Week Adjourned: 8.30.13 – Estee Lauder, HP, NFL

Top class action lawsuits for the week; top stories include Estee Lauder false advertising, HP defective products, and the NFL concussion settlement.

Lauder Night RepairTop Class Action Lawsuits

Legal Wrinkle for Estee Lauder?  Estee Lauder has come under fire this week, for claiming it’s Advanced Night Repair skin care products can make you look younger… Bottom line, Donna Tomasino of New York has filed a consumer fraud class action lawsuit against the cosmetics company, alleging Lauder practices misleading advertising regarding its Advanced Night Repair skin care products suggesting that the products promote DNA repair and other anti-aging effects.

The Estee Lauder class action, entitled Donna Tomasino v. The Estee Lauder Cos. Inc., et al., Case No. 1:13-cv-04692, in the U.S. District Court for the Eastern District of New York, claims that Tomasino purchased Estee Lauder’s Advanced Night Repair Synchronized Recovery Complex and Advanced Night Repair Eye Synchronized Complex because of claims made by the company’s advertisements. However, Tomasino claims, there is no product testing to back up the alleged anti-aging claims.

“The clinical studies and other data that Estee Lauder represents as supportive of the claimed efficacy results are nothing more than a continuation of defendants’ misleading practices—each of the studies is designed to be used in the marketing materials to support the claimed efficacy and defendants know that consumers will not see the results these studies purportedly represent,” the lawsuit states.

Tomasino also alleges Estee Lauder created the claims in its advertising campaign for the Advanced Night Repair products even though the company knows the advertising claims are false. And, because EL is allegedly motivated by profit, it deliberately misleads its customers into believing that the products have anti-aging effects so that they will spend a higher price for the Advanced Night Repair line of products.

“In sum, Estee Lauder dupes consumers with false and misleading promises of product results based on purported scientific discoveries that it knows it cannot deliver. Estee Lauder does so with one goal in mind, reaping enormous profits at the expense of consumers,” the Estee Lauder skin cream class action lawsuit states.

If your wrinkles haven’t disappeared with the use of these products, you may be interested in signing up.

HP Communication Breakdown? Also in consumer fraud spotlight this week—Hewlett Packard. Apparently their wireless printers are not good at communicating with computers. Filed in California federal court by plaintiff Vincent Ferranti, the HP defective products lawsuit, entitled Vincent Ferranti v. Hewlett Packard Co., Case No. 5:13-cv-03847, alleges that Ferranti purchased two HP wireless printers, both of which were found to contain faulty receivers, which negatively affected the printers in that they were unable to maintain consistent connections with the computers.

Ferranti further alleges users of HP wireless printers are forced to plug the printer into a computer in order to print something. “The HP printers’ wireless connectivity intermittently stops working for no reason,” the class action lawsuit states.

The HP printer lawsuit names HP’s Officejet Pro 8500 and 8600 Wireless All-in-One printers as defective, and states that HP either knew or should have been aware of the connectivity issue on or before April 2009. Ferranti further alleges HP “actively concealed” the defect from consumers and continues to sell these printers without warning consumers “that the printer’s wireless function was defective and would fail with normal use.”

The lawsuit seeks to represent a class of thousands of consumers who purchased or leased the HP Officejet Pro 8500 or 8600 Wireless All-in-One printers.

Top Settlements

Heads up NFL! (pardon the pun). A landmark settlement has been reached between 4,500 former football players, their families and the National Football League (NFL) this week, ending a deceptive business practices class action focusing on the impact of concussions on the brain.

“It’s been a struggle to get to this point, but today I will say I’m very proud that the NFL has decided to stand up for all the former players who are suffering from brain injuries,” Kevin Turner, a former NFL running back who has been diagnosed with ALS, said during a teleconference. “Today is so important for those who are…hurting. This will bring help for them today.”

The NFL concussion settlement, according to reports from CNN.com requires the NFL to pay $765 million to fund medical exams, concussion-related compensation, medical research for retired NFL players and their families, and litigation expenses.

The settlement, filed in US District Court in Philadelphia, is pending final court approval.

Former U.S. District Judge Layn Phillips, the mediator in the lawsuit, called the settlement “a historic agreement, one that will make sure that former NFL players who need and deserve compensation will receive it, and that will promote safety for players at all levels of football.”

“My hope is that any players or ex-players that are suffering, or begin to suffer, from symptoms of dementia, will be taken care of in a respectable manner through this settlement,” said Chris Dronett, one of the plaintiffs, whose husband Shane Dronett committed suicide in 2009 at age 38. Scientists found evidence of chronic traumatic encephalopathy, or CTE, in Shane’s brain after his death, CNN.com reported.

The lawsuit alleged that the NFL led a deliberate misinformation campaign—primarily through its Mild Traumatic Brain Injury Committee—to deny scientific data being presented in the medical community about health risks associated with concussion. And, the lawsuit claimed, that misinformation, trickled down to players so that they were unaware of the real nature of the risks they were taking while playing football.

Included in the settlement is the establishment of a $675 million fund to compensate players who have suffered brain injury, or their families; a maximum of $75 million for retired players’ medical exams, which could be used to diagnose future neurodegenerative disease; and $10 million devoted to research and education. The funds will be dispersed over the next 20 years.

Well done, and not a moment too soon.

Ok Folks, That’s all for this week. Enjoy that 3-day weekend and we’ll see you at the bar!

Week Adjourned: 1.27.12

A weekly wrap up of top class action lawsuits and lawsuit settlements for the week ending January 27,2012.

Top Class Actions

Ex Pro Football Players go head to head with NFL Over Concussions. Yup—that’s right. The NFL is facing a class action lawsuit filed on behalf of all former NFL players, including seven named players and four spouses over concussion and related health effects.

The named players include former Philadelphia Eagles Ron Solt, Joe Panos, and Rich Miano. The lawsuit charges that the NFL and other defendants intentionally and fraudulently misrepresented and/or concealed medical evidence about the short- and long-term risks regarding repetitive traumatic brain injury and concussions and failed to warn players that they risked permanent brain damage if they returned to play too soon after sustaining a concussion.

Ron Solt, age 50, was an all-star guard for the Eagles from 1988 to 1991 and also played for the Indianapolis Colts, playing 10 seasons in all from 1984 to 1993. He suffered at least one concussion during an NFL game while with the Eagles, as well as multiple head traumas and concussions during practice that were never medically diagnosed. He now suffers from substantial memory loss and persistent ringing in his ears.

Joe Panos, age 41, played as an offensive lineman in the NFL from 1994 to 2000 and was with the Eagles from 1994 to 1997. He sustained concussions while with the Eagles and Buffalo Bills. He currently experiences headaches, memory loss, irritability, rage, mood swings, and sleeplessness.

Rich Miano, age 49, played as a defensive back for 10 seasons in the NFL between 1985 and 1995 and was with the Eagles from 1991 to 1994. He is now associate head coach of the University of Hawaii football team. He sustained at least one concussion while playing but is currently asymptomatic.

Gennaro DiNapoli, age 36, was an NFL center and guard from 1998 to 2004 who sustained repeated head impacts during his NFL career. He suffers from severe depression, memory loss, headaches, anxiety and mood swings.

Adam Haayer, age 34, was an offensive lineman from 2001 to 2006 for four teams. He had at least four concussions or concussion-like symptoms and deals with memory loss, depression, and anxiety. Daniel Buenning, age 30, played as an offensive lineman in the NFL for four seasons from 2005 to 2008. He suffers from substantial memory loss, depression, trouble with concentration, short attention span, and mood swings.

Craig Heimburger, age 34, played on the offensive line for four teams between 1999 and 2002. He sustained multiple head impacts and concussions and suffers from dizziness, memory loss, and intense headaches.

Also named in the complaints were the wives of several players including Lori Miano, Summer Haayer, Ashley Buenning and Dawn Heimburger.

Lawyers representing the plaintiffs said this action is necessary because the NFL knew about the debilitating and permanent effects of head injuries and concussions that regularly occur among professional players, yet ignored and actively concealed the risks.

The lawsuit charges that the NFL voluntarily joined the scientific research as well as public and private discussions regarding the relationship between concussions and brain impairment when it created the Mild Traumatic Brain Injury (MTBI) Committee in 1994. Rather than naming a noted neurologist to chair this committee, it appointed Dr. Elliott Pellman, a rheumatologist who was a paid physician and trainer for the New York Jets, a conflict of interest, and had training in the treatment of joints and muscles, not head injuries. While the committee was established with the stated purpose of researching and lessening the impact of concussions on NFL players, it failed to inform them of the true risks associated with head trauma.

Although athletes who suffered brain trauma in other professional sports were restricted from playing full games or even seasons, NFL players with similar head injuries were regularly returned to play with devastating consequences.

The lawsuit seeks medical monitoring, compensation, and financial recovery for the short-term, long-term, and chronic injuries, financial and intangible losses, and expenses for the individual former and present NFL players and their spouses.

What can I say—it’s a wake-up call a long time in the making.

Top Settlements

Wonder if Payless texted this piece of news…A proposed settlement (the “Settlement Agreement”) has been reached in the class action lawsuit against Payless ShoeSource, Inc. (“Payless” or “Defendant”). You may be a Member of the Settlement Class and might be eligible to receive a merchandise certificate worth up to $25 if you are a person who received one or more text messages promoting Payless products between October 29, 2005 and October 4, 2010. If you are a Settlement Class Member and the Court gives final approval to the Settlement Agreement:

You may be entitled to receive a $25 merchandise certificate (a “Settlement Payment”) or a lesser pro rata amount if the total of all claims exceeds $6,000,000.

If you are a Settlement Class Member and would like to receive your Settlement Payment, you must submit a Claim Form, either through the mail or by filling out a claim form on the claims administrator’s website. You will be giving up legal claims against Defendant and other related entities. Your claim must be submitted or postmarked no later than February 6, 2012. To find out more about the terms of the settlement and how to qualify or be excluded—visit paylesstextsettlement.com.

One could argue this lawsuit went into overtime… but it looks like a happy ending… for the employees that is. An announcement this week—that Novartis Pharmaceuticals Corporation (NPC) has agreed to pay $99 million to settle a nationwide wage and hour class action brought by 7000 Novartis sales reps who allege NPC reps weren’t paid overtime.

The case has been working its way through the courts since 2006, and stems from claims that the sales reps don’t qualify as “outside sales” employees which would make them exempt from overtime pay. This issue has been the source of several wage and hour class actions brought by pharma sales reps from different companies who have alleged that Fair Labor Standards Act exemptions don’t apply to them.

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

Week Adjourned: 12.25.10

Top Lawsuits

Fun and Games? Not so much for Electronic Arts (EA). The giant video game producer will face an antitrust class action after all. A federal judge certified a national class action this week that alleges video game consumers overpaid for popular sports titles including Madden NFL.

Specifically, the lawsuit claims that “Delaware-based Electronic Arts violated antitrust and consumer protection laws by holding exclusive license agreements with NFL, NCAA, and Arena Football League. Through these agreements, Electronic Arts developed and published highly coveted sports titles that generated billions of dollars in sales while allegedly restricting competition.”

And we’re not talking peanuts here—according to the lawsuit, the agreements may have inflated the price of some of the titles by as much as 70 percent. Ouch! That hurts.

Want some salt for that wound? Madden NFL is EA’s biggest sports franchise in the United States, and occupies four of the top 10 best selling games in the nation, industry reports claim. So, someone’s laughing all the way to the bank, and their making the trip on your dime. 

Top Settlements

Unnecessary Deconstructive Surgery. This is the kind of story you hear about and shake your head—where do you turn when the experts get it wrong? The courts.

A woman who was  mistakenly diagnosed with breast cancer and consequently underwent a double mastectomy she didn’t need to have—yes that’s right—had both breasts removed for no reason—has been awarded $198,000 in a settlement approved by the Los Angeles County Board of Supervisors.  

Ana Jimenez-Salgado had her diagnosis of breast cancer confirmed by two pathologists who work outside of the Los Angeles County-USC Medical Center, where she had her breasts surgically removed.Both the outside pathologists determined the cells obtained from an August 2007 biopsy were cancerous. Umm.

But when Ms. Jimenez-Salgado went in for reconstructive surgery, the hospital’s pathologists also examined her breast tissue and determined that she  did not have breast cancer but rather “a benign condition with features that are very similar to cancerous cells,” county documents state.

So, Ms. Jimenez-Salgado did what anyone would have done having frankly no other recourse, she filed a medical malpractice lawsuit, alleging the hospital was negligent in relying on the interpretation of the outside pathologists. She also claimed the breast reconstruction surgery was negligently performed. Oh boy.

For their part, the county did admit that it failed to review the biopsy specimens, which resulted in the “unnecessary mastectomy”. And, the hospital also agreed to pay Ms. Jimenez-Salgado’s medical bills that were not covered by Medi-Cal, in the amount was $24,756. I suppose the up side of this deeply disturbing situation would be that they didn’t operate on her arms or legs—or vital organs.

Cast your mind back to pretty much any time point in the past 18 months and think of Toyota. Recalls are likely what come to mind. Many recalls. One of those many recalls was over accelerator pedals that could get stuck because of badly fitted floor mats, causing the vehicles to literally take off on the driver. Remember that one? Well, this week Toyota agreed to pay $10 million as settlement of a lawsuit brought by the family of four people who were killed in a car accident involving their runaway Lexus.

The car crash, which took place in 2009, killed 45-year old Mark Saylor, an off-duty California Highway Patrol Officer, his wife, their daughter and Saylor’s brother-in-law. They were killed on a suburban San Diego freeway when their car reached speeds of more than 120 mph, struck a sport utility vehicle, launched off an embankment, rolled several times and burst into flames, the Associated Press reported. 

Accident investigators later determined that a wrong-size floor mat trapped the accelerator and caused the crash. And it was this crash that prompted Toyota to recall millions of its vehicles over accelerator pedals becoming trapped by ill-fitting floor mats.

FYI, Toyota’s latest recall was issued December 14. It involves 94,000 Sienna Minivans in the US, 12,000 in Canada and 5,000 in Mexico.  

For a complete list of Toyota recalls click here 

Ok – that’s a wrap for this week. Merry Christmas Everyone! And Safe Driving …