Week Adjourned: 11.3.17 – Vizio, TGI Friday’s, Amla Legend

Top Class Action Lawsuits

Flash in the Pan? Vizio got hit with a consumer fraud class action lawsuit this week over allegations its smart TVs aren’t up to the job, and the company knew it.

The complaint was filed by consumers who allege the “smart” televisions they purchased between 2012 and the present don’t work as advertised.

Specifically, the Vizio complaint alleges that Vizio “smart” TVs were marketed as such based on their ability to access Apps such as YouTube and others. However, they failed to warn consumers that there would come a time when the service would no longer work.

The reason that many of these TVs don’t function properly is due to the fact that they use an older Flash-based Application Programming Interface (API) and not the newer HTML5-based API systems. As of June 26, 2017, YouTube no longer works on TVs with the Flash-based API.

Although Vizio has sold TVs with the newer API since 2013, the company hasn’t offered any remedy to consumers with TVs using the Flash-based programming. Instead, they have offered them the same advise as YouTube, which is to buy an external streaming device such as a Google Chromecast.

According to the Vizio lawsuit, “Defendant sold Affected Smart TVs to consumers by promoting them as inherently different from traditional television sets based on their ability to access video streaming entertainment apps. Defendant promoted Affected Smart TVs as having all the convenience of smartphones and computers with the ease and convenience of using a familiar device – the television set – in the comfort of consumers’ living rooms. To lure consumers in, Defendant promoted its most popular Affected Smart TV video streaming entertainment apps, including Netflix, Hulu, and YouTube. Specifically, Defendant promoted Affected Smart TVs by placing the YouTube logo on its packaging, in-store displays, and by displaying the YouTube app in its commercials and in online advertising to inform consumers that Affected Smart TVs came with YouTube access included upon purchase.”

According to the complaint, Vizio notified consumers of the issue by a posting on its website listing the affected models.

The proposed class includes anyone in the United States who purchased a Smart TV with one of the model numbers listed below.

The proposed class action also seeks to represent consumers who bought and still own affected Vizio TV sets and reside in Alaska, Arizona, California, Connecticut, Delaware, the District of Columbia, Florida, Georgia, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Missouri, New Hampshire, New Jersey, New York, North Carolina, North Dakota, Ohio, Rhode Island, Texas, Vermont, Washington, and West Virginia.

The model numbers allegedly affected are:

241i-A1* E241i-A1w* E291i-A1* E320i-A0* E390iA1* E3D320VX* E3D420VX* E3D470VX* E3DB420VX* E420d-A0* E420i-A0* E420i-A1* E422VA* E422VL*E422VLE* E423VL* E470i-A0* E472VL* E472VLE* E500d-A0* E500i-A0* E500i-A1* E550i-A0*E550i-A0E*E551d-A0* E551i-A2* E551VA* E552VL* E552VLE*E601i-A3* E650i-A2* E701i-A3* M320KD*M320SL*M320SV* M370SL* M370SR* M370SV* M3D420SR* M3D421SR* M3D460SR* M3D470KD*M3D470KDE* M3D550KD* M3D550KDE* M3D550SL*M3D550SR* M3D650SV* M3D651SV* M420KD*M420SL*M420SR* M420SV* M470KD* M470NV M470SL*M470SV* M472VL* M550KD* M550SL*M550SV*VBR121* VBR122* VBR133* VBR135* VBR140* VBR370*

The Case is 3:17-cv-05897.

Top Settlements

TGI Settlement Time? This time TGI Friday’s might make it to the table after all. The settlement table that is. Further to a proposed settlement deal reached in September, 2017, preliminary approval has been granted for a revised $19.1 million settlement of an unpaid wage and hour action lawsuit brought against TGI Friday’s.

The original settlement was rejected by US District Judge Analisa Torres as she found the proposed class action’s confidentiality provision was impermissibly vague and its waivers and releases too broad. However, the revised settlement, if granted final approval, would see restitution for 28,000 TGI Friday’s tipped workers who had claimed violations of the Fair Labor Standards Act (FLSA), and the state and federal labor laws of California, Colorado, Connecticut, Florida, Illinois, Maryland, Michigan, New Jersey and New York.

TGI Friday’s has been ordered to transmit the settlement funds to the settlement account by November 9, and the claims administrator instructed to create and institute a dedicated website by the same date.

Upon final approval of the TGI Friday’s settlement, the workers would receive a pro rata share of the settlement based on the number of weeks they worked during the proposed class period, according to court documents.

The named defendants in the employment lawsuit are the restaurant chain TGI Friday’s Inc. and TGI Friday’s former owner, the hospitality firm Carlson Restaurants Inc.

The workers alleged the defendants improperly took a “tip credit” from their paychecks and paid them a reduced minimum wage, which in this case, is not allowed under the FLSA and state laws. The plaintiffs also claimed the restaurant owners failed to pay them all owed overtime and uniform-related expenses, misappropriated tips and took unlawful deductions for customer walkouts.

The case is Julio Zorrilla et al. v. Carlson Restaurants Inc., Carlson Restaurants Worldwide Inc. and TGI Friday’s Inc., case number 1:14-cv-02740, in the U.S. District Court for the Southern District of New York.

Burning Issue Resolved? L’Oreal has agreed to pony up some cash to settle a defective products class action lawsuit alleging the cosmetics giant misrepresented the safety of its hair relaxer, consequently causing injury to consumers. Relax and read on…

The lawsuit alleged that L’Oreal’s Amla Legend Rejuvenating Ritual Relaxer damages hair and causes burns and blisters on the scalp.

US District Judge Jed S. Rakoff certified a class of Florida purchasers who bought the product after December 1, 2012, and a class of New York purchasers who bought the product after August 19, 2013. Both classes are seeking full refunds based on allegations of unjust enrichment, according to court documents. Further, the New York class is seeking $50 in damages for each class member.

As well, classes of Florida and New York consumers seeking injunctive and declaratory relief were certified, because they claim they intend to buy hair relaxers in the future but can’t trust the advertising without injunctions barring L’Oreal from making the allegedly misleading statements, according to the filing. Judge Rakoff declined to certify national, multistate and non-economic injury classes of women.

According to court documents, “Each alleged injury in this case arose from the same product whose packaging contained the same allegedly misleading representations and omissions.”

The case is In re: Amla Litigation, case number 1:16-cv-06593, 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: 9.22.17 – Defibrillators, Aggrenox, TGI Friday’s

Top Class Action Lawsuits

New Defibrillator Lawsuit. A new defective products class action lawsuit was just filed alleging Abbott and St. Jude Medical were aware of a battery-depletion defect in some of its cardiac defibrillators, as early as 2011. However, the lawsuit asserts, the defendants failed to adequately report the risk and waited almost five years before issuing the recall.

In the October 2016 defibrillator recall, the US Food and Drug Administration (FDA) and St. Jude state they had received reports “of rapid battery failure caused by deposits of lithium (known as “lithium clusters”), forming within the battery, and causing a short circuit. If the battery unexpectedly runs out before the patient is aware of the rapid battery drain and able to have it replaced, the ICD or CRT-D will be unable to deliver life-saving pacing or shocks, which could lead to patient death.”

The defibrillator lawsuit was filed September 18, 2017 in northern Illinois and centers on several ICD and CRT-D device models powered by lithium-based batteries, including the Fortify, Fortify Assura, Quadra Assura, Unify, Unify Assura, and Unify Quadra.

“On November 11 and 12, 2014, St Jude Medical’s management review and medical advisory boards were given two separate presentations on premature battery depletion,” the complaint alleges. “During these meetings, St Jude failed to tell its own boards about the full scope of the battery issue, presented false or incomplete evidence of the defect, and concealed from the boards evidence of a known death related to this battery defect, stating instead that there were no serious injuries or deaths directly related to lithium cluster bridging.”

Filed on behalf of ASEA/AFSCME Local 52 Health Benefits Trust and a collection of other third-party payers, the plaintiffs are seeking $9,999,000 in damages and medical costs related to their coverage of the defective implantable cardiac defibrillator (ICD) and cardiac resynchronization therapy defibrillator (CRT-D) devices from 2011 to the 2016 recall.

Top Settlements

Aggrenox Settlement. An almost heart-stopping settlement to report this week, coming in at $146 million, the proposed settlement has received preliminary approval potentially ending an antitrust class action lawsuit between direct purchasers of the stroke prevention drug Aggrenox and various pharmaceutical companies. The lawsuit claims that the defendants deliberately blocked generic alternatives to Aggrenox from reaching the market, in an attempt to own market share.

The lawsuit names Barr Pharmaceuticals Inc., which was acquired by Teva Pharmaceutical Industries Ltd. in 2008; Boehringer Ingelheim Pharmaceuticals Inc.; and the drugmakers’ affiliates as defendants. If approved, the deal would resolve claims brought forward in a lawsuit in 2013 made by direct buyers. It represents just a part of a massive multidistrict litigation accusing Barr Pharmaceuticals of agreeing to delay marketing its generic version of Aggrenox in exchange for a portion of Boehringer’s profits from the blockbuster drug.

According to the MDL, which includes 11 proposed antitrust class actions, Boehringer allegedly organized a $120 million pay-for-delay deal to keep generic versions of Aggrenox off the market.

According to the allegations, the US Food and Drug Administration approved Boehringer’s Aggrenox in 1998, and it proved a massive success, netting $366 million in US sales by 2008. Then, in 2007, when Barr Pharmaceuticals allegedly sought regulatory approval for its generic version of Aggrenox, Boehringer immediately filed a patent infringement lawsuit.

To settle the patent infringement lawsuit, Boehringer allegedly agreed to pay Barr Pharmaceuticals $120 million over a period of seven years and delay the introduction of a generic version of Aggrenox until 2015, according to court documents. Meanwhile, Boehringer granted Barr Pharmaceuticals a license to sell an authorized generic version of Aggrenox immediately, allegedly further suppressing the market for the generic drug, according to the allegations.

According to the terms of the proposed deal, each of the direct buyers will receive a pro rata share of the settlement. The proposed class includes at least 35 members, in 14 states and Puerto Rico. A final fairness hearing is scheduled for December 2017.

The MDL is In re: Aggrenox Antitrust Litigation, case number 3:14-md-02516, in the U.S. District Court for the District of Connecticut. 

TGIF indeed!! Here’s a nice note to head into the weekend with…

Friday’s Tip Credits… A $19.1 million settlement has been reached in an employment class action lawsuit pending against TGI Friday’s. The putative class consists of some 28,800 TGI Friday’s workers who alleged the restaurant chain violated multiple state land federal labor laws.

According to the terms of the proposed agreement, the workers would get a pro rata share of the settlement based on the number of weeks they worked during the proposed class period.

The nationwide wage and hour class action lawsuit was brought by more than a dozen lead plaintiffs, alleging violations of the Fair Labor Standards Act (FLSA) and claims brought under the labor or unfair competition laws of nine states: California, Colorado, Connecticut, Florida, Illinois, Maryland, Michigan, New Jersey and New York. According to the lawsuit, the restaurant owners took a “tip credit” from the workers’ paychecks and paid them a reduced minimum wage, in violation of the FLSA and state laws s in this case. The workers also claimed that the restaurant owners failed to pay them all owed overtime and uniform-related expenses, misappropriated tips and took unlawful deductions for customer walkouts.

If the settlement agreement is approved, two classes of plaintiffs would be certified: a class of tipped workers who filed a written consent to join the litigation, and a class of tipped workers who worked in one of the nine states at issue in the suit and who did not file a timely consent to join the case. All eligible class members who submit a claims form will be paid a pro-rata portion of the net settlement based on the number of weeks they worked during the relevant period, court documents state.

According to the settlement memo, the estimated value of the unpaid wages is between $16.5 million and $91 million, representing between 20 percent and 115 percent of the estimated unpaid wages.

A hearing on the settlement’s preliminary approval has not yet been scheduled. The case is Julio Zorrilla et al. v. Carlson Restaurants Inc. et al., case number 1:14-cv-02740, 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!