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: 11.17.17 – Eversource Energy, Wells Fargo, Defective Hip Implants

Top Class Action Lawsuits

Check your Electric Bill… If you live in any of the following states – Massachusetts, Maine, Vermont, New Hampshire, Connecticut and Rhode Island – you need to read this. New England residents have filed an antitrust class action lawsuit against Eversource Energy and Avangrid Inc, alleging the two energy companies caused its electricity consumers to incur overcharges of $3.6 billion in a years-long scheme that impacted six states and affected 14.7 million people.

According to the lawsuit, filed in the US District Court for the District of Massachusetts, 7.1 million retail electricity customers and an overall population of 14.7 million people have been affected by Eversource and Avangrid’s “unique monopoly” spanning at least from 2013 to 2016.

Specifically, the scheme raised electric prices by at least 20 percent for those living in Massachusetts, Maine, Vermont, New Hampshire, Connecticut and Rhode Island. The complaint alleges the scheme violates multiple federal and state competition laws and state consumer protection statutes.

Eversource and Avangrid own multiple electric utility subsidiaries, including United Illuminating, Connecticut Light and Power Company, Central Maine Power Company, Western Massachusetts Electric Company, NSTAR Electric Company and Public Service Company of New Hampshire.

The lawsuit centers on the electric overbilling scheme involving Eversource and Avangrid’s manipulation of the amount of natural gas available to power plants. The two companies regularly constrained the amount of natural gas that could flow throughout New England by reserving far more than they knew they would need, according to the complaint. This artificially limited the amount of gas, which is used to fuel many of the region’s power plants, therefore pushing electric costs higher.

The lawsuit calls the market manipulation scheme the largest since Enron: “Not since Enron’s greedy heyday during the California energy crisis, nearly two decades ago, have American energy markets been manipulated for private profit at such expense to everyday electricity consumers.”

The lawsuit states that Eversource and Avangrid’s anticompetitive scheme had an enormous and wide-ranging impact on the New England electricity market as a whole. Further, the lawsuit claims that their manipulation of natural gas supplies directly caused electricity prices across the region to spike 20 percent higher than they would have been otherwise, leaving utility customers paying the price.

Top Settlements

Wells Fargo Fraud Settlement… A $142 million settlement has been reached in the Wells Fargo account fraud class action lawsuit over the alleged creation of false customer accounts, services, and applications for products and services made without customers’ knowledge or consent.

The lawsuit names Wells Fargo & Company and Wells Fargo Bank, N.A., as defendants in the banking fraud lawsuit.

Customers included in the settlement had certain Wells Fargo credit cards, lines of credit, checking, or savings accounts opened or applied for in their name without their permission, or had authorized identity theft protection services from Wells Fargo, from May 1, 2002, to April 20, 2017.

The benefits of the Wells Fargo settlement include:

  • Fee Reimbursement: A payment to compensate individuals for fees they may have paid in connection with unauthorized accounts.
  • Credit Impact Damages: Cash to compensate individuals for damages caused by harm to their credit.
  • Additional Payment: Any money remaining in the fund, after paying the benefits above and all costs and expenses, will be paid out as additional compensation on a per-account basis.

Eligible customers can now submit a simple claim form online or by mail by February 3, 2018 to get a payment.

Eligible customers must object to or exclude themselves from the Settlement by February 19, 2018. Please note the Court recently extended these deadlines.

A final fairness hearing is scheduled for March, 2018, to consider whether to approve the Settlement.  he hearing date may be subject to change.

The lawsuit is Jabbari v. Wells Fargo, No. 3:15-cv-02159, in the Northern District of California.

Another Bellwether in the DePuy Hip Litigation… This week, a $247 million verdict was awarded against the maker of DePuy Orthopedics Inc, and its parent company Johnson & Johnson (J&J),  with $90 million in punitive damages against J&J and $78 million in punitive damages against DePuy. The settlement is the third consecutive multi-million dollar verdict delivered in this multidistrict litigation.

The verdict will settle claims made in this bellwether trial against DePuy’s Pinnacle hip replacements that the implants are essentially defective. The jury, hearing the case in Dallas, unanimously found J&J and DePuy liable for a series of design and manufacturing defects, fraud and deceptive business practices. Further, they found both defendants acted with wanton, reckless or malicious conduct.

More than $77 million was awarded for past and future medical expenses and pain and suffering to the six individual plaintiffs, each of whom is from New York. Additionally, the jury awarded four of the plaintiffs’ spouses damages for loss of consortium, totaling $1.7 million.

The trial took two months, and is the fourth bellwether case in multidistrict litigation that includes more than 9,000 cases, all alleging design defects in DePuy’s Pinnacle Ultamet line of metal-on-metal hip implants.

The jurors heard the six plaintiffs tell of their suffering resulting from a range of injuries, including severe tissue damage that caused permanent muscle loss, intense pain, loss of hip movement and walking with a permanent limp. All six plaintiffs claimed that the Pinnacle product shed microscopic metal ions into their bodies, a phenomenon known as metallosis. They alleged J&J and DePuy didn’t warn surgeons about these side effects, which could have been avoided with a safer design.

Specifically, the jury found J&J and DePuy liable for design defect, negligent design, inadequate warning, manufacturing defect, negligent manufacture, negligent misrepresentation, intentional misrepresentation to the surgeons who performed the initial hip implant surgeries on the plaintiffs, fraudulent concealment from the plaintiffs and from the surgeons and deceptive business practices as to the plaintiffs and the surgeons.

Additionally, J&J was found liable for negligent undertaking of a duty to provide services to DePuy and for aiding and abetting DePuy in its tortious conduct. Neither J&J or DePuy were  liable for intentional misrepresentation to the plaintiffs.

The consolidated cases are Alicea et al. v. DePuy Orthopaedics Inc. et al., case number 3:15-cv-03489; Barzel v. DePuy et al., case number 3:16-cv-01245; Kirschner v. DePuy et al., case number 3:16-cv-01526; Miura v. DePuy et al., case number 3:13-cv-04119; Stevens v. DePuy et al., case number 3:14-cv-01776; and Stevens v. DePuy et al., case number 3:14-cv-02341, in the U.S. District Court for the Northern District of Texas.

Ok – That’s quite enough for this week! See you at the bar.

Week Adjourned: 9.1.17 – Wells Fargo, TD Bank, Wild Planet Tuna

Top Class Action Lawsuits

Does the term “Rate Lock Fees“ mean anything to you? Well, read on. Wells Fargo is facing a consumer banking class action lawsuit over charging improper mortgage-related fees to its customers. Specifically, the Wells Fargo mortgage loan lawsuit claims that home loan borrowers were being charged extra fees when their applications were delayed, even if the bank was the cause of the delay. Your first clue.

Filed in federal court in San Francisco, the lawsuit centers around fees known as rate-lock extension fees. These fees are charged, according to the allegations, when a borrower applies for a mortgage for which the lender promises a set interest rate, as long as the loan is approved within a certain time period, typically between 30 and 45 days. If the loan takes longer to approve, the borrower must pay a fee to keep the previously promised rate. Seriously.

As with most lenders, Wells Fargo is supposed to waive the fee if it is responsible for holdups. Borrowers only pay the fee if they are responsible for the delays by, for instance, failing to submit documents on time.

According to the allegations in the lawsuit, Victor Muniz, a Las Vegas security guard, was charged a rate lock extension fee by Wells Fargo of $287.50, despite the delays in his mortgage approval being caused by the bank and despite Muniz being told by a Wells Fargo banker that he would not have to pay the fee.

Muniz asserts that Wells Fargo was responsible for the delays approving his application partially because they hired an appraiser who was out of the country while Muniz’s mortgage application was being processed. Muniz has brought the suit on behalf of himself and all other borrowers who may have paid improper fees. 

Top Settlements 

TD Bank Penny Arcade Update… There’s a settlement – it’s received preliminary approval. So get your pencils out – time to file a claim. Of course, TD Bank denies any liability or wrongdoing, and the Court has not decided which side is right. However, to settle the case and avoid the costs and risks of litigation, TD Bank has agreed to a settlement.

Here’s the skinny: consumers who used a Penny Arcade machine at a TD Bank store between April 11, 2010 and July 12, 2017, may be entitled to a cash payment from the class action settlement.

Reportedly, TD Bank will calculate the amount each TD Bank customer would receive by using its records to determine the amount of Penny Arcade usage by those consumers. TD would multiply that sum by 0.26 percent to determine a customer’s distribution, or payment.

If you conducted a Penny Arcade transaction during the Class Period at a time when you did not hold a TD Bank Account, you must submit a Claim Form by October 27, 2017 to be eligible to receive a Settlement Payment based on such transaction(s).

If you conducted a Penny Arcade transaction during the Class Period at a time when you held a TD Bank checking, savings, personal loan, or business loan account (“Account”), you do not have to do anything to receive any Settlement Payment to which you are entitled.

Got Wild Planet and Sustainable Seas tins of Tuna? Well, heads up folks – a settlement has been reached in a consumer fraud class action lawsuit pending against Wild Planet and Sustainable Seas alleging their tinned tuna products were deliberately under-filled to below the 5-ounce weight stated on the product labels.

Under terms of the tuna settlement, Wild Planet will create a settlement fund of $1.7 million, part of which will be distributed to Class Members eligible to claim benefits, which include all US residents who between November 5, 2011 and May 12, 2017 who purchased a can of tuna under the Wild Planet or Sustainable Seas brands.

Eligible class members can claim a cash payment of up to $29. This amount could be lower depending on the number of timely and valid claims received. The settlement payout could also be reduced if the cost of the claims administration is more than $350,000.

The case is Ehder Soto v. Wild Planet Foods Inc., Case No. 5:15-cv-05082, and Heney Shihad v. Wild Planet Foods Inc., Case No. 1:16-cv-01478, in the U.S. District Court for the Northern District of California. 

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

Week Adjourned: 8.4.17 – Wells Fargo, Benicar, California Overtime

Top Class Action Lawsuits

Not all well at Wells? These folks just cannot stay away from the court room. This week, Wells Fargo & Co got hit with a consumer fraud class action lawsuit brought by customers who allege the bank forced them into paying for unnecessary auto insurance, which, in some cases, drove customers so far into a financial difficulty their vehicles were repossessed. Nice

Here’s the back story: According to the proposed nationwide class action, the bank fraudulently collected millions of dollars from “unsuspecting customers who were forced to pay for auto insurance they did not need or want,’’ pushing almost 250,000 of them into delinquency and resulting in almost 25,000 vehicle repossessions.

Filed by Indianapolis consumer, Paul Hancock, the Wells Fargo lawsuit claims Wells Fargo received kickbacks from National General Holdings Corp., through shared commissions on the policies. According to The New York Times, Wells Fargo stopped sharing in commissions from the insurance sales in February 2013.

The lawsuit alleges that when customers took out Wells Fargo loans to purchase vehicles, the bank and the insurance company either didn’t check whether clients already had coverage or ignored the information. The bank then created collateral protection insurance policies for customers, and Wells Fargo then added premium charges to customers’ auto loan bills, often without notifying them, according to the lawsuit.

According to Bloomberg, Wells Fargo has said it may have pushed thousands of car buyers into loan defaults and repossessions by charging them for the unwanted insurance. The bank said an internal review of its auto lending found more than 500,000 clients may have unwittingly paid for protection against vehicle loss or damage while making monthly loan payments, even though many drivers already had their own policies.”

Wells Fargo discontinued the insurance program in September 2016 after finding errors. Hancock alleges Wells Fargo placed a CPI loan on a vehicle he bought in February 2016, charging him $598. Hancock “repeatedly contacted Wells Fargo to inform them that he had the required insurance through an auto insurance policy from Allstate,’’ according to the complaint.

Not only did Wells Fargo fail to credit Hancock’s account for the improper charge, they also failed to refund the money. In fact, Wells Fargo kept charging him for the policy and he was charged a late fee, Hancock claims.

The lawsuit is Hancock v. Wells Fargo & Co., 17-cv-04324, U.S. District Court, Northern District of California (San Francisco).The lawsuit is Hancock v. Wells Fargo & Co., 17-cv-04324, U.S. District Court, Northern District of California (San Francisco).

Top Settlements

Benicar Settlement. This should lower the collective blood pressure a wee bit. This week a $300 million settlement was agreed potentially ending multi-district litigation (MDL) against the makers of the Benicar, Forest Laboratories Inc., and Daiichi Sankyo Inc., and about 2,300 plaintiffs. The lawsuits alleged the blood pressure drug caused gastrointestinal injuries.

The settlement addresses claims filed collectively in state and federal court. The plaintiffs alleged personal injury stemming from defective design of Benicar (known generically as olmesartan), which is also in blood pressure products Benicar HCT, Azor and Tribenzor. 

The hypertension drug is used to lower high blood pressure. It is in a class of drugs known as angiotensin II receptor blockers (ARB). In 2013, the US Food and Drug Administration (FDA) issued a warning for patients stating that Benicar could cause sprue-like enteropathy, a condition that includes severe and chronic diarrhea. The agency mandated that Benicar warning labels be changed to include the condition. According to the FDA, sprue-like enteropathy has not been linked with other ARB medications.

The FDA’s action was based on adverse event reports of serious cases of late-onset diarrhea associated with Benicar use. Court documents state that an estimated 1.9 million patients received a prescription for Benicar or a similar drug in 2012 alone.

The litigation had been underway for more than two years. The plaintiffs alleged that not only did Daiichi design the drug in a defective manner but also that it failed to warn users that it could cause chronic diarrhea, nausea, malnutrition, dehydration and weight loss. Daiichi and Forest were jointly accused of promoting Benicar.

According to the terms of the Benicar agreement, the funds will be triggered when 95 percent of all eligible litigants and claimants opt in to the settlement under certain conditions. Patients who have not yet filed a claim and wish to be eligible to receive settlement funds, must have a retainer agreement in place with an attorney by August 23, lawyers told the court.

The case is In Re: Benicar (Olmesartan) Products Liability Litigation, case number 2606, in the U.S. Judicial Panel on Multidistrict Litigation.

Here’s a nice little payday… to the tune of 3.75 million. Yup, this week, Kellogg Brown & Root LLC agreed to settle a California overtime and labor law class action lawsuit brought by construction workers who allege the company shorted them on meal periods as well as wages. 

The 137 plaintiffs had worked on the Molycorp Mountain Pass rare earth facility in Mountain Pass, California. Under the terms of the proposed settlement, each class member will receive roughly $138 per qualifying work week of they worked during the class period of June 16, 2010, to Friday July 27, 2017. If all potential class members participate in the settlement, the average payout will be $3,100. The proposed settlement requires KBR to pay at least 50 percent of a $3.75 million settlement to participating claimants.

Named plaintiff David L. Totten will receive an award of $20,000. According to the construction worker overtime settlement, another $25,000 will be distributed to plaintiffs.

In the complaint Totten alleged that he and other nonexempt workers at the Molycorp facility who worked on a project to build a salt recovery plant were required to park their vehicles in a designated lot and take company vehicles to and from the work site without being paid for that travel time. Further, the suit alleged the workers were not paid overtime or for second meal periods for workers’ scheduled on 10-hour shifts. The project wrapped up in January 2014.

A final settlement hearing is scheduled for December. The case is David L. Totten v. Kellogg Brown & Root LLC et al., case number 5:14-cv-01766 in the U.S. District Court for the Central District of California.



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

Week Adjourned: 7.14.17 – Ford, Blue Shield, Wells Fargo

Top Class Action Lawsuits

Heads Up Ford Transit Van Owners – a consumer fraud class action lawsuit has been filed against Ford Motor Co, alleging Ford knew of the Transit van flex disc defect long before it issued the recall of some 402,000 Ford Transit vans.

The recall affects 2015, 2016 and 2017 models of Ford Transit vans that have a defect in the flex disc, which is a type of rubber joint connecting the transmission to the driveshaft. The defect can allegedly cause vehicle damage in addition to being a safety hazard, the complaint asserts.

All Care Transport is a family-owned business that provides non-emergency medical transport. It owns several of the Transit vehicles. The plaintiff states in the complaint that two of his Transit vans’ flex discs failed in November 2016. In one case, the driver lost control of the steering and breaks while driving on a freeway. “Had another vehicle been near the van at the time, a crash would have been likely,” the complaint states. The repair cost in excess of $3,200.

According to Ford’s recall announcement, the flex disc cracks after about 30,000 miles, possibly causing the driveshaft to separate from the transmission. The cracking can result in a loss of power while driving or the unintended movement of parked vehicles not anchored by a parking brake. Such separation can also damage surrounding components, including brakes and fuel lines.

The Ford Transit lawsuit claims that Ford’s recall notice doesn’t indicate that the automaker has a permanent fix for the defect, as it recommends vehicle owners repair the disc every 30,000 miles. Further, the notice does not indicate any plans by Ford to reimburse customers such as All Care for lost business opportunities from disc-related repairs.

“In short,“ the complaint states, “as the safety recall notice makes clear, Ford’s recall fails to fix the underlying problem and falls well short of fully compensating plaintiffs and class members for the harm caused by the defective class vehicles.”

The plaintiff and All Care assert that Ford had knowledge of the defect as early as 2014, based on vehicle evaluations and testing, field data, replacement part sales data and consumer complaints made directly to Ford and collected by federal regulators at the National Highway Transportation Safety Administration.

The plaintiffs state in the proposed class action: “Yet despite this knowledge, Ford failed to disclose and actively concealed the defect from class members and the public, and continued to market and advertise the class vehicles as ‘tough,’ ‘safe,’ ‘durable’ vehicles ‘designed to do its job all day, every day and for many years to come,’ which they are not.”

“All Care Transport expected the class vehicles to be of good and merchantable quality and not defective,” the complaint states. “It had no reason to know of, or expect, that the vehicles were equipped with a defective flex disc that would catastrophically and dangerously fail, nor was it aware from any source prior to purchase of the unexpected, extraordinary and costly repairs the defect would cause them to incur.”

The proposed class includes anyone who leased or purchased a 2015-2017 Transit in California for purposes other than personal or household use.

The case is All Care Transport LLC et al. v. Ford Motor Company, case number 5:17-cv-01390, in the U.S. District Court for the Central District of California.

Bad Blue Shield? Once again, Blue Shield of California and its claims administrator Magellan Health Services, are in the news—this time facing a bad faith insurance class action lawsuit alleging it wrongly restricted patients’ access to outpatient and residential mental health treatment.

The complaint was filed in Northern California by two parents who allege their teenage children were denied coverage, repeatedly, under the parents’ employer-based health insurance plans. The children required medical assistance for serious mental and substance abuse problems, according to the lawsuit.

The Blue Shield lawsuit received class-action status in June, enabling patients whose claims were rejected under similar circumstances to join as plaintiffs.

According to the complaint, Blue Shield and Magellan Health Services of California, which handles the insurer’s mental health claims, developed criteria that violate accepted professional standards and the terms of the health plan itself. Further, the plaintiffs claim the defendants are in violation of the Employee Retirement Income Security Act, a federal law that regulates employee benefit plans. (Californiahealthline.org)

The class action alleges specifically, that the insurers authorized residential patients care only if less intensive treatment in the previous three months was unsuccessful. This “fail-first” approach is inconsistent with standards established by professional groups such as the American Psychiatric Association or the American Society of Addiction Medicine, the complaint states.

The plaintiffs seek to change Blue Shield’s and Magellan’s policies to be consistent with the law, generally accepted professional standards and the terms of its own plans, according to the lawsuit. Further, they seek to have the thousands of mental health and substance-use benefit denials reprocessed by the defendants.

The lawsuit is Charles Des Roches, et al. v. California Physicians’ Service, et al. 

Top Settlements

If First You Don’t Succeed, Wells… do as the judge tells you and revise that settlement deal! And guess what—it worked. A revised $142 million settlement has received preliminary approval potentially ending the Wells Fargo consumer bank account fraud class action lawsuit.

The back story is that Wells Fargo employees were involved in a fake bank account scam that saw them set up unauthorized accounts and transfer customers’ funds from legitimate accounts to the newly-created ones without customer knowledge or consent. And the point? Additional bank fees of course—and it enabled the employees to hit their sales targets. Wells Fargo customers were then charged fees for insufficient funds or overdrafts, because they didn’t have enough money in their legitimate accounts. How do you spell illegal?

In March, Wells Fargo announced it had reached a preliminary $110 million settlement resolving 12 putative class actions making similar allegations of fraud. According to the Consumer Financial Protection Bureau (CFPB), which shared in a $185 million fine brought against Wells Fargo for the fraud, bank employees set up more than two million deposit and credit card accounts without customer authorization between January 2011 and September 8, 2015. Some 14,000 of those accounts earned over $400,000 in fees for the bank, including annual fees, interest charges and overdraft-protection fees, CNN Money reported.

US District Judge Vince Chhabria has now given the revised settlement deal the go-ahead after the plaintiffs and defendants resubmitted the agreement with several revisions, as requested by the judge. Those revisions include a simplified opt-out process, a more comprehensive class notification procedure and an expanded anticipated scope of credit-impact damages.

Under the original settlement proposal, the class consisted of Wells Fargo bank customers that had unauthorized accounts opened in their names, were enrolled in a product or service or had an application submitted for a product or service in their name without consent between January 1, 2009, and the execution of the settlement. Wells Fargo subsequently agreed to extend the claims to 2002, adding an additional $30 million to the settlement fund in April.

“[T]he parties negotiated a revised settlement that guarantees classwide compensation for actual damages, supplements compensation for noncompensatory damages and provides a better process for claimant input and court oversight prior to final approval,” Judge Chhabria wrote. 

The case is Jabbari et al. v. Wells Fargo & Co. et al., case number 3:15-cv-02159, in the U.S. District Court for the Northern District of California. 

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

Week Adjourned: 3.31.17 – Windows 10, Wells Fargo, GT’s Kombucha

Top Class Action Lawsuits

Windows 10 OS not Operating? Perhaps this doesn’t come as a surprise—particularly if you run Windows 10. Microsoft got hit with a consumer fraud class action lawsuit this week by Windows 10 users who allege the Microsoft Windows 10 operating system (OS) causes problems, including loss of data, and that Microsoft failed to ensure the operating system wouldn’t cause problems prior to launch.

The three named plaintiffs, Stephanie Watson, Robert Saiger, and Howard Goldberg, allege in the complaint that Windows 10 caused their computers to lose data and stop functioning properly. While Saiger and Goldberg said they voluntarily installed the new OS, Watson claimed her computer was upgraded to Windows 10 without her permission.

The Windows 10 lawsuit alleges that the plaintiffs have lost time and money trying to recover lost data and resolve other problems caused by the upgrade. Further, Watson alleges she had to buy a new computer because her old one could not be successfully repaired following the Windows 10 install.

Cast your mind back to 2015—when Windows 10 was released as a free upgrade—for one year—to Microsoft users running previous versions of the company’s operating system. Currently installed on more than 400 million devices, Microsoft promoted the platform as its most advanced and secure OS to date. Of course it did.

However, post-launch, many customers have complained about the company’s aggressive efforts to get people to upgrade.

The lawsuit also claims that the prompts and upgrade offers for Windows 10 sent out by Microsoft were difficult to dismiss and remove and, once installed, the operating system itself was not easy to uninstall, if users found the upgrade caused problems.

“A great number of people have installed the Windows 10 system inadvertently or without full realization of the extent of the download,” the complaint stated. “Once downloaded, the Windows 10 system does not have an option for its deletion. The program can be deleted but it takes a significant effort to find out how to do so; a typical user will not have the expertise to remove the system without professional IT help.”

Filed in the U.S. District Court for the Northern District of Illinois, the complaint is seeking in excess of $5 million in damages. The suit seeks to represent a class comprised of all users in the US who lost data or whose devices were damaged after installing Windows 10.

Top Settlements

Wells Fargo to Pay? The big news this week? Wells Fargo will pony up $110 million according to a preliminary settlement agreement that could potentially end 12 banking fraud class action lawsuits. The Wells Fargo lawsuits allege the bank workers opened accounts in customers’ names without those customers’ authorizations.

According to the terms of the deal, if approved, eligible class members would be reimbursed for fees they were charged related to the unauthorized accounts and out-of-pocket expenses. Once those losses have been reimbursed, together with court costs and attorneys’ fees, the remaining funds would be split among all claimants, based on the number and kinds of unauthorized accounts or services claimed.

Heads up—eligible class members would be anyone who alleges Wells Fargo opened an account in their name without consent, enrolled them in a product or service, or submitted an application for a product or service in their name without consent between January 1, 2009, and the date the settlement is executed.

As well, Wells Fargo has said it will continue its voluntarily review of bank accounts opened between 2009 to 2010, to determine and remediate any customer harm. It has also said it will continue its nationwide mediation program to address customer concerns.

The back story? A federal investigation uncovered 1.5 million fraudulent bank and 565,000 credit card accounts set up by bank employees in order to boost or hit sales targets. Further, the employees also made up PIN numbers and email accounts in connection with the false accounts, to get people to sign up for online banking services, the Consumer Financial Protection Bureau (CFPB) said in a statement. This has already cost the bank $185 million in fines. Lesson learned? Maybe…

Nearly 5,300 employees were fired after the scheme was revealed, and in February, Wells Fargo’s board of directors voted to fire four senior managers in connection with an ongoing investigation stemming from the scandal.

Kombucha Mislabeling Mess. Kombucha! Bought it? Then realized it’s not what it’s advertised to be?  Read on. A proposed GT’s Kombucha settlement has been reached in a consumer fraud class action lawsuit pending against Millennium Products Inc., and Whole Foods over allegations the defendants misrepresented the alcohol, sugar, and antioxidant content of certain GT’s Kombucha products. Under the terms of the proposed deal, a fund of up to $8,250,000 will be established to pay claims for those who purchased one or more flavors of GT’s Classic Kombucha, GT’s Classic Synergy, GT’s Enlightened Kombucha, and GT’s Enlightened Synergy beverages.

Class members can receive up to $35 in cash or product vouchers without Proof of Purchase or up to $60 in cash or product vouchers with Proof of Purchase. To qualify, class members must have purchased one or more specified Kombucha beverages from March 11, 2011 through February 27, 2017.

What’s the issue? The class action lawsuit alleged that Millennium mislabeled certain Kombucha products, stating the products were non-alcoholic despite containing more alcohol than is permitted in order to label them as non-alcoholic beverages; failing to include added sugar as an ingredient on the label even though the products allegedly contain added sugar; understating the amount of sugar included in the Kombucha products; and including the term “antioxidant” on the labels even though the Kombucha products do not actually contain antioxidants.

Whole Foods was named as a defendant in the Kombucha class action lawsuit because the grocery chain allegedly violated the law by reselling the allegedly mislabeled GT’s Kombucha products.

The settlement agreement, if approved, would also see Millennium make labeling changes to address the issues alleged in the Kombucha class action lawsuit and to have samples of the products tested by a third-party laboratory to ensure they continue to comply with federal and state labeling standards.

The final hearing for settlement approval is scheduled for July, 2017. The case is Retta, et al. v. Millennium Products Inc., et al., Case No. 2:15-cv-01801-PSG-AJW, in the U.S. District Court for the Central District of California. 

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

Week Adjourned: 2.24.17 – Walmart Beer, Kia Sorrento, Wells Fargo

Top Class Action Lawsuits

Walmart a purveyor of craft beer? Seriously? Maybe not. The world’s largest retailer is facing a consumer fraud class action lawsuit over allegations its craft beer is mass manufactured, and is falsely marketed at an inflated price. You think?

Filed by Matthew Adam of Ohio, the Walmart craft beer lawsuit claims four brands of beer sold by defendant Wal-Mart Stores Inc, are falsely labeled as craft beers. The lawsuit states that the beer is mass-produced at industrial-scale breweries that don’t even resemble what a reasonable consumer would consider a craft brewer.

“Defendant’s Craft Beer has never been a ‘craft beer,’ nor has it been produced by a craft brewery,” Adam claims. “Rather, it is a wholesale fiction created by the Defendant that was designed to deceive consumers into purchasing the Craft Beer at a higher, inflated price.”

According to the complaint, Walmart has been marketing this line of beer since 2016, which includes Cat’s Away IPA, After Party Pale Ale, ‘Round Midnight Belgian White, and Red Flag Amber. Walmart currently stocks these beers at 3,000 retail locations in 45 states.

Further, while Walmart allegedly claims its craft beers are brewed by a company called Trouble Brewing, the Treasury Department lists a company called WX Brands, with the same brewery address as the offices of Genesee Brewing in Rochester, NY. Genesee does not meet the definition of a “craft brewer” put out by the Brewers Association, a trade organization that promotes and protects American craft brewers, the complaint states.

The lawsuit contends that consumers are willing to pay more for beer marketed as craft beer, on the assumption that craft beer is of a higher quality than other beers. Adam claims Walmart craft beer is purposely marketed to exploit that higher dollar value associated with craft beer, when it is, in fact, mass produced.

According to the lawsuit, Adam purchased a 12-pack of Trouble Brewing beer for himself from a Walmart in Sharonville, Ohio. He says he relied on Walmart’s representations that what he was buying was a genuine craft beer. However, the beer was not what he was led to expect, he claims. And he would not have paid a premium price for the beer, had he known the beer he was buying was not actually craft beer.

Adam’s proposed plaintiff Class would include all persons in the state of Ohio who purchased Walmart craft beer. Adam is represented by attorneys Brian T. Giles and Bryce Lenox of Giles Lenox.

The Walmart Craft Beer Class Action Lawsuit is Matthew Adam v. Wal-Mart Stores Inc., Case No. A1700827, in the Court of Common Pleas for Hamilton County, Ohio. 

Top Settlements

Kia Sorrento Settlement… Heads up all you current and prior owners and lessees of a Kia Sorento. Kia has reached a proposed settlement in a pending defective automotive class action lawsuit alleging that its Sorento model is prone to catastrophic engine failure. Remember that one?

Here’s the skinny: the lawsuit, known as Yvonne Robinson et. al., v. Kia Motors America, Inc. et. al., alleges that some 2003 to 2006 model year Kia Sorento vehicles with 3.5 liter engines were equipped with a defective crankshaft pulley bolt that, under certain conditions, could result in the bolt breaking. Those vehicles are referred to as the “Class Vehicles”. KMA has not been found liable for any of the claims alleged in this lawsuit. The parties have instead reached a voluntary settlement in order to avoid a lengthy litigation.

Under the proposed Settlement, and subject to proof and certain limitations, KMA will provide certain financial and/or other benefits to Class Members for past and future crankshaft pulley bolt repairs in Class Vehicles.

Purchasers of the 2003-2006 Kia Sorento automobile now have the opportunity to be reimbursed for their expenses if their crank shaft bolt snapped and caused additional engine damage. Part of the Kia Sorrento settlement includes the opportunity for new and used car purchasers of the 2003-2006 Kia Sorento to submit a claim for reimbursement up to $4,900.00.

Kia Motors Company produced over 200,000 Kia Sorentos and current and prior owners and lessees of Class Vehicles, known as “Class Members”, may be entitled to compensation if they submit valid and timely claims that are approved, and provided the settlement agreement receives final court approval.

Got it? 

Who’s calling? Wells Fargo? Perhaps not anymore… One Ringy Dingy, and we’re off to the bank—thank you so much. Wells Fargo has reached a proposed $15.7 million settlement in a class action lawsuit brought by a man who claims the bank violated the Telephone Consumer protection Act (TCPA) by allegedly using an autodialer to make calls to some 3.4 million consumers. 

If approved, the deal would compensate 3.38 million proposed class members who allegedly received collection calls to their cell phones regarding a retail installment sale contract from Wells Fargo. The calls were made, the suit claims, using an auto dialer, between April 2011 to March 2016.

The settlement amount per class member would be $4.65 each, according to the settlement motion. The lead plaintiff is seeking an incentive award not exceeding $20,000.

According to the lawsuit, Frederick Luster claims Wells Fargo made autodialed calls to his phone number for the past four years in an attempt to collect debts apparently owed by two people he didn’t know. Luster states that at no time did he give permission to Wells Fargo to call his cellphone. However, Wells Fargo made the calls despite being aware that they were violating the TCPA.

“The telephone calls were intentionally, willfully and knowingly initiated,” the complaint states. “The telephone calls were not initiated by accident or mistake.” According to the settlement motion, Wells Fargo maintains that it had prior express consent to call the members of the proposed class.

The case is Luster v. Wells Fargo Dealer Services Inc., case number 1:15-cv-01058, in the U.S. District Court for the Northern District of Georgia.

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

Week Adjourned: 12.31.16 – Wells Fargo, Behr Paint, Volkswagen

Top Class Action Lawsuits

All is not Well at Wells Fargo? Not by a long shot. Employees from Wells Fargo Bank have filed an employment class action lawsuit alleging they were pressured into unethical sales conduct under threat of retaliation if they failed to cooperate.

Specifically, the Wells Fargo employees claim they were forced to inflate sales figures by opening new customer accounts that customers had not agreed to and to open accounts for non-existent customers. Further, the lawsuit claims that employees who did not engage in this alleged behavior were threatened with discipline or termination. Employees who did participate were rewarded, the lawsuit claims. Read on…

The alleged misconduct involved Wells Fargo employees having to set up a target of eight accounts, or “solutions,” per customer, which is far greater than the industry standard of three accounts per customer. The employees allege that these sales goals were impossible to meet without engaging in underhanded behavior.

The Wells Fargo lawsuit asserts that Wells Fargo’s motive was to increase its stock price by setting unrealistically high sales goals for its employees.

Wells Fargo allegedly aggressively and unlawfully encouraged sales misconduct among its employees by threatening retaliation against workers who refused to engage in the sales misconduct. Those employees were allegedly “routinely counseled, warned, written up, demoted, placed on performance improvement plans, forced to quit, denied promotions, or fired as a result of not meeting sales goals, even though they could have easily met such goals by engaging in Sales Misconduct,” according to the complaint.

The plaintiffs seek to represent a Class encompassing all current and former U.S. employees of Wells Fargo who were subject to the sales goals described in the lawsuit and who were not terminated for engaging in sales misconduct.

Several subclasses have also been proposed in this action, which would represent employees who suffered adverse employment actions for failing to reach sales goals, who reported their concerns about the alleged unlawful sales conduct, or who had their employment terminated or who were let go for reporting or refusing to engage in the alleged misconduct.

The plaintiffs are seeking an award of damages, including two times the amount of back pay for alleged violations of the Dodd-Frank Act and treble damages as applicable under the Racketeer Influenced and Corrupt Organizations Act, or RICO. They also seek reinstatement for eligible Class Members under the Dodd-Frank Act.

Not Painting a Pretty Picture…And another employment suit filed this week—this one by employees of Behr Paint, alleging violations of the Fair Labor Standards Act and California labor law. The defendants are Behr Process Corp., Behr Paint Corp. and Masco Corp.

According to plaintiff Ryan McBain alleges he was employed as a field representative by the defendants and assigned to different Home Depot stores. He claims his responsibilities were answering customer inquiries, replenishing stocks and maintaining store displays. He alleges he was required to prepare time-consuming reports and shuttle between stores and was misclassified as exempt from overtime pay and was not provided with proper meal and rest periods.

In the Behr lawsuit, McBain claims the defendants failed to adequately compensate him for his work as a field representative. The lawsuit also claims that the defendants allegedly failed to keep accurate payroll records of hours worked, meal periods taken, and overtime worked by their employees, refused to pay any overtime compensation to employees for hours worked in excess of 40 hours per week and refused to provide adequate meal and rest periods.

The plaintiff is seeking a trial by jury and seek judgment in his favor, designate collective action, declare misclassification of class members, unpaid wages, liquidated damages, civil penalties, unpaid wages from meal/rest periods not taken, reimburse business expenses, interest, costs and expenses of action, attorneys’ fees and other relief as the court deems just.

FYI – The case is U.S. District Court for the Northern District of California Case number 3:16-cv-07036.

Top Settlements

Meanwhile, North of the 49thVW managed to reach a $2.1 billion settlement in the Canadian class action pending over the so-called Volkswagen and Audi defeat devices that temporarily reduced vehicle emissions enabling the diesel engines to pass regulatory emissions tests.

Additionally, the settlement terms stipulate that Canadian owners of diesel-equipped vehicles made by Volkswagen AG will be able to sell their cars back to the auto maker.

The settlement will cover approximately 105,000 Canadians who bought Volkswagen or Audi vehicles equipped with 2.0-liter diesel engines between 2009 and 2015. Each class member will receive $5,100 to $8,000 in compensation. Class members who decide to sell their vehicles back to Volkswagen Canada will receive a payment in addition to the value of their car.

The settlement is expected to receive final approval from Ontario Superior Court and the Superior Court of Quebec pen in March, 2017, after which class members will receive payouts.

The settlement is valued at $2.1-billion if all eligible owners apply and receive the full amount they are entitled to and all eligible vehicles are traded in. It will be among the largest amounts paid out in a class-action suit in Canada.

That’s a wrap for 2016!!! Happy New Year – to you and yours. See you at the bar.

Week Adjourned: 7.1.16 – Pampers, Volkswagen, Wells Fargo SPAM

Pampers wipesTop Class Action Lawsuits

Pampers Not So Pampering? The makers of Pampers Natural Clean baby wipes, Procter and Gamble (P&G), got hit with a consumer fraud class action complaint this week, over allegations its advertising ain’t clean.

Filed by Veronica Brenner, on behalf of all others similarly situated, the proposed Pampers wipes class action lawsuit claims that due to the false claims made by P&G, Brenner was misled into buying Pampers Natural Clean baby wipes.

Specifically, she alleges that testing of the wipes revealed they contain unnatural and harmful ingredients such as phenoxyethanol, which allegedly could cause harm to consumers, especially infants.

Brenner is seeking a jury trial and is seeking compensatory, statutory, and punitive damages, injunctive relief enjoining the defendant, interest, restitution and any other forms of monetary relief, court costs and any further relief the court grants.

The case is US District Court for the Central District of California Case number 8:16-cv-01093-CJC-JCG.

Top Settlements

VW To Pay…So, by now almost everyone must be aware that Volkswagen (VW) has reached agreements with  the United States and the State of California, and the U.S. Federal Trade Commission (FTC), that will see it stump up $14.7 billion—the largest such payout of its type in US history—to end consumer fraud allegations over the now infamous VW emissions scandal.

Now, just to be clear, the settlements do not resolve pending claims for civil penalties or any claims concerning 3.0 liter diesel vehicles. Nor do they address any potential criminal liability. So stay tuned on that front.

The information on the settlements is provided more comprehensively on our dedicated Volkswagen emissions settlements pageBUT the super short versions are that VW will offer consumers a buyback and lease termination for nearly 500,000 model year 2009-2015 2.0 liter diesel vehicles sold or leased in the US, and spend up to $10.03 billion to compensate consumers under the program. In addition, the companies will spend $4.7 billion to mitigate the pollution from these cars and invest in green vehicle technology.

Additionally, the settlements partially resolve allegations by the Environmental Protection Agency (EPA), as well as the California Attorney General’s Office and the California Air Resources Board (CARB) under the Clean Air Act, California Health and Safety Code, and California’s Unfair Competition Laws, relating to the vehicles’ use of “defeat devices” to cheat emissions tests. The settlements also resolve claims by the FTC that Volkswagen violated the FTC Act through the deceptive and unfair advertising and sale of its “clean diesel” vehicles.

The affected vehicles include 2009 through 2015 Volkswagen TDI diesel models of Jettas, Passats, Golfs and Beetles as well as the TDI Audi A3.

The Buyback option: Volkswagen must offer to buy back any affected 2.0 liter vehicle at their retail value as of September 2015 — just prior to the public disclosure of the emissions issue. Consumers who choose the buyback option will receive between $12,500 and $44,000, depending on their car’s model, year, mileage, and trim of the car, as well as the region of the country where it was purchased. In addition, because a straight buyback will not fully compensate consumers who owe more than their car is worth due to rapid depreciation, the FTC order provides these consumers with an option to have their loans forgiven by Volkswagen. Consumers who have third party loans have the option of having Volkswagen pay off those loans, up to 130 percent of the amount a consumer would be entitled to under the buyback (e.g., if the consumer is entitled to a $20,000 buyback, VW would pay off his/her loans up to a cap of $26,000).

The EPA-approved modification to vehicle emissions system: The settlements also allow Volkswagen to apply to EPA and CARB for approval of an emissions modification on the affected vehicles, and, if approved, to offer consumers the option of keeping their cars and having them modified to comply with emissions standards. Under this option in accordance with the FTC order, consumers would also receive money from Volkswagen to redress the harm caused by VW’s deceptive advertising.

Consumers who leased the affected cars will have the option of terminating their leases (with no termination fee) or having their vehicles modified if a modification becomes available. In either case, under the FTC order, these consumers also will receive additional compensation from Volkswagen for the harm caused by VW’s deceptive advertising. Consumers who sold their TDI vehicles after the VW defeat device issue became public may be eligible for partial compensation, which will be split between them and the consumers who purchased the cars from them as set forth in the FTC order.

Wells Fargo SPAM Settlement… Another settlement to report this week—on the spam text messaging front. Wells Fargo Bank, N.A. (Wells) has agreed to a preliminary $16.3 million settlement to end claims it  made unauthorized calls to customers’ cell phones using an Automatic Telephone Dialing System (ATDS), in violation of the Telephone Consumer protection Act (TCPA).

The lawsuit, originally filed on April 14, 2015, alleged that the calls at issue were, without exception, non-emergency, debt-collection calls and texts made in connection with Home Equity Loans and Residential Mortgage Loans.

Under the terms of the proposed settlement, Wells would pay a non-reversionary cash sum of approximately $16,319,000, which, after deductions for costs and attorney’s fees, would be distributed on a pro rata basis to the Class Members who file qualified claims. The expected per-class-member cash award, while dependent upon the number of claims, may be in the range of $25 to $75.

The proposed Settlement Class is defined as: All users or subscribers to a wireless or cellular service within the United States who used or subscribed to a phone number to which Wells made or initiated one or more Calls during the Class Period using any automated dialing technology or artificial or prerecorded voice technology, according to Wells available records, and who are within Subclass One and/or Two.

Subclass One consists of “persons who used or subscribed to a cellular phone number to which Wells Fargo made or initiated a Call or Calls in connection with a Residential Mortgage Loan.”

Subclass Two consists of “persons who used or subscribed to a cellular phone number to which Wells Fargo made or initiated a Call or Calls in connection with a Home Equity Loan.”

Heads Up—a person who is a member of both Subclasses is eligible to make two claims on the Settlement Fund. The three Class Representatives are seeking awards for their time and effort on behalf of the Class, and Wells has agreed not to object to such incentive payments to be paid to Davis, Markos, and Page from the Settlement Fund provided that the payments do not exceed $60,000 in the aggregate or $20,000 for each Class Representative, subject to Court approval.

The case is Markos v. Well Fargo Bank, N.A. (United States District Court for the Northern District of Georgia, Case No. 1:15-CV-01156).

Ok, that’s a wrap folks… Happy Canada Day and Fourth of July…. See you at the Bar!



Week Adjourned: 5.15.15 – Wells Fargo, JP Morgan Chase, Bar Exam Software

Wells FargoTop Class Action Lawsuits

Wells Fargo playing fast and loose with customer accounts? Maybe…It got hit with a class action lawsuit this week by a former customer who claims that California’s largest bank engages in consumer banking fraud. What does that mean exactly? Well, Shahriar Jabbari of Campbell, CA, alleges that he and a nationwide class of consumers were victims of Wells Fargo’s tolerance and encouragement of abuses by workers in its branches. The specific allegations are unfair enrichment and violations of the federal Fair Credit Reporting Act (FACTA) and California unfair competition and consumer protection laws.

Here’s the back story…according to the lawsuit, Jabbari began banking with Wells Fargo in 2011, wanting simply to open one checking and one savings account. However, shortly after opening his accounts, he allegedly noticed “some anomalies, such as unwanted fees.” Then in 2013, the lawsuit states that Jabbari visited the Wells Fargo branch in Los Gatos to ask about an unauthorized charge. That’s when an employee showed him how accounts had been opened in his name using a signature that was not his, according to the complaint.

The complaint states that Jabbari discovered seven accounts issued without his permission. A few months later, he received a change of address notification showing several accounts that he had not opened and that he thought had been closed.

Jabbari alleged that bill collectors badgered him to pay fees on Wells Fargo accounts that were opened without his knowledge. The suit alleges that bank employees: Withdrew money from customers’ authorized accounts to pay for the fees assessed by Wells Fargo on unauthorized accounts opened in customers’ names without their knowledge; placed customers into collection when fees and other debts accumulated in unauthorized accounts and went unpaid; and placed derogatory information in credit reports when unauthorized fees went unpaid.

The lawsuit, filed in US District Court in San Francisco, seeks restitution from the profits Wells made on “its unfair and unlawful practices,” In addition to triple damages.

Top Settlements

More banking misconduct…this time it’s a win for the plaintiffs…to the tune of $10.2 million—that’s the amount of the settlement agreed between the plaintiffs in a robocall class action lawsuit and JPMorgan Chase Bank NA.

The bank allegedly made unsolicitied robocalls to more than 2 million customers’ cellphones, in violation of the Telephone Consumer protection Act (TCPA).

According to the agreement, if approved, Chase will pay $10.2 million into a non-reversionary settlement fund, with approximately $45 to $55 to be paid to each of the 2.2 million class members.

Filed by plaintiff Sheila Allen in November 2013, the lawsuit contends JPMorgan Chase and Chase Auto Finance Corp. violated the TCPA by placing approximately 80 calls to Allen’s cellphone from July 2013 through to November 2013.

Allen alleges that the robocalls left voicemails telling her to call back certain numbers to discuss her account, even though she had no auto loan with Chase and never provided her phone number to the bank in connection with any car loan.

Despite Allen contacting Chase repeatedly, requesting the phone calls stop, nothing changed. Further, she contends she was not provided with any instructions on how to opt out of the automated calls, nor was she given the opportunity to opt out.

The case is Sheila Allen v. JP Morgan Chase Bank N.A., case number 1:13-cv-08285 in the U.S. District Court for the Northern District of Illinois.

Law students will be getting some justice it seems after a $2.1 million settlement was reached in a consumer fraud class action lawsuit pending against ExamSoft Worldwide Inc. If the proposed settlement get the final nod, it will resolve allegations that the company failed to adequately respond to glitches reported in its exam software, which prevented state bar applicants from uploading their exam answers.

The defect that triggered the lawsuit is likely ever law student’s nightmare. The target of the lawsuit was SoftTest, currently the only means by which prospective lawyers in dozens of states can take the bar exam electronically. The program failed during last week’s exams, the company acknowledged, and the lawsuit, which contained deceptive marketing and negligence claims, failed to live up to its promises that it would make exam day less stressful.

According to the terms of the agreement each member of the class would receive $90. Class members consist of applicants who took the test in 43 states in July 2014. Tens of thousands of bar exam takers paid between $100 and $150 for a license to use ExamSoft’s software, SofTest, which allegedly failed after the first day of the exam, according to court documents.

Court documents also show that in addition to the $2.1 million payment, ExamSoft has made or is making enhancements to its technology and communications practices that will enable it to better communicate with test-takers and bar examiners.

The case is Amanda West et al. v. ExamSoft Worldwide Inc., case number 1:14-cv-22950, in the U.S. District Court for the Southern District of Florida. 

Hokee Dokee—That’s a wrap folks…See you at the Bar!