“Whataya Want from Me”—how about a refund! Is Apple taking a bite out of you? Robert Herskowitz thinks they might be. He filed a federal consumer fraud class action lawsuit against Apple this week, alleging iTunes double bills for purchases from its e-Stores and refuses to issue refunds to customers who are affected. Nice.
In his iTunes lawsuit, Herskowitz claims he bought a single song from the iTunes store for $1.29, for which Apple charged him twice. According to the lawsuit, when he brought the error to Apple’s attention, he says, the company responded: “Your request for ‘Whataya Want from Me’ was carefully considered; however, according to the iTunes Store Terms of Sale, all purchases made on the iTunes store are ineligible for refund. This policy matches Apple’s refund policies and provides protection for copyrighted materials.”
Herskowitz says the agreement governing use of Apples’ e-Stores “says no such thing.” He claims the policy has “resulted in substantial numbers of Apple customers throughout the country having been double billed by Apple.” Instead, the lawsuit claims that Apple’s refund policy, in the Terms and Conditions to which every customer must agree to make purchases on Apple’s e-stores, states that Apple does not provide refunds in the event of a price reduction or promotional offering. Accordingly, by its own terms, “Apple’s ‘no refund’ policy is limited to ‘the event of a price reduction or promotional offering.’”
The complaint adds: “Under the agreement, as with any consumer transaction, Apple may bill customers only once for each product or service that is purchased. With troubling regularity, however, Apple has ‘double billed’ customers for purchases made through the Apple Stores. In those cases, when a customer purchases a song, movie or book, Apple bills that customer twice for the same download. Apple, however, has effectuated a policy and practice of refusing to refund the extra charge to customers whom it has overbilled.” Therefore, the lawsuit alleges, Apple violates its own terms of agreement as well as California state and common laws.
Furthermore, Herskowitz claims that Apple follows the same illegal policy at its App store, iBookstore and he Mac App store. Herskowitz is seeking damages of more than $5 million for a national class.
Thank goodness for people who check their bills and read the fine print!
“Highly Reprehensible” indeed. And it’s about time somebody came out and said it. This week, a California Appeals Court judge ruled that a $4.5 million punitive damages award in an asbestos mesothelioma lawsuit will be allowed to stand—that it is not excessive, and that the conduct of ArvinMeritor, the defendant in the asbestos lawsuit, and successor of brake shoe manufacturer Rockwell, was “highly reprehensible.”
“By the 1960s, ArvinMeritor knew that workers exposed to asbestos dust were at risk of developing asbestos-related diseases,” the judge wrote. “Indeed, in 1973 and again in 1975, it wrote letters to (Pneumo Abex) and other manufacturers complaining about the presence of asbestos dust in the brake linings it was receiving from them. Nonetheless, ArvinMeritor did not place any warnings on its products until the early 1980s, and continued to market asbestos-containing brakes until its inventory of them was exhausted sometime in the early 1990s.”
The justice noted that ArvinMeritor did not include a specific reference to cancer on its products until 1987. Gordon Bankhead, who filed the ArvinMeritor asbestos lawsuit, had worked at automotive maintenance facilities from 1965-1999. He died of mesothelioma in 2009.
A jury found ArvinMeritor 15 percent at fault for Bankhead’s death and suffering, putting it on the hook for $375,000 of a $2.5 million noneconomic damages award. The company was joint and severally liable for all of the $1.47 million in compensatory damages. A separate trial resulted in the $4.5 million punitive damages award.
Bayer AG, the manufacturer of Yaz/Yasmin birth control pills, has announced that it has settled 651 US Yasmin blood clot lawsuits for a total, so far, of $142 million. This makes the average settlement about $218,000 a case.
The lawsuits allege that Yasmin/Yas oral contraceptives cause blood clots in the women taking the pills, and in some cases they have proved fatal. The lawsuits also allege that the blood clots can lead to heart attacks and strokes.
According to Bloomberg News, on April 10, the US Food and Drug Administration (FDA) ordered Bayer and other makers of birth control pills to strengthen blood-clot warnings on their products. Consequently, oral contraceptives that contain a synthetic hormone called drospirenone will have warnings on the labels stating that research shows there may be triple the risk for clots with pills such as Yasmin/Yaz. These warnings are also based on an FDA examination of data on more than 835,000 women who took oral contraceptives containing drospirenone, including Yasmin/Yaz.
And on that note—it’s time to adjourn. Happy Friday everyone…
Earlier this week, expert opinion regarding Yaz birth control was unsealed in a federal court in Illinois. The expert opinion was in the form of a 196-page document written by Dr. David Kessler.
What’s interesting—or take your pick of adjectives here: damning, alarming, scandalous—is that Dr. Kessler’s report point-blank accuses Bayer of hiding critical data regarding Yaz’ blood clot link (the basis for numerous Yaz lawsuits right now).
According to Kessler’s conclusion, “By failing to disclose all thromoembolic event risk information and marketing Yaz and Yasmin off-label, Bayer needlessly exposed large numbers of women to risks of serious or fatal thromboembolic events.”
Kessler’s accusation of failure to disclose comes as a result of his claim that, in 2004, Bayer wrote a white paper draft—the white paper being what would ultimately be submitted to the FDA for review—that initially stated that Yasmin had a “several-fold” increase in DVT (deep vein thrombosis), pulmonary embolism and VTE (venous thromboembolism) when compared with three other commonly used birth control pills.
That was the draft version.
The version that Kessler states was submitted, according to Medpage Today, said, “The spontaneous reporting data do NOT signal a difference in VTE rates for Yasmin and other [oral contraceptive] uses. We see NO signal of a difference.”
Key to those edits, according to Kessler’s accusations, is that there was no additional data presented by Bayer to support the 180-degree turnaround in their conclusion.
According to MedPage, Kessler went on to state “…that Bayer presented a selective view of the data, and that presentation obscured the potential risks associated with Yasmin.”
Compounding this is Kessler’s assertion that Bayer extensively marketed Yaz off-label for PMS—for which Bayer did get a wrist-slap fine—but the aggressive marketing, it’s alleged, exposed a greater number of women to the potential risks of the drug.
The unsealing of the Kessler report comes mere days before the FDA Reproductive Health Drugs Advisory Committee is to meet. Their agenda: the risks and benefits of oral contraceptives that contain drospirenone (including Yaz, Yasmin, Ocella, Safyral). LawyersndSettlements.com has reported extensively on drospirenone-based birth control and its link to DVT and VTE.
Is a new warning label in the offing? Stay tuned.
Yaz (and its sib, Yasmin) has been under fire over the past couple of years. Hell hath no fury, right? And there are definitely some women out there feeling a bit scorned by big pharma on this one…
But talk about the pendulum swinging back in the opposite direction. It wasn’t all that long ago that we (women, that is) were ecstatic that finally, yes finally, there was a mere pill—such a teeny tiny helper!—that could save us from unwanted pregnancy and that God-forsaken monthly interruption—cramps and all. (Insert a “Right-on!” shout-out to Ms. Steinem, women’s lib and a few burnt bras…).
Fast-forward almost forty years…and the pill delivers zit relief, too—our cup runneth over! Breakout banisher is basically how Yaz positioned itself on center stage of the contraception market—and how it netted not only a whole new generation of pretty young things as groupies but also a wrist-slap from the FDA. Seems telling women about how clear their skin would be without telling them about potential little side effects like deep vein thrombosis or perhaps the need for gallbladder surgery wasn’t such a slick marketing move. At least they didn’t try to get shelf space next to Clearasil.
But you know all that. And here’s where the musing and pondering kick in…
Given what’s been going on with Yaz, you may be wondering why on earth there isn’t some big brouhaha going on—you know, one of those class actions. It seems whenever there’s a product—be it a lawnmower, Expedia.com’s hotel reservations, or Similac baby formula—that doesn’t do what it says it will do or causes undo harm, there’s a class action. So, what’s up with Yaz? Where the heck is my “opt in” claim form? Was I not invited?!?
Let’s look at how some of the details rack up: indeed, lots of women allege to have been harmed by Yaz—enough perhaps to even be considered a “class” or at least a sizeable cocktail party. And possible Yaz side effects are numerous—and not just your run of the mill “honey I’ve got a headache gonna lie down” type. No, these are biggies: gallbladder problems, deep vein thrombosis, pulmonary embolism, heart attack, stroke… Keep in mind, too, the women getting Yaz prescriptions filled are, obviously, within child-bearing age, so they’re younger—not the typical age-range for heart attack or stroke, for example.
So why not a Yaz class action? Why not a little “you may be part of a Yaz lawsuit” postcard in the mailbox or a full-page ad of legalese in People magazine? The answer is because Read the rest of this entry »