Guess we’ll be finding out. Yep—we finally have a farting employee lawsuit. But what about opera singer Amy Herbst, you say? (A precedent!) Yes, true, she was a farting plaintiff as well—but she didn’t get fired. This guy got fired.
So…is it a lot of hot air about nothing? No actually. At least not from the sound of it. This poor guy lost his job because he couldn’t stop farting, and so he did what any self-respecting person would do—he’s sued is ex-employer. And, in a show of solidarity, so has his wife—they both worked for the same company—a New Jersey pork roll maker. Let’s just skip the obvious puns here.
So the back story on this is, of course, rational. Richard Clem worked as a comptroller at Case Pork Roll Co. Before the random and fairly continuous farting developed, he was obese—having reached as much as 420 pounds. In an effort to remedy this situation he underwent gastric bypass surgery in 2010.
So far, so good? Nope, afraid not. According to his lawsuit, he is suffering from constant flatulence as a side effect of the surgery. Fantastic! According to his wife’s lawsuit, Louann’s husband experiences “extreme gas and uncontrollable diarrhea” that Richard himself said made him have to “sit on a toilet 24 hours a day.” Nice. Thanks for sharing. That’s gotta put a serious kink in any plans you have—and test your relationships.
“I couldn’t go out anywhere, go to the movies, to the market, you name it, without having to look for a bathroom everywhere I went.” You think? It’s bad enough when you get the occasional episode on the bus or in a movie theater but—any place, any time? All the time? I’d be suing the surgeon.
Now—Richard is 70 years old. He admits that his condition puts him under constant stress and mental anguish since he “couldn’t control” his “very embarrassing” issue. “Some people think it’s funny but if you have to live with my condition it’s not very funny at all,” he told The New York Post. Yes—thinking about it for even half a minute gets tediously depressing, never mind living with it.
Anyway—cut to his boss—who at some point had obviously had enough of this. Thomas Dolan, the president of Case, claims that Mr. Clem’s seeming inability to control—in any way—his flatulence and the ensuing aroma—was obviating the scent of pork rolling. OMG. I so don’t want to know anymore…
And nor did Dolan, who filed a five-page complaint with the Equal Employment Opportunity Commission that was “full of inaccuracies ” and illegally fired him, Clem said. “He did whatever he could to get rid of me,” Clem states. Ok—not taking sides here—but can you blame the guy? Especially if you’re running a food processing plant. OMG. OMG. OMG…
According to my trusty source, The NY Post, Dolan allegedly told Louann that “This can’t go on. We can’t run an office and have visitors with the odor in the office,” and “We have to do something about Rich,” the lawsuit apparently states.
When Richard attempted to explain to Dolan that his breaking wind was simply a side effect of his surgery, Dolan told him, “Oh I don’t believe that, there’s gotta be something wrong with you,” Richard said. Well, yes, actually, there is something wrong with him—it’s medical and perhaps a medical solution should be sought? More on that in a minute.
So, on February 28, 2014 Richard let out his last fart on Case territory—he was fired. The same day his wife quit Case due to all the negativity directed toward her husband. And they lawyered up.
David M. Koller, the Clem’s attorney, said he is proud of the couple. “I’m proud of my clients for being brave enough to discuss something that is personal and perhaps embarrassing and they are looking forward to the court process and will accept the results of the judicial process,” Koller said.
Richard Clem is looking for the value of three weeks paid vacation and two years’ salary which he believes will total about $250,000. The Clems are suing under the federal Americans with Disabilities Act and the state Law Against Discrimination because of her association with her husband, who was 420 pounds and had an obesity disability, according to the lawsuit.
A post script here—since being fired, Richard Clem claims to have acquired the ability to control his gas, about 90 percent of the time, by taking medications that cause him to become constipated. Oh—that’s good. Let’s hope that doesn’t backfire. Pardon the pun.
Another week…another data breach lawsuit. This one is filed against payment processor Yapstone, the company that handles the money for Vacation Rental By Owner (VRBO). Most seriously disturbing.
The class action was filed by a customer in New Jersey who claims the company is negligent and in breach of contract because it failed to protect customer data from a possible breach. In the VRBO complaint, Plaintiff, Jonathan Koles alleges that he was notified by letter by YapStone on September 11 that his “[e]mail and [b]ank [a]ccount were potentially exposed” in a possible breach that happened sometime between July 2014 and August 2015. According to the letter, Yapstone had first learned of the potential hack on August 4th.
Koles claims that YapStone Inc, failed to take reasonable measures to protect its customers’ personal information, promptly notify them of the possible breach and specify exactly what information may have been compromised.
According to the lawsuit, “As a result of Defendant’s ongoing failure to notify consumers regarding what type of [personally identifiable information] has been compromised, consumers are unable to take the necessary precautions to mitigate their damages by preventing future fraud.”
As a result of the data breach, Koles now pays $29.99 a month for identity protection services, has had to cancel credit cards and faces “imminent danger” that his personal information could be used for fraudulent purposes, the lawsuit states.
Because VRBO customers were required to accept payments online and provide their bank account information, YapStone breached an implied contract with customers in failing to safeguard their financial information, the complaint adds. In addition to his claims of negligence, breach of contract and unjust enrichment, Koles filed claims for violations of California’s Unfair Competition Law and the state’s Data Breach Law on behalf of a nationwide class. The suit also raises claims for violations of the New Jersey Consumer Fraud Act and the New Jersey Data Breach Act on behalf of Garden State consumers.
Koles asked the court to order YapStone to adopt “appropriate methods and policies” for consumer data collection and disclosure of personal information, pay for three years of credit card monitoring services and notify customers of the breach. He also seeks to recover damages, including actual, compensatory and statutory damages, as well as equitable relief, restitution, disgorgement, costs and attorneys’ fees.
The case is Jonathan Koles v. YapStone Inc., case number 3:15-cv-04429, in the U.S. District Court for the Northern District of California.
Hyatt feasting on ill-gotten gains? Maybe…Hyatt Hotels was hit with an unpaid wages and overtime class action lawsuit this week, alleging the global hotel chain fails to properly pay its banquet servers their tips and withholds overtime pay.
Filed by Nancy Livi, the Hyatt lawsuit is brought on behalf of current and former employees of Hyatt-branded hotels in Pennsylvania. Specifically, the complaint alleges Hyatt Hotels Corp. and its affiliates illegally diverts servers tips and refuses to pay overtime when certain employees have worked in excess of 40 hours per work week.
These actions, the lawsuit asserts, violate various laws including the Fair Labor Standards Act. The plaintiffs claims they have been seriously harmed by the company’s actions.
According to the lawsuit, customers who use the hotel for the special events at which banquet servers work are charged a set fee in addition to the charges for their events. These fees are regularly used to pay banquet servers a tip, forming part of their compensation. That fee, which is referred to as both a gratuity fee and service charge in the complaint, is divided amongst the banquet servers, with a portion of the fee being kept by the hotel, for the hotel.
The complaint alleges that Hyatt has refused to divulge information related to how much of the fee it keeps, despite requests by employees for information regarding the pay practices and lack of transparency.
According to the lawsuit, the negligible amount of gratuity banquet servers receive is not enough to be considered a tip for purposes of complying with the FLSA’s minimum wage provisions. In addition, the suit alleges that Hyatt, in its Pennsylvania hotels at least, has refused to pay overtime, even when banquet servers have worked over 40 hours in a week. “Defendants have been aware of the hours worked by the class members but have failed to pay the class members the full amount of wages to which they are entitled for this work time,” the complaint states.
The Hyatt lawsuit seeks class certification, as well as to recover unpaid tips and overtime wages, plus all available relief. According to the complaint, the class likely contains at least 40 members. Nancy Livi, et al v. Hyatt Hotels Corp., et al, case number 2:15-cv-05371 in the U.S. District Court for the Eastern District of Pennsylvania.
Ok—if it sounds too good to be true….remember Vitaminwater? (yes—it’s a new noun apparently.) Well, Coke just reached a $2.7 million settlement to settle the Vitaminwater consumer fraud class action. The lawsuit alleges the company falsely marketed the sugar content of the drink. Ya think?
FYI—the lawsuit was filed six years ago. Now that’s dragging it through the courts…
Under the terms of the Vitaminwater settlement, Coca-Cola Co, and Energy Brands Inc. will advertise on the labels that the products contain sweeteners. Further, they will place the words “with sweeteners” on two panels of the product’s labeling. Additionally, the beverage makers must state the amount of calories per bottle of the product on the product’s main display panel and include the statement, “excellent source [of certain nutrients,]” on the product’s labeling.
If approved, the settlement also cites a number of statements the defendants can no longer use to market Vitaminwater, including “vitamins + water = all you need” and “made for the center for responsible hydration,” according to the motion.
The parties are also seeking to certify two settlement subclasses which are all New York residents who purchased Vitaminwater in New York at any time from Janauary 20, 2003 to the notice date and all California residents who purchased Vitaminwater in California at any time from Jan. 15, 2015 to the notice date.
According to the terms of the agreement, each of the class representatives (aka, lead plaintiffs) will be awarded $5,000.
The cases are Batsheva Ackerman et al. v. Coca-Cola Co. et al., case number 1:11-md-02215, and Juliana Ford v. The Coca-Cola Co. et al., case number 1:09-cv-00395, in the U.S. District Court for the Eastern District of New York.
Ok—That’s a wrap folks… See you at the Bar!
Yes, it’s time for a flashback Friday! Remember all those great Volkswagen ads of years gone by? Simple. Witty. Dare I say…trustworthy. Best of all, they poked humor at themselves. They totally got how folks were like “wtf??” when they saw a car that resembled something you’d step on in a heartbeat. And they ran with it. Yesiree…totally ran—straight to the bank. And flower children everywhere made the VW Bug the automotive emblem of their age. Complete love-fest.
But that was then. Fast-forward to September 18, 2015 when news broke about something called a “defeat device“. It sounded like something you’d grab in Minecraft to kill the Ender Dragon—but alas, it turned out to be much more sinister. As we all now know, it’s what VW installed in its diesel autos to suppress emissions so that the cars would pass emissions testing on a dynamometer—aka a stationary “rolling road” used to test cars (and no, we didn’t know what that was either until a week ago). Those emissions, however, when on an actual road, were spewing upwards of 40x more toxic fumes than permitted. Uh-oh! Where’s the love now folks? To die-hard VW fans, it’s a jilt they’ll never get over.
And now there’s a stack of Volkswagen lawsuits piling up.
But it’s worth looking back…at some of those VW ads of yore, and imagining those same ads circa 2015. Yes, the ads on the right are totally fake–just to be clear. But it’s easy to see how they could well be art imitating life right now… so here goes…
Car of the People? Uhh…Mmaybe Not. This time a few weeks ago, the general public had not even heard of a defeat device—but this week? Volkswagen got hit with multiple lawsuits this week, including a $1-billion consumer fraud class action lawsuit in Edmonton, Canada, stemming from the admission by the automaker that it sold vehicles that were designed to skirt emissions laws. How? A little something called a Defeat Device.
Volkswagen has revealed that it had installed defeat devices in 11 million vehicles worldwide. So, likely this wasn’t an accidental memo misread… The devices are designed to ensure the autos pass emissions tests, but revert to producing emissions vastly in excess of emission standards once the tests are over.
The VW lawsuit states that “by manufacturing, testing, distributing and selling affected vehicles with defeat devices that allowed for improper levels of emission, Volkswagen violated the common law and legislative standards, was negligent, defrauded its customers, and engaged in unfair competition.”
Furthermore, the lawsuit claims that had the plaintiffs known of the defeat device, “they would not have purchased or leased those vehicles, or would have paid substantially less for the vehicles than they did.”
The Volkswagen complaint criticizes the alleged fraudulent behavior as “high-handed and reckless, intentional, fraudulent or grossly negligent,” worthy of a penalty that “recognizes the purposes of class actions” while protecting consumers and punishing or deterring “wrongful corporate conduct.”
There is also concern regarding loss of value to the vehicles on resale, the trouble consumers will be put through in order to get their vehicles repaired so they meet Canadian emission standards (ditto for US volks—hello California??), and whether in fact the vehicles can even be repaired without significant loss to power and performance.
And that’s just the people who bought these cars. True, an institutional investor has already filed a Volkswagen securities lawsuit—but can you imagine what’s going on with Volkswagen dealers? Nothing like a lot full of VW’s that are basically unsalable. If I had to wager a bet, it’s on VW dealership lawsuits next…
The following Volkswagen models re named in the action:
2009-2015 VW Golf
2009-2015 Audi A3
Did Chipotle have your Back(ground)? Chipotle Mexican Grill Inc, has been given food for thought this week, after being served with a class action lawsuit alleging the restaurant chain violated the Fair Credit Reporting Act (FCRA) by obtaining employment background checks after burying the required disclosure in its application materials. Filed by a job applicant, named plaintiff Lorena Mejia, the nationwide lawsuit asserts Mejia filled out a standard Chipotle application that contained a provision allowing the company to conduct a background check. However, the forms failed to make clear that the application contained authorization for Chipotle to perform background checks, in violation of the FCRA’s standard.
Specifically, the complaint states that the background-check disclosure was surrounded by potentially distracting language such as a provision for at-will employment. Who decided this was necessary?
“Under the FCRA, it is unlawful to procure or cause to be procured, a consumer report or investigative consumer report for employment purposes, unless the disclosure is made in a document that consists solely of the disclosure and the consumer has authorized in writing the procurement of the report,” the complaint states. I should hope so.
Further, the lawsuit contends that employers have been warned by the Federal Trade Commission stating that applicants are entitled to receive the disclosure as a separate document, not embedded into an employment application.
Mejia asserts that Chipotle failed to provide her a written summary of her FCRA rights, despite a provision of the statute requiring Chipotle to do so. Additionally, the company violated California privacy laws because it didn’t offer applicants a box to check as an indication that they wanted to receive copies of their reports, the complaint states.
The plaintiff is seeking to represent a nationwide class of Chipotle applicants seeking damages under the FCRA, as well as a subclass of California applicants bringing state-law claims. The case is Mejia v. Chipotle Mexican Grill Inc. et al., case number 5:15-cv-01911, in the U.S. District Court for the Central District of California.
Even the Crunchy Granolas have been at it… Hain Celestial Group Inc agreed a $7.5 million settlement this week, potentially ending a consumer fraud class action lawsuit alleging it falsely labeled products as organic. In addition to the cash payout, the company has agreed to provide up to $1.85 million in coupons.
So -who can you trust these days?
The lawsuit, filed by lead plaintiffs Rosminah Brown and Eric Lohela, claimed that the products failed to meet even minimum state requirements for being “organic.” Specifically, the organic components comprised less than 70 percent of the products’ ingredients, as required by the California Organic Products Act.
Hain Celestial, btw, is huge–their brands include many faves among all-natural and organic food shoppers. For example, they’ve got Arrowhead Mills, Casbah, Earth’s Best, Health Valley, MaraNatha, Rice Dream, Soy Dream, Mountain Sun, Boston’s, Garden of Eatin’, Bearitos, Sensible Portions, Terra Chips and Celestial Seasonings.
“The settlement provides substantial monetary relief for many thousands of purchasers of the challenged products who allegedly paid a premium over comparable personal care products that did not purport to be organic … [and] compensates class members for a significant portion of their alleged damages,” the plaintiffs stated. “The settlement accomplishes this while avoiding both the uncertainty and the delay that would be associated with further litigation.”
According to the reported terms of the Hain Celestial settlement, any class member who submits a valid claims form but does not have a receipt will be entitled to receive a cash refund equal to 50 percent of their Hain purchase up to $50 or a combination of cash and coupons for their claims. Those with a receipt for their purchases will receive a full refund.
The settlement needs final court approval and, if approved, all claims except one will be resolved. The remaining claim is concerns the water used in certain products – which Hain asserts is organic and which the plaintiffs state is not.
The settlement hearing is scheduled for October 8, 2015. The case is Rosminah Brown et al. v. Hain Celestial Group Inc., case number 3:11-cv-03082, in the U.S. District Court for the Northern District of California.
Ok…That’s a wrap folks… See you at the Bar!
Is it Time to Clear the Air? Best Buy was hit with a consumer fraud class action this week, alleging it falsely advertised a line of Electrolux vacuum cleaners as having HEPA filters. Filed in Virginia federal court on behalf of lead plaintiff Christopher L. Early, the Best Buy lawsuit asserts that the Electrolux model EL4071A, which he purchased from a Glen Allen, VA., Best Buy in June, does not contain a certified HEPA filter as claimed by the advertising. Rather, the filters in these vacuums are described by Electrolux as an “allergen” filter. The lawsuit contends that Best Buy knew or should have known the vacuum filter did “not meet the standards of efficiency for a HEPA filter … and is a substantially inferior filtration system.”
Certified by the US Department of Energy, a high-efficiency particulate arrestance or HEPA filter is a type of air filter frequently used to help with asthma and indoor allergies. When used in a vacuum cleaner, the filter works to limit the amount of allergen and dust particles emitted into the air while it’s running, according to the complaint.
“Notwithstanding the material differences between a HEPA vacuum cleaner filter and a non-HEPA vacuum cleaner filter, Best Buy deliberately and willfully misrepresented in advertising and selling the Electrolux model EL4071A vacuum cleaner to consumers that such vacuums provided HEPA air filtration performance when, in fact, they did not,” the lawsuit states.
The advertising referred to in the complaint includes in-store signage, advertisements and online product descriptions and specifications for the vacuum. Specifically, the lawsuit states that the online description of the vacuum made numerous references to its HEPA filter. It was because of these claims that Early decided he would buy the vacuum “in reliance on the accuracy of the Best Buy online advertisement.”
The vacuum is described as a “HEPA bagless canister vacuum” on Best Buy’s website and sells for $199.99. According to the complaint, after buying the vacuum, Early reviewed the manual for information on the HEPA filter and could not find mention of a HEPA filter. So he called Electrolux and the manufacturer confirmed that in fact that model only has an allergen filter, not a HEPA certified filter.
The plaintiff is seeking class certification, damages and legal fees. He claims Best Buy is in breach of express and implied warranties, the Magnuson-Moss Warranty Act, the Virginia Consumer Protection Act and consumer protection laws of various states and is guilty of false advertising.
“Best Buy’s massive campaign to deceive U.S. consumers concerning the supposed health benefits of the Electrolux model EL4071A vacuum cleaner have caused harm to the plaintiff and the members of the proposed class and will continue to do so as long as Best Buy continues to make such representations and fails to notify its customers of its false representations,” the complaint states.
The case is Christopher L. Early v. Best Buy Co. Inc., case number 3:15-cv-00549, in the U.S. District Court for the Eastern District of Virginia.
Actos Billion Dollar Settlement. A previously announced $2.4 billion settlement has been approved by enough plaintiffs in a mass tort against Takeda Pharmaceuticals, to enable the deal to proceed. The plaintiffs had filed Actos bladder cancer lawsuits, across the country, totaling over 8,000 product liability complaints. They alleged that Takeda withheld information about the side effects of its diabetes medication.
Actos (pioglitazone hydrochloride) is a member of a class of drugs known as thiazolidinediones, which have been linked to bladder cancer, liver disease and cardiovascular issues. Actos side effects include increased risk of congestive heart failure (CHF), increased risk of rare but serious liver problems, an increased risk of fractures, and an increased risk for bladder cancer. A black box warning exists for Actos and heart failure, however, an Actos whistleblower lawsuit suggests a previously known but downplayed link between Actos and myocardial infarction (Actos heart attack). Actos is used to treat type 2 diabetes. According to a company press release, 96% of all eligible claimaints have opted in to an Actos settlement program that was initially made public on April 28.
Under the terms of the agreement, the Actos settlement should provide an average award of about $296,000 per case, for plaintiffs diagnosed with bladder cancer. However, the individual awards may be reduced based on the user’s age, exposure to other cancer-causing toxins and smoking history. The amount is set to rise to $2.4 billion if 97% of all eligible claimants participate.
Guess They Just Couldn’t Deny it Any Longer….Acting in its own best interests, no doubt, General Motors (GM) has agreed to pay $900 million to bring closure to criminal charges brought against by the US government over allegations the automaker hid a handle lethal ignition switch defect, which has resulted in at least 124 deaths.
According to a report in Automotive News, GM admitted to failing to disclose the defect to both the National Highway Traffic Safety Administration (NHTSA) and the public. The defect prevents the deployment of airbags in some vehicles.
Additionally, GM has also admitted to misleading consumers about the safety of vehicles affected by the defect.
Under the terms of the three year agreement, GM must have its internal safety practices independently monitored as well as its ability to fix defects and recalls. If GM adheres to its obligations set out in the agreement, the criminal charges will be dropped.
Ok – That’s a wrap folks… See you at the Bar!