Wonder if the Bird will Sing? Twitter unit MoPub is facing a proposed Internet privacy violations class action lawsuit alleging the mobile ad management platform installs a “supercookie” in Verizon subscribers’ Internet browsers, which tracks customers online activity.
Plaintiff Shamma Singh, a California-based Verizon subscriber, states in the MoPub complaint that the tracking IDs created by MoPub Inc. for her and other Verizon Wireless users to track their behavior for targeted advertising, are very hard to identify and that computer experts have struggled to detect them. The lawsuit claims that the marketing company offers only a bogus opt-out mechanism that raises a logical catch-22.
“Although MoPub Inc. appears to have an opt out mechanism, Verizon users have no knowledge that MoPub Inc. exists or is tracking them, rendering the opt out idea wholly ineffective,” the complaint states. “There is no reason why consumers would know to visit MoPub Inc.’s page to attempt to avoid tracking if they have no knowledge of its practices.” Of course not—who would think, right?
But wait—there’s more…the opt-out option doesn’t even require MoPub to stop the tracking. Rather, it’s simply a request that MoPub can choose to ignore, according to the complaint. Consequently, the lawsuit states, MoPub has compiled “deeply personal and private information” on users without their knowledge or consent and designed its supercookies to be practically “indestructible,” according to the plaintiff. Further, deleting cookies from a browser won’t remove MoPub’s code, the lawsuit states. Of course not. So really, should we be surprised?
Singh seeks to establish a class of the “thousands or millions” of Californians who used Verizon to access the Internet or use applications on their phones or computers, stating the statute of limitations doesn’t apply because MoPub concealed its tracking.
The lawsuit is Case No. BC601072, in the California Superior Court, County of Los Angeles.
McDonald’s Customers not Hep to That? Ok—didn’t see this one coming. Nor did Mickey D’s, I’m betting. A personal injury class action lawsuit has been filed against the operator of a McDonald’s restaurant in Waterloo, New York, by a customer who alleges he and others who ate at the restaurant were exposed to food and drinks prepared by a worker with the hepatitis A virus, which causes contagious liver infections.
Filed in New York state, against Jascor Inc, the lawsuit seeks class status for potentially affected customers, who may number more than 1,000.
The McDonald’s lawsuit stems from a Seneca County Health Department confirmed a case of hepatitis A in a food service worker at the Waterloo McDonald’s, on November 13.
Public health officials said diners had a low risk of contracting hepatitis A. However, they urged customers who had consumed food and/or beverages from the Waterloo restaurant on November 2, 3, 5, 6 and 8 to consider treatments if they were not previously vaccinated against hepatitis A.
According to the complaint, plaintiff Christopher Welch purchased and consumed products from the restaurant on at least one day when the infected worker was on duty.
The complaint alleges McDonald’s is liable because it sold food and drink that may have been contaminated with hepatitis A, exposing customers to possible illness and forcing them to receive a vaccine or take a blood test. Further the restaurant failed to exercise due care in assuring that its employees obtained hepatitis A immunization and for allowing one or more employee to work while infected with the virus, the lawsuit states.
Although plaintiffs are not seeking damages, the complaint states the losses could be for lost wages; medical and medical-related expenses; travel and travel-related expenses; emotional distress; fear of harm and humiliation; physical pain; physical injury; and other incidental and consequential damages that could arise.
The case is Welch et al v. Jascor Inc d/b/a McDonald’s Restaurant, No. 49796.
Here’s a Styln’ Settlement for the Folks who Do your Do… To the tune of $5.75 million.That’s right rolks. The settlement, if approved, will end an unpaid wages and overtime class action lawsuit pending against Regis Corp, filed by workers in the company’s hair salons who allege they were shorted on overtime and minimum wage pay.
The preliminary Regis stylist deal would end claims that Regis violated California labor law and the Fair Labor Standards Act as well as address claims that they violated the state labor laws by failing to provide rest and meal periods, failing to pay wages due upon termination, making illegal payroll deductions, and failing to reimburse business expenses, among other claims, according to a third amended complaint included in the court filings.
The latest complaint in the case would consolidate a similar suit that was ongoing in California state court into the instant action. The new case would include three potential sets of classes: stylists employed by Regis in California from May 2010 through the date when the court enters a preliminary approval order, other Regis employees in California during the same period, and members of either of the first two groups who stopped working for the company during the period, according to the proposed settlement.
Under the deal, the three named plaintiffs would share $15,000 in service awards; each putative class member who separated from the company would get $150; and Regis would pay $20,000 in penalties to various state funds. The overall putative class of approximately 5,573 would share the remaining funds, less legal and administrative costs, on a prorated basis, with two-thirds going to the stylists and one-third going to the other workers.
The case is Fong et al. v. Regis Corp. et al., case number 3:13-cv-04497, in the U.S. District Court for the Northern District of California.
Ok – that’s it for this week folks – see you at the bar! And Happy Columbus Day!
Cheery-oh-ho-ho-NOT! General Mills—accused of going a heavy on the hot air and light on substance. Cheerios is the subject of a false advertising class action filed alleging that General Mills misleads customers about the amount of protein in its popular cereal Cheerios Protein. Filed in federal court, the lawsuit asserts that a side by side comparison of Original Cheerios and Cheerios Protein shows that Cheerios Protein does not contain as much protein as the original version. Say wha…?
The Cheerios lawsuit asserts that General Mills is marketing Cheerios Protein as a “high protein, healthful alternative to Cheerios” when it does not contain much more protein than Original Cheerios. “Rather than protein, the principal ingredient that distinguishes Cheerios Protein from Cheerios is sugar,” the suit states.
According to the complaint, the Nutrition Facts Panel on the boxes cite a 4 gram difference in protein (7 for Cheerios Protein versus 3 grams for the original), a “smidgen”. However, the lawsuit attributes that to a larger serving size (55 grams as opposed to 27 respectively). The complaint goes on to state that for the same 200 calories, there is only a 0.7 gram difference between Cheerios Protein Oats and Honey (6.7 grams) and Original Cheerios (6 grams).
Further, the lawsuit alleges that Cheerios Protein contains significantly more sugar than Original Cheerios cereal. By way of example, a 1 1/4-cup serving of Cheerios Protein Oats and Honey has 17 grams of sugar, whereas Original Cheerios has 1 gram for a 1 cup serving. Similarly, a 1 1/4 cup serving of the Cinnamon Almond variety has 16 grams, according to the documents.
The Cheerios lawsuit states that the advertising for Cheerios Protein says it’s a “great start to your day” along with pictures of “appealing photographic images depicting healthy and successful kids and parents.” Further, “These claims and images are part of a sophisticated marketing campaign to encourage parents to purchase Cheerios Protein for their children; and the sweet taste of the product helps ensure that children will eat the product,” the lawsuit states.
In a report by ABC News, the agency stated it also found Cheerios Protein Oats and Honey to have more sugar than every other variety of Cheerios on the market: with 10.2 grams for a 3/4 cup serving. Apple Cinnamon Cheerios has the second most with 10 grams and third is Cheerios Protein Cinnamon Almond at 9.6 grams. Frosted Cheerios, Fruity Cheerios and Chocolate Cheerios have 9 grams each, the calculations found.
Heads Up for GNC Supplement Users…there’s more to those supplements than you thought… No stranger to lawsuits, GNC is facing a dangerous drugs class action alleging the company includes dangerous ingredients, such as picamilon, a synthetic neurotransmitter, and amphetamine-like BMPEA in its products. Filed by lead plaintiff, Chris Lynch, the lawsuit asserts that the company knew or should have known the products were actually “spiked” with BMPEA.
Picamilon is a prescription drug legal in some countries, but not the United States. It is used to treat a variety of neurological conditions. BMPEA is a synthetic chemical similar to amphetamine that is banned by the World Anti-Doping Organization, according to the complaint.
“This action arises from defendant’s failure, despite its knowledge (read consumer fraud) that the products are dangerous and not fit for dietary purposes, to disclose and/or warn plaintiff and other consumers,” Lynch states in the lawsuit. “Indeed, defendant has undertaken to conceal vital information concerning the risks of the product.”
The proposed GNC class action cites Oregon attorney general Ellen Rosenblum’s October 22 suit alleging that the company sold dietary supplements that contained picamilon and BMPEA.
“Despite this … notice to GNC that Picamilon is an unlawful ingredient and that products that contain Picamilon are adulterated, GNC continued to sell products that contain Picamilon nationally and in Pennsylvania,” the suit states. “GNC did not cease selling such products until after Oregon’s Attorney General issued a document ‘Notice of Unlawful Trace Practices and Proposed Resolution’ on September 21, 2015.”
Further, Lynch alleges that as early as 2007, GNC was aware that picamilon is a synthetic drug created by Soviet researchers, and not a lawful dietary ingredient, pointing to documents reviewed by GNC’s technical research senior project manager.
Despite widespread knowledge that the Acacia rigidula products were at high risk of having been adulterated with BMPEA, GNC continued to sell these products without testing them to see if they were spiked with BMPEA, or telling consumers about the risk, according to the complaint.
The case is Lynch v. GNC, case number 2:15-cv-01466 in the U.S. District Court for the Western District of Pennsylvania.
JCPenney’s Pricing Has Preliminary Settlement… JCPenney has reached a preliminary settlement agreement in a consumer fraud class action lawsuit brought on behalf of California customers who purchased certain JCPenney private or exclusive branded products.
The lawsuit, filed in 2012, arises from the price comparison advertising of private and exclusive branded products JCPenney used in California between November 2010 and January 2012. Plaintiff claims, among other things, that JCPenney’s practices did not comply with California law. JCPenney denies the allegations and is entering into this settlement to eliminate the uncertainties, burden and expense of further protracted litigation.
If approved, according to the terms of the settlement, JCPenney will make available $50 million to settle class members’ claims. Class members will have the option of selecting a cash payment or store credit. The amount of the payment or credit will depend on the total amount purchased by each class member during the class period.
The settlement agreement also states that JCPenney will implement and/or continue certain improvements to its price comparison advertising policies and practices, including periodic monitoring and training programs designed to ensure compliance with California’s advertising laws.
The lawsuit, Cynthia E. Spann v. J.C. Penney Corporation, Inc., is pending in the United States District Court for the Central District of California.
Ok—That’s a wrap folks… Happy Friday…See you at the Bar!
Another Week, Another Employment Lawsuit…in fact, this is just one of several employment lawsuits filed this week. But let’s look at this one alleging Jack in the Box (JB) Jacks its employees. The fast food chain is facing an employment class action lawsuit filed by a former store manager who alleges the fast food chain failed to pay him overtime wages despite his regularly working in excess of 72 hours per week.
According to lead plaintiff Joseph Rico in the Jack in the Box lawsuit, the company allegedly misclassified Rico and other store managers as exempt employees under California labor law, enabling the company to pay them a fixed amount of wages. Rico alleges that he worked at the burger chain between February 2014 and July 2015, during which time he was often asked to fill in for non-exempt hourly employees who had worked 40 hours in a given week, allowing JB to minimize overtime pay.
“Jack In The Box has a policy and practice of misclassifying store managers as salaried exempt employees,” Rico states in his complaint. “… Jack In The Box had and continues to have a corporate aversion to paying its employees overtime wages.”
The complaint asserts that Rico was told by that he would be earning $45,000 a year and working about 47.5 hours per week on average. However, Rico claims he regularly worked over 72 hours, and occasionally as much as 80 hours per week, rarely had time to take breaks and was not compensated for breaks that were missed or interrupted.
According to Rico, on Mondays he started work at 4 a.m., spending the early hours doing inventory, and then performing non-exempt tasks like filling orders, working the grill, deep fryer and drive through, stocking the restaurant and providing janitorial, custodial, security and repair services.
Rico states he did not receive a break from work until at least 2 p.m., and even then the break would only be a few minutes long, if customer flow allowed for it. On most days, Rico claims he worked until 7 p.m. or later, according to the lawsuit. He cites additional examples of excessive hours worked, throughout a work week, without breaks, performing non-exempt tasks.
Further, the Jack in the Box lawsuit claims that Rico and other store managers did not receive wage statements, as required by California Labor Code, that they were not paid the wages they were due if they were terminated or resigned, and that they had to pay out of pocket for any restaurant repairs, but were not reimbursed.
Rico is looking for compensation, damages, penalties and interest under the California Labor Code, as well as penalties for violation of the Unfair Business Act, California Business and Professions Code, and compensation and penalties under the California Private Attorneys General Act, among other things.
The case is Joseph Rico, on behalf of himself and all others similarly situated, v. Jack in the Box Inc. and DOES 1-50, inclusive, case number BC599920, in the Superior Court of the State of California County of Los Angeles.
Defective Air Bags get a Settlement of Sorts… This one, between Takata and the Department of Transportation’s National Highway Traffic Safety Administration (NHTSA). The price tag for Takata is a whopping $200 million. The offense? Defective air bags, which caused 7 deaths and nearly 100 air bag injuries in the United States and now involves the recall of 23 million inflators, and 19 million vehicles by 12 automakers. Read on.
The NHTSA issued two orders this week, both of which impose the largest civil penalty in NHTSA’s history for Takata’s violations of the Motor Vehicle Safety Act, and for the first time use NHTSA’s authority to accelerate recall repairs to millions of affected vehicles. Additionally, the actions prioritize recalls so the greatest safety risks are addressed first, and set deadlines for future recalls of other Takata inflators that use a suspect propellant unless they are proved to be safe.
Here’s the skinny—short-ish version: the Consent Order issued to Takata imposes a record civil penalty of $200 million and requires the company to phase out the manufacture and sale of inflators that use phase-stabilized ammonium nitrate propellant, which is believed to be a factor in explosive ruptures that have caused 7 deaths and nearly 100 air bag injuries in the United States.
Of that $200 million fine, $70 million is payable in cash. An additional $130 million would become due if Takata fails to meet its commitments or if additional violations of the Safety Act are discovered.
The Consent Order also lays out a schedule for recalling all Takata ammonium nitrate inflators now on the roads, unless the company can prove they are safe or can show it has determined why its inflators are prone to rupture.
And there’s a confession…as part of NHTSA’s Consent Order to Takata, the company has admitted that it was aware of a defect but failed to issue a timely recall, which is consumer fraud and a violation of the Motor Vehicle Safety Act. In connection with the Consent Order, NHTSA also issued findings that Takata provided NHTSA with selective, incomplete or inaccurate data dating back to at least 2009, and continuing through the agency’s current investigation, and that Takata also provided its customers with selective, incomplete or inaccurate data. Nice.
The order also imposes unprecedented oversight on Takata for the next five years, including an independent monitor selected by NHTSA to assess, track and report the company’s compliance with the phase-out schedule and other requirements of the Consent Order, and to oversee the Coordinated Remedy Program.
Separately, the Coordinated Remedy Order issued to Takata and the 12 vehicle manufacturers involved in the existing Takata recalls directs them to prioritize their remedy programs based on risk, and establishes a schedule by which they must have sufficient parts on hand to remedy the defect for all affected vehicles. The order also establishes a Coordinated Remedy Program under which the agency will oversee the supply of remedy parts and manage future recalls with the assistance of an independent third-party monitor.
In the Coordinated Remedy Order NHTSA is using for the first time legal authority which was established in the 2000 TREAD Act to allow the agency to accelerate safety defect repairs if manufacturers’ remedy plans are likely to put Americans at risk. NHTSA announced in June that it was considering use of that authority, and has since gathered information and comment from vehicle manufacturers, parts suppliers and the public as part of a proceeding to determine whether and how to best address recalls involving more than 23 million inflators, 19 million vehicles and 12 automakers.
Under the Coordinated Remedy Order, vehicle manufacturers must ensure they have sufficient replacements on hand to meet consumer demand for the highest-risk inflators by June 2016, and to provide final remedies for all vehicles—including those that will receive interim receive interim remedies because of supply and design issues—by the end of 2019.
And What about the Price of Optical Disc Drives, you ask? Well, a proposed $37 million settlement has been filed in an antitrust class action alleging multiple electronics makers, colluded to fix prices of optical disc drives, which read or write data on CDs, DVDs and Blu-rays and are found in computers, video game consoles and other devices.
The optical disc drive settlement, if approved, would end the claims of a class of direct purchasers claims against seven defendant corporations, which includes Sony Corp., Samsung Electronics Co. Ltd. and Koninklijke Philips Electronics NV, BenQ Corp., Pioneer Electronics Inc., Quanta Storage Inc., and TEAC Corp.
According to court documents, the direct purchasers have asked California’s Northern District to preliminarily approve each settlement, provisionally certify settlement classes, approve the form and manner of notice to the class, appoint class counsel, approve a plan of allocation, and establish a schedule for final approval and for class counsel’s motion for attorneys’ fees and costs.
The fairness of the settlement must be established in a court hearing. If approved, QSI will pay $400,000, BenQ $875,000, TEAC $1.325 million, Pioneer $4.2 million, and Sony, Toshiba and Philips will pay $6 million, $9.2 million and $15 million, respectively.
The proposed settlement class includes all individuals and entities who purchased one or more optical disk drives in the US directly from the defendants or any of their subsidiaries or affiliates between January 1, 2004 and January 1, 2010.
Court documents reveal that the court previously approved a $26 million settlement with the direct class of purchased and defendants Hitachi-LG Data Storage Inc. and related entities, a $5.75 million settlement they reached with Panasonic Corp. and a $6.15 million settlement with NEC Corp.
The case is In re: Optical Disk Drive Products Antitrust Litigation, case number 3:10-md-02143, in the U.S. District Court for the Northern District of California.
Ok—That’s a wrap folks… See you at the Bar!
Amazon not Ready for Prime Time? Amazon’s Prime Now “Instant gratification market” is great for everyone but the delivery guys, according to a lawsuit filed against the online retailer this week. Amazon got hit with a proposed employment class action lawsuit filed by drivers delivering its products, specifically, drivers delivering goods within two hours of being ordered through Amazon’s “Prime Now” app.
According to the lawsuit, the drivers have been classified by Amazon and the companies providing services to Amazon as independent contractors. Ok—who doesn’t know this one by chapter and verse….Predictably, the drivers allege that have been misclassified.
According to their lawsuit, they deliver tens of thousands of items to Amazon’s Prime Now customers based on orders placed on Amazon’s Prime Now mobile app, which is aimed at what is referred to as the “instant gratification market.” But everything has its price.
So, to cut to the chase, the Amazon Prime driver complaint, filed October 27, 2015, in Los Angeles County Superior Court names Amazon.com, Inc., Scoobeez Inc., and ABT Holdings, Inc. as defendants. The four named plaintiffs asserts that they and others similarly situated to them were hired by Scoobeez, a courier company operated by ABT Holdings, to work exclusively for Amazon.com’s Prime Now two-hour delivery service in Orange County, California.
The specific allegations are that the app suggests a $5.00 tip for drivers (which they claim they have not received in whole or in part); that the drivers receive multiple days of training in making Amazon Prime Now deliveries; that they are scheduled to work fixed shifts, arrive at a designated warehouse ahead of the shift time and check in with a dispatcher; that they are sent home if there is not enough work for them; that they cannot reject work assignments or request particular geographical areas; that they must follow specific rules or instructions and are subject to discipline or termination if they do not; that they are required to deliver packages in a set sequence determined by the defendants; that the Prime Now app generates routes and directions; that they cannot deliver packages either two minutes too early or too late; that they are required to ask customers to fill out customer surveys; that the rates are unilaterally determined by the defendants, who reserve the right to change the compensation terms at any time; and that the delivery drivers are required to use their own vehicles and pay for their own vehicle and transportation expenses.
The plaintiffs claim violation of an array of state laws governing employees, including those requiring the payment of minimum wages, overtime, reporting pay, expense reimbursement, and meal periods, all of which they claim entitlement to because they are allegedly employees and not actually independent contractors.
The case is Truong v. Amazon.com, Inc., No. BC598993 (Cal. Sup. Ct. Los Angeles County, Oct. 27, 2015).
Anthem Blue Cross caught with their pants down… has agreed to an $8.3 million settlement ending a bad faith insurance class action. The settlement could affect some 50,000 California customers.
The Anthem Blue Cross settlement will resolve two lawsuits that were filed by Anthem policy holders in 2011, alleging the state’s largest for-profit health insurer increased annual deductibles and other yearly out-of-pocket costs on individual policies in the middle of the year, which was a breach of contract and represented unfair business practices.
The lawsuit states that, in the case of plaintiff Dave Jacobson, the rate hikes amounted to a yearly out-of-pocket maximum increase from $5,000 to $5,850. His annual prescription drug deductible increased to $275 from $250.
According to the terms of the settlement, Anthem Blue Cross will mail notices to affected customers and to post information about the agreement on a public website. Only consumers affected by the midyear policy changes will receive settlement checks, but all Californians enrolled in individual Anthem health plans will be subject to the agreement that prevents such cost increases in the future.
Checks will be mailed in December to 50,000 consumers. The average amount will be $167. The four named plaintiffs in the court case will receive an additional $10,000, subject to court approval. So, watch the mail folks.
A fair shake for Pharmacists… in the guise of a $7.46 million settlement recently agreed in an unpaid overtime lawsuit pending against CVS Pharmacy. The settlement will end claims made in three separate but related class action lawsuits that CVS failed to pay overtime wages; failed to provide timely, accurate, itemized wage statements; failed to pay earned wages upon discharge; conversion; and unlawful and/or unfair business practices in violation of California labor law.
The CVS lawsuit asserts that pharmacists who work more than six days in a row are entitled to overtime pay for work beyond the sixth day, regardless of how CVS defines its work week.
The CVS settlement effects all persons who are or were employed by CVS as non-exempt pharmacists in Regions 54, 65 and/or 74 in the State of California, and who worked more than six consecutive days of work without overtime pay from October 2, 2009 through April 30, 2015 (Connell, Region 65), October 4, 2009 through April 30, 2015 (Paksy, Region 54), and October 29, 2009 through April 30, 2015 (Bystrom, Region 75).
A separate settlement was reached in a similar class action lawsuit (Rimanpreet Uppal v. CVS Pharmacy Inc.) involving California’s Region 73.
Class Members will be paid based on the number of “Compensable Workweeks” in which they worked more than six consecutive days without overtime pay.
Despite denying the allegations, CVS agreed to settle the class action lawsuits to avoid the risk and expense of proceeding to trial. KA-Ching… better to pay your staff… right? Now that’s money well spent.
Ok – That’s a wrap folks… See you at the Bar!
Don’t make any plans! We might need you to work…or not. Forever 21 Retail Inc. is the latest retailer to get hit with an employment class action lawsuit over the practice of using on-call shifts. This practice results in failure to compensate workers who report for work but ultimately aren’t put to work. Nice one.
Former Forever 21 sales clerk, Raalon Kennedy, claims in the lawsuit, that the clothing retailer doesn’t pay its employees reporting time pay, which they are entitled to if they report to work but aren’t put to work or work less than half a scheduled day’s work. In the complaint, Kennedy calls this practice the latest form of wage theft.
“On-call shifts, like regular shifts, also have a designated beginning time and quitting time. Forever 21 informs its employees to consider an on-call shift a definite thing until they are actually told they do not need to come in,” the lawsuit states. “In reality, these on-call shifts are no different than regular shifts, and Forever 21 has misclassified them in order to avoid paying reporting time in accordance with applicable law.”
According to the Forever 21 lawsuit, Kennedy worked as a sales clerk at a Southern California Forever 21 store, where he was frequently scheduled to work on-call shifts, both after his regularly scheduled shift and on days when he otherwise wasn’t required to work.
Under California labor law, nonexempt employees must be paid reporting time pay when they are required to report to work but aren’t put to work or are only paid less than half of their scheduled day’s work. Kennedy states that Forever 21 never compensated him with reporting time pay.
The complaint asserts that these on-call shifts take a toll on employees, especially those in low-wage sectors, making it difficult for employees to obtain other employment or plan activities on days they’re scheduled for on-call shifts.
The complaint alleges failure to pay reporting time pay, failure to pay all wages earned at termination, failure to provide accurate wage statements and unfair business practices and asks for the payment of unpaid wages as well as compensatory and economic damages and attorneys’ fees and costs, among other claims for relief.
The case is Kennedy v. Forever 21 Retail Inc. et al., case number BC597806, in the Superior Court of the State of California, County of Los Angeles. Go get ‘em!!
Publix Supermarkets outed for making robocalls… Yup—‘fraid so. They got hit with a Telephone Consumer protection Act (TCPA) lawsuit this week that claims the company made numerous auto-dialed phone calls to lead plaintiff Eric Snover, telling him to pick up a prescription when he had never used Publix’s pharmacy services.
In the Publix robocall lawsuit, Snover contends he received 13 calls made my robodialers, all of which had a recorded voice telling him that his prescription was ready for pick up at a Destin, Florida, Publix store. However, Snover claims that he doesn’t live in that town, that he has never used a Publix pharmacy, and he has never given the grocery chain his cellphone number.
Additionally, the lawsuit claims that the recording provides no opportunity to opt out of the robocalls or to ask Publix to stop calling them.
Wishing to end the unsolicited calls, Snover contacted Publix three times, according to the lawsuit, each time an employee assured him that the calls would stop. However, the calls continued until November 2014, the complaint states.
In-store pharmacies are present in nearly 80 percent of Publix’s 1,100 stores in the South and comprise a principal part of its business, the complaint states. “In an effort to increase their bottom line and garner market share in the pharmacy services industry, defendant engaged in a systemic marketing campaign involving artificial or prerecorded voice calls … to consumers’ cellular telephones to inform them that prescriptions were ready for pickup,” the lawsuit states.
“However, defendant didn’t obtain written express consent for those prescription service-related calls.” Instead, Publix queried its database of cellphone numbers for consumers who may have previously filled prescriptions at its pharmacies and used an autodialer to call them, the lawsuit states.
Many of these consumers don’t use Publix’s prescription services and did not have any prescriptions to pick up a Publix pharmacy, Snover contends. “As a result, many consumers were automatically opted in to Publix’s autodial program, resulting in an obligation to affirmatively opt out in order to avoid repeated, unsolicited autodialed calls.” Snover claims that Publix ignored requests by consumers to stop the allegedly illicit calls.
Snover seeks to represent a national class of consumers whom Publix used an autodialer to call their cellphones about a pharmacy service since October 2011, according to the complaint.
Each member of the proposed class would be entitled to $500 for every negligently placed call or $1,500 for each call placed in knowing violation of the TCPA, Snover said. His suit also seeks injunctive relief.
Snover is represented by Jonathan Betten Cohen of Morgan & Morgan PA. The case is Snover v. Publix Super Markets Inc., case number 8:15-cv-02434, in the U.S. District Court for the Middle District of Florida.
Duke Energy Outduked? Ok—here’s a biggy. Albeit preliminary—the settlement on the table is a suggested $80.9 million. If approved, it will end an antitrust class action lawsuit pending against Duke Energy Corp.
Short version on the lawsuit: filed on Ohio federal court, the suit claimed Duke gave corporate customers a competitive advantage via illegal rebates in exchange for their support of a rate stabilization plan the company was trying to pass through the Public Utilities Commission of Ohio.
According to information issued by Duke, the terms of the settlement provide for residential and non-residential customers, from January 2005 to December 2008, to share in $25 million, while $8 million will be used to fund energy-related programs to benefit Duke Energy Ohio customers. The remaining $23 million is pay legal fees and other expenses.
If approved, the Duke Energy settlement would end 8 years of litigation. The lawsuit was brought by Duke Energy residential customer Anthony Williams, non-residential customer BGR Inc. and others accusing the company of using various unlawful schemes to funnel tens of millions of dollars in rebates to its largest corporate customers.
The case is Anthony Williams et al. v. Duke Energy Corp. et al., case number 1:08-cv-00046, in the U.S. District Court for the Southern District of Ohio.
Ok! That’s a wrap folks…See you at the Bar!