Heads up Lexus Drivers…some shattering allegations this week, pardon the pun, in the form of a defective automotive class action lawsuit filed against Toyota, the parent company of Lexus, alleging the sunroofs in its luxury vehicles spontaneously explode and shatter.
Filed by Ginger Minoletti, in California, the lawsuit alleges Minoletti was driving her Lexus RX 350 on Highway 101 in San Francisco in February 2016 when she heard a strange, loud cracking noise. Shortly afterwards, she found that the sunroof in her car had splintered, but that the broken glass was contained by the sliding cover shade.
The Lexus sunroof lawsuit states that Minoletti paid for repairs to the sunroof herself because Toyota refused to and the vehicle was no longer covered under warranty.
According to court documents, Lexus and Toyota have been aware of this issue since 2012, but have done nothing to warn consumers. The lawsuit also states that the National Highway Traffic Safety Administration has received numerous complaints about the defect, which is potentially dangerous and expensive to repair.
Wait—there’s more—the NHTSA is allegedly probing a number of automakers, including Ford Motor Co., Volkswagen AG, Hyundai Motor Co. and Audi AG, for sunroof defects.
The suit is brought on behalf of a proposed class of Californians who own or lease a Lexus with a sunroof and alleges violations of the Song-Beverly Consumer Warranty Act and California business code. The case is Minoletti v. Toyota Motors Sales USA Inc., case number BC636269, in Superior Court of the State of California, County of Los Angeles.
Defective Hip Implant Settlement. Finally. This week saw some big and likely welcome news on the Wright defective hip implants multidistrict litigation (MDL). A $240 million settlement has been reached. The settlement effectively ends five years of litigation brought by 1,300 claimants who alleged their Wright hip implants failed anywhere from 150 days to eight years following hip replacement surgery.
Wright Medical Group announced the settlement on behalf of its wholly-owned subsidiary, Wright Medical Technology. Two years ago Wright sold its hip and knee implant division that produced the allegedly defective replacement hip devices to a Chinese company.
Under the terms of the agreement, Wright will pay $170,000 to each claimant who received the Conserve Cup device. Additionally, the company will pay $120,000 to each claimant who received either a Dynasty or Lineage replacement hip. Further, Wright will establish a fund to reimburse patients who suffered “extraordinary injury” resulting from the failure of their hip implants.
According to court documents, the defect causing the failure of the hip implants was a metal-on-metal design that resulted in metal wear and shedding of metallic debris into surrounding tissue. This led to “metallosis”, a condition in which the tissue becomes inflamed and toxic, dissolving bone that anchored the implant. Ultimately, the metallosis led to failure of the implants.
The settlement affects multidistrict litigation now pending in federal court in Atlanta and consolidated litigation in Los Angeles Superior Court in California.
Depakote Dealings…More good news on the class action settlement front—to the tune of $28.125 million. The agreement ends litigation against Omnicare Inc., alleging the country’s largest nursing home promoted Abbott’s prescription anti-epileptic drug Depakote to its patients, in exchange for kickbacks disguised as “grants” and “educational funding.”
FYI—Omnicare operates 160 nursing homes in 160 locations across 47 states, making it the largest provider of pharmaceutical services in nursing homes. That’s a lot of potential drug sales… just saying.
According to the terms of the settlement approximately $20.3 million of the settlement fund will go to the federal government, and $7.8 million to cover Medicaid program claims by states that elect to participate in the settlement. Medicaid is jointly funded by the federal and state governments.
Depakote (also known as valproate semisodium or divalproex sodium) is a popular drug used to treat epilepsy and manic episodes of bipolar disorder.
The cases are captioned United States ex rel. Spetter v. Abbott Labs., et al., Case No. 10-cv-00006 (W.D. Va.) and United States ex rel. McCoyd v. Abbott Labs., et al., Case No. 07-cv-00081 (W.D. Va.). The claims resolved by the settlement are allegations only, and there has been no determination of liability.
Well, that’s a wrap for this week. See you at the Bar!
Sierra Dim Lights. General Motors is facing a potential defective automotive class action lawsuit brought by GMC Sierra owners who allege the lack of headlight strength in their vehicles puts them at risk for accidents.
According to the GMC Sierra complaint, which GM argued to have dismissed earlier this year, the GMC Sierra owners are at a greater risk for crashes, have in some cases avoided driving at night and have paid out of their own pockets for brighter headlights.
The plaintiffs filed an amended complaint in April and since then more than 62 new complaints have been filed with the National Highway Traffic Safety Administration concerning the Sierras. The new complaint states that the volume of the complaints as well as technical bulletins issued by GM, reflects the fact that the automaker is aware of the defective head lights and does nothing.
“This is not a case about speculative future harm or a product defect that has not yet manifested,” the vehicle owners assert. “The inadequate headlights and the dangers associated with them are causing problems right now.”
The lawsuit was brought by Armando Becerra and Guillermo Ruelas brought in October 2015, alleging GM has long known that the 2014 and 2015 GMC Sierra 1500, and the 2015 GMC Sierra 2500HD and 3500HD, have headlights that are not sufficient for their purpose.
Becerra claims that despite taking his Sierra to the dealership to fix the headlights they remain problematic. He claims he spent $400 to $500 for a new headlight assembly to improve illumination. Similar claims are made by Ruelas.
According to the complaint, GM introduced a new headlight system in 2014 that uses one bulb for both high and low beam. Despite allegedly numerous complaints online, GM expanded the new headlight system to all its Sierra models for 2015, the lawsuit notes.
The case is Becerra et al. v. General Motors LLC et al., case number 3:15-cv-02365, in the U.S. District Court for the Southern District of California.
Check Your Pay Check! It’s all about the workers this week, particularly in California. A $3 million settlement was agreed between CVS Pharmacy Inc. and store employees this week. The employees claimed they were provided inaccurate itemized wage statements in violation of California labor law.
Brought by Willie Brown, in September 2015, the complaint alleged the health care retailer failed to list the correct amount of total hours worked by its employees in their wage statements by incorrectly including shift differential pay hours. The suit alleged CVS violated California Labor Code.
The CVS settlement, which is awaiting court approval, will cover some 7,784 potential class members who, as store employees, received a shift differential pay on a wage statement between Sept. 29, 2014, and Sept. 1, 2016.
CVS, while denying any wrongdoing, has agreed to change its policy around itemized wage statements to reflect only the regular number of total hours worked.
The case is Willie Brown v. CVS et al., case number 2:15-cv-07631 in the U.S. District Court of the Central District of California.
Ulta to Pay Up for Bag Checks. Ulta Salon Cosmetics & Fragrance, Inc., also got hit with a preliminary unpaid wages and overtime settlement this week – to the tune of $2.7 million settlement.
The complaint was brought by story employees in California who claimed the company failed to pay them for the time it took to do required bag checks at the end of employee shifts.
The complaint was filed by former Ulta employee Sarah Moore in March 2012 on behalf of a proposed class of non-exempt Ulta employees. It alleged they were subject to required bag checks anytime they had to leave the store for a rest break, meal break or at the end of a shift. The proposed settlement includes an estimated 8,250 store employees who were considered non-exempt workers at the salon and beauty products, which operates about 69 stores in California. They would have worked at the chain from March 2, 2008, to the date the court grants preliminary approval or January 27, 2017, whichever date comes sooner.
If approved, the Ulta settlement would resolve claims brought under the California Labor Code that Ulta failed to pay overtime, compensate for all hours worked, pay wages due upon discharge or provide required meal or rest breaks to workers due to the mandatory exit inspections, also referred to as bag checks and donning and doffing.
According to court papers, some Ulta stores made employees clock out before getting their personal bags inspected. Other workers claimed the time it took to wait for a general manager to walk to the front of the store to perform the check would eat into their meal break time, which in some cases was as little as 30 minutes.
This settlement follows a $3.65 million preliminary class action settlement reached earlier this year, between Ulta and about 230 store managers in California, who alleged they were misclassified as being ineligible for overtime.
The case is Sarah Moore v. Ulta Salon Cosmetics & Fragrance Inc., case number 2:12-cv-03224, in the U.S. District Court for the Central District of California.
Well, that’s a wrap for this week. See you at the Bar!
Getting Burned on Fire Damage Claims? Los Angeles resident, Ismael Frias, believes so. He filed a bad faith insurance class action lawsuit against a Farmers Insurance Co., unit alleging it illegally limited coverage of wildfire smoke damage by not providing adequate notice that it had changed its policies and stating that the damage was “not actual fire damage.”
Frias, who lives in the suburb of Sylmar, states in his Farmers lawsuit complaint that Mid-Century Insurance Co., applied a “Wildfire Smoke Sublimit” of $5,000 to his claim under his homeowner’s insurance policy, without clearly notifying him. Mid-Century allegedly added the sublimit to the policy when Frias renewed in March, but failed to clearly notify him of the change. Additionally, the suit states that the sublimit is in violation of California insurance law which standardizes fire damage policies.
“The purported $5,000.00 Wildfire Smoke Sublimit violates Insurance Code section 2071, is not reflected on the declarations Page, is not plain, clear and conspicuous, and is unenforceable,” the lawsuit states. According to the complaint, Frias claimed for damages he experienced as a result of a wildfire on July 23, 2016. On that date, the massive Sand Canyon Fire was raging through the mountains north of Sylmar. Ultimately, the fire scorched almost 65 square miles before fire crews were able to contain it in August, according to the National Wildfire Coordinating Group.
Frias received a letter from Mid-Century in September, stating the damage to his home wasn’t “actual fire damage” and thus was subject to the $5,000 sublimit, according to the lawsuit.
Frias is claiming breach of contract, breach of the implied covenant of good faith and fair dealing, and violation of California’s Unfair Competition Act.
The lawsuit seeks to establish a class of California homeowners who had policies containing the wildfire smoke sublimit and who had submitted claims for wildfire odor, soot, smoke, char or ash damage. He also seeks compensatory and punitive damages, along with attorney’s fees, according to the complaint.
“As a result of defendants’ conduct, plaintiff and members of the class and subclass have been damaged, including but not limited to, paying insurance premiums for coverage rendered illusory by the unlawful Wildfire Smoke Sublimit,” the complaint states.
It’s VW Pay Up Time. It’s been a week of whoppers. Starting with a rather speedy settlement on the consumer end of the Volkswagen emissions scandal. Short version, a $14.75 billion settlement between consumers, the federal government and Volkswagen has been granted final approval. The deal includes an aggressive timeline for VW to begin buying back cars that have the infamous emissions cheating software, known as “defeat devices”.
Under the terms of the deal, VW will set aside $10 million to buy back its vehicles with the defeat devices from consumers.
Additionally, VW must spend $2.7 billion to mitigate the effects of the emissions from cars equipped the so-called defeat devices, and $2 billion over the next 10 years in projects that support the increased use of zero emission vehicles.
Starting in mid-November, Some 475,000 owners of affected VW and Audi 2.0L diesel vehicles will be able to seek buybacks of their cars or have them fixed. Additionally, most plaintiffs who bought their cars before last September, will receive payments of $5,100 to $10,000. About 336,000 car owners have registered for benefits under the settlement and only 3,300 have opted out, according to court papers signed by the judge.
Of note, 3.0 liter six-cylinder diesel vehicles equipped with the defeat devices are not included in this settlement. VW said it is still working toward a resolution with owners of those vehicles.
The multidistrict litigation is In re: Volkswagen “Clean Diesel” Marketing, Sales Practices and Products Liability Litigation, case number 3:15-md-02672, in the U.S. District Court for the Northern District of California.
Big Talc Powder Settlement. A $70 million award has been granted court approval for a woman in California who sued Johnson & Johnson (J&J) alleging J&J Talc Powder caused her cancer. The suit alleged “negligent conduct” in making and marketing its baby powder.
The case was brought by Deborah Giannecchini of Modesto, California, who was diagnosed with ovarian cancer in 2012. She is one of nearly 2,000 women who have filed similar lawsuits, and thousands more are under review by lawyers.
Giannecchini’s win follows earlier awards against J&J for $72 million and $55 million. The $72 million award was granted in February to relatives of a woman who died of ovarian cancer, and the $55 million award to an ovarian cancer survivor.
Talc is a mineral often used to absorb moisture in cosmetic products. Since the 1970s, studies have suggested that talc could be linked to ovarian cancer, according to the lawsuit. Lawyers argued that Johnson & Johnson knew of those studies but put profits ahead of human life by continuing to market their talc products for feminine hygiene use.
Well, that’s a wrap for this week. See you at the Bar!
Galaxy on Fire. Well folks, you knew it was coming…take Note (bad pun)… Samsung, not surprisingly, got hit with a defective products class action lawsuit this week, alleging its Galaxy Note 7 smartphone is prone to catching on fire and exploding. No kidding…
Specifically, the Samsung Galaxy lawsuit alleges that as a result of the defect, Samsung customers had to wait days or weeks for a replacement phone. In the meantime, they’re charged monthly fees by carriers for phones they can’t use.
The three plaintiffs from New Jersey who filed the suit allege users should be compensated for the money they paid for devices and plan charges to cellular operators while the South Korean phone maker took its time replacing and finally discontinuing the Note7’s.
The complaint alleges that many Note7 users were unable to use their devices due to the possibility they could overheat and burst into flames. When consumers who tried to exchange their phones during the initial recall period, they were often unable to because of limited stock.
Consequently, some customers were told that they would have to wait weeks until a replacement phone was available. “It was not until September 21 that Samsung announced that it would begin the Note7 exchanges nationwide. And even on that date, only an estimated 500,000 replacement devices had arrived in the United States,” the complaint states.
Further, the complaint alleges that users incurred monthly device and plan fees during that same period from their phone carriers.
The case is re: Waudby vs Samsung Electronics America, U.S. district court, district of New Jersey, Newark, No . 16-cv-07334-CCC-JBC.
Bed, Bath & Beyond has gone Beyond, according to the details of an unpaid overtime class action lawsuit filed by former department and assistant managers. They claim the retailer is in violation of the Fair Labor Standards Act (FLSA).
The allegations in the Bed, Bath & Beyond overtime lawsuit are that BB&B improperly denied the plaintiffs overtime by not meeting the FLSA requirements for a “fluctuating work week” model, which are that employees’ hours to change from week to week, they have a fixed salary that meets minimum wage requirements, and a 50 percent overtime premium for hours worked in excess of 50 hours. According to the lawsuit, the Bed Bath & Beyond department managers had relatively stable schedules and did not meet the fluctuating work week model.
“Upon information and belief, plaintiffs’ weekly work hours as [department managers] did not meaningfully fluctuate, their scheduled work hours and the actually hours they worked, including the numbers of overtime hours, were largely consistent from week to week,” according to the lawsuit. “Because the [department managers’] weekly work hours were substantially the same from week to week, defendant [unlawfully] applied the FWW model to avoid paying the [department managers] their overtime compensation under the regular 1.5 overtime premium.”
The plaintiffs also assert that assistant managers were unlawfully classified as exempt employees who did not receive any overtime pay, that the company violated labor laws by failing to provide a wage notice at the time of hire outlining terms and conditions, and that employees didn’t properly receive pay stub information.
“Consistent with defendant’s policy and pattern or practice, plaintiffs regularly worked in excess of 40 hours per workweek without being paid at premium overtime rate 1.5 times of their respective regular rate of compensation for the hours they worked in excess of 40 per workweek,” the complaint states.
The plaintiffs are claiming violations of the FLSA and state labor laws, and seek unpaid overtime wages, liquidated damages, prejudgment and post-judgment interest and attorneys’ fees. The complaint seeks to create a collective action for FLSA overtime compensation violations, consisting of those who are or were department managers or assistant managers from October 2013 through the present. Additionally, the lawsuit seeks to create a class of all non-exempt Bed Bath & Beyond employees within the past six years for failure to pay overtime and failure to provide proper wage notice at the time of hiring.
The case is Thomas et al. v. Bed Bath and Beyond Inc., case number 1:16-cv-08160, in the U.S. District Court for the Southern District of New York.
Poached Dreams? If this doesn’t prove it pays to stand up for yourself, what does? A $50 million settlement has been agreed in an antitrust anti-employee poaching class action lawsuit pending against Dreamworks Animation. The lawsuit, filed in 2014, alleged that the animation company perpetuated a “no poach” gentleman’s agreement with other studios over the hiring of animators. Gentlemen’s agreement?
According to a statement by a group of animators and visual effects employees who worked for the studios, “The Proposed Settlement Agreement was the product of a thorough assessment of the strengths and weaknesses of plaintiffs’ case.” And, “It reflects nearly two years of discovery, uncovering the intricacies of a multi-faceted conspiracy.”
The group has asked the court to grant preliminary approval of the Dreamworks settlement, calling it fair and reasonable. They stated that the money represented about 40 percent of the damages sustained by class members, who were previous employees of Dreamworks, as a result of the scheme.
The lawsuit targeted some major studios including The Walt Disney Co., Pixar Inc., DreamWorks Animation SKG Inc., Lucasfilm Ltd. and ImageMovers Digital LLC.
The allegations of colluding to stop poaching and driving up pay rates, resulted from a U.S. Department of Justice probe into the hiring practices of Silicon Valley businesses. Earlier this year, the animators, while pushing for class certification in their case, told the court that the studios’ collusion dates back several years and suppressed their pay by as much as 30 percent in some years.
The case is In re: Animation Workers Antitrust Litigation, case number 5:14-cv-04062, in the U.S. District Court for the Northern District of California.
Well, that’s a wrap for this week. See you at the Bar!
Stewing Over Pay at Stewart’s…It seems we just can’t get enough of the old employment class action lawsuit. This one, filed against Stewart’s Shops has been certified in New York. The complaint states that the Malta-based convenience store chain failed to properly compensate its employees for all the hours worked. There are so many instances of labor law violations, I wonder, does anyone actually get paid properly anymore?
The Stewart’s Shops lawsuit was filed by a former employee against the chain in January 2014, alleging she and other workers were not paid for all the hours they worked, and for mandatory call-in pay for store meetings and that they were deprived of an uninterrupted meal break.
The plaintiffs are seeking $20 million in damages on behalf of all non-exempt hourly employees who worked for Stewarts during the past three years.
Reportedly, a collective action has been certified under federal law for full-time employees who worked more than forty hours in any given week and were deprived of overtime compensation.
FYI—the Malta-based convenience store chain has 335 stores in upstate New York and Vermont, and $1.5 billion in sales. No comment.
Power Home Power Calling You? You gotta love it when you actually stick it to a spammer. This week, court approval has been given to a $5.2 million settlement of a Telephone Consumer protection Act (TCPA) class action lawsuit pending against Power Home Remodeling Group LLC. The lawsuit claimed the company had violated the TCPA because it made automated marketing calls to over a million consumers without their consent.
The judge certified a class of more than 1.1 million people, and granted final approval of the Power Home Remodeling settlement, ending the lawsuit brought by plaintiff Teofilo Vasco. The autodialed telemarketing calls or prerecorded, computer-generated voice messages were made between October 2013 and April 2016, approximately.
The judge also awarded a $3,000 award to the named plaintiff, Vasco, who filed the lawsuit in August 2015. He alleged he gave his cellphone number to a Home Depot salesperson and later received 21 unsolicited phone calls from Power seeking his business by way of an autodialer or prerecorded voice message.
The case is Teofilo Vasco v. Power Home Remodeling Group LLC, case number 2:15-cv-04623, in the U.S. District Court for the Eastern District of Pennsylvania.
Nissan got hit this week, with a preliminary settlement deal reached in three defective automotive class action lawsuits. The first Nissan lawsuit, brought in 2014, alleged that the transmissions in certain model-year certain Pathfinder and Infiniti QX60 vehicles were defective. You may remember this one.
Under the terms of the proposed Nissan agreement, Nissan North America Inc. has agreed to give all owners and lessees of nearly 200,000 Nissan Pathfinders and Infiniti JX35s/QX60s vehicles from model years 2013 and 2014 a free, two-year 24,000-mile extended warranty for their transmissions. Also, owners will be instructed on how to update their vehicles’ software to include detection of the transmission vibration problem referred to as “judder.” Oh great, there’s computer technology involved.
According to the settlement, owners of affected vehicles that underwent two or more repairs to their transmissions may be eligible for discounts on future purchases of a Nissan or Infiniti vehicle. The deal requires court approval.
The case is Kenai Batista v. Nissan North America Inc., case number 1:14-cv-24728, in the U.S. District Court for the Southern District of Florida.
Well, that’s a wrap for this week. See you at the Bar!