Overworked Oilers? Another week, another several employment lawsuits. This one, an unpaid overtime class action lawsuit, has been filed against oilfield services company Schlumberger Tech Corp, by workers who allege the company is in violation of the Fair Labor Standards Act (FLSA).
According to the lawsuit, the defendant schedules workers for long shifts but pays them salaries plus a day rate, instead of overtime rates as required by both state and federal labor law. The laborers are not exempt from overtime as they perform manual duties that fit within a checklist set by their superiors, the lawsuit states.
“All these workers are regularly scheduled to work 84 hours per workweek, but often worked more,” attorneys for the plaintiff Andrew Fritchman state. “Instead of paying them overtime, SLB paid its [measurement while drilling] employees a base salary plus a day rate.”
According to the complaint, Fritchman worked as a “measurement while drilling” employee, a largely manual job that didn’t leave room to deviate from the company’s outlined plan for how each day was to be conducted. Measurement while drilling workers are tasked with recording data gathered during drilling operations. A college education is not required to do this work, the plaintiff asserts.
Fritchman is claiming that he and other workers performing the same job worked grueling schedules, working and living in the field sometimes for weeks. Typically, a schedule would require one worker on the “day” shift and the other on the “night” shift. Those shifts were 12 hours, and the employees worked seven days a week. Ah, yeah, that doesn’t sound good…
The plaintiffs assert that instead of paying its workers overtime as required by FLSA, the Ohio Prompt Pay Act, the Ohio Minimum Fair Wage Standards Act, and the Pennsylvania Minimum Wage Act, the company paid them a salary plus a day rate.
The lawsuit is seeking back pay, liquidated damages, attorneys’ fees and costs under FLSA for the company’s misclassifying its workers as exempt from overtime rules.
The case is Fritchman v. Schlumberger Tech Corp., case number 2:16-cv-01752, in the U.S. District Court for the Western District of Pennsylvania.
$1B Hip Award. I’m willing to bet Johnson and Johnson is not celebrating this weekend. A jury in Dallas this week awarded $1 billion to six plaintiffs who are suing Johnson & Johnson (J&J) alleging the DePuy Pinnacle hip implant made by the company’s subsidiary, DePuy Orthopaedics Inc., was defective and has caused them adverse health effects and subsequent surgeries to remove the device.
The DePuy Pinnacle metal-on-metal hip implant has an unreasonably high failure rate. The lawsuits filed against DePuy, claim the metal-on-metal design allows metal debris to come loose from the device, ultimately being absorbed by the patient’s surrounding tissue.
Although J&J won the first case in 2014, in March of this year another federal jury in Dallas awarded $502 million to five plaintiffs whose suits were combined. The DePuy Pinnacle hip award was later reduced to $150 million under Texas law. However, because this latest set of lawsuits was tried under California law, the award won’t be subject to a punitive damages cap.
J&J is currently facing 8,500 similar lawsuits brought together in an MDL in federal court in Dallas. All the plaintiffs allege the company failed to adequately warn of the side effects associated with the hip implant.
According to media reports, evidence presented in court showed J&J paid kickbacks to surgeons to promote the device, even though the company was aware that the implant was associated with greater risks than other similar devices.
DePuy stopped selling the metal-on-metal Pinnacle devices in 2013 after the U.S. Food and Drug Administration strengthened its artificial hip regulations.
It would be interesting to know how many hours J&J spends in court each year, defending itself against defective products litigation…
AMEX Calling? A $9.25 million settlement has received final approval this week, ending a class action lawsuit against American Express. The lawsuit claimed the company made numerous unsolicited telemarketing calls, in violation of the Telephone Consumer protection Act (TCPA). You think?
According to the terms of the AMEX settlement, the funds will be distributed between two plaintiff classes, specifically, those who received debt collection calls on AmEx accounts and those who received telemarketing calls on behalf of the credit card company.
$1 million will be distributed among the debt collection class, defined as those who received calls from third-party vendor West Asset Management Inc. between 2009 and 2013 hoping to collect on AmEx debt. Attorneys for the plaintiffs state that as only 135 members of that class filed claims, each plaintiff will receive over $4,400 from the fund. That’s a nice little pay day.
The class of plaintiffs who received telemarketing calls from vendor Alorica Inc. between 2009 and 2016 will share up to $8.25 million after attorneys’ fees have been paid. There are a reported 55,000 members of that class who filed claims, so the payment per class member will be $88.
The case is Ossola et al. v. American Express Co. et al., case number 1:13-cv-04836, in the U.S. District Court for the Northern District of Illinois.
Well, that’s a wrap for this week. See you at the bar.
A recall of an indoor hill climbing machine called Matrix ClimbMill has been issued, prompted by reports of injuries suffered by people using the device. Ok, so the first thing that comes to mind is why not just go outside? You can suffer the same injuries for a fraction of the cost and inconvenience in the great outdoors—or even the nearest shopping mall. And hey—fall in the shopping mall—you might even be able to sue. No, really.
These Matrix ClimbMill machines are a good deal more expensive that a gym membership or new pair of hiking boots, or possibly filing a lawsuit. Sold by Johnson Health Tech North America and its commercial fitness equipment dealers nationwide, the Matrix ClimbMill retailed for—are you sitting down—between $8,000 and $13,000. I may be wrong, but I think you could actually get primo accommodations in Tahiti for that kind of dough, Joe. The obvious question then becomes, why wouldn’t you? Take that trip to Tahiti, I mean.
Oh, but you wanted to get in shape. Without leaving home. So ClimbMill was a seemingly good, though pricey, option…until…
Apparently, the defect lies in the stop/pause controls on the right hand grip. They can malfunction, posing a fall hazard to the user. Yes, stopping is always a problem—not just for hill climbers. In fact not being able to stop could be the reason a person starts using these machines. Can’t stop eating, drinking, sitting on the sofa watching TV… you know. May as well start exercising.
There’s certainly a fair number of folks out there who bought a Matrix ClimbMill stair-step exercise machine—some 10,500 of them were sold from December 2011 through September 2015. Not sure what happened after September 2015. Might be worth finding out.
In any event, the company has received 19 reports of incidents involving the stop/pause hand grip malfunctioning, including eight reports of injuries such as scrapes, bumps and a shoulder dislocation. Ouch! That’s enough to send you back to the fridge.
According to the recall, only ClimbMills that have a right hand grip with the words “STOP” and “Pause” printed on them are included in this recall. The frame serial numbers are located on the bottom front of the base near the power switch. The ClimbMills are black and gray with Matrix printed on the side of the machine. These four-step exercise machines are used in commercial fitness facilities such as health clubs, hotels, apartment complexes, rehabilitation centers, schools, and municipal facilities.
Just in case you own a Matrix ClimbMill stair-step exercise machine, the following frame serial numbers are included in the recall:
CS17111100102 – CS17120901766
CS21130800080 – CS21130500062
CS22130602881 – CS22130602863
CS23130800001 – CS23140703749
CS23B131100001 – CS23B140701050
CS24140700001 – CS24150702803
CS24C140800001 – CS24C150200900
CS24H150100001 – CS24H150500049
Now, for the sake of clarity, the Consumer Product Safety Commission is warning all consumer who own a recalled ClimbMill to stop using them immediately and contact Johnson Health Tech North America to schedule a free repair. Johnson is contacting purchasers of the recalled ClimbMills directly.
I still say going on a trip would be better. Heck—just hauling your luggage round the airport could be enough of workout.
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…
Well folks, it’s that time of year again. I’m referring to toy shopping. After all, some of the hottest deals for holiday shopping start approximately 2.8 seconds after the turkey’s been devoured. And if it’s you who’s tasked with finding that perfect, most desirable toy this year, there are a few things you might want to be aware of before heading out the door (or to your keyboard).
The consumer watchdog group, appropriately called “The World Against Toys Causing Harm Inc., (WATCH) – has compiled a list of the world’s most dangerous toys that, obviously, parents would be wise not to buy.
As their name indicates, the WATCHdogs aren’t fooling around. They note that more than 800,000 toys have recalled since January 2015, with more than 500,000 of those toys having being pulled from the market just this year. There’s been a 40 percent increase in toy-related injuries from 1990-2011. AND, are you sitting down—WATCH also notes that one child is treated in the US emergency rooms every three minutes for a toy-related injury. More than 60 children were killed in toy related incidents between 2010 and 2014.
Ok—so now I have your attention, and just in time for Black Friday, WATCH has issued a list of their nominees for top 10 toys to be avoided (the names are a bit of a giveaway). Choking hazards seem to feature prominently, as do other serious injuries.
Specifically, Peppa Pig’s Muddy Puddles Family, and the Baby Magic Feed and Play Baby can both, allegedly, provide risk for choking, but neither carries the appropriate warnings. So, if these toys had a warning for choking, would that make it ok to sell them? Just asking.
Then there’s the Kids Time Baby Children’s Elephant Pillow, which also apparently does not have a warning for the risk of suffocation. Again, if it carries a warning, does that make it ok?
The Slimeball Slinger, which, according to WATCH, is a slingshot type of thing that can be fired from over 30 feet. Great. Not surprisingly, it poses a risk of eye injury, never mind family pets, windows and china cabinets.
The Banzai Bump n’ Bounce Body Bumpers allegedly have the potential to cause impact injuries and do not come with protective helmet, knee guards or other protective equipment. Maybe those items are sold separately?
The Nerf Rival Apollo XV-700 Blaster, allegedly has the potential to cause eye injuries.
The Good Dinosaur Galloping Butch was included because it failed to warn that the pointy, rigid tail of the dinosaur can puncture children’s skin.
Peppy Pups, which could cause strangulation in young children due to a pull string measuring 31 inches. Yikes.
The Flying Heroes Superman Launcher also poses a hazard from eye injury from the items launched from the toy.
And finally, The Warcraft Doomhammer made the list allegedly due to its heavy, rigid hammer than can inflict bodily harm if children use the toy as a weapon, (what else is this meant to be used for, given the name?). Apparently the Doomhammer is similar to seen in the video game or in the movie. Is World of Warcraft PG rated? Seriously?
If you’re interested in learning more about these and other potentially dangerous toys, you can view the list at http://toysafety.org/
That about covers if for now. Happy shopping.
So Volkswagen’s Not the Only Emissions Cheat? Maybe…Fiat Chrysler Automobiles NV and engine maker Cummins Inc. got hit with a proposed consumer fraud class action alleging the diesel engines in Dodge Ram trucks hide the trucks’ emissions, which are above the legal limit.
Specifically, the plaintiffs claims that Chrysler and Cummins conspired to knowingly deceive customers and regulators with respect to the emissions levels generated by Dodge Ram 2500 and 3500 trucks outfitted with the Cummins 6.7-liter turbo diesel engine, which were emitting dangerous levels of nitrogen oxides.
“The defendants never disclosed to consumers that the affected vehicles may be ‘clean’ diesels in very limited circumstances, but are ‘dirty’ diesels under most driving conditions,” the complaint states.
According to the Chrysler emissions lawsuit, the engines have a technology built in that traps and breaks down pollutants, a design feature meant to reduce the amount of NOx going into the atmosphere through the trucks’ exhaust. However, when the trucks are traveling for long distances or up hills, they emit far more pollutants that allowed under California and federal law. Nice.
The plaintiffs claim Chrysler and Cummins intentionally mislead the public, illegally sold non-compliant polluting vehicles, concealed emissions levels, knowingly profited from the dirty diesels and used fraudulently gained emissions credits from the US Environmental Protection Agency for use on future production of high-polluting vehicles.
The complaint states that in addition to hiding the true emission outputs, the affected Cummins diesel engines wore out the so-called catalytic converter more quickly because the engines burn fuel at a higher rate. Consequently, truck owners frequently had to replace the converter after the warranty had expired at a cost of approximately $3,000 to $5,000.
The case is James Bledsoe et al. v. FCA USA LLC et al., case number 2:16-cv-14024, in the U.S. District Court for the Eastern District of Michigan.
Rusty Trucks? What a whopper! A $3.4 billion settlement has been agreed in a defective automotive class action brought against Toyota Motor Co. The lawsuit alleges that the frames in certain Tacoma, Tundra and Sequoia trucks are prone to rust corrosion and perforation.
Under the terms of the deal, approximately 1.5 million vehicles that may have defective frames will be inspected and an estimated 225,000 trucks will have their frames replaced.
The Toyota frame lawsuit was filed in 2015, alleging its 2005-2009 Tacoma trucks were made with frames that are inadequately protected from rust corrosion, rendering the vehicles unstable and unsafe to drive. The lawsuit also alleged that Toyota was aware of the defect but failed to correct it.
The settlement covers 2005 to 2010 Tacomas, 2007 to 2008 Tundras, and 2005 to 2008 Sequoias. The Japanese automaker has promised that vehicle owners will not be charged for the inspection and replacement campaign. The program will last 12 years from the date the vehicle was sold or leased, meaning any future perforations will also be covered. The replacement and inspection policy remains valid if an owner sells the vehicle to another party.
Further, the plaintiffs have asked for certification of a class of Tacoma, Tundra and Sequoia owners or lessees from the 50 states, Puerto Rico, Washington D.C. and all U.S. territories.
The case is Brian Warner et al v. Toyota Motor Sales USA Inc., case number 2:15-cv-02171 in the U.S. District Court for the Central District of California.
Adderall Generic Delay. Finally. A $15 million settlement has been approved by a federal judge, ending an antitrust class action against Shire US Inc, that alleged the pharmaceutical company paid competitors to delay selling their less expensive generic versions of Adderall, which is used to treat attention deficit hyperactivity disorder (ADHD).
Under the terms of the Adderall settlement agreement, plaintiffs Monica Barba and Jonathan Reisman were each granted service awards of $5,000, and 10 named plaintiffs in three related cases were granted $2,500 awards.
According to court documents, some 23,452 claims requesting reimbursement for more than 855,000 Adderall prescriptions have been received by the claims administrator. That’s not insignificant.
About $1 million is expected to be left over once all the claims are paid out, and will be donated to CHADD, a national nonprofit that promotes education and advocacy for people with ADHD.
Filed in 2013, the lawsuit was initially brought by consumers in Florida and Pennsylvania who alleged Shire created pay-for-delay settlements in false patent litigation against Teva Pharmaceuticals USA Inc. and Impax Laboratories Inc. to delay the generic competition for Adderall reaching the market.
The case is Barba et al. v. Shire US Inc. et al., case number 1:13-cv-21158, 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!