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.
Lawsuit Claims Scrub the Advertising…not your skin. The makers of St. Ives Apricot Scrub are facing a consumer fraud class action lawsuit that claims the facial cleansing product damages users’ skin.
Filed by Kaylee Browning and Sarah Basile in the U.S. District Court in California against Unilever, the parent company of St. Ives, the lawsuit claims that advertising for the product states it will give people softer skin. However, the plaintiffs claim the product is “unfit” to use. They state in the lawsuit that the scrub contains crushed walnut shells, which make the product completely unsuitable to be used on one’s face.
The St. Ives scrub lawsuit cites a 2015 quote in a New York Magazine article by a dermatologist who said: “[l]arge, hard, and sandlike rocks” like those in St. Ives Apricot Scrub are “too abrasive for the face’s thin skin.”
Citing another quote from that same article, the lawsuit contends that abrasive scrubs create “micro-tears” in the skin, and that this damage makes the skin “more vulnerable to environmental damages, pollution, and sun damage.”
The plaintiffs claim that Unilever has known about these issues, as it advertises the product as being “dermatologist tested.” Yet despite knowing this, Unilever does not disclose that the product causes skin damage or that it is not actually recommended by dermatologists, the plaintiffs claim.
Further, the plaintiffs assert that Unilever’s representation that St. Ives Apricot Scrub is “non-comedogenic,” i.e. that it does not tend to clog pores is false, as several of the product’s ingredients are allegedly highly comedogenic.
The named plaintiffs seek to represent a nationwide Class consisting of all persons in the U.S. who purchased St. Ives Apricot Scrub. They also propose to represent two subclasses, each from their respective home states of California and New York.
The lawsuit is Kaylee Browning, et al. v. Unilever United States Inc., Case No. 8:16-cv-2210, in the U.S. District Court for the Central District of California.
Chemical Dumping Victim Awarded $10.5M. DuPont’s losing—to the tune of millions. $10.5 million in punitive damages has been awarded to a man who alleges DuPont’s C8 chemical dumping caused his cancer. This punitive award is the largest punitive to date in the multidistrict litigation (MDL).
The jury awarded the $10.5 million on top of $2 million in compensatory damages, to Kenneth Vigneron as well as his attorney’s fees. Vigneron claims that DuPont’s decades long practice of dumping Teflon ingredient C8 into the air and water from their factory on the Ohio river in West Virginia, has caused a cancer cluster in a number of Ohio water districts.
Verdicts from two earlier trials favoring the plaintiffs in the MDL are on appeal. The next trial is set to begin January 17, with 11 more trials set for later in the year in four different cities.
The cases are In re: E.I. du Pont de Nemours and Co. C-8 Personal Injury Litigation, case number 2:13-md-02433, and Vigneron v. DuPont, case number 2:13-cv-00136, both in the U.S. District Court for the Southern District of Ohio.
Consumers Getting Milked? At a loss for words on this one—well at least polite words. A $52 million settlement has been reached in an antitrust class action lawsuit pending against several milk producers alleging they conspired to fix milk prices.
According to the complaint, the defendants, namely National Milk Producers Federation aka Cooperatives Working Together (CWT), Dairy Farmers of America Inc., Land O’Lakes Inc., Dairylea Cooperative Inc. and Agri-Mark Inc., participated in an agreement to prematurely slaughter the dairy cows in their herds and, as of April 1, 2009, they agreed not to re-enter the dairy farming business for at least one year. Who does this?
“The principle purpose and effect of this contract, combination and conspiracy has been to reduce the supply of milk, eliminate competition, and significantly reduce the number of dairy farmers competing in the market in order to increase the price of raw farm milk,” the lawsuit states.
Under the terms of the proposed milk pricing antitrust settlement, which requires final court approval, a total of $52 million in compensation will be made available to Class Members. The actual amount of compensation each Class Member can expect to receive depends on how much milk was purchased for their household, and how many total claims are filed.
Eligible class members include consumers who purchased milk or other milk products including half & half, cream cheese, sour cream, cottage cheese, yogurt or cream, since 2003 while living in one of these states: Arizona, California, District of Columbia, Kansas, Massachusetts, Michigan, Missouri, Nebraska, Nevada, New Hampshire, Oregon, South Dakota, Tennessee, Vermont, West Virginia, and Wisconsin. Consumers must have bought the milk products from a grocery store or other retailer and not directly from the defendants.
Well folks –that’s a wrap for this week. See you at the bar.
All is not Well at Wells Fargo? Not by a long shot. Employees from Wells Fargo Bank have filed an employment class action lawsuit alleging they were pressured into unethical sales conduct under threat of retaliation if they failed to cooperate.
Specifically, the Wells Fargo employees claim they were forced to inflate sales figures by opening new customer accounts that customers had not agreed to and to open accounts for non-existent customers. Further, the lawsuit claims that employees who did not engage in this alleged behavior were threatened with discipline or termination. Employees who did participate were rewarded, the lawsuit claims. Read on…
The alleged misconduct involved Wells Fargo employees having to set up a target of eight accounts, or “solutions,” per customer, which is far greater than the industry standard of three accounts per customer. The employees allege that these sales goals were impossible to meet without engaging in underhanded behavior.
The Wells Fargo lawsuit asserts that Wells Fargo’s motive was to increase its stock price by setting unrealistically high sales goals for its employees.
Wells Fargo allegedly aggressively and unlawfully encouraged sales misconduct among its employees by threatening retaliation against workers who refused to engage in the sales misconduct. Those employees were allegedly “routinely counseled, warned, written up, demoted, placed on performance improvement plans, forced to quit, denied promotions, or fired as a result of not meeting sales goals, even though they could have easily met such goals by engaging in Sales Misconduct,” according to the complaint.
The plaintiffs seek to represent a Class encompassing all current and former U.S. employees of Wells Fargo who were subject to the sales goals described in the lawsuit and who were not terminated for engaging in sales misconduct.
Several subclasses have also been proposed in this action, which would represent employees who suffered adverse employment actions for failing to reach sales goals, who reported their concerns about the alleged unlawful sales conduct, or who had their employment terminated or who were let go for reporting or refusing to engage in the alleged misconduct.
The plaintiffs are seeking an award of damages, including two times the amount of back pay for alleged violations of the Dodd-Frank Act and treble damages as applicable under the Racketeer Influenced and Corrupt Organizations Act, or RICO. They also seek reinstatement for eligible Class Members under the Dodd-Frank Act.
Not Painting a Pretty Picture…And another employment suit filed this week—this one by employees of Behr Paint, alleging violations of the Fair Labor Standards Act and California labor law. The defendants are Behr Process Corp., Behr Paint Corp. and Masco Corp.
According to plaintiff Ryan McBain alleges he was employed as a field representative by the defendants and assigned to different Home Depot stores. He claims his responsibilities were answering customer inquiries, replenishing stocks and maintaining store displays. He alleges he was required to prepare time-consuming reports and shuttle between stores and was misclassified as exempt from overtime pay and was not provided with proper meal and rest periods.
In the Behr lawsuit, McBain claims the defendants failed to adequately compensate him for his work as a field representative. The lawsuit also claims that the defendants allegedly failed to keep accurate payroll records of hours worked, meal periods taken, and overtime worked by their employees, refused to pay any overtime compensation to employees for hours worked in excess of 40 hours per week and refused to provide adequate meal and rest periods.
The plaintiff is seeking a trial by jury and seek judgment in his favor, designate collective action, declare misclassification of class members, unpaid wages, liquidated damages, civil penalties, unpaid wages from meal/rest periods not taken, reimburse business expenses, interest, costs and expenses of action, attorneys’ fees and other relief as the court deems just.
FYI – The case is U.S. District Court for the Northern District of California Case number 3:16-cv-07036.
Meanwhile, North of the 49th…VW managed to reach a $2.1 billion settlement in the Canadian class action pending over the so-called Volkswagen and Audi defeat devices that temporarily reduced vehicle emissions enabling the diesel engines to pass regulatory emissions tests.
Additionally, the settlement terms stipulate that Canadian owners of diesel-equipped vehicles made by Volkswagen AG will be able to sell their cars back to the auto maker.
The settlement will cover approximately 105,000 Canadians who bought Volkswagen or Audi vehicles equipped with 2.0-liter diesel engines between 2009 and 2015. Each class member will receive $5,100 to $8,000 in compensation. Class members who decide to sell their vehicles back to Volkswagen Canada will receive a payment in addition to the value of their car.
The settlement is expected to receive final approval from Ontario Superior Court and the Superior Court of Quebec pen in March, 2017, after which class members will receive payouts.
The settlement is valued at $2.1-billion if all eligible owners apply and receive the full amount they are entitled to and all eligible vehicles are traded in. It will be among the largest amounts paid out in a class-action suit in Canada.
That’s a wrap for 2016!!! Happy New Year – to you and yours. See you at the bar.
What are They up to Under Those Golden Arches? A Chicago McDonald’s franchisee is facing a consumer fraud class action lawsuit filed by a customer who alleges the restaurant is charging 41 cents more for the two cheeseburger “Extra Value Meal” than what it would cost if customers ordered all the items in the meal separately.
McDonald’s Extra Value Meal consists of two burgers, fries and a drink, and cost the plaintiff, James Gertie, $5.90 per meal, in Des Plaines and Niles, Illinois. These two McDonald’s restaurants are part of a chain of more than 10 such restaurants owned and operated by the Karis Group, according to the complaint.
According to Gertie, he purchased a Two Cheeseburger Meal from at least five of Karis’ McDonald’s restaurants in Des Plaines and Niles from Oct. 14 to Nov. 13. Each time Gertie was charged $5.90 for the meal, the complaint states.
Gertie alleges in his McDonald’s lawsuit that posted menu prices indicated the restaurants would have sold Gertie and other customers two cheeseburgers for $2.50, a medium order of French fries for $1.99 and a medium soft drink for $1, for a total of $5.49. That’s a difference of 41 cents less than the posted price for the Extra Value Meal, according to the lawsuit. That 41 cents could really add up…
“Defendant, the operator of several McDonald’s restaurants, advertised for sale a food combination designated as an ‘Extra Value Meal’ but the combination actually costs more than if each item were bought separately, thus making it no ‘value’ at all, let alone an ‘extra value,’” the lawsuit states
They say it’s the pennies that count.
Some Good News from Some Bad News. A jury in Ohio has awarded $2 million in compensation against DuPont in the first of some 40 environmental toxin cases pending against the chemical company over allegations it dumped toxins into the air and drinking water of the Ohio River, causing illness to people in the surrounding area.
This settlement resolves allegations brought by plaintiff Kenneth Vigneron that DuPont de Nemours & Co, through its actions, caused his testicular cancer. Vigneron’s lawsuit is part of multidistrict litigation involving some 3,500 people who allege that over a period of decades, DuPont released perfluorooctanoic acid, also known as PFOA or C8, into the environment of the Ohio River at the Washington Works site.
According to the plaintiffs, internal studies done by DuPont, which date back for years, strongly indicate that C8 was dangerous. For decades, C8 was used as an essential component in the manufacture of well-known nonstick cookware and coatings. Today, it has been phased out in most US manufacturing.
Six bell weather cases were completed earlier this year, two of which resulted in jury verdicts of $1.6 million and $5.6 million, the latter including punitive damages. DuPont is appealing both verdicts.
While DuPont has been fighting allegations of toxic dumping causing illness, residents of both Ohio and West Virginia claim they have suffered a variety of health problems as a result of their exposure to the chemicals. Further, a Dutch investigation makes similar claims alleging the drinking water near DuPonts’ Dordrecht plant in the Netherlands was contaminated with C8, and that DuPont had been exposing people living near the plant to the toxin for as much as 25 years.
Earlier this year, the judge hearing the cases ordered DuPont to turn over documents related to the Dutch investigation to the American plaintiffs, saying the information about the company’s conduct in a similar situation could be helpful for arguing punitive damages or refuting arguments that the chemical giant has taken a proactive stance on safety concerning C8.
The punitive phase of Vigneron’s trial will be heard in 2017. The case is In re: E.I. du Pont de Nemours and Co. C-8 Personal Injury Litigation, case number 2:13-md-02433, in the U.S. District Court for the Southern District of Ohio.
IKEA Dresser Settlement. Here’s a positive, yet disturbing settlement. Ikea agreed this week, to pay $50 million to the three families of toddlers who were killed when defective Ikea dressers toppled onto the children. This is the positive bit.
The children’s deaths prompted an unprecedented recall of 29 million dressers, at which time Ikea acknowledged the dressers were at serious risk of tipping onto and killing children. And this is the disturbing bit.
The first death from an unstable Ikea dresser occurred in 1989, with a further six deaths to follow. According to the lawsuits, the Ikea dressers were “defective and dangerous” and that the Sweden-based retailing giant continued to sell them despite the risk, while not properly warning consumers.
Reportedly, the IKEA dresser settlement came shortly after Ikea gave the parents’ attorneys internal documents it had long fought to keep confidential. Under the settlement, the contents of those documents will remain private and will be returned to Ikea, with the stipulation that the company not destroy them.
The plaintiffs include Janet McGee, whose 22-month-old son Theodore died last February when a Malm dresser fell on him, and the parents of 2-year olds Curren Collas and Camden Ellis, both of whom died in 2014.
Each of the three families who filed wrongful death lawsuits will receive an equal share of the $50 million with an undisclosed share going to the attorneys.
As well, Ikea has agreed to make $50,000 donations to three children’s hospitals in the name of the boys, one of which will go to the Children’s Hospital of Philadelphia in memory of Curren Collas.
That’s a wrap folks! Happy Holidays to you and yours. See you at the bar.
Yoohoo! Yahoo Breach…Again! Just in case you missed this—Yahoo got hit with a data breach class action lawsuit filed by a user who claims the internet company was negligent in protecting its customers data. Earlier this week, Yahoo revealed it had been the target of a data breach which affected 1 billion users. Yup—that’s ONE BILLION users.
Filed by New York resident Amy Vail, the suit alleges negligence, breach of express and implied contract, and violation of California’s unfair competition law.
In a statement issued Wednesday, December 14, 2016, Yahoo stated it believes that in 2013 hackers stole personal information related to 1 billion of its users by hacking their email accounts. This incident is separate from a similar one which Yahoo made public in September. However, the lawsuit contends that Yahoo has said some of the activity from both data breaches may be connected to a single state-sponsored actor.
According to the lawsuit, Yahoo does not know who took the information, and has been unable to identify the intrusion in which it was taken.
“As a result of defendant’s failure to maintain adequate security measures and timely security breach notifications, Yahoo users’ personal and private information has been repeatedly compromised and remains vulnerable. Further, Yahoo users have suffered an ascertainable loss in that they have had to undertake additional security measures, at their own expense, to minimize the risk of future data breaches,” the lawsuit states.
Yahoo revealed earlier this year that “state-sponsored actors” had hacked similar types of data from 500 million of its users in late 2014.
In a recent press release, Yahoo also noted that an investigation into the 2014 breach revealed the hackers’ ability, in some cases, to fake online “cookies”, enabling them to access users’ accounts without a password.
Vail is represented by Lee Cirsch, Robert Friedl, and Trisha Monesi of Capstone Law APC. The suit is Vail v. Yahoo, case number 3:16-cv-07154, in the U.S. District Court for the Northern District of California.
Teaching by Example? (Or Not…) A $100 million settlement has been reached between DeVry University and the Federal Trade Commission (FTC) over allegations of for-profit education fraud, specifically, that the for-profit university used false statistics about its graduates’ job placement rates in order to lure students and increase enrollment.
According to the terms of the DeVry Settlement, DeVry will pay $49.4 million, which will be distributed by the FTC, and forgive $30.4 million in student loans and $20.2 million owed by former students. DeVry also said it had agreed to change its practices to “maintain specific substantiation” about graduates’ outcomes.
The FTC filed the lawsuit against DeVry in January, claiming the for-profit school deliberately misled customers through advertising claims it made in print, radio, online and TV that 90 percent of its graduates landed jobs within six months of initiating a job search.
Additionally, the suit claimed DeVry misled students when it claimed that its bachelor’s degree graduates had 15 percent higher incomes a year after their studies ended than graduates of all other colleges and universities, the FTC stated.
The terms of the settlement now “prohibits DeVry from including jobs students obtained more than six months before graduating whenever DeVry advertises its graduates’ successes in finding jobs near graduation.”
Further, the settlement stipulates that DeVry must notify students who are receiving debt relief, as well as credit bureaus and collections agencies. DeVry has also agreed to release transcripts and diplomas that they had been withholding from students who had outstanding debt.
The case is Federal Trade Commission v. DeVry Education Group Inc. et al., case number 2:16-cv-00579, in the U.S. District Court for the Central District of California.
All is Not Gold…? And the final biggie to report this week: a $60 million settlement has been granted preliminary approval, potentially ending an antitrust class action lawsuit against Deutsche Bank AG which claims the bank engaged in illegal price-fixing of the gold market.
The lawsuit was brought by investors and traders in March 2014, alleging UBS Deutsche, HSBC, Societe Generale SA, The Bank of Nova Scotia and Barclays conspired to manipulate the London gold fix, which is used as a benchmark to determine the price of gold and gold derivatives.
Under the terms of the preliminary agreement, the class would include anyone who sold physical gold or derivatives based on gold or bought gold put options on COMEX or other exchanges from January 1, 2004, through June 30, 2013.
The MDL is In Re: Commodity Exchange Inc., Gold Futures and Options Trading Litigation, case number 1:14-md-02548, in the U.S. District Court for the Southern District of New York.
Cha Ching! That’s a wrap folks! See you at the Bar!!