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.
December 23, 2022 – Intellectual Property
Google Accused of Trademark Infringement by Analytics Platform Visier
HR analytics software company Visier Inc. has sued Google LLC for trademark infringement in San Francisco federal court, alleging Google’s Vizier machine-learning software is likely to confuse potential consumers.
In its lawsuit, Visier argues that the similarity of the companies’ names and products — Visier for plaintiff and Vizier for defendant — could mislead consumers into thinking that Google’s software uses Visier’s technology, or that Visier is “simply reselling or repackaging Google technology.”
According to the complaint, Visier’s “people analytics” platform takes data and “applies cutting-edge machine learning algorithms to deliver insightful predictions.” Visier asked the court for an unspecified amount of money damages and an order blocking Google from using the Vizier name.
December 22, 2022 – Consumer Fraud
Ovulation Test Kits Allegedly Marketed With Deceptive Claims
In Brooklyn federal court, manufacturers and sellers of several popular ovulation test kits are accused in a proposed class action of making false and misleading claims about the products, which allegedly fail to actually test whether a woman is ovulating.
The complaint asserts that multiple brands of ovulation test kits sold by Abbott Laboratories, Procter & Gamble, Target, Walmart, CVS and others are promoted with claims intended to deceive customers into purchasing the kits to determine when they are ovulating and most likely to become pregnant. However, the complaint says, defendants falsely claim that the kits test for ovulating, when they actually only test Luteinizing Hormone (LH) levels, which can spike at varying times during the menstrual cycle for a variety of reasons other than ovulation.
According to the complaint, ovulation test kits are falsely advertised with statements that suggest they provide “99% or greater accuracy,” with plaintiffs alleging that the “intentional misrepresentations” are made to capitalize on women trying to become pregnant. LH levels, the complaint says, generally rise quickly just before ovulation in women. However, these hormones are also present in varying levels for people of all genders and do not necessarily mean someone is ovulating.
December 21, 2022 – Defamation
Nicki Minaj Claims Defamation for Being Called a ‘Cokehead’
Rapper Nicki Minaj alleges in Manhattan federal court that she was defamed on social media by being called a “cokehead” who is “shoving all this cocaine up her nose.”
Defendant, a woman who goes by the Twitter name “Nosey Heaux,” has “falsely and maliciously” called plaintiff a cokehead, according to the complaint. In a different age, the complaint says, defendant’s lie would have been meaningless “because she is the ultimate ‘nobody’ but she is a nobody who has approximately 3,300 followers on Twitter.”
Minaj says in her lawsuit that in just a day following defendant’s September 12, 2022, publication of the cokehead claim, almost 2,000 people had “liked” it. More importantly, more than 260 people had retweeted it, “which led to a firestorm of social media attention which was undoubtedly caused by multiple levels of subsequent retweets.” While social media is an extraordinarily effective vehicle for spreading lies, Minaj says, it does not confer a license to do so.
December 20, 2022 – Product Liability
Class Action Says Mercedes-Benz Batteries Drain ‘Rapidly and Unexpectedly’
In a proposed class action filed in federal court in Newark, N.J., plaintiffs claim that a large number of Mercedes-Benz vehicles made between 2004 and 2022 have a “defect that causes the batteries in the vehicles to drain rapidly and unexpectedly.”
The defect causes the battery to suddenly drain, preventing the car from starting, potentially stranding the occupants and endangering their safety, according to the complaint. As a result of the defect, the complaint says, the cars are unsafe, unreliable and undesirable.
Based on customer complaints, repair data and other internal sources, Mercedes knew or should have known about the existence of the defect and its consequences, plaintiffs allege in their lawsuit. “Nevertheless, Mercedes has never offered to repair the Electrical Drain Defect or otherwise compensate Class Members for their injuries resulting from the defect which it has not repaired.”
December 19, 2022 – Privacy
CNN Accused of Unlawfully Sharing Digital Subscriber Data With Facebook
CNN.com shares its digital subscribers’ personal video viewing information with Facebook in violation of the Video Privacy Protection Act (VPPA), alleges a proposed class action filed in Chicago federal court.
Plaintiff claims in her suit that CNN’s parent company, Warner Bros. Discovery, violates VPPA by disclosing its digital subscribers’ identities and video viewing habits to Facebook without proper subscribers’ consent. The VPPA, according to the complaint, prohibits video providers such as CNN.com from knowingly disclosing consumers’ personally identifiable information to third parties without express consent.
Through a Facebook pixel code installed on CNN.com, the complaint says, the company has been tracking when digital subscribers enter CNN.com and view video media and sharing that information with Facebook. “Put simply,” plaintiff argues, “the pixel allows Facebook to know what Video Media one of its users viewed on CNN.com. Thus, without telling its digital subscribers, Defendant profits handsomely from its unauthorized disclosure of its digital subscribers’ Personal Viewing Information to Facebook.”
December 16, 2022 – Consumer Fraud
Pyrex Measuring Cups Falsely Advertised as ‘Dishwasher Safe,’ Lawsuit Claims
In Chicago federal court, a proposed class action alleges that Pyrex measuring cups are not worth the money consumers pay for them because the red measuring lines wash off easily in a dishwasher, rendering them useless.
Plaintiff filed her suit against Instant Brands, which manufactures and markets the product. The ads for the measuring cups, plaintiff says, inform consumers that the product is “dishwasher safe”— the ads appearing both on the company website and on the websites of the retailers who stock the product.
“However, the Product is not dishwasher safe because the measurement markings fade and disappear when the cups are washed in a dishwasher,” plaintiff claims in her suit, adding that “According to hundreds of customer complaints, the markings can often disappear in as little as one wash.”
December 15, 2022 – Constitution
Texas A&M Said to Engage in Illegal Affirmative Action
A finance professor at Texas A&M University claims in a proposed class action filed in Houston federal court that the university has an unconstitutional policy of hiring female and non-Asian minority professors over white and Asian men.
Federal law, the complaint says, prohibits universities that accept federal funds from discriminating on account of race or sex, and Texas A&M is “flouting these requirements by using race and sex preferences in faculty hiring and compensation — a practice that violates the clear and unequivocal text of Title VI and Title IX [of the civil rights laws], as well as the Equal Protection Clause of the Fourteenth Amendment.”
Plaintiff alleges in his lawsuit that Texas A&M, along with nearly every university in the United States, discriminates on account of race and sex when hiring its faculty, by giving discriminatory preferences to female or non-Asian minorities at the expense of white and Asian men. “This practice, popularly known as ‘affirmative action,’ has led universities to hire and promote inferior faculty candidates over individuals with better scholarship, better credentials, and better teaching ability,” plaintiff argues, saying that Texas A&M’s affirmative action policies bar him from getting a faculty job because he is white.
December 14, 2022 – Product Liability
Tracpatch Health Faces Lawsuit Over Alleged Defective Hip Replacement
Plaintiff alleges that Tracpatch Health Inc. developed and serviced him with a hip replacement device that was defective and unreasonably dangerous, in a suit filed in federal court in Jacksonville, Fla.
In his suit, plaintiff says he selected Tracpatch’s product, the Consensus Hip System, as replacement for his damaged natural hip. The consensus hip system, according to the complaint, was cleared by the Food & Drug Administration under Section 510(k) of the Food, Drug, & Cosmetic Act, meaning that it did not have to go through any clinical study to gain clearance — a pathway that “allows devices to avoid clinical study and any testing for safety or efficacy.”
Defendant should have known that this pathway did not adequately assess the efficacy and safety of its product, plaintiff argues. Once the hip system was implanted, it withered and fell apart, which resulted in heavy metal poisoning and “ultimately the total failure of the implant,” plaintiff claims.
December 13, 2022 – Disability Act
People With Disabilities Sue Over Homeless Use of Portland Sidewalks
People with disabilities in Portland, Ore., have sued the city in federal court there, saying they can’t navigate city sidewalks because of sprawling homeless encampments.
The proposed class action alleges the city has violated the Americans with Disabilities Act by allowing homeless peoples’ tents to block city sidewalks, making use of the pedestrian walkways difficult for people using wheelchairs, walkers or canes. A substantial number of the city’s sidewalks, the complaint says, are blocked by tent encampments and attendant debris, “rendering the sidewalks inaccessible, dangerous, and unsanitary for people with mobility disabilities.”
The lawsuit seeks to require the city to clear all sidewalks of tent encampments and debris, and to “construct, purchase, or otherwise provide for emergency shelters in which to house the unsheltered persons” who may be affected. About 13% of Portlanders live with a disability, according to the complaint, including 6% with mobility impairments and 2.4% with visual impairments.
December 12, 2022 – Cybersecurity
Samsung Hit With Lawsuit Over Consumer Data Breach
Samsung Electronics America Inc. failed to protect the private information of thousands of people whose information was stolen in an August 2022 cyberattack, alleges a proposed class action filed in federal court in Las Vegas, Nev.
Plaintiff says in his suit that the cyberattack occurred on or around August 4, and Samsung customers weren’t notified until nearly a month later. Personal information stolen in the attack, plaintiff claims, included names, contact and demographic information, date of birth, and product-registration data.
As a result of Samsung’s negligence, the complaint states, plaintiff and the proposed class members were harmed and forced to take remedial steps to protect themselves from future loss. “Indeed, Plaintiff and all of the Class Members are currently at a very high risk of misuse of their Private Information in the coming months and years, including but not limited to unauthorized credit card charges, unauthorized access to email accounts, identity theft, and other fraudulent use of their financial accounts,” according to the complaint.
December 9, 2022 – Intellectual Property
Meta Faces Trademark Infringement Suit by Investment Firm Metacapital
Investment firm Metacapital Management LP has sued Meta Platforms Inc., the parent company of Facebook, alleging Meta’s use of the Meta name to provide financial services would cause customer confusion and violate plaintiff’s trademarks.
According to the complaint filed in Manhattan federal court, Meta Platforms rebranded from Facebook in October 2021 to reflect its focus on the metaverse, a shared virtual realm. It applied to register Meta-related trademarks in January related to a range of financial services, including “investment management services.”
Defendant’s actions are likely to cause confusion among Metacapital’s current and potential customers, the complaint argues, adding that plaintiff sent Meta Platforms a cease-and-desist letter in May, and that the companies have been unable to resolve the dispute outside of court.
December 8, 2022 – Securities
Invisalign Maker’s Ex-Vice President Accused by SEC of Insider Trading
A former vice president at Align Technology Inc. has been accused by the Securities & Exchange Commission of trading on confidential information about the company’s Invisalign teeth straighteners.
Todd C. Doucette, 50, made nearly $349,000 in illegal profits by buying Align shares ahead of company earnings announcements in April 2018 and October 2020, the SEC says in a civil suit filed in federal court in New Hampshire. Align is a publicly traded company that designs and manufactures medical devices for orthodontic and restorative treatment, the complaint says, and Doucette worked at the company from March 2016 to July 2021, most recently serving as vice president of business transformation for the Americas.
In his role, the SEC says, Doucette obtained nonpublic information concerning the financial performance and business operations for Align’s Americas region in advance of the company’s earnings announcement for the first quarter of 2018 and the third quarter of 2020. He learned that Align had exceeded financial expectations for its Americas region. As a senior-level employee of Align, the SEC says, Doucette owed the company a duty of trust and confidence, which explicitly prohibited him from trading on the basis of material, nonpublic information.
December 7, 2022 – Privacy
California Hotel Alleged to Unlawfully Record Cellphone Calls
A Hilton hotel in Santa Monica, Calif., recorded thousands of people’s cellular telephone calls without warning or notification, in violation of California’s Invasion of Privacy Act (CIPA), alleges a proposed class action filed in Los Angeles federal court.
The California State Legislature passed the CIPA in 1967 to protect the right of privacy of the people of California, the complaint says, adding that the act was amended in 1992 due to specific privacy concerns over the increased use of cellular and cordless telephones. The amended act, according to the complaint, “prohibited intentionally recording all communications involving cellular and cordless telephones, not just confidential communications.”
In his suit, plaintiff claims the hotel routinely recorded his calls without providing the required notification. The actions of defendant, plaintiff argues, were “knowing, willful, and intentional, and Defendant did not maintain procedures reasonably adapted to avoid any such violation.”
December 6, 2022 – Product Liability
Tylenol Class Action Filed Over Titanium Dioxide Coloring Side Effects
Johnson & Johnson (J&J) has been accused in a proposed class action of failing to disclose that pain reliever Tylenol contains allegedly harmful food coloring additives, including titanium dioxide that has been linked to toxic side effects.
The complaint, filed in San Diego federal court, claims that J&J fraudulently conceals that Tylenol pills contain titanium dioxide, which can build up in the human body and cause DNA changes and organ damage.
Plaintiff says in her lawsuit that studies have shown titanium dioxide causes pathological lesions of the liver, spleen, kidneys and brain, as well as lung tumors, inflammation, and dysfunction in the kidneys. Yet despite knowledge about the potential toxic effects of titanium dioxide, plaintiff alleges, J&J continues to sell Tylenol Extra Strength, Tylenol Extended Release, Tylenol Cold + Flu Multi-Action, Tylenol Cold + Flu Severe, Tylenol PM, Tylenol Rapid Release Gels, and Tylenol Regular Strength Liquid Gels, without disclosing the health risks to consumers or even indicating that the products contain titanium dioxide.
December 5, 2022 – Consumer Fraud
Gerber Hit With Class Action Over Baby Food Nutrient Claims
Gerber Products Co. faces a proposed class action in San Francisco federal court, accusing the company of misbranding its baby and toddler food products by making overblown nutrient content claims that violate Food & Drug Administration (FDA) rules.
Those misstatements, according to the complaint, lead purchasers into believing Geber baby food provides physical health benefits that in fact it does not. “Intending to profit from parents’ increasing desire to purchase food for their young children that provides physical health benefits,” the complaint says, “Defendant misbrands its baby and toddler food products by making nutrient content claims on the product packages that are strictly prohibited by the FDA.”
“Moreover, the nutrient content claims on Defendant’s products mislead purchasers into believing that the products provide physical health benefits for children under two years of age in order to induce parents into purchasing Defendant’s products,” plaintiff alleges, adding that the products are “harmful both nutritionally and developmentally for children under two.”
December 2, 2022 – Civil Rights
Lawsuit Alleges Pfizer Fellowship Program Discriminates Against Whites, Asian-Americans
In Manhattan federal court, a group of medical professionals that advocates against “radical, divisive, and discriminatory ideology” in healthcare has sued Pfizer Inc., claiming the company runs a fellowship that illegally excludes white and Asian-American applicants.
In its suit, plaintiff Do No Harm characterizes Pfizer’s Breakthrough Fellowship Program as “discriminatory on its face” because only Blacks, Latinos and Native Americans can apply. The program, plaintiff argues, violates Title VI of the 1964 Civil Rights Act, which bans race discrimination in federally funded entities (Pfizer receives government assistance), and Section 1557 of the Affordable Care Act, which bans race discrimination in federally funded health care programs.
Do No Harm consists of two Ivy League students who, according to the complaint, meet the academic requirements for the fellowship but cannot apply because of their race. They are asking the court to block Pfizer from selecting fellows for the 2023 class and to force the fellowship to use race-blind criteria going forward. “Racial discrimination demeans us,” and Pfizer’s “open exclusion of white and Asian-American applicants is illegal,” the complaint says, citing opinions of two conservative Supreme Court justices, Clarence Thomas and the late Antonin Scalia.
December 1, 2022 – Securities
StrongBlock Bilked Crypto Investors Via ‘Lifetime’ Rewards, Lawsuit Claims
Crypto-asset seller StrongBlock promised “lifetime” rewards with the purchase of certain blockchain products but then capped those rewards in a bait and switch, a group of investors allege in a suit filed in Manhattan federal court.
The securities sold by defendant included Strongblock digital or crypto assets known as tokens and nodes, according to the complaint. Strongblock sold nodes to plaintiffs with the promise those nodes would provide daily, uncapped token rewards in perpetuity, the complaint says. However, defendant “pulled the rug out from under every node holder by arbitrarily and unilaterally capping in April 2022 the cumulative rewards that could be generated by an individual node, without notice and in contravention to their own express statements that node rewards would never go to zero”
Plaintiffs argue in their suit that StrongBlock’s blockchain crypto-assets, unlike decentralized commodities based on blockchain, “are similar to traditional securities in that they represent one’s investment in a project that is to be undertaken with the funds raised through the sale of the tokens and more specifically here, nodes.” But despite the fact that the Strongblock tokens and nodes are securities, plaintiffs say, none of them are registered with the Securities & Exchange Commission, with the result that purchasers did not have access to disclosures that accompany the issuances of traditional securities.