Week Adjourned: 11.10.17 – Lyft, PNC, Chase

Top Class Action Lawsuits

Not wanting to hear from Lyft? Lyft got hit with a Telephone Consumer Protection Act (TCPA) class action lawsuit this week, alleging that ride sharing app, and employment social network Jobcase engaged in sending unsolicited text messages to prospective drivers.

According the complaint, filed by Mary Fente, Lyft and Jobcase, which also runs a subsidiary company that posts jobs called jobhat, sent spam text messages to Fente’s phone using an automated dialing system, in violation of the TCPA. The purpose of the text messages was to persuade Fente to become a driver for Lyft, she claims.

According to Fente, she had accessed Lyft’s website through an ad posted on Jobhat, previously.

The Lyft complaint cites the texts as reading “Maria, START NOW: Drive with Lyft, up to $1500/wk,” and the message contained a link to Lyft’s website. Fente said she did not consent to receiving text messages.

The proposed number of plaintiffs could be “in the several thousands, if not more,” and seeks class certification for any potential Lyft driver who received an automated text going back to August 10, 2013. Further, Fente seeks to enjoin Jobcase and Lyft from sending the texts, and asks a judge to triple the $1,500 statutory damages under the TCPA for each message.

In the proposed action, Fente states that the spam texts caused her “actual harm, including invasion of her privacy, aggravation, annoyance, intrusion on seclusion, trespass, and conversion.” Additionally, the unsolicited texts caused her to check her phone at work, which meant she had to stop what she was doing to check her phone.

Lyft has an agreement with Jobcase to pay the company a fee based on how many prospective drivers Jobcase steers to Lyft’s website, the complaint states.

The case is Fente et al. v. Jobcase et al., case number 1:17-cv-24082, in the U.S. District Court for the Southern District of Florida. 

How do you define unjust enrichment? A national consumer banking class action lawsuit filed against PNC Bank is alleging a version of it that goes like this: according to the complaint, customers with delinquent loans are being charged fees by PNC’s mortgage servicing unit, repeatedly, for “unreasonable and inappropriate” drive-by property inspections. Drive by inspections? Read on.

Filed in federal court by Rosemary Marsh of Bremerton, WA, the complaint asserts that she was charged for six drive by inspections, at $12 each, over a span of 17 months, after she fell behind on her mortgage in 2013.

“The inspector drives by the property ostensibly to assess whether the property is occupied, being maintained, and has not been damaged,” the complaint states.

According to the PNC mortgage property inspection lawsuit, the bank automatically orders the property inspections at regular intervals without regard to whether they are needed or reasonable.“Property inspections are even performed when PNC is aware that a property is not vacant,” the plaintiff asserts. By way of example, in the case of a borrower who only misses one month’s payment but continues to make regular monthly payments, “PNC’s system will continue to generate work orders for property inspections until the initial default is cured,” according to the complaint. “These computer-generated inspections are unnecessary and unreasonable, confer no benefit to the lender and serve no purpose other than to generate revenue for PNC,” the lawsuit states.

Marsh alleges that even after verifying she was occupying the home, and after she had resumed making monthly payments on her loan, PNC ordered and assessed inspection fees.

The lawsuit claims unjust enrichment, and violations of the Washington State consumer protection laws.

Marsh contends that Class Members have suffered injury-in-fact and/or actual damage, and as a result, Plaintiff and the Class Members are entitled to a disgorgement of all amounts by which the Defendant has been unjustly enriched, as well as their actual damages, punitive damages, among other relief.

Marsh brings this action seeking injunctive relief and damages on behalf of herself and the hundreds of thousands or millions of borrowers who have been victimized by PNC’s uniform practice of charging for unreasonable and inappropriate property inspection fees. The lawsuit seeks certification of a national class and a Washington class. 

Top Settlements

Chase to settle overtime lawsuit… Bet these plaintiffs are celebrating. JP Morgan Chase & Co has agreed to pony up no less than $16.7 million as settlement of an unpaid overtime class action lawsuit.

The settlement address claims made by assistant branch managers that Chase misclassified them as exempt from overtime, in violation of federal and state employment laws.

There are four classes of plaintiffs, one which brings claims under the Fair Labor Standards Act (FLSA), and three putative classes, which claim violations of New York, Connecticut and Illinois laws respectively. Under the proposed deal, plaintiffs should receive an average of more than $3,000 per class member, in respect of unpaid overtime dating back to 2012. The deal covers approximately 5,400 employees.

The class action was filed in March 2014 and certified in September 2016. The putative classes filed a lawsuit in April 2015 after attempting to negotiate directly with the bank, according to the agreement. The two lawsuits were eventually consolidated by the court, following certification of the FLSA class.

“Given all the risks plaintiffs faced (obtaining class certification, maintaining collective action certification, defeating the class and collective action arbitration waivers, winning liability, proving damages, winning the appeal, etc.) and recognizing that plaintiffs did not work overtime in multiple weeks per year when they took time off or when there were bank holidays, an average gross settlement of about $3,086 is reasonable in this highly-contested matter,” the proposed Chase settlement agreement states.

The cases are Taylor et al. v. JPMorgan Chase & Co. et al., case number 14-cv-01718, and Varghese v. JPMorgan Chase & Co. et al., case number 1:15-cv-03023, in the U.S. District Court for the Southern District of New York. 

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

Week Adjourned: 8.18.17 – Lyft, Carnival, Mylan EpiPen

Top Class Action Lawsuits

Lyft may need to raise their game. They got with an employment class action lawsuit this week, alleging the ride-hailing service uses a calculation method for wages that results in drivers making less than the amount they are actually owed. How novel.

Filed in federal court in New Jersey, the lawsuit alleges that Lyft contracts state that its drivers will receive a portion of the fare charged to riders, which is based on an estimation of the time and distance it will take to complete the ride. However, according to the complaint, drivers’ pay is actually based on a separate fare calculation reflecting actual miles and minutes driven. Therefore, the drivers are receiving less than they are contracted to receive.

The proposed nationwide Lyft class action lawsuit consists of drivers who entered into contracts with Lyft to provide transportation services to customers in exchange for a portion of the fare Lyft charges riders, plus tips if applicable and minus service fees, cancellation fees, damage fees, tolls, surcharges and taxes. The class would include drivers who opted out of Lyft’s arbitration agreement.

Named plaintiff Keara Nieves, a Long Branch, New Jersey, resident, has worked as a Lyft driver since 2016. Nieves alleges that the Lyft driver’s contract sets forth, in part, that “all fare payments are subject to a Lyft commission …You will also receive any tips provided by riders to you, and the tips will not be subject to any Lyft commission.” Lyft also reserves the right to set and change prices for services and commission, the complaint states.

Nieves claims that she understood she would be paid an amount equal to the fare charged to the rider plus applicable tips and minus Lyft’s commission of 20 percent to 25 percent, depending on the time of day, and service fees, cancellation fees, damage fees, tolls and other surcharges for rides she successfully completed, the complaint states.

However, in practice, Lyft pays its drivers based on a calculation of distance and time actually driven, according to the complaint. This results in a discrepancy between the fare charged and the “improper” basis Lyft uses to pay its drivers is concealed from drivers, the plaintiffs assert. “Specifically, defendant Lyft has retained a larger portion of the passenger fare than they promised they would retain in the [driver agreement],” the complaint states.

The case is Nieves v. Lyft Inc., case number 3:17-cv-06146, in U.S. District Court for the District of New Jersey. 

Top Settlements

Hey—you might be taking that cruise after all! Well, sort of. Did you get a call? If so, you could be in the money, honey. This week Carnival, Norwegian, and Royal Caribbean Resort cruise lines, in conjunction with Resort Marketing Group (RMG), agreed to settle a Telephone Consumer protection Act (TCPA) class action lawsuit alleging they made illegal telemarketing calls to consumers offering promotions with those cruise lines.

The Carnival lawsuit was filed by plaintiff Philip Charvat who claims he received the pre-recorded cruise line telemarketing calls which allegedly offered promotions from Carnival, Norwegian, and Royal Caribbean cruise lines. He further claims that he never provided prior express written consent to receive these calls. Without his consent, the lawsuit alleges, the defendant’s cruise line telemarketing violated the TCPA.

According to the Carnival cruise settlement deal, a settlement fund worth between $7 million and $12.5 million will be created depending on the number of claims filed. This fund will cover payments to qualifying Class Members, an incentive award for Charvat, and other related costs.

Eligible class members include people who received pre-recorded telephone calls between July of 2009 and March of 2014 on their residential or cellular telephone lines initiated by RMG during which RMG offered a free cruise with Carnival, Royal Caribbean, or Norwegian cruise lines as a promotion.

The settlement agreement specifically limits Class Members to those persons whose phone numbers are listed in Resort Marketing Group’s database.

Eligible class members may receive a potential award of up to $900 per telephone number.

A final hearing is set for April 2018.

The case is Philip Charvat v. Resort Marketing Group Inc., et al., Case No. 1:12-cv-05746, in the U.S. District Court for the Northern District of Illinois.

Mylan may need a life-saving injection after this is over. The drug maker has agreed to pay $465 million to settle fraud claims that it underpaid rebates for the EpiPen, which amounts to stealing from the government federal authorities claimed. The EpiPen lawsuit, alleging violations of the False Claims Act, was possible due to Sanofi acting as a whistleblower by alerting the federal government to the scam.

According to the terms of the now finalized agreement, Sanofi will receive $38.7 million for its role in alerting the government, together with a share of monies the states will receive as part of the financial recovery by state and federal health programs.

The lawsuit stemmed from Mylan’s deliberate misclassification of the EpiPen as being generic, which meant it paid lower rebates to the government than it should have. According to government regulations, drug makers must pay Medicaid in the form of rebates to avoid price gouging. Further, drug makers must pay a higher rebate to the government for drugs that are only available through a single source, which would be the difference between the current price and the price the drug would have cost if it had only increased by the rate of inflation. In 2009, an EpiPen two pack, which contains live saving medication used to treat people who are going into anaphylactic shock, a potentially fatal allergic reaction, rose in price by $500, from $100 to $600.

Sanofi became aware of Mylan’s alleged The False Claims Act rebate violations when it was allegedly developing its own version of an epinephrine injector, Auvi-Q. Sanofi claimed Mylan tried to block its Auvi-Q by forcing insurance companies to not cover it or to put it at a disadvantage on drug formularies. Mylan did not admit liability in the settlement.

The case is United States ex rel Sanofi-Aventis US v. Mylan Inc. et al, case number 16-cv-11572, in the U.S. District Court for the District of Massachusetts.

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

Week Adjourned: 1.29.16 – Google, Disney, Lyft

google logoTop Class Action Lawsuits

Couple of big names hit with employment class actions this week…

First up: Googlers Not Gettin’ Paid? A former Google recruiter has filed an unpaid overtime class action lawsuit against Google Inc, for class-wide wage and hour violations, asserting it illegally and deliberately cheated her and other employees of their wages.

Former Google contract employee Tymuoi Ha filed the complaint in Santa Clara Superior Court against Google, Inc. and Urpan Technologies (UrpanTech), one of the many staffing agencies through which Google acquires temporary and contract workers.

The Google unpaid overtime complaint alleges that Defendants violated the California Labor Code by denying employees compensation for all overtime worked, failing to pay owed wages upon separation from employment and not furnishing accurate wage statements.

It also alleges Google, working with staffing agencies like UrpanTech, hires recruiters on a contract basis and refuses to pay them for their many of hours of tireless work, attorneys representing Ha state. The companies restrict the number of hours recruiters can report, knowing that they must work overtime to meet performance goals. In return for the unpaid labor, the companies dangle the possibility of permanent employment. Talk about dangling a carrot…

I’m hearing “do no evil”…somewhere…

Plaintiff Ha seeks to recover damages, including unpaid wages, on behalf of herself and a California class of Google contract recruiters.

And then there’s Disney…the master of magic is facing an employment class action lawsuit filed by a former IT worker who claims Disney violated the anti-racketeering RICO statute by engaging in a “conspiracy to displace US workers.”

According to the Disney labor lawsuit filed by Dena Moore, an IT worker at Disney, the entertainment giant broke the law when it hired cheaper foreign replacements, then fired its current IT department. According to the suit, IT workers were told they would remain employed for 90 days while they trained their less expensive replacements, who were H-1B visa holders. The workers were also told that “if they did not stay and train they would not get a bonus and severance, which most employees reluctantly accepted,” the lawsuit asserts.

Moore also names labor contractor Cognizant Technology Solutions as a defendant in the suit, which goes on to claim that the defendants weren’t truthful when they filled out immigration documents, thus violating a section of the RICO law that bars “fraud and misuse of visas, passports, and other documents.”

This is one of two such suits filed against Disney claiming violations of the RICO statute. “Each making of false and fraudulent statement[s] on an individual visaholder’s H1B application constituted a separate racketeering act,” Moore claims in her proposed class action complaint. It is estimated the total number of IT workers laid off by Disney last year is between 200 and 300.

Who would a thunk it?

The Case is 6:16-cv-00113-JA-KRS. Moore vs. Cognizant technology Solutions and Walt Disney World. 

Top Settlements

Lyft Drivers get a Lift…Bet these guys are feeling a bit of a “lift” right now. Yes indeed, Lyft drivers in California have won their employment class action and reached a $12.25 million settlement this week. However, Lyft refuses to classify its drivers as employees.

Currently, drivers for Lyft are classified as independent contractors. According to the terms of the Lyft settlement, Lyft will also concede its right to terminate drivers at will, pay the costs to arbitrate drivers’ grievances and implement a pre-arbitration process, and provide drivers with additional information on prospective riders such as their passenger ratings.

The lawsuit was filed by Lyft driver Patrick Cotter, in September 2013, over allegations that while the company classified its drivers as independent contractors it treated them as employees, including taking 20 percent off their tips as an “administrative fee”, a violation of California labor laws.

Further, Cotter claimed in the suit that Lyft required inspection of drivers’ personal cars and insurance policies, and that the company maintained the right to fire drivers, and enforced mandatory policies and training, all of which is treatment more befitting employees than contractors under California law.

The suit was initially proposed as a nationwide class action but was later changed to cover drivers in California only, court records show.

Additionally, the settlement agreement stipulates that Lyft create a “favorite” driver option in which riders can designate their preferred drivers, and, as such, give them additional benefits. Further, because Lyft has surrendered its at-will termination right, drivers will now be able to turn down rides without fear of their account being deactivated, the settlement motion states.

Well done.

The next settlement hearing will be on February 18, 2016. The case is Cotter et al. v. Lyft Inc. et al., case number 3:13-cv-04065, in the U.S. District Court for the Northern District of California. 

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