It’s Easy!! Let’s Hope So. Staples will be wanting that “it’s easy!” button as it responds to the consumer fraud class action lawsuit it’s facing this week over allegations it cheats consumers on its reward program. Naughty, naughty…
Filed by Staples customer Neil Torczyner, the lawsuit asserts the company spreads discounts for coupons across a customer’s total collected points in a purchase rather than applying them against the item the coupon was used for, allegedly shorting the total number of rewards points the customer racks up.
The Staples lawsuit states that the points are valuable to consumers because they can be credited against purchases at Staples stores and online. Therefore, the points should be added up in the way the company advertises.
“By employing this deceptive method of calculating rewards points, Staples shorted its members’ account credit which could have been used towards the purchase of most merchandise in Staples’ stores, online at staples.com, or by phone,” the lawsuit states.
Here’s the skinny: Torczyner claims he noticed the problem when he used a coupon for a package of bottled water. The coupon took $1.50 off the cost of the water itself, making it a non-qualifying purchase for rewards points purposes, according to the suit. He claims that when he looked at his rewards points it seemed that Staples had spread out the value of the coupon over the whole transaction, limiting the number of points he could collect for items that were qualifying and that weren’t impacted by the coupon. He should have received $7.98 in points, but received $7.02 instead, according to the complaint.
Torczyner is looking to represent a class of customers who were allegedly cheated out of rewards points when they used coupons. The case is Neil Torczyner v. Staples Inc., case number 3:16-cv-02965, in the U.S. District Court for the Southern District of California.
Rainbow Effect at Walmart? Here’s a happy ending…a $7.5 million settlement has been reached in a discrimination class action against Walmart. The lawsuit was brought by several thousand workers who claimed they were denied healthcare coverage for their same sex spouses.
Initially brought on behalf of gay workers at Walmart, the lawsuit was filed in July 2015, a month after the U.S. Supreme Court ruled that there is a constitutional right to same-sex marriage under the 14th Amendment. Former Walmart employee Jacqueline Cote brought the lawsuit, claiming she was denied spousal health insurance for her wife, Dee Smithson. The couple had married in 2004. In 2012, Smithson was diagnosed with ovarian cancer. The couple subsequently incurred $150,000 in debt from uninsured medical expenses.
The Walmart settlement effectively ends the class action that alleged, specifically, the big box retailer had violated Title VII of the Civil Rights Act, the Equal Pay Act and state employment law by not offering health insurance benefits to same-sex spouses before January 1, 2014.
Under the terms of the agreement, the $7.5 million will be divided among the few thousand employees who were unable to obtain coverage for their spouses from January 1, 2011, through December 31, 2013.
According to the settlement motion, nearly 1,000 class members have already been identified, and there could be hundreds more. Approximately 1,200 workers had enrolled their same-sex spouses in health insurance and around 1,100 of them would be covered by the class period.
The claim terms are such that class members can file a long-form claim to be reimbursed for out-of-pocket health care expenses of more than $60,000, at a rate of 2.5 times the qualifying costs, or at a rate at 100 percent of the cost for amounts of less than $60,000. Class members can also file a short-form claim without documentation for a pro rata payment of up to $5,000 per year or $15,000 for the three-year class period. For her role as class representative, Cote will receive a $25,000 service payment.
The case is Cote v. Wal-Mart Stores Inc., case number 1:15-cv-12945, in the U.S. District Court for the District of Massachusetts.
FloodSafe Auto-Shutoff Settlement…to the tune of $14 million. This settlement received final approval this week, ending two defective products class action lawsuits brought against Watts Regulator Co., and its insurer.
The two lawsuits represent two classes of homeowners who claimed that Watt’s defective water shut off devices and water heater supply lines caused massive plumbing damage to people’s homes.
The two lawsuits were filed separately, by Curtis Klug and Durwin Sharp who both claimed a defective line of water supply and heater connectors caused extensive property damage. Specifically, Klug’s complaint stated that Watts’ FloodSafe Auto-Shutoff Connectors, which are used to supply water to faucets, toilets, washing machines, dishwashers, icemakers and other common household appliances, have defective shut-off devices, allegedly let water leak, resulting in property damage. Similarly, Sharp’s suit claimed Watts manufactured and marketed certain water heater supply lines that malfunctioned, when the inner-tubing in certain water heater connectors failed, causing leaks and eventually major property damage.
According to the settlement terms Watts will pay $14 million into a common settlement fund, $10 million for Sharp’s action and $4 million for Klug’s settlement class. Sharp and Klug will each receive $5,000 as class representatives.
The settlement class in Klug’s case includes everyone in the United States who owns, leases or resides in a built structure with a FloodSafe connector since November 2008.
Sharp’s settlement class covers all people, also after 2008, who own, lease or live in a house or building containing a water heater connector.
The cases are Klug v. Watts Regulator Company, case number 8:15-cv-00061 and Sharp v. Watts Regulator Company, case number 8:16CV200 in United States District Court for the District of Nebraska.
So that’s it for this week. See you at the Bar!!
When is not being completely honest about a product’ benefits considered consumer fraud? Or more precisely, lawsuit worthy? L’Oréal might be about to find out. They got hit with a consumer fraud class action lawsuit recently, over allegations its Total Repair 5 Damage-Erasing Balm doesn’t do what it’s supposed to do. Ah expectations. They are so dangerous. Remember what the folks who bought Wen Cleansing Conditioner were expecting?
Given the name, Total Repair 5 Damage Erasing Balm, I’m not sure what, had I purchased the product, I should expect. The words “repair”, “erasing” and ‘balm” all appear in the name. So, does this product repair, remove or soothe your hair? Well, hopefully not remove (again, flashback: Wen…).
Surprisingly, according to Manhattan resident Vivian Lee, Total Repair 5 Damage Erasing Balm doesn’t do anything. Say whaa…? Would never have guessed. And, perhaps that’s a good thing, given that L’Oreal can’t seem to decide on exactly what it is supposed to do—if the name is any indication.
According to Lee, she bought a jar of this stuff at Walgreens and paid over $9 for the privilege or doing so. (Note, an 8.5 oz. jar of the stuff is available elsewhere online for $5-$7…) And apparently she says, “the only reason a consumer would purchase the Total Repair 5 Damage Erasing Balm is to obtain the advertised hair repair benefits.” Makes sense…
But—Lee claims that the product didn’t even come closer to approaching a “total repair” (whatever that means) of her hair. She claims L’Oréal “consistently conveyed the very specific message to consumers that the product will “repair up to one year of damage in one use,’” but “there are no ingredients in the Total Repair 5 Damage Erasing Balm that could actually repair a year’s worth of hair damage ‘instantly,’ particularly after one use.” Nothing works instantly after one use, except Twitter. Come on now!
I’d be interested to know what one year’s worth of hair damage look like? Baldness? Thinning, patchy hair? Bright orange hair with white roots? What? My idea of damage and yours could be very different. L’Oreal does however, try to cover its bases, by stating that its product would allegedly fix split ends, weakness, roughness, dullness and dehydration in hair.
But the science has it, in the end. According to Lee’s complaint, hair is made of keratin proteins, yes—we knew that. But, sadly, there are no keratin proteins in L’Oreals’ Total Repair 5 Damage Erasing Balm, so said product can’t do what it says. The product’s main conditioning ingredients, according to Lee, are behentrimonium chloride, amodimethicone and hydroxypropyl guar. And she says these ingredients are common in other products that do not claim to repair hair instantly.
Lee is looking to establish a nationwide class and a New York subclass. Her claims include violations of the New York general business law, negligent misrepresentation, breach of express warranty and unjust enrichment.
FYI—The case is Lee et al. v. L’Oréal USA Inc., case number 1:16-cv-09266, in the U.S. District Court for the Southern District of New York.
Gotta go—having my hair done… 😉
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…