Coppertone

Week Adjourned: 12.22.17 – Sonic, Coppertone, Wells Fargo

Top Class Action Lawsuits

Here’s a little known data breach that’s making class action news. The Sonic Drive-in chain of restaurants is facing allegations that it was negligent in protecting its customer credit and debit card data, resulting in hackers accessing the data, which is now being sold the black market. What data breach, you ask?

On September 26, 2017, Sonic announced that its payment system had been breached and that personal identifying information for up to five million credit card and debit card owners had been stolen. The complaint alleges that the stolen data is sufficient to enable fraudulent charges to made to accounts of those five million credit and debit card holders.

Sonic has nearly 3,600 locations across 45 states. In its September statement, the restaurant chain noted that the stolen credit and debit card numbers may have been acquired without as part of a malware attack experienced at “certain Sonic Drive-In locations.” The company said it was working on an investigation in conjunction with third-party forensics firms, in addition to cooperating with law enforcement investigations.

Filed by Chicago resident Clara Hughes-Hillman, the lawsuit claims Sonic Corp, should have known to enable adequate protection of its consumer data particularly in light of recent, well publicized data breaches at other large chain restaurants and companies.

Notably, while Sonic has admitted to a data breach in September, the plaintiff alleges that she last frequented a Sonic restaurant in August and September of 2016, a full year prior to Sonic publicly admitting to the breach.

According to the proposed Sonic class action, the affected consumers are now vulnerable to unauthorized charges and theft of personal financial information, and must bear the costs of preventing and detecting identity theft, and may even lose financial standing as a result of the loss of access to funds, the possible inability to make payments on bills ad loans, and other adverse effects to their credit.

“Had Sonic implemented and maintained adequate safeguards to protect Customer Data, deter the hackers, and detect the beach within a reasonable amount of time, it is more likely than not that it would have been able to prevent the Data Breach,” the complaint states. “As a result of the Data Breach, the Customer Data of Plaintiff and the Class members have been exposed to criminals and is ripe for misuse.”

Hughes-Hillman seeks certification of a nationwide class of consumers whose personal financial information had been made vulnerable by Sonic to hackers who have put credit card numbers up for sale on the dark web. The complaint asks the court for damages, restitution and disgorgement from Sonic.

Hughes-Hillman and the putative class are represented by Kasif Khowaja and Frank Castiglione of The Khowaja Law Firm LLC, Brian Murray and Bryan Faubus of Glancy Prongay & Murray LLP, Paul Whalen of the Law Office of Paul C. Whalen PC, Jasper D. Ward IV of Jones Ward PLC, John Yanchunis of Morgan & Morgan Complex Litigation Group and Jean Martin of the Law Office of Jean Sutton Martin PLLC.

The case is Hughes-Hillman v. Sonic Corp., case number 1:17-cv-09062 in the U.S. District Court for the Northern District of Illinois.

Not so sunny days ahead for Bayer and Merck? —the owners of Coppertone, who find themselves on the end of a consumer fraud class action lawsuit. Filed against Bayer Healthcare LLC and Merck & Co. Inc. the Coppertone lawsuit alleges the advertising for their Coppertone Sport High Performance SPF 30 sunscreen is willfully false and misleading because the product does not provide greater protection against the sun as advertised, resulting in consumers paying for the product under false pretenses. And apparently, they’re not following their own scripts… read on.

Filed by consumer Andrew Roseman, the complaint states that Merck and Bayer acquired the Coppertone product line in 2014, and that they tested the products and found that their actual SPF is “substantially lower” than SPF 30. Therefore, they have mislabeled the spray and lotion versions of the sunscreen at SPF 30.

“Plaintiff and putative class members have been, and continue to be, injured by defendants’ pattern and practice of placing into the stream of commerce sunscreen products containing a false SPF number, and largely inflated UV protection numbers, which defendants manufactured, distributed, and sold,” the complaint states.

The spray and lotion versions of Coppertone Sport High Performance SPF 30 sunscreen each indicates on the front of the label that the product provides an SPF of 30, the lawsuit says.

The complaint cites the Coppertone website, which encourages consumers to buy a broad spectrum sunscreen with an SPF of at least 30 for protection from roughly 97 percent of the sun’s harmful rays.

However, the complaint notes that results from testing done by Consumer Reports indicate that the spray version’s actual SPF is less than half of that advertised.

Further, Roseman conducted his own testing which similarly found that the average SPF for Coppertone product’s was 13.9 as opposed to the SPF 30 as advertised. According to the complaint, Roseman’s test results show that the lotion’s SPF was 14.8.

Conversely, the label on Coppertone Sport High Performance SPF 30 product cautions against using products with an SPF of less than 15, according to the complaint.

“With a true SPF of only 13.9 and 14.8, the sunscreens do not even meet the minimum SPF value of 15 prescribed by their own labels, thereby subjecting users, according to those labels, to an ‘increase[d] … risk of skin cancer and early skin aging,’ not to mention sunburns,” the lawsuit says.

Roseman alleges Bayer and Merck conducted their own tests of the sunscreen prior to selling the Coppertone products, and therefore were aware that their labels were false. Roseman asserts that had he known the true SPF of the products, he would not have purchased them or would have paid less for them.

Roseman seeks to represent a class of New Jersey residents who have purchased Coppertone Sport High Performance SPF 30 sunscreen spray or lotion within the state since November 2, 2011.

The case is Roseman v. Bayer Healthcare LLC et al., case number 1:17-cv-13308, in the U.S. District Court for the District of New Jersey.

Top Settlements

Santa’s bringing checks! Yup – Wells Fargo is going to pony up $13 million in settlement of an unpaid wages class action lawsuit, which will affect some 44,000 employees in California. The lawsuit alleged the bank failed to pay for hours worked off-the-clock, including both overtime and straight-time pay, and failed to provide meal and rest breaks. If granted final approval, the settlement would end six and a half years of litigation.

The Wells Fargo settlement, reached in mediation, is non-reversionary, resolving California labor law and federal wage-and-hour claims. Plaintiffs state in their motion for approval that “If plaintiffs and the class prevailed on some or all of their class claims at trial, they would almost certainly face an additional appeal by Wells Fargo.” Further, plaintiffs would like not receive any relief until 2021, if they elected to pursue their case through the courts.

The average settlement payout is $174 per class member. Recipients include tellers who’ve worked for the bank from August 20, 2008, and certain service managers who worked for the bank from April 7, 2011. Additionally the seven named plaintiffs will receive $10,000 each under the agreement.

The case is Wells Fargo Bank Wage and Hour Cases, case number JCCP4702 in the Superior Court of the State of California, County of Los Angeles.

Ok Folks – That’s a wrap for this week. Time for Santa – Happy Holidays!!!

Week Adjourned: 6.13.14 – McDonald’s, Coppertone, Lowe’s

The week’s top class action lawsuits and settlements. Top stories include McDonald’s, Coppertone and Lowe’s home improvement.

Top Class Action Lawsuits

Supersize this baby! McDonald’s is facing an unpaid overtime lawsuit class action lawsuit brought by four former employees in the Los Angeles area. The lawsuit alleges McDonald’s Corp violated wage and hour laws by “requiring workers to work off the clock, placing their rest and meal breaks at the end of their shifts and not paying final wages in a timely manner.”

The McDonald’s lawsuit was originally filed by plaintiff Maria Sanchez in January 2013, but has subsequently been consolidated into a nationwide group of employment class actions against the fast food chain, all alleging illegal labor practices. The lawsuits claim that McDonalds’ managers falsified time records to erase certain employees’ actual hours of work, prohibited meal breaks, required unpaid work from employees before and after their shifts, and withheld overtime pay.

The lawsuit further alleges that McDonald’s Corporation has tried to reduce “labor costs by requiring its restaurants to limit labor costs to a specific percentage of gross sales, causing managers to violate state labor laws to keep costs in line.”

The case is Maria Sanchez et al., v. McDonald’s Restaurants of California Inc. et al., case number BC499888, in the Superior Court of the State of California, County of Los Angeles.

Um—I’m lovin’ It!

Is Merck & Co. Inc, full of S#$PF? According to a recently filed consumer fraud class action lawsuit—it would appear so. The lawsuit alleges the pharmaceutical company is overcharging for its Coppertone sunscreen products with Sun Protection Factors (SPF) of 55 and higher because they contain “virtually identical” active ingredients as the Coppertone SPF 50 products.

Filed by plaintiff Danika Gisvold, the lawsuit claims Merck is participating in a “false, misleading and deceptive” advertising campaign. Specifically, Gisvold alleges the US Food and Drug Administration has reviewed SPF ratings since 1978, and has found that SPF values over 50 don’t provide an increase in protection over SPF 50 products.

According to the Coppertone lawsuit, while SPF value is an indicator of the level of sunburn protection provided by the product, and consumers have learned over time to associate higher SPF with greater protection, the SPF 100+ products do not provide twice the ultraviolet B protection of an SPF 50 product.

“In fact, none of the sunscreen products in the Coppertone SPF 55-100+ collection provide any additional clinical benefit over the Coppertone SPF 50 products,” according to the complaint, which also notes that the FDA had voiced concern about labeling a product with a specific SPF value higher than 50. “The FDA’s findings are based on, inter alia, scientific tests that demonstrate SPF 100 sunscreens block 99 percent of UV rays, while SPF 50 sunscreens block 98 percent, an immaterial difference that provides no additional clinical benefit to consumers against sunburn.”

The Coppertone lawsuit alleges the only reason consumers would purchase an SPF product over SFP 55 is because they believe it provides greater protection than a lesser SPF product, therefore, Merck’s Coppertone SPF 55- 100 are overpriced. “As a result of Merck’s superior UVB protection claims, consumers, including plaintiff and members of the proposed class, have purchased products that do not perform as advertised,” the complaint states.

The plaintiff is seeking to represent a national class of plaintiffs claiming Merck’s representations of superior UVB protection are false, misleading and reasonably likely to deceive the public, and that Merck spreads the false claims through advertising inserts, the Internet and labels “where they cannot be missed by consumers.”

Of course, if you are really unsure about your SPFs, you could always wear long sleeves and a hat—but that just ain’t as sexy.

Top Settlements

Well Lowe and behold…a $6.5 settlement has been reached in a class action lawsuit pending against t Lowe’s—the DIY guys. The deal, if approved, will resolve a labor law class action filed by two former contractors, Ronald Shephard and Henry Romines, who allege Lowe’s violated California labor law.

Specifically, the lawsuit states that Lowe’s treated the independent contractors as employees when they were retained to install garage doors. While Romines voluntarily dismissed the claims Shepard continued with the lawsuit, and the court certified certified a class of: “All persons who installed products for Lowe’s or performed services for Lowe’s in the State of California and who were treated as independent contractors by Lowe’s but over whom Lowe’s exercised control and discretion in the performance of their installation services.” The certified class period runs from 2008 to the present.

According to the Lowe’s lawsuit: “Specifically, plaintiffs assert that Lowe’s had the right to control, and in fact did control all aspects of installation services performed by Shephard and all other Type 1 and general contractor installers,” according to the settlement for preliminary approval proposed to the U.S Northern District Court of California, Oakland division.

“Plaintiffs further allege that Lowe’s misclassification of the installers caused harm not only to the installers who did not receive the benefits attendant with being treated as employees, but also resulted in harm to the installation companies that contracted with Lowe’s,” the lawsuit states.

In discussing the proposed Lowe’s settlement, Shephard’s attorneys write, “Shephard determined that if this action proceeded to trial and if Shephard prevailed on all of his claims, the maximum amount recoverable for the class would have been approximately $33 million. Shephard submits that a recovery of $6.5 million, or approximately 20 percent of the recoverable damages, is an eminently fair and reasonable recovery.”

It is estimated that some 4,029 individual installers and 949 installation companies are eligible to receive settlement funds, and “The maximum settlement amount equates to about $1,613.30 per settlement class member,” court documents state.

Ok, Folks—we’re done here—have a great weekend and we’ll see you at the bar!

Week Adjourned: 9.28.12 – Maybelline, Coppertone, Sallie Mae Student Loans

The class action lawsuit and settlement wrap for the week ending September 28, 2012. Top stories include Maybelline, Coppertone and Sallie Mae.

Top Class Action Lawsuits

A Sticky Situation? (ok— that’s bad—I know). Maybelline is the latest company to face a consumer fraud class action lawsuit. This one alleges the company’s “Super Stay” lipstick and lip gloss don’t last as long as promised. The Maybelline lawsuit accuses L’Oreal SA, the parent company of Maybelline, of falsely advertising the staying power of both products, which sell for about $9 each.

The lawsuit, filed by Carol Leebove, Wanda Santa and Denise Santiago, claims L’Oreal and Maybelline make “misleading, inaccurate and deceptive” advertising claims regarding its “Super Stay 14HR Lipstick” and “Super Stay 10HR Stain Gloss.”

The women claim that while the products are advertised as having “super staying power” that “won’t fade,” that’s not been their experience with the products. According to the lawsuit, “the Super Stay products do not remain on the wearer’s lips for the extended periods as advertised” and “wear off and fade after only a few hours of wear.” One of the Plaintiffs claims the so-called long-lasting lipstick wears off as soon as she eats a meal or has a drink. So, we’ll see if this lawsuit has staying power… as the class has yet to be certified.

Top Settlements

The Proof wasn’t in the Lotion? Merck’s in the news again this week, this time with a settlement of a consumer fraud class action lawsuit over advertising claims made by its Coppertone franchise. The preliminary Coppertone settlement involves Merck ponying up between $3 million and $10 million in damages to the class.

The lawsuit, which was filed in 2003, alleges Merck made false claims about the benefits of its Coppertone sunscreen products. To be fair, Merck inherited the lawsuit in 2009 when it bought Schering-Plough Corp, which owned the popular Coppertone franchise.

As part of the settlement, Merck has agreed that all Coppertone sunscreen products manufactured on or after June 22, 2012 for sale in the United States, its territories and possessions, will not use the terms “sunblock,” “waterproof,” “sweatproof,” “all day” and/or “all day protection” in the label, advertising, marketing or promotion of the products.

When the settlement receives final approval, class members who purchased the Coppertone products at issue will be able to submit a claim worth up to $1.50 for each eligible sunscreen product purchased. Well, that ought to help!

Student Loan Relief? Finally, this week, a class action lawsuit settlement has been agreed between student loan borrowers and a subsidiary of SLM Corp. The lawsuit (Mark A. Arthur, et al. v. Sallie Mae Inc., No. 10-0198, W.D. Wash.), claimed the subsidiary violated the Telephone Consumer Protection Act (TCPA) by making a number of non-emergency autodialed calls and/or automated text messages to the borrowers’ cellular telephones in an attempt to collect on outstanding student loan debt. Nice!

The Sallie Mae settlement terms, which must first receive final approval, include Sallie Mae paying out $24.15 million to the borrowers that received the autodialed calls or automated text messages to their cellular phones by Sallie Mae Inc.

And on that note—I’m going to the bar. Have a great weekend!