The fantasy is over…the game is up. Well, maybe. JP Morgan Chase and a host of others financial companies, including Visa, MasterCard and American Express got hit with a consumer fraud class action lawsuit this week for processing payments for DraftKings and FanDuel. The fantasy sports lawsuit, filed in federal court, also names Capital One Bank and two other payment processors as defendants. The lawsuit claims the banks and credit companies should have known that DraftKings and FanDuel were running illegal internet gambling rings in violation of state and federal laws. “Significantly, the burden is on the payment provider to prohibit restricted transactions or risk civil or criminal punishment,” the complaint states.
raftKings and FanDuel are the two largest players in the daily “fantasy sports industry.” The game allows players to pick a roster of professional athletes from all of the major sports and win cash prizes if their team wins that night’s, or week’s, games, depending on the sport.
Earlier this month, New York Attorney General Eric Schneiderman sent DraftKings and FanDuel cease-and-desist letters The stating daily fantasy sports companies are misleading New York consumers into thinking their services are like traditional fantasy sports and are causing the same kinds of social and economic harms as other forms of illegal gambling.
“Daily fantasy sports is neither victimless nor harmless, and it is clear that DraftKings and FanDuel are the leaders of a massive, multibillion-dollar scheme intended to evade the law and fleece sports fans across the country,” Schneiderman said in a statement.
The case is Guttman et al v. Visa Inc. et al, case number 1:15-cv-09084, in the U.S. District Court for the Southern District of New York.
Meanwhile, back on the employment front…Urban Outfitters Inc. and subsidiaries Anthropologie Inc. and Free People Inc. are facing a wage and hour class action lawsuit filed in California state court, alleging they use a call-in scheduling policy in violation of California labor law. Seen a few of these now…am reminded of that tune…”how long has this been going on?”
Filed by former Urban Outfitters retail sales clerk Mariah Charles, the Urban Outfitters lawsuit asserts the defendants requires some of their employees to call their managers two hours before they are tentatively scheduled for a shift in order to find out whether or not they will work that day. The company policy states that if the employees don’t work, they aren’t paid for making the phone call or for clearing their schedule for the day, according to the complaint.
“Defendants frequently do not allow employees to work a scheduled call-in shift, thereby depriving the employee of the opportunity to earn wages for the time they have made available to defendants,” the lawsuit states. “Regardless of how many days and hours employees are in fact permitted to work, employees are required to mold their lives around the possibility that they will work each and every call-in shift.”
According to the complaint, the call in policy also makes it impossible for employees to navigate eligibility requirements for government benefits like housing assistance, food stamps and child care subsidies, which are typically based on income or hours worked per week.
“Because employees are not permitted to effectively use their time for their own purposes when making the call-in inquiry, under California law, they are entitled to wages,” the lawsuit states.
The lawsuit claims the defendants’ policy violates Section 5 of California’s Industrial Welfare Commission Wage Order 7-2001, which dictates that if an employee is required to show up for work and does, they are entitled to half a day’s pay. Additionally, the company fails to pay minimum wage for the time the workers spend on the phone with their managers checking to see if they’ll work that day.
The complaint alleges failure to pay minimum wage, failure to pay reporting time pay, failure to provide accurate wage statements, failure to keep accurate records, failure to pay earned wages upon separation of employment, unlawful business practices, unfair business practices, and asks for civil penalties under the Private Attorneys General Act.
Charles is represented by Marcus J. Bradley, Kiley L. Grombacher and David C. Leimbach of Marlin & Saltzman LLP. The case is Mariah Charles v. Urban Outfitters Inc. et al., case number BC6-1952, in the Superior Court of California, County of Los Angeles.
Here’s one for the books. In what is considered a bellwether defective hip implant lawsuit, a jury has just handed down an $11 million verdict against the makers of allegedly defective implants. In this trial, part of a multidistrict litigation (MDL) against Wright, the Atlanta jury found the plaintiff did have a defective hip implant, and that Wright had misrepresented the safety of the device.
According to court documents, the Wright hip verdict includes $1 million in compensatory damages and $10 million in punitive damages. Robyn Christiansen, the plaintiff, is one of about 2,000 people who filed a complaint or entered a tolling agreement after receiving allegedly defective Wright Conserve Hip Implant Systems. She filed her lawsuit in 2013, seven years after receiving her implant.
According to the complaint, Christiansen underwent surgery to receive the implant in 2006, based on information provided by Wright that the metal-on-metal design was better compared with those made a polyethylene lining.
Christiansen began experiencing severe pain in her right hip in 2012, during exercise. She underwent surgery to correct what her doctor thought to be a loose component. However, during the surgery her doctor discovered the surrounding soft tissue had been damaged by metal debris that was causing the hip to fail, according to the complaint.
“A former ski instructor for over 47 years, Ms. Christiansen is now limited in her ability to enjoy the things she has always loved to do, such as water-skiing and hiking,” according to a written statement provided on behalf of the plaintiff’s counsel.
The case is In re: Wright Medical Technology Inc., Conserve Hip Implant Products Liability Litigation, case number 1:12-md-02329, in the U.S. District Court for the Northern District of Georgia.
Ok – that’s it for this week folks –Happy Thanksgiving Weekend!
Wonder if the Bird will Sing? Twitter unit MoPub is facing a proposed Internet privacy violations class action lawsuit alleging the mobile ad management platform installs a “supercookie” in Verizon subscribers’ Internet browsers, which tracks customers online activity.
Plaintiff Shamma Singh, a California-based Verizon subscriber, states in the MoPub complaint that the tracking IDs created by MoPub Inc. for her and other Verizon Wireless users to track their behavior for targeted advertising, are very hard to identify and that computer experts have struggled to detect them. The lawsuit claims that the marketing company offers only a bogus opt-out mechanism that raises a logical catch-22.
“Although MoPub Inc. appears to have an opt out mechanism, Verizon users have no knowledge that MoPub Inc. exists or is tracking them, rendering the opt out idea wholly ineffective,” the complaint states. “There is no reason why consumers would know to visit MoPub Inc.’s page to attempt to avoid tracking if they have no knowledge of its practices.” Of course not—who would think, right?
But wait—there’s more…the opt-out option doesn’t even require MoPub to stop the tracking. Rather, it’s simply a request that MoPub can choose to ignore, according to the complaint. Consequently, the lawsuit states, MoPub has compiled “deeply personal and private information” on users without their knowledge or consent and designed its supercookies to be practically “indestructible,” according to the plaintiff. Further, deleting cookies from a browser won’t remove MoPub’s code, the lawsuit states. Of course not. So really, should we be surprised?
Singh seeks to establish a class of the “thousands or millions” of Californians who used Verizon to access the Internet or use applications on their phones or computers, stating the statute of limitations doesn’t apply because MoPub concealed its tracking.
The lawsuit is Case No. BC601072, in the California Superior Court, County of Los Angeles.
McDonald’s Customers not Hep to That? Ok—didn’t see this one coming. Nor did Mickey D’s, I’m betting. A personal injury class action lawsuit has been filed against the operator of a McDonald’s restaurant in Waterloo, New York, by a customer who alleges he and others who ate at the restaurant were exposed to food and drinks prepared by a worker with the hepatitis A virus, which causes contagious liver infections.
Filed in New York state, against Jascor Inc, the lawsuit seeks class status for potentially affected customers, who may number more than 1,000.
The McDonald’s lawsuit stems from a Seneca County Health Department confirmed a case of hepatitis A in a food service worker at the Waterloo McDonald’s, on November 13.
Public health officials said diners had a low risk of contracting hepatitis A. However, they urged customers who had consumed food and/or beverages from the Waterloo restaurant on November 2, 3, 5, 6 and 8 to consider treatments if they were not previously vaccinated against hepatitis A.
According to the complaint, plaintiff Christopher Welch purchased and consumed products from the restaurant on at least one day when the infected worker was on duty.
The complaint alleges McDonald’s is liable because it sold food and drink that may have been contaminated with hepatitis A, exposing customers to possible illness and forcing them to receive a vaccine or take a blood test. Further the restaurant failed to exercise due care in assuring that its employees obtained hepatitis A immunization and for allowing one or more employee to work while infected with the virus, the lawsuit states.
Although plaintiffs are not seeking damages, the complaint states the losses could be for lost wages; medical and medical-related expenses; travel and travel-related expenses; emotional distress; fear of harm and humiliation; physical pain; physical injury; and other incidental and consequential damages that could arise.
The case is Welch et al v. Jascor Inc d/b/a McDonald’s Restaurant, No. 49796.
Here’s a Styln’ Settlement for the Folks who Do your Do… To the tune of $5.75 million.That’s right rolks. The settlement, if approved, will end an unpaid wages and overtime class action lawsuit pending against Regis Corp, filed by workers in the company’s hair salons who allege they were shorted on overtime and minimum wage pay.
The preliminary Regis stylist deal would end claims that Regis violated California labor law and the Fair Labor Standards Act as well as address claims that they violated the state labor laws by failing to provide rest and meal periods, failing to pay wages due upon termination, making illegal payroll deductions, and failing to reimburse business expenses, among other claims, according to a third amended complaint included in the court filings.
The latest complaint in the case would consolidate a similar suit that was ongoing in California state court into the instant action. The new case would include three potential sets of classes: stylists employed by Regis in California from May 2010 through the date when the court enters a preliminary approval order, other Regis employees in California during the same period, and members of either of the first two groups who stopped working for the company during the period, according to the proposed settlement.
Under the deal, the three named plaintiffs would share $15,000 in service awards; each putative class member who separated from the company would get $150; and Regis would pay $20,000 in penalties to various state funds. The overall putative class of approximately 5,573 would share the remaining funds, less legal and administrative costs, on a prorated basis, with two-thirds going to the stylists and one-third going to the other workers.
The case is Fong et al. v. Regis Corp. et al., case number 3:13-cv-04497, in the U.S. District Court for the Northern District of California.
Ok – that’s it for this week folks – see you at the bar! And Happy Columbus Day!
Right to access public land, discrimination, public safety or an overstated sense of entitlement? According to a group—a small group—of snowboarders—ok 4 snowboarders, the issue(s) lies behind door numbers 1 and 2. And they’ve filed a lawsuit to prove it. So what the heck am I talking about? To allow boarders on ski hills or not. Oh yeah baby—that old chestnut.
The powers that be in charge of Alta Ski Area in Utah have banned boarders from the ski hills. Why? They claim safety of the skiing public. So the 4 boarders are suing. They want access to them thar hills. They brought their lawsuit in 2014, and are alleging discrimination on the part of the resort.
In the interest of providing an unbiased opinion (possibly an oxymoron but let’s roll with it) I should disclose that I am a skier not a boarder. Having been clipped myself by a snowboarder—I can attest it hurts. Luckily, I was not injured but many others have been, some seriously. So, there is a heated debate about allowing boarders and skiers on the same slopes.
Back to the lawsuit…the lawyers representing the resort successfully defended their ban stating that resort officials made a business decision to entice skiers to the private resort east of Salt Lake City by promising a snowboarder-free experience, (kinda like a sand-flea free beach experience?) and it’s well within its rights to keep snowboards off the slopes.
The US Forest Service, which approves a permit for Alta, is also on the side of the resort, and backed up their boarder-free policy in court.
Attorneys for the four boarders have offered the counter argument that Alta doesn’t have the right to keep snowboarders off public land designated by Congress for skiing and other sports, pointing to 119 other ski resorts that operate on public land that allow snowboarding.
Of course, part of the problem is that Alta is world-class skiing and boarding territory. So everyone wants in. But at some point safety must come into the decision-making process. After all, we don’t allow cars on bike paths. Hell, pedestrians aren’t even allowed on bike paths, but that’s a whole cycling vigilante thing we best not get into here. I digress.
Back to the boarders. Their issue, their lawyers state, is with Alta’s claim that skiers find the slopes safer because they don’t have to worry about being hit by snowboarders who cannot always see skiers because their sideways stance leaves them with a blind spot. (Yes—true enough). And, the lawyers continue, Alta’s ban is irrational and based on stereotypes of snowboarders. Ok, don’t get me started.
Apparently, Deer Valley in Utah and Mad River Glen in Vermont also ban snowboarding.
In any event, the case got tossed last year by a federal judge in Utah (wonder if he is a skier…) so the four snowboarders who have now named themselves “Wasatch Equality,” have appealed to the 10th Circuit Court of Appeals, as you do.
This week, Fox News reported that the 10th US Circuit Court of Appeals heard arguments in the case. Wasatch Equality’s lawyer, Jonathan Schofield, argued the snowboarding ban violates the Equal Protection clause of the Fourteenth Amendment to the US Constitution by denying them access to the mountain. Seriously?
Yup. However, Schofield insisted he was not trying to get snowboarders declared a “protected class,” but press for equal access on government land. Surely they can still access the mountain? They just can’t go snowboarding on it. That’s different, I think.
“You don’t get to play favorites and decide who can come and who can’t,” he told FOX 13. Hmmm.
One of the three judges on the panel, Judge Gregory Phillips, asked “What if I want to take my toboggan down the slope? Would that be an equal protection violation?” Hello! Love it.
Alta insisted that it doesn’t discriminate against people, but has an equipment policy. “This case is about equipment. It’s not about people. It’s about a board,” said Alta Ski Area attorney Rick Thaler. “They’re the same person, the same beliefs, same race, gender, speech, clothing, cultural group.” Not quite sure what he’s on about there.
And so this goes on. The judges have taken the case under advisement with a decision is expected in a matter of months. Maybe at the end of ski season?
So—go get your skis on!
Cheery-oh-ho-ho-NOT! General Mills—accused of going a heavy on the hot air and light on substance. Cheerios is the subject of a false advertising class action filed alleging that General Mills misleads customers about the amount of protein in its popular cereal Cheerios Protein. Filed in federal court, the lawsuit asserts that a side by side comparison of Original Cheerios and Cheerios Protein shows that Cheerios Protein does not contain as much protein as the original version. Say wha…?
The Cheerios lawsuit asserts that General Mills is marketing Cheerios Protein as a “high protein, healthful alternative to Cheerios” when it does not contain much more protein than Original Cheerios. “Rather than protein, the principal ingredient that distinguishes Cheerios Protein from Cheerios is sugar,” the suit states.
According to the complaint, the Nutrition Facts Panel on the boxes cite a 4 gram difference in protein (7 for Cheerios Protein versus 3 grams for the original), a “smidgen”. However, the lawsuit attributes that to a larger serving size (55 grams as opposed to 27 respectively). The complaint goes on to state that for the same 200 calories, there is only a 0.7 gram difference between Cheerios Protein Oats and Honey (6.7 grams) and Original Cheerios (6 grams).
Further, the lawsuit alleges that Cheerios Protein contains significantly more sugar than Original Cheerios cereal. By way of example, a 1 1/4-cup serving of Cheerios Protein Oats and Honey has 17 grams of sugar, whereas Original Cheerios has 1 gram for a 1 cup serving. Similarly, a 1 1/4 cup serving of the Cinnamon Almond variety has 16 grams, according to the documents.
The Cheerios lawsuit states that the advertising for Cheerios Protein says it’s a “great start to your day” along with pictures of “appealing photographic images depicting healthy and successful kids and parents.” Further, “These claims and images are part of a sophisticated marketing campaign to encourage parents to purchase Cheerios Protein for their children; and the sweet taste of the product helps ensure that children will eat the product,” the lawsuit states.
In a report by ABC News, the agency stated it also found Cheerios Protein Oats and Honey to have more sugar than every other variety of Cheerios on the market: with 10.2 grams for a 3/4 cup serving. Apple Cinnamon Cheerios has the second most with 10 grams and third is Cheerios Protein Cinnamon Almond at 9.6 grams. Frosted Cheerios, Fruity Cheerios and Chocolate Cheerios have 9 grams each, the calculations found.
Heads Up for GNC Supplement Users…there’s more to those supplements than you thought… No stranger to lawsuits, GNC is facing a dangerous drugs class action alleging the company includes dangerous ingredients, such as picamilon, a synthetic neurotransmitter, and amphetamine-like BMPEA in its products. Filed by lead plaintiff, Chris Lynch, the lawsuit asserts that the company knew or should have known the products were actually “spiked” with BMPEA.
Picamilon is a prescription drug legal in some countries, but not the United States. It is used to treat a variety of neurological conditions. BMPEA is a synthetic chemical similar to amphetamine that is banned by the World Anti-Doping Organization, according to the complaint.
“This action arises from defendant’s failure, despite its knowledge (read consumer fraud) that the products are dangerous and not fit for dietary purposes, to disclose and/or warn plaintiff and other consumers,” Lynch states in the lawsuit. “Indeed, defendant has undertaken to conceal vital information concerning the risks of the product.”
The proposed GNC class action cites Oregon attorney general Ellen Rosenblum’s October 22 suit alleging that the company sold dietary supplements that contained picamilon and BMPEA.
“Despite this … notice to GNC that Picamilon is an unlawful ingredient and that products that contain Picamilon are adulterated, GNC continued to sell products that contain Picamilon nationally and in Pennsylvania,” the suit states. “GNC did not cease selling such products until after Oregon’s Attorney General issued a document ‘Notice of Unlawful Trace Practices and Proposed Resolution’ on September 21, 2015.”
Further, Lynch alleges that as early as 2007, GNC was aware that picamilon is a synthetic drug created by Soviet researchers, and not a lawful dietary ingredient, pointing to documents reviewed by GNC’s technical research senior project manager.
Despite widespread knowledge that the Acacia rigidula products were at high risk of having been adulterated with BMPEA, GNC continued to sell these products without testing them to see if they were spiked with BMPEA, or telling consumers about the risk, according to the complaint.
The case is Lynch v. GNC, case number 2:15-cv-01466 in the U.S. District Court for the Western District of Pennsylvania.
JCPenney’s Pricing Has Preliminary Settlement… JCPenney has reached a preliminary settlement agreement in a consumer fraud class action lawsuit brought on behalf of California customers who purchased certain JCPenney private or exclusive branded products.
The lawsuit, filed in 2012, arises from the price comparison advertising of private and exclusive branded products JCPenney used in California between November 2010 and January 2012. Plaintiff claims, among other things, that JCPenney’s practices did not comply with California law. JCPenney denies the allegations and is entering into this settlement to eliminate the uncertainties, burden and expense of further protracted litigation.
If approved, according to the terms of the settlement, JCPenney will make available $50 million to settle class members’ claims. Class members will have the option of selecting a cash payment or store credit. The amount of the payment or credit will depend on the total amount purchased by each class member during the class period.
The settlement agreement also states that JCPenney will implement and/or continue certain improvements to its price comparison advertising policies and practices, including periodic monitoring and training programs designed to ensure compliance with California’s advertising laws.
The lawsuit, Cynthia E. Spann v. J.C. Penney Corporation, Inc., is pending in the United States District Court for the Central District of California.
Ok—That’s a wrap folks… Happy Friday…See you at the Bar!
A few weeks ago, a man in Winnetka, Illinois filed a lawsuit against a national coffee and tea chain, Peet’s Coffee & Tea, alleging he has been cheated for the past five years. Specifically, he claims the amount of coffee he’s been served versus the amount of coffee advertised (and for which he’s paid) are different—he’s gotten less than promised—of course. And now he’s going to do something about it.
He’s waited five years to say something and this is how he does it? Ok—where do you start?
Well, let’s try the facts—which shouldn’t take long. On October 29, Robert Garret’s attorney, Alexander Loftus, filed a complaint on behalf of his client and presumable “others similarly situated”, in Cook County Circuit Court against Peet’s, which is based in Emerysville, California. The Peet’s lawsuit claims that for several years now the company has shorted its customers on the amount of coffee they receive when ordering either 12-ounce or 32-ounce cups of Peet’s Press Pot coffee.
A 32 oz cup of coffee? Seriously? Why not just get an enema? To put this in perspective for all of you Starbucks folks, that’s like downing a Venti coffee and then ordering another Tall one for the road.
I digress. Back to the facts, such as they are. According to the complaint, the menu board at the coffeehouses state those sizes, and customers may believe they are paying for those sizes. BUT, “in fact,” they receive significantly less coffee. For instance, the complaint asserted the largest cup in which beverages are sold at Peet’s can only hold 24 ounces of coffee. “Only”? “In truth, they are at least 25 percent less than the advertised volume,” Garrett’s complaint stated. He’s certainly observant.
The complaint goes on, no surprise, to state that the volumes referenced on the menu board may actually refer to the size of the French press devices in which the coffee is steeped. BUT, the complaint states that by referencing the volumes on the menu board, Peet’s intended to fool customers into believing they are actually receiving that much coffee.
“Defendants (Peet’s) have engaged in conduct designed to induce, or having the affect (sic) of inducing, consumers to believe that they are receiving materially more ounces of press coffee for their money than they actually are,” the complaint said.
Conversely, getting the full 32 oz of coffee could surely induce a few things as well, but clearly Garrett is willing to accept any side effects there.
Garrett claims that the French Press coffee is the only beverage Peet’s sells by specific volume. Everything else is sold by general sizes such as small, medium and large. 32 ounces would, I feel safe in saying, constitute super-sized large. In fact, it’s up there in Big Gulp territory (quick factoid: the original BG debuted at 32 oz back in 1976).
FYI—Garrett states that he buys his Peet’s coffee at the chain’s store at 817 Elm Street, Winnetka. (Is there no store manager he could have spoken with about this?) He believes there are thousands of others who ordered Peet’s Press Pot coffee at the chain’s nearly 250 locations nationwide who could join his lawsuit, should the court allow it to proceed as a class action. Well, it is a pressing matter—ha ha—pardon the pun but I couldn’t resist.
According to the potential class action, Peet’s actions have violated state consumer fraud laws, and constituted breach of contract and unjust enrichment. Garrett has asked the court to award unspecified compensatory damages and fees for himself and other members of the putative class.
What about coffee for life? Bring your own cup…