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!
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!
Birchbox not a Beautiful Thing? Ah, no—you can’t automatically send me stuff and charge me for it without telling me first….According to an unfair business practices class action lawsuit filed against high end cosmetics retailer Birchbox Inc, that’s exactly what the company has been going on. Birchbox, an online subscription-based cosmetics seller that allows customers to sign up for monthly boxes of cosmetic samples based on their preferences. According to the lawsuit, the company is in violation of California state business laws because it fails to disclose to its users that their shipments automatically renew.
Tiffany Lapuebla, the plaintiff who filed the Birchbox class action, purchased a subscription to Birchbox in January 2013. According to the suit, Birchbox failed to show Lapuebla the renewal terms clearly. They charged Lapuebla’s credit card without getting her affirmative consent to the automatic renewal terms and failed to give information about how to cancel the service. The lawsuit also claims there is no disclosure in Birchbox’s acknowledgment for free trials about how to cancel before getting charged for the recurring subscription.
Lapuebla is also accusing Birchbox of violating the state’s unfair competition statute based on the name of the subscription in her shopping cart: “Women’s Rebillable Monthly Subscription.”
The proposed class includes any Birchbox subscribers since 2011 and seeks unspecified damages.
The Long Road to Justice—this is amazing! An $11 million verdict was handed down to the plaintiffs in a Toyota sudden acceleration personal injury lawsuit resulting from a defect in a 1996 Camry. The jury ruled that the defect contributed to an accident which left three people dead and two seriously injured.
While the jury found that the Camry’s driver, Koua Fong Lee, was 40% responsible for the crash, they cited Toyota as being 60 percent responsible. In the 2006 crash Lee rear-ended an Oldsmobile after exiting a highway. The driver of the Oldsmobile, Javis Trice-Adams Sr., and his son were instantly killed. His niece, also in the Oldsmobile, became a quadriplegic as a result of the crash and died 18 months later. Trice-Adams’ father and daughter were also injured.
The jury awarded both families a combined $11.4 million, though due to Lee’s partial responsibility, his $1.25 million award will be reduced to $750,000, according to his lawyers.
This is incredible—in 2008, Lee was convicted of negligent homicide and sentenced to eight years in prison. However, his conviction was overturned after Toyota’s recalls of later-model cars for acceleration defects, tied to floor mats and pedals, brought new attention to the case. Lee had claimed that the Camry started to accelerate by itself and that the car didn’t respond when he hit the brakes. Prosecutors declined to re-charge Lee, who served more than two years in prison.
In 2010, the Trice-Adams family sued Toyota claiming a defect in the Camry caused it to suddenly accelerate. Lee and his family intervened as plaintiffs later that year. The plaintiffs argued the accelerator got stuck in a “near wide-open position,” calling other Camry owners to testify at trial that they experienced similar problems.
It’s all very hush hush…but a potential settlement has been reached in a discrimination class action lawsuit facing Bayer Corp. Brought by former and current employees, the $100 million lawsuit alleges Bayer Corp. and four other Bayer HealthCare entities engaged in systematic discrimination against female employees.
The Bayer discrimination deal, if approved, could end the three year legal battle. The plaintiffs have agreed to dismiss the suit with prejudice in a short stipulation filed in New Jersey federal court on Friday, though the terms of the deal were not disclosed.
The class action, originally filed in 2011, claimed that male employees greatly outnumber female employees in management positions at Bayer, and discrimination regarding pay, promotion and pregnancy bias claims.
Hokee Dokee- That’s a wrap folks…Time to adjourn for the week. See you at the bar!
Taxing Trip to Wal-mart? Wal-Mart’s made our list this week—this time it’s a breach of contract class action, alleging the discount retailer shortchanged customers over four years with respect to sales tax, is seeking certification. The lawsuit claims Wal-Mart defrauded its customers by as much as $9 million.
Filed in 2014, the Wal-Mart complaint specifically alleges that the retailer incorrectly applied lower sales tax rates to consumer returns. Plaintiffs are contending that Wal-Mart violated the terms of its sales agreement by refunding its customers less than the purchase price.
The lawsuit claims that an analysis done by Wal-Mart showed that there were nearly 20 million returns to stores with lower sales tax rates from 2007-09. During that time, the retailer used a flawed formula to recalculate how much customers spent, based on the sales tax of the store where the return was processed. The complaint alleges that Wal-Mart should have looked up how much customers paid for the items in the stores where they were purchased.
“Because the plaintiffs’ claims meet the requirements of Rule 23, and the representatives class counsel demonstrated the capacity to adequately represent the class, the court should certify the class and appoint the attorneys as class counsel,” plaintiffs Shaun Brandewie and John Newbrough state in the motion for certification. Both plaintiffs made several purchases at Wal-Mart, returned them to other locations, and were not refunded their full return. All of the discrepancies described in the complaint are for less than $1.
According to the motion for certification, the class is readily discernable because it includes anybody who purchased an item at Wal-Mart and was refunded an amount less than what they paid. Wal-Mart tracks sales and return data such that the amounts paid for items and the amounts refunded are easily ascertainable, the motion said. Hey—every penny adds up…
Defend this, Conesys… Conesys Inc, an aerospace and defense electronics parts manufacturer, is facing a potential unpaid wages and overtime class action lawsuit filed by employees who allege the company fails to pay them overtime or compensate them for meal and rest breaks.
Filed in California state court, on behalf of plaintiff Rafael A. Lozano, a machine operator at AEC, the Conesys lawsuit claims that for at least four years had a “consistent” policy of failing to pay all wages owing to their California-based employees, as well as failing to provide meal and rest breaks required under California labor law.
“As a result of the defendants’ unlawful conduct, plaintiffs and other members of the…class have suffered damages in an amount subject to proof, to the extent that they were not paid for all wages earned,” the lawsuit states.
Torrance, California-based Conesys, based in Torrence, CA, has over 1,000 workers worldwide, including several facilities located in Torrance. The lawsuit alleges that in California, the company unevenly rounds out the amount of time employees’ work, which denies them compensation for any time worked beyond that of eight hours per day or 40 hours per week.
Additionally, the lawsuit states that Conesys’ corporate practice of rounding out hours worked has resulted in its employees being issued with inaccurate wage statements, and, in some cases, being effectively paid below minimum wage.
Further, the complaint also states that Conesys failed to provide the necessary breaks, which in California requires employers to provide a short, paid rest break for shifts of at least four hours, and at least one uninterrupted 30-minute meal break when employees work a shift of more than five hours, and two, if the shift runs for longer than 10 hours.
The plaintiff is asking for compensation for missed pay for himself and other employees allegedly shortchanged by Conesys going back up to four years, as well as penalties against the company and “reasonable” attorneys’ fees and costs.
The case is Lozano et al. v. Conesys Inc. et al., case number BC570320, in the Superior Court of the State of California, County of Los Angeles.
Here’s a Happy Ending. The fast food chain Wendy’s has reached a proposed settlement in a pending discrimination class action lawsuit. The complaint maintains that Wendy’s Pittsburgh-area restaurants have architectural barriers that limit access to wheelchair-bound individuals, a violation of the Americans with Disabilities Act (ADA).
Plaintiff Christopher Mielo and Wendy’s reportedly reached the settlement on January 26th. Meilo, a mobility disabled man who regularly used a wheelchair to get around, filed the lawsuit in 2014, alleging that within the Pittsburgh area 17 Wendy’s restaurants had excessively sloped parking spaces and access aisles, accessibility barriers that make it difficult for wheelchair users to access the restaurant’s facilities independently. According to the lawsuit, these accessibility barriers are a violation of the ADA.
The lawsuit states, “The architectural barriers described above demonstrate that defendant’s facilities were not altered, designed or constructed in a manner that causes them to be readily accessible to and usable by individuals who use wheelchairs.”
Under the terms of the settlement, Wendy’s would be required to remove the alleged architectural barriers in order to come into compliance with ADA standards and requirements. More specific terms have not been made public.
The Wendy’s Wheelchair Access Class Action Lawsuit is Christopher Mielo v. Wendy’s Old Fashioned Hamburgers of New York Inc., Case No. 2:14-cv-00893, in the U.S. District Court for the Western District of Pennsylvania.
Hokee Dokee—That’s a wrap folks…Time to adjourn for the week. See you at the Bar!
Just how friendly are United’s friendly skies? Not very according to a potential consumer fraud consumer fraud class action lawsuit filed against United Airlines Inc. in Texas federal court this week. The lawsuit claims the airline routinely violates its website’s “low fare guarantee” when passengers buy multiple tickets on a flight at the same time.
Filed by plaintiff Scott Coulier, the lawsuit claims that if a customer attempts to purchase several tickets at the same time, but only a few seats are available at a relatively low price, United.com will offer all the tickets at a higher price instead of letting users buy the outstanding cheaper tickets and as many higher priced tickets as necessary.
According to the United Airlines lawsuit, there is no disclosure by United that its ticketing system sells multiple tickets at the same time only if they have the same price. Further, the lawsuit claims the airline deletes the lower priced tickets it skips overs. According to the complaint, the deletion is key, as United’s guarantee will only refund customers if the airline’s employees can find the lower priced fares after the transaction.
“The result of this systematic policy is the lower fare class tickets which actually exist at the time of purchase are not disclosed to the consumer and are systematically bypassed at the point of purchase in favor of higher fare class ticket,” the lawsuit states.
United’s guarantee states that if customers can find lower fares for the same flight, itinerary and cabin after they purchase a ticket through United.com, the airline will refund the difference and hand out a $100 credit if the difference is $10 or more. However, according to the complaint, the terms do not properly define “itinerary” and are impossible to satisfy because United does not allow customers to use screenshots taken before their purchase to prove there were less expensive options.
In the lawsuit, Coulier claims he bought three tickets on United, from Peoria, Illinois, to Orlando Florida, for his family for $182 per seat. However, he believes he could have paid less if he bought the tickets individually. He alleged United’s policies artificially restrict low class fares when bought together.
“Defendant engages in this deceptive and unfair practice as a way to profiteer from unsuspecting consumers, such that plaintiff and the putative class paid more than the lowest available price for the same tickets,” the lawsuit states. “Such conduct is a bait-and-switch sales practice.”
The case is Scott Coulier v. United Airlines Inc., case number 4:15-cv-00190, in the U.S. District Court for the Southern District of Texas.
Wet Seal got slapped… with an employment class action lawsuit this week, alleging violations of the Worker Adjustment and Retraining Notification (WARN) Act by two employees who claim they and got soaked in the recent business closure.
Short version—the Wet Seal lawsuit, filed on behalf of some 3,700 employees, claims that the clothing retailer has violated California and federal labor laws by keeping their employees ignorant of the company’s financial struggles and impending closure. Wet Seal announced last week that it will file for bankruptcy.
The named plaintiffs, Katelin Pruitt, an employee in a store in North Carolina, and Lalaine Ortega, who worked in Georgia, allege the company failed to tell them about its precarious financial situation.
“Despite strong evidence that Wet Seal was in steep decline, it continued to keep its employees uninformed right up until they abruptly fired 3,695 of their employees,” the lawsuit states. The lawsuit seeks to represent a class of former Wet Seal employees who lost their jobs as a result of the layoffs the company announced January 7, 2015. According to the complaint, the class is seeking 60 days pay and benefits for class members.
FYI—the case is Katelin Pruitt et al. v. The Wet Seal Inc., case number 2:15-cv-00312, in the U.S. District Court for the Central District of California.
eBay reached a $6.4 million settlement agreement this week, potentially ending an unfair business practices class action brought against online retailer on behalf of approximately 1.2 million eBay account holders, although the number of actual users represented by those accounts was unclear as one person could have multiple accounts. They alleged they were charged hidden and recurring listing fees to sell their goods through the online auction site.
Under the terms of the proposed agreement, eBay would pay class members $4.5 million with the remainder going on legal and administration fees. The payments to class members would be made as an automatic credit to their accounts.
The lawsuit was filed by plaintiff Richard Noll in September 2011, alleging eBay suggested that the Good ‘Til Canceled listings, which automatically renew every 30 days until the seller cancels the listing or the item is sold, came “at no extra cost” when fees were actually charged on a monthly basis.
A second suit was filed by Rhythm Motor Sports LLC nearly a year later, and the cases were eventually consolidated. The allegations included breach of contract, unfair competition, false advertising, violation of the Consumer Legal Remedies Act, unjust enrichment and fraud.
Hokee Dokee—That’s a wrap folks…Time to adjourn for the week. See you at the Bar!