September 30, 2022 – Antitrust
Class Action Says Amazon’s Illegal Price-Fixing Inflates Consumer Prices
In a proposed class action filed in Seattle federal court, plaintiffs allege Amazon.com has anticompetitive minimum margin agreements with its suppliers that are in place to prevent other online retailers from offering the same product at a lower price.
Plaintiffs contend in their suit that Amazon is restraining competition from its rivals and, in doing so, artificially raising the online retail price for thousands of brands that it sells. “Instead of Amazon risking its own profit margins to compete with its retail rivals on price, Amazon contractually shifts that risk to its suppliers,” the complaint says. Plaintiffs seek to represent a class of consumers who purchased a product from Amazon that was subject to a minimum margin agreement since July 13, 2018.
The minimum margin agreements in place between Amazon and its suppliers guarantee that the defendant will “be able to price the supplier’s product competitively against other online competition at least 95% of the time,” plaintiffs argue. Further, they say, the agreement allows Amazon to receive a minimum margin for each sale that is made, regardless of the actual price the product is ultimately sold at for retail. “Amazon enforces this agreement by requiring its suppliers to compensate it monthly for any lost margins necessitated by lowering its retail price to match a competitor,” plaintiffs claim.
September 29, 2022 – Intellectual Property
Puma Accuses Brooks of Infringing ‘Nitro’ Running Shoe Trademark
Sportswear maker Puma SE, based in Germany, has sued Berkshire Hathaway’s Brooks Sports Inc. in federal court in Indianapolis, Ind., alleging Brooks’ advertising for sneakers with nitrogen-infused soles violates Puma’s “Nitro” trademark rights.
PUMA has been using its NITRO mark on footwear since at least March 2021, the complaint says, and its NITRO-branded running shoes are currently PUMA’s top-selling running shoes in the U.S. In its lawsuit, Puma also accuses Brooks of violating a design patent by copying the foam-molding technology Puma uses in its Nitro shoes for Brooks’ Aurora BL running shoes.
Puma says it has invested significant energy and resources in promoting its NITRO-branded products, and has developed “substantial and valuable goodwill in its NITRO mark and owns strong common law rights in the NITRO mark across the United States relating to footwear.”
September 28, 2022 – Labor & Employment
Dollar General Managers Misclassified as Salaried, Lawsuit Alleges
Managers at Dollar General stores, the largest discount retailer in the United States with more than 18,200 store locations, are misclassified as salaried workers, exempt from overtime pay, when they should really be hourly and entitled to such pay, two managers allege in a proposed class filed in federal court in Birmingham, Ala.
Plaintiffs claim in their suit that they are entitled to be paid at least one and one-half times their regular pay rates for each hour over forty hours they work during the workweek, as required by the Fair Labor Standards Act (FLSA). But, plaintiffs say, defendant Dollar General refused to pay overtime, saying plaintiffs were “managers” and thus defendant was exempt from the overtime requirement.
But, the complaint says, Dollar General’s store managers hold that position “only in name” and spend the “vast majority” of their work hours on manual labor such as stocking shelves, unloading trucks and cleaning store bathrooms. Thus, the complaint argues, plaintiffs were wrongly classified as salaried managerial workers exempt from FLSA overtime requirements.
September 27, 2022 – Product Liability
Lawsuit Says Anemia Drug Injectafer Caused ‘Dangerously’ Low Levels of Phosphate
Plaintiff claims in Philadelphia federal court that she was not warned by manufacturers of anemia drug Injectafer of the risk of abnormally low phosphate levels caused by the drug.
According to the complaint, Injectafer involves iron infusion treatment for adults with anemia, who are not able to be treated with an oral iron supplement and have non-dialysis dependent chronic kidney disease. Plaintiff alleges in her lawsuit that Injectafer caused her phosphate “to drop to dangerously low levels,” resulting in severe health complications.
Plaintiff says she was prescribed Injectafer in December 2019, after being diagnosed with iron deficiency anemia, and received two injections that month. However, she claims, the Injectafer injections caused her phosphate levels to drop suddenly, resulting in various symptoms including: muscle spasms, muscle fatigue, bone pain, weakness, headaches, lightheadedness, memory loss, and renal phosphate wasting. Defendants in the suit include: Luitpold Pharmaceuticals Inc., American Regent Inc., Daiichi Sankyo Inc., and Vifor International.
September 26, 2022 – Constitution
Gun-Rights Advocates Challenge California Ban on Firearms Marketing to Kids
In Los Angeles federal court, the publisher of a youth shooting magazine and several gun-rights groups have filed a lawsuit challenging a recently enacted California law banning the marketing of guns to minors by manufacturers and others in the firearms industry.
Plaintiffs — including the publisher Junior Sports Magazines Inc. and pro-gun groups including the Second Amendment Foundation — argue that the California law violates their free speech rights under the U.S. Constitution’s First Amendment. The legislation, according to the complaint, cleared the state’s legislature days after the U.S. Supreme Court on June 23, 2022, ruled that the Second Amendment protects a person’s right to carry a handgun in public for self-defense. In their suit, plaintiffs claim the California legislation went too far in abridging their speech rights.
They say it wrongly prohibits the promotion of lawful firearm-related events and impermissibly restricts pro-gun organizations from promoting membership in their groups in ways deemed “attractive to minors.”
September 23, 2022 – Breach of Contract
Meta Sues Company for Scraping Data From Facebook and Instagram
Meta has filed a lawsuit in San Francisco federal court against Octopus Data Inc., alleging that the company offers unlawful data scraping-for-hire services to individuals and companies.
The complaint describes Octopus, which claims to have over one million customers, as the U.S. subsidiary of a Chinese multinational tech firm. Octopus offers scraping services and access to software that customers can use to scrape any website. These activities, the complaint says, violate Meta’s terms of service and the Digital Millennium Copyright Act. For a fee, Octopus customers can launch scraping attacks from their cloud-based platform or hire Octopus to scrape websites directly.
After paying for access to the scraping software, the complaint says, customers self-compromise their Facebook and Instagram accounts by providing Octopus with their authentication information. Octopus designed its software, Meta says, to scrape data accessible to users when logged into their accounts, including data about their Facebook Friends such as email address, phone number, gender and date of birth, as well as Instagram followers and engagement information such as name, user profile, and number of likes and comments per post.
September 22, 2022 – Environment
Conservation Groups File Lawsuit on Behalf of Native Utah Tree Habitats
The Defenders of Wildlife and the Southern Utah Wilderness Alliance have filed a complaint in District of Columbia federal court against the Department of Interior and the Bureau of Land Management over their adoption of the “Pinyon-Juniper Categorical Exclusion Rule” that allegedly would allow for the destruction of native pinyon-juniper tree habitats in Utah without analysis mandated by the National Environmental Policy Act (NEPA).
According to the complaint, the defendants’ exclusion rule amends NEPA protocols by adopting a “categorical exclusion.” If a project falls under this category, the complaint says, no Environmental Impact Statement mandated by NEPA would be required in order to carry the project out. The project in question, plaintiffs say, could destroy up to 10,000 acres of “pinyon pine and juniper forests across habitat for the greater sage-grouse and mule deer.”
By adopting this rule, plaintiffs claim, the defendants are acting in an arbitrary and capricious manner because their rule is “riddled with errors and oversights, and is inconsistent with the best available scientific information.”
September 21, 2022 – Consumer Fraud
CVS Faces Allegation That It Deceives Consumers Over Proper Use of Cotton Swabs
A proposed class action filed in federal court in Ft. Lauderdale, Fla., claims pharmacy chain CVS sells cotton swabs — commonly known as Q-tips — without adequately warning customers that the product is not safe for cleaning ears.
Plaintiff says in his suit that decades of industry marketing has taught consumers to use cotton swabs to clean out ear wax. However, plaintiff adds, otolaryngologists agree that the practice of self-cleaning wax from the ear with a cotton swab is dangerous and not medically advised as it can perforate the eardrum. Most cotton swab brands, plaintiff notes, have added warnings to their products to caution against entering the ear canal with the swab.
However, according to the complaint, the widely sold cotton swabs marketed by CVS do not adequately warn consumers of the risks of using swabs to clean the ears. The warning on the box cautions to “use in outer ear only!” the complaint states, adding that this warning lacks the detail and specificity to keep consumers safe.
September 20, 2022 – Antitrust
Apple Accused of Antitrust Violations over Apple Pay
Apple Inc. has been sued in a proposed class action accusing the company of abusing its market power in mobile devices to limit competition for its Apple Pay mobile wallet.
According to the complaint, filed in federal court in San Jose, Calif., Apple “coerces” consumers who use its smartphones, smart watches, and tablets into using Apple’s own wallet for contactless payments, unlike makers of Android-based devices that let consumers choose wallets such as Google Pay and Samsung Pay.
The plaintiff, Iowa’s Affinity Credit Union, says in its suit that Apple’s anticompetitive conduct forces the more than 4,000 banks and credit unions that use Apple Pay to fork over at least $1 billion in excess fees annually for the privilege. Plaintiff further alleges that Apple’s conduct minimizes the incentive for the company to make Apple Pay work better and more resistant to security breaches. “Apple’s conduct harms not only issuers, but also consumers and competition as a whole,” the complaint says.
September 19, 2022 – Product Liability
Lawsuit Alleges ‘Catastrophic’ Ford Powershift Transmission Defect
Ford concealed a defect in certain Ford Fiestas and Ford Focus vehicles that can cause jerking, difficulty stopping, and even engine failure, according to a proposed class action filed in federal court in Wilmington, Del.
In their suit, plaintiffs seek to represent anyone in who purchased or leased 2017-2019 Ford Fiesta and 2017-2018 Ford Focus vehicles equipped with dual clutch transmissions. Ford designed and marketed its “PowerShift Transmission” as a more advanced and fuel-efficient alternative to a traditional manual or automatic transmission, plaintiffs say, adding that an automated manual transmission should have the convenience of an automatic transmission without sacrificing the fuel efficiency and shift speed of a manually shifted vehicle.
“In practice, however, Ford’s PowerShift Transmission is plagued by numerous problems and safety concerns,” plaintiffs allege. The transmissions suffer from a defect that causes transmission slips, bucking, kicking, jerking, harsh engagement, premature internal wear, sudden acceleration, delay in downshifts, delayed acceleration, and difficulty stopping. This defect eventually causes “catastrophic transmission failure,” plaintiffs contend.
September 16, 2022 – Labor & Employment
EEOC Sues Company for Firing 2 Employees who Refused Christian Prayer Sessions
The Equal Employment Opportunity Commission has sued a North Carolina company which the agency says fired two employees who refused to participate in the firm’s Christian prayer meetings.
According to the complaint filed in federal court in Greensboro, N.C., the defendant, Aurora Pro Services, a residential home service and repair company, violated federal law when it required employees to participate in religious prayer sessions as a condition of employment and retaliated against employees who opposed the practice. Title VII of the Civil Rights Act of 1964, the complaint says, prohibits religious discrimination, harassment, and retaliation in the workplace.
The EEOC alleges in its lawsuit that Aurora Pro required all employees to attend daily employer-led Christian prayer meetings. Aurora’s owner took roll before some of the meetings and reprimanded employees who did not attend, the agency says. When a construction manager asked to be excused from the prayer portion of the meetings in the fall of 2020, the company refused to accommodate the employee’s religious beliefs (atheist) and fired him. A few months later, the agency says, defendant terminated a customer service representative who stopped attending the prayer meetings because the meetings conflicted with her religious beliefs (agnostic).
September 15, 2022 – Consumer Fraud
Olly Melatonin Sleep Aids Mislabeled, Lawsuit Claims
Olly Melatonin Sleep Aids contain more melatonin than stated on the label, potentially putting users at risk, alleges a proposed class action filed in San Francisco federal court.
The defendant, Olly Public Benefit Corp., manufactures and markets melatonin supplements, the complaint says, which are intended to treat sleep problems, anxiety and more. Each product is advertised to possess a specific amount of melatonin. Despite the labeling, which notes the supposed amount of melatonin in a given product, scientific testing has revealed that the defendant’s melatonin products contain “substantial and random overdoses of melatonin,” the complaint claims.
Plaintiffs say in their lawsuit that millions of consumers take over-the-counter melatonin supplements to help them sleep, and because the product alters brain chemistry, it is important that these supplements be accurately dosed and labelled. When purchasing a bottle of Olly Melatonin, plaintiffs say, they expect the product to contain the dosage of melatonin that it was advertised to contain, so consumers aren’t unknowingly ingesting more melatonin than they intend to take. Plaintiffs note that the defendant’s product packaging even states on its bottles that it does not recommend ingesting more melatonin than the suggested serving.
September 14, 2022 – Product Liability
Amazon Accused of Selling Defective PlayStation 5 Consoles
A proposed class action filed in Chicago federal court accuses Amazon.com Inc. of knowingly selling defective PlayStation 5 consoles that suddenly crash during gameplay.
The PS5, released in November 2020, is one of the products that Amazon sells on its online marketplace, Amazon.com, according to the complaint. The PS5 contains a defect, the complaint alleges, that causes the console to suddenly crash and power down while the user is playing video games — such games being the primary function of the product.
Plaintiff claims in his lawsuit that the console defect affects users’ ability to play video games, thus compromising the primary function and overall usage of the PS5. Amazon, which was in control of the advertising and sale of the PS5 on its own marketplace, was aware of the defect through online consumer complaints and the overall recognition of the defect in the gaming community, plaintiff contends, adding that despite its knowledge of the defect, defendant failed to disclose it to consumers prior to their purchasing the PS5, nor has the company taken any substantial action to remedy the problem.
September 13, 2022 – Environment
EPA Sued Over Ozone Levels in California and New Hampshire
The Center for Biological Diversity and the Center for Environmental Health have sued the Environmental Protection Agency in San Francisco federal court, seeking to address the ozone air pollution in certain areas of California and in the state of New Hampshire.
Ozone leaks in the environment can not only harm vegetation and ecosystems, the environmental groups claim in their suit, but can cause worsening respiratory and cardiovascular health, increased likelihood of early death, increased asthma-related hospital admissions, increased likelihood of children developing asthma as adolescents, and lower birthweights and decreased lung function in newborns. The complaint states that the Clean Air Act empowers the EPA to set National Ambient Air Quality Standards for critical pollutants in the air. But, plaintiffs say, the agency has failed to do so for
areas of Los Angeles-San Bernardino Counties, Sacramento Metro Area, and New Hampshire. Thus, plaintiffs argue, the EPA is not fulfilling its mandatory duty to safeguard public health in these regions. The plaintiffs are seeking a court order that the EPA is in violation of the Clean Air Act, and injunctive relief enjoining the EPA to perform its mandatory duties in a reasonable amount of time.
September 12, 2022 – Breach of Contract
Coca-Cola’s Rewards Program is Unlawful, Lawsuit Alleges
Plaintiff claims in a proposed class action filed in federal court in Buffalo, N.Y., that Coca-Cola’s rewards program is an “unlawful trading stamp.”
According to the complaint, a rewards program is similar to discount programs in which companies encourage consumer purchases with incentives. On the inside of Coke’s bottle caps are alphanumeric codes that allow for participation in its reward program to redeem the codes. In the defendant’s rewards program, however, plaintiff says that there is nothing to be redeemed or “rewarded” with. Whereas previously one could redeem items such as movie tickets, the current Coke Rewards program only allows for consumers to donate their accumulated rewards to charities.
The Coke Rewards program, plaintiff argues, is not in fact a rewards program but a Trading Stamp, the use of which is subject to regulation in a number of states, including New York. Under New York state law, plaintiff says, defendant’s rewards program is an illegal trading stamp because the bottle caps do not have a legible cash value printed on them that can be redeemed for that cash value from the defendant.
September 9, 2022 – Cybersecurity
Health Care Company Accused of Negligence in Data Breach
In a proposed class action filed in Boston federal court, plaintiff claims Shields Health Care Group Inc. acted negligently in handling plaintiff’s private health information, which led to a data breach and subsequent compromising of the information.
The defendant experienced a cyber-attack on its medical facilities in March 2022, according to the complaint. The attack resulted in the highly sensitive personal information and medical records of nearly 2 million people being exposed. Some of the confidential information compromised, the complaint says, included social security numbers, insurance information, medical record numbers, and other information that falls under protected health information as defined by the Hospital Insurance Portability & Accountability Act.
Plaintiff alleges in his lawsuit that defendant failed to adequately safeguard his private information and failed to notify him of the data breach in a timely manner despite having a duty to “implement and maintain reasonable and adequate security measures to secure, protect, and safeguard [customers’] private information against unauthorized access and disclosure.” The data breach was a known and foreseeable risk, plaintiff contends, but defendant failed to take the necessary steps to protect the private information, leaving it in a “dangerous and vulnerable condition.”
September 8, 2022 – Consumer Fraud
Safeway and Others Said to Misrepresent ‘Rapid Release’ Acetaminophen
A proposed class action filed in Manhattan federal court accuses Safeway Inc. and other companies of deceptive marketing practices of acetaminophen medicine.
In addition to Safeway, other companies named as defendants include: Albertsons Companies Inc., Acme Markets Inc., Better Living Brands LLC, and LNK International Inc. According to the complaint, the defendants cheated customers by “uniformly advertising, marketing, and selling generic versions of certain over-the-counter drugs, including analgesic or pain-relieving medicines using acetaminophen” under the misrepresentation of the medicines being “rapid release.”
Defendants’ principal product is called “Signature Care Rapid Release Gelcaps.” Plaintiff asserts in her lawsuit that despite defendants’ advertising of the medicine as being “rapidly releasing,” the product actually dissolves slower than non-rapid release acetaminophen products sold in the same form. Since the introduction of the gelcaps in 2008, plaintiff alleges, defendants have “misled, and continue to mislead, consumers about the nature, quality, and effectiveness of the products through their advertising and labeling.”
September 7, 2022 – Product Liability
Ford Accused of Failing to Fix Transmission Issues in Low-Emission Vehicles
Ford Motor Co. fails to properly identify and pay for the repair and replacement of the transmission in some of its low-emission vehicles, alleges a proposed class action filed in San Diego federal court.
Plaintiff claims in her lawsuit that Ford has failed to properly identify and pay for the diagnosis, repair, and replacement of the transmission for 15 years or 150,000 miles for partial zero emissions vehicles and super ultra-low emissions vehicles, for which Ford has received an Emissions Credit from the California Air Resources Board. According to the complaint, plaintiff’s claims relate specifically to all vehicles distributed by Ford that are zero or ultra-low emissions vehicles and for which Ford does not provide 15-year or 150,000-mile coverage relating to the transmission.
Under the California Emissions Warranty, the complaint states, defects which increase regulated emissions in low-emissions vehicles shall be covered under warranty for 15 years or 150,000 miles. Transmission defects in such vehicles increase regulated emissions, cause the Malfunction Indicator Lamp to illuminate, and cause the vehicle to fail a California smog check, and therefore the transmission should be covered by the California Emissions Warranty, plaintiff contends.
September 6, 2022 – Intellectual Property
Adidas Files Suit Against Nike Over Run-Tracking, Shoe-Adjusting Technologies
Adidas AG has sued Nike Inc. in federal court in Marshall, Texas, alleging Nike mobile applications and shoe-fitting technology infringe Adidas patents.
The Adidas lawsuit alleges Nike’s Run Club, Training Club and SNKRS mobile apps and Adapt system for adjusting sneaker fits violate nine Adidas patents for exercise monitoring and other technology. Adidas also accuses Nike’s Adapt system, which automatically loosens or tightens shoelaces based on the shape of the wearer’s foot, of violating Adidas patents for an “intelligent footwear” system that adjusts a shoe’s cushioning based on what the wearer is doing.
Further, Adidas accuses Nike’s exercise apps of infringing patents covering features that include location-based run tracking, audio feedback on performance, and a system for creating a training plan. In addition, Adidas claims Nike’s SNKRS app for selling limited-edition shoes infringes a patent related to confirming a potential buyer’s authenticity. In its complaint, Adidas says it has a history of developing mobile-fitness technology including the “world’s first intelligent running shoe” in 2004, the “first fully integrated training system combining sensors in shoes and wearable devices” in 2005, and personal training apps starting in 2008.
September 2, 2022 – Consumer Fraud
FTC Alleges Gravity Defyer Made False Claims Regarding Its Footwear
Gravity Defyer Corp. promotes its shoe line as being “clinically proven” for pain relief without providing any evidence, according to a lawsuit filed by the Federal Trade Commission in the U.S. district court for the District of Columbia.
In its suit, the FTC claims the company is in violation of a 2001 FTC order barring it from misleading consumers with scientifically unsubstantiated advertising. The company violated the FTC order, the agency says, by using misleading testimonials from Gravity Defyer customers promoting its shoes as a way to help relieve pain and discomfort.
“Defendants have represented that Gravity Defyer footwear will relieve pain, including knee, back, ankle and foot pain, and pain in people suffering from conditions such as plantar fasciitis, arthritis, joint pain and heel spurs,” the FTC says, noting that the allegedly misleading advertisements were targeted at the company’s customer base of consumers “aged 55 and older” and placed on the radio, in magazines and on Facebook.
September 1, 2022 – Labor & Employment
Anthem Failed to Pay Overtime to Nurses, Lawsuit Claims
Plaintiff, a nurse, has filed a proposed class action against The Anthem Companies Inc. in federal court in Richmond, Va., alleging that the companies failed to pay overtime in violation of the Fair Labor Standards Act.
Named as defendants in the suit are Anthem Health Plans of Virginia (d/b/a Blue Cross & Blue Shield of Virginia) and Amerigroup Corp. According to the complaint, defendants neglected to keep accurate records of employees’ overtime hours in order to deprive them of due compensation. Despite working well over their salaried 40-hour workweek, plaintiff says she and her coworkers were not paid overtime by the defendants.
Plaintiff alleges in her suit that many employees had to work overtime because defendants required them to stay at the job until they had fulfilled all their responsibilities and met productivity standards. Defendants should have been aware of the overtime hours their employees were working, the complaint states, because plaintiff and others complained about their working hours.
August 31, 2022 – Antitrust
Antitrust Lawsuit Accuses Pork Industry of Conspiracy to Raise Prices
A complaint filed in federal court in Charlotte, N.C., against Agri Stats Inc. and major pork processors alleges a decade-long conspiracy to artificially raise the price of pork by restricting supplies.
The companies named in the complaint included Clemens Food Group, Hormel Foods Corporation, JBS USA Food Company, Seaboard Corporation, Smithfield Foods Inc., Triumph Foods LLC, Tyson Foods Inc. and affiliated companies. From 2008 to 2018 or later, according to the complaint, Agri Stats provided “benchmarking reports” that gave “detailed financial and production data” from each of the pork-producer defendants.
These reports, the complaint alleges, were significantly more detailed than normal reports given in competitive markets, and they were used by the defendants to “monitor each other’s production, and therefore control supply and price in furtherance of their anticompetitive scheme.” This was possible, the complaint says, as the defendants are vertically integrated companies that “directly control the production and supply of pork through their wholly owned and operated farms where the hogs are raised, fed, and prepared for slaughter,” with the defendants accounting for over 80% of the domestic pork industry market.
August 30, 2022 – ERISA
Labor Department Sued Over Handling of Crypto in Retirement Plans
A 401(k) provider has sued the U.S. Department of Labor (DOL) in federal court in the District of Columbia, seeking to invalidate recent agency guidance that has the effect, plaintiff claims, of discouraging cryptocurrency investment by warning that retirement plans offering cryptocurrencies should expect to be investigated.
The lawsuit, filed by 401(k) provider ForUsAll Inc., “seeks to preserve the rights of American investors to choose how to invest money in their own retirement accounts.” The suit challenges DOL’s “arbitrary and capricious attempt” to restrict the use of cryptocurrency in defined contribution retirement plans, allegedly in excess of its authority under the Employee Retirement Income Security Act, and without following the notice and comment process required under the Administrative Procedure Act.
In addition to DOL’s unlawfully stating its intention to open investigations of plan fiduciaries that offer cryptocurrency, plaintiff also alleges in its suit that the agency’s guidance focused exclusively on the risks of cryptocurrency, without mention of its potential benefits, including diversification, even though the agency’s own educational materials list diversification as a basic principle of investing.
August 29, 2022 – Environment
Dunes Sagebrush Lizard Unlawfully Denied Protection, Lawsuit Claims
The Center for Biological Diversity has sued the U.S. Fish & Wildlife Service in federal court in Albuquerque, N.M., seeking to force endangered species protections for the dunes sagebrush lizard, allegedly threatened by oil and gas extraction in the Permian Basin.
The center brings this case challenging Fish & Wildlife’s failure to determine whether the dunes sagebrush lizard warrants protection as endangered or threatened, in violation of the Endangered Species Act (ESA). According to the complaint, widespread oil and gas development has fragmented and destroyed significant portions of the lizard’s habitat in New Mexico and Texas. In May 2018, the complaint says, the center submitted a petition to the service to extend the substantive protections of the ESA to the lizard by listing the species as “endangered” or “threatened.”
Defendants published a positive 90-day finding for the lizard in July 2020, but to date, the center says, have not published the mandated 12-month finding required by the ESA. “Defendants’ failure to comply with their nondiscretionary duty to issue the 12-month finding under the ESA deprives this lizard of the statutory protections that are necessary for its survival and recovery,” the center claims.
August 26, 2022 – Intellectual Property
Jack Daniel’s Alleges King’s Creek Whiskey Infringes Trademark
Jack Daniel’s Properties Inc. claims in federal court in San Jose, Calif., that the King’s Creek whiskey brand, made by United States Distilled Products Co., infringes the Jack Daniel trademarks and trade dress.
The Jack Daniel’s trademarks and the distinctive configuration of its bottles and labels have been used for over a century and a half in connection with Tennessee sour mash whiskey and have become “a part of American culture,” according to the complaint. This action arises, the complaint says, from defendant’s “deliberate efforts” to trade off of the goodwill embodied in plaintiff’s famous trademarks and trade dress.
Jack Daniel’s claims in its lawsuit that defendant designed a new label for its bottles that copies many of the elements of Jack Daniel’s label — including a black background with white lettering. The King’s Creek lettering, the complaint says, is displayed in tall, arched font and uses circular design elements, which are trade dress elements used in Jack Daniel’s label. Rather than compete fairly, plaintiff contends, defendant replaced the label it had used for years with one that copied the well-known and recognizable label for Jack Daniel’s Tennessee Whiskey — and by doing so, “deliberately mimicked the most famous Tennessee whiskey brand in the United States in order to gain the competitive advantage that this likely consumer confusion creates.”
August 25, 2022 – Consumer Fraud
General Mills Sued Over Nature Valley Honey Content
In a proposed class action, plaintiff alleges that General Mill’s product labeling and marketing for its Nature Valley brand granola bars misleads consumers by falsely representing that the granola bars contain two ingredients — oats and honey — and that honey is the primary ingredient in the product.
In fact, plaintiff claims in her suit filed in Chicago federal court, the granola bars are composed of ingredients other than oats and honey and contain a de minimis amount of honey relative to conventional sugars.” Consumers have become increasingly concerned about the ill effects of sugar upon health, plaintiff says, and this has led to a demand for foods with lower sugar content, with consumers’ preferring foods sweetened with honey.
With this consumer preference as background, the complaint argues, through false and misleading packaging and advertising, “Defendant sold more of the Product and at higher prices than it would have in the absence of this misconduct, resulting in additional profits at the expense of consumers.” Plaintiff includes as causes of action the Magnuson Moss Warranty Act, State Consumer Fraud Acts, and Unjust Enrichment.
August 24, 2022 – Privacy
J&J Accused of Illegal Neutrogena Skin360 Face Scans
Johnson & Johnson Consumer Inc. faces a proposed class action filed in federal court in Trenton, N.J., claiming that the company’s Neutrogena Skin360 technology collects face scans without a user’s consent, in violation of the Illinois Biometric Information Privacy Act (BIPA).
According to the complaint, the Neutrogena Skin360 program takes a 180-degree facial scan of a consumers’ face, then gives a personalized at-home skin assessment in real time by diagnosing skin health issues and recommending a skin care routine with Neutrogena products. The skin care regimen, the complaint says, is then monitored and supported with behavioral coaching.
The BIPA, the complaint says, prohibits companies from collecting Illinois residents’ biometric information without first informing them, in writing, of such activity and the specific purpose and length of term of the collection, and without first receiving a written release. Plaintiff claims that J&J fails to do this for its skin technology program, which utilizes sophisticated facial recognition and skin analysis. Defendant’s conduct, plaintiff alleges, violates BIPA in Illinois because it did not first inform plaintiff and class members in writing that their biometric information was being “generated, collected or stored.”
August 23, 2022 – Antitrust
GSK Sued for Monopoly on Ventolin, Arnuity Ellipta Inhalers
GlaxoSmithKline PLC is accused in a proposed class action filed in federal court in Kansas City, Mo., of misusing the federal drug-device approval process to maintain an unlawful monopoly on its asthma inhalers, leading to artificially inflated prices.
Glaxo schemed the FDA drug-device approval regimen to obtain patent protection and regulatory exclusivities on its brand-name inhalers Ventolin and Arnuity Ellipta with the goal of preventing generic inhalers from entering the market, plaintiff claims in his lawsuit. To accomplish this, plaintiff says, defendant employed a scheme known as “device hopping.”
Device hopping works by retiring a branded inhaler but placing the same active ingredients into a new “follow on” branded inhaler with new patent and regulatory protection periods, according to the complaint. A generic inhaler approved for an earlier version of a branded inhaler is not approved for the follow-on version of the branded inhaler. Thus, complaint states, device hopping prevents generics from ever having an unprotected brand name inhaler to reference for a generic. By device hopping, plaintiff argues, defendant manufactured over “60 years of uninterrupted patent and regulatory protection” for its Ventolin inhaler line, thus prohibiting competition from generics.
August 22, 2022 – Consumer Fraud
Lawsuit Alleges ‘Beyond Meat’ Makes False Ingredient Claims
Beyond Meat Inc. falsely advertises that its substitute meat products provide as much protein as real meat and that its products don’t contain synthetic ingredients, alleges a lawsuit filed in Los Angeles federal court.
Plaintiff Don Lee Farms, a meat and plant-based burger manufacturer, says in its suit that Beyond Meat “grossly overstates” the amount of protein in its products. “Defendants’ misleading claims harm consumers, harm competitors and harm fair competition,” plaintiff contends, adding that its “rigorous product testing” proves Beyond Meat overstates the amount of protein its products contain by up to 30%.
Beyond Meat’s “overstatement” of the protein content in its products is a focal point of its advertising campaigns, according to the complaint. Further, the complaint says, Beyond Meat’s products contain the synthetic ingredient methylcellulose despite company advertising that its products do not contain “synthetic” ingredients.
August 19, 2022 – Product Liability
Hyundai Faces Suit Over ‘Exploding’ Seatbelts
A proposed class action filed in federal court in Orlando, Fla., alleges Hyundai Motor Co. manufactured and sold vehicles with seat belts that could explode, causing serious injury to the vehicle’s occupants.
According to the complaint, in May 2022 Hyundai issued a safety recall for approximately 239,000 Hyundai cars in the United States equipped with seat belt pretensioners that could explode, projecting metal fragments through the vehicle that could strike and injure the vehicle’s occupants. The recall included Model Year 2019–2022 Hyundai Accents, Model Year 2021–2023 Hyundai Elantras, and 2021–2022 Hyundai Elantra Hybrids.
Despite having knowledge of the exploding seat belt pretensioners, the complaint says, Hyundai has concealed this information, and “still to this day has not sent notification letters to owners of the defective vehicles.” Because of Hyundai’s “fraudulent business practices” in failing to disclose the seat belt defect, owners and lessees of the recalled vehicles have suffered losses in money and property, plaintiff argues, adding that had prospective buyers known of the safety defect in the seat belts, they would not have purchased or leased those vehicles, or would have paid substantially less for them.
August 18, 2022 – Labor & Employment
FDIC Attorney Sues the Agency for Gender Pay Discrimination
An attorney formerly in private practice who now works at the Federal Deposit Insurance Corp (FDIC) in San Francisco has sued the agency for pay discrimination, alleging she is under-compensated compared to her male counterparts.
Plaintiff filed her lawsuit in federal court in Washington, D.C., saying she was offered a starting base salary of just over $120,000 in 2014, below the starting salaries of her male co-workers. Before starting her position at the FDIC, the complaint says, plaintiff was paid $265,000 while working as a labor and employment attorney at a private law firm. FDIC rules state that a new employee will receive a rate above the minimum basic pay if the employee “is or was receiving a higher rate of pay (highest previous rate) in a related field,” the complaint says.
Plaintiff says that the FDIC HR department initially used this pay-setting policy to recommend that she be paid a $150,000 base salary. But her supervisors did not offer her that salary, though they used the policy to determine male lawyers’ pay, plaintiff contends, noting that a male attorney with similar job duties as plaintiff made more than $185,000 at the FDIC after a $190,000 salary at his previous job.
August 17, 2022 – Affordable Care Act
Blue Cross Alleged to Discriminate Against LGBTQ in Fertility Coverage
A proposed class action claims Blue Cross & Blue Shield of Illinois discriminates against LGBTQ people by requiring those who cannot conceive due to sexual orientation or gender identity to pay out-of-pocket for one year of fertility treatments before they can get coverage.
The complaint, filed in Chicago federal court, says that Section 1557 of the Affordable Care Act (ACA) prohibits discrimination on the basis of sex, including discrimination on the basis of sexual orientation and gender identity, in any health program that receives federal financial assistance, such as Blue Cross and Blue Shield of Illinois. Blue Cross discriminates on the basis of sex under Section 1557, the complaint alleges. by requiring LGBTQ individuals who cannot conceive through sexual intercourse because of their gender identity or sexual orientation to incur substantial costs as a prerequisite to receiving coverage for fertility services.
Plaintiff says in her lawsuit that she and her partner want to have children but, like many LGBTQ individuals, cannot conceive through intercourse and are able to become pregnant only through fertility treatments such as intrauterine insemination and in vitro fertilization. Blue Cross’s insurance policy, plaintiff says, provides immediate coverage, without any out-of-pocket cost, to individuals based on their representation that they have not gotten pregnant after having unprotected sexual intercourse for 12 months, while the same policy requires individuals who cannot conceive through intercourse due to their sexual orientation or gender identity to pay out-of-pocket for one year of fertility treatment before the insurer will provide coverage.
August 16, 2022 – Consumer Fraud
Class Action Says Nestle’s ‘Boost Drinks’ Do Not Control Glucose
“Boost brand” Glucose Control over-the-counter drinks manufactured and sold by Nestle S.A. do not actually control glucose levels, alleges a proposed class action filed in federal court in Trenton, N.J.
Plaintiff claims in his lawsuit that Nestle misleads consumers by labeling the beverages with “Glucose Control” despite the fact that they only produce a “slightly favorable” response to glucose levels as compared to only one other product. Nestle breaks the law with the marketing and labeling of its “Glucose Control” drinks since it is “tantamount to express and/or implied disease claims relating to the prevention and control of diabetes,” plaintiff says.
“Such claims made on behalf of dietary supplements,” plaintiff argues, “are prohibited as a matter of law and further render the claims misleading and deceptive.” In addition to being labeled with “Glucose Control,” the beverages prominently state that they “Help Manage Blood Sugar,” and are “Designed for People with Diabetes,” according to the complaint. These representations are misleading and constitute false and deceptive advertising on behalf of Nestle, the complaint states.
August 15, 2022 – Environment
Gov’t Accused of Failing to Protect Threatened Whitetip Shark
The National Marine Fisheries Service has been accused of failing to complete its legally required review of the effects authorized fisheries in Hawaii and Samoa have on the threatened whitetip shark population.
The oceanic whitetip shark has suffered a precipitous population decline of up to 88% in recent decades, the Conservation Council for Hawaii says in its complaint filed in federal court in Honolulu. This decline, the complaint says, is due primarily to the sharks ending up as “bycatch” of longline fishing fleets in the Pacific Ocean that target tuna and swordfish.
Section 7 of the Endangered Species Act (ESA), the lawsuit states, requires every federal agency to ensure that any agency action that “may affect a threatened or endangered species will not jeopardize the species’ continued existence.” The conservation council says in its suit that the Fisheries Service has recognized the whitetip shark as a threatened species but so far has failed to complete the review it is required to conduct under the ESA to determine the impact that the authorized fisheries have on the sharks.
August 12, 2022 – Privacy
Snapchat Accused of Privacy Violations Over Photo Filters
Instant messaging app Snapchat has been accused in a proposed class action filed in Chicago federal court of using facial recognition of its filter-application feature that captures users’ biometric facial data in violation of their privacy rights under the Illinois Biometric Information Privacy Act (BIPA).
BIPA, the complaint states, prohibits companies from collecting a person’s biometric information without that person’s informed, written consent. In their lawsuit, plaintiffs say they utilized the Snapchat app to create and post photographic and video-based Snaps where the Snaps involved their unique facial features and their unique voices.
Plaintiffs allege that defendant violated their privacy rights under BIPA by failing to properly disclose that its Snapchat app would collect and monetize plaintiff’s “biometric identifiers” without their informed, written consent, citing as an example Snapchat’s Lenses Feature that allowed users to modify their facial features with special effects. Each time plaintiffs used the feature, the complaint says, the Snapchat app scanned their faces and stored the resulting images, thus collecting biometric identifiers without plaintiffs’ consent as required by BIPA.
August 11, 2022 – Product Liability
Toxic Metals in Gerber and Nurture Baby Food Said to Lead to Autism Diagnosis
A four-year-old child was diagnosed with autism after being fed contaminated baby food that was tainted with toxic metals, alleges a lawsuit filed in San Francisco federal court.
Plaintiff says in her suit that she unknowingly fed her child Nuture and Gerber baby food products, which contained high levels of toxic heavy metals that the manufacturers concealed from federal regulators and parents.
According to the complaint, the baby consumed “substantial quantities” of Nurture baby food products sold under the Happy Family labels, as well as Gerber baby food products, which ultimately led to an autism spectrum disorder (ASD) diagnosis in February 2021, when the child was only three years and two months old. “Based on prevailing scientific evidence, exposure to the Toxic Heavy Metals at the levels contained in Defendants’ Baby Foods can cause ASD in humans,” the complaint states. “Had any Defendant warned Plaintiff’s parents that Defendants’ Baby Foods could lead to exposure to Toxic Heavy Metals or, in turn, ASD, Plaintiff wound not have consumed the Baby Foods.”
August 10, 2022 – Labor & Employment
Anthem Accused of Misclassifying Salespeople to Avoid Paying Overtime
Anthem Insurance makes its salespeople work overtime to make sales quotas but misclassifies them so it does not have to pay them overtime, according to a proposed class action filed in federal court in Indianapolis, Ind.
In their complaint, two plaintiffs say they both worked from their home offices as salespeople for Anthem, selling the company’s insurance products. Plaintiffs claim that Anthem made its salespeople work overtime hours by implementing minimum productivity quotas that required overtime hours to meet. To avoid compensating employees like them for their overtime hours, the plaintiffs say, Anthem had a policy of misclassifying sales from home as “exempt outside salespersons,” in violation of the Fair Labor Standards Act.
An “exempt outside salesperson” is, according to the complaint, someone who is predominantly engaged away from the employer’s premises. However, in the plaintiffs’ case, they were only away from the office because of the pandemic, the complaint says, adding that “the improper classification of salespersons like Plaintiffs continued despite Anthem ordering outside salespersons nationwide to work solely from home for at least three months due to the Pandemic.”
August 9, 2022 – Consumer Fraud
Shortbread Cookies Alleged to Not Contain Butter, an ‘Essential Ingredient’
A proposed class action filed in federal court in Buffalo, N.Y., claims Lorna Doone shortbread cookies should not be labeled as shortbread because they do not contain butter, an essential ingredient for shortbread, and are instead made using less costly canola oil and palm oil.
Shortbread was invented in Scotland centuries ago, the complaint says, and derived its name from its short, or crumbly, structure, caused by the high proportion of fat, in the form of butter. Dictionary.com defines shortbread as a “a butter cookie commonly made in thick, pie-shaped wheels or rolled and cut infancy shapes,” according to the complaint.
In her lawsuit, plaintiff cites a food writer who said that “most experts have agreed that whether shortbread is made commercially or in one’s kitchen, the presence of butter is essential.” Plaintiff also refers to a popular recipe website that emphasizes the importance of butter to shortbread, “advising to use only butter and not vegetable oils, because this negatively affects not only the taste but the crumbly texture.”
August 8, 2022 – Intellectual Property
Maker of Nerds Gummies Says Defendant’s ‘THC-infused Candies’ Violate Trademark
Ferrara Candy Co. accuses Top Five Wholesale of copying the branding of plaintiff’s Nerds and Trolli candies with THC-infused edibles.
Defendant Top Five Wholesale’s THC candies use identical trademarks to Ferrara’s and will likely cause consumer confusion, plaintiff claims in its lawsuit filed in West Palm Beach, Fla. Ferrara, which distributes Germany-based Trolli GmbH’s candies in the United States, says Top Five sells counterfeit THC-infused Nerds Ropes and Trolli gummy candies.
The suit also says Top Five’s candies have “more than 60 adult servings” of THC, creating “a health hazard to the consuming public, especially children.” Plaintiff in its filing asks the court to block sales of the edibles and make Top Five destroy the allegedly infringing products. Plaintiff requests damages of $2 million per counterfeited trademark.
August 5, 2022 – Antitrust
Dating App Match Group Accuses Google of Payment Monopoly
Match Group, which runs the dating apps Match, OkCupid and Tinder, accuses Google of using its market power to force developers to run the Google Play billing system for in-app purchases “where it can charge supra-competitive prices and monetize the personal data of billions of digital app users.”
In its complaint filed in San Francisco federal court, Match alleges that Google is abusing its market power, seeking to block competitors and make its billing system the exclusive way for people to pay for apps on Android. “Google lured app developers to its platform with assurances that we could offer users a choice over how to pay for the services they want,” Match says. “But once it monopolized the market for Android app distribution with Google Play by riding the coattails of the most popular app developers, Google sought to ban alternative in-app payment processing services so it could take a cut of nearly every in-app transaction on Android.”
Match claims Google enticed billions of people to use its Android mobile operating system offering an “open ecosystem” with flexibility in how developers could distribute their apps to Android users, unlike Apple that prohibits developers from bypassing its App Store to reach customers. But once its Google Play Store became the most dominant store in the world for Android Apps, Match says, Google reneged on its promise to allow Match to offer its own payment system for purchases users make inside its apps, instead requiring developers to use Google Play Billing.
August 4, 2022 – Disability Act
PNC Website Not Available to Blind or Visually Impaired, Lawsuit Alleges
The website of PNC Financial Services Group is not accessible to blind people using a screen reader, denying them the ability to use the bank’s services, claims a proposed class action filed in Manhattan federal court.
According to the complaint, plaintiff is a visually impaired and legally blind person and requires screen-reading software to read website content using her computer. PNC has failed, the complaint says, to design and operate its website, www.pnc.com, in a way that is fully accessible to those using screen readers. This failure is a violation of the Americans with Disabilities Act, the complaint argues.
Plaintiff claims in her lawsuit that the website lacks alt-text that screen readers use and is full of empty links. She seeks a permanent injunction to cause a change in PNC’s corporate policies so its website will become accessible to blind and visually impaired consumers. Plaintiff looks to represent all legally blind people in the United States who tried to access the PNC website and were unable to use it with their screen readers.
August 3, 2022 – Environment
Lawsuit Says EPA Must Protect Manatees from Water Pollution
Three conservation groups have sued the U.S. Environmental Protection Agency (EPA) for failing to protect manatees from water pollution in Florida, saying hundreds starved to death in 2021 because unchecked pollution is killing seagrass, their major food source.
Over half of the more than 1,000 manatee deaths in Florida in 2021 were attributable to starvation, according to the complaint, which says the massive die-off is being caused by pollution-fueled algae blooms that have killed thousands of acres of seagrass in the Indian River Lagoon, highlighting the inadequacy of the state’s federally-approved water quality standards. The lawsuit was filed in federal court in Orlando, Fla., by Earth Justice on behalf of the Center for Biological Diversity, Save the Manatee Club, and Defenders of Wildlife.
The suit asks the court to require EPA to reinitiate consultation with the U.S. Fish & Wildlife Service and the National Marine Fisheries Service under the Endangered Species Act to reassess its approval of Florida’s water quality standards for the Indian River Lagoon. Plaintiffs say that the Florida manatee is currently experiencing an officially-declared “Unusual Mortality Event” along Florida’s east coast, which includes important manatee warm-water habitat like the Indian River Lagoon. The lagoon, plaintiffs say, supports more species of plants and animals than any other estuary in North America.
August 2, 2022 – Product Liability
J.M. Smucker Sued Over Salmonella in Peanut Butter
A proposed class action has been filed against J.M. Smucker Co. alleging salmonella contamination of Jif peanut butter products, in federal court in Lexington, Ky.
Smucker promoted the products as containing ingredients safe for human consumption, the complaint says, when in fact they cause bacterial infections, gastrointestinal illnesses and other illnesses resulting from Salmonella contamination. The defendant recalled Jif peanut butter products sold in the U.S., the complaint adds, the recall stating “Salmonella is an organism which can cause serious and sometimes fatal infections in young children, frail or elderly people, and others with weakened immune systems.”
Further, the complaint says, healthy persons infected with Salmonella often experience fever, diarrhea, nausea, vomiting and abdominal pain. Plaintiff contends in his lawsuit that consumers expect the food they purchase to be safe for consumption and not contaminated by an organism “which can cause serious and sometimes fatal infections.
August 1, 2022 – Securities
SEC Charges Former Indiana Congressman with Insider Trading
The Securities & Exchange Commission has filed insider trading charges against Stephen Buyer, a former U.S. Representative for Indiana’s 4th Congressional District.
According to the SEC’s complaint filed in Manhattan federal court, after leaving Congress in 2011, Buyer formed a consulting firm that provided services to, among other clients, T-Mobile. In March 2018, the complaint says, Buyer attended a golf outing with a T-Mobile executive fro whom he learned about the company’s then nonpublic plan to acquire Sprint.
Buyer began purchasing Sprint securities the next day, the SEC says, and ahead of the merger announcement, he acquired a total of $568,000 of Sprint common stock in his own personal accounts, a joint account with his cousin, and an acquaintance’s account. After news of the merger leaked in April 2018, Buyer saw an immediate profit of more than $107,000, the SEC says.
July 29, 2022 – Constitution
Fulbright Scholarships Alleged to Discriminate Against Immigrant U.S. Citizens
Two applicants for the prestigious Fulbright Scholarship — one applicant a U.S. citizen born in Kuwait, the other a U.S. citizen born in Mexico — have filed suit against the U.S. Department of Education for failing to consider language proficiency of immigrant Americans who want to conduct doctoral research abroad.
The Fulbright Scholarship program was established to support U.S. students to conduct doctoral research in foreign countries using a foreign language, according to the complaint filed in federal court in El Paso, Texas. To be eligible, the complaint says, a U.S. student must have adequate language proficiency to conduct the research. The Education Department evaluates applicants on a 106-point scale, with language proficiency counting for 15 points.
Starting in 1998, plaintiffs claim, the department began to use the language-proficiency criterion to disadvantage U.S. students who have immigrant heritage by assigning them 0 out of 15 points for language proficiency if they acquired the relevant foreign language through their national heritage. The department imposes this 15-point penalty on U.S. students with immigrant heritage to tilt the scale against students it considers to be “non-native born” Americans, plaintiffs argue, and this discrimination is unconstitutional, as Americans with immigrant heritage “have a constitutional due process and equal-protection right” to be free from such “discriminatory animus.”
July 28, 2022 – Intellectual Property
Meta Hit With Trademark Lawsuit Over New Infinity-Symbol Logo
A nonprofit blockchain developer, Dfinity, has sued Meta Platforms Inc. — formerly known as Facebook — in San Francisco federal court, alleging the new infinity-symbol logo adopted by Meta will cause consumer confusion with its own similarly designed logo.
Dfinity says in its suit that being associated with Meta’s “sordid” history with user privacy could hurt the non-profit’s efforts to attract people to its blockchain platform, which it wants to use to “take on Big Tech and tech’s growing control over user data.” Founded in 2016, Dfinity says its Internet Computer is an “infinite” public blockchain network designed to host authenticated smart contracts. It registered a federal trademark for its infinity-symbol logo in 2018.
Meta has described its new logo as a “continuous loop” that resembles both the letter ‘M’ and an infinity sign, “symbolizing infinite horizons in the metaverse,” according to the complaint, which describes Meta’s logo as confusingly similar to that of plaintiff. Dfinity also contends that Meta’s announced plans to adopt blockchain technologies would only add to the likelihood of confusion between the companies.
July 27, 2022 – Securities
SEC Claims Attorney Defrauded Disabled Trust Clients
The Securities & Exchange Commission has sued a Florida attorney and his settlement management company, accusing them of lying to disabled plaintiffs to secretly reap fees from managing $46 million in settlement payouts.
Filed in federal court in Orlando, Fla., the SEC’s complaint alleges that the attorney, who served as chief executive of Synergy Settlement Services Inc., falsely said a non-profit foundation would manage pooled investment trusts to help disabled individuals retain their public benefits.
The SEC says in its civil suit that the foundation was in fact a shell company that funneled business to Synergy. The agency accuses Synergy of improperly spending the funds of deceased trust beneficiaries on business expenses and sponsoring beach parties and other events thrown by lawyers and legal groups to develop business. The SEC further claims the defendants failed to disclose mutual fund fees to trust clients. The agency seeks fines and disgorgement.
July 26, 2022 – Cybersecurity
Mortgage Lender Failed to Protect Client Information, Class Action Alleges
A proposed class action filed in federal court in Newark, N.J., claims mortgage lender American Financial Resources failed to adequately safeguard private information, leaving the sensitive data vulnerable to a breach that occurred in December 2021.
According to the complaint, American Financial failed in its obligation to keep customers’ private information confidential and to protect it from unauthorized access. The personal information compromised in the breach, the complaint says, included customers’ names, Social Security numbers and driver’s license numbers.
Plaintiff says in her lawsuit that defendant notified affected customers about the data breach in March even though the company allegedly completed its investigation into the breach on Feb. 4, 2022. “Defendant offered no explanation for the delay between the initial discovery of the Breach and the belated notification to affected customers, which resulted in Plaintiff and Class Members suffering harm they otherwise could have avoided had a timely disclosure been made,” plaintiff contends, noting that customers’ sensitive data is likely for sale on the dark web and that unauthorized individuals may have already accessed their unencrypted and unredacted personal information.
July 25, 2022 – Product Liability
Pressure Cooker Lawsuit Says Serious Burns Caused by Defective Safety Features
Plaintiff alleges in a lawsuit filed in federal court in Madison, Wisc., that defendant, National Presto Industries Inc., knew about defective safety features on its Presto Stovetop Pressure Cookers but sold the devices nonetheless to unsuspecting customers.
The defective safety features, according to the complaint, failed to prevent the pressure cooker lid from being removed while the contents were still cooking, which caused scalding hot food to explode out of the pressure cooker and burn large parts of plaintiff’s body.
In marketing the pressure cooker, plaintiff says, Presto touts that the product is equipped with advanced safety features such as a lock indicator that “shows at a glance if there is pressure inside the cooker” and a regulator that “maintains the proper cooking pressure automatically.” Despite Presto’s claims, the company manufactured and marketed a product that suffers from serious and dangerous defects — defects that can cause “significant risk of bodily harm and injury to its consumers,” plaintiff contends.
July 22, 2022 – Trade Secrets
Apple Accuses Startup Rivos of Poaching Engineers to Steal Secrets
Technology startup Rivos Inc stole Apple Inc’s computer-chip trade secrets after poaching its engineers, Apple claims in a lawsuit filed in federal court in San Jose, Calif.
Rivos has hired over 40 of Apples former employees in the past year to work on competing “system-on-chip” (SoC) technology, according to the complaint, and that at least two former Apple engineers took gigabytes of confidential information with them to Rivos. SoCs, the complaint says, are integrated circuits that include several computer components in a single chip, including central processing units and graphic processing units.
Apple says it has spent billions of dollars and more than a decade of research on its SoC designs, which have “revolutionized the personal and mobile computing worlds.” Rivos purposely sought to hire Apple engineers with access to the company’s SoC trade secrets, Apple contends.
July 21, 2022 – Consumer Fraud
Infant Formula Lawsuit Says Similac, Enfamil Marketed With Misleading Information
Abbott Laboratories and Mead Johnson & Company have engaged in misleading and deceptive marketing for their infant formulas, which led many mothers to allow their prematurely born children to be fed Similac and Enfamil despite known health risks, alleges a lawsuit filed in federal court in Knoxville, Tenn.
The suit was filed by a parent on behalf of herself and her minor child who was, according to the complaint, diagnosed with necrotizing enterocolitis (NEC) shortly after being fed the cow-based milk product formula after birth. A growing body of research, the complaint says, has found that the risk of a premature newborn NEC diagnosis is substantially greater after being fed Similac or Enfamil, compared to babies who receive breast milk alone.
Plaintiff claims that the manufacturers knew of the dangers but failed to adequately warn families and medical providers about the risk, and purposefully provided false and misleading information about the infant formulas for premature infants, including making breast feeding look more difficult and unnecessary than it really is.
July 20, 2022 – Labor & Employment
Justice Dep’t Sues Over Alleged Job Denial Based on HIV Status
The U.S. Justice Department has filed a civil lawsuit against the town of Clarksville, Ind., claiming the town unlawfully revoked a job offer to a policeman based on his HIV diagnosis, in violation of the Americans with Disability Act.
The suit, filed in federal court in Indianapolis, Ind., says that at the conclusion of a state-mandated examination, the examiner noted that the job applicant was taking “anti-viral medications,” had “no long-term evidence of active disease” from his HIV, and had no other notable health issues. Notwithstanding these findings, according to the complaint, the examiner advised the Clarksville police chief that in his opinion the applicant did not meet statewide medical standards because his HIV was a “communicable disease” that posed a “significant risk of substantial harm to the health and safety” of his colleagues and the public.
However, the Justice Dep’t says, the medical examiner cited no objective scientific or medical evidence in support of his opinion that the applicant posed a risk to others because of his HIV, and the examiner made no individualized findings about how the applicant’s HIV status affected his ability to serve as a police officer. “The medical examiner’s determination was at odds with objective evidence showing that [applicant] was physically able to perform the job of police officer,” the department argues.
July 19, 2022 – Product Liability
FCA Accused of Selling ‘Dangerous’ Chrysler Pacifica Plug-In Minivans
Fiat Chrysler Automobiles (FCA) is facing a proposed class action accusing it of manufacturing and selling “dangerous” and “defective” 2017-2018 Chrysler Pacifica Plug-In Hybrid minivans prone to catching fire and exploding.
Plaintiffs allege in their lawsuit filed in federal court in Flint, Mich., that FCA sold the vehicles without disclosing their problems to consumers. “Defendant FCA’s actions have violated sacred obligations and duties of car manufacturers to both provide consumers with vehicles that are safe and to alert them to, or otherwise warn them of, vehicle defects that implicate serious safety issues,” according to the complaint.
FCA has thus far required Chrysler Pacifica owners to pay to repair the vehicles themselves and has at the same time failed to “timely and adequately warn lessees and purchasers or replace or repair said vehicles,” plaintiffs claim, adding that the only remedy FCA has offered vehicle owners so far is to “refrain from plugging in” the Chrysler Pacifica minivans and to park them away from structures and other vehicles.
July 18, 2022 – Intellectual Property
Justin Bieber’s ‘10,000 Hours’ Copied 1980 Ballard, Lawsuit Claims
Pop star Justin Bieber and country music duo Dan + Shay face a lawsuit filed in Los Angeles federal court accusing them of unlawfully copying a 1980 soul ballad for their Grammy-winning 2019 hit song “10,000 hours.”
Plaintiff Melomega Music claims in its suit that core portions of “10,000 hours” were lifted from “The First Time Baby Is a Holiday,” a song composed more than 40 years ago and most recently released in 2014. “One need only listen to ‘First Time’and the infringing ‘10,000 Hours’to discern the unmistakable similarities between the songs,” plaintiff contends.
“When the songs are viewed through the objective, empirical lens of musical science — as was done in this case by one of the top musicology experts in the industry — defendants’ infringement is unmistakable,” plaintiff alleges, adding that the hooks of the songs are exactly the same and that both end with the identical lyric, “for the rest of my life,” set to the same melody.
July 15, 2022 – Cybersecurity
Lawsuit Alleges PepsiCo Workers Lost Wages After Data Breach
A data breach affecting PepsiCo’s Kronos-brand timekeeping systems in 2021 has left the company unable to properly pay its workers or give them appropriate time off, alleges a proposed class action filed in Pittsburgh federal court.
Plaintiff claims in his suit that PepsiCo has not been able to correctly pay its staff or track its hourly employees since the breach. “As a result, PepsiCo’s workers who were not exempt from the overtime requirements under Pennsylvania law were not paid for all hours worked or were not paid their proper overtime premium after the onset of the Kronos hack,” according to the complaint.
Following the breach, plaintiff argues, PepsiCo could have created a temporary and alternative plan for keeping track of employee hours and pay but chose not to. “Instead, PepsiCo used prior pay periods or reduced payroll estimates to avoid paying wages and proper overtime to these non-exempt hourly and salaried employees.”
July 14, 2022 – Securities
Electric Aircraft Developer Faces Investor Lawsuit After Shares Fall
An investor has filed a proposed class action against Germany-based Lilium, developer of electric aircraft capable of taking off and landing vertically, following the release of a research report that questioned the company’s technology and sent its stock plummeting 34%.
According to the complaint filed in Los Angeles federal court, Lilium’s management misled investors about the capacity of the seven-seat jet the company is developing and about when the aircraft will be ready for commercial production. In fact, the complaint says, Lilium is well behind its competitors in bringing an electronic jet to market.
The complaint cites a report issued in March 2022 by Iceberg Research that claimed Lilium was losing the race in the development of electric-vertical takeoff and landing aircraft (eVTOL). Lilium’s aircraft, the complaint says, haven’t flown for more than three minutes in tests after seven years of development. By contrast, a competitor’s aircraft flew over 150 miles on the longest eVTOL test flight to date in July 2021. Further, the problem with Lilium’s “power-hungry” design, according to the Iceberg report cited in the complaint, is that it has 36 fan-like engines on its wing flaps, whereas most of its competitors use regular propellers that spin in the open air.
July 13, 2022 – Consumer Fraud
Ashley Furniture Engages in Deceptive Pricing, Lawsuit Claims
Ashley Furniture Industries LLC faces a proposed class action alleging the furniture chain misleads customers with fictitious “original” prices, leading them to falsely believe they are purchasing furniture at bargain prices.
Plaintiff contends she relied on Ashley Furniture’s deceptive pricing scheme when she purchased a metal twin bed and mattress from the company’s website. The twin bed was listed at a sale price of $96.99 with a reference price listed at $159.99, according to the complaint.
She decided to purchase the metal twin bed, plaintiff says, because she believed the discounted price would not last long, and she believed she received a significant bargain of nearly 40% off the regular price of the bed. “However, this product was never offered for sale at the original price listed on Ashley Furniture’s e-commerce website and certainly not within the 90 days preceding [plaintiff’s] purchase,” the suit alleges. “Nor was it listed for sale at the full price in an Ashley Furniture brick-and-mortar store.”
July 12, 2022 – Immigration
Recruiter of Mexican Labor Accused of Running Bait and Switch Scheme
A proposed class action accuses a Georgia-based labor recruiter of luring Mexican engineers to the United States with promises of engineering jobs and then putting them on production lines in an auto factory.
The lawsuit was filed in Atlanta federal court by civil rights advocates against AGWM United and agents, alleging a bait-and-switch immigration scam.
Defendant AGWM United obtained TN visas for Mexican migrants by telling U.S. authorities they would be employed as engineers, according to the complaint. The TN nonimmigrant classification permits qualified Canadian and Mexican citizens to seek temporary entry into the United States to engage in business activities at a professional level. However, the complaint says, the migrants were forced to function as production line workers for an auto parts manufacturer.
July 11, 2022 – Intellectual Property
Biltmore Estate Alleges Trademark Theft by Home Décor Company
The owner of Biltmore Estate, the largest private mansion in the U.S. and built by the descendants of railroad magnate Cornelius Vanderbilt, has filed a lawsuit against a home decor company for selling products and services under the Biltmore trademark without permission.
According to the complaint filed in Phoenix, Ariz., Biltmore’s online store — Biltmoreshop.com — includes apparel, bath and body products such as soaps, lotions, jewelry, wine, books, and home décor. The Biltmore Company, which owns the estate, claims in its lawsuit that Sleek Creations of Scottsdale LLC rebranded to Biltmore Interiors and Linens in 2018, infringing plaintiff’s rights to the Biltmore mark.
Biltmore Estates says defendant Sleek now uses the website Biltmoreinteriors.com and has a Facebook page that describes Biltmore Interiors and Linens as “Livable luxury for bed, bath, home and you. Fine linens, bedding, bath, designer pillows, rugs, furniture and décor.” Defendant’s use of Biltmore Interiors and Linens, plaintiff claims, is likely to cause confusion with plaintiff’s Biltmore mark, and that consumers may wrongly believe that plaintiff approves of defendant’s use of the Biltmore name.
July 8, 2022 – Voting Rights
Justice Dep’t Sues Arizona Over Voter Registration Requirements
The U.S. Department of Justice (DOJ) has sued Arizona in federal court in Phoenix, Ariz., over a new state law requiring proof of citizenship to vote in a presidential election, calling the restrictions a “textbook violation” of federal law.
The DOJ complaint challenges as unlawfully restrictive the voting requirements imposed by Arizona House Bill 2492 (2022), a recently enacted law set to take effect in January 2023. The challenge, according to the complaint, is based on the National Voter Registration Act of 1993 (NVRA) and the Civil Rights Act of 1964.
In its lawsuit, the DOJ contends that the law violates NVRA by requiring that applicants produce documentary proof of citizenship before they can vote in presidential elections or vote by mail in any federal election when they register to vote using the NVRA uniform federal registration form. DOJ also says the law violates Section 101 of the Civil Rights Act by requiring election officials to reject voter registration forms based on errors or omissions that are not material to establishing a voter’s eligibility to cast a ballot.
July 7, 2022 – Product Liability
Burger King Whopper Wrappers Said to Have Undisclosed PFAS
A proposed class action filed in San Francisco federal court alleges Burger King Corp. which markets its products as safe and sustainable, fails to disclose that its Whopper wrappers contain PFAS, a family of “forever chemicals” known to be harmful to humans and the environment.
Scientists are extremely concerned about how PFAS affect human health, the complaint says, noting that the Centers for Disease Control and Prevention has outlined “a host of health effects associated with PFAS exposure, including cancer, liver damage, decreased fertility, and increased risk of asthma and thyroid disease.”
Based on defendant’s representations, plaintiff argues, a reasonable consumer would expect that its products can be safely consumed while, in fact, they are not safe, posing a significant health risk to unsuspecting consumers. “Yet, neither before nor at the time of purchase does Defendant notify consumers like Plaintiff that their Product is unsafe and harmful to the environment, contains heightened levels of PFAS, or should otherwise be approached with caution,” plaintiff says.
July 6, 2022 – Privacy
Louis Vuitton Accused of Unlawfully Collecting Biometric Data Without Consent
Louis Vuitton North America unlawfully collects and stores the biometric data of consumers who use the company’s “Virtual Try-On” feature to sample glasses on its website, alleges a proposed class action filed in Manhattan federal court.
In her lawsuit, plaintiff claims that Louis Vuitton violates the Illinois Biometric Information Privacy Act (BIPA) by using its Virtual Try-On feature to collect consumers’ biometric facial data without informing them or being given consent. Consumers who use the feature are able to “view themselves in a pair of expensive designer sunglasses,” simply by uploading a photo of their face to Louis Vuitton’s website, according to the complaint.
Plaintiff argues that consumers are unaware Louis Vuitton uses their photo to collect “detailed” and “sensitive” biometric identifiers, including taking a complete facial scan. Defendant not only fails to get consent or inform consumers it is collecting their biometric data but also fails to provide a reason for why they are collecting the data or to inform consumers of how or when the company plans to destroy it, plaintiff claims, adding that the defendant violates BIPA every time a website visitor based in Illinois uses the Virtual Try-On tool.
July 5, 2022 – Constitution
Sikhs Sue Marine Corps Over Restrictions on Beards
Four members of the Sikh religion have sued the Marine Corps in the U.S. District Court for the District of Columbia, claiming that the corps’ refusal to allow them to wear a beard on combat deployment or during boot camp violated their constitutional right to free exercise of religion.
In their lawsuit, the Sikhs contend that the corps’ action is “arbitrary and capricious.” Plaintiffs note that the Marine Corps has recently relaxed other grooming standards, specifically to increase diversity in the military ranks. As of January 2022, for example, new recruits can now receive permanent beard accommodations for medical reasons, and can wear full-sleeve tattoos and various new hairstyles, including during recruit training. “It is perverse to claim that respecting the individual desires of Marines to have full-body tattoos (hands, face, and neck only excepted) … is consistent with the Marine Corps’ image, but that respecting Plaintiffs’ desires to be faithful to God is somehow antithetical to the idea of cohesiveness and uniformity within the service,” the Sikhs contend.
Plaintiffs further point out that the Marine Corps routinely deploys men to combat zones who have permission to wear beards because of medical conditions or because they are part of Special Operations units. The corps’ beard rules, plaintiffs say, would require Sikhs to shave even in countries where the risk of chemical attack is so low that Marines deployed there are not equipped with gas masks. And the Marine Corps routinely allows other recruits into boot camp who do not fit homogeneous appearance standards, plaintiffs add. Women, for example, are allowed to keep their long hair during training.
July 1, 2022 – Product Liability
Knix Wear Sued Over Toxic Chemicals in Menstrual Underwear
Knix Wear Inc. deceptively markets its absorbent menstrual underwear as free of toxic chemicals known as PFAS, a family of “forever chemicals” found to be harmful to humans and the environment, alleges a proposed class action filed in federal court in San Jose, Calif.
In their lawsuit, plaintiffs say they relied on the company’s marketing statements that the underwear, which collects menstrual fluid, is “PFAS free” and “designed to be both safe and effective.” PFASs can enter the body through multiple ways, including skin contact, according to the complaint, which adds that the Centers for Disease Control & Prevention has outlined a range of health effects associated with PFAS exposure, including cancer, liver damage, decreased fertility, and increased risk of asthma and thyroid disease.
Plaintiffs contend that because PFAS persist and accumulate over time, the chemicals are harmful even at very low levels. Independent testing found that Knix Wear underwear contains high levels of fluorine, indicating the presence of PFAS, plaintiffs say, noting that there is a growing public health concern about the chemicals used in feminine hygiene products.
June 30, 2022 – Intellectual Property
Showtime Faces Trademark Infringement Suit Over UFO Docu-Series
Showtime Network Inc. has been sued in Wyoming federal court over its 2021 documentary series called “UFO” that plaintiff UFO Magazine Inc. claims infringes on its trademarks.
The complaint says that UFO Magazine first registered the “UFO” mark in 2007 for “entertainment in the nature of a television series and motion picture film series,” adding that the UFO mark has been used in its magazine since 1998. Beginning in mid-2021, and without license or permission, the complaint says, defendant Showtime began airing a television series on its streaming service entitled “UFO” concerning extraterrestrial phenomena. Defendant’s use of “UFO” in connection with a television series infringes UFO Magazine’s trademark and intellectual property rights in its “UFO” marks, according to the complaint.
“UFO” trademarks are very valuable intellectual properties of the magazine, UFO Magazine says, and it has invested substantial resources in developing its mark and substantially more resources in using the mark to identify and promote its media products. Specifically, plaintiff says, UFO Magazine has been in discussions for development of a UFO motion picture and/or television series for many years. “As recently as September 2020, UFO Magazine, in a sponsorship role with the Virtual International UFO Congress, sought collaborators for development of a movie.”
June 29, 2022 – Securities
SEC Charges Individuals Involved in Alleged Investment Fraud Targeting Retirees
The Securities & Exchange Commission has charged four individuals with deceiving investors in defendants’ sales of high-yield promissory notes aimed at retirees.
Filed in San Diego federal court, the SEC’s complaint alleges that defendants, doing business as Golden Genesis Inc., engaged in the unregistered offer and sale of securities — typically high-yield promissory notes issued by corporate borrowers. The SEC says that defendants targeted investors’ retirement assets, vouching for the safety of the investments even though defendants knew that certain issuers of the notes were using new investor principal to pay returns due earlier investors.
Specifically, according to the complaint, defendants conducted an unregistered and fraudulent offering of securities, misappropriating investor funds to make Ponzi-like payments where they used new investor monies to make interest payments due to prior investors.
June 28, 2022 – Cybersecurity
Shopify and TaskUs Users Sue Over Crypto Wallet Breach
Shopify Inc. and TaskUs Inc. failed to take measures to prevent a data breach that compromised plaintiffs’ personal information and cryptocurrency portfolios, alleges a proposed class action filed in federal court in Wilmington, Del.
Plaintiffs say in their lawsuit that the 2020 data breach affected Leger SAS cryptocurrency hardware wallets, which had contracted with third-party vendors Shopify and TaskUs to process its customers’ personal information. The breach compromised the names, email addresses, postal addresses and phone numbers of more than 272,000 individuals, plaintiffs claim.
According to the complaint, Ledger sells Ledger Wallets through its e-commerce website, which is run on Shopify’s platform. Ledger Wallets were marketed as providing the best security for cryptocurrency because the wallets hold password information in a physical form and restrict transfer of crypto-assets in an individual’s account unless the physical device is mounted to a computer and a twenty-four-word passphrase is entered, the complaint says. “When hackers know the identity of a cryptocurrency owner and know what platform that consumer is storing their crypto-assets on, the hacker can work backwards to create a targeted attack aimed at luring hardware wallet owners into mounting their hardware device to a computer and entering their passphrase, allowing unfettered access and transfer authority over their crypto-assets.”
June 27, 2022 – Breach of Contract
Sherwin-Williams Accused of Illegal Hidden Surcharge Scheme
A proposed class action claims that Sherwin-Williams secretly adds a 4% surcharge on its products without giving customers any notice.
The complaint, filed in federal court in Buffalo, N.Y., alleges Sherwin-Williams runs a deceptive bait-and-switch scheme of covertly tacking on a hidden 4% “Supply Chain Surcharge” to every sale transaction at the cash register once it’s too late for customers to rescind their purchases. “Sherwin-Williams adds the Surcharge covertly, and customers are often entirely unaware of the Surcharge until after paying and checking out,” the complaint says.
Feeling the pressure of rapidly rising manufacturing costs, Sherwin-Williams decided to shift this cost onto customers, plaintiffs contend. “This deceptive practice allows Sherwin-Williams to hide the true prices of its products. Customers are induced to make purchases in reliance on the lower listed price and then are duped at the cash register into paying 4% more than the prices advertised by Defendant.” This practice is “deceptive and illegal,” plaintiffs argue, as it obstructs customers’ ability to engage in fair and accurate price comparisons in the marketplace and to shop around for the best value for their money.
June 24, 2022- Intellectual Property
Hailey Bieber Sued for Trademark Infringement Over Skincare Line
Hailey Bieber, the model who recently launched a skincare line under the name Rhode, is being sued for trademark infringement by a fashion brand, also called Rhode.
Plaintiffs Purna Khatau and Phoebe Vickers, co-founders of the Rhode fashion company, filed the lawsuit against Ms. Bieber in Manhattan federal court, claiming that her fame and following risks eclipsing plaintiffs’ brand recognition. The suit seeks to block Bieber from selling or marketing any products under the Rhode name. Plaintiffs note that Hailey Bieber is a celebrity with over 45 million Instagram followers and her husband, Justin Bieber, has promoted her business to his 243 million Instagram followers, generating 1.5 million likes with one posting.
According to the complaint, plaintiffs are seeking to protect the business they began in 2014 when they quit their day jobs to create a high-end clothing and accessories line. Since then, the complaint says, plaintiffs’ products have been featured in Vogue, carried in stores like Saks Fifth Avenue and Neiman Marcus worldwide, and worn by celebrities including Beyonce, Mindy Kaling, and Rihanna. Sales are projected to hit $14.5 million this year, plaintiffs claim.
June 23, 2022 – Constitution
ACLU, NAACP Challenge South Carolina Ban on ‘Srcraping’ Court Records
The American Civil Liberties Union and the NAACP have filed a lawsuit challenging the South Carolina judiciary’s ban on the “scraping” or automated collection of data from publicly accessible online repositories of filings in the state’s courts.
In a federal court suit filed in Columbia, S.C., the NAACP’s South Carolina chapter, represented by the ACLU, says the ban had impaired its ability to help tenants facing eviction by timely identifying them and providing resources and affordable housing opportunities. The NAACP says it is seeking to try to help address an eviction crisis in the state that disproportionately impacts Black renters by gathering and recording information from the court’s Public Index that is publicly available.
But the group claims the terms of service for the Public Index, a county-by-county repository of legal filings, expressly prohibits using software to harvest data, and the South Carolina Court Administration employed technical means to prevent such collection. In its suit, the ACLU argues that the ban violates the U.S. Constitution’s 1st Amendment by unreasonably restricting access to public information and judicial records.
June 22, 2022 – Product Liability
Lawsuit Alleges Toxic Chemicals in CoverGirl Pressed Powder Cosmetics
In San Diego federal court, CoverGirl TruBlend Pressed Powder cosmetic products face a proposed class action, alleging that the products expose consumers to toxic chemicals that have been linked to thyroid problems, cancer, and other harmful side effects.
Plaintiff claims in her suit that Cover Girl Cosmetics falsely marketed “TruBlend Pressed Powder” as safe for use, when in fact it contained highly toxic PFAS, also known as “forever” chemicals. Cover Girl intentionally concealed information that its TruBlend Pressed Powder cosmetic products contain PFAS, and deceptively marketed the products with claims such as “safe” and “sustainable,” plaintiff contends.
The complaint cites the results of a recent study performed by Toxin Free USA that found CoverGirl’s TruBlend Pressed Powder contained over 6,000 parts per million of organic fluorine, which is considered an environmental and industrial contaminant, as well as an indicator of the presence of PFAS. The study, the complaint says, warned that PFAS exposure may increase the risk of high cholesterol, thyroid disease, pregnancy complications, hypertension, ulcerative colitis, and kidney and testicular cancer, all of which are effects that have been linked to human exposure to PFAS.
June 21, 2022 – Consumer Fraud
Amazon Failed to Disclose Presence of Toxic Metals in Happy Belly Spices, Lawsuit Alleges
Spices sold by Amazon.com under its Happy Belly brand contain toxic heavy metals, including arsenic, cadmium, and lead, according to a proposed class action filed in federal court in Seattle, Wash.
Plaintiffs say in their suit that they purchased Happy Belly Ground Thyme from Amazon on multiple occasions between 2017 and 2022, and Amazon neither lists the toxic heavy metals in the spices’ ingredients list nor warns consumers that the metals may be present. Had they known that the product potentially contained toxic heavy metals, plaintiffs say, they would not have purchased nor consumed it.
The complaint states that the presence of toxic heavy metals in Amazon’s Happy Belly brand came to light following a Consumer Reports investigation that found a number of the products it tested contained “high enough levels of arsenic, lead and cadmium combined, on average, to pose a health concern.” Exposure to toxic heavy metals can cause a number of health concerns for both children and adults, the complaint says, including decreases in IQ, increased risk of antisocial behavior, skeletal deformities, and issues with the nervous system.
June 20, 2022 – Intellectual Property
‘Best Lawyers’ Accuses Magazine of Infringement re Lawyer Rankings
BL Rankings LLC, which does business as Best Lawyers, has sued Washingtonian Media Inc. in federal court in the District of Columbia, accusing defendant’s Washingtonian magazine of infringing BL Rankings’ trademarks when defendant published a directory and lawyer referral service entitled “Washington D.C.’s Best Lawyers” in December 2020.
Washingtonian magazine even offered featured lawyers the use of a “Best Lawyers” badge, despite allegedly knowing of BL Rankings’ trademark, according to the complaint.
BL Rankings says in its lawsuit that Washingtonian’s lawyer directory seems to have spurred confusion among lawyers and law firms that placed ads with the magazine “under the mistaken belief” that they were advertising in BL Rankings’ “Best Lawyers” publication, or that the Washingtonian directory was somehow related to plaintiff’s “Best Lawyers” publication.
June 17, 2022 – Securities
SEC Charges Dental Ultrasound Start-Up With Fraudulently Raising $2 Million from Investors
The U.S. Securities & Exchange Commission has filed charges against S-Ray Incorporated and its CEO for raising at least $2 million from dozens of investors since at least 2018 by making false claims about customers, orders for its products, and revenue potential.
According to the complaint filed in federal court in Takoma, Wash., S-Ray was founded in 2010 to develop ultrasound technology for use in dentistry. By 2018, the complaint says, the company had only developed a couple of prototypes and had not sold any products. But S-Ray shares continued to be sold to investors, many of whom were dentists and orthodontists, by misrepresenting that the company had booked $1 million worth of orders from customers and that it would soon be earning tens of millions of dollars in annual revenue.
The SEC’s complaint further alleges that S-Ray’s CEO told investors that additional investments in the company would be used for revenue-generating purposes and that he would forgo his salary and bonus, giving the false impression that he was not benefiting from S-Ray’s securities offering. However, the complaint says, from May 2019 through May 2021, the CEO used almost half of the proceeds from the securities offering to pay himself and his wife back for loans that he purportedly had made to S-Ray.
June 16, 2022 – Cybersecurity
IRA Financial, Gemini Accused of Negligence Over Data Hack
IRA Financial Trust Co. and Gemini Trust Co. face a proposed class action brought by a consumer who claims the companies were negligent in securing his retirement accounts, resulting in the theft of $36 million in cryptocurrency during a 2022 data breach.
Both IRA Financial, a trust company that offers self-directed retirement accounts, and Gemini, a cryptocurrency exchange that partners with IRA, blame the other company for the February breach, which — according to the lawsuit filed in San Francisco federal court — compromised the names, Social Security numbers, and financial accounts of the affected customers.
As a result of the data breach, the complaint states, plaintiff and the proposed class “suffered ascertainable losses in the form of actual monies, loss of the benefit of their contractual bargain, out-of-pocket expenses and the value of their time reasonably incurred to remedy or mitigate the effects of the attack.” Further, the complaint claims, plaintiff’s retirement savings — “the most sacred monies for any person” —were compromised, unlawfully accessed, and stolen” due to the breach.
June 15, 2022 – Constitution
Challenge to New York Prisons’ Ban of Attica Riot History Book
The author of a Pulitzer Prize-winning book, “Blood in the Water: The Attica Prison Uprising of 1971,” has filed a lawsuit in Manhattan federal court, alleging New York State has unlawfully blocked the book from being distributed to prison inmates in the state.
The author, Heather Ann Thompson, filed her suit jointly with the New York Civil Liberties Union Foundation and the Cardozo Civil Rights Clinic. She claims the state’s action is an attempt to obscure the history of the five-day prison rebellion that transpired in the fall of 1971 at the Attica prison in upstate New York, and this censorship of the book constitutes a violation of the First and Fourteenth Amendments.
“People incarcerated in multiple other states have had the opportunity to access ‘Blood in the Water,’ benefiting from the historical perspective it offers, as well as the book’s key insights into the importance of recognizing the humanity of incarcerated individuals and the consequences of an inhumane criminal justice system,” according to the complaint. “But not in New York, where defendants, state prison officials purporting to act under a media censorship program, have barred incarcerated people from accessing ‘Blood in the Water,’ blocking Professor Thompson herself from sharing the book with people in state prisons and denying her the opportunity to contest this censorship.”
June 14, 2022 – Consumer Fraud
Hellmann Lawsuit Alleges Mayo Dressing Label Overstates Olive Oil Content
Unilever Inc. is facing a proposed class action filed in federal court in White Plains, N.Y., alleging its Hellman’s brand mayonnaise dressing misrepresents that it is made “With Olive Oil,” when the actual olive oil content is minimal.
Unlike most vegetable oils, which are highly processed using chemicals, olive oil is made without additives or harsh processing, according to the complaint. Olive oil also has heart-healthy fats, antioxidants and oleic acid, which have health benefits, the complaint says, adding that sales of olive oil currently exceed the sales of all other vegetable oils combined.
Plaintiff claims in her lawsuit that Unilever markets its Hellmann’s Mayonnaise Dressing to the growing number of consumers seeking to consume foods that contain healthier ingredients like olive oil. The Hellmann’s Mayonnaise Dressing label prominently states that the product is made “With Olive Oil” and includes pictures of two olives on a branch with leaves, plaintiff says. However, the ingredients list shows that the most predominant oil in the product is soybean oil. The amount of olive oil contained in the Hellmann’s mayonnaise product is “insufficient to confer any of the health benefits associated with olive oil,” plaintiff contends.
June 13, 2022 – Labor & Employment
Google Accused of Systemic Bias Against Black Employees
A proposed class action accuses Google of systemic racial bias against black employees, alleging the company steers them to lower-level jobs, pays them less, and denies them opportunities to advance because of their race.
According to the complaint filed in federal court in San Jose, Calif., Google maintains a “racially biased corporate culture” that favors white men, where black people comprise only 4.4% of employees and about 3% of those in its technology workforce.
Plaintiff claims in her lawsuit that Google subjected black employees to a hostile work environment, including by often requiring that they show identification or be questioned by security at its Mountain View, California campus. Google hired her in 2014 to design an outreach program to historically black colleges, plaintiff says, adding that her hiring proved to be a “marketing ploy,” as supervisors began denigrating her work, stereotyping her as an “angry” black woman, and passing her over for promotions. Plaintiff says Google fired her in September 2020 after she and her colleagues began working on a list of desired reforms.
June 10, 2022 – Product Liability
Class Action Claims McDonald’s Fails to Disclose PFAS in Its Food Products
McDonald’s fails to disclose to its customers that its food products, including the popular Big Mac, contain unsafe PFAS (highly toxic chemicals), alleges a proposed class action filed in federal court in Benton, Ill.
In his lawsuit, plaintiff claims McDonald’s misleads consumers into believing its food is safe to eat by not disclosing that it contains PFAS which, plaintiff says, are harmful to both humans and the environment. “The use of PFAS in its Products stands in stark contrast to McDonald’s brand identity which espouses food safety,” plaintiff argues. “In almost every medium, McDonald’s Corporation tells consumers, investors, and the general public that the Products are safe.”
According to the complaint, exposure to PFAS can cause a number of adverse health effects, including liver damage, cancer and increased risk of asthma, among other things. “Because PFAS persist and accumulate over time, they are harmful even at very low levels,” the complaint says, adding that McDonald’s has the resources to ensure PFAS are not in its food products but chooses to intentionally include them as a way to cut costs.
June 9, 2022 – Trade Secrets
Qualcomm Says Former Employee Stole Trade Secrets
Chipmaker Qualcomm Technologies Inc. has sued one of its former engineers in San Diego federal court, alleging he breached a confidentiality agreement and stole company trade secrets before accepting a job offer from another unnamed “major technology company.”
In its lawsuit, Qualcomm asks the court to ban defendant from using its secrets, and it also petitions the court for an undisclosed amount of money damages. According to the complaint, defendant signed a confidentiality agreement when he was hired, and he also deliberately circumvented the company’s security measures by taking screenshots of confidential files and sending the images to himself.
The suit claims that defendant began taking confidential files in December 2021, that he falsely told the company he had deleted them, and that he took more secret information in January. In all, Qualcomm says, defendant had taken hundreds of files from its network without permission.
June 8, 2022 – Antitrust
S&P Global Accused of Conspiring to Eliminate Competition in Financial Instruments
A proposed class action filed in Manhattan federal court by two investment management firms say S&P Global and CUSIP Global conspired to eliminate competition for the Committee on Uniform Securities Identification Procedures (CUSIP), which are used to identify financial instruments.
Banks have used CUSIPs for years to identify and settle certain financial instruments and, prior to the 1980s, would historically work with S&P Global and CUSIP Global in doing so, according to the complaint. However, in the 1980s, plaintiffs say, competition for CUSIPs arose from data vendors such as Bloomberg LP, which began offering “rich sets” of value-added data services that included CUSIPs. “As a result, S&P and [CUSIP Global] lost their contractual relationships with Financial Case Institutions and therefore could no longer control the Financial Institutions’ use of the CUSIPs they received from their Data Vendors,” the complaint states.
Plaintiffs claim this new competition “threatened S&P’s monopoly power over the CUSIP Use Market.” In response to this threat, plaintiffs allege, S&P Global and CUSIP Global started putting clauses in their contract agreements with data vendors that “purported to give S&P and [CUSIP Global] control … over the use of CUSIPs by the financial institutions.” These clauses, plaintiffs say, had the effect of preventing data vendors from offering CUSIPs to any financial institution that did not sign a licensing agreement directly with S&P Global.
June 7, 2022 – Securities
Shareholder Action Says Netflix Failed to Warn About Subscription Loss
A Netflix shareholder has sued the company for violating securities laws after a decline in subscribers led to a sharp drop in the company’s stock price.
The lawsuit, filed San Francisco federal court, seeks class action status “on behalf of all others similarly situated” who lost money — specifically, whoever owned Netflix shares between Oct. 19, 2021, and April 19, 2022. The suit names Netflix, co-CEOs Reed Hastings and Ted Sarandos and CFO Spencer Neuman as defendants.
Plaintiff alleges that defendants “failed to disclose material adverse facts” in a timely manner, causing shareholders “significant losses and damages.” Specifically, plaintiff says, Netflix failed to disclose to investors that the company was exhibiting slower acquisition growth due to, among other things, account sharing by customers and increased competition from other streaming services, and that as a result the company’s financial results were being adversely affected. The company’s “positive statements about [its] business, operations, and prospects,” the suit claims, “were materially false and/or misleading and/or lacked a reasonable basis.”
June 6, 2022 – Intellectual Property
Walmart Patent Suit Challenges BJ’s Self-Checkout App Feature
Walmart Inc. has filed a lawsuit in federal court in Orlando, Fla., alleging the Express Pay function of BJ’s Wholesale Club Holdings Inc.’s mobile app infringes four Walmart patents for technology that allows shoppers to scan products while in a store and make payments without having to go through a checkout line.
The patents at issue in the suit cover Sam’s Club’s Scan & Go, a free feature launched in 2016 by Walmart’s Sam’s West Inc. and Walmart Apollo LLC units. In 2021, BJ’s, a membership-based big-box store that competes with Sam’s Club, released its Express Pay functionality included as part of the BJ’s Mobile App.
According to the complaint, BJ says its Express Pay enables BJ’s Wholesale Club members to scan items to BJ’s Mobile App as they shop to make checkout faster. “[BJ’s] Express Pay is an apparent copy of Sam’s Club’s Scan & Go, merely changing the in-app colors and changing the name from Scan & Go to Express Pay,” Walmart claims.
June 3, 2022 – Constitution
Lawsuit Says Connecticut’s Prison Debt Law Is Unconstitutional
Two former inmates have filed a civil suit that seeks to overturn a 25-year-old statute that allows the state government to charge inmates a daily fee for their imprisonment.
In a proposed class action filed in Connecticut federal court, plaintiffs are asking the court to declare their prison debt invalid and the statute permitting the collection of such debt to be null and void, in violation of the Eighth Amendment (Excessive Fines Clause) of the U.S. Constitution. The daily incarceration fee in Connecticut is $249, or $90,885 annually, according to the complaint. The statute says that this fee is meant to recoup the state’s expenditure in feeding and sheltering inmates, but the suit claims that it traps former inmates in an oppressive debt cycle — a second incarceration — from which there is no escape.
“For people in prison, Connecticut’s prison debt laws mean that the state can collect against nearly all their property at any time. Once a person is released, prison debt follows them for decades, decimating inheritances from deceased loved ones, proceeds from lawsuits (even for injuries sustained in prison), and, ultimately, anything a person leaves upon their death,” the complaint says. “Even after a person serves their designated sentence, the prison debt laws punitively and arbitrarily impose an additional sentence, just in a different form.”
June 2, 2022 – Product Liability
Fiat Chrysler Allegedly Failed to Disclose Vehicles Can Explode, Catch Fire
A proposed class action filed in San Diego federal court claims Fiat Chrysler Automobiles (FCA) failed to warn buyers about a defect in its 2017-2018 Chrysler Pacifica Plug-in Hybrid Electric Vehicles (PHEV) that causes them to explode and catch fire.
In his suit, plaintiff says that an FCA internal investigation revealed that 12 Chrysler Pacifica PHEV had caught fire due to a defect, and that the auto manufacturer doesn’t know the root cause of the issue. “The Class Vehicles are at risk of exploding or catching fire due to an unknown root cause, resulting in an immediate risk to the vehicles’ occupants or the property surrounding the vehicles,” plaintiff contends.
Plaintiff, who says he purchased a 2018 Chrysler Pacifica PHEV in February 2018, says FCA subsequently told drivers that a remedy was “under development” and to abstain from charging the vehicles or parking them near buildings for the time being. The restrictions have caused vehicle owners and lessees to be “burdened with vehicles that do not perform as advertised and cannot be safely parked like other cars,” according to the complaint.
June 1, 2022 – Consumer Fraud
Walgreens Accused of Overcharging Health Plans for Drugs
Blue Cross and Blue Shield and other health care plans allege that Walgreen Co. engaged in a fraudulent scheme to overcharge for prescription drugs by submitting claims for payment at inflated prices and made false statements to conceal the scheme.
Walgreens overcharged the plaintiffs hundreds of millions of dollars, according to the complaint filed in Chicago federal court. When patients covered by the plaintiffs fill prescriptions at a Walgreens pharmacy, Walgreens is required to accurately submit in those claims its “usual and customary” (U&C) prices that cash-paying customers pay, the complaint says, adding that the U&C price acts as a reimbursement ceiling ensuring that plaintiffs don’t pay more than cash-paying customers.
But Walgreens created a program under which it submitted U&C prices to plaintiffs that were “five, ten, or twenty times higher” than what cash customers paid, the complaint alleges, saying that “Walgreens knowingly and wrongfully overcharged the plaintiffs by submitting false and inflated U&C prices to the plaintiffs.”