An Urgent Heads Up for Dog Owners…Nestle Purina Petcare Company is facing a consumer fraud class action lawsuit alleging its dog food Beneful contains toxic substances which can kill dogs. Filed by Frank Lucido, the lawsuit claims that the dog food is to blame for either the deaths or serious illnesses of thousands of dogs.
The Beneful lawsuit claims that while Beneful is advertised as a healthful and nutritional dog food, the Lucido’s experience and others has been the opposite. Specifically, the lawsuit claims that Beneful dog foods contain propylene glycol, which is “an automotive component that is a known animal toxin and is poisonous to cats and dogs.”
Further, the Lucidos claim that Beneful also contains mycotoxins, which are “a group of toxins produced by fungus that occurs in grains, which are a principle ingredient in Beneful.” The lawsuit cites the Association for Truth In Pet Food, which tested “Beneful Original and found that it contained dangerous levels of mycotoxins.”
According to the complaint, Lucido had a German Shepherd, an English Bulldog and a Labrador. In late December 2014 or January 2015 he purchased his first bag of Beneful dog food which he fed to each dog and which each dog began eating exclusively. On January 15, Lucido’s German Shepherd began to lose a large amount of hair and he began to have an unusual odor. Two days later the German Shepherd became violently ill, the lawsuit claims.
After being examined by a veterinarian, it was determined that the German Shepherd was suffering from internal bleeding in the dog’s stomach and the liver was also malfunctioning, which the veterinarian said was “consistent with poisoning.” Then, on January 23, the Lucidos found their English Bulldog dead in the yard. “Post-mortem veterinary examination revealed signs of internal bleeding in the dog’s stomach and lesions on his liver, much like [the German Shepherd],” the class action lawsuit claims. The Lucido’s Labrador is also now ill and is being tested for similar problems.
According to the lawsuit, the Lucidos “have suffered economic losses including the purchase price of Beneful and veterinary and related medical expenses” as result of the harm Beneful caused their dogs.
The lawsuit states that over 3,000 similar complaints have been posted by dog owners on the Internet “about dogs becoming ill, in many cases very seriously ill, and/or dying after eating Beneful.”
“The dogs show consistent symptoms, including stomach and related internal bleeding, liver malfunction or failure, vomiting, diarrhea, dehydration, weight loss, seizures, bloating, and kidney failure,” the lawsuit states.
The Beneful lawsuit seeks representation for two classes, specifically, a nationwide class and a California subclass for dog owners “who purchased Beneful dog food in the past four years and who incurred any out of pocket costs due to illness, injury or death of their dog resulting from the ingestion of Beneful.”
The class action lawsuit claims Nestle Purina is in breach of implied warranty, breach of express warranty, negligence, negligent misrepresentation, strict products liability, violating California’s consumer legal remedies act, violating California’s Unfair Competition Law, and violating California’s False Advertising Law.
The Lucidos are represented by Jeffrey B. Cereghino of Ram, Olson, Cereghino & Kopcyzynski, by John Yanchunis of Morgan & Morgan Complex Litigation Group, by Karl Molineux of Merrill, Nomura & Molineux, and by Donna F. Solen of Kimbrell Kimbrell & Solen LLC.
The Beneful Toxic Dog Food Class Action Lawsuit is Frank Lucido v. Nesltle Purina Petcare Company, filed in the U.S. District Court for the Northern District of California.
Deeply Creepy. A proposed spyware class action lawsuit has been filed against Lenovo and Superfish Inc, makers of software installed on many different types of Lenovo laptops, alleging the companies are in violation of the Computer Fraud and Abuse Act, the Federal Wiretap Act, the Stored Communications Act, as well as California’s Invasion of Privacy Act and its Unfair Competition Law.
Filed in California on behalf of a proposed class of Lenovo customers, the class action alleges the company sold computers preloaded with Superfish software which is capable of tracking customers’ online activity and leaving their computers vulnerable to hackers. Nice.
“Lenovo never disclosed the Superfish program and took affirmative steps to conceal it from consumers because the program is generally considered to be spyware, adware or malware and, aside from the fact that it allows companies to spy on user’s every move online, the program also creates serious security issues for any consumer accessing the Internet with a Lenovo notebook computer on which the Superfish program has been installed,” according to the legal documents. Does this nonsense ever end? Where is Edward Snowdon?
The lawsuit is Sterling International Consulting Group v. Lenovo, 15-807, and includes common law claims of trespassing and fraud, as well as a claim of negligent misrepresentation.
The Last Gasp—the Final Puff—? Maybe, just maybe. Big tobacco reached a $100 million settlement this week, potentially ending something like 400 personal injury lawsuits winding their way through a courtroom near you. Well, actually, Florida. The lawsuits are pending against Philip Morris, R.J. Reynolds Tobacco Co. and Lorillard Tobacco Co, and stem from the landmark Engle v. Liggett Group Inc. class action against tobacco companies that was decertified in 2006 by the Florida Supreme Court.
The potential tobacco settlement resolves only those cases pending in federal court, and if approved, would see R.J. Reynolds and Philip Morris each pay $42.5 million, and Lorillard $15 million.
The deal remains subject to the approval of all of the individual plaintiffs in the cases covered by the agreement. In the meantime, the affected cases have been stayed pending approval of the deal.
Hokee Dokee- That’s a wrap folks…Time to adjourn for the week. See you at the bar!
What do you do when the city you love—the city you “rebuilt” arrests you? You sue, of course. Sandy Kane, the Naked Cowgirl of Times Square, is suing the city for wrongful arrest, to the tune of $2 million. Well, that should keep her off the streets for a while.
52-year old Kane is no shrinking violet. A bare-breasted busker, well actually she wears pasties—a cowboy hat and a guitar—or is that gittar—has been working Times Square for seven years. Long enough, she told a judge recently, to have “rebuilt Times Square . . . and made Manhattan and Times Square history.”
“I really feel that if there’s one thing I did in my life, I did that,” she told the New York Post. “All the Elmos and the Sponge Bobs, that wasn’t out there when I first came . . . I put a lot of people to work.” Um. So, what’s the problem? And why was she in court?
Hmm. Kane acted as her own lawyer, and the judge, according to Kane, laughed while dismissing the charges against her. “I feel like I inspired Bloomberg” to turn Times Square into a pedestrian mall, she said. “I gave it to the people. I gave it to the tourists.” That defense would have been worth seeing.
All this took place last year. Cut to 2015 and Sandy is now suing the City of New York for wrongful arrest. It’s not illegal to go topless in New York, apparently, something worth noting if you’re planning on being in the Big Apple in August. So the guitar case does seem like a bit of a ruse, and New York’s finest have apparently been warned about making “controversial” arrests over public nudity. As well, there is no statute outlawing leaving a bag unattended, so, Sandy could have a slam dunk here. Well, I wish her luck and at the very least a new pair of pasties!
Fix my Ride! A California collision repairs chain has reportedly been tinkering with California labor law according to a class action lawsuit filed against it this week. Caliber Collision is being sued by its mechanics who allege they were not paid for all the hours they worked. Heard this before?
Filed by lead plaintiff Samuel Castillo, the lawsuit alleges Caliber Bodyworks of Texas Inc., which operates the car repair chain Caliber Collision, pays its mechanics on a piece-rate system for each task they perform, and that the workers are assigned piece-rate hours per tasks, regardless of the time it actually takes them to perform. Castillo claims he recorded the hours he worked, but Caliber only paid him under the piece-rate system.
“As a result, defendants did not pay plaintiff for all hours worked at the minimum wage, as defendants failed to pay plaintiff for nonproductive hours, i.e. hours that he was not performing piece-rate work,” the complaint states.
Further, the lawsuit contends that Castillo worked for Caliber from 2007 through to the end of January 2014 classed as a nonexempt technician under the piece-rate system. According to the suit, under Caliber’s pay system, if a task were assigned a value of 0.8 hours, the mechanic would be paid for 0.8 hours of work, regardless of whether the task took 10 or 90 minutes to perform.
According to the suit, the method Caliber uses, of meeting their minimum wage obligations, dividing daily piece-rate earnings by daily hours worked, violates California labor law. The suit also alleges Caliber paid Castillo nondiscretionary bonuses and other forms of compensation that aren’t excludable from the regular rate of pay.
“Despite defendants’ payment of incentive pay to plaintiff, defendants failed to include all forms of incentive pay when calculating plaintiff’s regular rate of pay, thereby further causing plaintiff to be underpaid all of his required overtime wages,” the complaint states.
Castillo alleges that he regularly worked in excess of eight hours per work day and over 40 hours each week, without receiving overtime compensation. Further, because the company only pays its workers in the piece-rate system, it also fails to maintain any compensation system for compensating rest periods.
“As a result of defendants’ failure to pay all overtime and minimum wages, defendants maintained inaccurate payroll records and issued inaccurate wage statements to plaintiff,” the suit states.
Finally, the lawsuit contends that Castillo requires its mechanics to buy their own tools that are necessary to perform their job duties, without reimbursing the workers for the cost of the tools.
The employment class action is seeking certification on behalf of classes of workers denied minimum wage, overtime hours, expense reimbursements and more.
The suit is Castillo et al. v. Caliber Bodyworks of Texas Inc. et al., case number BC572767, in the Superior Court of the State of California, County of Los Angeles.
If the Shoe fits… Coming out the other end of an employment lawsuit we have Payless Shoesource, which has reached a $2.9 million settlement in an employment class action alleging the retailer violated the Fair Labor Standards Act (FLSA) by misclassifying its store managers as a means of avoiding overtime pay.
According to the terms of the Payless settlement agreement, two thirds of the funds will be shared among the 2,197 class members. According to court documents, most of the plaintiffs worked as store managers or leaders at Payless retail outlets from March 2011 on.
In 2006, Payless faced a similar lawsuit when employees in Mississippi alleged the shoe retailer had violated the FLSA by routinely requiring managerial employees to work 60 to 90 hours a week, and making them perform non-managerial tasks without paying them overtime. That case was settled out of court and the terms remain confidential.
Justice at what Cost? Takeda Pharmaceutical Co, the makers of the diabetes drug Actos, has been ordered to pay $1,334,636 million in punitive damages by the jury hearing the case of a retired school teacher who developed Actos bladder cancer.
The jury found that Takeda had acted with reckless indifference for the health of Mr. Kristufek, who alleged that Actos had caused him to develop bladder cancer.
The $1.3 million in punitive damages is additional to a $2.3 million award the jury handed down the day before, after agreeing that Takeda had failed to provide adequate warnings about the drug’s association with bladder cancer and that the medication had been a significant cause of Mr. Kristufek’s condition.
Kristufek’s is the fifth Actos-related case out of eight in which juries have returned verdicts on behalf of plaintiffs, and only the second in which the company has faced punitive damages. Further, his is the second Actos-related case to win in Philadelphia, with a jury awarding $2 million in damages in a case that cited similar allegations for a woman.
Hokee Dokee- That’s a wrap folks…Time to adjourn for the week. See you at the bar!
Costume capers and the dancing “Left Shark”—ringing any bells? Think Super Bowl XLIX…Kate Perry’s half time show…and those dancing sharks. What is it about Super Bowl half time shows? This year, apparently Perry’s sidekicks—the dancing sharks—weren’t groovin’ to the same tune, which led to some interesting choreography. The “Left Shark” decided to ad lib a bit—or maybe the valium had kicked in—who knows—but he/it did its own thing which reportedly went viral on the Internet. Of course. Shortly thereafter—as in days, I think, an enterprising designer from Florida, one Fernando Sosa, started selling models of the “Left Shark” on the 3-D marketplace Shapeways. And, Katie Perry’s lawyers thought this a little fishy.
While Sosa was not the only one capitalizing on the “Left Shark’s” 15 minutes of fame, he did find himself on the end of a cease and desist letter ordering him to remove the $24.99 shark from Shapeways. While Sosa complied, he is offering a 3-D pattern of the shark as a free download on MarketBot’s Thingiverse site.
According to my favorite news site—The New York Post—Sosa sold about 14 of his 3-D-printed Left Shark models within 24 hours, before they were taken down. All the money was returned, and production was halted, he told Marketwatch.
“I did propose licensing, but the lawyer turned me down saying they don’t have anything set up,” Sosa said. That was a bit slow on their end. Sosa said lawyers informed him that the beach balls and palm trees dancing alongside Perry were also off limits. Dancing palm trees… just how much Bud Light had people had by half time?
The issue is who owns the costume copyright. According to Eric Goldman, a law professor specializing in copyright issues at Santa Clara University, that’s not so clear. If the design of the costume is unique it can be copyrighted. There’s a dilemma just waiting for a court room.
“Just because [Perry] was dancing near the shark doesn’t give her ownership,” Goldman told MarketWatch. She would need to have registered her copyright for the shark costume or provide written proof that one of her employees designed it before she could move forward with a lawsuit, he said. (really?)
Whether Shapeways or Sosa could be held liable if a lawsuit were to be filed remains a gray area because it’s not clear whether Perry has filed copyright paperwork or if the costume was based on someone else’s design, Goldman said.
You know, this whole costume copyright thing has more potential than the dancing sharks that spawned it. I think there may be a bright future ahead for copyright attorneys.
Spent but not exhausted… Far from it in fact, if plaintiff Tania Warchol is correct. She’s filed a lawsuit—are you ready—against the author of “Fifty Shades of Grey” and a British sex toy retailer for promoting Fifty Shades of Grey Sex Gel that does not live up to its promise of providing a “…a draining, soulgrabbing orgasm that leaves me spent and exhausted.” A quote apparently taken from the book.
Of course, it goes without saying that there could be several other reasons why Warchol failed to achieve the orgasm of lifetime (a widespread failing, I’m told), but we won’t go there, will we?
The consumer fraud lawsuit claims that author E.L. James and Lovehoney Ltd, among others, are peddling snake oil, essentially, and its subsidiaries are in violation of California’s unfair competition and false advertising laws by making misleadingly claims. (hey—everyone knows that writers never embellish).
The lawsuit also claims that the defendants use purported consumer endorsements as well as portions of James’ book to coax consumers into buying the product under false pretenses. Specifically, advertising for the over-the-counter “Fifty Shades of Grey Come Alive Pleasure Gel for Her”, claims to have beneficial and aphrodisiac properties to increase pleasure and enhance orgasms. According to Warchol, not so much. None of the ingredients in the product provide those benefits.
“Defendants prominently label the product as an ‘Intimate Arousal Gel,’ expressly and impliedly conveying to consumers that the product’s ingredients will help a user to experience heightened stimulation, pleasure and orgasm, despite that the product fails to be effective as an aphrodisiac,” the suit states. How are they defining aphrodisiac? I’ve always found a good red wine very helpful, taken orally, of course. A good lover is also helpful, but, in a pinch, not absolutely necessary.
While Warchol contends that the gel contains small amounts of extracts from organic substances including herbs and roots, some of which the defendants claim have an effect on the human body, it appears that not only are none of the ingredients effective as an aphrodisiac, but they may also cause an allergic reaction to genital areas. Oh, this is so going from bad to worse.
Even the FDA gets a mention, with Warchol claiming that Lovehoney didn’t seek US Food and Drug Administration premarket clearance required for patient lubricants that are used as accessories to condoms, Lovehoney is illegally marketing and selling the product at issue as “latex compatible.” No comment.
Warchol’s story is that she bought the pleasure gel at least twice in August 2014 at an Adam and Eve adult store owned by PHE Inc., another named defendant. While she relied on the defendants’ advertising, the product turned out to be “unsatisfactory,” she said. And that’s not subjective?
In case you’re interested in putting this stuff to the test personally, the “pleasure gel”, according to the complaint, is sold online and through retail stores for about $15. It is part of a larger group of products called the “Fifty Shades of Grey: The Official Pleasure Collection Approved by E.L. James.”
Bottom line, the truth really is stranger than fiction.