hotels worldwide, failed to take adequate steps to prevent the installation of malware on its payment system and failed to detect the security breach.

“IHG’s security failures enabled the hackers to steal plaintiff’s and class members’ private Information from within IHG’s hotels and subsequently make unauthorized purchases on their credit and debit cards,” the IHG lawsuit states. “The failures also put plaintiff’s and class members’ financial information and interests at serious, immediate and ongoing risk and, additionally, caused costs and expenses to plaintiff and class members attributable to responding, identifying and correcting damages that were reasonably foreseeable as a result of IHG’s willful and negligent conduct.”

According to the complaint, Orr stayed at an IHG Holiday Inn in Biloxi, Mississippi in October, 2016. During his stay he used his debit card to pay for his hotel room. His debit card contained private information, which was exposed due to IHG’s inadequate security.

On February 3, IHG announced that 12 of its locations had been affected by the data hack. Then, in April the company expanded the number of affected locations to over 1,000 and sent a data breach notification letter to affected customers, the lawsuit states.

The lawsuit seeks to represent a class of all consumers who used their credit or debit cards and were affected by the security breach at a hotel and time identified by IHG between September 29 and December 29, 2016.

The case is Orr v. InterContinental Hotels Group PLC et al., case number 1:17-cv-01622, in the U.S. District Court for the Northern District of Georgia.

Top Settlements

Do the VW Emissions Lawsuits ever end? For owners of VW 3.0 liter engines—they did this week. A US district judge hearing the Volkswagen AG emissions scandal lawsuits has said he will grant approval of a $1.2 billion settlement deal, effectively ending claims affecting VW’s 3.0-liter-engine vehicles.

The VW settlement is the latest in a series that total in excess of $17 billion. All the cases stem from the emission-cheating software installed in certain VW and Audi vehicles.

The settlement will involve 88,500 owners of VW 3.0-liter cars. Under the terms of a related consent decree with the US Department of Justice, the German automaker will pay $225 million to mitigate environmental effects of nitrogen oxide pollution.

This latest settlement follows the earlier $14.7 billion deal with owners of 2.0-liter vehicles reached in October 2016. That deal includes $2.7 billion for environmental remediation.

According to a statement issued by Department of Justice attorney Josh Van Eaton, who represented the US Environmental Protection Agency in the lawsuits, the consumer settlements of the VW emissions scandal is “the largest civil penalty ever under the Clean Air Act.”

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

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

Week Adjourned: 11.2.12 – OTC Medicine, Bayer Aspirin, Burger King

This week’s wrap of top class action lawsuit news includes OTC Medicine expiration dates, Bayer Aspirin, and Burger King discrimination–the top class actions for the week ending November 2, 2012.

Top Class Action Lawsuits

What’s in an Expiration Date? According to three separate consumer fraud class action lawsuits filed this week, a whole lot of questionable motivation.

Filed against Pfizer (which makes Advil), Bayer (which makes Bayer aspirin) and Johnson & Johnson (which makes Tylenol Cold Multi-Symptom medications), the drug expiration date lawsuits allege the drug makers use “unconscionable, unfair, deceptive, unethical and illegal” means to promote the sales of their products. Specifically, the lawsuits claim that the these means involve the utilization of expiration dates to get consumers to throw away products that have passed their expiration dates, even though the companies know “that if stored properly these medications can and do remain chemically stable, safe and effective long after those dates.”

According to the consumer fraud lawsuits, studies by the Food and Drug Administration, Harvard Medical School, and Johns Hopkins University have found 90% of more than 100 prescription and over-the-counter drugs were fine and could be used for as much as 15 years after their expiration dates: this excludes certain drugs like tetracycline, nitroglycerin, insulin, and liquid antibiotics.

The lawsuit claims that the purpose of the expiration dates is “[T]o increase defendants’ sales and profits because consumers have to purchase replacement medications for those they have thrown out.” The class is seeking actual and punitive damages for consumers that purchased products from Pfizer, Bayer and Johnson & Johnson.

Top Settlements

And Speaking of Drug Marketing… A $15 million settlement has been reached in the consumer fraud class action against Bayer regarding allegations of false advertising around certain combination aspirin products that were sold without FDA approval.

The lawsuit, entitled In re: Bayer Corp. Combination Aspirin Products Marketing & Sales Practices Litigation, alleges Bayer violated state consumer fraud and deceptive business practices acts, express and implied warranty statutes, and unjust enrichment laws in connection with the sale and marketing of Bayer Women’s Low-Dose Aspirin plus Calcium and Bayer Aspirin with Heart Advantage.

If you purchased Bayer® Women’s Low Dose Aspirin + Calcium or Bayer® Aspirin with Heart Advantage, you may be a member of the Bayer Heart Advantage Class or the Bayer Women’s Class (collectively referred to as the “Settlement Classes”) – and thus eligible to receive money from the settlement – depending on (1) which Combination Aspirin Product you purchased, (2) whether you purchased it for personal, family or household uses, and (3) when it was purchased. Each Settlement Class only includes purchases of specific Combination Aspirin Products during specific periods of time.

If you purchased one or more of the Combination Aspirin Products for personal, family or household uses then you are eligible to participate in one or both of the Settlement Classes described in this Notice, provided that your purchase occurred during the time periods specified for each Settlement Class.

Class Members of the Bayer combination aspirin class action settlement include US consumers who purchased one or more of the following combination aspirin products for personal, family or household use during the following time period:

Bayer Aspirin with Heart Advantage Settlement Class: Purchase Date: January 1, 2008 to July 20, 2012

Bayer Women’s Low-Dose Aspirin plus Calcium Settlement Class: Purchase Date: January 1, 2000 to July 20, 2012

To learn more about making a claim and to download forms go to the Bayer Combination Aspirin Class Action Lawsuit Settlement at BayerCombinationAspirinSettlement.com.

Convenience Food not so Convenient… A proposed settlement has been reached in a discrimination class action lawsuit pending against Burger King. The lawsuit, brought by individuals who use wheelchairs and scooters for mobility, allege that they encountered access problems at certain California Burger King leased restaurants.

Specifically, the Burger King class action lawsuit alleges individuals who use wheelchairs and scooters for mobility have been subjected to discrimination at the restaurants that allegedly contain unlawful architectural barriers to access. The Burger King ADA lawsuit sought to remove the alleged barriers, and monetary damages for Class Members denied access to restaurants on or after October 16, 2006.

The proposed settlement terms includes a total of $19 million for monetary relief, which will provide an estimated average recovery per class member of over $8,200, after deductions for attorney’s fees and costs.

Burger King Corporation and the restaurant operators deny they did anything wrong. The parties have reached a settlement of this case. It is now up to the Court approve the proposed settlement.

To find out more and to obtain claim forms for the Burger King wheelchair class action, call 1-888-569-9477.

And on that note—I’ll see you at the bar. Have a great weekend!