Ruby Tuesday Not Serving Up Overtime Pay? Employment—of the largely unpaid variety—was a bit of a theme song this week. Among the chorus is an unpaid overtime class action filed against the Ruby Tuesday national restaurant chain by two former employees who allege they were denied overtime pay.
Specifically, Oscar Sagastume of Meriden and Kevin Gibson of New York filed the lawsuit in U.S. District Court on May 19 to “recover unpaid overtime compensation for themselves and similarly situated employees as a collective action under the Fair Labor Standards Act (FLSA). Additionally, Sagastume and any other Connecticut plaintiffs also assert violations of the Connecticut Minimum Wage Act.
The Ruby Tuesday lawsuit states that the former Ruby Tuesday employees worked many 50-hour or more weeks without proper compensation. “Defendant was aware that plaintiffs and the class members worked more than 40 hours per workweek, yet defendant failed to pay overtime compensation for hours worked over 40 hours in a workweek,” the lawsuit alleges. “Defendant did not keep accurate records of hours worked by the plaintiffs or the class members.”
In the complaint, Sagastume claims he worked for the national restaurant chain from February 2011 to April 2015. He worked at several locations across Connecticut as an assistant manager and frequently worked more than 40 hours a week.During the week of February 8, 2015, he worked “approximately 60 hours” but was only paid for 40. He claims that on average he worked between 57 and 62 hours per week.
“Ruby Tuesday required plaintiffs and [assistant managers] to work long overtime hours without paying them any overtime compensation,” the complaint states. “Ruby Tuesday classified all of its (assistant managers) as ‘executives’ and treated them as exempt from the overtime requirements of federal and state laws.”
Further, the lawsuit states that while assistant managers earned about $37,500 annually, job duties for both Sagastume and Gibson required them to do the same as the hourly employees, who were given overtime pay, such as greeting and waiting on customers, serving food, cooking and preparing food, clearing and setting tables and cleaning the restaurant.
The suit claims Ruby Tuesday willfully misclassified Sagastume, Gibson and other assistant managers as employees who are exempt from FLSA protection and failed to properly record the hours worked by their employees. “Defendant’s unlawful conduct has been widespread, repeated and consistent,” the lawsuit alleges.
Heads up—the lawsuit is looking to represent others similarly situated including managers, such as those running the kitchen and guest services, and for the Connecticut class action allegations, any assistant manager who worked in Connecticut from May 19, 2014, to the date of final judgment, if one is given.
Kmart Got a Damage Bill this week to the tune of $3.8 million. No stranger to employment lawsuits, the discount retailer agreed to settle this latest, effectively ending two collective actions brought on behalf of assistant managers who allege they were wrongly classified as exempt from overtime pay, in violation of the Fair Labor Standards Act (FLSA) and state labor laws.
What’s the betting the FLSA is one of most frequently cited pieces of law in class actions today…
The class is estimated to include some 422 people, with each plaintiff receiving roughly $9,000, depending on how long they worked for the company. Additionally, it provides $7,500 for each of the four named plaintiffs.
The Kmart settlement motion seeks preliminary certification of the class and scheduling of a final approval and fairness hearing. The settlement would encompass a suit filed in the U.S. District Court for the District of New Jersey, Fischer v. Kmart, and another in the Western District of New York, Hautur v. Kmart.
While unhappy class members will have the opportunity to opt out of the settlement, if the unhappiness total reaches more than 5 percent of class members, will have the opportunity to terminate the settlement, according to court documents. And everyone’s a winner…
And now for something completely different…
Blue Buffalo Pet Food Settlement…A $32 million settlement has been approved in a consumer fraud class action lawsuit pending against Connecticut-based Blue Buffalo, a well known maker of “natural” pet food—whatever that means—which was the subject of the lawsuit.
The class actions, brought by consumers in several lawsuits across and country and which were consolidated into Multi District Litigation in 2014, alleged that certain Blue Buffalo products were not consistent with its “True Blue Promise.” The label indicates the products contain no chicken by-product, along with no corn, wheat, soy or artificial flavors, colors or preservatives. However, this, consumers claimed, was not the case, stating they paid a premium for the pet food products, but were misled. A total of 13 class actions were brought against Blue Buffalo over its alleged false advertising.
The Blue Buffalo settlement, originally reached in December 2015, will provide customers who filed a claim but couldn’t provide a receipt, with up to $100. Customers who filed a claim and have receipts will receive up to $2,000.
Full details available at – https://www.petfoodsettlement.com/.
According to Blue Buffalo, they are not guilty of any wrong doing, stating that it was defrauded by a supplier that provided its chicken byproduct.
Ok, that’s a wrap folks…Have a good long weekend. See you at the Bar!
How white is white? Now there’s a burning question—one I’m sure has kept people awake for decades. And it is now set to be an issue, possibly the central issue, in a consumer fraud case recently filed against Colgate.
Colgate Palmolive, allegedly, has been making claims that its optic white platinum toothpaste “Goes beyond surface stain removal to deeply whiten” teeth. And, as if that weren’t enough, the toothpaste also “Deeply whitens more than three shades.” Three shades? More like 50 shades (of grey area). And just to be technical as we’re on the subject—a shade can refer to the darkening of a color—so I would think that “shades of white” may not actually be the precise meaning Colgate had in mind—but who knows.
In any event, color theory aside, Lori Canale isn’t happy with any of the shades of white she has allegedly failed to manifest using said toothpaste. So she’s filed a class action. But I’m betting this won’t be an easy one.
Aside from the difficulty in defining the extremely vague claim “three shades of white”, Canale alleges in the Colgate Optic White Toothpaste lawsuit that the toothpaste isn’t up to the job no matter what your definition—because it is 1 percent hydrogen peroxide, which is not a large enough amount of hydrogen peroxide to do the job. Further, the product is not in contact with teeth for a long enough time to do what the company claims it does.
So, what’s needed is more H2O2 and more time? But then how much is too much? Too much would almost certainly end up a lawsuit as well.
But we’re still back to the central question—just what “shades of white” are at issue here? A trip to the nearest house paint section at your local DIY store is enough to clearly make this point. Are we talking Cloud white, Duck white, Titanium white, warm white, cool white, off white, gray white, bright white—and then there are decorator whites—you know – Lily white, Whisp white, Honeycomb white, Great white (?), China white, Cotton white—should I go on? OMG. And we haven’t even touched on lighting! Think black lights—cast your mind back to your best friend’s 1970’s bedroom (at the risk of dating myself) that harboured the secret “black light”. Wow—turn that baby on and in addition to lighting up all the Who and Led Zeppelin posters—you could blind everyone in the room if you smiled. Light is very important. There’s another shade—Dazzling white—or maybe Knock-out white.
One thing is certain–no one seems to want yellow—and grey is definitely out.
But I’m not sure how one would prove that three shades of white is not achievable with this toothpaste—as no baseline has even been established. What color are you starting with—or should we use the term shade? Or tint? And is there such a thing as too white? Not to mention, the name “Optic”—meaning “of or relating to the eye or vision”—makes this kind of an “eye of the beholder” situation, no? So it’s probably off to a lab somewhere that this lawsuit will be heading as there’s just too much variability in everyone’s teeth and every possible shade of white.
This whole lawsuit takes me back to a dinner I was at once. I was sitting across the table from a news anchorwoman. And the entire time I couldn’t take my eyes of her teeth. I didn’t hear a word she said, and I have no idea how I got through the conversation, because all I could see were her teeth—and all I could think was “who has teeth that white?” I couldn’t tell you what shade of white her teeth were. And—important point—we were in restaurant lighting. Think bistro—dinner—soft lighting.
I’m sure this is a very vexing problem. Who doesn’t want white teeth? But perhaps the most important thing is that you have teeth. After that—it’s all gravy—brown gravy. Just don’t forget to brush!
We’ll be keeping an eye on this one—it’s US District Court for the Southern District of New York Case number 7:16-CV-03308-CS.
Dueling Rides… An unfair business practices class action lawsuit has been filed by the ride share company Lyft against its rival company Uber, alleging Uber creates and uses shell accounts to hurt business for Lyft. Yeah, that sounds pretty unfair, if true.
Lyft driver Ryan Smythe and “others similarly situated”, filed the Uber class action complaint against Uber Technologies Inc, and 100 unnamed entities said to exist as “mere shells and conduits” for Uber’s affairs.
Here’s the skinny: according to the complaint, Mr. Smythe started as a Lyft driver in September 2014, one month after accusations began concerning “Operation SLOG,” an alleged Uber-sponsored campaign that involved spamming Lyft drivers with false ride requests in an effort to negatively impact Lyft’s business.
This allegedly involved Uber creating dummy Lyft accounts with prepaid cellphones and credit cards which were then used to place fake requests with Lyft drivers. According to the lawsuit, Uber’s alleged operation amounted to unfair business practices under California law as well as intentional interference with prospective economic advantage.
The complaint asserts that Uber engaged in a “systematic course of creating fraudulent Lyft accounts from which sham orders were placed, at least in part to deprive Class members from earning income in violation of California Business and Professions Code which prohibits unfair business practice.”
Further, Smythe claims in the proposed class action that Uber directed its drivers and third-party companies to make these requests “for the sole purpose of luring Lyft drivers to locations in which a false request for service directed them.” So much for “just making a living.”
“Uber Technologies did this to discourage Lyft drivers from contracting with Lyft, to deprive the marketplace of Lyft drivers so that Uber drivers could benefit and to create a higher wait time for Lyft customers in order to steer their patronage to Uber Technologies in violation of California Business and Professions Code,” the complaint states.
75 to 45 in 2 Seconds? This sounds just a tad dangerous. BMW got hit with a nationwide defective automotive class action lawsuit for alleged defects in the electric BMW i3 vehicles—defects which cause the vehicle to rapidly drop speed. Read on.
The BMW lawsuit centers around the BMW i3 “Range Extender” feature. This option, called REx, outfits the vehicle with a two-cylinder gasoline engine producing 34 horsepower that switches on when the battery charge depletes to five percent, giving the vehicle another 70 miles of range. BMW claims that the Range Extender “doubles your electric driving range” from the vehicle’s standard 81-mile range.
However, the lawsuit alleges that in practice, when the gasoline engine kicks in, it doesn’t produce enough power to prevent a dramatic decrease in the vehicle’s performance. As alleged, if the car is under any kind of significant load (such as going up a hill, or loaded with passengers), the speed of the car will dramatically decrease as the battery charge diminishes. According to the complaint, this can result in the car slowing to speeds of 45 miles per hour on the freeway, without warning. This sudden and unexpected loss of power in a motor vehicle can result in a catastrophic situation for all those on the road. Yes, no—not a good thing at all.
The lawsuit seeks to have the vehicles redesigned and repaired at BMW’s expense, and to halt the sale of all i3 vehicles until repairs can be made. The claim also seeks compensation for all the owners of the vehicles, who were not told of the serious safety defect.
The case Edo Tsoar v. BMW North America, LLC (Case No. 2:16-cv-03386) was filed in U.S. District Court in Los Angeles.
Hip Settlement in Canada. Some news from north of the Border—two Canadian class actions have been certified—one in British Columbia (Jones v. Zimmer) and another in Ontario (McSherry v. Zimmer). Authorization (Certification) is pending in a proposed class action filed in Quebec (Major v. Zimmer), and the parties have consented to authorization (certification) of that action.
Translation? Settlement. Yup—subject to court approval, the hip implant settlement applies to “all persons who were implanted with the Durom Cup in Canada” and their estates and family members. Nice one.
No dollar figures to report, and of course, the defendants to the three actions do not admit liability, but have agreed to a settlement providing compensation to class members with certain injuries upon approval after receipt of supporting documentation, less deductions for legal fees.
FYI—Public health insurers are also entitled to compensation under the settlement agreement.
Motions to approve the settlement agreement will be heard in Vancouver on June 28, 2016, Ontario on July 14, 2016, and in Montreal on June 28, 2016.
Ok…that’s a wrap folks! Have a good one–and see you at the Bar!
Show us your Pearly Whites, Darling. Oh, is your tube of Colgate Optic White Toothpaste just not cutting it? Teeth aren’t gleaming white as advertised? Well, you’re not alone. This week, Lori Canale, filed a consumer fraud class action lawsuit against the company alleging—you guessed it—consumer fraud.
Specifically, Canale claims in the Colgate toothpaste lawsuit, for herself and for all others similarly situated, that Colgate-Palmolive misrepresents that its Colgate Optic White Toothpaste “Goes beyond surface stain removal to deeply whiten” teeth and that its Colgate optic white platinum toothpaste “Deeply whitens more than three shades.” Which three shades, precisely?
According to the complaint, the toothpastes do not actually go beyond surface stain removal and do not deeply whiten teeth because their whitening ingredient, which is 1 percent hydrogen peroxide, is not a large enough amount of hydrogen peroxide. Further, the product is not in contact with teeth for a long enough time to do what the company claims it does.
The case is US District Court for the Southern District of New York Case number 7:16-CV-03308-CS.
Lights out for Subaru? Well, likely not. But they are facing a defective automotive class action lawsuit filed in California this week, alleging certain of its vehicles contain a design defect making those vehicles unsafe for drivers and passengers.
Filed by Kathleen O’Neill of Pismo Beach, California, individually and for all others similarly situated, against Subaru of America Inc., the Subaru lawsuit asserts that the car maker’s 2010 and 2011 Subaru Outback vehicles contain a design and/or manufacturing defect that causes the exterior lighting bulbs to fail prematurely and frequently.
Further, this alleged defect, in addition to the associated safety issues, results in vehicle owners paying more to replace the exterior bulbs. Yes, that could get seriously annoying in addition to expensive.
The complaint alleges breach of implied warranty, violation of the Magnuson-Moss Warranty Act, unjust enrichment, and violations of California’s Consumer Legal Remedies Act and its Unfair Competition Law.
The case is US District Court for the Central District of California Western Division Case number 2:16-CV-02774-R-KS.
Anti-trust at 30,000 Feet… Air New Zealand down under has agreed to come up with $35 million as settlement of their share of a class action lawsuit brought in 2006 by several freight forwarders who allege the airline fixed prices in their cargo operations. FYI—Air New Zealand is just one defendant in the antitrust class action lawsuit.
Although the airline has not admitted liability, it has agreed to settle to mitigate further legal action and related court costs.
The class action named a list of global airlines, alleging that they conspired on cargo fuel and security surcharges between 2000 and 2006. The US class action is just one of several similar cases brought in other countries. The US Department of Justice launched a criminal investigation, from which Air New Zealand was released in 2011.
The settlement remains subject to court approval. The $35 million represents 2.8% of the $1.2 billion so far paid in settlements by 28 airlines accused of price-fixing. Hey—money in money out—right?
Ok –That’s a wrap folks…Have a good one. See you at the Bar!
Here’s a question—what do you do when your snow blower catches fire? Who knew they could? It’s minus 20 outside, and you’re out there clearing an apocalyptic snow fall from your driveway and bammo! —up the thing goes in flames. From snow blower to barbeque—just like that. I’m betting that would improve a person’s circulation pretty fast.
Seems crazy right? But a quick scan on the US Consumer Product Safety Commission (CPSC) website reveals that spontaneous combustion (ok—that’s a little melodramatic perhaps) isn’t such an uncommon trait among these devices, begging the question—has anyone bothered to test their design?
The most recent recall for snow blowers that can overheat, “posing a fire and burn hazard,” as the CSPC puts it, is Ryobi Brushless Snow Blowers. (Yes—brushless. Don’t ask.)
On April 26th—just a little late in the season guys—a recall notice was posted for these things in the US and the great white north just across the border (Canada).
The description on the CPSC website states that One World Technologies (there’s your first clue) had posted an important safety notice on its website. They were recalling 300 of these things in the US and some 370 in Canada.
Short of experiencing the pyrotechnics first hand, how are you supposed to know if you have a defective “Ryobi 40-Volt Brushless Snow Blower”? There should be model number information on the back of the blower–and you’re looking for model numbers RY40802, RY40802A and RY40822.
The CPSC blurb continues: “One World has received two reports of snow blowers overheating during or immediately after use. Of the two reports, one consumer reported seeing flames which were immediately extinguished. No injuries or property damage have been reported.” Well, that’s a relief.
The recommended course of action to avoid possibly injury or property damage? “Consumers should immediately stop using the recalled snow blowers…(if the thing caught fire I would imagine it would have stopped working of its own accord) and return them to One World Technologies for a full refund.” Of course, if you can’t get out of your driveway because you haven’t been able to clear a path because your snow blower caught fire, well…at least summer’s on the way.
The good news is you only have to travel to you nearest Home Depot, and get in line with dozens of other people, who may be returning other defective snow blowers. Here’s a list of “related recalls” as posted on the CSPS website, just in case you missed them
All (not just some, so don’t worry if you threw the packaging out) Power America Snow Throwers
Briggs & Stratton Ariens Compact Snow Blowers, Due to Fire Hazard
Toro Power Clear Snowblowers and Recycler Mowers, Due to Fire or Burn Hazard (they’ve got both seasons covered)
American Honda Snowblowers, Due to Fire Hazard
Snow Blowers by The Toro Company, Due to Fire Hazard
Sno-Tek Snow Blowers by Liquid Combustion Technology, Due to Laceration Hazard
Love this one – “Snow Throwers by Ariens Company Due to Injury Hazard.” Yes, “Injury” – leaving their options open, I guess. According to the blurb: “Users trying to clear the collector or discharge chute while the machine is operating could be at risk of a finger or hand injury hazard.” You think?
Who knew that clearing snow could be such a dangerous and adrenalin filled experience. Wonder what grass cutting season will bring?