How much air is too much air? Who knows. BUT—we may be about to find out. No, not talking about this blog. Harry & David LLC gourmet foods got slapped with a consumer fraud class action lawsuit over slack fill in their popcorn canisters. There is some small irony here. What is popcorn if not flavored air? Surely that’s why it’s the diet food of choice for so many.
Back to the lawsuit. Filed by New Yorker Bria Brown, the lawsuit claims that an excessive amount of the 10 ounce package of (take a breath) Harry & David Moose Munch Milk Chocolate-flavored Gourmet Popcorn (got all that?) contained empty space—not including the popcorn.
Brown claims that she didn’t receive $7.99 worth of popcorn—expecting—reasonably, I would suggest—that the box would be almost full, if not completely full. Hey, if you’re on a diet, every ounce counts… Not saying Brown was on a diet. But if you’ve just shelled out eight bucks for some flavored popcorn—and you’re hungry—I doubt you’re going to be too pleased to find out you’ve got less food than you expected. Although I’m not sure popcorn is actually considered food.
The lawsuit alleges Harry & David LLC is in violation of the Federal Food, Drug and Cosmetic Act, because that empty space in the box is “non-functional slack-fill” that tricks consumers into believing they are getting a full box of popcorn—for which they have paid. Precisely.
Brown’s sad story is that she bought her box of popcorn, with the world’s longest name, at a Macy’s retail store location in New York based on the reasonable assumption that the non-transparent cylindrical cardboard box was filled to functional capacity. However, upon opening the package, Brown said she learned that Harry & David’s products are packaged in transparent plastic pouches inside a non-transparent, cylindrical cardboard box “so that plaintiff and class members cannot see the non-functional slack-fill in the container.”
According to Brown, when she opened the box she discovered it was more than half empty, thereby causing her injury by depriving her of the benefit of her purchase, according to the complaint.
“Plaintiff and class members viewed defendant’s misleading products packaging, and reasonably relied in substantial part on its implicit representations of quantity and volume when purchasing the products,” the lawsuit states. “Plaintiff and class members were thereby deceived into deciding to purchase the products, whose packaging misrepresented the quantity of popcorn contained therein.” And not a little pissed off, as well, I’m betting.
“While some of defendant’s slack-fill may have functional justifications related to packaging requirements, defendant’s total slack-fill exceeds the amount necessary for this,” according to the complaint. “This is proven by the fact that the slack-fill in defendant’s products is significantly greater than the slack-fill in the packaging of comparable gourmet popcorn products.” Ah! A benchmark, of sorts. That’s always handy.
But it still begs the question—how much air is too much air?
FYI—the case is Bria Brown v. Harry & David LLC, case number 1:17-cv-00999, in the U.S. District Court for the Southern District of New York.
5-Hour Energy? Maybe, maybe not. The energy drink maker is the subject of multidistrict litigation (MDL) alleging consumer fraud, who would have thought? I know, I know. The gripe is that the energy boost ain’t all it’s cracked up to be, and that consumers swallowed the advertising in good faith (sorry, couldn’t resist).
The consolidated complaint was filed in January 2014. It claims that 5-Hour Energy states the drink gives long-lasting energy that “doesn’t jack you up with sugar, caffeine and herbal supplements.” The claim goes on, “defendants admit that the product provides no caloric energy at all.” So where does the energy come from then?
Lawyers for the defendant and the plaintiffs recently sat down with the presiding judge to try and work this thing out. Lawyers for 5-Hour claim that it would be impossible for consumers to be deceived about the effects of the product they have purchased hundreds of times. The argument apparently followed the lines of 5-Hour Energy being an “experiential product”. Translation: you have an “experience” drinking 5-Hour Energy that may or may not be like the experience it claims you’re going to have. The consumer knows what that feeling is regardless and continues to buy the product, so they cannot reasonably claim they are being deceived or have made an uninformed choice. Have I got that right?
“Whether it gives them a crash, or whether it gives them energy now or whether it gives them five hours of energy, they know what the product does for them now, having bought it, in some cases hundreds and even thousands of times,” an attorney for 5-Hour Energy said. Thousands of times?
Not surprisingly, the judge was skeptical, saying that, essentially it doesn’t matter how many times you buy a product—that every product claim is potentially enough to go to court with when you realize you’re being defrauded.
According to the plaintiffs, 5-Hour Energy claims that its effectiveness results from the B vitamins and amino acids in the drink. BUT—wait for it—the drink’s effects are due to the fact that each one contains more than 200 milligrams of caffeine, which the plaintiffs claim is more than the amount in an extra-strength caffeine pill or multiple cups of coffee. Flashback: How healthy is this? Just asking…
The 5-Hour Energy lawsuit sought to establish a nationwide class with subclasses for purchasers of a decaffeinated version of the product (what would be the point of a decaffeinated drink?); purchasers of four, six or 12 multipacks; and consumers in different states, including New York, California, Pennsylvania, Louisiana, Ohio, Illinois, Georgia, New Mexico, New Jersey, Missouri, Indiana and Florida. Talk about covering your bases.
While the judge has previously dismissed in large part the plaintiff’s allegations, he has upheld the consumer fraud allegations over the 5-Hour Energy labeling claims. And reportedly, he has taken the entire motion under submission. So we shall see. I think you could need something like 5-Hour Energy just to get through the hearings.
The case is In Re: 5-Hour Energy Marketing and Sales Practices Litigation, Case Number 2:13-ml-02438 in the U.S. District Court for the Central District of California.
Phantom at the Cable Co.? No stranger to the class action lawsuit, Comcast got hit with a proposed unfair business practices lawsuit filed by a former customer who claims the telecom company overbilled, misrepresented certain charges, and billed “phantom” charges upon account cancellation. Sound familiar?
According to the Comcast lawsuit, filed by Keven Danow, Comcast Corp., and its cable subsidiary continued to bill his late stepfather’s estate for two years following the man’s death in 2014. They did this through recurring automatic bank withdrawals. When Danow complained to Comcast, he was told that because the company had no active account information there was no business relationship and therefore they had no grounds upon which to address his concerns. Nice.
“Defendant routinely engages in deceptive and unfair business conduct to extract money from customers to which it is not entitled,” the proposed class action states. “Comcast is now targeting former customers who have no business relationship with Comcast.” Hard to have a business relationship if you’re deceased. Just sayin’.
Citing a similar proposed class action against Comcast, recently filed in California, and a $2.3 million fine paid by the company to the Federal Communications Commission for unauthorized charges for unwanted equipment or services, Danow asserts that Comcast’s behavior is part of a pattern of deceptive or unfair business practices. No comment.
“Having engaged in deceptive and unfair trade practices as a core component of its business, Comcast has now targeted former customers, who no longer have any business relationship with Comcast,” the complaint states. “Comcast has illegally accessed former customers’ bank accounts months or years after the end of any business relationship between the parties and absconded with funds on deposit.”
Danow is claiming violation of the Electronic Fund Transfer Act, unjust enrichment, violation of New York business law and applicable statutes for other states.
The case is Keven Danow v. Comcast Corp. et al., case number 2:16-cv-06052, in the U.S. District Court for the Eastern District of Pennsylvania.
Walmart Pays Up. $54 million in damages has been awarded by a California federal jury against Walmart in an employment lawsuit brought by 839 truckers.
The Walmart lawsuit alleges the big box retailer violated California labor law as well as federal labor law by failing to compensate its drivers for pre- and post-trip inspections and California-required rest breaks.
The jury found in favor of the truckers on those charges, but did not award damages for time spent washing trucks, fueling, weighing the trucks’ load, waiting at vendor and store locations, performing adjustments, complying with U.S. Department of Transportation inspections, or meeting with driver coordinators.
Additionally, the jury found that the drivers were under Walmart’s control during federally mandated 10-hour layover breaks. The truckers alleged that during these breaks, for which they were required to stay with their trucks, they were paid $42 for the time, not the $67 to $90 they would have earned had they been paid minimum wage during the class period. The jury awarded the drivers $44.7 million in compensation.
Determinations for penalties and liquidated damages have yet to be made. Attorneys for the truckers stated that should the court find that Walmart’s defense was not carried out in good faith, the jury’s award would be doubled. Further, the jury found Walmart intentionally failed to pay class members for more than 100,000 pay periods, and that, according to the class attorneys’ math, each unpaid period will carry a $250 fine, adding approximately $25 million to the total settlement figure.
The case is Ridgeway et al. v. Wal-Mart Stores Inc. et al., case number 3:08-cv-05221, in U.S. District Court for the Northern District of California.
Take that Telemarketers! Here’s a win—one for the little guy and a hoorah on behalf of all of us who get those pesky unsolicited phone calls. This week, preliminary approval of a $1.1 million proposed settlement was granted, in a Telephone Consumer Protection Act (TCPA) class action lawsuit pending against Alpha Gas and Electric in New York.
Filed by Stewart Abramson in July 2015, the lawsuit asserted that Alpha Gas, which provides gas and electrical services for both residential and commercial customers in New York, New Jersey, Pennsylvania and Ohio, used telemarketing to obtain new clients and allegedly made a telemarketing call to Abramson’s cell phone.
Here’s the skinny: eligible class members are defined as: all persons who, at any time, used, regularly placed or received calls on or from or owned any of the phone numbers that are listed and/or contained in the Class List, and who, from July 8, 2011 through the date of class certification, the defendant called using an automated telephone dialing system or prerecorded voice, or who were listed on the Do Not Call list or otherwise did not consent to the receipt of such calls, or who otherwise have claims against the Released Parties arising under the TCPA or similar federal, state or local laws governing such matters, including, without limitation, the claims alleged in the Action, including calls placed to cell phones without the recipients’ consent.
Abramson, as named plaintiff, is seeking an incentive award of $10,000.00. Further, Alpha has agreed to review and amend its future telemarketing compliance with the TCPA and related laws.
A final settlement hearing is scheduled for April 2017. Potential class members will have until February 8, 2017 to object to the settlement agreement or otherwise opt-out of the settlement.
Well, that’s a wrap for this week. See you at the bar…
I have to be honest, the last thing I needed to read about this week was a lawsuit that attacks an institution—a food that has earned the right to be considered junk, in part because it makes no bones about it and in part because anything that tastes that good just has to be bad for you.
But heck, everything is fair game these days, it seems. And somebody has managed to drum up a 32-page, 32 pages—seriously?, Krispy Kreme lawsuit against the doughnuts over claims the doughnut chain is telling porky pies (lies) over the ingredients of its fruit-filled and maple-glazed donuts.
The allegations are that Krispy Kreme conducts “false and misleading business practices” because its “Chocolate Iced Raspberry Filled,” “Glazed Raspberry Filled,” “Maple Bar,” and “Glazed Blueberry Cake” doughnuts and doughnut holes do not actually contain real raspberries, maple, or blueberries. Oh dear. They might be able to call consumer fraud on this one, but not defective products, no siree—a box of Krispy Kremes could never be defective in my mind.
Plaintiff Jason Saidian, who for the record, lives in Los Angeles, is claiming the doughnuts are in fact made with nutritionally inferior ingredients.” WTF does that mean? Guess you have to read the whole 32 pages to find out.
Saidian’s story goes he bought the nutritionally inferior raspberry, maple, and blueberry doughnuts at issue from a Krispy Kreme location in Santa Monica. He claims he bought the doughnuts because he believed the company’s representations about the “premium ingredients” in its donuts.
For a little drama, the lawsuit apparently goes on to explain that the doughnuts are displayed in a tray behind a glass counter, along with a small placard in front of each tray that provides the name of the doughnut variety. But, I’m guessing, no laundry list of ingredients.
According to Saidian, the doughnuts appear as if they contain the “premium ingredients” but Krispy Kreme reportedly does not provide customers with access to information on what the actual ingredients are in the doughnuts. Ok seriously—who’s got time to read all that stuff—if you’re in there buying a doughnut I’m guessing you passed on the Kale smoothie for a reason.
Here’s all you need to know about the ingredients in doughnuts. They are, essentially, dough, fat, sugar, sugar, sugar, dough, fat, sugar and maybe some fruit preserves—with sugar in it—thrown in for good measure. Where’s the grey area? They can rot your teeth, expand your waistline, cause heart disease— if eaten liberally—just put that caveat in there—and for one brief moment, as all those questionably wonderful ingredients melt in your mouth in a kaleidoscopic orgasm of pure bliss—make you forget everything that’s wrong with the world. So you know what, just leave the doughnut alone, please.
But no. Not this guy. “Even when consuming the Products, Plaintiff and other consumers cannot easily decipher whether the filling or glazing they are consuming contain actual raspberries, blueberries, or maple ingredients, because the Defendant has formulated and manufactured the Products in a manner that masks the absence of such ingredients,” the class action states. So where’s the problem? Why worry about it?
It appears the rub is that Krispy Kreme is capable of making doughnuts with “real” ingredients in them—just for the sake of clarity—this is explained in the lawsuit as … the “Glazed Lemon Filled” doughnuts contain lemon juice, the “Cinnamon Apple Filled” doughnuts contain both apple and cinnamon and the “Glazed Strawberry” doughnuts contain strawberries.
Therefore, Saidain alleges, one can deduce that Krispy Kreme is not only capable of making the doughnuts at issue with real ingredients but, one would guess, should have, as people believe that’s what they’re getting. Therefore, Krispy Kreme should also have been aware that its products are falsely advertised and would be deceiving to an unsuspecting customer.
According to the lawsuit, Krispy Kreme allegedly (hopefully) uses sugar, corn syrup, gums and artificial food coloring to “mimic the texture, shape and color” of these “premium Ingredients” instead of naturally occurring products with proven health benefits.
Ok—hold on one fat saturated minute here—in no universe either known or as yet undiscovered are doughnuts considered to have any proven health benefits beyond the placebo effect. Somebody please give this guy some Kool-aid. Or a coffee…and a maple glazed doughnut.
Stewing Over Pay at Stewart’s…It seems we just can’t get enough of the old employment class action lawsuit. This one, filed against Stewart’s Shops has been certified in New York. The complaint states that the Malta-based convenience store chain failed to properly compensate its employees for all the hours worked. There are so many instances of labor law violations, I wonder, does anyone actually get paid properly anymore?
The Stewart’s Shops lawsuit was filed by a former employee against the chain in January 2014, alleging she and other workers were not paid for all the hours they worked, and for mandatory call-in pay for store meetings and that they were deprived of an uninterrupted meal break.
The plaintiffs are seeking $20 million in damages on behalf of all non-exempt hourly employees who worked for Stewarts during the past three years.
Reportedly, a collective action has been certified under federal law for full-time employees who worked more than forty hours in any given week and were deprived of overtime compensation.
FYI—the Malta-based convenience store chain has 335 stores in upstate New York and Vermont, and $1.5 billion in sales. No comment.
Power Home Power Calling You? You gotta love it when you actually stick it to a spammer. This week, court approval has been given to a $5.2 million settlement of a Telephone Consumer protection Act (TCPA) class action lawsuit pending against Power Home Remodeling Group LLC. The lawsuit claimed the company had violated the TCPA because it made automated marketing calls to over a million consumers without their consent.
The judge certified a class of more than 1.1 million people, and granted final approval of the Power Home Remodeling settlement, ending the lawsuit brought by plaintiff Teofilo Vasco. The autodialed telemarketing calls or prerecorded, computer-generated voice messages were made between October 2013 and April 2016, approximately.
The judge also awarded a $3,000 award to the named plaintiff, Vasco, who filed the lawsuit in August 2015. He alleged he gave his cellphone number to a Home Depot salesperson and later received 21 unsolicited phone calls from Power seeking his business by way of an autodialer or prerecorded voice message.
The case is Teofilo Vasco v. Power Home Remodeling Group LLC, case number 2:15-cv-04623, in the U.S. District Court for the Eastern District of Pennsylvania.
Nissan got hit this week, with a preliminary settlement deal reached in three defective automotive class action lawsuits. The first Nissan lawsuit, brought in 2014, alleged that the transmissions in certain model-year certain Pathfinder and Infiniti QX60 vehicles were defective. You may remember this one.
Under the terms of the proposed Nissan agreement, Nissan North America Inc. has agreed to give all owners and lessees of nearly 200,000 Nissan Pathfinders and Infiniti JX35s/QX60s vehicles from model years 2013 and 2014 a free, two-year 24,000-mile extended warranty for their transmissions. Also, owners will be instructed on how to update their vehicles’ software to include detection of the transmission vibration problem referred to as “judder.” Oh great, there’s computer technology involved.
According to the settlement, owners of affected vehicles that underwent two or more repairs to their transmissions may be eligible for discounts on future purchases of a Nissan or Infiniti vehicle. The deal requires court approval.
The case is Kenai Batista v. Nissan North America Inc., case number 1:14-cv-24728, in the U.S. District Court for the Southern District of Florida.
Well, that’s a wrap for this week. See you at the Bar!