Week Adjourned: 7.28.17 – Groupon, Nissan, Celgene

Top Class Action Lawsuits

Is Groupon discriminating? Someone thinks so. Andrew Huzar has filed a proposed discrimination class action lawsuit, alleging the discount promotion website discriminates against people with disabilities by not offering tickets for accessible seating at events. Further, the allegations state that Groupon does not provide booking options for disability-accessible hotel rooms. Hmm. Not good.

FYI – The lawsuit seeks to represent two nationwide classes, specifically classes of customers made up of those who were not successful in their attempts to either 1) buy tickets to events or 2) find disability appropriate travel accommodations through the Groupon website. Huzar states in his complaint that he has been unsuccessful in securing both tickets and accommodations.

According to Groupon lawsuit, in 2015, Huzar allegedly tried to purchase a “Groupon Getaway” deal to the Red Lion Hotel in Harrisburg, Pennsylvania. However he was unable to find any option to book an accessible room through the Groupon site. The complaint states that Hazar emailed Groupon about the likelihood of booking a wheelchair-accessible room with the offer, however the response he received allegedly stated, “I’m sorry, unfortunately handicap-accessible rooms are not available.”

“Since July 30, 2015, Mr. Huzar has been deterred from attempting to purchase accessible hotel rooms and Groupon Getaways from defendant as he knows such an attempt would merely be a futile gesture,” the complaint states. “Mr. Huzar continues to desire to purchase hotel rooms and Groupon Getaways from defendant, but fears that he will experience serious difficulty doing so as a result of the complete lack of accessible options.”

With respect to purchasing tickets for events, the complaint notes that in the summer of 2016 Huzar received an email advertisement from Groupon about a deal for New York Jets tickets at MetLife Stadium. When he tried to purchase them through Groupon’s website, he discovered the “complete absence” of any accessible-designated tickets in the stadium, he asserts.

“Mr. Huzar has personal knowledge that accessible-designated seating exists at the MetLife Stadium,” the complaint states. “Mr. Huzar is presently aware that if he tried to try to purchase accessible tickets on defendant’s website, he would be unable to do so.”

“Defendant continues to discriminate against … the classes by failing to make reasonable modifications in policies, practices or procedures, when such modifications are necessary to afford persons with disabilities the ability to purchase tickets; and by failing to take such efforts that may be necessary to ensure that no individual with a disability is excluded, denied goods and services, segregated or otherwise treated differently than other individuals,” the complaint states.

Huzar alleges Groupon has violated the 1990 Americans with Disabilities Act, which “prohibits discrimination on the basis of disability in the activities of places of public accommodations.”

The case is Andrew Huzar v. Groupon Inc., case number 1:17-cv-05383, in the U.S. District Court for the Northern District of Illinois.

Top Settlements

It’s not only the brakes that failed– it was Nissan. That’s what a jury found in a recent Nissan SUV had a defective braking system lawsuit.

A $25 million settlement was awarded to surviving family who suffered the loss of their mother and her two daughters who were killed in 2012 when a Nissan Infiniti QX56 SUV crashed into the family’s minivan in a Hollywood intersection.

Nissan faced claims from both the driver of the SUV, Solomon Mathenge, and the family of Saida Mendez, and her two children, Hilda and Stephanie Cruz. The jury returned a verdict finding the fatal accident was 100 percent attributable to the defective Nissan braking system in the Infiniti SUV. Further, the jury found that Nissan had been negligent in not recalling the vehicle.

Although Mathenge was charged with manslaughter after the crash, the charges were dropped following the Nissan defective brake system class action lawsuit filed against Nissan. That class action alleged the software braking system in certain of Nissan’s vehicles was prone to sudden failure, and inspection of Mathenge’s QX56 revealed it had suffered that very same software error, according to the plaintiffs’ trial brief.

The trial consolidated the claims made by the deceased children’s father, Hilario Cruz, the deceased mother’s surviving daughter, Araceli Mendez, and her mother, Juana de la Cruz Bernardino, with Mathenge’s claims.

The jury awarded Hilario Cruz $14 million in non-economic damages for the deaths of his daughters, and $7 million to Araceli Mendez for the loss of her mother and a further $431,000 for the loss financial support, gifts and household services she would have received from her mother had she not been killed. Mathenge was awarded $3.5 million in damages.

The award was significantly less than the amount plaintiffs’ attorneys were seeking. They had asked the jury to find Nissan guilty of malice, as the company was aware of the defect and its danger, but refused to recall the affected vehicles. However, the jury found Nissan did not act with malice.

The case is Cruz v. Nissan North America, et al., case number BC493949, in the Superior Court of California for Los Angeles County.

It’s a healthcare fraud whopper… but a stopper? Possibly. $280M should provide incentive to stop promoting off-label drugs. It likely will be for Celgene, which has agreed to pay $280 million to settle allegations made by a California Whistleblower under the False Claims Act that the biotech company promoted off-label uses for two of its cancer drugs.

The lawsuit, brought by a former sales rep for Celgene, Beverly Brown, alleged the company promoted two bone cancer drugs, Thalomid and Revlimid, for other cancers they weren’t approved to treat. As part of the promotion, Celgene paid kickbacks to physicians to promote the drugs’ off-label use. The lawsuit also alleged these actions were in violation of laws in no less than 28 states and the District of Columbia, in addition to False Claims Act.

Under the terms of the agreement, the United States will receive the majority of the settlement, $259.3 million, with $20.7 going to 28 states and the District of Columbia. California, where the suit was filed, will receive $4.7 million, the largest amount of any state.

According to documents from the Celgene whistleblower case, which was initially filed in 2010, and Celgene had a massive off-label promotion scheme in place for Thalomid and Revlimid. The documents, which were unsealed in 2014, further reveal that Brown alleged that the two drugs were only narrowly approved to treat multiple myeloma, a form of cancer that affects the bone marrow, however they were routinely marketed to treat other forms of cancer, including breast cancer and leukemia.

According to Brown, the off-label use of these drugs was paid for through government programs which, she contended, Celgene marketed by paying doctors speaker fees and other charitable donations in exchange for promoting Thalomid and Revlimid.

The case is United States of America et al. v. Celgene Corporation, case number 2:10-cv-03165 in the U.S. District Court for the Central District of California.

Ok – That’s a wrap for this week. 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!