Week Adjourned: 12.18.15 – Scottrade, GM Pickups, Security Guards

ScottradeTop Class Action Lawsuits

Not a Fair Trade? Here’s one that nearly slipped under the radar…Scottrade, the discount brokerage service, is facing a data breach class action lawsuit filed by a woman in Florida who claims the personal and financial information of herself and potential millions of others has been compromised as a result of the breach.

Filed by Angela Martin, individually and for all others similarly situated, the Scottrade lawsuit states Scottrade’s failure to protect and adopt adequate security, best practices and industry standards regarding data security and retention, has resulted in millions of customers’ sensitive personal and financial information being compromised.

Scottrade currently operates an online trading website, which was hacked over the course of several months from late 2013 to early 2014, the complaint states.

Further, the lawsuit states that Scottrade itself estimated nearly 4.6 million customers have been affected by the data breach. However, the company has only bgan notifying customers of the data breach in October, but its notice is deficient and fails to fully explain the nature and cause of the breach.

The lawsuit claims breach of express and implied contract, violation of consumer fraud laws of multiple states, and negligence. The lawsuit is Tampa Division of the Middle District of Florida Case number 8:15-CV-02791-SCB-EAJ.

General Motors being Generally Dishonest? Maybe just a little bit? Yes—according to a nationwide consumer fraud class action lawsuit filed in California federal court this week, alleging the auto maker promoted two types of pickup trucks that don’t live up to their advertised towing capacity.

According to the GM pickup lawsuit, filed by Richard Quintero who drives a GMC Sierra, at the end of 2014 the auto maker alerted owners of 2014 GMC Sierra 1500 Series and Chevrolet Silverado 1500 pickup trucks across the country that GM had miscalculated the trucks’ towing capacities and that the actual amount they could tow was about 2,000 pounds less than advertised.

“Had plaintiff and class members known the 2014 GMC Sierra’s and the 2014 Chevrolet Silverado’s actual towing capability at the time of purchase, and the safety hazard posed by towing loads in excess of a vehicle’s capacity, they would not have bought the class vehicles or would have paid much less for them,” Quintero states in the complaint.

Quintero accuses GM of breach of express warranty, negligent misrepresentation and of violating California consumer protection laws and seeks to represent all owners and lessees of the two truck models.

Quintero states in the complaint that he visited his local GMC dealership in California during the summer of 2013, originally intending to buy a 2013 Sierra. However, the complaint notes, after learning about the purportedly superior towing capacity of the 2014 model, Quintero purchased the newer, more expensive truck.

The complaint notes that Quintero owned a 5,000 pound trailer, which he used to haul a 1,000 pound golf cart. But, after seeing GM advertisements that said his new truck could haul 8,800 pounds, he decided to upgrade and bought a new 6,700 pound trailer to haul the cart.

After he bought the trailer, Quintero got the letter from GM telling him his truck could only pull 6,700 pounds, not enough capacity to tow the new trailer with the golf cart inside, the complaint states.

“This towing capacity reduction followed uniform and pervasive representations to the contrary from defendant to plaintiff and class members,” Quintero states. “Prior to GM’s precipitous recalculation, GM expressly and repeatedly touted the towing capacity of class vehicles, and its representatives confirmed that towing capacity is a material, and often dispositive, consideration for pickup truck consumers.”

The case is Quintero v. General Motors Company et al., case number 5:15-cv-02530, in the U.S. District Court for the Central District of California. 

Top Settlements

They owe, they owe—it’s to the bank you go!!! Well, if the settlement deal is approved. A preliminary $11 million settlement has been reached between AlliedBarton and a class of workers who filed an employment lawsuit against the security services company alleging it failed to provide meal and rest breaks, to pay adequate wages and did provide inaccurate wage statements, in violation of California labor law.

According to the terms of the AlliedBarton settlement, each of the three named plaintiffs would receive $30,000 in service payments. The approximately 43,893 non-exempt hourly employees who worked for AlliedBarton in California from April 2004 through January 2015 would share the net settlement amount on a prorated basis, based on the number of weeks they worked, according to the proposed deal.

The lawsuit was filed by lead plaintiff Gregory Dynabursky in 2012 on behalf of thousands of security officers, alleging that AlliedBarton violated California labor and business laws by requiring guards to perform work duties during meal breaks. He also asserts that the workers had to sign a related on-duty meal period agreement.

The case is Gregory Dynabursky et al. v. AlliedBarton Security Services LP et al., case number 8:12-cv-02210, in the U.S. District Court for the Central District of California.

Ok—That’s a wrap folks… Happy Friday…See you at the Bar!

Week Adjourned: 9.18.15 – Best Buy, Actos, GM Ignitions

Best Buy logoTop Class Action Lawsuits

Is it Time to Clear the Air? Best Buy was hit with a consumer fraud class action this week, alleging it falsely advertised a line of Electrolux vacuum cleaners as having HEPA filters. Filed in Virginia federal court on behalf of lead plaintiff Christopher L. Early, the Best Buy lawsuit asserts that the Electrolux model EL4071A, which he purchased from a Glen Allen, VA., Best Buy in June, does not contain a certified HEPA filter as claimed by the advertising. Rather, the filters in these vacuums are described by Electrolux as an “allergen” filter. The lawsuit contends that Best Buy knew or should have known the vacuum filter did “not meet the standards of efficiency for a HEPA filter … and is a substantially inferior filtration system.”

Certified by the US Department of Energy, a high-efficiency particulate arrestance or HEPA filter is a type of air filter frequently used to help with asthma and indoor allergies. When used in a vacuum cleaner, the filter works to limit the amount of allergen and dust particles emitted into the air while it’s running, according to the complaint.

“Notwithstanding the material differences between a HEPA vacuum cleaner filter and a non-HEPA vacuum cleaner filter, Best Buy deliberately and willfully misrepresented in advertising and selling the Electrolux model EL4071A vacuum cleaner to consumers that such vacuums provided HEPA air filtration performance when, in fact, they did not,” the lawsuit states.

The advertising referred to in the complaint includes in-store signage, advertisements and online product descriptions and specifications for the vacuum. Specifically, the lawsuit states that the online description of the vacuum made numerous references to its HEPA filter. It was because of these claims that Early decided he would buy the vacuum “in reliance on the accuracy of the Best Buy online advertisement.”

The vacuum is described as a “HEPA bagless canister vacuum” on Best Buy’s website and sells for $199.99. According to the complaint, after buying the vacuum, Early reviewed the manual for information on the HEPA filter and could not find mention of a HEPA filter. So he called Electrolux and the manufacturer confirmed that in fact that model only has an allergen filter, not a HEPA certified filter.

The plaintiff is seeking class certification, damages and legal fees. He claims Best Buy is in breach of express and implied warranties, the Magnuson-Moss Warranty Act, the Virginia Consumer Protection Act and consumer protection laws of various states and is guilty of false advertising.

“Best Buy’s massive campaign to deceive U.S. consumers concerning the supposed health benefits of the Electrolux model EL4071A vacuum cleaner have caused harm to the plaintiff and the members of the proposed class and will continue to do so as long as Best Buy continues to make such representations and fails to notify its customers of its false representations,” the complaint states.

The case is Christopher L. Early v. Best Buy Co. Inc., case number 3:15-cv-00549, in the U.S. District Court for the Eastern District of Virginia.

Top Settlements

Actos Billion Dollar Settlement. A previously announced $2.4 billion settlement has been approved by enough plaintiffs in a mass tort against Takeda Pharmaceuticals, to enable the deal to proceed. The plaintiffs had filed Actos bladder cancer lawsuits, across the country, totaling over 8,000 product liability complaints. They alleged that Takeda withheld information about the side effects of its diabetes medication.

Actos (pioglitazone hydrochloride) is a member of a class of drugs known as thiazolidinediones, which have been linked to bladder cancer, liver disease and cardiovascular issues. Actos side effects include increased risk of congestive heart failure (CHF), increased risk of rare but serious liver problems, an increased risk of fractures, and an increased risk for bladder cancer. A black box warning exists for Actos and heart failure, however, an Actos whistleblower lawsuit suggests a previously known but downplayed link between Actos and myocardial infarction (Actos heart attack). Actos is used to treat type 2 diabetes. According to a company press release, 96% of all eligible claimaints have opted in to an Actos settlement program that was initially made public on April 28.

Under the terms of the agreement, the Actos settlement should provide an average award of about $296,000 per case, for plaintiffs diagnosed with bladder cancer. However, the individual awards may be reduced based on the user’s age, exposure to other cancer-causing toxins and smoking history. The amount is set to rise to $2.4 billion if 97% of all eligible claimants participate.

Guess They Just Couldn’t Deny it Any Longer….Acting in its own best interests, no doubt, General Motors (GM) has agreed to pay $900 million to bring closure to criminal charges brought against by the US government over allegations the automaker hid a handle lethal ignition switch defect, which has resulted in at least 124 deaths.

According to a report in Automotive News, GM admitted to failing to disclose the defect to both the National Highway Traffic Safety Administration (NHTSA) and the public. The defect prevents the deployment of airbags in some vehicles.

Additionally, GM has also admitted to misleading consumers about the safety of vehicles affected by the defect.

Under the terms of the three year agreement, GM must have its internal safety practices independently monitored as well as its ability to fix defects and recalls. If GM adheres to its obligations set out in the agreement, the criminal charges will be dropped.

Ok – That’s a wrap folks… See you at the Bar!

Week Adjourned: 1.3.15 – Apple, GM, Wells Fargo

The Week’s Top Class Action Lawsuits and Settlements. Top stories include Apple, GM and Wells Fargo.

Apple logoTop Class Action Lawsuits

Another year, another Apple Lawsuit. Yup. This week, iPhone users in Miami filed a consumer fraud class action lawsuit against Apple Inc, alleging the Cupertino-based tech giant greatly overstated the storage capacity of devices that run its latest mobile operating system, iOS 8.

Lead plaintiffs filed the complaint  in U.S. District Court in Northern California claiming operating system itself requires a significant percentage of the storage capacity on the iPhones, iPads and iPods that run it, thereby making a large portion of the advertised space unavailable to device owners.

According to the lawsuit, in some cases, the space used is 23.1 percent. Further, the complaint alleges, Apple entices customers in need of more space to pay for extra storage on iCloud.

“Using these sharp business tactics, [Apple] gives less storage capacity than advertised, only to offer to sell that capacity in a desperate moment, e.g., when a consumer is trying to record or take photos at a child or grandchild’s recital, basketball game or wedding,” the lawsuit states. “To put this in context, each gigabyte of storage Apple shortchanges its customers amounts to approximately 400-500 high resolution photographs.”

The plaintiffs allege Apple is violating California laws prohibiting unfair competition and false advertising. They claim that reasonable consumers do not expect the “marked discrepancy” between the advertised level of storage capacity and the available level of capacity on Apple devices running the OS.

GM’s Record Year? GM must be facing some kind of record for the number of defective automotive class action lawsuits filed against it in 2014. The latest GM lawsuit, filed in December, alleges a defect in the steering system of its Chevrolet Volts which causes the steering wheel to freeze intermittently while driving. Yes—that could certainly cause a few problems.

Filed in New Jersey federal court, by plaintiffs Christopher Johnson and Tara Follari-Johnson, the GM lawsuit claims that GM knew, or should have known, about the alleged defect, but continued to sell the cars. The lawsuit further claims that the alleged defect poses a hazardous safety risk to drivers and that even when GM agrees to fix the steering system, it only replaces the allegedly defective steering rack with the same or similarly defective components.

“When class members present to GM’s authorized dealerships complaining of the steering defect, the dealerships recommend repairs such as replacing the steering rack or steering gear assembly,” the plaintiffs said. “However, these repairs only temporarily mask the problem.”

The lawsuit alleges GM is in violation of the New Jersey Consumer Fraud Act and the Magnuson-Moss Warranty Act, and in breach of implied warranty of merchantability and express warranty and common law fraud.

The plaintiffs propose to represent a nationwide class of owners and lessees of 2011-2014 Chevrolet Volt bought or leased new in New Jersey and a subclass of national class members who live in New Jersey. There are at least 100 members of the proposed class, according to the plaintiffs, and their claims are more than $5 million.

“Complaints that consumers filed with National Highway Traffic Safety Administration and posted in discussion forums demonstrate that the defect is widespread and dangerous and that it manifests without warning,” the complaint states. “The complaints further indicate defendants’ knowledge of the defect and its danger.”

Top Settlements

Wells Fargo Agreed to Pony Up $14.5 million as part of a preliminary settlement agreement reached in a Telephone Consumer Protection Act (TCPA) class action lawsuit. The lawsuit was  brought on behalf of millions of customers who alleged Wells Fargo Bank NA called them on their cellphones to collect credit card debt.

Brought by lead plaintiff Lillian Franklin, the Wells Fargo settlement motion, if approved, will resolve her suit claiming the bank violated the Telephone Consumer Protection Act by making automated calls to alleged debtors without their consent. She filed suit in August, claiming the financial institution called her multiple times on her cellphone in 2010, to collect an alleged debt on her credit card. The calls featured a pre-recorded message and were made without Franklin’s consent, according to the lawsuit.

According to the settlement terms, a settlement fund will be shared evenly between class members who submit claims. Currently, the class consists of 4 million members. The fund will established after consideration of attorneys’ fees and administration costs, according to the motion.

The case is Franklin v. Wells Fargo Bank NA, case number 3:14-cv-02349, in the U.S. District Court for the Southern District of California.

Hokee Dokee—That’s a wrap folks…Time to adjourn for the week.  Happy New Year!

Week Adjourned: 6.20.14 – GM, Petco, Best Buy

Top class action lawsuits and settlements for the week! Top stories include GM, Petco and Best Buy

GMTop Class Action Lawsuits

What’s your GM Vehicle Worth these Days? Less than it was a few months ago—according to a new class action lawsuit filed against General Motors Co., (GM) this week. The GM lawsuit follows the latest round of GM Recalls, alleging the automotive manufacturer’s reputation has been so badly damaged that even vehicles not included in the recalls have depreciated in value. The lawsuit is seeking in excess of $10 billion on behalf of all GM vehicle owners. The recalls allegedly constitute 25 percent more than what would be seen in a normal year, and almost 20 times more than the number or recalls issued during the same period in 2013, the lawsuit claims.

According to the GM lawsuit, GM marketed its vehicles as safe and reliable which mislead consumers into purchasing or leasing their cars, because the company was, at the same time, intentionally concealing known defects and valuing cost-cutting over safety, eventually leading all GM vehicles to depreciate in value due to its now-ruined brand.

“GM enticed … all GM vehicle purchasers to buy vehicles that have now diminished in value as the truth about the GM brand has come out, and a stigma has attached to all GM-branded vehicles,” the lawsuit states.

The lawsuit claims that the forced recalls of over 17 million vehicles has severely damaged the company’s reputation. According to the lawsuit there are about 40 different recalls covering 35 separate defects. All the recalls took place in the first few months of 2014.

“GM’s now highly publicized campaign of deception in connection with the ignition-switch defect sent shockwaves throughout the country, and jump-started the ever-burgeoning erosion of consumer confidence in the GM brand,” the complaint states.

The suit alleges that the 2010 and 2011 Chevrolet Camaro models have both been diminished between February, before the recalls began, and now, depreciating $2,000 in value. Further, the 2009 Pontiac Solstice went down $2,900 in value during that time, according to the lawsuit. According to the complaint, GM’s vehicles have depreciated in value because “no reasonable consumer” will pay the price they would have paid when the GM brand meant “safety and success.”

If certified, the class will represent GM consumers nationwide who own or lease a new or used vehicle sold between July 10, 2009, and April 1, as well as consumers who sold their GM vehicles at a “diminished price” on or after April 1. The class excludes consumers who own or lease certain Chevrolet Cobalt, Chevrolet HHR, Pontiac G5s, Saturn Ions and Saturn Sky vehicles.

The suit also seeks to certify a California subclass of GM vehicle owners and lessors, in addition to those who sold their cars at depreciated value.

The suit is Andrews et al v. General Motors LLC, case number 5:14-cv-1239, in the U.S. District Court for the Central District of California.

PetCode Problems? Heads up…Petco customers—they got zapped with Zip code class action this week. According to the proposed Petco class action lawsuit the animal supplies retailer is in violation of Massachusetts state law through their collection of customers’ zip codes.

According to lead plaintiffs Jeffrey Scolnick and Leah Crohn,Petco would not allow them to complete credit card purchases without their first providing the retailer with their ZIP codes, even though the store is not required by credit card issuers to collect this information from customers. Consequently, the plaintiffs allege they have received unwanted marketing materials from Petco. Further, they allege the store has sold their information to third parties without their consent and for marketing purposes.

“Petco recorded plaintiffs’ ZIP codes into an electronic credit card transaction form,” the complaint states. “Petco continues to store plaintiffs’ personal identification information, including plaintiffs’ name, ZIP code and credit card number, in its databases.”

The lawsuit, entitled, Scolnick et al. v. Petco Animal Supplies Store Inc., case number 1:14-cv-12547, states that Massachusetts’ high court has determined that ZIP codes constitute personal information under the Massachusetts Unfair Trade Practices Act, which prohibits the collection of personal information by retailers. Consumers place a high value on the privacy of their personal identifiable information, the lawsuit states.

The lawsuit seeks to represent all customers from whom Petco requested personally identifiable information when making a credit card purchase in Massachusetts, according to the complaint. The plaintiffs said they do not yet know the potential number of class members. 

Top Settlements

Best Buy done for less than Best Practices. Plaintiffs in a Telephone Consumer Protection Act TCPA class action lawsuit against Best Buy have finalized a $4.55 million settlement deal. The lawsuit, with a Washington state class of 439,000 members, and a national class of 42,000 members, was initially filed in April 2010 by Michael Chesbro who alleged Best Buy automatically signed customers up for its Rewards Zone program without their knowledge when they purchased electronics under a payment plan. Best Buy then made unsolicited phone calls to those consumers with information about that program.

According to the terms of the Best Buy settlement, filed June 9 in the U.S. District Court for the Western District of Washington, class members will receive their pro rata share from the settlement fund, once court-awarded fees, litigation and administrative costs and the class representative incentive award have been deducted. This will leave an estimated $3.2 million for distribution among class members, equally between $50 and $100 per call.

Michael Chesbro is to receive a $5,000 service award for services he has rendered to the classes by stepping forward to bring this case, according to the settlement papers.

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

Week Adjourned: 5.16.14 – Goodman AC, GM, Kashi Cereal

The week’s top class action lawsuits and settlements. Top stories include Goodman air conditioning, GM Financial and Kashi Cereal.

Goodman acTop Class Action Lawsuits

Is your air conditioning unit blowing a little defective hot air? Well, according to a class action lawsuit filed against Goodman Global, Inc., and certain affiliated companies, their central air conditioning units and heat pumps sold under the Goodman® and Amana® brands since 2007 are—defective that is. The bit that’s causing the alleged problems is the evaporator coil(s).

For those of us not intimately acquainted with the working innards of an air conditioning unit (most of us, I’m guessing) evaporator coils are generally located inside a consumer’s home and are essential to the proper functioning of any central air conditioning system or heat pump.

So–according to the lawsuit, Goodman and Amana central air conditioning and heat pump systems contain defective evaporator coils that improperly and prematurely leak refrigerant (a.k.a. Freon®). Oh that’s good. Not. The defect allegedly renders the systems inoperable because the cooling cycle will not work without refrigerant.

Although Goodman sells these units with a warranty, that warranty is limited in a way that provides insignificant protection to owners of the units. In particular, the Goodman warranty, by its terms, covers replacement parts, but not the labor costs associated with the replacement. According to the lawsuit, the result is that, when a defective evaporator coil fails, Goodman provides the owner with a replacement coil, but does not pay to have the old coil removed or the replacement coil installed. As alleged in the lawsuit, those labor costs typically run in the hundreds of dollars, and in some cases, thousands of dollars. Thus, in at least some instances, the owner is forced to spend as much or more to replace the defective evaporator coil as the cost to purchase a new Goodman unit.

The complaint also alleges that Goodman has known that its units sold since 2007 contained defective evaporator coils, but the company failed to inform consumers about the problem or issue a recall. Indeed, according to the lawsuit, Goodman continued to tout the quality of its air conditioning systems, claiming they were durable, dependable, and long lasting, even though it was aware that the defective evaporator coils would cause the units to fail prematurely and at rates far above the industry average.

The lead plaintiff in the case acquired his Goodman unit when he purchased his new house in September 2011. According to the lawsuit, in or about July 2013, after only one summer of use, the unit stopped cooling the plaintiff’s home. A service technician allegedly found that the unit was low on refrigerant and added four pounds of refrigerant, which immediately leaked out of the system. After observing this, the technician determined that the evaporator coil was leaking and needed to be replaced. According to the complaint, the service technician returned the old defective evaporator and replaced it with a new one, charging plaintiff approximately $650 for this service.

The civil action was filed on behalf of all consumers in North Carolina that purchased a central air conditioning unit or heat pump bearing the trade names Goodman® and Amana® from 2007 to the present.

GM—AGAIN! GM just cannot seem to get it right these days. No, this time it’s not the auto recalls…this week their loan re-financing subsidiary got hit with a class action lawsuit alleging violations of the Telephone Consumer Protection Act (TCPA).

Brought by Monique Perez of California, the GM lawsuit claims that beginning in late 2013, General Motors Financial Co. Inc. made “virtually daily incessant calls” to Perez’s cellphone regarding a debt allegedly owed by another person named “Melanie.”

Perez claims that by calling from an automatic telephone dialing system (ATDS), which can store or produce telephone numbers to be called using a random or sequential number generator, GM Financial violated the TCPA. Don’t you love technology?

According to the lawsuit, “Plaintiff has never provided any personal information, including her cellular telephone number, to defendant for any purpose. As such, neither defendant nor its agents were provided with prior express consent to place calls via its ATDS to plaintiff’s cellular telephone.”

The plaintiff alleges members of the class not only suffered privacy violations but also suffered cellular telephone charges or saw a reduction in cellular telephone time that had already been paid for.

Perez is seeking to represent a putative class, made up of all US residents who received any telephone call from the company to a cellphone through the use of an ATDS within the past four years. She is seeking $500 per negligent violation and $1,500 per knowing or willful violation of the TCPA for each class member.

Top Settlements

So it was all corn after all… Kellogg’s, the maker of Kashi products, has agreed to a $5 million settlement, potentially ending a consumer fraud class action lawsuit that claimed Kashi’s labeling was misleading and fraudulent. Wait—don’t tell me—this stuff is so natural it makes Mother Nature look fraudulent—right?

Right. The Kashi lawsuit alleged that labeling on certain products used labels stating “All Natural” or “Nothing Artificial,” when in fact the products contain a variety of synthetic and artificial ingredients, such as pyridoxine hydrochloride, calcium pantothenate, hexane-processed soy ingredients, ascorbic acid, glycerin and sodium phosphate.

Under the terms of the settlement, Kellogg’s has also agreed to stop using the labels “All Natural” and “Nothing Artificial”. In a statement, Kellogg Co. said it stood by its advertising and labeling practices but that it would change its formulas or labels on Kashi products, nationally by the end of the year.

The settlement was filed May 2 in U.S. District Court in California and is subject to court approval.

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


Week Adjourned: 4.30.10

GM is under fire for miscalculating refunds on its extended protection planTop Class Actions

Is GM cutting corners? Maybe. Certainly Jimmy Hendon believes they are, so he filed a class action lawsuit against the automotive manufacturer, over alleged unfair business practices associated with its extended warranty plans.

Mr. Hendon is claiming that GM improperly calculated his prorated cancellation refund associated with his GM Major Guard Vehicle Service Contract. Hendon purchased the extended warranty in 2006 as additional 12 month/44,000 mile coverage to the GM standard 36 month/36,000 mile factory warranty which came with the new 2006 Chevy Avalanche he had just bought. Hendon canceled the extended warranty in 2009, with 18,483 miles remaining on the contract.

Specifically, the complaint alleges that GM calculated Hendon’s refund by taking the remaining miles divided by the 80,000 total miles under warranty, resulting in a $295 refund. Hendon claims GM should have calculated his refund by dividing his remaining miles by the 44,000 mile extension, resulting in a $580 refund.

The suit claims that GM should be prorating the canceled refund by dividing the remaining miles or days by the number of miles or days that the service contract extended the factory warranty.

While you may think that $200 or $300 may not sound like much for GM—why would they bother?—if you multiply that sum over the potentially thousands of folk in similar situations to Jimmy—well heck, you might just have enough for a bailout payment…

The Gulf of Mexico Tragedy in the Making… Hopefully BP won’t get away with this environmental Continue reading “Week Adjourned: 4.30.10”