Abercrummy & Fitch…This week’s wage and hour class action involves Abercrombie & Fitch—no stranger to employment lawsuits—over allegations of violations of California labor law and state and federal overtime law. The lawsuit claims the clothing retailer misclassifies its sales and stockroom associates as exempt from overtime wages even though they regularly work more than 40 hours in a week and are often “on call” during other shifts. You’d think they’d know the drill on this stuff by now…
The lawsuit alleges hourly workers at the company’s Abercrombie & Fitch and Hollister stores often work overtime hours and are scheduled for certain “call-in” shifts, during which the employees are required to call the store an hour before a shift begins to see if the stores need them to work. The employees must keep the call-in hours open but are not compensated if the stores don’t need them to report for work.
Filed by lead plaintiff Samantha Jones, the complaint states she was employed by the national clothing retailer from December 2005 through to January 2014 in its namesake Hollister stores. She was employed as a brand representative, model, a term used to refer to hourly associates on the sales floor and impact team member, an hourly associate working in the back of the store and eventually was promoted to a manager position.
Jones alleges that she was classified as a non-exempt employee during the entire period of her employment with the defendant that she was paid on an hourly basis and entitled to overtime wage. However, the defendant has a “uniform policy and practice” of failing to compensate employees for all hours worked.
Jones further claims that Abercrombie failed to keep accurate records and pay Jones and the putative class members for their hours worked, including failing to record on-call hours and the overtime hours generated by the on-call shifts.
Specifically, the complaint states: “Defendants, as a matter of corporate policy, practice and procedure, intentionally, knowingly and systematically failed to compensate plaintiff and the class members for all hours worked (for on-call time), and undercompensated them for overtime worked that should have been paid at overtime rates had the on-call time been paid for.”
The lawsuit seeks to represent a nationwide Fair Labor Standards Act class, a California class and a California subclass, composed of individuals who were classified as nonexempt, paid on an hourly basis and scheduled for call-in shifts.
The suit is Jones v. Abercrombie & Fitch Trading Company, case number 3:14-cv-04631, in the U.S. District Court for the Northern District of California.
Verizon to Pay Unpaid Overtime—to the tune of $15 million, according to a settlement agreement reached this week. The agreement will end a wage and hour class action lawsuit brought against Verizon California Inc alleging violations of California labor law. Specifically, the plaintiffs claimed Verizon issued inaccurate wage statements that omitted crucial information making it impossible for the workers to determine whether they had been paid properly.
In addition to approving the Verizon settlement motion, Judge Mitchell L. Beckloff certified the proposed settlement class, which consists of employees paid biweekly in California who received itemized income statements from Verizon between April 1, 2009 and May 2011.
Filed by former Verizon field technician Hector Banda in April 2010, the lawsuit alleges Verizon violated the California Labor Code and the code’s Private Attorney General Act by not listing the pay period beginning date, applicable hourly rates and number of hours worked at each rate on the wage statements it issued to employees. A similar complaint was filed by Scott Cerkoney three months after the first lawsuit and the cases were subsequently consolidated in 2011.
According to the complaint, Verizon allegedly issued some 223,000 wage statements to its 6,800 employees during the class period.
The cases are Hector Banda et al. v. Verizon California Inc. et al., case number BC434587, and Scott Cerkoney et al. v. Verizon California Inc. et al., case number BC442358, both in the Superior Court of the State of California, County of Los Angeles.
And CVS Caremark, too! Yet another California labor law and unpaid overtime class action settlement to report this week—this one a final $2.8 million settlement for CVS Caremark pharmacists, who alleged violations of California labor law. A California judge approved the settlement of class claims that the pharmacy chain improperly forced hundreds of Southern California pharmacists to work seven days straight without overtime. This is the first settlement of six such lawsuits pending against the retailer alleging unpaid overtime.
The CVS Caremark settlement will provide damages to 627 CVS pharmacists who are or were employed in CVS’ “Region 72,” the Southern California area that is one of CVS’ six regions in that state. The settlement represents roughly 70 percent of plaintiffs’ estimation of CVS’ total potential liability.
Named plaintiff Connie Meneses filed suit in August 2012, alleging CVS was improperly forcing its pharmacists to work seven days in a row without paying overtime for the seventh, in violation of a state law that mandates pharmacists be given a day off after six days of work.
The case is Connie Meneses et al. v. CVS Pharmacy Inc. et al., case number BC489739, in the Superior Court of the State of California, County of Los Angeles.
Hokee Dokee—Time to adjourn for the week. Have a fab weekend—See you at the bar!
It’s getting hard to stay on top of the number of defective automotive lawsuits, and math was never my strong suit…but suffice to say there are many. Added to the list this week is a putative class action filed against Mazda Motor Company, alleging the automaker hid knowledge that Mazda 3 and Mazda 6 vehicle models have defective dashboards that melt when exposed to sunlight and subsequently give off a chemical odor and become reflective, posing a risk of temporary blindness in drivers. Talk about a one-two punch. Like I said, math is not my forte but even the most basic understanding indicates that selling a product that can injure or kill your customers can’t add up to good business.
According to the lawsuit: “Mazda’s conduct violates multiple state consumer protection statutes. On behalf of themselves and the proposed classes, plaintiffs seek to compel Mazda to warn drivers about the known defect and to bear the expense of replacing dashboards that Mazda should never have placed in the stream of commerce in the first place.”
Filed in California federal court by lead plaintiffs Danielle Stedman, Jody Soto and Gary Soto, the lawsuit claims Mazda refuses to cover repair costs for the melting dashboards in their vehicles because their cars were no longer under warranty. However, the allege that had they known about the defect prior to purchasing their vehicles, they would not have bought those cars in the first place. The consumers say the automaker failed to properly inform them about the defect.
The plaintiffs claim Mazda knew or should have known when it sold the defective vehicles that the dashboards would deteriorate when exposed to sunlight and “predictably high” summertime temperatures, presenting unsafe condition for drivers.
Like all other automobile manufacturers, Mazda has known “for decades” that dashboard reflections can impair drivers’ visions and make it difficult for them to see pedestrians or objects on the road, according to the suit. The information has been even been readily available through research published by the University of Michigan in 1996, the lawsuit states.
The complaint further claims that Mazda has had “extensive experience” working with the materials used in the dashboards and has personnel who specifically evaluate the durability of new vehicle parts, the company knew or should have known about the defect.
“Mazda thus had exclusive and superior knowledge of the dashboard defect and actively concealed the defect and corresponding danger from consumers who had no way to reasonably discover the problem before buying and driving their vehicles,” the complaint states.
The lawsuit seeks certification of a nationwide class of all people who owned or leased one of the defective vehicles, in addition to a separate Florida class of vehicle owners and lessors.
The suit is Stedman et al v. Mazda Motor Corporation et al, case number 8:14-cv-01608, in the U.S. District Court for the Central District of California.
And here’s a little more light reading…Toyota also got hit with a defective automotive class action lawsuit this week, filed by an Arkansas man, alleging its 2005-2009 Tacoma trucks are prone to experiencing excessive rust corrosion. Specifically, the lawsuit claims that the trucks were made with frames that are inadequately protected from rust corrosion, consequently, the frames corrode from rust, rendering the vehicles unstable and unsafe to drive. Refer to Math 101 at the top of the article.
The vehicles that experience excessive rust corrosion are essentially worthless, according to the complaint (U.S. District Court for the Western District of Arkansas case number: 1:14-cv-02208.) Lead plaintiff, Ryan Burns, alleges Toyota has, for quite some time, been aware of the alleged defect in the Tacoma vehicles’ frames, and despite this knowledge, has failed to disclose the existence of the defect to him and other class members at the time of sale, has not issued a recall to inspect and repair the vehicles and has not offered to reimburse owners for costs incurred to identify and repair the defect.
The lawsuit contends that earlier this year, Burns took his Tacoma in for service because the fan on the vehicle was coming into contact with the fan shroud. “Shortly thereafter, plaintiff was informed that the frame on his Tacoma vehicle was rusted out and that the vehicle was unsafe to drive,” the complaint states.
Burns alleges he was advised that the frame on his 2005 Tacoma had severely rusted and that it would cost approximately $10,000 to repair. “In… March 2008, after receiving numerous complaints that frames on approximately 813,000 model year 1995 to 2000 Tacoma vehicles had exhibited excessive rust corrosion, Toyota USA initiated a customer support program extending warranty coverage on the vehicles’ frames for frame perforation caused by rust corrosion,” the complaint states. “The program extended warranty coverage on concerned vehicles to 15 years with no mileage limitations.”
Allegedly, the terms of the program are that once confirmation of perforation of the frame due to rust corrosion has been determined, Toyota would either repair or repurchase the vehicle. Burns claims Toyota subsequently altered the customer support program to include 2001-2004 Tacoma models, with the exception that there was no buy-back option.
“In November 2012, Toyota USA recalled approximately 150,000 Tacoma vehicles to inspect and replace the spare-tire carrier on vehicles sold in 20 cold weather states,” the complaint states. “The recall was issued to prevent the spare-tire carrier from rusting through and resulting in the spare tire dropping to the ground.”
The lawsuit contends Toyota violated the Arkansas Deceptive Trade Practices Act and breached its express and implied warranty under Magnuson-Moss Warranty Act. “Toyota USA knew, or should have known, that the frames on…Toyota vehicles were not coated with adequate rust corrosion treatment,” the complaint states. Consequently, Toyota has been unjustly enriched at the cost of class members whose vehicles were damaged, according to the lawsuit. You think?
Burns is seeking class certification, compensatory damages, an order requiring Toyota to repair or replace the frames on the Tacoma vehicles and pre- and post-judgment interest.
I’m not a fully paid up member of the Cycling Taliban, but seriously, these recalls are almost enough to get me back in the saddle.
Ah—One Ringy-Dingy…that will be $45 million please. Oh yes—AT&T is busted. They have agreed to a settlement in a Telephone Consumer Protection Act (TCPA) class action alleging the company violated the TCPA by placing calls using an automatic telephone dialing system and/or an artificial or prerecorded voice message to cellular telephone numbers without the prior express consent of the call recipients. Phew..that was a mouthful. Like the automated telephone calls themselves…
The lawsuit is led by plaintiff Joel Hagerman. Hagerman brought the suit in April 2013, (U.S. District Court for the District of Montana case number: 1:13-cv-00050). According to the terms of the settlement, the size of the per-call payment shall be determined on a pro rata basis of up to $500 per call, after the attorneys fees and costs, any incentive award to named plaintiff and any settlement administration costs are deducted from the settlement fund and the settlement administrator reviews all claim forms to determine a final number of claimants.
Specifically, the settlement states: “A class member shall receive payment for each call he or she received from [AT&T] or from an OCA acting on behalf of [AT&T] during the class period by submitting a short claim form.”
No more info than that at the moment—so stay tuned.
In the meantime…Time to adjourn for the week. Have a fab weekend–and HappyThanksgiving to all you Canucks out there. See you at the bar!
You Knew this was Coming… Home Depot got hit with a federal data breach class action lawsuit filed on behalf of all customers nationwide whose personal information was compromised as a result of the data breach announced in September 2014.
The Home Depot lawsuit alleges that Home Depot failed to take reasonable security measures to adequately protect its customers’ personal data. It also asserts that Home Depot failed to disclose the data breach in a timely manner to its customers. Well, sadly they are not the first to face these charges, and likely they won’t be the last.
In an official statement on September 18, 2014, Home Depot stated that an estimated 56 million credit and debit cards were exposed during a five-month-long attack on its payment terminals. That is a staggering number. As reported by the New York Times on September 19, 2014, in “Ex-Employees Left Home Depot Data Vulnerable,” former employees of Home Depot who have asked to remain anonymous have alleged that the retailer’s network was protected with outdated software, and that some cyber security team members left after managers allegedly dismissed their concerns. In the same article, the New York Times also stated that the breach may result in up to $3 billion in fraudulent charges.
The Home Depot data breach class action lawsuit is entitled Earls v. The Home Depot Inc., No. 3:14-cv-4315, and is currently pending in U.S. District Court for the Northern District of California.
Mesh Mess gets Settlement… Endo made headlines this week after announcing it has reached a settlement agreement that reportedly will resolve most outstanding American Medical Systems (AMS ) transvaginal mesh lawsuits. The medical device manufacturer has agreed to pay more than $400 million to resolve the lawsuits, which claim the AMS vaginal-mesh implants eroded in some women and left them in pain. So far, no details have been released on the settlement.
What we do know so far is that the master settlement will resolve more than 10,000 outstanding AMS lawsuits in the US at an average of about $48,000 apiece, Bloomberg reports. AMS expects to fund the payments under all settlements in 2014, 2015, 2016 and 2017.
Sources close to the Endo settlement stated that some 5,000 AMS vaginal mesh lawsuits remain outstanding. Stay tuned.
Lenovo Wifi not Working? Hey—there’s a Settlement for that. In fact, there was a consumer fraud class action lawsuit filed against Lenovo that alleged the company knowingly sold Ultrabook computers with a design defect that impacted WiFi reception and accessing speeds.
Specifically, the lawsuit alleged that Lenovo marketed and sold defective Ideapad and “U Series” as being “ideal for any and all mobile needs.” The complaint alleged that in so doing Lenovo violated the California Consumer Legal Remedies Act, the California Unfair Competition Law and that the company breached express and implied warranties to the purchasers of the Ultrabook computers.
For complete information on the Lenovo Ultrabook class action settlement visit: https://www.lenovolaptopwifisettlement.com
Ok—Folks—time to adjourn for the week. Have a fab weekend—see you at the bar!
Hmm, has Fumizer been Smokin’ Something? Consumers are fuming over false advertising claims made by a manufacturer of e-cigarettes—so much so they’ve filed a consumer fraud class action lawsuit. Filed by a smoker, not surprising there, the lawsuit accused Fumizer of falsely claiming its vaporizers could help users quit smoking or lead to “healthy smoking” (healthy smoking?—that is an oxymoron—not to mention the visual is totally counter-intuitive).
The e-cigarette lawsuit alleges the company made these claims despite the existence of adverse medical studies. Ya think?
The lawsuit, filed by plaintiff Joseph Sheppard, alleges that the manual for the Fumizer e-cigarette claims it can “help you quit smoking,” which contradicts other marketing materials that disclaim that any use of the e-cigarette is an aid to quit smoking. According to the lawsuit, the disclaimers are made to avoid U.S. Food and Drug Administration (FDA) regulation.
“These representations are contradictory and hypocritical because [the packaging] asserts Fumizer e-cigarettes are ‘neither intended nor marked as a quit smoking aid,’” the complaint states.
Further, the complaint contends that Fumizer misled consumers by referring to healthy smoking, and ignoring studies which show e-cigarettes still contain some of the carcinogens and toxins in tobacco cigarettes, along with additional potentially harmful chemicals.
Sheppard also states in the complaint that vaporizers require users to inhale more deeply compared with traditional cigarettes, which could be harmful. Claims about healthy smoking make consumers feel there are no risks to using the devices, the suit claims.
“There is widespread agreement in the scientific community that further research is necessary before the full negative effects of electronic cigarette use on users’ health can be known and that until then, manufacturers, sellers and distributors of electronic cigarettes should not make any representations relating to the safety, health or benefits, if any, of electronic cigarettes,” the complaint states.
Additionally, the lawsuit notes that Fumizer fails to list the ingredients for its products, thereby preventing consumers from being able to make an informed decision regarding whether or not they want to risk inhaling specific chemicals.
“By omitting the ingredients, defendant hides the fact that Fumizer e-cigarettes contain propylene glycol, a product found to cause throat irritation and induce coughing, and thus no longer used by certain of Fumizer’s competitors,” the lawsuit states.
The lawsuit also states that Fumizer’s claims its devices could be used anywhere, citing cities and counties in California that have banned e-cigarettes and public, along with statements that its vaporizers were top quality. However, the plaintiff’s Fumigo 650 Personal Vaporizer allegedly short-circuited, exploded and caused a fire in his home in March, according to the suit.
E-cigarettes that are good for you? Sounds like a Scamorama ding-dong to me.
OxyElite been Beat? And while we’re on the subject of too good to be true—GNC Holdings Inc, the maker of USPLabs OxyELITE Pro just agreed to settle a class action that alleged the diet supplement does everything but take the garbage out. Unfortunately, it seems that included associated liver damage, which got the diet supplement pulled from the market by the FDA last November.
The ensuing lawsuit alleged GNC sold the supplements, which contain dimethylamylamine, better known as DMAA, and aegeline, despite widespread reports that the products cause severe liver damage.
This week, GNC agreed to pony up $2 million to shut the suit down. The GNC settlement motion, filed in the Northern District of Florida, asked the court to sign off on the deal, which will provide reimbursements for consumers who bought USPlabs’ OxyElite Pro and Jack3d lines of products.
Heads up—the settlement class includes anyone who bought the USPlabs products between Aug. 17, 2012, and the date of final approval, according to the motion. Eligible class members will receive $35 per container of OxyELITE Pro purchased, $20 per container of Jack3d and $20 per container of VERSA-1.
The case is Velasquez et al. v. USPLabs LLC et al., case number 4:13-cv-00627, in the U.S. District Court for the Northern District of Florida.
Force-placed Insurance Scams made the news this week, with final approval granted for a $31 million settlement of seven proposed force-placed insurance class actions, all alleging Bank of America NA (BofA) illegally forced homeowners to buy excessive amounts of flood insurance. It’s a lottery where the bank always wins, it seems. But not in these cases.
Approved by a federal judge in Oregon, the settlement will see BofA pay $31 million into a settlement fund, with plaintiffs receiving $2,500 each as an incentive award. The approval order also calls for certification of a class for settlement purposes only.
The lawsuits were filed in 2011 alleging BofA sent letters to homeowners and other borrowers informing them that they carried insufficient flood insurance because they lived in special flood zones, where there was a high risk of flooding and associated hazards. However, there is no federal requirement for homeowners living in those areas to carry additional insurance, the lawsuits claimed. BofA allegedly ignored proof sent by the plaintiffs demonstrating that they med the allegedly unnecessary requirement.
Under the terms of the settlement, BofA will make a series of changes to its insurance practices, including not taking any commission from force-placed flood insurance for three years. The bank also agreed to cease giving out opt-out letters from the forced policies in some of its future mailings and to refund co-op borrowers for any force-placed insurance that was not required by their loans.
The case is Larry Arnett et al. v. Bank of America NA. et al., case number 3:11-cv-01372, in the U.S. District Court for the District of Oregon.
Ok – Folks –time to adjourn for the week. Have a fab weekend –see you at the bar!
Supersize me—or not—as the case may be. After all, if it sounds too good to be true… then maybe Magna-Rx Inc, is promising just a tad more than it can deliver. The supplement maker GNC got hit with a proposed consumer fraud class action lawsuit this week alleging the labeling on its male strength and performance enhancement supplement misleads consumers by implying it is an effective aphrodisiac. According to the Magna-Rx lawsuit, the company falsely markets “Magna-Rx+” as a medically endorsed aphrodisiac, although the supplement, a blend of herbal and root extracts, has never been scientifically studied, and there is no proof that its ingredients have an effect on male strength and performance. In plain English—snake oil.
In the complaint, Trevor Dixon, the plaintiff, states that he purchased Magna-Rx+ for $50 in March 2013, from a GNC store. In January 2014 Dixon discovered the company had violated California’s unfair competition and false advertising laws and Consumer Legal Remedies Act, as well as the Federal Food, Drug and Cosmetic Act, by marketing the supplement as an aphrodisiac. Further, as an over-the-counter drug sold as an aphrodisiac, Magna-Rx+’s label should have been evaluated by the U.S. Food and Drug Administration, the complaint states.
Magna-Rx+ includes the ingredients: horney goat weed (WTF?), muira puma, Asian ginseng, oat straw and catuaba. However, none of these are safe and effective for OTC use as an aphrodisiac,” the lawsuit states. “The FDA bars these false, misleading and unsupported by scientific data label claims.” Is there even such a thing as horney goat weed?
Wait—there’s more—“Further, consuming such random herbs and herbal extracts presents a risk of an allergic or other adverse reaction without any offsetting benefit,” the complaint states.
The complaint also notes that the president of Magna-Rx testified in a deposition that the company never scientifically tested Magna-Rx+’s efficacy. Only a few ingredients may be effective at treating certain conditions, none of which includes male virility, according to the suit.
According to the lawsuit, the Magna-Rx+ label contains the phrase “Dr. Aguilar’s Original,” suggesting that Magna-Rx was developed by medical professionals. However, Dr. Aguilar is not a licenced medical practitioner in the US, but has a small storefront ‘alternative medicine’ clinic in Mexico. And, no one from Magna-Rx has ever interacted with Aguilar. That’s encouraging.
Additionally, the complaint cites the phrase “Real Doctors, Real Results,” which appears on the product labeling and suggests Magna-Rx+ is medically endorsed. According to the suit, the “Rx” in the product’s name further implies that it is prescription-strength, and “Magna” indicates that it is effective in increasing male strength and performance.
Boy—this stuff makes the Tooth Fairy sound plausible. Wonder what it does do…
La-Z-Boy living up to its name…. in that it’s been a bit lazy about accommodating people with disabilities who need wheelchair access to their stores. So, the company now finds itself on the end of a discrimination class action lawsuit alleging its stores are not fully accessible to the disabled because they lack handicapped parking and wheelchair-accessible restrooms, in violation of California’s Unruh Civil Rights Act and Disabled Persons Act.
Filed in Los Angeles, by lead plaintiff George Zepeda, the complaint alleges La-Z-Boy discriminates against disabled California residents by not requiring its facilities be accessible for handicapped individuals. Zepeda claims that there are several La-Z-Boy stores that do not have accessible restrooms, handicapped parking spaces and appropriate accessibility signage. The lawsuit also states that the furniture manufacturer has so far refused to remedy the situation.
“As a result of that failure to remedy existing barriers to accessibility, plaintiff and others similarly situated have been denied access to the benefits of the goods, services, programs, facilities and activities of defendant’s stores, and have otherwise been discriminated against and have suffered damages caused by defendant’s accessibility violations,” the complaint states.
In the complaint, Zepeda states that in June he purchased end tables and a stationary chair at a La-Z-Boy’s in California. He alleges that as a result of being denied full and equal access, he was discriminated against. Zepeda is restricted to a wheelchair and therefore, because the store did not have fully accessible restrooms, he says he was discriminated against.
Specifically, Zepeda claims that opening the restroom door required excessive force to open and keep open while he entered and exited the restroom because the door closer was not adjusted to allow the door to remain open long enough for him to wheel himself inside without assistance.
Further, once he was inside the washroom, he was unable to use the facilities because the toilet seat was “excessively high” from the floor, making it hard for him to maneuver from his wheelchair to the toilet seat, and also because the toilet paper dispenser, toilet seat cover dispenser and soap dispenser were mounted too high for him to reach. He says he also couldn’t wash his hands because the pipes under the lavatory were not covered and he was worried about burning his legs on them.
Zepeda also states that he wrote La-Z-Boy management about the issues but he never received a response. According to the lawsuit La-Z-Boy has a number of locations in Southern California with similar accessibility issues, including numerous restroom violations and a lack of disabled and van parking spots, and that the company has not acknowledged any of his complaints.
“The … violations are ongoing and continue to result in the plaintiff and unnamed mobility impaired class members suffering discrimination as a result of being denied full and equal access to these stores,” the complaint states.
The lawsuit is seeking certification of a class of all mobility-impaired or wheelchair-bound people in California who have patronized La-Z-Boy stores. The complaint states the class will consist of thousands of members, since census statistics show that more than 150,000 non-institutionalized people over age 16 in California use wheelchairs.
About those pension checks….employees at Meriter Health noticed they weren’t on the money. But this week they announced an $82 million settlement of an an employment lawsuit filed in 2010 alleging Meriter Health Services improperly calculated employee pensions. The settlement will see some 4,000 Meriter Health Services employees receive an average of $14,000 each in damages. A dozen people named as plaintiffs will each get an additional $5,000, and another 2,000 people will each receive about $250. Overall, more than $56 million will be allocated to about 6,000 people in 11 classes in the suit. Nice going!
The lawsuit alleged Meriter’s pension plan miscalculated benefits from 1987 to 2014. Both parties have agreed to the $82 million settlement, but a final settlement hearing is scheduled for some time in January.
Meriter Health Services became part of Iowa-based UnityPoint Health this year.
Ok—Folks—time to adjourn for the week. Have a fab weekend—see you at the bar!