SoyNut Butter & E. coli for lunch? Nasty stuff, literally. Check your cupboards! A food poisoning class action lawsuit has been filed against The SoyNut Butter Company of Illinois and the manufacturer of the product, Dixie Dew Products of Erlanger, Kentucky. The complaint was filed by the parents of a young child, identified as L.S. in the complaint, who became ill after eating E. coli O157:H7-contaminated I.M. Healthy SoyNut Butter. They allege their daughter developed hemolytic uremic syndrome, a life-threatening complication of E. coli infection, after ingesting the contaminated product.
According to the Centers for Disease Control (CDC), 16 people from nine states have so far been confirmed as infected with the strain of E. coli O157:H7 connected to the SoyNut Butter outbreak. Like L.S., 14 of the 16 people who became ill in this outbreak are under the age of 18, eight of whom have required hospitalization.
The affected states include includes Arizona (4), California (4), Maryland (1), Missouri (1), New Jersey (1), Oregon (2), Virginia (1), Washington (1), and Wisconsin (1). That number is expected to increase.
The plaintiffs, Travis and Morgan Stuller, allege L.S. regularly ate SoyNut Butter in the days leading up to her illness. On or about February 21, 2017, L.S. developed painful gastrointestinal symptoms, which worsened to include grossly bloody diarrhea. She was seen by her treating physician for ongoing symptoms, but, on March 5, was hospitalized at Seattle Children’s Hospital and remained so until March 8. While in the hospital, an illness of E. coli O157:H7 was confirmed and she was treated for hemolytic uremic syndrome (HUS), a potentially life-threatening condition. L.S. continues to recover at home, but faces uncertain future medical complications, according to statements.
FYI—the case number is 1:17-cv-02138.
Check those Subway receipts… Strap yourselves in—it’s a record $30.9 million settlement for the maker of “foot long” sandwiches, potentially ending a Fair and Accurate Credit Transactions Act (FACTA) class action brought against Subway, over allegations the company unlawfully printed full credit card expiration dates on receipts. If approved, this will be the largest settlement ever made under FACTA.
The lawsuit was filed against Doctor’s Associates Inc., which does business as Subway, on behalf of nearly 2.6 million people who claim their credit or debit card information was potentially compromised by the printed receipts.
Named plaintiff Shane Flaum filed his complaint in June 2016, alleging Subway violated FACTA through its practice of printing customers’ cards’ full expiration dates even after it had been sued in the past for similar violations, specifically twice in 2007, and again in 2008 and 2009, he states.
FACTA regulations require retailers to omit card expiration dates on receipts, as emphasized in the Credit and Debit Card Clarification Act.
According to the Subway lawsuit, the deal “sets a new record for FACTA class actions” and is believed to be the “largest FACTA settlement in the history of FACTA.”
The class includes all Subway patrons who received receipts upon purchase that showed their credit or debit cards’ full expiration dates between January 1, 2016, and the date of preliminary approval of the settlement.
The lawsuit is Flaum v. Doctor’s Associates Inc., case number 0:16-cv-61198, in the U.S. District Court for the Southern District of Florida.
Neiman Marcus hack? Neiman Marcus reached a $1.6 million settlement this week, potentially ending a data breach class action lawsuit its facing stemming from a cyber attach reported in December 2013. That hack allegedly affected some 350,000 customers. Ugly.
If the settlement receives approval, eligible class members will include US residents who held credit or debit card accounts used at any physical locations operating under the Neiman Marcus Group LLC name, including its namesake, Bergdorf Goodman, Cusp or Last Call, from July 16, 2013, to Jan. 10, 2014.
In March 2014, Neiman Marcus customers Hilary Remijas, Melissa Frank, Debbie Farnoush and Joanne Kao sued the retailer after it said that a December 2013 data breach had exposed the credit card data of 350,000 shoppers. The company had claimed that just 9,200 accounts were impacted.
The Neiman Marcus lawsuit asserted that the luxury Dallas-based retailer was negligent in its failure to protect its customers’ privacy and in waiting a full 28 days to inform them of that breach.
According to the terms of the deal, each class member who submits a valid claim is eligible to receive up to $100 from the settlement fund. The settlement also calls for each class representative to receive up to $2,500 in service awards.
The case is Hilary Remijas et al. v. the Neiman Marcus Group LLC, case number 1:14-cv-01735, in the U.S. District Court for the Northern District of Illinois, Eastern Division.
Ok – That’s a wrap for this week. See you at the bar!
What a strange week…nothing is spared, it seems.
Coverage you thought you paid for… This week, news out that State Farm will face a bad faith insurance class action lawsuit brought by policy holders who allege they were wrongfully denied personal injury benefits after physicians found the policyholders achieved “maximum medical improvement”.
The class was certified by a Washington federal judge, who granted named plaintiff Brett Durant’s motion for class certification, dismissing State Farm Mutual Automobile Insurance Co.’s statement that the case was unfit for class treatment because, among other things, each policyholder’s damages needed to be calculated individually.
US District Judge Richard A. Jones stated that “Despite the possible individualized nature of damages calculations in this matter, the court nevertheless finds that ‘[c]lasswide resolution of the common issues is superior to the filing of multiple and duplicative lawsuits and will result in the efficient and consistent resolution of overarching questions.”
Durant had sued State Farm in 2014, alleging the insurer had improperly denied his request for coverage of ongoing medical treatment for injuries he suffered in a 2012 car accident. The reason the insurer would not pay for treatment, the lawsuit alleges, is because a chiropractor reported that Durant had reached maximum medical improvement, or MMI.
The personal-injury-protection section of Durant’s State Farm policy extended coverage for “reasonable medical expenses” incurred within three years following the date of an accident. The policy indicated that reasonable medical expenses may include costs “essential in achieving maximum medical improvement for the bodily injury sustained in the accident,” according to court documents. Durant sought class certification in 2016, asking to represent a class of insureds and third-party beneficiaries who, under any State Farm policy issued in Washington, had their benefits terminated or limited based on the MMI determination.
Durant claims that State Farm’s behavior is in violation of the Washington Administrative Code and state Insurance Fair Conduct Act.
In certifying the class, Judge Jones found that Durant had met the various requirements, in that Durant had identified enough potential class members, and that all the individual insureds’ claims involve the same alleged unfair conduct by State Farm.
The case is Durant v. State Farm Mutual Automobile Insurance Co., case number 2:15-cv-01710, in the U.S. District Court for the Western District of Washington.
Coverage you really DIDN’T pay for… Big brother may indeed be watching, that is according to a proposed privacy class action lawsuit filed against Samsung over allegations its Smart TV devices enable the company to record consumers’ private conversations without their knowledge.
According to the complaint, filed by Joshua Siegel, the Samsung Smart TV devices are equipped with the capability to respond to human voices through a built-in “always on” recording device, and that enables the company to intercept and record consumers’ private communications inside their homes for profit, in violation of the New Jersey Consumer Fraud Act.
The Smart TVs are made by Samsung Electronics America Inc. and its Korean parent company Samsung Electronics Co. Ltd. The lawsuit states that the electronic companies have failed to safeguard the capabilities of the devices, resulting in third parties like the CIA being able to remotely hack into the devices and turn them into hidden spying systems.
Interestingly, the source of information is WikiLeaks, make of that what you will. The lawsuit asserts that this information was disclosed by WikiLeaks in its most recent set of released documents purporting to reveal the full capability of the CIA’s hacking.
“While Samsung has marketed the convenience of its voice-recognition capable Smart TV, it has negligently and/or recklessly failed to consider or properly address the privacy consequences of its Smart TV’s configuration, specifically its susceptibility to hacking of private consumer information,” the lawsuit states.
“Consumers have no reason to expect that defendants engaged in second-by-second tracking and recording by surreptitiously recording content and sending it back to their own servers and then transmitting that information to third parties,” the suit contends. “Further, defendants’ representations were not sufficiently clear or prominent to alert consumers to their practices related to defendants’ recording of consumers’ private recordings in their home.”
Samsung’s actions “are an unconscionable commercial practice” that violate New Jersey’s consumer protection law, Siegal asserts. Siegal is seeking injunctive relief and compensation for damages caused by Samsung’s deceptive and misleading practice and is looking to represent anyone in the U.S. who purchased or leased a Samsung Smart TV since January 2012, according to the complaint.
Better stop watching cartoons.
Coverage that’s downright a bit too uhh, personal… A $3.75 million settlement has been reached potentially ending a wire tap class action brought against the manufacturer of an internet-connected vibrator. Oh yeah baby!
The federal lawsuit alleged that Standard Innovation, makers of the We-Vibe Smart Vibrator, improperly tracked customers’ use of the sex toy, including which settings were used and how often it was used. The technology in a 2014 update to the We-Vibe vibrator, allegedly enabled the defendant to collect its customers’ usage data.
The Plaintiffs assert that Standard Innovation breached Illinois consumer fraud laws and the federal Wiretap Act by programming We-Connect , which is a service connecting users and their partners remotely, to “contemporaneously monitor, intercept, and transmit” data sent to the We-Vibe devices from consumers’ smartphones.
According to the lawsuit, customers state that they would not have purchased the vibrator had they known their actions would be monitored, collected, and transmitted.
If approved, the proposed settlement would see Standard Innovation designate $3 million for customers who downloaded the app and used it with the We-Vibe device. Each Plaintiff could receive about $10,000.
The remaining $750,000 would be divided among consumers who purchased the devices alone, with each receiving about $199.
The proposed We-Vibe settlement, which needs final court approval, would also require Standard Innovation to destroy the data it collected from users and cease collecting emails and personal user information. The company denies any wrongdoing. Seriously?
Ok – That’s a wrap for this week. See you at the bar! Happy St. Patrick’s day!
A jet fan blower that bites? You betcha! Ryobi is recalling its defective electric jet fan blowers—not really sure what these are—but I’m guessing it might have something to do with gardening.
The recall has been prompted by a rather high number of reported injuries. Apparently, the blower is prone to breaking in a rather bad tempered sort of way, having already caused 10,681 “incidents”, including 25 reports of minor injuries, such as lacerations to the face, hands and legs. These injuries are caused by fan blade pieces being discharged from either end of the blower. Got that?—EITHER end.
The deal is, according to the Consumer Products Safety Commission (CPSC), the plastic fan inside the blower can break “causing the fan blades to be discharged from either end of the blower tube, posing a laceration hazard.”
Talk about the element of surprise. One minute you’re blowing the leaves away and the next you’re in the middle of cloud of plastic shrapnel. Depending on where and how you’re holding this thing—a good deal more tender body parts could suffer harm.
No wonder this thing gets low ratings from Home Depot customer reviews:
About 121,000 of these defective Ryobi Electric Jet Fan Blowers were sold in the US with another 1900 in Canada and 1100 in Mexico.
We can all breathe a huge sigh of relief however, as the CPSC notes that no property damage has been reported. Depends how you define property, I would say.
Here’s the skinny: the recall involves the Ryobi 8 amp Electric Jet Fan Blowers with model number RY42102 and a serial number between EU15401D170001 and EU16239N999999. The model and serial numbers are printed on the data label on the bottom of the blower. The blower is black and green with “RYOBI” printed on the side of the blower. “8amp JET FAN” is also printed on the side of the blower.
Given the number of “incidents” (not sure exactly what that refers to) and injuries, it seems this recall might be just a bit overdue .
If you own one of these things—you’re being advised to stop using it. If you contact One World Technologies, Inc. they will provide you with a free replacement—one that presumably doesn’t turn into a weapon of mass destruction. FYI—One World Technologies is the importer.
The blowers were sold exclusively at Home Depot stores nationwide, in Canada and Mexico and online at www.homedepot.com from December 2015 through December 2016 for about $40.
And while we’re on the subject of gardening—what ever happened to rakes? Good for the heart, good for the environment—easy on the ears and not prone to explosions of any kind. That’s left to the user’s discretion.
Here’s the full information about the Ryobi recall from the CPSC.
Nissan is listening…maybe literally & maybe too much. The automaker got slapped with a proposed privacy class action lawsuit this week, over allegations the company recorded calls between themselves and customers to or from customers’ cell phone without consent. Nice.
Filed in California state court by Dave Vaccaro, the complaint states that this is regular practice for Nissan, which records both inbound and outbound calls that are placed in California, without first obtaining permission or informing customers, in violation of the California Penal Code.
“Defendant concealed the fact that it was recording the aforementioned phone calls to create the false impression in the minds of plaintiff and those similarly situated without their knowledge or consent that they were not being recorded,” the complaint states. “At the outset of the phone calls there was no warning that the phone calls were, or even may, be recorded. Such warnings are ubiquitous today.”
According to the Nissan lawsuit, Vaccaro and Nissan were in contact by cell phone several times during February but at no time was he aware the automaker was recording the conversations, as they had not asked his permission to do so. Further, the complaint alleges that Nissan failed to provide an automated advisory at the beginning of the calls explaining that they could be monitored or recorded, nor did the company’s representatives give him warning. It’s enough to make you go back to writing letters…
Vaccaro states that he remained unaware of the recording until the end of one of the later calls. It was then that a Nissan agent informed him that Nissan’s calls, including collection and sales calls are recorded. Vaccaro claims that as he had no way of knowing the calls were being recorded until August and that recording calls is part of Nissan’s policy, he is justified in not bringing the claim earlier.
The plaintiff seeks to represent a class of all people in California who, in the last year, had inbound or outbound conversations on their cellphones recorded by Nissan without their permission. Although he doesn’t know how many members of the class there are, plaintiff believes the number to be in the tens of thousands, if not more, according to the complaint.
The complaint brings one count for invasion of privacy in violation of the California Penal Code, seeking the greater of statutory damages of $5,000 per violation or three times the actual damage per violation, as well as $2,500 per violation, exemplary or punitive damages, costs and prejudgment interest.
Vaccaro also seeks injunctive relief in the form of an order requiring Nissan to disgorge its ill-gotten gains and provide the class with full restitution, plus an injunction barring the company from recording calls with California residents without permission.
The case is Dave Vaccaro v. Nissan North America Inc., case number BC653385, in the Superior Court of California for the County of Los Angeles.
Mesh Mess. A good ending for a bad story… A proposed $12.5 million settlement has been approved by a California federal judge, resolving litigation involving Caldera Medical’s transvaginal mesh (TVM) implant. Thousands of insurance claims were filed against Caldera alleging the TVM caused injuries to some 2,700 women.
According to the terms of the Caldera mesh settlement, in which class members are not able to opt-out, Federal Insurance will distribute $10.58 million among 2,710 class member claimants. Further, it will pay class counsel attorneys’ fees and costs. In exchange, the claimants release Caldera and Federal Insurance from all future claims, according to court documents.
The Caldera TVM implant was used to treat pelvic organ prolapse and stress urinary incontinence in women. According to the suits, which were consolidated in California state court, Caldera knew or should have known that the TVM devices it manufactured and sold were hazardous and dangerous to people’s health. The claims were filed against Caldera which were then turned into insurance claims with Federal Insurance.
According to court documents, Federal Insurance had already paid out more than $6.3 million in settlements, notwithstanding the thousands of additional claims pending. Federal Insurance asked the court to certify a class of claimants and enjoin the claimants from pursuing further suits affecting the insurance policy.
The state litigation is In Re. Transvaginal Mesh Litigation, case number JCCP 4733, in the Superior Court of the State of California for the County of Los Angeles.
Home Depot bringing it home—$25 million that is—to the banks. A settlement has been reached between Home Depot and financial institutions who brought a class action against the home hardware retailer alleging it was negligent in preventing a massive data breach in 2014.
The putative class action alleged that the data breach compromised 56 million credit and debit card numbers of Home Depot customers.
According to court documents, if approved, the Home Depot data breach settlement would require Home Depot to pay $25 million into a non-revisionary fund to be distributed to financial institutions that have not already released their claims against the retailer for losses stemming from the catastrophic data breach.
For financial institutions with a valid claim, a fixed payment estimated to be $2 per compromised card could be forthcoming, without the institutions having to submit documentation of their losses and regardless of whether any compensation already has been received from another source, according to the agreement.
Class members that submit proof of losses also are eligible for a supplemental award of up to 60 percent of their documented, uncompensated losses from the data breach, documents state.
The retailer also has agreed to pay up to $2.225 million to institutions whose claims were released by a sponsor, such as a card processor, in connection with the card brand recovery program provided by MasterCard.
The MDL is In Re: The Home Depot Inc., Customer Data Security Breach Litigation, case number 1:14-md-02583, in the U.S. District Court for the Northern District of Georgia.
Ok – That’s a wrap for this week. See you at the bar!
PayPal no pal of small charities? Maybe… The online payment processor got hit with a consumer fraud class action lawsuit this week, claiming the company’s charitable arm takes funds from donors for various causes but fails to make the donations unless the charity had set up several accounts. Nice.
The complaint was filed by Friends For Health, a nonprofit supporting the North Shore Health Center in Highland Park, Illinois, and one of 10 charities that plaintiff Terry Kass attempted to donate.
The Paypal lawsuit claims that the funds donated were never received by the charities as the PayPal Giving Fund took control of the money and donated it to organizations of its choosing. The lawsuit asserts that PayPal did this because the charities chosen by Kass hadn’t set up the requisite PayPal accounts.
Specifically, the lawsuit states “On its face, PayPal Giving Fund is an admirable endeavor; however, in practice, it falls woefully short of that mission on numerous fronts.” And: “PayPal Giving Fund is currently listing charities on its website that are not registered to receive donations, failing to inform donors that unregistered charities will not receive their donations, failing to notify unregistered charities that donations have been made to them and redirecting unclaimed donations from the intended unregistered recipient charities to organizations of their own choosing without notice to the donor or intended recipient.”
According to the complaint, while many large charities have established PayPal Giving Fund accounts, hundreds of thousands of smaller charities have not. PayPal Giving Fund platform was established by PayPal in 2013 to make it easier for their customers to donate money to their favorite charities.
If a PayPal customer’s chosen charities don’t establish accounts and fail to claim the donations within six months, PayPal doesn’t inform them that an attempted donation has been made, according to the complaint. Rather, PayPal’s charitable platform “surreptitiously” donates the money without regard to the customer’s donation wishes, the complaint states.
The case is Friends for Health: Supporting the North Shore Health Center et al. v. PayPal Inc. et al., case number 1:17-cv-01542, in the U.S. District Court for the Northern District of Illinois.
Text in any language… This week’s Telephone Consumer Protection Act (TCPA) class action was filed against AT&T alleging the company has violated the TCPA by sending unsolicited spam text messages in Spanish, to people’s cellphones. No!
Filed by plaintiff Ali Gadelhak, who is not an AT&T customer, the AT&T text lawsuit claims that AT&T used an automated dialing service to deliver text messages to Gadelhak’s cellphone, knowing they were doing so and without his prior consent, which is in direct violation of the TCPA.
Gadelhak alleges the messages caused harm in numerous ways, including by diminishing the battery life of his cellular phone and wasting its data storage capacity.
“Defendant has caused plaintiff and members of the putative class actual harm, not only because consumers were subjected to the aggravation, waste of time and invasion of privacy that necessarily accompanies mobile spam, but also because consumers frequently have to pay their cellphone service providers for the receipt of such spam,” the complaint states. According to the suit, Gadelhak received a text message from AT&T on July 15 that was in Spanish and which asked him to participate in a customer satisfaction survey. Gadelhak isn’t an AT&T customer and doesn’t speak Spanish.
Gadelhak claims he responded to the text message twice, asking the sender to identify himself or herself. However, he then received more survey questions in Spanish that appeared to be automated. According to the complaint, Gadelhak’s cellphone number has been registered on the National Do Not Call Registry since May 23, 2014.
Gadelhak is seeking actual damages of up to $500 and treble* damages up to $1,500 per class member for every call that violated the TCPA. Further, Gadelhak is asking for certification of a subclass of individuals who received the text message specifically asking recipients to complete the customer satisfaction survey.
The case is Ali Gadelhak v. AT&T Corp., case number 1:17-cv-01559, in the U.S. District Court for the Northern District of Illinois.
*What the heck is ‘treble damages’, you ask? Good Q. It’s when a statute permits a court to triple the amount of the compensatory damages to be awarded; treble damages are a multiple of, and not an addition to, actual damages.
Airbag settlement in the works… Here’s the blockbuster this week—this year and possibly this century—at least so far. But, not everyone is happy.
Takata Corporation agreed to pay $1 billion to settle multi-district litigation this week. In case missed this—the allegations are that the airbag manufacturer was aware of the fatal defect with its airbags but sold them anyway. At least 11 deaths have been linked to the airbags, which can explode due to a design defect.
According to the proposed airbag settlement terms Takata will plead guilty to wire fraud. However, Plaintiffs have objected to the proposed deal on the grounds that it doesn’t address the culpability of TK Holdings Inc., Takata’s US, subsidiary, and that the Department of Justice had been misled in its investigation.
Additionally, Takata has agreed to pay a $25 million criminal fine and will establish a $125 million restitution fund for people who were injured or will be injured by a malfunctioning Takata air bag inflator.
Automobile manufacturers will also benefit from the deal, with the creation of an $850 million fund to benefit for automakers who received the falsified data and reports or who purchased the potentially dangerous inflators.
The cases are United States of America v. Takata Corp., case number 2:16-cr-20810, in the U.S. District Court for the Eastern District of Michigan, and In re: Takata Airbag Products Liability Litigation, case number 1:15-md-02599, in the U.S. District Court for the Southern District of Florida.
Good thing Takata may be putting this one behind them as they’ll need to focus on the latest airbag recall: Ford just issued a recall for about 32,000 2016-2017 Ford Edge, 2016-2017and vehicles. The affected models have built dates between November 11, 2014 and February 15, 2017. Why? If the front driver airbag deploys, the airbag might only partially fill—or its cushion might also separate from the airbag module. Not the best situation in an accident…
According to reports, Ford will notify owners of the issue and have them return to dealerships for installation of a replacement part to correct things.
Ok – That’s a wrap for this week. See you at the bar!