Charles Schwab caught with their hands in your pockets? Maybe. At least according to a class action filed this week alleging violations of the Employee Retirement Income Security Act of 1974 (“ERISA”). It was filed in the United States District Court for the Northern District of California against the Charles Schwab Corporation (“Schwab”) and certain of its subsidiaries on behalf of the participants in the 401(k) plan Schwab offered to its employees.
Short story: the complaint claims that Schwab included among the plan’s investment options certain mutual funds and collective trusts that were affiliated with Schwab, which allowed Schwab and its subsidiaries to collect unreasonable and excessive fees from its employees’ retirement savings. The complaint further alleges that Schwab imposed improper charges through a self-directed brokerage program, and used for its own purposes unallocated cash belonging to the 401(k) plan.
Specifically, the complaint alleges that Schwab’s conduct violated the fiduciary duties and prohibited transaction rules imposed by the Employee Retirement Income Security Act of 1974 (“ERISA”).
Heads up—participants in the Schwab 401(k) Plan may be members of the class.
Jimmy Choo to pay YOU—possibly. A $2.5 million settlement has been agreed by Jimmy Choo, potentially ending a privacy class action lawsuit alleging the luxury shoe manufacturer printed its customers’ sensitive data on credit card receipts, putting them at risk of identify theft, in violation of the Fair and Accurate Credit Transactions Act (FACTA).
Filed by Plaintiff Kerri C. Wood in October 2015, the Jimmy Choo lawsuit claims the defendant printed credit and debit card expiration dates and other sensitive information such as home addresses, phone numbers and cashiers’ names on its store receipts, in violation of FACTA.
Wood alleged that despite having had years to ensure it was in compliance with the FACTA amendment to the Fair Credit Reporting Act, Jimmy Choo deliberately chose not to comply.
According to the terms of the proposed Jimmy Choo settlement, Jimmy Choo would set up a $2.5 million fund to compensate opt-in class members who received point-of-sale credit or debit card receipts from a Jimmy Choo store containing a card expiration date between October 27, 2013, and November 2, 2013.
The estimated number of Jimmy Choo customers affected is 135,588. Depending on the exact number of the settlement class, each member could receive between $75 and $175 as compensation. Nice one.
The case is Kerri C. Wood v. J Choo USA Inc., case number 9:15-cv-81487, in the U.S. District Court for the Southern District of Florida.
Meanwhile, back at the Call Center… Frontier Communications Corp agreed an $11 million settlement proposal this week, potentially ending a Telephone Consumer Protection Act (TCPA).
The lawsuit was filed by Diana Mey in 2013. In the complaint, Mey claims that she and thousands of others received automated telemarketing calls that were commissioned by Frontier and placed to them by Virido on the Five9 predictive dialer pursuant to a contract between Frontier and Virido using a list of telephone numbers that Frontier provided.
Under the terms of the proposed agreement, each member of the settlement class will get a base payment of $90. The balance of the fund will then be divided on a per-call basis to class members who received multiple calls.
The settlement class consists of any person or entities who received a cellphone call placed by means of what the plaintiff contends was an automatic telephone dialing system, or who received two or more calls in a 12-month period on a number that had been on the National Do Not Call Registry for more than 30 days at the time of the calls.
In court document presented by Mey, there is a proposed class of individuals and entities that own 36,219 unique telephone numbers that have been identified as having received allegedly unlawful calls from Frontier.
Mey also pointed out that the proposed payments to potential class members exceed those handed out in other TCPA pacts that have been given court approval. She specifically cited four settlements reached since 2010 that have offered claimants payments ranging from $15 to $61.49.
Ok…That’s a wrap for this week. See you at the bar!
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.
What are a few screws worth these days? A lawsuit—that’s what! Walmart is facing a class action lawsuit brought by customers who allege the big-box retailer is negligent in its in-store assembly of bicycles, a free service offered at all Walmart stores where bikes are sold.
Filed in Florida federal court by plaintiff Boyd Johnson, the Walmart lawsuit claims that Johnson purchased a semi-assembled Roadmaster Granite Peak bicycle from a Walmart in Pompano Beach, Florida. He had the bike assembled completely by store employees upon purchase. However, shortly after bringing the bike home and taking it for a ride the handle bars allegedly slid down due to an improperly installed bolt, causing him to lose control and fall to the pavement, injuring his face, shoulder and right side of his body.
Walmart began using its own employees to assemble bikes in 2014. Prior to that, the company had used third party vendors to do full assembly of the bikes. Walmart employees also assemble patio furniture and other products in-store, according to the complaint.
The employees that now carry out the bike assembly received “inadequate training,” according to complaint, and carry out the assembly of a bike with no assembly checklist, which are “crucial to maintaining safety standards” and readily available.
“Walmart has already been sued on the subject of improper bike assembly, yet injuries are still occurring due to the continuance of careless and sloppy in-house assembly of their bikes,” the lawsuit states. “The public should expect Walmart’s bike assemblers to be trained in bike assembly and require inspections before placing the bikes in the stream of commerce.”
According to the complaint, Wal-Mart’s bike assemblers are allegedly not properly trained or certified, which has led to the “negligent and reckless bike assembly procedures” that ultimately injured Johnson and likely other consumers, the suit states. The retailer could have provided that training and certification for less than $30 per employee.
Further, the complaint states that the Walmart bike assemblers are under such “pressure to assemble bikes as fast as they can” in order to meet customer demands that they can’t conduct inspections of the bicycles they assemble before handing them off to customers.
“They do not have time to properly inspect the bikes after assembly and fail to inspect even the most basic safety features, such as making sure that bolts are properly tightened or that brakes and tires are properly installed,” the complaint states. Yes, no, that’s not good.
The lawsuit claims negligence and breach of warranties and is seeking certification of a class of Florida and national consumers who purchased a bike from Wal-Mart that was improperly assembled. The suit also asks that Walmart be enjoined from continuing its allegedly negligent practices among other things. The case is Johnson v. Wal-Mart Stores, Inc., number 0:17-cv-60116, in the U.S. District Court for the Southern District of Florida.
Here’s hoping everyone rides off into the sunset happily ever after on this one.
Unsafe Apples? This is interesting…A proposed unfair business practices class action lawsuit has been filed against Apple alleging the tech giant doesn’t install a “lock-out-device” on iPhones to prevent California motorists from texting while driving, putting profits ahead of customer safety.
Filed in California state court the complaint represents proposed class plaintiff Julio Ceja who claims that Apple has been granted a patent by the U.S. Patent and Trademark Office in 2014 for the “lock-out-device” technology. However, Ceja claims the company has failed to modify iPhones with the device for fear of losing market share to other phone makers, to the detriment of public safety. According to the lawsuit, Apple has had the technology to prevent texting and driving since 2008.
The Apple complaint alleges unlawful, unfair and fraudulent business acts and practices by Apple. The suit seeks to block the company from selling iPhones in California that do not have the disabling lock-out device. Additionally, the suit seeks a court order that Apple update its existing iPhones with this technology.
BTW—if you were wondering how much Apple makes on sales of its iPhones—the complaint notes that the company generated $8.5 billion in profit from smartphone sales in the third quarter of 2016 alone, and an average of 586,000 iPhones per day in 2016.
Do here’s the math as it relates to texting and driving accidents:
“With 26 percent of these accidents being caused by motorists using their cellphones, and Apple’s 40 percent market share, this translates into at least 52,000 automobile accidents in California being caused by Apple’s iPhones each year,” the complaint states. Wow.
Ceja, who lives in Orange County, CA, was waiting at a stoplight when a driver distracted by her iPhone struck him from behind, causing damage to his car and injuring his back, according to the complaint.
The lawsuit describes the proposed class as “all California residents whose safety has been put at risk as a result of Apple’s failure to install ‘lock-out devices’ on their iPhones,” starting from the time Apple began selling iPhones in the state, in 2007, to present day.
The case is Julio Ceja v. Apple Inc., case number BC647057, in the Superior Court of the State of California, County of Los Angeles.
Don’t think there’s any likelihood of driving off into the sunset with this baby—with or without the device.
Asleep at J&J? Heads up if you bought Johnson & Johnson (J&J) bath and bedtime products: J&J is seeking final approval of a $5 million settlement of a consumer fraud class action lawsuit pending against it for alleged false advertising of certain bedtime and bath products. If you’re eligible—you could be in for a wee pay day.
The back story: The original lawsuit was filed by a mother in Illinois in July 2015, and combined with other similar lawsuits, which claimed Johnson & Johnson had violated Illinois’ Consumer Fraud and Deceptive Business Practices Act by labeling and advertising its bedtime bath products as “clinically proven” to help babies sleep better, even though the products had not been shown to have that effect.
The class covers consumers who purchased J&J bedtime products for home use within the United States or any U.S. territories from July 1, 2010, through August 31, 2016.
The agreement received preliminary approval in August 2016. According to the terms, J&J would pay $5 million and revise the language on its packaging of its bedtime bath products.
The case is Leiner v. Johnson & Johnson Consumer Companies, Inc., case number 1:15-cv-05876, in the U.S. District Court for the District of Illinois.
Well folks –that’s a wrap for this week. See you at the bar.
Wage & Hour Lawsuit Brewing... Another year, another unpaid overtime class action lawsuit, likely one of many to come. This lawsuit has been brought against Anheuser-Busch (AB) alleging the brewer fails to provide proper rest breaks and adequate compensation for overtime for its delivery and store merchandise employees.
Filed by former temporary employee Jose Hernandez, the lawsuit claims that Hernandez’s wage statement did not differentiate between hours paid at the regular pay rate and those paid at an overtime pay rate. The lawsuit further claims that his total pay didn’t take into account the overtime he had worked.
Allegedly, AB also systematically denied its delivery and store merchandising workers their breaks and didn’t pay them for that time.
According to the allegations, Hernandez worked as a temporary employee setting up retail displays from August to October 2016, at a pay rate of $10.50 per hour. However, while working for AB, he was required to work through what was supposed to have been state-mandated break time. The defendant allegedly did not always pay Hernandez properly for the overtime and double time he was supposed to have earned, in violation of California labor law.
The hours worked in each pay period as listed on his wage statements didn’t add up to the total hours he had actually put in, and the company didn’t always compensate him for the overtime he worked, Hernandez claims.
Heads up – Hernandez is looking to represent a class of delivery and merchandising employees for Anheuser-Busch’s California business who received itemized wage statements, worked more than 3.5 hours without a break, or worked more than eight hours in a day from January 2013 to the present, according to the complaint.
The case is Jose Hernandez v. Anheuser-Busch LLC et al., case number BC646330, in the Superior Court for the State of Los Angeles, County of Los Angeles.
TD Facing OD Charge Lawsuit… OD as in “overdraft”. Like the banks aren’t making enough money. TD Bank got hit with a potential class action lawsuit alleging it “unlawfully” applies overdraft fees that penalize customers who don’t replenish their overdrawn bank accounts within 10 days. Read on…
Filed on behalf of Shaina Dorsey, the TD Bank lawsuit contends that the sustained overdraft charge of $20 is imposed on customers’ accounts after an initial charge of $35 for the overdraft itself, and exceeds the limit permitted by the National Bank Act.
“Unlike an initial overdraft fee, the Sustained Fee for Overdrawn Accounts is an additional charge to a customer for which the bank has provided nothing new in the way of services,” the lawsuit states. “The charge is based solely on the alleged indebtedness to the bank remaining unpaid by the customer for a period of time.”
According to the complaint, Dorsey’s checking account went into “overdraft” status in August 15, 2016 and remained that way until September 8, 2016. The $20 fee on August 26, 2016 was in addition to six other fees totaling $210 “for transactions that created her ‘overdraft’ status in the first place.” Ouch!!
The class action suit claims that the fees are technically interest charged at an illegal rate and, when factoring for the legally permitted rates, are tens of times greater than what could be imposed.
The lawsuit seeks plaintiffs who use TD Bank and were charged with the extended overdraft charges.
Go get ‘em!
Harmless Harvest Harvesting Bucks Unfairly? The beverage company agreed to pay a $1 million settlement to end a pending consumer fraud class action lawsuit it’s facing over alleged false advertising.
FYI—the Harmless Harvest lawsuit claimed that the coconut water product packaging contained false and misleading statements that its Harmless Harvest 100% Raw Coconut Water (later renamed Harmless Coconut Water), Harmless Harvest 100% Raw Coconut Water Dark Cacao, Harmless Harvest 100% Raw Coconut Water Cinnamon & Clove, and Harmless Harvest 100% Raw Coconut Water Fair Trade Coffee were falsely labeled as “100 percent Organic” and “Raw”.
Under the terms of the proposed agreement, Harmless Harvest has agreed to have an independent third-party consultant watch over them for a period of two years from the effective date of the settlement. The consultant’s role will involve reviewing product labels for ongoing accuracy (as they can’t do this in-house?) and provide reports to class counsel.
About the money…the company also agrees to bear the cost of the consulting fees. The company has also agreed to pay incentive awards to the named plaintiffs, totalling $20,000.
The proposed settlement class includes “all persons in the United States who made retail purchases of one of more of Harmless Harvest’s coconut water products in the United States at any time from September 30, 2011, through the date of Preliminary Approval.”
Don’t get excited just yet – the proposed settlement requires final court approval. The case is “Raw” Coconut Water Class Action Lawsuit is Guoliang Ma, et al. v. Harmless Harvest Inc., Case No. 2:16-cv-07102, in the U.S. District Court for the Eastern District of New York.
We will keep you posted so watch this space for updates.
Well folks –that’s a wrap for this week. See you at the bar.
Pay to Pray? Not on your life! Love this. King Arthur Pendragon—the legendary King of England and Excalibur Knight—has come back to defend rights of people to pray without having to worry about their parking. It’s the little things, right?
It seems the English court has granted Pendragon the right to sue Britain’s national historical society over a £15 parking fee.
Just so we’re all clear, Pendragon was born in the century that only recently passed as John Timothy Rothwell but later changed his name to Excalibur. According to Wikipedia, in 1991, he was named Pendragon and Swordbearer to the Glastonbury Order of Druids. It turns out that the self-proclaimed reincarnation of King Arthur is a bit of a crusader (sorry, couldn’t resist) and no stranger to the English courts.
Back to the case. Parking for the riff raff at Stonehenge usually costs £5. However, Pendragon was charged (but didn’t pay) £15 during the 2016 summer solstice prayer ceremony that he was attending, which is part of the Druid religion. Apparently, English Heritage increased the parking fee in an effort to encourage more people to car share or travel by bus. I can’t quite imagine a bus full of Druids. Motorbikes yes, Bluebird buses, not so much.
English Heritage’s (EH) side of the story, according to a statement they issued earlier, is: “In recent years there has been a huge growth in people and cars coming to the World Heritage Site to celebrate the Summer Solstice. In 2000, approximately 10,000 people attended the Solstice celebrations, while in 2014, the figure was close to 40,000.” That’s a lot of people, Pagan or otherwise.
Pendragon doesn’t agree with the parking fee, stating that he wanted to prove EH was wrong to turn him away when he refused to “pay to pray”, the BBC reports. And he wasn’t the only one who refused to pay. Pendragon has a lot of support in this case: he was joined by other Druid, Heathen and Wiccan supporters to protest outside the court. Reportedly, something like 12,500 people take part in this annual ceremony and a lot of them feel that the parking fee was “exclusionary”. Pendragon claims that the fine “unfairly targets his religion,” and breached his human rights. For those of you not in the loop on Druid religious holidays, there are four annual dawn ceremonies at Stonehenge—those parking fees could add up. So off to court they go—Salisbury small claims court that is.
In an interview with the BBC, a spokeswoman with the English Heritage said they are looking forward to presenting their full case at a later date. Adding that “The Summer Solstice parking charge is not a ‘pay to pray’ but a ‘pay to park’ charge.”
The court will set a full day of hearings which Pendragon has requested not interfere with the spring or summer solstice. Maybe they should be praying for free parking, as they’re obviously not taking the bus. Then again, what about horseback?