June 29, 2023 – Antitrust
Merck Faces Allegations of Rotavirus Vaccine Anticompetitive Scheme
Merck & Co. has been hit with a proposed class action over its rotavirus vaccine, the lawsuit claiming that the company has engaged in an illegal scheme to maintain its monopoly over the pediatric vaccine market in the United States, causing purchasers of the rotavirus vaccines to pay higher prices.
The complaint was filed by the Mayor and City Council of Baltimore in Philadelphia federal court. According to the complaint, Merck, which makes the rotavirus vaccine RotaTeq, has engaged in an anticompetitive vaccine “bundling scheme” that leverages defendant’s monopoly power in multiple vaccines administered to children, resulting in “supracompetative” prices for the RotaTeq vaccine.
Plaintiff claims in its suit that Merck has used this tactic on a variety of vaccines for children, allowing the company to charge whatever it wants, not only for the rotavirus vaccine but for other vaccines as well, including the measles, mumps, and rubella vaccines.
June 28, 2023 – Cybersecurity
Renewal By Andersen Data Breach Said to Result From Customer Info Left ‘Unsecured’ for Five Years
Renewal by Andersen faces a proposed class action over a 2023 data breach in which the highly sensitive information of at least thousands of current and former customers was stolen by cybercriminals.
The lawsuit, filed in federal court in the District of Minnesota, alleges that the window and door replacement company was notified by researchers in January that an unauthorized party had gained access to its network containing sensitive customer data. The researchers said that nearly 300,000 unprotected, cloud-stored documents “exposed the company’s customer home addresses, contact details, and home renovation orders,” including interior and exterior pictures of consumers’ homes and their physical signatures.
According to the complaint, an internal investigation revealed that Andersen’s systems were left “unsecured” between January 2018 and January 2023, providing cybercriminals with “unfettered access” to current and former customers’ names, Social Security numbers, driver’s license numbers, addresses, bank account details, and credit card numbers for a five-year period.
June 27, 2023 – Consumer Fraud
Lawsuit Targets Bumble Bee Foods ‘Unsustainable’ Fishing Practices
Bumble Bee Foods faces a proposed class action filed in Los Angeles federal court, in which a group of consumers claims that the company’s labels on some of its canned or pouched products deceptively mislead consumers into believing the products are sourced from sustainable fishing practices.
Products named in the suit include Wild Caught Pink Salmon and Sockeye Salmon, pouched Wild Caught Applewood Smoke Tuna, and pouched Wild Selections Solid White Albacore Tuna. Bumble Bee, the complaint says, charges a premium for these products that deceive consumers into believing are sourced from sustainable fishing practices. However, the complaint argues, “Bumble Bee turns a blind eye to the unsustainable fishing practices used in sourcing its products and boldly uses the Marine Stewardship Council (MSC) certification as proof of sustainable fishing methods.”
Plaintiffs allege that despite the MSC certification, Bumble Bee sources its products using fishing practices that indiscriminately harm ocean ecosystems. These practices, plaintiffs say, include the suffocation and crushing of dolphins caught in fishing nets, the torturously slow death of endangered sea turtles after getting caught on large hooks meant for tuna, and the trapping of whales by fishing gear causing deep wounds and intense suffering.
June 26, 2023 – Civil Rights
Exxon Mobil Sued by EEOC for Race Discrimination
Exxon Mobil Corporation violated federal civil rights law when it failed to take effective measures to prevent the display of hangman’s nooses at one of its Louisiana complexes, the U.S. Equal Employment Opportunity Commission claims in a lawsuit filed in federal court in Baton Rouge, La.
According to the complaint, a Black employee at ExxonMobil’s chemical plant found a hangman’s noose at his worksite in January 2020. At the time he reported the noose, the complaint says, ExxonMobil was aware that three other nooses had been displayed at the Baton Rouge complex, consisting of the chemical plant and a nearby refinery.
The EEOC alleges in its suit that ExxonMobil investigated some, but not all, of the prior incidents and failed to take “prompt measures reasonably calculated to end the harassment.” Racially harassing conduct that alters the terms and conditions of the workplace, the EEOC says, violates Title VII of the Civil Rights Act of 1964, which prohibits discrimination on the basis of race. The agency says it filed this action after first trying to reach a pre-litigation settlement through its conciliation process.
June 22, 2023 – Environment
Fish & Wildlife Sued Over Failure to Act on Imperiled Plant and Animal Protections
The Center for Biological Diversity has filed a lawsuit seeking to force the U.S. Fish & Wildlife Service to establish protection for 12 plants and animals under the Endangered Species Act.
Species listed for protection in the suit, filed in federal court in Tucson, Ariz., include the Suwannee alligator snapping turtle and two fish: the least chub (found in Utah’s Bonneville Basin) and the Fish Lake Valley tui chub (found in just one spring system in Nevada’s Fish Lake Valley, in Esmeralda County).
Alligator snapping turtles are enormous, prehistoric-looking reptiles that can grow up to 200 pounds and can live almost 100 years, according to the complaint. These slow-moving, largely sedentary creatures spend so much of their time sitting on river bottoms waiting for food that algae grows thick on their shells. Their populations have declined by up to 95% over much of their historic range due to overharvesting and unchecked habitat degradation, the complaint says, adding that the turtles are also easy prey for hunters that supply thriving world markets for the exhibition and consumption of the turtles.
June 21, 2023 – Intellectual Property
Libertarian Party Sues Over Use of ‘Libertarian’ Trademark
Libertarian National Committee Inc. has filed a trademark infringement lawsuit in federal court in Richmond, Va., alleging defendant formed and advertised the “Tidewater Libertarian Party” without permission.
Defendant, who previously served on the Virginia Beach City Council in the 1990s, formed the Tidewater Libertarian Party as a Virginia corporation in 2020, and began creating social media accounts and hosting public meetings for the group without obtaining permission to use the Libertarian Party’s trademarks, according to the complaint.
Plaintiff says in his lawsuit that it has sent letters to defendant requesting that he “cease and desist from his infringing uses and putting him on notice of his infringement.” To date, plaintiff says, no such communication has been received from defendant, and he continues to “openly and defiantly” infringe plaintiff’s trademarks.
June 20, 2023 – Consumer Fraud
Gatorade Fit Accused of Making Illegal ‘Healthy Real Hydration’ Claims
A proposed class action filed in Los Angeles federal court alleges Gatorade Fit is misbranded since the drinks’ labels include “nutrient content claims” that fail to satisfy legal requirements.
According to the complaint, defendant PepsiCo has marketed Gatorade Fit with nutrient-focused label statements that don’t meet the requirements for such claims under the federal Food, Drug & Cosmetic Act, which empowers the FDA to protect public health by ensuring foods are safe and properly labeled.
The suit focuses in particular on the “Healthy Real Hydration” claim, the complaint says, as lawful use of the term “healthy” is subject to very specific legal requirements that defendant does not meet. Plaintiff alleges in his lawsuit that Gatorade Fit is essentially water flavored with a small amount of juice concentrate and citric acid, and sweetened with stevia leaf extract. It does not contain at least 10 percent of the recommended daily intake or daily reference value of one or more of vitamin A, vitamin C, calcium, iron or protein, as per FDA requirements. Therefore, plaintiff argues, the product is misbranded.
June 19, 2023 – Antitrust
Ivy League’s Agreement to Ban Athletic Scholarships Said to Constitute Illegal Price Fixing
The eight schools that make up the Ivy League engage in illegal price-fixing by not awarding athletic scholarships, alleges a proposed class action filed in federal court in New Haven, Conn., by current and former Brown University basketball players.
While all Division I athletic programs (there are over 600 schools in Division I) award financial aid to selected athletes, Brown, Harvard, Yale, and the other Ivies have for years agreed to provide only need-based financial aid to students, including athletes, according to the complaint, This policy, the complaint says, violates federal antitrust law, and harms recruited athletes who otherwise could have gotten scholarships covering tuition and fees, or been eligible for reimbursement on thousands of dollars of other school-related expenses under National Collegiate Athletic Association regulations.
The two plaintiffs are current Brown University women’s basketball player Grace Kirk and former Brown men’s basketball player Tamenang Choh. Plaintiffs argue that under what is termed “the Ivy League agreement,” defendants’ refusal to award athletic scholarships constitutes unlawful price fixing in violation of the Sherman Antitrust Act. “Absent the Ivy League Agreement,” plaintiffs say, “these schools would determine unilaterally, and in competition with each other, how many athletic scholarships to provide, by sport, and in what amounts.”
June 15, 2023 – ERISA
Father of Slain Police Officer Seeks Disability Pay
The father of a California police officer killed while on duty has sued Lincoln National Life Insurance Co. in San Francisco federal court, asking for disability benefits for his depression, anxiety, and post-traumatic stress disorder following the death of his daughter.
In his complaint, plaintiff accuses Lincoln of improperly denying his claim for disability benefits, in violation of the Employee Retirement Income Security Act. Defendant used “biased” medical reviewers, plaintiff says, who never examined him and whose opinions have been discredited in other cases.
According to the complaint, these outside reviews overlooked evidence of his disability and improperly conflated his ability to attend memorial events for his slain daughter and participate in her killer’s murder trial with the ability to hold down a demanding full-time job. Plaintiff claims that after his daughter’s death, he began experiencing frequent nightmares, disrupted sleep, extreme lack of concentration, and depression.
June 14, 2023 – Consumer Fraud
Mini Bottles of Southern Comfort Contain ‘Negligible’ Amounts of Whiskey, Lawsuit Alleges
The Sazerac Company has misleadingly designed mini bottles of Southern Comfort to appear identical to the larger versions of the product, alleges a proposed class action filed in Manhattan federal court.
Although reasonable consumers expect the mini, 99-cent bottles of Southern Comfort to contain fruit and spice-flavored liqueur just as the larger bottles do, the products, in fact, contain only a “negligible” amount of hard liquor, according to the complaint. Consumers who rely on Sazerac’s representations are unaware that the look-alike mini bottles, often sold at gas stations and convenience stores, actually contain a malt beverage made with about “one thimble” of whisky per 2,500 gallons, the complaint says.
The complaint says that the mini and full-size bottles of Southern Comfort are adorned with the same outer grooves, and their label designs contain the same colors, themes, fonts, symbols and spacing. Further, Sazerac instructs sellers to advertise the product as “shots,” reinforcing the impression that the bottles contain small servings of hard liquor. The mini product subtly distinguishes itself with small, difficult-to-read font as a “Malt Beverage With Natural Whiskey Flavors, Caramel Color and Oak Extract,” the complaint says.
June 13, 2023 – Cybersecurity
Highmark Faces Lawsuit Over 2022 Data Breach
Nonprofit healthcare company Highmark Inc. has been hit with a proposed class action filed in Pittsburgh federal court over a December 2022 data breach that reportedly affected approximately 300,000 individuals.
Highmark failed to take “even the most basic steps” to safeguard consumers’ personal and health information from unauthorized access, resulting in a data breach between December 13 and 15 of 2022, according to the complaint. Although Highmark’s online notice says the cyberattack was caused after an employee opened a “malicious phishing email link that led to their email account being compromised,” plaintiff contends in her suit that the root cause of the breach stems from the company’s failure to implement adequate cybersecurity measures.
Highmark’s negligence, the complaint says, has exposed consumers to an increased risk of identity theft and fraud, and victims must now spend a significant amount of time and money to protect themselves from misuse of their information, a threat that may persist for years to come. Further, the suit charges that Highmark failed to provide affected individuals with timely notice of the cyberattack, as the company has only recently begun informing victims of the breach.
June 12, 2023 – Product Liability
Lawsuit Targets Alleged Defect in Kia & Hyundai Ignition Systems
A proposed class action filed in Milwaukee federal court claims defective Kia and Hyundai ignition systems allow thieves to take apart the steering column and use a USB cord to start the engine.
The lawsuit involves 2011-2022 Kia vehicles and 2015-2022 Hyundai vehicles, both of which are equipped with traditional “insert-and-turn” steel key ignition systems. Unlike most vehicles, however, these cars are not equipped with an “immobilizer” that prevents them from being started unless a code is transmitted from the vehicle’s specific smart key, according to the complaint.
This security vulnerability, the complaint argues, makes the autos “incredibly easy to steal,” allowing thieves to steal vehicles by simply opening the steering columns and using a common USB charging cord or similar metal object to start the engine.” Further, plaintiff notes that viral videos on TikTok and YouTube give step-by-step instructions on how to steal the autos without a key, and that reports of stolen Kia and Hyundai vehicles have skyrocketed across the country.
June 8, 2023 – Securities
Bitcoin Mining Enterprise Argo Sued Over ‘Precipitous Decline’ in Stock Value
Plaintiff alleges in a shareholders’ class action filed in federal court in Brooklyn, N.Y., that Argo Blockchain PLC and its directors mislead investors over a September 2021 initial public offering that soon collapsed.
During and after the IPO, Argo’s Bitcoin mining business took several nose dives that, plaintiff contends, were foreseeable and that the company failed to disclose in Securities & Exchange Commission filings. In its September IPO, according to the complaint, Argo issued 7.5 million shares to the public at the price of $15 per share, for approximate net proceeds of $105 million. Yet less than a year later, the complaint says, the company began to face significant production obstacles, each of which when publicized caused the stock price to tumble.
In his lawsuit, plaintiff argues that Argo and its board kept material information from the public, including that the company was “highly susceptible to and/or suffered from significant capital constraints, electricity and other costs, and network difficulties.”
June 7, 2023 – Labor & Employment
Hershey Accused of Failing to Pay Workers for Overtime
The Hershey Company faces a proposed class that alleges it violated the Fair Labor Standards Act by failing to pay hourly employees proper overtime wages for time spent washing their hands and putting on and taking off protective gear.
In a lawsuit filed in federal court in East St. Louis, Ill, plaintiff says that workers at Hershey’s manufacturing facilities must spend time before and after each shift “donning and doffing” their sanitary clothing and protective equipment and otherwise preparing to handle food products, all of which must be done off the clock at defendant’s facility.
Plaintiff says in her suit that employees spend roughly 10 to 15 minutes a day performing these tasks, resulting in up to an hour and 25 minutes or more of unpaid overtime per week for workers who are already scheduled for 40 hours. The time spent putting on and taking off sanitary gear and washing hands is considered “compensable work time” under federal and state law because it is vital to work involving food production, plaintiff claims.
June 6, 2023 ‒ Intellectual Property
Ralph Lauren Sued by NBA’s ‘Iceman’ George Gervin Over Retro Shoe Design
Former NBA player George Gervin, popularly known as “the Iceman” for his cool demeanor on the court, has filed a trademark infringement suit against Ralph Lauren over its sale of a line of retro-style 1970s high-top basketball sneakers called the “Gervin Mid.”
By marketing the sneakers, Ralph Lauren is “seeking to profit off the back of Mr. Gervin’s commercially valuable identity” without his consent or authorization, according to the complaint filed in Manhattan federal court.
“Ralph Lauren has willfully and without authorization used Mr. Gervin’s name, likeness, and persona for commercial purposes, subverting Mr. Gervin’s exclusive ownership right to control the licensing of his name, image, likeness, and persona in the commercial marketplace,” the complaint alleges. The complaint adds: Despite publicly advocating for racial equality through its public relations arm, defendant has “surreptitiously released a line of retro-styles 1970’s hightop basketball sneakers called the “Gervin Mid” seeking to profit off the back of Mr. Gervin’s commercially valuable identity, without once seeking his consent.”
June 5, 2023 – Constitution
Challenge to N.Y. County’s ‘Boot and Tow’ Policy
A proposed class action has been filed in Brooklyn federal court against Nassau County, New York, accusing the county of unconstitutionally seizing plaintiff’s vehicle as a result of its warrantless “boot and tow” policy.
According to the complaint, Nassau County’s “boot and tow” policy, whereby the county will place a mechanical boot on the vehicle of a “scofflaw” who has two or more unpaid tickets, is unconstitutional, given that no warrant or court order is needed before a consumer’s vehicle is seized. Also, the complaint says, the policy does not afford the owner of a seized vehicle a hearing at which they can challenge the seizure or imposition of post-seizure liens.
Plaintiff alleges in her lawsuit that the county “Boot and Tow” policy is unconstitutional because it requires neither a warrant before seizing vehicles nor makes provisions for any form of hearing at which the owner can contest the confiscation of their property or its associated liens.
June 1, 2023 – Antitrust
Las Vegas Hotels Sued Over Alleged Room Rental Conspiracy
Several major companies that run prominent hotels on the famous commercial strip near Las Vegas face an antitrust lawsuit accusing them of conspiring to keep hotel room rates artificially high.
The suit, filed in federal court in Nevada, claims that defendants, including Caesars Entertainment Inc., Treasure Island LLC, Wynn Resorts Holdings LLC, and MGM Resorts International, used shared pricing algorithms to set rates instead of making “independent pricing and supply decisions.” Also named as defendants are Cendyn Group LLC and its subsidiary Rainmaker Group, which allegedly provide the algorithms.
Plaintiffs say in their suit that the group of hotel defendants, using shared data, could “defy supply and demand dynamics” in the hospitality industry. “Any units listed at prices exceeding the market price would be undercut by competitors and thus stay empty,” according to the complaint. “A hotel operator with overpriced, empty rooms would eventually go out of business,” thus allowing defendants to operate in a less competitive market and raise prices on their own.
May 31, 2023 – Labor & Employment
Eli Lilly Faces Lawsuit Alleging Age Discrimination
A proposed class action alleges that Eli Lilly & Company has “systematically” discriminated against qualified employees over the age of 40 by denying them promotions in favor of younger workers, according to a complaint filed in federal court in Indianapolis, Ind.
Eli Lilly’s “companywide age bias” towards younger employees is “well documented,” the complaint says, claiming that the company has been pushing to retain millennial employees by disproportionately promoting them over older workers with similar or better qualifications.
The complaint notes that Eli Lilly has faced similar age discrimination lawsuits in the past, including one in September 2022, when the Equal Employment Opportunity Commission claimed the company routinely failed to hire older employees on the basis of age. Another suit, pending as of August 2022, challenges the “systematic age discrimination” in defendant’s hiring procedures. In the current suit, 53-year-old plaintiff alleges that she was denied a district sales position in favor of a less-qualified employee who was 27 years old with less than two-and-a-half years of sales experience.
May 30, 2023 – Product Liability
‘Forever Chemicals’ Found in POM Wonderful Pomegranate Juice, Lawsuit Alleges
A proposed class action filed in Manhattan federal court claims that POM Wonderful pomegranate juice contains a significant amount of PFAS substances, commonly known as “forever chemicals.”
According to the complaint, The Wonderful Company and POM Wonderful “aggressively” promote their POM Wonderful 100% Pomegranate Juice as healthy, “All Natural,” and containing only the juice of four California pomegranates. However, the complaint says, independent testing has revealed that the product contains a “significant” amount of PFAS, a category of harmful artificial chemicals associated with serious effects on human and environmental health.
Plaintiff says in her suit that PFAS are considered toxic at even very low levels and are often referred to as “forever chemicals” because they accumulate in the body and environment over time. Research indicates, plaintiff says, that exposure to these man-made substances is linked to numerous adverse health conditions, including a heightened risk of several cancers, developmental complications in children, reproductive concerns, and other serious illnesses.
May 29, 2023 – Consumer Fraud
Elegant Comfort Said to Make ‘Egregiously False’ Thread Counts
A proposed class action accuses Elegant Comfort Inc. and Bespolitan Inc. of falsely claiming that certain bed sheet and pillow sets have a 1500 thread count.
The complaint, filed in federal court in Buffalo, N.Y., alleges that defendants’ marketing the products as having a 1500 Thread Count is “egregiously false and deceptive” in light of regulatory testing that showed the items’ actual thread count was significantly lower, around 180.
In her lawsuit, plaintiff says that the products at issue are all Elegant Comfort-brand bed sheet and pillow sets sold on e-commerce websites, including Amazon.com, with a 1500-thread-count claim in the product name. “Unfortunately for consumers,” plaintiff claims, “Defendants resort to false and misleading advertising to boost sales of the Products and gain a competitive edge in the market, all at the expense of unsuspecting consumers.”
May 25, 2023 – Privacy
Lawsuit Alleges Chick-Fil-A Secretly Shares Consumer Video-Viewing Data with Facebook
Chick-Fil-A has been hit with a proposed class action filed in San Francisco federal court, alleging the restaurant chain secretly shares with Facebook certain details about the videos consumers watch on the Chick-Fil-A website.
The complaint says that whenever someone watches a video on Chick-Fil-A’s website, the restaurant secretly reports their personally identifiable information and the titles of videos they watched and more to Facebook, for the dual purpose of data harvesting and targeted advertising. This action, the complaint claims, violates the Video Privacy Protection Act, which prohibits a “video tape service provider” from disclosing individuals’ information that identifies them as having “requested or obtained specific video materials or services.”
Plaintiff says in his suit that Facebook, owned by Meta Platforms, generates money by selling ad space on its platform “based upon its ability to identify user interests.” Thus, plaintiff says, the company can pinpoint a user’s interests by monitoring their “offsite” activity, allowing the platform to judge what they’re into “beyond what they freely disclose.”
May 24, 2023 – ERISA
States Seek to Block ESG Rule That Allegedly Violates ERISA’s Fiduciary Duties
Texas, along with 23 other states including Utah, Florida, and Georgia, has sued the Biden Administration to stop a new U.S. Department of Labor (DOL) rule that allegedly prioritizes “ill-defined” environmental, social, and governance (ESG) concepts into regulations involving the Employee Retirement & Income Security Act.
In their lawsuit filed in federal court in Amarillo, Tex., the states claim that the 2022 rule undermines key protections for retirement savings of 152 million workers —”approximately two-thirds of the U.S. adult population and totaling $12 trillion in assets” — in the name of promoting ESG factors in investing, including the Biden Administration’s stated desire to address climate change.
The rule is “arbitrary and capricious,” the states argue, in that it authorizes retirement plans to consider nonfinancial factors when administering trust assets, which violate federal tax and labor law. Specifically, the complaint says, the 2022 rule oversteps DOL’s statutory authority under ERISA, which does not permit fiduciaries to make investment decisions on the basis of any “factor other than the economic interest of the plan.” The action seeks a preliminary injunction.
May 23, 2023 – Intellectual Property
Walmart Accused of Copying Popular UGG, Teva Shoe Designs
Walmart Inc. faces a lawsuit filed in Los Angeles federal court accusing the company of copying well-known shoe designs including UGG boots and Teva sandals made by Deckers Outdoor Corp., the plaintiff in the action.
Defendant used “deceptive, unfair, and fraudulent business practices” in mimicking UGG, Hoka, and Teva brand shoes, plaintiff claims in its suit, which seeks damages for trade dress infringement, patent infringement and unfair competition.
Deckers says Walmart introduced the products “in an effort to exploit Deckers’ goodwill and the reputation” of products including the UGG Classic Ultra Mini. “The design of the Classic Ultra Mini Trade Dress,” Deckers argues, “is neither essential to its use or purpose, nor does it affect the cost or quality of the shoe. There are numerous other designs available, Deckers says, that are equally feasible and efficient, none of which necessitate copying or imitating the Classic Ultra Mini Trade Dress.”
May 22, 2023 – Labor & Employment
Wells Fargo Unlawfully Failed to Pay Overtime Wages, Lawsuit Alleges
Wells Fargo Bank NA has been hit with a proposed class action in federal court in Baltimore, Md., claiming it failed to pay overtime wages to fraud investigator employees in violation of the Fair Labor Standards Act (FLSA).
Plaintiff says in his suit that Wells Fargo employed him as a salaried fraud investigator who was classified as exempt from overtime. But this was a misclassification, plaintiff contends, as he and other fraud investigators regularly worked 40 to 50 hours or more per week and were not paid for the overtime hours they worked. The suit points to many examples showing that fraud investigators were not permitted to use independent judgment or discretion in determining which events should be subject to an investigation, such discretion being an important factor in exemption from overtime.
Wells Fargo fraud investigators do not meet the criteria set forth by the FLSA to be classified as exempt from overtime, plaintiff argues, and therefore they should be entitled to time-and-a-half wages for all hours worked over 40 hours in a workweek.
May 18, 2023 – Privacy
NFL Enterprises Accused of Sending ‘En Masse’ Spam Texts
In Manhattan federal court, NFL Enterprises LLC has been charged in a proposed class action of sending automated text messages to consumers without their permission.
NFL Enterprises, the complaint says, violated the Florida Telephone Solicitation Act (FTSA), which prohibits the use of an automated system to place “telephonic sales calls” without the prior express written consent of the called party. Plaintiff, a Florida consumer, claims to have received at least one spam text from defendant, even though he never consented to be contacted, The FTSA was enacted in July 2021.
The complaint contends that NLF Enterprises transmitted unlawful text messages to consumers in an “en masse fashion” using equipment “similar to a predictive dialer, inasmuch as it is capable of making numerous calls or texts simultaneously.” Plaintiff and any other consumer who has had their privacy intruded upon by NLF Enterprises are entitled to recover $500 for each FTSA violation and up to $1,500 for each knowing or willful violation, according to the complaint.
May 17, 2023 – Cybersecurity
T-Mobile Faces Lawsuit Over Data Breach That Affected Millions
A proposed class action alleges T-Mobile failed to exercise “reasonable care” in safeguarding the private information of millions of consumers, resulting in a widespread January 2023 data breach.
According to the complaint filed in Los Angeles federal court, “unencrypted and unredacted” names, birth dates, and demographic details of an estimated 37 million T-Mobile customers are believed to have been compromised in the data breach, which came to light only months after the company settled class action litigation over a 2021 data breach.
Plaintiff claims in her suit that as a result of the 2023 T-Mobile data breach, victims have incurred damages ranging from invasion of privacy and identity theft mitigation costs to the “deprivation of value” of their personal information. T-Mobile did not have in place cybersecurity procedures and practices that were appropriate enough in light of the sensitive, personalized information in its care, plaintiff says, adding that thus far the company has done little to protect consumers, or compensate them for damages related to the latest data breach.
May 16, 2023 – Product Liability
Olaplex Said to Cause Hair Loss, Scalp Burns, Other Injuries
A group of 28 women has filed a lawsuit in Los Angeles federal court against the makers of the popular hair care product Olaplex, claiming the product contains dangerous chemicals that may result in thinning hair, bald spots, and scalp injuries.
The Olaplex manufacturers, the complaint says, failed to disclose the risks associated with Olaplex, and that the hair care product contains dangerous chemicals, such as benzene. Benzene is an industrial chemical that has long been linked to fatal forms of leukemia and other cancers, according to the complaint.
In their suit, plaintiffs claim that the manufacturer advertises that its hair care products do not contain harsh or harmful chemicals, such as silicone, sulfates, formaldehyde, and gluten, and that ingredients used in the product formulation are safe for all hair. However, plaintiffs allege, these claims are false and misleading, as Olaplex products have been found to contain harsh ingredients, including benzene and other dangerous chemicals.
May 15, 2023 – Environment
Approval of Oil Leases Alleged to Cause ‘Serious Environmental Consequences’
Conservationists have sued the federal government to block the approval of oil and gas leases on 6,000 acres in New Mexico’s Permian Basin.
In a complaint filed in federal court in Albuquerque, N.M., plaintiffs — including the Center for Biological Diversity and Wildearth Guardians — challenge the U.S. Bureau of Land Management’s (BLM) issuance of oil and gas leases covering almost 6 thousand acres in the Permian Basin, in violation of the National Environmental Policy Act and the Federal Land Policy & Management Act.
“BLM hurried its environmental review process and ignored significant environmental impacts from development of the challenged oil and gas leases,” according to the complaint. Despite stated policies purporting to take an “all of government” approach to addressing the urgent climate crisis, the complaint says, the Biden Administration then rubber-stamped the Trump Administration’s decision to hold the January 2021 lease sale, despite the protests of conservation groups and their members, the result being the unlawful issuing of the leases in question.
May 11, 2023 – Labor & Employment
Owners of Amusement Park Accused of ‘Outrageous’ Age Discrimination
A proposed action alleges that the owners of Ohio-based Cedar Point Amusement Park have discriminated against seasonal employees over the age of 40 by offering company-provided subsidized housing to only younger workers.
According to the complaint filed in Cleveland federal court, Cedar Fair — owner of numerous amusement parks nationwide — and subsidiary Magnum Management Corporation “quietly instituted a new policy” in January 2021 that limited the company-provided housing benefit to seasonal employees between the ages of 18 and 29. This discriminatory policy, the complaint says, is “outrageous and malicious,” and aimed to “screen out” workers over 40 in order to build a younger seasonal workforce.
Plaintiff contends in his lawsuit that there are not enough subsidized dorms to cover all of the park’s seasonal workers, and defendants understand that many employees are unable to work unless they are given company housing. By setting an age limit for company-provided housing, plaintiff argues, defendants understood that they could stop many, if not all, seasonal employees over 40 from working at the facility.
May 10, 2023 – Product Liability
Bissell Homecare Sued Over Allegedly Fire-Prone Cordless Vacuums
Bissell Homecare Inc. misled consumers about the safety of certain cordless vacuum cleaners that had been recalled for a possible fire risk, alleges a proposed class action filed in San Francisco federal court.
For nearly 150 years, the complaint says, Bissell has built itself up as a brand consumers trust, with marketing statements like “We know the peace of mind that comes with having a clean home for those you hold closest to your heart.” Yet the company “has failed to ensure the basic safety” of its vacuums, which have faulty battery systems, circuit boards, and other faulty electronic components, the complaint claims.
Plaintiff alleges in her lawsuit that despite this longstanding history and promises made to consumers that using its vacuums leads to peace of mind, defendant has failed to ensure the product’s basic safety. Had she and other consumers known that the vacuums were defective, they would not have purchased them or would have paid significantly less, plaintiff says.
May 9, 2023 – Consumer Fraud
‘Misleading’ to Market ‘Acidic’ ACT Lozenges to Consumers With Dry Mouth, Lawsuit Claims
A proposed class action filed in Chicago federal court alleges that it is “misleading” for the maker of ACT “Soothing Mint” dry mouth oral lozenges to market the items to those suffering from dry mouth given that the products’ acidity could damage oral health.
The dry mouth lozenges have a pH value below the critical pH of root dentin or tooth enamel, according to the complaint, which means that the acidity levels can then begin to cause dental erosion, tooth sensitivity, and other adverse effects.
Dry mouth, or xerostomia, substantially increases the risk of tooth decay and other oral conditions, plaintiff says, adding that to relieve symptoms and prevent dental erosion, products like the ACT “Soothing Mint” dry mouth lozenges stimulate saliva production. However, plaintiff says, in order to prevent dental erosion, the product’s acidity level should be 6.7 pH or higher, but lab tests show that the ACT dry mouth lozenges registered a pH of only 5.72. “In light of the Product’s pH, it is misleading to market it to persons suffering from dry mouth because it will have a detrimental effect on oral health,” plaintiff argues.
May 8, 2023 – Disability Act
Lawsuit Challenges Lack of Accessibility for Disabled in Little Rock
A proposed class action claims the city of Little Rock, Ark., has neglected to make the city more accessible for the disabled community for almost 30 years, in violation of the Americans with Disabilities Act (ADA).
Filed in federal court in Little Rock, the complaint alleges that the city has violated the ADA and the Rehabilitation Act by failing to provide citizens with disabilities equal access to city offices. Plaintiff says in his suit that although Little Rock, as a recipient of federal funds, was required by law to evaluate its facilities to identify architectural and non-architectural accessibility barriers and complete changes to eliminate any structural barriers by January 1995, the city has not yet developed a transition plan to carry out these accessibility projects.
According to the complaint, recipients of federal funds must provide an opportunity for “interested persons,” including individuals with disabilities or organizations representing individuals with disabilities, to help identify problem areas in their facilities, services, policies, and practices. Recipients must then take steps to remediate these problem areas, the complaint says.
May 4, 2023 – Debt Collection
Debt Collector Accused of ‘Unconscionable’ Debt Collection Practices
Plaintiff claims in a proposed class action that the practices of debt collector UHG are unlawful in that it buys and attempts to collect on payday loans with “unconscionable” interest rates, in violation of the Fair Debt Collection Practices Act.
UHG is a third-party debt collection company that purchases unpaid debts from credit card companies, banks, auto loan companies, and other financial institutions. According to the complaint filed in San Diego federal court, defendant “knowingly and intentionally” engages in “harmful” debt collection practices by purchasing numerous debts — namely charged-off payday loans inflated by lofty interest rates — and subsequently files mass lawsuits against consumers in order to collect on the loans.
The facts of the case, the complaint says, involve a $3,500 payday loan to plaintiff at an annual percentage rate of 128.4 percent with lender CashNetUSA. Over the lifetime of the loan, the complaint says, plaintiff would pay more than $6,300 in interest, such that the total amount he would have to pay back would approach nearly $10,000. Plaintiff claims in his lawsuit that after falling behind on payments, his loan quickly inflated with an “exorbitantly high” interest rate plus penalties.
May 3, 2023 – Immigration
Monsanto Sued for Barring Non-U.S. Citizen from Roundup Settlement
Monsanto Co., wholly owned by Bayer Corp., has been accused of illegally excluding a Virginia farmworker from a settlement over claims its Roundup weedkiller causes cancer, because she is not a U.S. citizen.
In a complaint filed in federal court in Abingdon, Va., plaintiff, who used Roundup while working on tree farms in Virginia before being diagnosed with non-Hodgkin’s lymphoma in 2019, says she expected to share in a $412.8 million settlement with an average $120,000 payout.
But plaintiff says that her law firm, whom she is also suing, dismissed her from the case because of her Mexican citizenship in July 2021, seven months after it countersigned papers authorizing a payout. She alleges this dismissal constitutes a violation of her civil rights. In her lawsuit, plaintiff seeks unspecified damages and a requirement that Bayer let non-U.S. citizens, who comprise more than 70% of agricultural crop farmworkers, join in Roundup settlements.
May 2, 2023 – Consumer Fraud
Lawsuit Says ‘Authentic’ Adidas NHL Jerseys Falsely Advertised as ‘Same As’ Pro Player Uniforms
Although Adidas advertises that its “authentic” National Hockey League jerseys are the same as those worn by professional players, a proposed class action contends the Adidas shirts are in fact more like “replicas” than the jerseys worn by players on the ice during games.
The complaint, filed in federal court in Detroit, Mich., explains that “authentic” hockey jerseys are understood to be identical to uniforms worn by professional players during games, which are made with high-quality materials designed to be functional on the ice. While Adidas markets its jerseys as authentic and the same as that worn by players, the shirts are more accurately categorized as “replicas or even counterfeit,” the complaint argues.
Plaintiff claims in his lawsuit that Adidas sought to take advantage of consumers by misrepresenting the authenticity of its jerseys, which are sold at a premium price. In fact, plaintiff says, a $179 Adidas “authentic” jersey is sold for $50 more than comparable replica NHL jerseys, which are generally understood to be of lower quality, and not suitable for on-the-ice play. Plaintiff further states that the fabric used for Adidas’ jerseys is half the thickness of those worn by NHL players, the stitching is weaker, and the neck hole is smaller. On-ice jerseys are made with “premium craftsmanship” in Canada, the plaintiff notes, the birthplace of ice hockey, while Adidas’ jerseys are made in Indonesia.
May 1, 2023 – Labor & Employment
Lawsuit Claims HSBC Does Not Compensate Employees for Lunch Breaks
A proposed class action says that HSBC Bank USA failed to compensate its workers for 30-minute lunch breaks it allegedly forced them to work through.
Plaintiff claims in her suit filed in Manhattan federal court that HSBC told workers to clock out during their lunch breaks but required them to sit at their desks while they ate so they could answer phone calls and respond to customer inquiries. Plaintiff argues that the company did not compensate these employees for their time in what she says is a violation of the Fair Labor Standards Act. “Despite employees like Plaintiff never being permitted a free and clear meal break, Defendant never compensated Plaintiff and other employees for this time,” the suit contends.
In addition to failing to compensate workers for lunch breaks, the complaint states, HSBC also changed its policies during the pandemic that forced employees to engage in off-the-clock work. “As clients did not want to travel in public to Defendant’s branch offices, Plaintiff was forced to work after hours to pursue leads and word of mouth referrals,” according to the complaint.
April 27, 2023 – Constitution
Illinois Gun Rights Advocates Sue to Block Assault Weapon Ban
A gun rights group has filed a lawsuit in Illinois federal court challenging the state’s recently enacted ban on assault weapons and extended ammo magazines.
The Illinois State Rifle Association claims in its suit that the ban, signed by Governor J.B. Pritzker in January 2023 after passing both chambers of the Legislature, violates the Second and 14th Amendments of the U.S. Constitution. The ban, according to the complaint, prohibits the sale and purchase of most semiautomatic weaponry and large capacity magazines in Illinois, and with some exemptions bans assault weapon possession after New Year’s Day 2024. Current owners of semiautomatic weapons, the complaint says, will be allowed to keep their guns only if they register with the Illinois State Police, and then only on their private property or at approved sites like shooting ranges.
The law applies similar rules for current owners of extended ammo magazines, who will only be allowed to keep their magazines on their private property, at a shooting range, or at a licensed gun repair shop, the complaint says, noting that those who violate the new restrictions on either magazine or assault weapon ownership can face fines up to $1,000 as well as escalating criminal penalties.
April 26, 2023 – Environment
Environmental Groups Say Grizzly Bears Harmed by Predator Removal Program
The U.S. Fish & Wildlife Service illegally approved the continuation of its predator removal program in Montana, an action that will endanger already-threatened grizzly bears, according to a complaint filed by several environmental groups in federal court in Missoula, Mont.
Plaintiffs — including WildEarth Guardians, Western Watersheds Project, and Trap Free Montana — claim in their suit that the agency’s environmental assessment of the program incorrectly determined that it wouldn’t have any significant impact on grizzly bears, in violation of the Endangered Species Act.
The lawsuit challenges Fish & Wildlife’s May 2021 decision to continue its predator damage management program in Montana, which involves the use of traps, snares, aerial shooting, chemicals, poisons, and other methods to capture and kill native predators, including threatened grizzly bears. The suit also challenges the agency’s related environmental assessment and Finding of No Significant Impact for predator removal and its biological opinion about how predator removal may adversely affect grizzly bears and grizzly bear recovery.
April 25, 2023 – Privacy
Online Newspaper Subscribers’ Personal Data Secretly Shared With Facebook, Lawsuit Claims
A proposed class action filed in federal court in Tampa, Fla., alleges that Times Publishing Company, owner of TampaBay.com, secretly transmits digital subscribers’ personal data to Meta Platforms, parent company of Facebook, without consent.
Times Publishing, according to the complaint, is in violation of the Video Privacy Protection Act (VPPA), which prohibits “video tape service providers” from disclosing information about customers’ video viewing habits without prior consent. The “automatic and invisible” disclosures to Facebook, the complaint says, include subscribers’ unique Facebook IDs and the names and URLs of any videos plaintiff watched while on TampaBay.com.
Defendant, by disclosing its digital subscribers’ personal viewing information to Facebook, has “intentionally and knowingly violated VPPA,” the lawsuit charges, saying that TampaBay.com uses a Facebook tracking pixel to collect and transmit user information and activity back to the social media company. Facebook IDs can be used to identify users’ Facebook profiles and access all the public information appearing on their personal pages, the suit says.
April 24, 2023 – Consumer Fraud
Imperial ‘Whole Cashews’ Cans Said to Hold Mostly ‘Splits and Pieces’
Imperial Whole Cashews are deceptively marketed given that each container of the snack holds a mixture of predominately splits and pieces rather than whole cashews, according to a proposed class action filed in federal court in Birmingham, Ala.
The lawsuit alleges that Star Snacks, the maker of Imperial Whole Cashews, has intentionally misled buyers by labeling its product as “whole cashews,” with depictions of whole cashews on the package. Consumers who view the front label reasonably expect that Imperial Whole Cashews contain full pieces of the nut, but in fact 60 percent of the container consists of cashew halves, the suit says.
Plaintiff in her suit claims that Star Snacks has misrepresented Imperial Whole Cashews to “deceitfully compel” consumers to purchase the snack at a higher-than-normal price, even though cashew splits are “universally” recognized as inferior to the whole nut. If buyers had been aware that Imperial Whole Cashews cans contained mostly split cashews, plaintiff argues, they would not have bought the snack or would have paid substantially less for it. Imperial Whole Cashews are considered misbranded under federal and state regulations due to the product’s false and misleading labeling, plaintiff says.
April 20, 2023 – Product Liability
Ford Maverick Safety Canopy Side Curtain Airbags Are Defective, Lawsuit Claims
A proposed class action filed against Ford Motor Co. alleges that the “Safety Canopy” side curtain airbags in the 2022 Ford Maverick are defective, and that the problem “may increase the risk of injury in a crash.”
The complaint, filed in federal court in Detroit, Mich., says that the Maverick Safety Canopy airbags, which are mounted to the roof-side rail sheet metal behind the headliner and above each row of seats, are faulty in that the front row-side airbags allow for displacement of as much as roughly 112 millimeters (4.4 inches). This, the complaint says, is well in excess of federal requirements, in the event of a side impact crash or rollover.
Plaintiff says in his suit that the purpose of the requirement is to control the size of any gaps that form between the ejection mitigation side curtain airbag and the window opening, which together decrease the potential for partial and complete ejection of a vehicle occupant during a crash. Side curtain airbags, such as the Safety Canopy airbags, which inflate between the side window area and a vehicle occupant for further protection in a side crash or rollover, play a “crucial role” in not only protecting vehicle occupants’ heads from a side impact crash but also preventing them from being ejected during a rollover, plaintiff contends.
April 19, 2023 – Intellectual Property
AI Art Generators Accused in Copyright Suit of Violating Artists’ Images
In San Francisco federal court, a group of artists has filed a proposed class action against AI generators Stability AI Ltd., Midjourney Inc., and DeviantArt Inc., alleging infringement over using copyrighted images to train AI tools.
Plaintiffs claim, in what would be a first-of-its-kind litigation, that the AI companies downloaded and used billions of copyrighted images without obtaining the consent or compensating any of the original artists.
The software used by defendants, according to the complaint, produces “seemingly new images through a mathematical software process.” These “new” images are in fact “derivative works” of plaintiffs’ images, and compete in the marketplace with the original images. Thus, the complaint says, defendants must pay to commission or license an original image from that artist.
April 18, 2023 – Cybersecurity
Hanes Brands Faces Data Breach Class Action Alleging ‘Reckless’ Security
Multinational clothing company Hanesbrands Inc. has been hit with a proposed class action alleging its negligence caused a May 2022 data breach that exposed the personal information of thousands of employees.
According to the complaint filed in federal court in Winston Salem, N.C., the breach was the direct result of the company’s failure to encrypt employees’ information and implement adequate cybersecurity procedures to protect this information. The data exposed in the breach, the complaint says, included names, Social Security numbers, birthdates, driver’s license numbers, addresses, information related to benefits and employment, health information, and financial account information.
Plaintiff claims in her lawsuit that defendant maintained employees’ private information in a “reckless manner” that made it vulnerable to cyberattacks. This was a “known risk” to Hanes, plaintiff says, and thus the company was on notice that failing to take steps necessary to secure the private information from those risks left that property in a dangerous condition that was exploited by cyber-criminals.
April 17, 2023 – Labor & Employment
CVS Sued by Fired Nurse Who Refused to Prescribe Birth Control
A nurse practitioner who worked at a CVS Health Corp clinic alleges the company unlawfully discriminated against her because of her religious beliefs when she was fired for refusing to prescribe contraceptives.
In her lawsuit filed in federal court in Fort Worth, Texas, plaintiff claims her firing violated Title VII of the Civil Rights Act of 1964, which forbids employers from discriminating on the basis of religion and requires them to make reasonable accommodations for their employees’ religious beliefs. Plaintiff says CVS had accommodated her beliefs for more than six years before changing its policy, and could have continued doing so.
In changing its policy in 2021, the complaint says, CVS said it now considered that prescribing contraceptives would be deemed an “essential” part of clinic practitioners’ jobs. Plaintiff counters by arguing that “An employer cannot sidestep Title VII’s requirement to accommodate religious employees by merely labeling a particular function “essential.”
April 13, 2023 – Civil Rights
Texas Medical Schools Accused of Bias Against White, Asian Men
A proposed class action names six state-run medical schools in Texas as being in violation of federal anti-discrimination laws by giving preferences to female and non-Asian minority applicants.
Plaintiff, a white male, filed his lawsuit in federal court in Lubbock, Texas, alleging violations of Title VI and Title IX of the Civil Rights Act, “which prohibit all forms of race and sex discrimination at medical schools and universities that receive federal funds and make no exception for diversity-based affirmative-action programs.” The University of Texas and Texas Tech University operate the schools named in the suit.
According to the complaint, plaintiff in 2021 obtained enrollment data for the six schools after he was denied admission. The data, the complaint says, revealed that Black, Hispanic and female students at the schools had significantly lower grade-point averages or test scores than white or Asian male students. Plaintiff says in his suit that this shows that the schools gave preferences to female and non-Asian minority applicants.
April 12, 2023 – Environment
Burning Man Challenges Biden Admin Over Geothermal Exploration Approval
Biden administration approvals allowing a developer to explore northwestern Nevada for opportunities to build geothermal energy plants ignored the “inevitable” impacts from final development on resources such as natural springs, the arts and cultural festival Burning Man claims in a lawsuit filed in federal court in Nevada.
The festival, along with several conservation and environmental groups, alleges in its lawsuit that the U.S. Bureau of Land Management (BLM) violated the National Environmental Policy Act and other laws last year when it conducted an allegedly limited environmental review that only considered impacts from exploration on the town of Gerlach, Nev. (gateway to the festival).
Burning Man, which owns or operates over 4,000 acres in the area and attracts 70,000 people to the region each year for the festival, argues that BLM’s greenlight for geothermal drilling exploration “failed to consider the bigger picture.” If viable resources are found, Burning Man says, it will lead to a power plant being built and possible spring water depletion, the area springs being vital for the Black Rock desert’s full-time community in Gerlach.
April 11, 2023 – Securities
CoinDeal Crypto Creators Charged by SEC in Connection with $45 Million Fraud
The U.S. Securities & Exchange Commission has accused those involved in an allegedly fraudulent investment scheme named CoinDeal of raising more than $45 million from sales of unregistered securities to tens of thousands of investors worldwide.
Filed in Detroit federal court, the SEC civil complaint alleges defendants falsely claimed that investors could generate extravagant returns by investing in a blockchain technology called CoinDeal that would be sold for “trillions of dollars to a group of prominent and wealthy buyers.” From at least January 2019 to 2022, the complaint states, defendants disseminated false and misleading statements to investors regarding the purported value of CoinDeal, the parties involved in the supposed sale of CoinDeal, and the use of investment proceeds.
In fact, the SEC says in its suit, no sale of CoinDeal ever occurred and no distributions were made to CoinDeal investors. “We allege the defendants falsely claimed access to valuable blockchain technology and that the imminent sale of the technology would generate investment returns of more than 500,000 times for investors,” the SEC says, whereas in reality “this was all just an elaborate scheme where the defendants enriched themselves while defrauding tens of thousands of retail investors.”
April 10, 2023 – Product Liability
Lawsuit Alleges 2019-2023 Subaru Models Equipped With Defective Infotainment Systems
A proposed class action filed in federal court in Trenton, N.J., alleges certain 2019-2023 model year Subarus are equipped with defective Starlink infotainment systems.
According to the complaint, 2019-2023 model year Subaru Outback, Legacy, Forester and WRX vehicles are plagued by touchscreen Starlink systems that can freeze, become non-responsive, experience “ghost touch” or phantom input, shut off, reboot, or work intermittently or not at all. Subaru, the complaint says, is “aware of the problem” but has been unable to fix the issue by way of repairs, replacements or software updates.
Plaintiffs claim in their suit that the defect poses a significant safety concern, as a malfunctioning Starlink system can distract a driver, frustrate vehicle occupants and impact critical safety systems, including Subaru’s road-scanning EyeSight feature. Of particular concern, plaintiffs say, is the potential failure of an affected Subaru’s backup camera, as back-over crashes kill hundreds each year and injure thousands more.
April 6, 2023 – Antitrust
Live Nation, Ticketmaster Face Antitrust Action Over Taylor Swift ‘The Eras’ Tour Ticket Sales
In the wake of the well-publicized debacle involving the Taylor Swift “The Eras” tour ticket sales, a proposed class action has been filed against Ticketmaster and its parent company, Live Nation, alleging anticompetitive conduct concerning the presale, sale and resale of the concert tickets in November 2022.
Plaintiff claims in her lawsuit filed in Los Angeles federal court that the monopoly power that Live Nation and Ticketmaster hold over the primary and secondary ticketing services market comes at the expense of consumers, specifically the 2.4 million Taylor Swift fans who may have unknowingly purchased “The Eras” Tour tickets at significantly inflated prices.
As part of their “anticompetitive scheme,” according to the complaint, the defendants have coerced major concert venue operators, including virtually all venues hosting “The Eras” tour, into long-term exclusive contracts with Ticketmaster. And the company’s market dominance has evidently paid off, the complaint says, as over 70 percent of tickets for major concert venues in the United States are sold through Ticketmaster’s online platforms. Plaintiff further contends that Ticketmaster uses technology that allows it to charge fees on every ticket that is resold by limiting buyers from transferring tickets “unless those tickets are resold through Ticketmaster’s secondary ticketing platform,” thus allowing the company to charge fees to both the reseller and buyer of each resold ticket.
April 5, 2023 – Privacy
Lawsuit Claims Meta, TikTok Ad Tracking Invades Health Privacy
Direct-to-consumer pharmacy Hey Favor Inc. shared sensitive medical information with companies including Meta Platforms Inc. (parent company of Facebook and Instagram) and TikTok Inc. for advertising purposes in an “extreme invasion” of privacy, alleges a proposed class action filed in San Francisco federal court.
According to the complaint, the disclosures — made via code embedded on the website — occurred despite express guarantees that Hey Favor, now available in 49 states, does not sell or market the personal information it collects. This information, the complaint says, includes users’ prescription information (e.g., that they were prescribed birth control), answers to health questions (e.g., “what is your most recent blood pressure reading?” and “have you had or do you currently have breast cancer?”), medication side effects, allergies, age, and weight.
Plaintiff claims in her suit that she provided her information to Hey Favor based on the company’s repeated assurances that her intimate health data and other information would remain protected and confidential. “Defendants’ disclosure and interception of this information without consent constitute an extreme invasion of Plaintiff’s and Class members’ privacy” in violation of the federal Health Insurance Portability & Accountability Act and several state privacy laws, the suit contends.
April 4, 2023 – Constitution
Bar Harbor Businesses Sue Over Town’s Limits on Cruise Ship Passengers
Several waterfront businesses are challenging limits on the number of cruise ship passengers allowed to disembark in the port of Bar Harbor, Me.
According to the complaint, local voters in November 2022 approved a cap of 1,000 passengers per day in Bar Harbor, the largest town on Mount Desert Island, home to Acadia National Park. That compares to 2,000 to 4,500 passengers who normally disembark daily during the cruise ship season, the complaint says.
The lawsuit, filed in federal court in Bangor, Me., contends the limit is “draconian and arbitrary,” violates the constitution and prevents cruise ships and maritime facilities from engaging in federally approved operations. “The 1,000-person disembarkation limit, which covers passengers and crew, is antithetical to the Supremacy and Commerce clauses of the US Constitution and the resultant comprehensive federal regulatory scheme that governs the operations of cruise ships and maritime facilities,” plaintiffs argue.
April 3, 2023 – Consumer Fraud
Kraft Capri Sun Apple Juice Not ‘All Natural’ as Advertised, Lawsuit Alleges
A proposed class action filed in Manhattan federal court accuses Kraft Heinz Foods Company of misleading consumers by marketing Capri Sun apple juice as “all natural” and free of synthetic additives when in fact it contains citric acid, an artificial preservative.
The apple juice is promoted as containing “All Natural Ingredients” and “No Artificial Colors, Flavors or Preservatives” — phrases with increasing appeal among shoppers, the complaint says, because of the belief that so-call natural foods are healthier.
In her suit, plaintiff claims that despite the presence of an artificial additive in its apple juice, Kraft Heinz structured its marketing to capitalize on consumers’ willingness to pay more for products made with natural ingredients and without preservatives. Although the production of citric acid begins with the fermentation of natural ingredients and uses a natural fermentation process, the “multiple chemical reactions, synthetic mineral salts and synthetic reagents required for extracting citric acid mean it is not a natural preservative, but an artificial one,” plaintiff argues.
March 30, 2023 – Breach of Contract
Washington State Sues Plastic Surgery Provider Over Fake Reviews
A plastic surgery provider is being sued in Seattle federal court for allegedly posting fake positive reviews online and intimidating or bribing patients to remove negative reviews.
In the lawsuit filed by the state of Washington, the state attorney general claims that Allure Esthetic and its owner, Dr. Javad Sajan, misled patients and the public “through a multitude of unlawful, unfair and deceptive practices.”
For example, according to the complaint, Allure directed its employees to create fake email accounts in order to write and post fictitious positive reviews on sites including Google and Yelp. Further, the complaint says, Allure threatened to sue patients if they refused to delete negative reviews. The practice also had more than 10,000 patients sign nondisclosure agreements before receiving treatment that restricted them from posting negative reviews online.
March 29, 2023 – Environment
Environmental Groups Say EPA Fails to Regulate Gas Powerplant Air Pollution
The Environmental Defense Fund and the Sierra Club have filed a lawsuit in San Francisco federal court seeking to force the U.S. Environmental Protection Agency to uphold its responsibilities to review and revise the air pollution emission limits for new power plants that use gas as fuel.
Under the Clean Air Act, the complaint says, the EPA is required to review and revise the emission limits, called new source performance standards, for new, modified and reconstructed stationary combustion turbines every eight years. However, plaintiffs claim, the EPA has not updated these standards for 16 years, which has caused avoidable and unnecessary harm to the public and environment.
Plaintiffs say they jointly served a written notice to the EPA in September 2022, more than sixty days prior to the filing of the lawsuit, but the agency did not provide an adequate reason for its inaction. Current limits for nitrogen oxides and other emissions from new gas plants were last updated in 2006, according to the complaint, but have been neglected since, allowing many new plants to release excessive levels of the gasses that contribute to the formation of ozone and smog.
March 28, 2023 – Product Liability
OGX Dry Shampoo Contains Toxic Carcinogen Benzene, Lawsuit Alleges
Johnson & Johnson Consumer Inc. and Vogue International LLC (a unit of J&J) face a proposed class action that alleges the companies’ OGX-brand dry shampoo contains dangerous levels of the carcinogen benzene.
The manufacturers “knowingly,” or at least “negligently,” marketed and sold dry shampoo products contaminated with “dangerously high levels of benzene” to consumers across the country, putting thousands at risk from the known human carcinogen, according to the complaint filed in Chicago federal court. The chemical is “poisonous at any level of exposure,” the complaint says, and defendants not only failed to properly test their products but subsequently “concealed this fact [from] consumers.”
Plaintiff claims in her suit that the presence of benzene in OGX dry shampoos — particular the Extra Strength Dry Shampoo Coconut Miracle Oil variety — renders the products adulterated and misbranded, and thus illegal to sell under federal and state law. The Food & Drug Administration, plaintiff says, has stated that benzene should not be used in the production of drugs or consumer goods due to its “unacceptable toxicity.”
March 27, 2023 – Securities
SEC Names 8 Influencers in $100 Million Securities Fraud
The Securities & Exchange Commission has accused eight individuals in a $100 million securities fraud scheme in which they allegedly used the social media platforms Twitter and Discord to manipulate exchange-traded stocks.
According to the SEC’s civil action filed in Houston federal court, defendants promoted themselves as successful traders and cultivated hundreds of thousands of followers on Twitter and in stock trading chatrooms on Discord. The defendants, the SEC claims, purchased certain stocks and then encouraged their substantial social media following to buy those selected stocks by posting price targets or indicating they were buying, holding or adding to their stock positions.
However, the complaint alleges, when share prices and/or trading volumes rose in the promoted securities, defendants regularly sold their shares without ever having disclosed their plans to dump the securities while they were promoting them. “The defendants used social media to amass a large following of novice investors and then took advantage of their followers by repeatedly feeding them a steady diet of misinformation, which resulted in fraudulent profits of approximately $100 million,” the SEC says.
March 23, 2023 – Labor & Employment
Ex-Walgreens Employees Say They Lost Health Insurance Due to Inadequate Notice of Rights
A proposed class action filed in federal court in Tampa, Fla., alleges Walgreens Co. failed to provide former health plan participants with adequate notice of their right to continued health insurance coverage, as required under the Consolidated Omnibus Budget Reconciliation Act (COBRA).
According to the complaint, COBRA requires that group health plan sponsors like Walgreens must notify qualified individuals of their right to retain health coverage upon termination or another “qualifying event” defined by the statute. Instead of using the Department of Labor’s model COBRA form, the complaint says, Walgreens sent plan participants multiple documents that offered only part of the legally required information “in haphazard and piece-meal fashion.”
Plaintiffs claim in their lawsuit that they lost their health insurance because they could not understand Walgreens’ “confusing” enrollment notices. The documents provided by Walgreens, plaintiffs say, adhered to the model notice “only to the extent that served defendant’s best interests,” adding that defendant’s notification method discouraged qualified individuals from enrolling in COBRA so the pharmacy could pocket the unclaimed expenses.
March 22, 2023 – Privacy
Sirius XM Radio Faces Class Action Over Telemarketing Calls
Four individuals allege in a proposed class action that Sirius XM Radio Inc. has for years been sending them unwanted telemarketing calls.
In their lawsuit, plaintiffs claim they received call after call from Sirius XM, even though they were on the do-not-call registry, according to the complaint filed in federal court in Urbana, Ill. And as such, the complaint says, Sirius XM phoned them without their consent, in violation of the federal Telephone Consumer Protection Act and Illinois state telemarketing laws.
Plaintiffs say that these calls occurred even though they either put their numbers on the do-not-call registry or told SiriusXM directly that they did not want to receive the calls. Sirius XM is well aware of its illegal calling practices, plaintiffs contend, noting that hundreds of people have contacted the Federal Trade Commission to complain about these calls, and the defendant has entered into class action settlement agreements twice in which it agreed to pay over $60 million to class members. However, even with the settlements, defendant has continued its illegal calls, plaintiffs say.
March 21, 2023 – Intellectual Property
Empower Investment Co. Claims Rights to Term ‘Empower’
The Empower Annuity Insurance Co. of America has accused credit company Empower Finance of marketing and selling goods and services that violate plaintiff’s trademark rights.
In a complaint filed in federal court in Denver, Colo., Empower Annuity says that it holds several registered trademarks incorporating the term “Empower.” These trademarks, the complaint says, involve a myriad of financial services and related products to individual customers throughout the United States. The products covered by the trademarks include retirement and investment products and services, personal finance and portfolio management products and services, and advisory and educational resources.
In its lawsuit, Empower Annuity claims that defendant Empower Finance has introduced several new offerings, including cash advance and revolving line of credit systems, that use the term “empower” in a manner that causes confusion with plaintiff’s products. For example, in 2020 defendant launched “Empower Cash Advance,” a service offering pre-payday cash lending, and in 2022 “Empower Thrive,” which offers a revolving line of credit. These services, plaintiff contends, use marks that are identical or confusingly similar to plaintiff’s trademarks.
March 20, 2023 – Consumer Fraud
Lawsuit Alleges Tide Detergent Bottle Does Not Yield 64 Loads as Advertised
In a proposed class action, Procter & Gamble Co. is accused of misleadingly advertising Tide detergent as containing enough detergent for 64 loads, when the small print clarifies that is only if a consumer uses a small amount of detergent per load.
P&G manufactures and sells 2.72 liters of detergent marketed as sufficient for 64 loads of laundry under the Tide brand, according to the complaint filed in federal court in White Plains, N.Y. However, the complaint says, only if consumers turn the container around and navigate “hundreds of words of varying size and fonts” will they learn the amount of detergent is only sufficient for approximately 64 loads if measured just below Bar 1 on the cap.
Plaintiff claims in her suit that for the majority of Americans who do laundry in loads reasonably characterized as “full,” they will only be able to get half as many, or 32 loads of laundry, from the product when run at high efficiency. Representing that the product can provide 64 loads when these are the smallest size loads of laundry is misleading because consumers expect transparency, plaintiff says, adding that as a result of the misleading representations, P&G sells the product at a premium price of $12.99 for 92 oz.
March 16, 2023 – Environment
Gov’t Accused of Failing Gray Wolves Under Endangered Species Act
The Center for Biological Diversity in a lawsuit filed in the District of Columbia seeks to have the U.S. Fish & Wildlife Service refresh a recovery plan for the gray wolf that, the center claims, the agency hasn’t updated in a timely fashion as required by the Endangered Species Act (ESA).
Before a government-sponsored predator killing curbed their numbers to approximately 7,000, a population that lives almost entirely in northeastern Minnesota, the gray wolf had a population of about 2 million and territory that spanned much of the United States, according to the complaint. The species now allegedly exists only at about 1% of its historical numbers, a percentage that the center in its suit blames on the absence of a sufficient recovery plan.
“The agency’s refusal to complete a national wolf recovery plan, besides violating the [ESA], neglects both the people who want this majestic species to recover and the wolves who are so important to our country’s biodiversity,” the center argues, adding that while Fish & Wildlife does have a recovery plan for the gray wolf, it was one developed in 1992 and is now outdated. The ESA requires a complete status review every five years, the center says.
March 15, 2023 – Cybersecurity
Blackhawk Network Faces Lawsuit Over Data Breach
Blackhawk Network Inc. is accused in a proposed class of failing to protect customers’ personal information in connection with a September 2022 data breach that affected nearly 166,000 consumers.
Plaintiffs allege in their suit filed in federal court in Oakland, Calif., that Blackhawk, a provider of prepaid gift cards and incentive cards, failed to properly secure and safeguard personally identifiable information provided by customers when they activated their cards.
Sensitive information exposed in the breach, according to the complaint, included names, email addresses, phone numbers, payment card data, expiration dates, and CVV security codes. The aggregate information acquired by cybercriminals in this data breach is “particularly concerning,” the complaint says, considering that defendant’s customers provided private information that can be used to commit fraud against plaintiffs and class members as well as steal their identities.
March 14, 2023 – Constitution
Lawsuit Challenges Military Insurance Program Over Exclusion of Sex Reassignment Surgery
A U.S. Marine veteran has filed suit over the refusal of the federal insurance program for military service members and veterans to cover gender-affirming surgeries for his transgender daughter.
Plaintiff claims in his suit against the Department of Defense filed in federal court in Portland, Maine, that the refusal is based on an “antiquated” 1976 federal statute that lists “gender change” surgery as a cosmetic procedure not eligible for coverage. This refusal, plaintiff says, constitutes a violation of the right to due process and equal protection as guaranteed by the U.S. Constitution by discriminating against his daughter on the basis of sex and transgender status.
According to the complaint, plaintiff served in the military for 23 years and was honorably discharged. His daughter, the complaint says, was diagnosed in 2018 at age 17 with gender dysphoria, the condition that comes from identifying as a gender different from the one assigned at birth. Military health insurance denied coverage for plaintiff’s daughter, who is covered by her father’s plan, to have laser hair removal and facial feminization surgery, the complaint says, adding that the program also denied coverage for vaginoplasty, a gender-affirming genital surgery.
March 13, 2023 – Product Liability
Lenovo Desktop Computers Said to Contain Hardware, Software Defects
Lenovo (U.S.) Inc. manufactured and sold Lenovo desktop computers containing hardware and software defects that cause the device to frequently freeze and/or crash, alleges a proposed class action filed in federal court in Grand Rapids, Mich.
Plaintiff claims in his lawsuit that Lenovo misled consumers who expected the Lenovo Legion T5 28IMB05 desktop computer to “function reliably for games, graphic design and other everyday use without freezing or crashing.” The affected Lenovo desktop computers, plaintiff argues, contain NVIDIA audio and graphics drivers believed to be incompatible with the desktop’s other drivers, software and components.
“While temporary options have been proposed including re-installing the relevant drivers, a permanent solution has not or took significant amounts of time to materialize,” according to the complaint. The defect, the complaint says, is “especially frustrating” for affected users since Lenovo has failed to categorize the issue as a defect, preventing them from being able to get warranty coverage to fix it. “Consumers expect a computer represented – directly or indirectly – as capable of functioning reliably, not freezing or crashing, and running smoothly during operation,” plaintiff says.
March 9, 2023 – Consumer Fraud
Kraft’s Mac & Cheese Isn’t Actually ‘Ready in 3.5 Minutes,’ Lawsuit Alleges
In a proposed class action, plaintiff contends that Kraft Heinz Foods Co. misled consumers when it claimed its Velveeta Shells & Cheese product is “ready in 3.5 minutes.”
Plaintiff alleges in her suit filed in Miami federal court that the 3.5 minutes represents the time to microwave the product, which is only one of four steps that consumers must take before the shells and cheese are ready to eat.
Consumers of the product, according to the complaint, must also remove the lid and cheese sauce pouch; add water to the cup and stir; and, after microwaving, stir in the cheese sauce. The deceptive claim, the complaint says, allows Kraft to charge a premium price for the product. Plaintiff says she might not have bothered buying the Shells & Cheese product “had she known the truth.”
March 8, 2023 – Intellectual Property
Patagonia Accuses Gap of Copying ‘Iconic’ Flap Pocket
Outdoor clothing retailer Patagonia Inc. has filed a lawsuit in San Francisco federal court accusing Gap Inc. of illegally copying the “iconic” snapped flap pocket that Patagonia has used on fleece outerwear for more than three decades.
In its suit, plaintiff Patagonia claims that defendant Gap is “willfully and deliberately” selling fleece jackets that mimic plaintiff’s flap pocket and rectangular “P-6” logo without permission.
Plaintiff says defendant’s actions undermined plaintiff’s goodwill, and were intended to confuse shoppers into believing defendant made the jackets or that plaintiff had given permission for defendant use its trademarks. Plaintiff also says it had warned Gap in prior years to stop copying its products, indicating that the alleged “adoption of designs and logos bearing even more similarity cannot have occurred by accident.”
March 7, 2023 – Environment
Baltimore Sues Tobacco Companies Over Cigarette-Butt Litter
In what it calls a “first of its kind” lawsuit, the city of Baltimore has filed suit against tobacco companies Philip Morris, Altria Group, and others over cigarette-butt litter, arguing that defendants are responsible for the discarded filters that cost the city millions to clean up every year.
The suit filed in Maryland state court alleges that the tobacco companies’ refusal to use biodegradable cigarette filters or to add labels to packaging that warn about the dangers of discarded filters contributes to an estimated $5.3 million annual bill for cleanup, paid primarily by the city. Discarded filters can leach toxic cigarette additives such as heavy metals, formaldehyde, and benzene into groundwaterr and soil, according to the complaint.
The city claims the cigarette companies have repeatedly refused to use biodegradable alternatives, since customers prefer the “draw” of the non-biodegradable filters. In addition, the city claims the companies have refused to add warnings that would inform smokers about the proper way to dispose of the toxic filters, fearing doing so would reduce sales.
March 6, 2023 – Unjust Enrichment
Lawsuit Claims Neutrogena ‘Baby Sunscreen’ Sold at Premium Over Identical Adult Version
In a proposed class action, plaintiff, who bought Neutrogena SPF 50 sunscreen for babies, is suing manufacturer Johnson & Johnson Consumer Inc., alleging the company sells almost the exact same product for adults, but at half the price.
J&J makes and sells zinc oxide SPF 50 sunscreens in stick form for babies and for adults under the Neutrogena brand, according to the complaint filed in Brooklyn federal court. Though the two products appear distinct, the complaint says, with the baby variety containing numerous label statements and features absent from the adult version, they are basically identical, yet sold at dramatically different prices.
Plaintiff in her lawsuit says the federal government has made moves to prevent companies from leveling a “pink tax” or “kids’ tax” that makes identical products more expensivein the “baby” version. The back label of the Neutrogena sunscreen baby version describes it as an “extra gentle formula that is ideal for baby’s delicate, sensitive skin.” This marketing, plaintiff says, leads parents to believe the baby version is specifically designed for their babies’ needs. “The result is that parents will pay significantly more for such products, which is why, on a per ounce basis, the Baby version is $16.96, almost two times the price of the Adult version at $8.65.”
March 2, 2023 – Product Liability
Hearing Loss Caused by Eye Disease Drug Tepezza, Lawsuit Alleges
Plaintiff claims that she was left with permanent and irreversible hearing loss caused by side effects of Tepezza, after manufacturers of the thyroid eye disease injection failed to adequately warn users or the medical community about the potential risks associated with the treatment.
The complaint, filed in Chicago federal court, names as defendant the drug maker Horizon Therapeutics USA Inc. Tepezza, the complaint says, is a biologic treatment approved by the FDA in January 2020 to treat thyroid eye disease, characterized by inflammation of eye muscles, eyelids, tear glands and fatty tissues behind the eye. This can lead to blurred or double vision and can cause the eyes to appear to bulge.
In her suit, plaintiff says the FDA allowed Tepezza’s approval through a fast-track Orphan Drug designation, which allowed Horizon to introduce the medication without extensive testing or studies. However, plaintiff alleges, the drug maker knew or should have known that Tepezza side effects cause hearing loss before it was ever submitted to the FDA, and that the company continued to aggressively market the drug shortly after it was approved, without warning users or the medical community about the importance of monitoring for hearing loss or ear damage during treatment.
March 1, 2023 – Antitrust
YouTube TV Users Say Disney Unlawfully Inflates Streaming TV Prices
Subscribers to YouTube TV have sued The Walt Disney Co in San Francisco federal court, alleging the company’s business agreements with competitors have artificially pushed up how much consumers pay across the market for live television streamed over the internet.
In their proposed class action, plaintiffs argue that Disney’s control of both Hulu, the country’s second-largest live streaming pay television provider, and the sports network ESPN has allowed the company “to set a price floor” for the market and to “inflate prices marketwise by raising the prices of its own products.”
According to the complaint, Disney requires streaming providers such as YouTube TV to include ESPN as part of a base package, and plaintiffs claim they “paid prices for their YouTube TV subscriptions that were higher than they would have been absent Disney’s anticompetitive conduct.”
February 28, 2023 – Constitution
New Jersey Faces Suit Over ‘Public Nuisance’ Law Targeting Gun Companies
A gun industry trade association has filed a lawsuit in federal court in Trenton, N.J., seeking to block a recently passed state law authorizing the state’s attorney general to sue gun manufacturers and sellers over gun violence.
Plaintiff, the National Shooting Sports Foundation (NSSF), calls the law “breathtaking in scope” and says that it illegally “allows judges and juries to impose liability based on truthful, non-misleading speech about lawful products,” including on companies outside of New Jersey. According to the complaint, the law, passed in July 2022, allows the state attorney general to sue gun manufacturers and sellers that “recklessly” contribute to a “public nuisance” that threatens the health and safety of citizens of the state.
However, the complaint notes, lawsuits seeking to hold the gun industry liable for gun violence have been limited by a 2005 federal law called the Protection of Lawful Commerce in Arms Act, which largely shields companies from liability stemming from lawful gun sales. NSSF says in its suit that New Jersey’s law is an attempted end-run around that law and constitutes a violation of the U.S. Constitution’s 1st Amendment by potentially allowing liability for truthful advertisements and 2nd Amendment by burdening the right to bear arms.
February 27, 2023 – Consumer Fraud
Kimberly-Clark Sued Over ‘Greenwashed’ Huggies Baby Wipes
A proposed class action filed in Los Angeles federal court alleges that Kimberly-Clark Corp. promotes its Huggies baby wipes as “natural” and “plant-based,” when in fact they contain numerous artificial ingredients.
“Defendant has instead chosen to “greenwash” [make a false claim of environmental impact] the Products and market them through deceptive labeling and advertising to convince consumers the Products are natural and plant-based when, in reality, they contain numerous synthetic, artificial, and highly processed ingredients,” plaintiff contends.
Customers pay a premium for products labeled as “all-natural” and “plant-based,” as customers believe these products to be safer and healthier than those containing synthetic ingredients, according to the complaint. To allegedly tap into this market, the complaint says, Kimberly-Clark produces the Huggies natural care line, which includes the two wet wipes in question: Huggies Natural Care Baby Wipes (Refreshing) and (Sensitive).
February 25, 2023 – Intellectual Property
Boston Dynamics Alleges Lost Profits on ‘Robotic-Dog’ Patents
In federal court in Wilmington, Del., Boston Dynamics Inc. claims that two models of “robotic dogs” made by Ghost Robotics Corp. infringe as many as seven patents for “core technology” used in Boston Dynamics’ four- and two-legged robots such as “Spot,” designed for industrial and commercial uses.
According to the complaint, at the time of its introduction, the Spot robot was the “quietest and most capable robot Boston Dynamics had ever built,” and it was honored by numerous innovation awards.
The lawsuit, plaintiff says, focuses on Ghost Robotics’ quadrupedal unmanned ground vehicles, or Q-UGVs — specifically its Vision 60 and Spirit 40 products. Boston Dynamics claims the Q-UGVs infringe its patents, including ones related to systems and methods for robots to self-right and to negotiate stairs.
February 24, 2023 – Securities
SEC Accuses Crypto Promoters of $295M ‘Ponzi’ Scheme
The U.S. Securities & Exchange Commission has filed a civil action in Seattle federal court against four individuals for their role in Trade Coin Club, a “fraudulent crypto Ponzi scheme” that allegedly raised nearly $300 million in bitcoin from over 100,000 investors.
The SEC alleges in its lawsuit that defendants made numerous materially false and misleading statements to lure investors to send their bitcoin to Trade Coin Club, which defendants falsely said was earning profits from an automated crypto asset trading program or “bot.” Defendants claimed that the trading bot made “millions of microtransactions” every second and had a “stop loss” feature that would assure minimum daily trading profits for investors.
However, the SEC says, blockchain analysis reveals that, in reality, Trade Coin Club “operated in a manner consistent with a Ponzi scheme.” Specifically, the group had no external source of funding for investor withdrawals or redemptions, such as profits from trading. Instead, the SEC says, investor withdrawals were paid solely with new investor deposits.
February 23, 2023 – Antitrust
Spirit Customers Seek to Block Airline Merger With JetBlue
JetBlue’s proposed acquisition of Spirit Airlines would substantially lessen competition or “tend to create a monopoly” in the passenger airline industry, alleges a lawsuit filed in San Francisco federal court.
Spirit customers claim in their suit that JetBlue made an unsolicited tender offer to purchase Spirit in order to eliminate that competition. “JetBlue would gain a majority market share on more than a dozen routes where neither it nor Spirit previously dominated, and it would eliminate the price-cutting by Spirit,” plaintiffs argue.
Spirit’s board, according to the complaint, had initially recognized that a merger would “substantially raise fares” and “have lasting negative impacts on customers.” JetBlue, however, responded by choosing to “sweeten the deal” by offering to pay $400 million to shareholders, the complaint says. “In the face of Spirit’s assertions of numerous anti-competitive conduct and substantive and unequivocable lessening of, and probable destroying of, competition, JetBlue simply offered more money to Spirit.”
February 22, 2023 – Product Liability
Lawsuit Filed Over Benzene in Dove, Suave, TRESemmé and Other Dry Shampoo Products
Unilever Inc. has been hit with a proposed class action over dry shampoo recalled late in Oct 2022, indicating that multiple Dove, Nexxus, Suave, TIGI and TRESemmé dry shampoo aerosol products were sold with high levels of benzene, which is a cancer-causing chemical.
Plaintiff, in his suit filed in federal court in the District of New Jersey, alleges that Unilever knew or should have known its dry shampoo products contained benzene, yet it continued to market the aerosol spray cans as safe. Benzene, according to the complaint, is an industrial chemical that has long been linked to fatal forms of leukemia and other cancers.
Since the dry shampoo is applied directly to the hair and scalp, the complaint says, health officials warn that benzene could enter an individual’s bloodstream through inhalation, orally, and through the skin, which over time could result in adverse health effects from exposure to the chemical. Plaintiff says Unilever was made aware of the risk of benzene contamination in its aerosol dry shampoo products since Nov 2021, after the online pharmacy Valisure released a report finding elevated levels of benzene in Unilever’s Suave antiperspirant products, which resulted in a massive recall and multiple Suave deodorant lawsuits.
February 21, 2023 – Constitution
Electric Car Co. Challenges ‘Irrational ‘Texas Law That Prevents Direct Selling to Customers
Lucid Motors, a manufacturer of luxury electric cars, is suing the state of Texas in Austin federal court over a law that has barred the company from having dealerships in the state, the company claiming the law hurts competition and violates the Due Process and Equal Protection clauses of the Constitution.
As a new entrant into the automotive market, according to the complaint, Lucid recognized that the only feasible way to get its vehicles to consumers was by selling them directly — without a middleman. “And it knew,” the complaint says, “that the direct-sales model was the only way to stay true to its values of treating customers with respect and providing unsurpassed customer service, ruling out the kind of high-pressure, commission-driven sales tactics commonly associated with the traditional third-party-dealership model.”
While many states have welcomed Lucid, the complaint says, Texas has barred the company from obtaining a license to operate a dealership in the state. The state’s position is that the law protects traditional dealers against competition by the manufacturers whose vehicles they sell, but it also prohibits manufacturers without independent dealers from operating their own dealerships. “As applied to Lucid,” the complaint argues, “this prohibition is irrational in the extreme: it hurts competition, reduces consumer choice, and drives up costs and inconvenience, with no countervailing benefit whatsoever.”
February 20, 2023 – Product Liability
Mercedes-Benz Models 2010-2022 Plagued by Rear Subframe Rust Defect, Lawsuit Says
A proposed class action filed in Atlanta federal court alleges a number of 2010-2022 model year Mercedes-Benz vehicles have subframes that can prematurely rust or corrode “from the inside out,” leaving the subframe “structurally unstable and prone to failure.”
According to the complaint, the subframe attaches to a vehicle’s frame/chassis on the back undercarriage and provides stiff mounting points for the car’s suspension and driveline components. The rear subframe, the complaint says, must be “stiff and resilient” as it’s crucial to securing a vehicle’s rear suspension and rear wheels.
Plaintiffs in their suit say that a subframe defect allows water and salt to collect on the interior of the frame and corrode it from the inside out, making the damage difficult for a mechanic to detect during a routine inspection. The subframes, which should last the life of a vehicle without replacement, may have also been treated with an inadequate type or amount of rust coating, plaintiffs claim, adding that the defective subframes “pose a material safety risk, and therefore render the vehicles unfit for their intended purpose.”
February 17, 2023 – Intellectual Property
Apple Challenges Patent Office Rejection of ‘Smart Keyboard’ Trademark
Apple Inc. says it is entitled to a federal trademark for its “Smart Keyboard” iPad accessory and the U.S. Patent & Trademark Office (PTO) was wrong to deny Apple’s application.
In federal court in Alexandria, Va., Apple claims the PTO erred when it found that “Smart Keyboard” was a generic phrase rather than a distinctive name that customers would associate with Apple’s accessory. According to the complaint, Apple introduced the Smart Keyboard, an iPad cover that also functions as a keyboard and stand, in 2015. The company applied for a federal trademark that included the phrase “Smart Keyboard” later that year.
The PTO rejected Apple’s application in 2018, the complaint says, and the office’s Trademark Trial & Appeal Board upheld the decision last year, ruling that “Smart Keyboard” was a generic term for “technologically advanced keyboards” and could not be a registered trademark. But Apple says in its suit that the term “Smart Keyboard” had rarely been used to refer to anything other than Apple’s accessory. “This strongly indicates that consumers do not understand or use ‘smart keyboard’ as a generic ‘everyday’ term,” Apple argues. “If it did, it would be used widely in the industry.”
February 16, 2023 – Securities
Netflix Shareholder Says Company Failed to Warn About Revenue Decline
Netflix executives have been accused of failing to warn about declining revenue and slowing subscriber growth until after the executives sold their stock in the company, in a shareholder derivative suit filed in Santa Clara (Calif.) superior court.
According to the complaint, Netflix portrayed itself to investors as a growth stock similar to Google or Facebook — “a company that will add tens of millions of customers every year as people transition from pay TV to internet video.” For about a decade, the complaint says, Netflix had delivered on that promise, growing year after year in route to more than 200 million subscribers.
However, plaintiff says, by 2022 this growth had markedly declined, and investors were not informed of this decline and its adverse effect on Netflix’s financial condition. Netflix company executives knew that the company’s stock was trading at an artificially inflated price, plaintiff claims, and, “utilizing their knowledge of facts not publicly known, sold significant amounts of their personally held shares of Netflix stock,” thereby breaching their fiduciary duties to the company and its shareholders.
February 15, 2023 – Intellectual Property
Apple Challenges Patent Office Rejection of ‘Smart Keyboard’ Trademark
Apple Inc. says it is entitled to a federal trademark for its “Smart Keyboard” iPad accessory and the U.S. Patent & Trademark Office (PTO) was wrong to deny Apple’s application.
In federal court in Alexandria, Va., Apple claims the PTO erred when it found that “Smart Keyboard” was a generic phrase rather than a distinctive name that customers would associate with Apple’s accessory. According to the complaint, Apple introduced the Smart Keyboard, an iPad cover that also functions as a keyboard and stand, in 2015. The company applied for a federal trademark that included the phrase “Smart Keyboard” later that year.
The PTO rejected Apple’s application in 2018, the complaint says, and the office’s Trademark Trial & Appeal Board upheld the decision last year, ruling that “Smart Keyboard” was a generic term for “technologically advanced keyboards” and could not be a registered trademark. But Apple says in its suit that the term “Smart Keyboard” had rarely been used to refer to anything other than Apple’s accessory. “This strongly indicates that consumers do not understand or use ‘smart keyboard’ as a generic ‘everyday’ term,” Apple argues. “If it did, it would be used widely in the industry.”
February 14, 2023 – Consumer Fraud
Lidocaine Patch Lawsuit Against Rite Aid Alleges False Claims of ‘Maximum Strength’ Pain Relief
Rite-Aid Corp. has been hit with a proposed class action over Lidocaine pain relief patches that were allegedly falsely marketed as “Maximum Strength,” in San Francisco federal court.
In the suit, plaintiff is seeking damages on behalf of himself and all others who have paid a premium for Rite Aid Maximum Strength Pain Relief Lidocaine Patch products, when in fact there were stronger-dosed pain relief patches commercially available, plaintiff contends.
Lidocaine patches, according to the complaint, are a popular household pain management option, providing relief for individuals with nerve pain. It is estimated, the complaint says, that millions of Americans suffer from multiple types of neuropathic pain, and that they frequently seek over-the-counter remedies for relief. Rite Aid takes advantage of consumers’ lack of scientific knowledge on how to determine whether a Lidocaine pain patch actually contains the maximum strength, plaintiff says, noting that Rite Aid Lidocaine patches contain only 4% lidocaine, while other options contain 5% lidocaine.
February 13, 2023 – Product Liability
Clorox Faces Lawsuit Over Alleged Pine-Sol Infection Risks
A proposed class action has been filed against Clorox Corp. over its recent Pine-Sol cleaning products recall, seeking damages on behalf of consumers who were exposed to an alleged dangerous bacteria in the products, which may cause severe and potentially life-threatening infections.
The suit, filed in federal court in Brooklyn, N.Y., asks the court to establish a nationwide class for all consumers who purchased recalled Clorox Pine Sol products with the expectation they were safe and free from harmful bacteria. The recall, according to the complaint, was first announced on October 25, 2022, impacting approximately 37 million bottles of scented cleaners that may contain a harmful bacteria that can cause serious side effects, including infections in the blood and lungs and other parts of the body.
The recall, the complaint says, included Scented Muti-surface Cleaners in Lavender Clean, Sparkling Wave, and Lemon Fresh scents; CloroxPro Pine-Sol All Purpose Cleaners in Lavender Clean, Sparkling Wave, Lemon Fresh and Orange Energy scents, and Clorox Professional Pine-Sol Lemon fresh cleaners.
February 11, 2023 – Constitution
Lawsuit Challenges City’s Ban on Feeding Homeless People in Parks
A woman who was arrested for feeding homeless people in a city park is suing the city over its ordinance that regulates food-sharing events in public spaces.
Plaintiff, who is 78 years old, became the first person arrested under the Bullhead City (Ariz.) ordinance in March 2022 for distributing prepared food from a van at Bullhead Community Park, according to the complaint filed in federal court in Prescott, Ariz. Criminal charges against plaintiff were eventually dropped, the complaint says, but she is seeking an injunction to stop the city from enforcing the ordinance that took effect in May 2021.
Plaintiff claims in her lawsuit that the prohibition violates her right to engage in charitable acts and to share food with the needy, which, she says, is protected by the Due Process and Privileges and Immunities clauses of the Fourteenth Amendment to the U.S. Constitution. Further, plaintiff argues, the ordinance creates disparate treatment between people sharing food for charitable purposes and people sharing food for non-charitable purposes and this violates her right to equal protection as guaranteed by the Equal Protection Clause of the Fourteenth Amendment.
February 10, 2023 – Securities
SEC Sues Hydrogen Technology Corp. for Market Manipulation of Crypto Asset Securities
The U.S. Securities & Exchange Commission has announced charges against the Hydrogen Technology Corporation, its former CEO and the CEO of Moonwalkers Trading Limited, a self-described “market making” firm, for their roles in effectuating the unregistered offers and sales of crypto asset securities called “Hydro” and for perpetrating a scheme to manipulate the trading volume and price of those securities, which yielded more than $2 million for Hydrogen.
Filed in Manhattan federal court, the SEC’s complaint alleges that starting in January 2018, Hydrogen, a New York-based financial technology company, created its Hydro token and then publicly distributed the token through various methods: an “airdrop,” which is essentially giving away Hydro to the public; bounty programs, which paid the token to individuals in exchange for promoting it; employee compensation; and direct sales on crypto asset trading platforms.
The complaint further alleges that, after distributing the token in those ways, Hydrogen hired Moonwalkers, a South Africa-based firm, in October 2018 to create the false appearance of robust market activity for Hydro through the use of its customized trading software or “bot” and then selling Hydro into that artificially inflated market for profit on Hydrogen’s behalf. Hydrogen allegedly reaped profits of more than $2 million as a result of defendants’ conduct, in violation of the antifraud provisions of the Securities Exchange Act.
February 9, 2023 – Disability Act
Class Action Alleges Paula Deen Website Not Fully Accessible to Disabled Customers
Plaintiff, who is legally deaf, has filed a proposed class action in Manhattan federal court against Paula Deen Ventures — the owner and operator of multiple restaurants and cooking TV shows — alleging the company does not provide equal access to deaf and hard-of-hearing individuals on its websites, in violation of the Americans with Disability Act.
According to the complaint, defendant has chosen to post videos on its website, pauladeen.com, without closed captioning, or with limited closed captioning, that renders the videos inaccessible to deaf and hard-of-hearing individuals. “Without closed captioning, deaf and hard-of-hearing people cannot comprehend the audio portion of the videos on the Website,” the complaint states.
Plaintiff says in her lawsuit that she was interested in learning about the chef Paula Deen and her Southern style of cooking. However, despite visiting the Paula Deen website on numerous occasions to watch videos from defendant’s TV shows, plaintiff says she was unable to fully enjoy the content because of the lack of closed captioning. This lack, plaintiff contends, “means that deaf and hard-of-hearing people are excluded from the rapidly expanding Internet media industry and from independently accessing videos posted on the Website.”
February 8, 2023 – Antitrust
Technology Co. RealPage Accused of Operating Real Estate ‘Cartel’
RealPage Inc., a technology company specializing in property management software, permitted landlords to use its software to operate a cartel that artificially inflated the prices of multifamily residential real estate to above-competitive levels, according to a proposed class action filed in San Diego federal court.
The plaintiffs, five California residents, filed their lawsuit against RealPage and nine top rental management firms, alleging violations of the Sherman Act. Prior to 2016, plaintiffs say, the country’s largest lessors priced their apartments based on how best to compete with other lessors and to keep apartments full.
However, plaintiffs claim in their suit, beginning in 2016 and possibly earlier, RealPage and the apartment managers using its software have operated a cartel, setting prices using RealPage’s algorithm and leaving units vacant as needed to avoid oversupply. RealPage openly boasts that its services balance supply and demand to maximize property managers’ revenue growth, plaintiffs contend. “And that is precisely what RealPage has done, facilitating an agreement among participating Lessors not to compete on price and allowing Lessors to coordinate both pricing and supply through two mutually reinforcing mechanisms in furtherance of their agreed aim of suppressing price competition for multifamily residential real estate leases.”
February 7, 2023 – Defamation
Grandmaster Chess Player Sues Over Cheating Allegations
In St. Louis federal court, a 19-year-old chess grandmaster, Hans Niemann, alleges that a rival chess player and others destroyed his career with false accusations of cheating.
Niemann filed his lawsuit against chess world champion Magnus Carlsen who, according to the complaint, has suggested Niemann cheated during his upset win over Carlsen at the Sinquefield Cup tournament in St. Louis. Niemann is alleging defamation and seeking damages from Carlsen and online chess site Chess.com.
“Despite the falsity of the Defendants’ accusations,” the complaint says, “Defendants’ malicious defamation and unlawful collusion has, by design, destroyed Niemann’s remarkable career in its prime and ruined his life.” Niemann claims in his suit that tournaments have banned him, matches have been canceled and reputable chess schools won’t hire him over the false accusations.
February 6, 2023 – Constitution
Lawsuit Challenges Illinois Ban on Semiautomatic Weapons
Illinois’ recent ban on semiautomatic weapons outlaws “ubiquitous” firearms in defiance of the U.S. Constitution’s Second Amendment, according to a lawsuit filed in federal court in Benton, Ill.
The lead plaintiffs in the suit are joined by two southern Illinois gun dealers and shooting range operators, as well as a Connecticut-based shooting sports trade association. Plaintiffs argue that the U.S. Supreme Court’s landmark 2008 Heller decision refuses to let stand any restrictions on “weapons that are in common use” unless — another Court ruling last summer found — there is evidence of an “enduring American tradition” of restriction.
The Illinois law “takes the radical step of banning nearly every modern semiautomatic rifle — the single-most popular type of rifle in the country, possessed by Americans in the tens of millions,” the complaint says, noting that the 24 million AR-15 semiautomatic rifles in U.S. circulation far outnumber the 16 million Ford F-150 trucks, the nation’s top-selling vehicle.
February 3, 2023 – Product Liability
L’Oreal’s Hair Straighteners Said to Cause Woman’s Cancer
L’Oreal SA has been sued in Chicago federal court by a woman who alleges she developed uterine cancer as a result of using the cosmetic company’s hair-straightening products.
The plaintiff, who is Black, says in her lawsuit that she was diagnosed with uterine cancer in 2018, after using L’Oreal’s products since about 2000, when she was 10. She is asking the court to order L’Oreal to pay unspecified money damages and to pay for medical monitoring.
Under the regulatory framework in the United States, the complaint says, it is incumbent upon the manufacturers of cosmetic products to assess the safety of their products and to warn consumers anytime a health hazard is identified. “Here, a wealth of scientific information is available regarding long-term use of hair relaxers, straighteners, and hair dyes as containing certain endocrine-disrupting chemicals, which should have alerted manufacturers of these products to the specific and dangerous harms associated with their products when used as intended, particularly in women of color.”
February 2, 2023 – Privacy
Texas Accuses Google of Collecting Biometric Data Without Consent
The office of Texas State Attorney General Ken Paxton has filed a lawsuit against Google over the company’s alleged years-long practice of capturing and using biometric data from “millions of Texans without properly obtaining their informed consent to do so.”
In the lawsuit, the attorney general argues that Google used features in its Photos and Assistant apps, as well as through Nest Hub Max hardware, to scan and store facial and voice data without first acquiring user consent, in violation of the state’s Capture or Use of Biometric Identifier Act of 2009. Furthermore, the AG alleges, Google then leveraged that data for commercial gain by using it to train the company’s machine learning algorithms.
“Google has now spent years unlawfully capturing the faces and voices of both nonconsenting users and nonusers throughout Texas — including our children and grandparents — who simply have no idea that their biometric information is being mined for profit by a global corporation,” according to the complaint, which was filed in state district court in Midland County, Texas.
February 1, 2023 – Consumer Fraud
Evian Falsely Claims Bottles Are Carbon Neutral, Lawsuit Alleges
Danone Waters of America falsely labels the plastic bottles for its Evian brand of bottled water as carbon neutral, alleges a proposed class action filed in federal court in White Plains, N.Y.
In her suit, plaintiff claims that the Evian water bottles are not actually carbon neutral because carbon dioxide is released into the atmosphere during the manufacturing process for them.
Plaintiff also argues that defendant cannot say that it offsets the carbon emissions produced during the manufacturing process, since the organizations it works with for carbon credits allegedly “do not currently or actually” reduce CO2 emissions. “Accordingly, even under the ‘carbon offset’ definition of ‘carbon neutral,’ Defendant’s claim is still false,” plaintiff says.
January 31, 2023 – Intellectual Property
Skechers Claims Hermès Is Infringing on Its Shoe Soles Patents
In Manhattan federal court, Skechers U.S.A. Inc. has sued French luxury fashion house Hermès International, alleging two brands of Hermès sneakers infringe on Skechers’ design patents.
Hermès’ Eclair and Envol shoe designs violate Skechers’ patent rights for the “Massage Fit” soles in its “Go Walk” walking shoes, according to the complaint.
Skechers has earned its reputation as a world leader in designing cutting-edge footwear, the complaint says, with the company spending tens of millions of dollars in researching and developing its proprietary line of shoe designs. “These ornamental designs are embodied in the highly successful Skechers Go Walk series featuring the Massage Fit sole and various other Skechers styles.” Defendant has infringed plaintiff’s patents by offering for sale shoes that embody the inventions disclosed in these design patents, Skechers alleges.
January 30, 2023 – Antitrust
Justice Department Sues Google, Alleging Monopolizing of Digital Advertising
Through serial acquisitions and anticompetitive auction manipulation, Google subverted competition in internet advertising technologies, the U.S. Department of Justice (DOJ) claims in a civil action filed in federal court in Alexandria, VA.
In the lawsuit, DOJ — along with the attorneys general of California, Colorado, Connecticut, New Jersey, New York, Rhode Island, Tennessee, and Virginia — claims that Google’s anticompetitive behavior in monopolizing multiple digital advertising technology products constitutes a violation of Sections 1 and 2 of the Sherman Act.
The DOJ complaint alleges that over the past 15 years, Google has engaged in a course of anticompetitive and exclusionary conduct that consisted of neutralizing or eliminating ad tech competitors through acquisitions; wielding its dominance across digital advertising markets to force more publishers and advertisers to use its products; and thwarting the ability to use competing products. In doing so, the complaint says, Google has cemented its dominance in tools relied on by website publishers and online advertisers, as well as the digital advertising exchange that runs ad auctions.
January 28, 2023 – Consumer Fraud
Amazon Fails to Deliver on Prime Membership Timeframes, Class Action Alleges
Amazon.com misrepresents the benefits of its Prime paid membership, advertising one-or-two-day delivery timeframes that it doesn’t adhere to, claims a proposed class action filed in San Diego federal court.
Plaintiffs contend in their lawsuit that when Amazon users become Amazon Prime members, they do so with the understanding that one of the main benefits of membership is faster shipping, with consumers promised to receive their products within two days. However, plaintiffs say, Amazon Prime members often don’t receive their orders within this schedule.
Amazon’s “deceptive marketing tactics” play out in two ways, according to the complaint. The first is when a package simply doesn’t arrive in time, even though it was advertised as being eligible for same-day or two-day shipping. The second is when Amazon switches the delivery date midway through the shipment, once the product is already on its way. Plaintiffs seek certification of the class action and restitution of their membership fees.
January 27, 2023 – Product Liability
Class Action Says Baby Food Containing Heavy Metals Sold at Grocery Chains
A proposed class action filed against Kroger, Harris Teeter and other major retailers alleges that parents were sold baby food containing heavy metals that may increase the risk of autism, ADHD and other developmental problems.
The lawsuit, filed in federal court in Cincinnati, Ohio, claims that defendants sold “Simple Truth Organic Rice Rusks Baby Teething Wafers,” which had “dangerous” levels of arsenic, lead, cadmium and mercury. In their suit, plaintiffs say that in purchasing the product they reasonably trusted defendants to sell baby food that is safe, nutritious and free from harmful toxins.
But in February 2021, according to the complaint, Congress released a report that exposed many of the largest name brand baby food manufacturers of “knowingly concealing dangerous levels of contamination in ingredients directly used in the production of their baby food products.” The report, the complaint says, establishes a causative relationship between exposure to heavy metals — including arsenic, lead, cadmium and mercury — and severe, lasting impacts on babies and young children, the impacts including “permanent decreases in IQ, diminished future economic productivity, and increased risk of future criminal and antisocial behavior.”
January 26, 2023 – Labor & Employment
Dating App ‘Snack’ Accused of Discriminating Against Singles Older Than 35
A proposed class action filed in federal court in Sacramento, Calif., accuses the owner of dating app “Snack” of age discrimination because it won’t allow singles older than 35 to sign up.
Plaintiff, 37 years old, alleges that Snack’s refusal to let him join violates the California Unruh Civil Rights Act (UCRA), which prohibits businesses from discriminating against customers based on their race, sex, religion, and other protected categories. When he tried to sign up after entering his age and other personal information, plaintiff says he got a screen that said “100% of snack are under 35” and “looks like you’re past our sell-by date.”
Snack, according to the complaint, has been described as the TikTok for dating, aimed at younger singles to connect by way of videos instead of the profiles with still pictures on more traditional dating sites. The company has stated, the complaint says, that the purpose of watching the videos on Snack forces users to be more intentional about the decisions they are making as opposed to the “low intent” of swiping on a photo as they would on Tinder or Match. Still, by refusing plaintiff access to the full advantages and services of the Snack application due to his age, defendant has violated the UCRA, the complaint argues.
January 25, 2023 – Securities
CFTC Files Suit Against Digitex Over Digital Asset Derivatives Trading Platform
The Commodity Futures Trading Commission has filed a lawsuit against Digitex LLC and related entities in Miami federal court, alleging that the company operated an illegal digital-asset-derivatives trading platform through a common enterprise of corporate entities, in violation of the Commodity Exchange Act and other commission regulations.
The web-based exchange platform, the complaint says, “accepted customer funds as margin and matched customer orders for digital asset derivatives such as bitcoin futures contracts and ether [cryptocurrency] futures contracts.” And due to the nature of these operations, the complaint argues, Digitex was required by CFTC regulations to register as either a designated contract market or a foreign board of trade.
The CFTC says in its suit that Digitex was also required to register as a futures commission merchant and comply with provisions of the Bank Secrecy Act (BSA). Despite all of these requirements, the CFTC says, the defendant remains unregistered with the commission and has yet to comply with the necessary provisions of the BSA. The complaint cites violations for fraud and manipulation by deceptive device or contrivance, execution of futures transactions on an unregistered board of trade, failure to register as a futures commission merchant, failure to implement customer information programs, and failure to implement know your customer and anti-money laundering procedures.
January 24, 2023 – Intellectual Property
Textile Designer Alleges Zulily Copied Plaintiff’s Artwork
In Los Angeles federal court, EKB Textiles accuses e-commerce company Zulily LLC of copyright infringement.
The artwork in question, the complaint says, involves a two-dimensional design that plaintiff has widely disseminated to multiple groups in the fashion and apparel industry.
The complaint also notes that this is not the first instance of the defendant’s copyright infringement; in November 2020, plaintiff sent a cease-and-desist letter to defendant regarding a similar case of illicit reproduction of plaintiff’s design. In his lawsuit, plaintiff seeks an injunction preventing further infringement and an award of damages and other relief.
January 23, 2023 – Cybersecurity
Samsung Accused of “Cavalier’ Security Measures Before Data Breach
Samsung Electronics of America Inc. faces a proposed class action over its “cavalier approach” to cybersecurity by allegedly failing to safeguard unencrypted servers, which resulted in hackers possibly stealing the information of hundreds of thousands of people in a data breach earlier this year.
According to the complaint filed in federal court in Tampa, Fla., plaintiff brings this action on behalf of those whose personal and non-public information, including name, contact and demographic information, date of birth, and product registration information were compromised in a “massive security breach” of defendant’s computer servers that was allegedly discovered on August 4, 2022, but not disclosed until a month later.
Plaintiff alleges in his lawsuit that Samsung “failed to take reasonable steps to employ adequate security measures or to properly protect sensitive Personally Identifiable Information” despite well-publicized data breaches at large national retail and restaurant chains in recent years, including Arby’s, Wendy’s, Target, Chipotle, Home Depot, P.F. Chang’s, and Kmart. In spite of these high-profile data breaches, plaintiff says, defendant failed to implement basic security measures such as a firewall, encryption, and other standard data management practices to prevent unauthorized access to personal information.
January 20, 2023 – Environment
Coal-fired Power Plants in Texas Exceeding Pollution Limits, Lawsuit Claims
The U.S. Environmental Protection Agency is allowing eight Texas coal-fired power plants to avoid pollution controls by failing to act on a request to amend the state’s plans for pollution reduction, environmental groups allege in a suit filed in federal court in the District of Columbia.
The environmental groups — the Sierra Club and the Environmental Integrity Project — say in their suit that EPA’s inaction is allowing the power plants to bypass controls for particulate matter emissions for hundreds or thousands of hours a year of operation during shutdown, startup, and maintenance procedures.
The groups are seeking to force the EPA to make a decision on a 2020 request submitted by Texas to amend its State Implementation Plan for the National Ambient Air Quality Standards that would allow pollution controls to not apply during shutdown, startup, and maintenance. By failing to approve or reject the request as required by the Clean Air Act, the groups say the EPA is in effect letting the coal plants operate under unsanctioned and less protective standards.
January 19, 2023 – Labor & Employment
Fired Female Associate at Major Law Firm Alleges Biased Treatment
Male associates in the intellectual property litigation group at Kirkland & Ellis, the largest law firm in the world by revenue, were allegedly treated better and paid more money than a fired female colleague, even though she did similar work and had similar experience, according to a lawsuit filed in San Francisco federal court.
In her suit, plaintiff alleges that two IP partners “led a discriminatory cadre of Kirkland’s IP litigation group” whose disparate treatment of female associates produced “an alarmingly high turnover of female associates relative to male associates.” Within her tenure of less than a year at the firm, plaintiff claims, seven female associates left her litigation group, compared with only one male associate who left during that time.
Plaintiff “experienced a clear discrepancy in treatment” with respect to “workload, support provided for assignments, access to partners, benefits and overall treatment,” the complaint says, adding that plaintiff was fired after complaining about disparate treatment. Negative evaluations of her work were defamatory and a pretext for her firing, plaintiff argues.
January 18, 2023 – Privacy
Chase Bank Faces Calif. Biometric Privacy Software Suit
JPMorgan Chase Bank has been accused in a proposed class action of using anti-fraud software to eavesdrop on private phone conversations and record and analyze customers’ voices without their consent.
Chase Bank utilizes a software technology that activates when the bank’s customers in California and across the nation call to receive support, according to the complaint filed in federal court in Oakland, Calif. This technology, the complaint says, authenticates customers without prompting them to enter passwords or PINs. Rather, the technology analyzes callers’ environments, their behavior, and other factors to passively authenticate them as they speak on the phone with the bank’s contact center.
Plaintiff alleges in his lawsuit that the Chase Bank contact center’s implementation of this technology records and examines customers’ voice prints and other voice stress patterns to ascertain the truth or falsity of statements that callers make, and that they are who they say they are. However, plaintiff says, defendant never procured the express consent — written or otherwise — of any person who interacted with the contact center, prior to recording and examining voice prints or other voice stress patterns, and thus have failed to comply with requirements of the California Invasion of Privacy Act.
January 17, 2023 – Trade Secrets
Cosmetics Company Sues Chinese Supplier for Theft of Trade Secrets
GeLab Cosmetics LLC has filed a lawsuit in Chicago federal court alleging that its Chinese supplier, Zhuhai Aobo Cosmetics Co., took advantage of a business relationship to create knockoff versions of plaintiff’s nail gel.
In its suit, plaintiff GeLab describes itself as “a cosmetic company that has “put both time and resources into developing cutting-edge, distinguished products.” According to the complaint, defendant Aobo became GeLab’s supplier through a purchase agreement that detailed contractual terms restricting the ways in which Aobo would be able to use and disclose information about plaintiff’s product.
Specifically, the complaint says, “Aobo promised not to use or permit anyone else to use GeLab’s proprietary work or information against GeLab’s interests, including by making a derivative product to compete with GeLab.” Instead of abiding by the contractual terms, plaintiff claims, defendant used GeLab’s confidential and proprietary trade secrets to develop and market competing products, including engaging in direct competition with plaintiff by marketing products identical to GeLab’s on Amazon.
January 13, 2023 – Consumer Fraud
Walmart Accused of Falsely Advertising Its Great Value Veggie Straws
Walmart falsely advertises its Great Value Veggie Straws as containing no artificial flavors or preservatives, claims a proposed class action filed in federal court in Ocala, Fla.
The label on the Great Value Veggie Straws prominently states “No Artificial Flavors or Preservatives,” according to the complaint, but in fact the product contains malic acid, an artificial flavor enhancer, and citric acid, a chemical preservative. Plaintiff in his lawsuit points to the U.S. Food & Drug Administration’s definition of a chemical preservative as a substance that “tends” to prevent or slow the deterioration of foods. The citric acid in the Great Value Veggie Straws functions as a chemical preservative, plaintiff argues.
Additionally, plaintiff says, the Great Value Veggie Straws contain malic acid, which “imparts and contributes to the tangy, sweet and sour ranch flavor.” The malic acid is manufactured in petrochemical plants from benzene or butane through “a series of chemical reactions involving highly toxic chemical precursors and byproducts,” plaintiff says.
January 12, 2023 – Product Liability
LG Class Action Says Company Sold Defective Ranges
A proposed class action filed in federal court in Newark, N.J., alleges that some ranges manufactured by LG Electronics Inc. have defective knobs that turn on unintentionally and can cause fires at peoples’ homes.
According to the complaint, LG makes electric ranges that on some models include dangerous defects in the design of their front-mounted burner control knobs, making them susceptible to unintentional activation.
On these ranges, the complaint says, the control knobs are prone to depress and rotate as a result of minor, inadvertent contact; and when the knobs on the ranges are inadvertently contacted, they activate without warning to the consumer. “This unintentional activation of the Ranges’ cooktops in turn creates a hazardous condition and serious risk of fire, property damage, and personal injury,” plaintiff claims in his lawsuit, adding that LG has known about the issue since 2021 but concealed it from consumers.
January 11, 2023 – Privacy
Charles Schwab Hit With Lawsuit Over Voice Print ID System
The Charles Schwab Corp. recorded, stored and used callers’ biometric voice prints without their consent in violation of the California Invasion of Privacy Act (CIPA), according to a proposed class action filed in federal court in San Diego, Calif.
Charles Schwab, the complaint says, has developed software that creates a biometric voice print of each caller, allowing it to analyze the callers’ voice prints to determine the truth or falsity of their statements. While defendant claims that consumers must enroll in the Schwab voice ID service, plaintiff alleges in his suit that defendant performs the same or similar voice examinations on anyone who calls it.
Defendant does not obtain “express written consent” from any callers before examining and analyzing their voices, plaintiff contends, adding that even those who enroll in the voice ID service do it verbally over the phone, which does not satisfy the CIPA requirement of express written consent.
January 10, 2023 – Antitrust
FTC Accuses Pesticide Manufacturers Syngenta and Corteva of ‘Pay-to-Block Scheme’
The U.S. Federal Trade Commission and a coalition of 10 state attorneys general have filed a lawsuit against pesticide manufacturers Syngenta Crop Protection and Corteva Inc. for allegedly paying distributors to block competitors from selling their cheaper generic products to farmers.
The complaint alleges that Syngenta and Corteva, two of the largest pesticide manufactures in the U.S., run so-called “loyalty programs” in which distributors only get paid if they limit business with competing manufacturers. Cutting off competition has allowed the defendants to inflate their prices and force American farmers to spend millions of dollars more for their products, the FTC claims in its suit filed in federal court in Greensboro, N.C.
When a company creates a new pesticide, the complaint says, it can patent that invention, preventing anyone else from selling it for 20 years. Ordinarily, when the patent expires, generic versions of the product enter the market to compete with the original brand-name version, and the price typically comes down. However, the FTC argues, defendants take illegal steps to stop generic pesticides from eating into their monopoly profits by setting up “loyalty” programs in which they make payments to distributors — as long as the distributors keep their purchases of competing generic pesticides beneath a very low threshold.
January 9, 2023 – Labor & Employment
EEOC Sues Walgreens for Denying Leave to Pregnant Worker Who Miscarried
The Equal Employment Opportunity Commission has sued Walgreen Co. for allegedly refusing to allow a pregnant, diabetic retail worker in Louisiana to take emergency medical leave, forcing her to quit hours before she miscarried.
The EEOC filed its lawsuit in federal court in Alexandria, La., claiming a manager in December 2020 told the worker she had asked for “too many accommodations” and could not leave to see her doctor unless she found a replacement.
Walgreen’s action, the EEOC alleges, violated the federal Pregnancy Discrimination Act (PDA) and the Americans with Disabilities Act by refusing to grant plaintiff a reasonable accommodation related to her pregnancy and disability. According to the complaint, the U.S. Supreme Court in 2015 ruled that the PDA requires employers to grant pregnant workers the same accommodations that they give to employees who are injured or disabled.
January 6, 2023 – ERISA
Quanta Services Employees File Class Action Over 401(k) Funds
Electric power contractor Quanta Services Inc. has been sued in Houston federal court by two former employees who say their $1.2 billion 401(k) plan offers inappropriate and risky target date funds as the default investment option.
The lawsuit focuses on a suite of actively managed target date funds (where the balance of assets shifts over time) from Fidelity, which is not named as a defendant. These funds, the complaint says, are both too risky for the average retirement investor and “dramatically more expensive” than a similar suite of passively managed funds offered by the same company.
In his suit, plaintiff argues that in selecting the risky and expensive 401(k) plan, defendants have breached their fiduciary duties to participants in the plan, in violation of the Employee Retirement Income Security Act. Defendants selected high-cost and poorly performing investments instead of offering more prudent alternative investments that were readily available at the time, plaintiff alleges, adding that defendants’ breaches were the direct cause of the losses suffered by plaintiff and the proposed class.
January 5, 2023 – Consumer Fraud
Class Action Alleges Tesla Falsely Advertised Its ‘Autopilot’ Abilities
Plaintiff claims in a proposed class action that Tesla misled consumers by falsely advertising the abilities of its advanced driver assistance — “autopilot” — technologies.
Tesla has deceived consumers regarding the current abilities of its autopilot technology by representing that it was “perpetually on the cusp of perfecting that technology and finally fulfilling its promise of producing a fully self-driving car,” according to the complaint filed in federal court in Central Islip, N.Y. Although these promises have proven false time and time again, the complaint says, Tesla and its CEO Elon Musk “have continued making them to generate media attention, to deceive consumers into believing it has unrivaled cutting-edge technology, and to establish itself as a leading player in the fast-growing electric vehicle market.”
Plaintiff contends in his lawsuit that Tesla, despite portraying itself as a leader in autonomous vehicle technology, has in fact “been surpassed by numerous automaker competitors that have developed autonomous driving technology far more advanced than Tesla’s. Former Tesla employees and investigations have revealed “damning information that now makes clear that, contrary to Tesla’s repeated promises that it would have a fully self-driving car within months or a year, Tesla has never been remotely close to achieving that goal,” plaintiff says.
January 4 2023 – Securities
Organ Transplant Company Accused in Investor Suit Following SEC Investigation
A shareholder suit filed in San Francisco federal court against CareDx Inc. and each member of its board of directors alleges that the medical diagnostics company violated securities laws by failing to disclose illegal schemes that had been used to inflate testing services revenue.
CareDx is a “diagnostics company that provides services and products to the organ transplant recipient community, offering diagnostic testing services, products, and digital healthcare software for transplant patients and care providers,” according to the complaint. Through their services, the complaint says, CareDx allows clinicians to determine effective treatments for organ transplant recipients.
In February 2021, the complaint says, CareDx reported a 51% year-over-year increase in total revenue, which the company attributed to their testing services sector. Plaintiff alleges in his suit that defendant board members “caused the company to issue materially false and misleading statements regarding testing services.” Specifically, plaintiff contends, the board of directors failed to disclose the improper and illegal schemes that had been used to inflate testing services revenue, including offering inducements or kickbacks to physicians and improperly billing certain testing services as part of others.
January 3, 2023 – Product Liability
Hershey’s Dark Chocolate Said to Contain Toxic Levels of Lead, Cadmium
A proposed class action filed in federal court in Brooklyn, N.Y., alleges Hershey’s failed to disclose the health risks associated with many of the company’s dark chocolate products that contained toxic levels of lead and cadmium.
According to the complaint, the Hershey Company knew or should have known — due to its exclusive knowledge of ingredient sourcing and quality control testing data — that its Hershey’s Special Dark Mildly Sweet Chocolate, Lily’s Extra Dark Chocolate 70% Cocoa, and Lily’s Extreme Dark Chocolate 85% Cocoa contained elevated levels of lead and cadmium. Even exposure to low levels of these toxic metals, the complaint says, can cause serious health issues.
Plaintiff claims in his lawsuit that rather than properly testing the products for excessive levels of potentially harmful and toxic heavy metals before offering the products to consumers, Hershey’s charged a premium for its products and put profits before consumer safety. In marketing its products, plaintiff says, defendant failed to provide adequate warnings or include lead and cadmium as ingredients on the products nutrition labels, which consumers rely on to make safe choices.
January 2, 2023 – Privacy
Facebook Unlawfully Monitors Private Browsing Activity, Lawsuit Claims
Meta Platforms Inc., the parent company of Facebook and Instagram, has been hit with a proposed class action alleging it intercepts, monitors and records users’ browsing activity and communications without their consent.
Plaintiffs filed their lawsuit in San Francisco federal court, claiming Meta tracked and intercepted their browsing activity and private communications with third-party websites without their knowledge or consent, in violation of the federal Wiretap Act and the California Invasion of Privacy Act. Plaintiffs claim in their suit that they believed their communications, which allegedly include text entries, passwords and other personally identifiable information, were private and would not be intercepted by Meta.
Meta’s business strategy, the complaint says, involves collecting ad revenue and engaging in data mining for profit. When a Facebook app user clicks on a link to an external website, Meta reroutes the user to an in-app web browser instead of the device’s default web browser, which enables Meta to monitor the user’s interactions while evading Apple iOS privacy controls. Meta does not notify Facebook users about this tracking activity, which it also allegedly imposes on users who have opted out of being tracked, plaintiffs say.