This really is crazy—a new level of crazy. Taylor Swift, world famous pop star, is being sued by Robert Kloetzly, the owner of a California fashion chain—for her usage of the phrase “Lucky 13 “ because it also happens to be the name of Kloetzly’s Lucky 13 clothing line.
OK—on first take one would guess that it’s all about publicity. But Kloetzly appears to be ready to go the distance, and ride this out no matter what the cost. To that end, the 25 year old singer was recently bombarded with hundreds of discovery requests by his lawyers, including a request for any promotional videos or photos that show glimpses of her ‘partially visible’ breasts or bottom, the Daily Mail reports. No, I am not making this up.
The logic behind the request, apparently, is that Kloetzly’s lawyers will argue (if they get to court, which is looking quite likely) that the risqué images of Swift constitute evidence in their case—evidence that Swift uses her sex appeal to target a similar audience to his products. Ok, seriously? I’d say that’s a reach. Can you name a female pop star who doesn’t milk the honey for all it’s worth?
Not surprisingly, Swift’s attorney’s hit back by asking for a protection order from further ‘prejudice and harassment’, stating that they considered this latest move an abuse of the legal process. Well, it’s abuse alright—but of the legal process?
‘[The] Plaintiff has escalated its harassing tactics,’ Swift’s lawyers wrote in court papers, the Daily Mail Online reports.
‘For instance, Plaintiff served a final set of written discovery on Defendants that requested irrelevant material such as … all photographs and videos of you in which your breasts are at least partially visible as well as documents reflecting, evidencing or revealing who took each such photograph and video and where and when.’ The documents make a similar demand for ‘all photographs and videos’ in which Swift’s ‘buttocks are at least partially visible’.
This lawsuit began in May 2014, when Kloetzly reportedly noticed that Swift was selling t-shirts and greetings cards with a shamrock design saying Lucky 13, a reference to her birthday and favorite number. So he sued ( I smell an opportunity) in Orange County, California seeking damages and all of her profits, contending that she had ‘confused’ the marketplace by copying the brand he launched back in 1991. I’m confused, but not for the reasons Kloetzly contends.
It is entirely possible that people may be confused by the duplicate use of the name, but Kloetzly has defined the user group by identifying videos featuring ‘fast cars, and dangerous men who drive inappropriately’, which, he alleges, provide evidence that Swift was aiming her products at the same edgy, tattooed crowd that buy his clothing, jewelry, body spray, car plates and other items.
Swift’s lawyers responded by arguing that her t-shirts were totally different and disputing suggestions the small, little-known clothing company had suffered any injury or losses. Ouch. That had to hurt…
Swift’s legal team is also claiming that Kloetzly’s attorneys have been inundating many of the companies Swift works with, heavy hitters such as Coca Cola, Toyota and Elizabeth Arden, with similarly frivolous requests for documents and information. Betting that’s not going down well.
But back to the request for photos of body parts…according to Kloetzly’s attorneys, the request for photos of Swift’s buttocks and cleavage was merely to demonstrate she was tapping into the same market as Lucky 13. He added: ‘One of their positions is that the demographics are very different and that the edgy-looking image and the models we use for the Lucky 13 brand are not congruent with Miss Swift’s image.
‘Unfortunately we’re being forced to counter that by showing that in her public appearances she is transitioning towards a more adult, alternative demographic.’ I’m confused.
Well, they’re all headed to court in November, in attempt to sort this out. BUT—Swift’s lawyers have stated that the pop star will not attend or provide evidence. I guess we’ll find out who really is “Lucky.”
How much did you Pay for Generic Drugs at CVS? There’s a potentially $65 million dollar question, which pharmacy customers of CVS Health Corporation (CVS) are looking to get answered. They filed a class action lawsuit in the United States District Court for the Northern District of California alleging that CVS employed a fraudulent scheme to overcharge millions of customers across the country for generic prescription drugs.
CVS is alleged to have implemented and maintained a false and deceptive pricing scheme affecting more than 400 generic drugs, forcing customers with health insurance to pay CVS copayments far higher than the usual and customary price CVS charged its cash-paying customers.
CVS generates approximately $67 billion in annual revenues from its retail pharmacy business, and plaintiffs allege that CVS’ wrongful overcharging is a significant percentage of those revenues.
According to the complaint, for seven years CVS has systematically been overcharging their insured consumers for prescriptions. The alleged scheme is especially harmful to those people with low or fixed incomes who use medications on a regular basis. Plaintiffs assert that the drug chain wrongfully has charged insured consumers inflated copayments on more than 400 generic medications, including some of the most commonly used drugs on the market today. According to the complaint, millions of people have been affected by this misconduct.
The plaintiffs seek to represent all consumers who were participants in third-party healthcare plans and who filled their prescriptions for certain generic drugs at CVS between November 2008 and the present, and paid more than prices available under the CVS Health Savings Pass program.
Hip Implant Defect Award for Plaintiff. A first this week—with a jury in Los Angeles awarding $9.1 million to man who received a Durum Cup hip implant made by Zimmer. The defective products lawsuit alleged that Zimmer was aware of the design defect in its hip implant and was therefore negligent in designing it. The Durom cup implant allegedly causes bone and tissue damage that may lead to pain and replacement surgeries. This is the first such lawsuit to go against Zimmer, reportedly.
The Zimmer Durom Cup was implanted in some 13,000 patients before it was removed from the US market in 2008. Fifty-nine year old Gary Kline, from California, received the defective product in 2007 only to have it removed 15 months later. According to his lawsuit, he endured two “traumatic surgeries” in 15 months that caused scar tissue and muscle damage.
Finding in the plaintiff’s favor, the jury hearing Kline’s case found Zimmer negligent in the design of the Durom Cup and that the company failed to warn about the product’s defect.
The verdict includes about $153,000 in medical bills and $9 million in past and future non-economic damages such as pain and suffering and emotional distress. Although Los Angeles County Superior Court Judge Amy Hogue had denied a request for punitive damages, Kline’s lawyer said the jury awarded $3 million more than his client had asked.
Big Automotive News this Week… Fiat Chrysler is looking at ponying up a record $105 million in fines to the US government for violating laws in a series of vehicle safety recalls. Additionally, Fiat Chrysler will have to buy back 500,000 Ram pickup trucks and other vehicles in order to take them off the roads, the National Highway Traffic Safety Administration said.
The fines were prompted by Fiat Chrysler’s failure to act quickly enough on safety recalls. The fines are the biggest of their kind in US history.
According to media reports, owners of 1.54 million recalled older model jeeps with receive payments from the automaker. The jeeps have gas tanks behind the rear axle and are vulnerable and leak gasoline if damaged during a collision. Customers can bring them to dealers to install trailer hitches to help protect the tanks. FC is not buying back the Jeeps because it maintains those vehicles are as safe as comparable vehicles built at the time.
The NHSTA’s actions come less than a month after it held a public hearing into problems with 23 Fiat Chrysler recalls which affect over 11 million cars and trucks. At the hearing, NHTSA cited a long list of serious shortfalls, specifically, failure to notify customers of recalls; delays in making and distributing repair parts; and, in some cases, failing to come up with repairs that fix the problems. Some of the recalls date to 2013.
Ok – That’s a wrap folks…See you at the Bar folks!
How many times have you answered your phone only to find out that someone has ‘pocket dialed’ you by accident. Suddenly you find yourself privy to a conversation that really is none of your business…but you listen because…heh—you’re human! And you’re wondering the whole time, “could I go to jail for this?” Ok, not really, but you clearly feel like you’re eavesdropping…
Well, the law’s a funny thing, at the risk of stating the obvious. Take the recent case of an executive, one James Huff, who accidentally called his assistant and for the next 90 minutes not only did she listen to the call, she took notes. When Huff found out he sued her but the law ruled in her favor…finding that Huff did know how to prevent this kind of thing from happening and therefore had no expectation of privacy. What? Seriously?
Ok, the backstory, short version—well, shortish—in October 2013, Huff traveled to Bologna, Italy for a work conference along with his wife Bertha, and a colleague. At the time, Huff was chairman of a local board that oversees the Cincinnati/Northern Kentucky International Airport (CVG). At some point on their trip the two men went out onto a hotel balcony to discuss work-related issues and personnel matters. Huff calls his executive assistant Carol Spaw, on her cellphone, to ask her to make dinner reservations. (Wouldn’t an email have been a better idea—on a number of fronts?) The call didn’t go through so Huff calls Spaw on her office phone. All good there. BUT—a few moments later Spaw’s cell phone goes off and low and behold it’s Huff’s phone, which redialed the number and got through. That call was 91 minutes, and Huff was not aware of it—at all.
Spaw listened to the entire conversation (not a busy day I’m guessing) Huff was having with his colleague. Oh—BTW—Spaw realized her boss had no idea he’d redialed her and the call had gone through. Her interest got piqued when she heard the two men discussing the possible replacement of Spaw’s boss. Oh great.
Spaw believed that the conversation illustrated the two men’s attempt to unlawfully discriminate against her boss, and she felt that it was her duty to take handwritten notes of the call. She instructed another colleague to do the same. Wow.
About 70 minutes later the balcony meeting between the two men ended and Huff, still blissfully unaware that his cell phone is broadcasting his every word and deed, goes back to his hotel room and has a conversation with his wife. (Thank god that’s all they had). Huff and his wife discussed the conversation Huff had just had with his colleague and some personal matters as well. Spaw—still on other end back in Kentucky, managed to record the last four minutes of the conversation on an iPhone that was brought to her. She then shared the notes and the recording with other board members. Oh holy sh*tty sh*t sh*t!
Now, I would have thought that Spaw had violated the law but apparently not. Cut to a couple of months down the road and the proverbial sh*t hits the fan back in Kentucky. The Huffs sued Spaw for unlawfully intentionally intercepting the call and disclosing those interceptions, an alleged breach of the 1968 wiretap law known as “Title III.”
Are you sitting down? Spaw won summary judgment in January 2014. Predictably, the Huffs appealed. The District Court in Kentucky found that the Huffs did not have a reasonable expectation of privacy in that circumstance.
The court found that Huff could not sue Spaw for violating a federal wiretap law, largely due to the fact that he was aware of steps that he could have taken to prevent a pocket dial, such as locking the phone, which he failed to do.
“James Huff did not employ any of these measures,” the court concluded. “He is no different from the person who exposes in-home activities by leaving drapes open or a webcam on and therefore has not exhibited an expectation of privacy.” That seems a little far-fetched to me.
Interestingly, the Sixth Circuit overturned the portion of the suit pertaining specifically to Bertha Huff.
“Because Bertha Huff made statements in the privacy of her hotel room, was not responsible for exposing those statements to an outside audience, and was (until perhaps the final two minutes) unaware of the exposure, she exhibited an expectation of privacy,” the judges found.
The appellate court agreed with the portion of the lawsuit pertaining to James Huff (dismissing it), but it reversed the lower court’s decision and sent back Bertha Huff’s portion for review.
The experts are concerned about this ruling, specifically about the role technology will play in civil liberties violations going forward, and how much onus is placed on the individual to protect their rights to privacy.
Regardless, the bottom line is Huff could have taken less than a minute to lock his phone and the whole thing would never have happened. While technology is changing our lives, we haven’t changed with it and human nature is—well—predictable—most people would probably listen in.
As for the Huffs pursuing any further action, their attorney, Aaron VanderLaan, wrote: “We have not made a final decision as to seek further review by an en banc panel of the Sixth Circuit, and we are not aware of whether Ms. Spaw will seek further review.”
Now, where’s that lock function on my phone…
Priceline’s “Name Your Own Price” …may be rebranded as “Name Your Own Settlement” if this goes to court. The internet-based hotel booking company is facing a proposed consumer fraud class action lawsuit alleging it conceals known, mandatory resort fees from “Name Your Own Price” bidders, misleading thousands of customers about the actual price of their bookings. Something to do with hidden resort fees—ringing any bells folks?
Filed in in Connecticut federal court by lead plaintiff Adam Singer, the Priceline lawsuit contends that travelers who use Priceline’s “Name Your Own Price” feature to bid on hotel rooms, end up paying undisclosed fees to Hilton and other hotels on top of what they offered.
“This conduct renders the ‘Name Your Own Price’ option illegal and deceptive,” the complaint states. “Due to defendant’s conduct, a consumer is not ‘naming his own price’ for a hotel stay at all.”
In the complaint, Singer states he used the “Name Your Own Price” option to find a hotel in Puerto Rico within his budget. Priceline matched him with a Hilton property and presented with a contract, which quoted his offer price plus $60.68 in taxes and fees, which he accepted.
However, the Priceline lawsuit contends that when Singer went to check out of the property, the hotel had added $66 in mandatory resort fees in addition to the price he had agreed to pay through Priceline, prior to his stay. The lawsuit alleges that Singer was not informed in advance of those fees as Priceline didn’t adequately inform him that any resort fees would be included in the total price for his accommodation.
“Priceline could easily have programmed its Name Your Own Price bidding system to account for resort fees which it knew full well would be charged and thus match consumers only with hotels truly willing to accept their bid amounts,” the lawsuit states. “Instead, it affirmatively chose to delete resort fees from ‘total’ ‘taxes and service fees,’ in order to make it appear to consumers that they were getting a better deal than they truly were.”
The lawsuit further claims that Hilton benefits from Priceline’s deception because it charge guests, after the fact, more than they would knowingly consent to pay.
“By the plain terms of the Priceline.com booking contract, Hilton had no right to charge mandatory resort fees on that booking,” the complaint states. “By recovering an additional, baseless fee in the form of the resort fee, defendants are able to reduce its advertised room rates by the amount of the resort fee without any negative impact when price-conscious consumers compare rates across hotels.”
Singer is seeking to represent a class of Priceline “Name Your Own Price” customers allegedly misled by the booking site’s silence on resort fees and a subclass of consumers who booked Hilton stays that cost more than expected for that reason.
The case is Singer v. The Priceline Group Inc. et al., case number 3:15-cv-1090, in the U.S. District Court for the District of Connecticut.
They’re Baaaack...Here’s one for the record books, apparently, and likely in more ways than one.
A $388 million settlement has been agreed between JPMorgan Chase and a group of investors who alleged the bank misled them regarding the level of risk associated with certain investments. Specifically, the securities lawsuit refers to $10 billion worth of residential mortgage-backed securities (MBS) sold by JP Morgan Chase before the financial crisis of 2008. Remember those?
The lawsuit was brought on behalf of investors and two pension funds, namely Laborers Pension Trust Fund for Northern California and Construction Laborers Pension Trust for Southern California. In the lawsuit, they alleged the values of their investments were severely impacted by the losses incurred on the mortgage bonds during the financial crisis. (Whose investments weren’t impacted by MBS fraud?)
According to a statement issued by JP Morgan Chase, this settlement represents, on a percentage basis, “the largest recovery ever achieved in an MBS purchaser class action.” And that’s something they’re proud of?
Foot Locker Gets Clocked. Here’s a long-deserved bit of good news for Foot Locker employees. Final approval of a $7.1 million settlement has been granted, ending a long-running wage and hour class action against Foot Locker Inc. The lawsuit, brought by Foot Locker workers, alleged the retail shoe chain violated the Fair Labor Standards Act (FLSA).
Specifically, the plaintiffs alleged that Foot Locker workers were not compensated for maintenance work and time spent working before opening and after closing. Further, the lawsuit claimed that company employees were forced to do work off-the-clock or have their paid time cut in order to complete their tasks.
According to the allegations, Foot Locker directly tied the compensation of its store managers to its labor budget set by the corporate office, in order to enforce the compensation policy. If the managers exceeded the budget, they were punished, according to the original complaint filed in 2007 by named plaintiff Francisco Pereira.
The nationwide FLSA class includes all current and former Foot Locker employees who worked at least one hour from March 2007 to March 2010 in the US as a retail employee but not as an assistant store manager or higher. A separate Illinois class includes any retail employee excluding assistant store managers and above who worked in the state from October 2005 to May 2011.
The case is In Re: Foot Locker Inc. Fair Labor Standards Act (FLSA) and Wage and Hour Litigation, case number 2:11-md-02235, in the U.S. District Court for the Eastern District of Pennsylvania.
Ok – That’s a wrap folks…See you at the Bar!
A family affair, and a tragic one at that, is keeping the Fischler family attorneys busy. One murder, one suicide and two lawsuits, if I’ve got it right. The whole mess reads like a Greek tragedy. In fact, Daniel Gotlin, defense attorney for Jonathan Schwartz, the oldest son and alleged murderer of philanthropist Barbara Weiden Schwartz told the press, “This is a family tragedy.” That’s putting it mildly, I think.
The public saga began in 2011, when Barbara Weiden Schwartz Fischler was allegedly stabbed to death with a kitchen knife by Jonathan, who happens to be schizophrenic. Shortly thereafter, Schwartz–Fischler’s second husband (that would be Fischler) almost obliterated her $5.8 million estate on risky short-sales (is there such a thing as a safe short sale?) Then, a little while later, her second son committed suicide.
Recently, Jonathan was recommitted to the Department of Health and Mental Hygiene after results from his psychological testing showed he is not well enough to stand trial for the murder of his mother. “He has a history of psychological illness,” said Gotlin. In March, the 44-year old son was sentenced to an upstate psychiatric hospital after a jury found him “not criminally responsible by reason of mental disease” for the murder.
According to media reports, mother and son got into a row over her smoking habit. (Usually that’s the other way around). Out came the kitchen knife, which Jonathan apparently used to repeatedly stab his mother.
Now, Jonathan’s father, Steven Schwartz, is suing his son, The New York Post reports. Schwartz, who divorced Fischler years ago, is also suing on behalf of the second, deceased son, Kenneth Schwartz, who committed suicide in 2013 after learning that his stepfather, Burton Fischler, had nearly wiped them off the financial map. FYI—Barbara was the daughter of Norman Weiden, a financial guru who ran a charity which his daughter took over after his death.
Still with me?
By 2013, only about $700,000 was left in Barbara’s estate. Looks like somebody else made a killing here.
Last year, the management of Barbara’s estate was removed from the care of 63-year old Burton M. Fischler to husband number one. Steven Schwartz is a retired Merrill Lynch executive so one may hope he knows better. If all goes according to plan, the civil suit will provide Steven Schwartz with the younger son’s share of whatever money he may be awarded in his lawsuit against son number one.
Kenneth Schwartz committed suicide at 39, beside himself over his potential financial situation and grief, presumably. “For the last decade of her life, my mother generously paid all my bills and was my sole source of financial support, so much so that I rarely received mail at my own apartment,” he stated in his lawsuit against his stepfather.
“Believing that I would probably inherit a few million dollars from my mother, reassured me that in the midst of the tragedy, I would at least have enough money to live on,” he stated in the suit.
In January 2013, about six months after learning that he could no longer count on his mother’s support, Kenneth killed himself. “I had lost both my brother and my mother to an act of unspeakable violence that I will never understand,” Kenneth wrote to the court six months before he committed suicide.
Adding to all this misery is the fact that Barbara was “almost completely housebound and largely bedridden with many health problems, including battles against addiction to the many painkillers she was prescribed for her medical problems,” according to Kenneth’s lawsuit.
Prior to killing his mother, Jonathan lived down the hall in the family’s luxury apartment. According to his brother, he was a total recluse, remaining locked in his room even when Kenneth came to visit.
The stepfather also had his problems. “Burt worked as a wealth management advisor, had been married twice before, and had relatively few financial resources of his own,” Kenneth stated. His stepfather approached Kenneth just days after Barbara’s death, asking him to relinquish control of his mother’s estate, which, against his better judgement and his deceased mother’s wishes, he did. Now the picture gets a little clearer. Barbara had signed a post-nuptial agreement with Burton that prevented him from overseeing her finances after her death.
According to court documents, Burton claimed that his wife “wanted to take higher than average risk” and said he was playing the market with a “long-term strategy.” And now there’s no one left to disprove that.
Ah but for the best laid plans of mice and men, and for the attorneys who must make sense of it all.