Rock ‘N Mold? Heads-Up anyone who purchased a Fisher-Price Rock ‘N Play Bassinet or baby seat prior to January 2010:
Fisher Price and Mattel are facing a defective products class action lawsuit over allegations the Rock N Play baby seat has design flaws which results in it growing mold. Nice.
The Fisher-Price Rock ‘N Play Mold Growth Class Action Lawsuit, entitled is Butler v. Mattel Inc., et al., Case No. 2:13-cv-00306, in the U.S. District Court for the Central District of California, alleges Mattel and Fisher-Price were aware of the Rock ‘N Play design flaw since 2010. Specifically, the lawsuit claims that the baby seat design does not allow for adequate ventilation around the seat, making the product conducive to dangerous mold growth. The lawsuit, states that mold “is linked with serious respiratory illnesses and inflammatory problems in infants and recent long-term studies have suggested that infants exposed to environmental mold are nearly three times as likely to develop asthma by age seven.”
The Consumer Product Safety Commission has received in excess of 600 consumer complaints alleging mold growth between the Rock ‘N Play’s removable cushion and plastic frame, prior to the device recall in January 2013. At the time, 16 complaints included reports of infants becoming sick from the mold. Fisher-Price faced at least on lawsuit filed by a couple who alleged their son was hospitalized for respiratory problems after being exposed to mold that they claim developed on his Rock ‘N Play seat.
The Mattel and Fisher-Price marketed the Rock ‘N Play class action lawsuit claims the defendants failed to warn consumers that the sleeper was prone to mold growth. The plaintiffs further claim the defendants failed to test the product for mold growth or humidity resistance prior to releasing it on the market, even though they were aware that the seat would be regularly exposed to moisture and warmth—conditions conducive to mold growth.
According to the lawsuit, “Within seven months of the Rock ‘N Play’s release, concerned consumers began to call Defendants to complain that their Rock ‘N Plays were ‘moldy’ and, in many instances, that their infants were having respiratory problems they attributed to the mold.”
The lawsuit goes on to claim that tests for mold were only conducted on the product after hundreds of consumer complaints had been made detailing babies becoming ill from mold exposure. And, the lawsuit states that Mattel and Fisher-Price did not take timely action to either fix the defect or warn consumers about the risks, even though they were aware of the design defect.
While the defendants issued a recall of the Rock ‘N Play on January 8, 2013, the lawsuit claims that it was inadequate because it “consists solely of a 16 page booklet of cleaning instructions downloadable from the Internet, instructing owners to inspect the product for visible mold and, if mold is seen, undertake an onerous cleaning process that will cause damage to the product.”
The plaintiffs are seeking certification of a nationwide class of people who acquired a Fisher-Price Rock ‘N Play Sleeper that was sold prior to the January 8, 2013 recall. The plaintiffs also seek to certify three subclasses of California, Pennsylvania and Maryland residents who purchased the Rock ‘N Play prior to January 8, 2013.
Phantom of the Paycheck. Well, here’s a new take on an old theme….taxable phantom wages…? Yup. Three ex-Starbucks employees have filed a wage and hour class action lawsuit alleging the coffee company adds a taxable “phantom wage” of 50 cents an hour in tips to paychecks, which results in some employees receiving less than the minimum wage. The lawsuit claims that Starbucks in is violation of the Fair Labor Standards Act (FLSA), which prohibits employers making deductions in employees pay that would result in those employees making less than minimum wage.
Entitled, Fredrickson, et al. v. Starbucks Corp., Case No. 13-cv-02041, U.S. District Court Oregon, Portland Office, the lawsuit, filed by Hannah Fredrickson, lead plaintiff, states that Starbucks discourages employees from reporting their tips. Further, the lawsuit claims, “Starbucks just makes up that phantom number out of thin air.” Therefore, the lawsuit contends that Starbucks “willfully filed fraudulent information,” in violation of federal tax law, by reporting the made-up tips in W-2 returns.
According to the Starbucks class action, “Starbucks deducts amounts from its employees’ pay that reduce their paychecks below the minimum wage and/or overtime requirements. Its stated reason for the deduction is that the employees owe taxes on their tips, but that is false. Neither Oregon nor federal law require Starbucks to withhold taxes from unreported tips. The employees do not owe taxes on the tips, because their income is low enough that the withholdings from their regular wages are more than enough to meet their annual tax burden. Even if this were not the case, however, the employees would not have to pay any taxes on those unreported tips until the following April 15 (tax day). The FLSA requires employers to pay the minimum wage and overtime on payday, so the fact that the employees might receive a refund of these wrongfully deducted amounts (in many cases over a year later) does not eliminate the violation.”
Fredrickson is seeking class certification, an injunction, and damages for wage and hour violations and $5,000 or the sum of actual damages incurred, whichever is greater, for providing false information on tax returns.
Securities Settlement News… FalconStor Software is going to pony up some cash, it looks like. A proposed $5 million settlement has been reached in the securities class action lawsuit its facing, which was filed by purchasers of FalconStor Software, Inc. (Nasdaq:FALC) common stock.
The FalconStor Software settlement would affect all persons who purchased the common stock of Falconstor Software Inc during the class period March 12, 2008 to September 29, 2010, inclusive.
Here’s the skinny: If you purchased FalconStor common stock during the period of March 12, 2008 through September 29, 2010, inclusive, you may be a member of the Class described above, and your rights may be affected by the Settlement of this Litigation.
If you have not received a detailed Notice of Pendency and Proposed Settlement of Class Action and a copy of the Proof of Claim and Release, you may obtain copies of these documents by contacting the Claims Administrator at: www.strategicclaims.net.
If you are a Class Member, in order to share in the distribution of the Net Settlement Fund, you must submit a Proof of Claim and Release postmarked no later than January 20, 2014, establishing that you are entitled to recovery, in the manner and form explained in the Notice. If you are a Class Member and do not submit a proper Proof of Claim Form, you will not be eligible to share in the distribution of the net proceeds of the Settlement, but you will be bound by any judgment or orders entered by the Court in the Litigation, whether or not you submit a claim.
If you desire to be excluded from the Settlement Class, you must submit a request for exclusion received no later than January 20, 2014, in the manner and form explained in the Notice. All members of the Settlement Class who do not request exclusion will be bound by any judgment entered in the Litigation.
For complete information on the proposed settlement and class action lawsuit, and to download forms, visit: www.strategicclaims.net.
Ok Folks, That’s all for this week. 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.
A recent analysis of data from the World Health Organization, shows that when the problem of mesothelioma and asbestosis, the two most prominent asbestos-related diseases, is analyzed in terms of life years lost, the burden is “substantial”.
Researchers in Japan and Indonesia found that a total of nearly 3 million potential life years have been sacrificed to these diseases by more than 141,000 people in dozens of countries. According to their WHO data analysis, 128,015 people died of mesothelioma in 82 countries between 1994 and 2010. During the same period, 13,885 people died of asbestosis in 55 countries.
Mesothelioma is a deadly malignancy that spreads across internal membranes, inhibiting organ function and often, eventually, invading the organs themselves. Asbestosis, also known as pulmonary fibrosis, is a chronic inflammation in the lungs that causes shortness of breath and chest pain and can be fatal. Both mesothelioma and asbestosis are triggered by prolonged or intense exposure to asbestos fibers and can develop decades after exposure.
According to the new study, which appeared in the June 12, 2013 issue of the American Journal of Industrial Medicine, people who died of mesothelioma lost a total of 2.81 million potential years of life. That equates to an average of 17 years lost for each mesothelioma patient. The 13,885 people who died of asbestosis lost an average of 13 years of life each, for a total of 180,000 years. The researchers call the Potential Years of Life Lost (PYLL) measurement a “well-established but rather under-utilized” tool for assessing global disease burden and conclude that “The future burden of asbestos-related diseases can be eliminated by stopping the use of asbestos.”
Asbestos has been linked to mesothelioma, asbestosis, lung cancer, emphysema, pleural plaques and autoimmune diseases for more than 50 years. Despite the mounting worldwide death toll, many countries continue to mine, import and use asbestos in a range of industrial applications. Asbestos was once prized as an insulator and building material because of its resistance to heat, fire and corrosion. A number of third-world countries still use asbestos because it is inexpensive.
St. Clair County, IL: John Garrigus has filed an asbestos lawsuit naming 69 defendant corporations, which, Garrigus alleges, caused him to develop lung cancer after his exposure to asbestos-containing products throughout his career.
Garrigus worked as in the U.S. Air Force from 1972 until 1974, according to the complaint. He was also secondarily exposed to asbestos fibers through his father, who worked as a laborer at Clark Oil Refinery, the lawsuit states.
According to the lawsuit, the defendants should have known of the harmful effects of asbestos, but failed to exercise reasonable care and caution for the plaintiff’s safety.
As a result of his asbestos-related diseases, Garrigus became disabled and disfigured, incurred medical costs and suffered great physical pain and mental anguish, the complaint says. In addition, he was prevented from pursuing his normal course of employment and, as a result, lost large sums of money that would have accrued to him, the lawsuit states.
In his 10-count complaint, Garrigus is seeking a judgment of more than $100,000, economic damages of more than $150,000, compensatory damages of more than $200,000, punitive and exemplary damages of more than $50,000 and other relief the court deems just.
St. Clair County, IL: Margie Vail filed an asbestos lawsuit naming 51 defendant corporations. She filed the asbestos complaint on behalf of her recently deceased husband, Bobby G. Vail, who died on March 31, of asbestos-related illness.
Margie Vail alleges the defendant companies caused Bobby Vail to develop lung cancer after his exposure to asbestos-containing products throughout their careers. Bobby Vail worked in the U.S. Navy from 1948 until 1967 and as a maintenance worker and mechanic from 1969 until 1989.
According to the lawsuit, the defendants should have known of the harmful effects of asbestos, but failed to exercise reasonable care and caution for Mr. Vail’s safety.
As a result of his asbestos-related diseases, Bobbie Vail became disabled and disfigured, incurred medical costs and suffered great physical pain and mental anguish, the complaint says. In addition, he was prevented from pursuing his normal course of employment and, as a result, lost large sums of money that would have accrued to him, the plaintiff claims.
Through her lawsuit, Margie Vail is seeking economic damages of more than $50,000, a judgment of more than $100,000, punitive and exemplary damages, compensatory damages of more than $100,000 and other relief the court deems just.
New Orleans, LA: Emile and Julia France have filed an asbestos lawsuit against four of Mr. France’s previous employers, namely Chevron U.S.A. Inc., McDermott Inc., Hess Corp. and Tate & Lyle Ingredients Americas. The asbestos lawsuit, filed in federal court in New Orleans, alleges Mr. France developed brain cancer after years of exposure to asbestos.
France worked for McDermott as an operator in 1962 for approximately six months and worked at Hess from approximately 1962 to 1964. He also worked for Tate & Lyle as a pumper and gauger from 1967 to 1971 and as an employee of Alliance Refinery from 1971 to 1976. It was during this period, the lawsuit states, that France was exposed to and inhaled significant quantities of asbestos and asbestos-containing products, resulting in his developing lung cancer, brain cancer, impaired pulmonary capacity, and reduced lung volume.
A Jones Act claim has been filed against defendant McDermott. While defendants Hess, Chevron, Tate & Lyle and McDermott are accused of negligence and strict liability for not providing respiratory protection or other personal protective equipment, not providing proper training in the proper safety procedures, failing to have the necessary equipment to perform the required work, failing to have properly trained and competent crew, and for failing to comply with applicable regulations and laws.
Through the lawsuit, Mr. France is seeking damages for pain and suffering, medical expenses, physical therapy, disability, emotional and psychological anguish and distress, loss of income, loss of enjoyment of life, loss of consortium, loss of service and loss of society, punitive damages, court costs, attorney’s fees, and interest.
Were you out Shopping for Appliances on Black Friday? If so, a federal class action lawsuit has been filed against Electrolux Home Products Inc, over allegations the company marketed and sold defective washing machines.
Filed by plaintiffs Gloria Waters and William Hall, on behalf of themselves and others similarly situated, the lawsuit claims that Electrolux sold front-loading washing machines that are prone to accumulate mold.
The Electrolux lawsuit alleges the manufacturer sold the defective washing machines under brand names including Frigidaire and Kenmore, and that Electrolux knowingly concealed the fact that the washing machines were prone to accumulate mold and mildew which can permeate throughout the consumer’s home and ruin clothes.
The plaintiffs are accusing Electrolux of breaching implied warranties by selling products they allegedly knew were defective, and are seeking an undisclosed amount in damages.
Thinking of Annuities InvestING? If you’re a senior or know a senior—you may be interested to learn that an annuities class action lawsuit has been filed against ING. Filed by Ernest Abbit of California, the lawsuit alleges the financial services firm indexed financial instruments that failed to meet the advertised goals and that company officials failed to properly advise seniors of the risks associated with investing in the annuities.
According to the ING lawsuit, the stated goal of ING indexed annuities, is to provide seniors in various age groups with “protection of principal”, which means reducing the risks of investment while using various investments products aimed at “fueling the value of our annuity” “to build up your retirement savings.” Abbit claims ING failed to back up their claims. Sound familiar?
Abbit alleges in the class action, that he, and others similarly situated, have lost as much as 20 percent of their savings, “on the first day” of investment, due to the lack of information regarding what the product provided. His returns are allegedly a fraction of those an investor would have received by investing in the S&P 500 as a whole, the index his annuity was allegedly designed to mirror. Umm.
Specifically, the lawsuit, The ING Annuity Class Action Lawsuit, entitled Ernest O. Abbit, et al. v. ING USA Annuity and Life Insurance Company, Case No. 13-cv-2310, U.S. District Court, Southern District of California, claims that ING’s the financial instruments are “wolves-in-sheep’s clothing” and that their statements are “opaque.” The lawsuit claims that not only did the instruments fail to return as advertised, but that those investments contained “embedded derivatives” similar to those that led to the financial collapse in 2008. ING indexed annuities were structured, the lawsuit claims, so that the company would benefit from any derivatives income while at the same time putting it senior investors at risk for losses.
According to the class action, in 2005 the Financial Industry Regulatory Authority (FINRA), which is the financial services industry’s self-governing body operating as a private monitor, warned that the products Abbit and others were invested in were accompanied by sales material that “do not fully describe the features and risks of the products.” insurance companies allegedly changing their annuity obligations or not being able to meet those obligations are Aviva, Transamerica, The Principal Financial Group, MetLife, Prudential, Guggenheim and Genworth. Variable annuity holders who purchased their annuities in the past three years from those companies may be eligible to file a claim against those companies.
FedEx to deliver $21.5 million in cash and billing practice changes, ending a consumer fraud class action lawsuit brought against it by business and government agencies.
Granted final approval this week, the FedEx settlement ends the lawsuit brought in 2011 by two law firms, which alleged the world’s largest cargo delivery company overcharged by as much as $3 per package for tens of thousands of packages. Ouch! That could add up.
The plaintiffs, made up of government and business customers, claimed FedEx charged residential rates to destinations including the US Citizenship and Immigration Office in Chicago, a Bank of America Corp. facility in Tampa, Florida, and the Safariland Group body armor company in Jacksonville, Florida.
FedEx has denied the allegations but has agreed to settle. No news there.
The settlement was preliminarily settled in July. FYI—the class period is from August 28, 2008, to July 13, 2011, and involves FedEx customers who used the carrier’s services and didn’t get a full refund for claimed overcharges on residential deliveries.
The case is Manjunath A. Gokare PC v. Federal Express Corp., 11-cv-02131, U.S. District Court, Western District of Tennessee (Memphis).
Ok Folks, That’s all for this week. Happy Shopping till you’re Dropping!
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.
While it may not officially be winter—it certainly seems as if it is in many parts of North America. Time to turn the heating on. But, if your hot air furnace is old, beware—it could contain asbestos!
While asbestos has been banned from use in furnace gaskets since the 1970s in Canada, and likely the US as well, furnaces purchased and installed before then may still be in operation—they have a lifespan of some 50 years or more.
As the gaskets in hot air furnaces disintegrate with time and wear and tear, they can spread asbestos fibers throughout the house, exposing the inhabitants to long-term exposure and potentially fatal asbestos disease including asbestosis and lung cancer—without them even knowing it. If you suspect your furnace could contain asbestos, get a professional in to take a look at it.
Galveston, TX: The family of a recently deceased oil refinery worker has filed an asbestos lawsuit naming 12 companies which they allege are responsible for the late John Biondo’s death.
According to court documents, the offspring of the late John Biondo launched the litigation against the defendants, chief among them General Electric Co. and CBS Corp. Biondo was employed at the Texas City Refining Inc. facilities from 1954 to 1994.
According to the original complaint, Biondo was “exposed to asbestos dust and/or fibers” during his course of employment, specifically prior to 1980. “As a result of his exposure to asbestos dust and/or fibers while employed by Texas City Refining Inc. John Biondo contracted asbestos-related mesothelioma which ultimately took his life,” the lawsuit claims.
Biondo’s family claim that there were defects in the design and marketing of “the defendants’ asbestos-containing products and/or machinery at the time they left the possession of the defendants,” insisting the companies had prior knowledge but failed to warn of the hazards. Biondo’s family is seeking unspecified monetary damages. (setexasrecord.com)
Jefferson County, TX: A settlement has been reached between the family of the late Romeo Vera and Chevron U.S.A. – the company the family Vera’s family alleges was responsible for his asbestos exposure and death.
Gaynell Vera and her three children filed the asbestos lawsuit April 11, 2011, alleging Vera was exposed to asbestos dust and fibers during the course of his employment by Gulf Oil Corp., now owned by Chevron, at its Port Arthur refinery. “As a result of such exposure, Romeo Vera developed an asbestos-related lung disease, for which he died a painful and terrible death on Oct. 26, 2009,” the lawsuit states.
“The defendant knew for decades that asbestos products could cause … cancer and sill allowed employees to work with and around asbestos products in the workplace.” The plaintiffs were suing for exemplary and punitive damages. (setexasrecord.com)
Harrisburgh, PA: A major victory for victims of occupational diseases was recently won in Pennsylvania, in a landmark decision, by the Pennsylvania Supreme Court. The decision reversed a Superior Court decision and recognized an employee’s right to bring a civil action against an employer for a latent occupational disease, such as asbestos mesothelioma.
In Landis v. A.W. Chesterton, et al. and Tooey v. A.K. Steel Corp., plaintiffs developed mesothelioma from years of work-related asbestos exposure. Under prior interpretations of the Workers Compensation Act in Pennsylvania, however, Landis and Tooey were unable to seek workers compensation benefits, or file civil action against their employer, because their mesothelioma did not manifest within 300 weeks of the date of last exposure.
The Pennsylvania Supreme Court ruled that the Act did not apply to latent occupational diseases, or diseases that might take years to develop and be diagnosed, and therefore victims were not prohibited from filing a common law claim against an employer.
In its written opinion, the court stated that interpretations should be “consistent with the humanitarian purposes of the Act,” and “resolve in favor of the employee.”
“It is inconceivable that the legislature, in enacting a statute specifically designed to benefit employees, intended to leave a certain class of employees who have suffered the most serious of work-related injuries without any redress under the Act or at common law,” the court wrote.
John Tooey worked as an industrial salesman from 1964 until 1982 and during his employment sold asbestos containing products, which caused him to be exposed to asbestos dust. In December 2007, Tooey developed mesothelioma and died less than one year later. Spurgeon Landis worked for a manufacturer of welding rods from 1946 until 1992 and, during his employment, he too was exposed to asbestos dust. Mr. Landis was diagnosed with mesothelioma in 2007 and died in 2012. (digitaljournal.com)
Bad Beneficial! Heads up Beneficial West Virginia Insurance Policy Holders—yup—it’s a bad faith insurance class action lawsuit. This one filed against Beneficial West Virginia Inc, and Household Insurance Co, by two policy holders. Denzil and Cathy Shaw allege they are owed payments under the terms of their credit-disability insurance policy.
The Shaws state in their Beneficial West class action complaint that they submitted a claim to their insurer in October 2009, when Denzil Shaw became permanently disabled. They ha
d purchased the disability policy through Beneficial, and it was issued by Household Insurance. The lawsuit contends that the Shaw’s policy states that if either of the plaintiffs become disabled during the mortgage term, their mortgage would be paid for a period up to 180 months. The lawsuit states that the Shaw’s mor
tgage payments were paid through the policy until they received a letter stating the payments would stop in December 2012, which is in violation of the policy-stipulated 180 months.
The lawsuit claims that the defendants are in breach of contract, consumer credit and protection act, unfair claims settlement practices act, failure to disclose and first-party insurance bad faith.
The Settlement Fund will be divided equally among all Class Members (after fees and costs are deducted), who timely submit a valid Claim Form and do not exclude themselves from the settlement. It is estimated that approximately $1,132,053 will be available to be divided among Class Members who timely submit a valid Claim Form. Based on claims rates in other cases, the range of expected recovery per Class Member who submits a valid Claim Form is estimated at between $25 and $200. This is only an estimate. The actual amount paid out will depend on the number of Class Members who submit valid Claim Forms. Printing Error? SouthWest has agreed to pay $1.8 million in settlement of a class action lawsuit concerning allegations it “willfully” violated the Fair and Accurate Credit Reporting Act (FACTA) by printing the expiration date on customers’ credit or debit card receipts at airport ticket counters between October 17, 2007 and October 30, 2012 or at cargo counters between October 17, 2007 and January 25, 2013. Got all that? Did you even know SouthWest was doing this?
If you made a non-business related credit or debit card purchase or transaction at a Southwest Airlines Co. airport ticket counter between October 17, 2007 and October 30, 2012 or a cargo counter between October 17, 2007 and January 25, 2013 and received a printed receipt, you may be entitled to benefits as part of a class action settlement.
Wait—there’s more—a settlement has been proposed in two related class action lawsuits alleging that Southwest Airlines Co. willfully printed credit card and debit card expiration dates on certain customer receipts. The settlement will provide benefits to any Class member who used a credit or debit card to make an individual, non-business related purchase or transaction at a Southwest airport ticket counter between October 17, 2007 and October 30, 2012 or a cargo counter between October 17, 2007 and January 25, 2013 and received a printed receipt.
To get the whole picture and for information on downloading and submitting claim forms, visit: www.SouthwestFACTASettlement.com, or write to Southwest Airlines Co. Settlement Administrator, P.O. Box 3059, Faribault, MN 55021-2659.
Google to pay for Oogles —sorry that’s Ogles… to the tune of $17 million. A settlement has reportedly been reached in an Internet privacy class action lawsuit pending against Google Inc. The lawsuit concerns allegations that Google and another three online companies circumvented default privacy settings on Apple’s Safari web browser, for the purposes of placing tracking cookies without consumers’ knowledge. Oh that my Internet practices were that interesting!
Nevertheless, “Consumers should be able to know whether there are other eyes surfing the web with them,” New York Attorney General Eric Schneiderman said. Well, preferably, no other eyes.
As part of the Google settlement, Google has not admitted to any wrongdoing and stressed that they had “taken steps to remove the ad cookies, which collected no personal information from Apple’s browsers.” Other terms of the settlement reportedly stipulate that Google honor default privacy settings on web browsers. Google will also “provide a separate stand-alone page or pages on the Google.com domain designed to give information to users about Cookies (the “Cookie Page).”
“Google shall maintain systems configured to instruct Safari brand web browsers to expire any Cookie placed from the doubleclick.net domain by Google through February 15, 2012 if those systems encounter such a Cookie, with the exception of the DoubleClick opt-out Cookie. Such systems shall remain in place until Feb. 15, 2014, at which time all Cookies placed from the doubleclick.net domain by Google on Safari brand web Browsers through Feb. 15, 2012 should have expired by design,” the settlement states.
The $17 million settlement fund is set to be split among each of the Attorneys General who filed against Google, in amount yet to be designated. The states are listed as beneficiaries of the settlement are: Alabama, Arizona, Arkansas, California, Connecticut, Florida, Illinois, Indiana, Iowa, Kansas, Kentucky, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Nebraska, Nevada, New Jersey, New Mexico, New York, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Vermont, Virginia, Washington and Wisconsin, and District of Columbia. Umm.
Ok Folks, That’s all for this week. Happy Thanksgiving!