Bad Apple, Again? Yet another lawsuit against Apple, this one set to take a bite over allegations of consumer fraud surrounding devices that are replaced via AppleCare+ warranty with refurbished replacements that don’t meet a specific clause in the contract.
Filed in California, on behalf of plaintiff Vicky Maldonado and others similarly situated, the proposed class action alleges the clause claiming refurbished devices are “equivalent to new in performance and reliability” is false.
According to the Apple lawsuit allegations, a refurbished device is a “secondhand unit that has been modified to appear to be new” and therefore can’t be equivalent in durability and functionality as a new unit. Maldonado filed the suit after she purchased a third generation iPad and then cracked the screen after owning it for six months.
As the damage to Maldonado’s iPad was accidental in nature, she was forced to replace her tablet at an out of pocket cost of $250, according to the suit. However, she was told that for another $100 the AppleCare+ program would replace the tablet if similarly damaged in the future. Allegedly, the replacement iPad Maldonado was given under the warranty did not function properly and since it had impaired functionality, the tablet wasn’t equivalent to new, the suit asserts.
Following this, in 2013 Maldonado bought another iPad, a fourth generation model. She claims that she wasn’t informed that she would get a refurbished device if she damaged the tablet. When she tried to get a repair for the device in May 2015, she was given a refurbished device instead. According to court filings, she claims the device she received wasn’t equivalent to that of a new device either in performance or reliability.
Policy Policing Needed? Blue Shield got slapped with a consumer fraud class action lawsuit this week, filed by enrollees who allege the insurer owes its members another $35 million in rebates due to errors in its medical-loss ratio calculation of 2014. That’s some accounting error, if true…
Brought by plaintiffs Becky Ebenkamp and Rebecca Morris, the Blue Shield class action lawsuit seeks to represent more than 446,000 individual policy holders from that year.
According to federal law, insurers are required to issue refunds if they don’t spend at least 80 percent of premium dollars on medical care or on improving the quality of care. The complaint alleges Blue Shield improperly counted certain payments as medical expenses it had made erroneously in 2014 to providers who were not in its network and patients whose coverage had lapsed. By counting those mistaken payments as legitimate medical expenses, Blue Shield pushed itself closer to the 80 percent threshold, thus reducing the size of the refunds it owed, according to the complaint.
The lawsuit states that under the consumer refund rule, those payments should have been logged as administrative expenses, and Blue Shield customers are therefore entitled to a bigger refund.
The rebate rule, part of the Affordable Care Act, is intended to contain the cost of health coverage by limiting the share of premiums insurers can spend on administrative functions, executive salaries, overhead and profits. If an insurer spends only 75 percent of premium dollars on care, for example, it must send refund checks to enrollees equal to 5 percent of the premiums they paid.
Who knew? Ah, precisely.
Herbalife to Pay Up…Remember that old adage, if it sounds too good to be true? Well, Herbalife International of America, Inc., Herbalife International, Inc., and Herbalife, Ltd. have agreed to fully restructure their US business operations and pay $200 million to compensate consumers to settle Federal Trade Commission (FTC) consumer fraud charges that the companies deceived consumers into believing they could earn substantial money selling diet, nutritional supplement, and personal care products.
In its complaint against Herbalife, the FTC also charged that the multi-level marketing company’s compensation structure was unfair because it rewards distributors for recruiting others to join and purchase products in order to advance in the marketing program, rather than in response to actual retail demand for the product, causing substantial economic injury to many of its distributors.
According to the FTC’s complaint, Herbalife claims that people who participate can expect to quit their jobs, earn thousands of dollars a month, make a career-level income, or even get rich. But the truth, as alleged in the FTC complaint, is that the overwhelming majority of distributors who pursue the business opportunity earn little or no money.
For example, as stated in the complaint, the average amount that more than half the distributors known as “sales leaders” received as reward payments from Herbalife was under $300 for 2014. According to a survey Herbalife itself conducted, which is described in the complaint, Nutrition Club owners spent an average of about $8,500 to open a club, and 57 percent of club owners reported making no profit or losing money.
The small minority of distributors who do make a lot of money, according to the complaint, are compensated for recruiting new distributors, regardless of whether those recruits can sell the products they are encouraged to buy from Herbalife.
Finding themselves unable to make money, the FTC’s complaint alleges, Herbalife distributors abandon Herbalife in large numbers. The majority of them stop ordering products within their first year, and nearly half of the entire Herbalife distributor base quits in any given year.
The Herbalife settlement requires Herbalife to revamp its compensation system so that it rewards retail sales to customers and eliminates the incentives in its current system that reward distributors primarily for recruiting. It mandates a new compensation structure in which success depends on whether participants sell Herbalife products, not on whether they buy products.
The settlement also prohibits Herbalife from misrepresenting distributors’ potential or likely earnings. The order specifically prohibits Herbalife from claiming that members can “quit their job” or otherwise enjoy a lavish lifestyle.
In addition, the order imposes a $200 million judgment against Herbalife to provide consumer redress, including money for consumers who purchased large quantities of Herbalife products (such as many Nutrition Club owners, among others) and lost money. Information on the FTC’s redress program will be announced at a later date.
Ok, that’s a wrap folks… See you at the Bar!
Snapchat got Slapped…with a potential consumer fraud and unfair business practices class action lawsuit this week—over allegedly exposing minors to “harmful, offensive, prurient, and sexually offensive” content without warning.
Here’s the skinny: the Snapchat lawsuit was filed by the mother of a 14 year old boy (John Doe), who alleges publishers are sharing content that parents would likely prohibit if they knew their children were being given unrestricted access. The complaint highlights stories like Buzzfeed’s “23 Pictures That Are Too Real If You’ve Ever had Sex With A Penis,” (illustrated with scenes from Disney animated movies) and Vice’s “Everything You Ever Wanted To Know About Penis Tattoos.” Who knew there was such a thing—?
According to the proposed suit, “Innocent pictures from John’s favorite Disney movies were perverted into obscene sexual images and text.” Nice.
Additionally, the offensive content is mixed with messages from Snapchat stating things like, “If They Don’t Snap You On A Daily Basis It Isn’t Real,” according to the complaint.
Snapchat allows users to send photos and videos that disappear. According to the suit, while the app is frequently accused of promoting sexting among teens, parents may not be aware of the explicit content being shared on Discover by media outlets, without any warning or age verification.
“Although Snapchat claims to have pivoted away from its founding roots which included promoting surreptitious ‘sexting’ with disappearing text and images, the content Snapchat develops and curates on Snapchat Discover paints a different and dangerous picture,” the lawsuit states.
Created in 2015, Snapchat Discover was designed as a place where handpicked media outlets could share content. According to the complaint, “Snapchat exercises direct control over its editorial content and what is published.”
The suit alleges that while Snapchat’s terms of service does say that its app is restricted to users older than 13 years old, it does not warn against potential offensive content found on Snapchat Discover.
Caterpillar Exhaust(ed)…Here’s a beauty. Caterpillar Inc, has reached a preliminary $60 million settlement agreement in a defective products class action lawsuit alleging its engines equipped with exhaust emission control systems failed to work reliably, costing owners thousands.
The lawsuit claimed Caterpillar engines with the CAT Regeneration System (CRS), failed, causing the company’s ACERT C13 and C15 on-highway diesel engines to lose horsepower and shut down. The alleged defect resulted in Caterpillar-authorized dealer technicians having to repair the engines, they allegedly could not effectively do.
The Defendant denies the allegations in the lawsuit, and the Court has not decided who is right.
The Settlement offers payments to current and former owners and lessees of vehicles with EPA 2007 Compliant Caterpillar On Highway C13 and C15 engines (manufactured in 2006, 2007, 2008, and 2009) (“Subject Engines”).
Caterpillar introduced its ACERT engines as their alternative to exhaust-gas recirculation, or EGR, to meet 2004 emissions standards.
Class members who experienced no CRS-related repairs are eligible to receive, but not guaranteed, $500 for each subject engine.
Class members who experienced one to five qualified CRS-related repairs are eligible to receive, but not guaranteed, $5,000 per subject engine.
Those class members who experienced six or more qualified CRS-related repairs are eligible to receive, but not guaranteed, $10,000 per subject engine.
Each eligible class member also has the option—instead of seeking a payment as set forth above—to seek to claim losses up to a maximum of $15,000, experienced as a consequence of qualified CRS-related repairs. These losses can include but will not be limited to towing charges, rental charges and hotel charges. Proofs can include receipts, invoices, bills, etc.
All class members must file a claim in order to receive a payment.
The deadline to exclude yourself from the settlement is August 6, and the deadline to object to the settlement is August 21. The final fairness hearing is scheduled fro September 20, 2016.
Film Studio Interns Win One…Bit of a landmark this week—the employment class action lawsuit filed by interns who worked at 21st Century Fox Inc, and who alleged they should have been paid for their work at the company, but were not, reached a preliminary settlement this week.
According to court papers, Fox Searchlight Pictures and Fox Entertainment Group will pay $495 to each claimant who interned without pay for at least two weeks at various times between 2005 and 2010. Estimates suggest several dozen people are eligible to receive a share of the film studio intern settlement.
The ground breaking lawsuit sparked other, similar suits involving students and recent college graduates who alleged they worked free during their internships when, given their duties, they should have been paid. The lawsuits claim violations of state and federal minimum wage laws.
The two named plaintiffs in the 21st Century Fox class action, Eric Glatt and Alexander Footman, who interned on the 2010 movie “Black Swan,” would be paid a respective $7,500 and $6,000, provided the settlement agreement receives final court approval.
Ok, that’s a wrap folks… See you at the Bar!
Hoverboards—the tech fad of 2015—are crashing big time this week with a massive recall by 10 manufacturers. It seems that the “self-balancing scooters” as they’re also known, ain’t so safe. While intuitively, you might think—duh!—the problem is not what you might expect.
Apparently, there have been at least 99 incidents of the lithium-ion battery packs in self-balancing scooters/hoverboards overheating, sparking, smoking, catching fire and/or exploding including reports of burn injuries and property damage, according to the Consumer Product Safety Commission (CPSC). Now that does sound exciting. Certainly would liven up your walk around the park. Who said exercise is boring?
You can imagine it—there you are boogying down the street on one of these things—and suddenly you’re scooter is putting on a pyrotechnics display—complete with smoke and sparks. There’s fire at your feet! Onlookers might even think you’re making some uber hip video and start applauding. If you’re on one of these things in traffic, you could really be in trouble. Not to mention the onlooker distracted driving you’d cause—or worse.
The recall, by the way, is massive—something like 501,000 of these things are involved. And they’re not cheap to buy. The recalled scooter boards involved in the recall were sold at mass merchandisers nationwide and online retailers from June 2015 through May 2016 for between $350 and $900. But there are models that go for north of $1000. That’s a lot of cabs, or gym memberships…
Doing a bit of investigating into this toy, it seems that hoverboards are banned from roads and sidewalks in cities around the world. And—airlines and airports. OMG. Don’t even want to imagine that scenario. New York State has made it illegal to ride one on public roads or walkways, as have Australia and the United Kingdom, and many schools (including UCLA), malls and other public places are also jumping on the banning bandwagon.
According to a story on CNET, “retailers such as Amazon and Overstock are stopping sales of some models or even telling consumers to trash ones they’ve already received.”
So, does this mean it’s back to the gym afterall? There’s likely no meaningful exercise—physical exercise—to be had with one of these things. And in fact they don’t hover—so forget any “Back to the Future” fantasies. These boards have two wheels—one on each end—like a horizontal skate board. You’re not required to move the thing along yourself. Just control and steer it with your legs and body. That’s all (ha!) So hop on and, well, catch fire. Wonder if you can get life insurance for riding one of these things…
Apparently they do take some getting used to—a rider needs to learn to balance on them using the two pressure-sensitive footpads that control speed and steering. So no drinking and driving with this baby and definitely NOT something you want to take to a party… or have your teenager take to a party. FYI—these things can do up to 10 MPH—3x average walking speed, so it’s best to kill the Pokemon Go while hoverboarding as well.
CNET also reports that Hoverboards have minimum and maximum weight limits, which are meant to protect the rider and scooter. “Most boards also won’t operate going up or down steep hills, usually over 30 degrees. There are no height limits associated with the boards, though keep in mind that most lift you about four inches above the ground. If you’re particularly tall, you’ll run a greater risk of hitting your head while riding.” Sounds great.
So enter the safety gear—yes—you knew there had to be a merchandising opportunity lurking here somewhere…helmets, knee pads, elbow pads and wrist guards—but nothing that would presumably protect you in a meaningful way from an explosion or fire. Maybe a hazmat suit? Maaaybe not. It does, however, paint a pretty laughable picture—suited up like Michelin man, wobbling uncontrollably as you lurch down the street with sparks and smoke emanating from your feet. It’s a Snapchat moment waiting to happen. The next YouTube sensation, if only for a half day. Yup—a great recreational device—for the onlooker not the rider. (I’m reminded of the Darwin Awards).
All in all, the whole thing sounds way too stressful. One would need anti-anxiety drugs just to get on the thing. Never mind taking it out—actually riding it in public. Anywhere, day or night—preferably never.
You can check out the full hoverboard recall here.
Time for a walk. On the ground—in runners. Oh yeah baby. There’s a lot to be said for doin’ it old school.
UPS not Delivering… on reporting pay, allegedly. The global courier service got hit with a UPS employment class action lawsuit this week, alleging the company cheated employees out of their rightful wages by failing to pay “Reporting Pay,” as required by Massachusetts law.
Cort Szafarz, the named plaintiff in the lawsuit, worked as a part-time package handler at UPS from September 2014 to May 2015 in their Chelmsford, Massachusetts facility. He was scheduled to work Monday through Friday from 6pm to 11pm. Although he planned to work for the full shift every weekday, and showed up at the Chelmsford facility every weekday ready to do so, his shift was often cancelled or shortened due to a lack of work. On such days, Mr. Szafarz and others were not paid for at least three hours of work. When Mr. Szafarz complained to Human Resources, he was told, “That’s just the way we do it here.”
Massachusetts, like many other states, requires employers to pay employees who show up for their scheduled shift, but are sent home due to a lack of work. This “Reporting Pay” law, as it is known, requires employers in Massachusetts to pay an employee for at least three hours of work, at the minimum wage, for every shift cancelled or shortened after an employee’s arrival at the job site.
Mr. Szafarz seeks to represent a class of other UPS hourly employees in Massachusetts who, like him, were not paid appropriately when their shifts were cancelled or shortened.
They can Help? Maybe not at Home Depot… Consumer fraud class action against Home Depot hoping for a home run. This week the DIY giant found itself on the end of a consumer fraud class action lawsuit over allegations it failed to provide services and products as agreed.
To narrow that down just a bit, the Home Depot lawsuit, filed by plaintiff Ellen Coffen of California, claims that Coffen purchased new cabinets from the defendant for $12,000 with a $3,000 installation fee and additional $50 fee.
But… the cabinets Coffen purchased didn’t fit in the space designated for the kitchen installation, despite the fact that Home Depot installers had measured the space prior to their installation. Coffen claims that as a result, she had to return the cabinets to the defendant. Further, she had to pay for the second round of installation and the second set of new cabinets. Coffen asserts that the defendant allegedly failed to perform its duties and offer resolution when this issue arose.
Coffen states in the suit that Home Depot is in fact responsible as the DIY store allegedly assured her that they obtained the right measurement of the space to accommodate the cabinets that she purchased and that the cabinets were to be installed as part of their agreement.
The lawsuit cites alleged fraud and deceit, negligent infliction of emotional distress, breach of the implied covenant of good faith and fair dealing, breach of express and implied warranties, false advertising, violation of the Magnuson-Moss Warranty Act and unfair business practices.
The case is US District Court for the Northern District of California, San Francisco Division Case number 3:16-cv-03302-MEJ.
Meanwhile—back in Canada…Cash Store and Instaloans may need to borrow some dough. They have to pony up $10 million in settlement of a consumer fraud class action pending against the now defunct business. Class members in Ontario who took out loans, also called lines of credit, will now be able to collect their share of the settlement.
The lawsuit, which represents some 100,000 customers, alleged that Cash Store Financial Services Inc., broke the Payday Loans Act by exceeding the maximum cost of borrowing allowed. According to Ontario law, it is illegal for payday lenders to charge more than $21 on every $100 lent. The plaintiffs claims that the defendant skirted the rules around maximum interest rates by adding additional fees for setting up debit cards, bank accounts, and other products.
At its peak, the Cash Store Financial Services Inc, had 500 outlets at its peak.
Ontarians who took out payday loans, or so-called lines of credit from either Cash Store or Instaloans after September 1, 2011 are being asked to file claims to recover some of the illegal fees and interest they were charged.
Eligible class members with approved claims could receive at least $50, with some, including those who took out multiple loans, possibly receiving more. The final amounts will depend on how many claims are submitted. Timothy Yeoman filed the lawsuit was filed in 2012 alleging he borrowed $400 for nine days and was charged $68.60 in fees and service charges as well as $78.72 in interest, bringing his total borrowing cost to $147.32.
Ok, that’s a wrap folks… See you at the Bar!
During the past few months there has been what one could call a “rash” of consumer fraud lawsuits filed concerning products that do not contain ingredients as advertised, and / or 100% of the ingredients advertised etc. Case in point, last week CVS Health found itself on the end of a proposed consumer fraud class action lawsuit over allegations it falsely advertised the Aloe Vera content on its moisturizing gel.
The issue, it seems, is that the CVS Aftersun Aloe Vera moisturizing gel does not contain 100 percent aloe vera, but does contain anti-freeze. Seriously. An allegedly non-toxic antifreeze, but antifreeze nevertheless.
The lawsuit was filed by Patricia Bordenet, a customer in Illinois, who went out and had the product tested. So my question is, who does that? I have to admit it’s not the first thought that comes to mind when I’m in the drugstore—or any store for that matter—looking for a specific product to purchase. I trust the label. And, I’m guessing, therein lies the rub.
Hats off to Bordenet for getting the product tested, because likely most of us would not have suspected the product to contain antifreeze. Admittedly, we might have our doubts about just how much Aloe Vera the product contains—everything has a shelf-life, after all—but even if enquiring minds wanted more information—would you have gone to the trouble of having the product tested?
So much for taking things on face value. And face value is, presumably, what many companies depend on when they make the claims they do on their products, and god knows there have been some pretty outrageous ones.
Take, for example, the Kardashian endorsed Waste Gang corsets. The packaging on that, according to the lawsuit, claimed that it would burn fat and help women achieve a smaller waist. Well, I can see you might sweat off the weight, under duress of wearing the product, but that’s not something you would want to advertise.
The Waist Gang Society LLC (Society?) has to pony up a $5 million settlement for not telling it like it is—which is that the corsets redistribute the fat—not “burn fat and control the user’s weight,” Oh, if it was only that easy! Sign me up!
Back to the antifreeze. The other, more serious consideration with failure to disclose all the contents of a product—particularly a product that is either applied to the body or ingested, is that people using it may suffer an allergic reaction—or worse—as a result of exposure to that product. There you are in the ER with no idea how or why you got there. That’s helpful. And likely not something that was thought through when the labeling or advertising was developed. Giving the benefit of the doubt here.
And now we find ourselves at the precipice of the Slippery Slope. Because giving the benefit of the doubt is not always such a good idea, as is evidenced by a slew of drug injury settlements—most recently one for $70 million involving a young man who grew breasts as a result of using Risperdal. The jury found that the maker of the drug, Janssen, knowingly concealed information about the side effects of gynecomastia.
But I digress. Well, no, I just went down the Slippery Slope. So enough. Enough of the exaggerated claims, enough of the lies, why not just make a safe product that is what it claims to be? While that may be an altruistic notion, does that necessarily make it difficult? If it is too difficult—then off to court you go.