Drive Around to the First Window and… It’s been a while since we’ve reported a data breach class action. This week, one such lawsuit was filed against Ohio-based Wendy’s by First Choice Federal Credit Union, alleging a five-month long data breach could have been prevented if the company had acted faster.
From October 22, 2015 through to March 10, 2016, hackers accessed Wendy’s computer systems and stole what could be millions of consumer credit cards that had been used at certain Wendy’s locations. So someone besides was making change on your burger and fries. And let’s not get started on the issue of inconvenience!
“As a result of Wendy’s data breach, plaintiff and class members have been forced to cancel and reissue payment cards, change or close accounts, notify customers that their cards were compromised, investigate claims of fraudulent activity, refund fraudulent charges, increase fraudulent monitoring on potentially impacted accounts, and take other steps to protect themselves and their customers,” the Wendy’s data breach lawsuit claims.
Specifically, the plaintiffs claim that Wendy’s holds on to credit card information longer than necessary and failed to meet the October 2015 deadline for EMV cards and terminals.
“Despite the growing threat of computer system intrusion, Wendy’s systematically failed to comply with industry standards and protect payment card and customer data,” the lawsuit states, noting that as a consequence, financial institutions have borne the brunt of the data breach.
The complaint asserts that Wendy’s used outdated and easily hackable computer and credit card systems, and that the company failed to meet federal regulations and guidelines around computer and data security, stating that Wendy’s “refused to take steps to adequately protect its computer systems from intrusion.”
A Wendy’s spokesman has said that malware was discovered by third-party investigators, but the company has yet to confirm how many of its 6,000 stores had been hacked.
Honeywell Warranty Class Action Warranted… This is why you want your day in court: A proposed defective products class action brought by consumers against Honeywell International was given the green light this week, by a judge who just wasn’t buying the corporate line. US District Judge Berle M. Schiller of the Eastern District of Pennsylvania told the defendant, Honeywell International, that essentially they couldn’t make a case to have the suit tossed.
The Honeywell class action asserts that Honeywell TrueSTEAM humidifiers were defectively designed and inadequately covered by warranty. Feel the swamp waters rising? Yes, well, read on.
According to the complaint, the humidifiers are unreliable, difficult to maintain, and prone to malfunction and deterioration.
Judge Schiller wrote in his memorandum, “According to plaintiffs, Honeywell is aware of the problems with its humidifiers, but uses an ‘overly burdensome warranty claims process that is designed to, and does, deter customers from making claims under their warranties.” And, “Honeywell’s remedy to repair fails of its essential purpose because Honeywell simply replaces defective humidifiers with ‘the same defectively designed humidifiers that are prone to the problems complained of by plaintiffs and members of the classes.'” Thank you Judge Schiller.
The plaintiffs also allege they were told their defective units would not be serviced until technicians inspected them. They are seeking recovery for the related removal and repair costs, since they claim Honeywell promised that each unit would be free from defect, and if it wasn’t, the company would repair the unit. Oh yes, the fine print—but just wait…
“According to the amended complaint, however, that promise was false. Instead, plaintiffs were required to satisfy Honeywell, through an authorized technician and/or a contractor’s inspection, that the humidifier actually was defective,” Schiller wrote. “Thus, Honeywell placed an additional burden upon plaintiffs seeking to repair or replace their defective unit.”
The judge wrote that the plaintiffs have adequately alleged that the humidifiers were defective five years after the purchase date as the warranty promised, and that Honeywell failed to replace the units as it expressly warranted.
The plaintiffs asserted breach of express warranty, breach of implied warranty, unjust enrichment, and other claims.
I’ll bet those plaintiffs are happy campers this weekend.
A Bittersweet Victory… This week, a $55 million settlement was leveled against Johnson & Johnson (J&J) by a jury hearing the case of a woman who alleges her use of the company’s talc-powder products for feminine hygiene caused her to develop ovarian cancer.
This is the second J&J talc powder verdict in a row against J&J in talc-cancer lawsuits J&J plans to appeal. The company is facing some 1200 such lawsuit all claiming the company failed to adequately warning consumers about its talc-based products’ cancer risks.
The trial took three weeks, and returned the verdict in favor of Gloria Ristesund in a day. She was awarded $5 million in compensatory damages and $50 million in punitive damages.
According to her suit, Ristesund used J&J’s talc-based powder products, which include the well-known Baby Powder and Shower to Shower Powder, on her genitals for decades. According to her lawyers, she was diagnosed with ovarian cancer and had to undergo a hysterectomy and related surgeries. Her cancer is now in remission.
The verdict in the first J&J talc-cancer lawsuit awarded $72 million to the family of a woman who died from ovarian cancer. She had also used the talc powder for feminine hygiene for years.
Ok, that’s a wrap folks…Have a good one. See you at the Bar!
Refrigerators that double as Barbeques? Not a hallmark moment in industrial design, apparently. Nor, it seems, a feature appreciated by consumers. This week, Dometic, maker of these particular refrigerators, got hit with a seemingly long overdue defective products class action lawsuit alleging the fridges can spontaneously ignite on boats and RVs. Gotta love that action. It could definitely put a damper on cocktail hour.
According to the Dometic refrigerator complaint, the refrigerators have caused or contributed to at least 3,000 fires since 1997, resulting in more than $100 million in property damage and personal injury claims. Further, the lawsuit states that Dometic tracked the claims but “failed and refused to eliminate the defects and/or provide consumers with adequate warnings.”
The class action, which includes five individual RV plaintiffs, states the plaintiffs believe that 1.5 million RVs and boats in the country are equipped with “defective gas absorption refrigerators.”
Here’s the skinny, according to the plaintiffs:
“In particular, defendants have concealed the true nature of the defects in the defective gas absorption refrigerators; have failed to properly repair the defective gas absorption refrigerators; and have instead initiated recall and retrofit campaigns which fail to address the underlying defects in the defective gas absorption refrigerators, fail to alleviate the risk of fire, and when engaged, require the defective gas absorption refrigerators to be replaced.”
According to the complaint, not only have the plaintiffs lost money on the cost of the refrigerators, they have also had to pay hundreds of dollars to repair or replace their gas absorption refrigerators after the defendants’ failed attempts to fix the defects.
“Plaintiffs have also lost money as a result of having to pay hundreds of dollars associated with loss of use of their RVs or boats,” the complaint states. “Finally, plaintiffs have lost money because they paid for a safe and useful gas absorption refrigerator for their RV or boat and the value of their RV or boat has decreased because of the installed defective gas absorption refrigerator.”
“Defendants have used and manipulated the recall process to conceal the true dangers and safety risks inherent in their defective gas absorption refrigerators from both federal regulators and consumers. As a result, United States highways and campgrounds are flush with RVs containing defective gas absorption refrigerators that can, and with alarming regularity do, spontaneously burst into flames,” the suit states, noting two recalls issued by Dometic.
The plaintiffs are seeking repair or replacement of their defective refrigerators and compensation by Dometic to consumers for the diminution of value of their RVs and boats.
From the sounds of it, they’re quite fortunate no one was killed.
Vroom, Vroom, er…or Not. Mazda did not escape the week unscathed, as it found itself on the receiving end of a defective automotive class action lawsuit alleging certain of its vehicles have defective clutches. Ok—I’m pretty sure those are meant to be in good working order at all times. According to the suit, the defect represents a significant safety risk to both drivers and passengers, the plaintiffs assert. Yup.
Filed by Megan Humphrey, Iris Gonzalez, Charles Bunch, Anne Stom, David Woodward, Greg Thomason, Lisa Massey and Dan Carney, individually and for all others similarly situated, against Mazda Motor Corporation and Mazda Motor of America Inc., the Mazda complaint alleges model year 2010-15 Mazda 3 vehicles with 5- or 6-speed manual transmissions contain defective clutch release levers, bearings and pins. Where do you start?
The plaintiffs state in their complaint that the defect causes premature wear to the vehicle’s manual transmission and related components, ultimately resulting in premature clutch system or transmission failure.
The lawsuit cites breach of express and implied warranties and violations of consumer protection statutes in California, Texas, Florida, Maryland, Washington, Pennsylvania and Connecticut.
FYI – The case is US District Court for the Northern District of California Case number 4:16-CV-02087-KAW
Not a Kodak Moment? One for the little guy this week—who was accused Eastman Kodak of pawning off dodgy stock to their employees. The company reached a $9.7 million settlement in a securities lawsuit brought by former and current employees, who allege Kodak should be held liable for continuing to offer Kodak stock as an investment option even though the company was in extreme financial distress, and therefore making its stock a risky investment. Very nice.
The lawsuit stems from Kodak’s 2012 bankruptcy filing, involving participants in the company’s savings and investment plan for employees and the Kodak Employee Stock Ownership plan. The class action includes over 21,000 people.
The Kodak employee stock agreement is still subject to a fairness hearing scheduled to be held this August. The settlement includes costs and attorneys’ fees.
People affected by the settlement do not need to do anything in order to get whatever money is owed them.
Ok –That’s a wrap folks…Have a good one. See you at the Bar!
Xarelto Lawsuits Head North. Bayer Inc, is facing a Xarelto class action lawsuit filed in Canada—in Calgary to be precise—alleging its blood thinner is linked to dozens of deaths. The lead plaintiff in this class action alleges that the anticoagulant drug caused her to suffer from an uncontrollable bleeding event which nearly led her to cardiac arrest. Sadly, this lawsuit has a familiar ring to it.
According to reports published in the Calgary Sun, as of March 2015, Health Canada had received an estimated 1,100 adverse event reports from patients taking Xarelto. The article indicates that, according to a lawyer from Toronto, if the class action is successful, “…it would be in the millions of dollars.” The Calgary Sun report also discussed the likely formation of another class action suit in Ontario at this time.
This Canadian Xarelto class action lawsuit closely follows the formation of Multidistrict Litigation number 2592 in the United States by the U.S. Judicial Panel on Multidistrict Litigation. This MDL consolidated and transferred over 2,800 lawsuits filed in reference to Xarelto by plaintiffs who allege much the same. These lawsuits are additionally joined by another group of 620 Xarelto lawsuits which have been formed into a mass tort program by the Court of Common Pleas in Philadelphia, Pennsylvania. Lawsuits in these groupings have been filed against defendant Bayer AG as well as Janssen Pharmaceuticals, a subdivision of Johnson & Johnson corporation.
Not in our Nature? Where would we be without our weekly dose of consumer fraud litigation? This week, it’s Sunology Natural Sun Protection who is facing a consumer fraud class action lawsuit. The allegations are that the advertising of its sunscreen products is misleading to the consumer.
Filed by Vivian Douek, individually and for all others similarly situated, the Sunology Natural Sun complaint alleges the defendant, McNabb LLC, doing business as Sunology Natural Sun Protection, markets and advertises certain of its SPF 50 sunscreens as containing “active ingredients derived from nature”, and therefore these products are “natural.”
However, the plaintiffs contend that these products in fact contain various artificial and synthetic ingredients. Consequently, consumers paid a premium for products the defendant misrepresented, according to the complaint.
Therefore, the lawsuit states that the defendant is in violation of New York General Business Law and consumer protection statutes in every state, violation of the Magnuson-Moss Warranty Act, breach of express and implied warranties, unjust enrichment and negligent misrepresentation.
NFL Concussion Update… Heads up—and pardon the pun—this really isn’t a laughing matter. A $1 billion settlement has been upheld in the infamous concussion class action lawsuit brought by National Football League (NFL) players against the NFL.
Approved by the 3rd U.S. Circuit Court of Appeals, the revised settlement deal will resolve thousands of lawsuits brought against the league, as well as covering over 20,000 retired NFL players for the next 65 years. According to estimates by the NFL, 6,000 former players, or nearly three in 10, could develop Alzheimer’s disease or moderate dementia.
The original settlement was appealed as critics had argued that any settlement must include future payments for chronic traumatic encephalopathy (CTE), the brain decay found in dozens of former players after their deaths.
While the appellate judges acknowledge those points in the 69-page ruling, they found the settlement was for the greater good of all players.
According to the terms of the agreement, funds of up to $4 million could be paid for prior deaths involving CTE. However, a cut-off date of April 2015 has been set to avoid the encouraging suicides.
Ok –on that note – we’re done here. See you at the Bar!
Fitness Flub…24 hour Fitness has its feet to the fire again, this time—well, as always—it’s a consumer fraud class action lawsuit alleging the national fitness chain raised its customers’ fees for use on lifetime memberships, in violation of various state laws in California, Texas, and Oregon.
Filed by Kevin O’Shea of California, Mark Vitcov of Oregon, and Rod Morris of Texas, individually and for all others similarly situated, the 24 Hour Fitness lawsuit claims sales representatives employ aggressive sales pitches to induce consumers into buying lifetime memberships to its gyms. Under the terms of these lifetime memberships, customers must prepay three years of membership fees, following which they pay only nominal renewal fees.
However, according to the lawsuit, while the annual renewal fees were supposed to remain constant for the rest of the member’s life, when the defendant came under new ownership it stopped honoring its lifetime fee guarantees and announced that it would raise lifetime members’ annual renewal fees beginning in 2016. Can you say “Scamorama?”
The lawsuit alleges fraud, violation of California’s Consumer Legal Remedies Act, its Unfair Competition Law, and its Health Studio Services Contract Law, violation of Oregon’s Unlawful Trade Practices Act, and violation of Texas’s Health Spa Act and its Deceptive Trade Practices Act. The case is US District Court for the Northern District of California San Francisco Division Case number 3:16-CV-01668-EDL.
Placebo FX? A Canadian consumer fraud class action lawsuit to report this week. It was filed against the makers of the popular over-the-counter cold treatment, Cold-FX, alleging the product is no more effective at preventing colds and flu than a placebo. Now there’s a thing.
The Cold FX lawsuit was originally filed by Vancouver Island resident Don Harrison in 2012, against Cold-FX, which is owned by Valeant Pharmaceuticals and its subsidiary, Afexa Life Sciences. The lawsuit cites advertising in which Cold-FX claims to provide “immediate relief of cold and flu” if taken over a three-day period at the first sign of symptoms.
Here’s the rub, according to the complaint, the defendants ignored their own research and misled consumers about the short-term effectiveness of the popular cold and flu remedy. Hey—if it’s true—they wouldn’t be the first.
According to Harrison’s notice of claim, Valeant and Afexa continued to “knowingly or recklessly” promote Cold-FX despite evidence the natural-health product only had a possible positive impact after being taken daily for prolonged periods of two-to-six months. That’s a long lead time for any cold remedy—you would be on this stuff for life, effectively. Or not. Wonder if it’s publicly traded…
The lawsuit claims that people paid money for a worthless product. According to the attorney representing Harrison, Valeant and Afexa failed to release data from an internal study conducted in the early 2000s that contradicted the health claims around Cold-FX. The defendants knew at least as early as 2004, when they had a study done themselves, that Cold-FX might be even less effective than a placebo, the lawsuit alleges.
An identical lawsuit has been filed in Saskatchewan.
Goldman Sachs hit with $41 Million Bill…stemming from allegations brought by Illinois Attorney General Lisa Madigan in yet another residential mortgage-backed (RMBS) securities lawsuit. Ka-Ching!
The charges specifically allege misconduct during the bank’s marketing and sale of RMBS prior to the 2008 economic collapse—remember that? Goldman Sachs allegedly failed to disclose the true risk associated with many of its RMBS investments.
According to the terms of the settlement, GS will pay $25 million to the Illinois’ pension system and $16 million will be given in relief to Illinois consumers.
This settlement is part of a larger, $5 billion national settlement resulting from legal action taken by the US Department of Justice and state attorneys general and other entities.
Ok—That’s a wrap folks…Have a good one. See you at the Bar!
New Month, New Defective Auto Lawsuit… This time, it’s a Hyundai and Kia defective automobile class action. The car companies are facing the wrath of consumers, who allege the paint on 2006-2016 Hyundai Santa Fe, Sonata, and Elantra vehicles contain an identical and inherent defect which causes the paint to bubble, peel and flake off the vehicle, which can lead to rusting and corrosion.
Filed by Michelle Resnick, Shelby Cramer, Lauren Freed, Paul Sandlin, Patricia Reynolds, Christopher Baker, and Tara Mulrey, individually and for all others similarly situated, the lawsuit claims vehicle owners must either live with these problems or spend significant amounts of money to repair and repaint the vehicles.
The plaintiffs allege breach of express and implied warranties, negligent misrepresentation, fraudulent concealment, unjust enrichment, violation of California’s Consumer Legal Remedies Act, violation of California’s Business and Professions Code, and violations of unfair and deceptive trade practices acts in several states. Go get’em.
The case is US District Court for the Central District of California Case number 8:16-CV-00593-BRO-PJW.
Some Hurtin’ for Hertz…Heads up Hertz customers…in yet another consumer fraud class action filing this week, America’s largest car rental company stands accused of not playing fair with its terms and conditions as stated on its website. The Hertz lawsuit, in fact, alleges violations of the New Jersey’s Truth-in-Consumer Contract, Warranty and Notice Act (TCCWNA). Read on.
The skinny is that named plaintiff, David Hecht, claims the terms and conditions states on the Hertz website violate TCCWNA because of a failure to state how they affect New Jersey residents.
Here’s what that looks like: Hecht’s allegations target Hertz’s website for enrolling in the car rental company’s Gold Plus Rewards Program. Hecht’s lawsuit specifically references a portion of the TCCWNA that states “No consumer contract, notice or sign shall state that any of its provisions is or may be void, unenforceable or inapplicable without specifying which provisions are or are not void, unenforceable or inapplicable within the State of New Jersey.”
Hecht seeks to represent two classes in his lawsuit. The first would be those New Jersey residents enrolled in Hertz Gold Plus Rewards when the case was filed. This class also would include New Jersey residents enrolled in the program six years prior to whenever the website’s Terms and Conditions stated “in words or substance, that Gold Plus Rewards offers are void where prohibited, without specifying whether these provisions are or are not void, unenforceable or inapplicable within the State of New Jersey.”
J&J $502M Hip Award. This should cause some serious thinking at J&J. The company was ordered to pay a whopping $502 million settlement this week, which was awarded by a jury in Dallas hearing the consolidated lawsuits of five plaintiffs who all allege that DePuy Orthopedics and Johnson & Johnson (J&J) Ultamet hip implant is defective and caused them pain, injury and suffering.
The plaintiffs who accused the company of hiding flaws in its Pinnacle artificial hips that caused the devices to prematurely fail and left them facing surgeries and pain.
FYI—the DePuy Ultamet hip replacement devices are metal-on-metal. The problem with metal-on-metal devices is that metal debris can reportedly come loose, resulting in metals being absorbed by the patient’s surrounding tissue and causing excess levels of chromium and cobalt in the patient’s blood. Furthermore, patients may experience pain, inflammation and soft tissue damage in the area around the hip, making mobility difficult if not impossible.
The jury awarded $142 million in actual damages and $360 million in punitive damages. You want to say congratulations, but “really?”
Ok, that’s a wrap folks…see you at the bar!