Hmm, has Fumizer been Smokin’ Something? Consumers are fuming over false advertising claims made by a manufacturer of e-cigarettes—so much so they’ve filed a consumer fraud class action lawsuit. Filed by a smoker, not surprising there, the lawsuit accused Fumizer of falsely claiming its vaporizers could help users quit smoking or lead to “healthy smoking” (healthy smoking?—that is an oxymoron—not to mention the visual is totally counter-intuitive).
The e-cigarette lawsuit alleges the company made these claims despite the existence of adverse medical studies. Ya think?
The lawsuit, filed by plaintiff Joseph Sheppard, alleges that the manual for the Fumizer e-cigarette claims it can “help you quit smoking,” which contradicts other marketing materials that disclaim that any use of the e-cigarette is an aid to quit smoking. According to the lawsuit, the disclaimers are made to avoid U.S. Food and Drug Administration (FDA) regulation.
“These representations are contradictory and hypocritical because [the packaging] asserts Fumizer e-cigarettes are ‘neither intended nor marked as a quit smoking aid,’” the complaint states.
Further, the complaint contends that Fumizer misled consumers by referring to healthy smoking, and ignoring studies which show e-cigarettes still contain some of the carcinogens and toxins in tobacco cigarettes, along with additional potentially harmful chemicals.
Sheppard also states in the complaint that vaporizers require users to inhale more deeply compared with traditional cigarettes, which could be harmful. Claims about healthy smoking make consumers feel there are no risks to using the devices, the suit claims.
“There is widespread agreement in the scientific community that further research is necessary before the full negative effects of electronic cigarette use on users’ health can be known and that until then, manufacturers, sellers and distributors of electronic cigarettes should not make any representations relating to the safety, health or benefits, if any, of electronic cigarettes,” the complaint states.
Additionally, the lawsuit notes that Fumizer fails to list the ingredients for its products, thereby preventing consumers from being able to make an informed decision regarding whether or not they want to risk inhaling specific chemicals.
“By omitting the ingredients, defendant hides the fact that Fumizer e-cigarettes contain propylene glycol, a product found to cause throat irritation and induce coughing, and thus no longer used by certain of Fumizer’s competitors,” the lawsuit states.
The lawsuit also states that Fumizer’s claims its devices could be used anywhere, citing cities and counties in California that have banned e-cigarettes and public, along with statements that its vaporizers were top quality. However, the plaintiff’s Fumigo 650 Personal Vaporizer allegedly short-circuited, exploded and caused a fire in his home in March, according to the suit.
E-cigarettes that are good for you? Sounds like a Scamorama ding-dong to me.
OxyElite been Beat? And while we’re on the subject of too good to be true—GNC Holdings Inc, the maker of USPLabs OxyELITE Pro just agreed to settle a class action that alleged the diet supplement does everything but take the garbage out. Unfortunately, it seems that included associated liver damage, which got the diet supplement pulled from the market by the FDA last November.
The ensuing lawsuit alleged GNC sold the supplements, which contain dimethylamylamine, better known as DMAA, and aegeline, despite widespread reports that the products cause severe liver damage.
This week, GNC agreed to pony up $2 million to shut the suit down. The GNC settlement motion, filed in the Northern District of Florida, asked the court to sign off on the deal, which will provide reimbursements for consumers who bought USPlabs’ OxyElite Pro and Jack3d lines of products.
Heads up—the settlement class includes anyone who bought the USPlabs products between Aug. 17, 2012, and the date of final approval, according to the motion. Eligible class members will receive $35 per container of OxyELITE Pro purchased, $20 per container of Jack3d and $20 per container of VERSA-1.
The case is Velasquez et al. v. USPLabs LLC et al., case number 4:13-cv-00627, in the U.S. District Court for the Northern District of Florida.
Force-placed Insurance Scams made the news this week, with final approval granted for a $31 million settlement of seven proposed force-placed insurance class actions, all alleging Bank of America NA (BofA) illegally forced homeowners to buy excessive amounts of flood insurance. It’s a lottery where the bank always wins, it seems. But not in these cases.
Approved by a federal judge in Oregon, the settlement will see BofA pay $31 million into a settlement fund, with plaintiffs receiving $2,500 each as an incentive award. The approval order also calls for certification of a class for settlement purposes only.
The lawsuits were filed in 2011 alleging BofA sent letters to homeowners and other borrowers informing them that they carried insufficient flood insurance because they lived in special flood zones, where there was a high risk of flooding and associated hazards. However, there is no federal requirement for homeowners living in those areas to carry additional insurance, the lawsuits claimed. BofA allegedly ignored proof sent by the plaintiffs demonstrating that they med the allegedly unnecessary requirement.
Under the terms of the settlement, BofA will make a series of changes to its insurance practices, including not taking any commission from force-placed flood insurance for three years. The bank also agreed to cease giving out opt-out letters from the forced policies in some of its future mailings and to refund co-op borrowers for any force-placed insurance that was not required by their loans.
The case is Larry Arnett et al. v. Bank of America NA. et al., case number 3:11-cv-01372, in the U.S. District Court for the District of Oregon.
Ok – Folks –time to adjourn for the week. Have a fab weekend –see you at the bar!
“OH” my god—are you kidding? It’s a copyright trolling lawsuit but it may be one for the books. BUT seriously folks—it’s over the use of one word. Set to be precedent setting—according to legal scholars—Rapper Jay Z is in a legal battle for the use of an “oh” shout allegedly taken from a 1969 recording made by Eddie Bo. (who?)
Yup. Our finest legal brains are at work here to make sure that no-one goes without. Jay Z uses the “oh” just once in his song “Run This Town.” According to the lawsuit, currently being duked out in New York, the “oh” is taken from the Eddie Bo’s song “Hook & Sling Part 1” recorded in 1969. That was last century and I’m betting Jay Z’s audience isn’t old enough to remember 1969.
The lawsuit against Jay Z accuses him of “wilful, wanton, and reckless tortuous conduct,” for his use of Bo’s recorded “oh,” according to court documents filed by lawyer Kelly D. Talcott of behalf of TufAmerican Inc—the plaintiff.
Jay Z’s legal team, who are not napping on this one, hit back by noting that the rapper barely uses the “oh”, and notably, plenty of people besides Bo have said “oh.”
“The snippet at issue consists solely of the shouted word ‘oh’ that appears once in Plaintiff’s Recording, at approximately the 0.03 mark of the introduction of Plaintiff’s Recording and lasts a fraction of a second,” write Jay Z’s lawyer Ilene S. Farkas, in her response to the lawsuit.
You try to hear that “Oh”…
So what do the experts think? According to Bobby Glushko, a communications and copyright librarian at the University of Toronto, in Canada, the case has a significance that goes far beyond the songs in question. Say what?
“Rap is so based on sampling,” Glushko said in an interview. He pointed out that rappers who don’t have Jay Z’s financial clout could benefit from any legal precedent he manages to set in this case. “There are plenty of people out there who just have to roll over because they don’t have the resources to fight it,” Glushko said. I’ll bet.
Ariel Katz, a law Professor also at U of T, weighed in stating that it was tough to say there was a substantial similarity between the ‘oh’ from Bo and the ‘oh from Jay Z. “Rap and many other forms of expression are based on taking parts of others’ works,” Katz said.
In Jay Z’s response to the lawsuit, Farkas argues that American courts have already tossed out similar lawsuits regarding sampling of the expressions, “Now I want y’all to break this down,” “you’ve got to stand for something, or you’ll fall for anything,” “it’s the hottest thing,” “step up front,” “get down” and “holla back.”
If Jay Z loses the lawsuit, the court can’t award any money to Bo (real name Edwin Joseph Bocage), since he died in 2009 at the age of 78. “Oh” my god—do I feel old (could I get sued for that?)
So who stands to benefit from this? Answer—TufAmerican, Inc., a New York corporation that owns Tuff City Music Group, which bought up Scram Records, which owned the original song—“Hook & Sling Part 1”.
For the record, pardon the pun, Bo had a long and distinguished recording career, having laid down tracks with over 40 labels. TufAmerican, Inc is riffing on that, arguing that “The ‘Hook & Sling’ master is unique intellectual property subject to common-law copyright protection under the law of the State of New York.”
Well, yes, but…if we’ve gotten to the point where we copyright common usage monosyllables, we’re all in trouble.
Possibly the most expensive dates in the world could cost a self-proclaimed elite matchmaker his livelihood. And hey, maybe it should. Richard Easton, who appears to be bordering on the notorious, is facing a lawsuit brought by a 61-year old real estate maven—Audrey Ruden—who claims, essentially, that Easton defrauded her of a six figure fee for what amounted to two dates with a couple of deadbeats.
Admittedly, if Ruden had taken a quick poll of New Yorkers as to whether it was rational thinking on her part to spend six figures on finding a date—let alone husband material—the resounding response would be “No”. But, of course, we won’t focus here on the collective raised eyebrow we’re all shooting in Ruden’s direction at present; we’ll focus on the biz deal she apparently had with Easton…
Ruden, a top New York realtor, hired Easton (whose credits include a recent appearance on ‘Real Housewives of New York’) to help her find a husband. (Why does Shakespeare come to mind at this point…) The—are you sitting down—$100,000 fee, which incidentally exceeds the state’s Dating Services Law preventing “purveyors of social referral services” from charging above $1,000 per client, wasn’t enough to produce the goods, according to the lawsuit. Ok, really? Easton could have hired a few well qualified escorts for that kind of dosh—and know exactly what she was getting. As it turned out, the Mensa members who were recruited to take her out on dates just wanted sex, now there’s a surprise.
Also not surprising, Ruden wants her money back. Ya think. On paper, Ruden appears to be quite a catch for some lucky guy- she’s a top Douglas Elliman broker, who has $500 million in luxury real estate sales to her credit (but sadly, no appearances on ‘Real Housewives of New York’—well, she does have the ‘New York’ part covered, but is still missing that ‘Housewife’ moniker…). So, she knows a thing or two about client satisfaction. In her lawsuit, she states Easton claimed to offer “personalized, sophisticated, thoughtful matchmaking services provided by highly trained experts.” (Trained in what?)
Ruden alleges “This is a lie.” She claims she was promised matches with “marriage-minded men,” the lawsuit states. (OK, that’s an oxymoron—what’s your first clue?)
Instead, she had two not terribly great dates with bachelors who only had an interest in short-term flings, according to court documents. One of the dates even questioned “why she was pursuing marriage,” the suit states. Well, that’s a reasonable question—but what’s the context?
According to court documents, Ruden, who lives on the Upper East Side, accuses Easton of hiring men “to create a false impression of performing the contracted-for services.” Wouldn’t be the first guy to do this—in fact one of his competitors—celebrity matchmaker Matt Titus—is also facing a lawsuit brought by a former teen model, who made similar allegations that she was set up with “fake” dates. Titus denied those claims, saying that the client was simply very demanding. Sounds familiar. In this case, Easton also blames his client for the failure of their husband hunting joint venture—the lawsuit states that the self-described “international playboy” belittled Ruden “in a condescending and sarcastic manner.”
It didn’t take long before Ruden realized Easton “had taken advantage of her intense desire to be in a committed relationship” and demanded her money back. But he refused, the lawsuit claims. (Ok, we said we’d refrain, but “intense desire”? Ouch! Lots of alarms going off there, eh?)
Easton does seem to be racking up the lawsuits. He’s also facing a little court action from his landlord who filed a lawsuit earlier this month, alleging Easton demanded oral sex from a housekeeper, ordered building staff to call him “Prince” and allowed his dog to defecate on the roof deck. Sounds like quite a catch himself—but I think you’d need a net for this one—and maybe a big white van.
Easton runs his matchmaking business out of an $11,500-a-month apartment. He has retaliated against his landlord by threatening a defamation suit. Now that should be entertaining.
Wow. So who’s gonna write the pilot for “Desperate Wannabe Wives of New York”? It just might be ready for prime time…
Supersize me—or not—as the case may be. After all, if it sounds too good to be true… then maybe Magna-Rx Inc, is promising just a tad more than it can deliver. The supplement maker GNC got hit with a proposed consumer fraud class action lawsuit this week alleging the labeling on its male strength and performance enhancement supplement misleads consumers by implying it is an effective aphrodisiac. According to the Magna-Rx lawsuit, the company falsely markets “Magna-Rx+” as a medically endorsed aphrodisiac, although the supplement, a blend of herbal and root extracts, has never been scientifically studied, and there is no proof that its ingredients have an effect on male strength and performance. In plain English—snake oil.
In the complaint, Trevor Dixon, the plaintiff, states that he purchased Magna-Rx+ for $50 in March 2013, from a GNC store. In January 2014 Dixon discovered the company had violated California’s unfair competition and false advertising laws and Consumer Legal Remedies Act, as well as the Federal Food, Drug and Cosmetic Act, by marketing the supplement as an aphrodisiac. Further, as an over-the-counter drug sold as an aphrodisiac, Magna-Rx+’s label should have been evaluated by the U.S. Food and Drug Administration, the complaint states.
Magna-Rx+ includes the ingredients: horney goat weed (WTF?), muira puma, Asian ginseng, oat straw and catuaba. However, none of these are safe and effective for OTC use as an aphrodisiac,” the lawsuit states. “The FDA bars these false, misleading and unsupported by scientific data label claims.” Is there even such a thing as horney goat weed?
Wait—there’s more—“Further, consuming such random herbs and herbal extracts presents a risk of an allergic or other adverse reaction without any offsetting benefit,” the complaint states.
The complaint also notes that the president of Magna-Rx testified in a deposition that the company never scientifically tested Magna-Rx+’s efficacy. Only a few ingredients may be effective at treating certain conditions, none of which includes male virility, according to the suit.
According to the lawsuit, the Magna-Rx+ label contains the phrase “Dr. Aguilar’s Original,” suggesting that Magna-Rx was developed by medical professionals. However, Dr. Aguilar is not a licenced medical practitioner in the US, but has a small storefront ‘alternative medicine’ clinic in Mexico. And, no one from Magna-Rx has ever interacted with Aguilar. That’s encouraging.
Additionally, the complaint cites the phrase “Real Doctors, Real Results,” which appears on the product labeling and suggests Magna-Rx+ is medically endorsed. According to the suit, the “Rx” in the product’s name further implies that it is prescription-strength, and “Magna” indicates that it is effective in increasing male strength and performance.
Boy—this stuff makes the Tooth Fairy sound plausible. Wonder what it does do…
La-Z-Boy living up to its name…. in that it’s been a bit lazy about accommodating people with disabilities who need wheelchair access to their stores. So, the company now finds itself on the end of a discrimination class action lawsuit alleging its stores are not fully accessible to the disabled because they lack handicapped parking and wheelchair-accessible restrooms, in violation of California’s Unruh Civil Rights Act and Disabled Persons Act.
Filed in Los Angeles, by lead plaintiff George Zepeda, the complaint alleges La-Z-Boy discriminates against disabled California residents by not requiring its facilities be accessible for handicapped individuals. Zepeda claims that there are several La-Z-Boy stores that do not have accessible restrooms, handicapped parking spaces and appropriate accessibility signage. The lawsuit also states that the furniture manufacturer has so far refused to remedy the situation.
“As a result of that failure to remedy existing barriers to accessibility, plaintiff and others similarly situated have been denied access to the benefits of the goods, services, programs, facilities and activities of defendant’s stores, and have otherwise been discriminated against and have suffered damages caused by defendant’s accessibility violations,” the complaint states.
In the complaint, Zepeda states that in June he purchased end tables and a stationary chair at a La-Z-Boy’s in California. He alleges that as a result of being denied full and equal access, he was discriminated against. Zepeda is restricted to a wheelchair and therefore, because the store did not have fully accessible restrooms, he says he was discriminated against.
Specifically, Zepeda claims that opening the restroom door required excessive force to open and keep open while he entered and exited the restroom because the door closer was not adjusted to allow the door to remain open long enough for him to wheel himself inside without assistance.
Further, once he was inside the washroom, he was unable to use the facilities because the toilet seat was “excessively high” from the floor, making it hard for him to maneuver from his wheelchair to the toilet seat, and also because the toilet paper dispenser, toilet seat cover dispenser and soap dispenser were mounted too high for him to reach. He says he also couldn’t wash his hands because the pipes under the lavatory were not covered and he was worried about burning his legs on them.
Zepeda also states that he wrote La-Z-Boy management about the issues but he never received a response. According to the lawsuit La-Z-Boy has a number of locations in Southern California with similar accessibility issues, including numerous restroom violations and a lack of disabled and van parking spots, and that the company has not acknowledged any of his complaints.
“The … violations are ongoing and continue to result in the plaintiff and unnamed mobility impaired class members suffering discrimination as a result of being denied full and equal access to these stores,” the complaint states.
The lawsuit is seeking certification of a class of all mobility-impaired or wheelchair-bound people in California who have patronized La-Z-Boy stores. The complaint states the class will consist of thousands of members, since census statistics show that more than 150,000 non-institutionalized people over age 16 in California use wheelchairs.
About those pension checks….employees at Meriter Health noticed they weren’t on the money. But this week they announced an $82 million settlement of an an employment lawsuit filed in 2010 alleging Meriter Health Services improperly calculated employee pensions. The settlement will see some 4,000 Meriter Health Services employees receive an average of $14,000 each in damages. A dozen people named as plaintiffs will each get an additional $5,000, and another 2,000 people will each receive about $250. Overall, more than $56 million will be allocated to about 6,000 people in 11 classes in the suit. Nice going!
The lawsuit alleged Meriter’s pension plan miscalculated benefits from 1987 to 2014. Both parties have agreed to the $82 million settlement, but a final settlement hearing is scheduled for some time in January.
Meriter Health Services became part of Iowa-based UnityPoint Health this year.
Ok—Folks—time to adjourn for the week. Have a fab weekend—see you at the bar!
A roundup of recent asbestos-related news and information that you should be aware of. An ongoing list of reported asbestos hot spots in the US from the Asbestos News Roundup archive appears on our asbestos map.
According to a study done by The National Fire Administration/NIOSH, published in the October 2013 issue of Occupational and Environmental Medicine, the rate of mesothelioma among firefighters studied was twice that of the general US population.
The study is one the largest of its kind done to date, and looked at mortality patterns and cancer incidence among career firefighters. The researchers evaluated a pool of approximately 30,000 firefighters employed in San Francisco, Chicago and Philadelphia between 1950 and 2009.
They found, as have previous studies, that firefighters, through the course of their work, are exposed to known and suspected carcinogens like formaldehyde and benzene. The study shows that such exposure is linked to an increased risk of developing certain cancers. Additionally, the results were consistent with previous studies which show that firefighters experience higher rates of respiratory, digestive and urinary cancers, compared to the general population.
What was new, however, was the nearly doubling of the incidence rate for asbestos mesothelioma among firefighters, compared with the general US population. This had not been previously reported. The study not only strengthens previous evidence for the health risks firefighters are exposed to, but also suggests an association between firefighters’ occupational exposure to asbestos and increased mesothelioma rates, as asbestos is “the only known causal agent of mesothelioma.”
Moundsville, WV: Deborah Morgan has filed an asbestos lawsuit naming 72 companies she claims are responsible for her late husband’s lung cancer and death. She claims her husband’s condition was a direct and proximate result of the negligence of the defendants.
Ronald Morgan was diagnosed with lung cancer on May 2, 2013, and died September 22, according to the lawsuit. Deborah Morgan alleges the defendants that are premise owners had a duty to provide Ronald Morgan with a reasonably safe place to work and a duty to exercise reasonable care in protecting him from work place hazards.
Further, Mrs. Morgan alleges the defendants failed to warn her husband of the dangers of its products when they knew or should have down that expose to asbestos-containing products and other ingredients of the products would cause disease and injury, and that they failed to exercise reasonable care to warn Ronald Morgan of the dangers to which he was exposed by use of the asbestos-containing products and other ingredients in the defendants’ product.
Mrs. Morgan also claims the defendants failed to inform her late husband about safe and sufficient apparel for a person who was exposed to or used the product or products and that the defendants failed to place any warnings on the asbestos-containing products and failed to warn of the dangers of the ingredients of the products.
The 72 defendants in the suit include: A.W. Chesteron Company; Air & Liquid Systems Corporation; Allied Glove Corporation; Ametek Inc.; American Gage & Machine Company Inc.; American Optical Corporation; Atlas Industries Inc.; Aurora Pump Company; Bayer Cropscience Inc.; and Beazer East Inc. (wvrecord.com)
Moundsville, WV: 109 companies have been named as defendants by a couple seeking damages in an asbestos lawsuit. The plaintiffs claim the companies say are responsible for the mesothelioma diagnosis pertaining to Thomas Ray Allen. Allen was diagnosed with mesothelioma on April 30, according to the lawsuit.
Allen and his wife, Phyllis Allen, claim defendants exposed Thomas Allen to asbestos during his employment in New Martinsville. Specifically, the Allens claim that Thomas Allen was exposed to asbestos and/or other harmful minerals manufactured, supplied, sold, distributed, installed, used, specified, removed and/or required by the defendants.
Further, the Allens contend that the defendants failed to warn them of the dangers of the asbestos-containing products and failed to take reasonable precautions to warn them of the dangers.
The defendants also failed to exercise reasonable care to warn them of the dangers and failed to inform them of what would be safe and sufficient apparel for a person who was exposed to or used the product or products, according to the complaint.
The 109 defendants include Bayer Corporation; Air & Liquid Systems Corporation; Ajax Management Corporation; Alliance Machine Company; Allied Glove Corporation; American Gage & Machine Company; American Optical Corporation; Ametek Inc.; Armstrong International Inc.; and Armstrong Pumps Inc. (wvrecord.com)
Salinas, CA: The Windsor Gardens, a 99 bed for-profit nursing home in California, has agreed to a $225,000 settlement to settle allegations it failed to properly handle the removal of asbestos during a renovation.
The nursing home, in Salinas CA, and its general contractor relied on an incomplete “operations and maintenance” report rather than a full survey when doing a renovation in 2012, according to the lawsuit. As a result, they did not know that wallboard in patient rooms contained asbestos, and the harmful substance, which can cause lung cancer, was emitted during work, local CBS affiliate KION reported this week.
Windsor Gardens and its operator, S&F Management Company, entered into the settlement with the Monterey County District Attorney’s Environmental Protection Unit. The general contractor, The Stahl Companies, will also pay $70,435 in a civil settlement. (mcknights.com)