Dr. A. Cemal Ekin, filed a class action lawsuit in Washington federal court against internet retail giant, Amazon Services, LLC, on February 19, 2014 for allegedly advising vendors to increase item prices to offset “free” shipping offered to Amazon Prime members.
According to the complaint, Amazon sold Prime memberships to consumers for $79 per year, which entitled them to free shipping on Prime-Eligible items. As alleged in the complaint, prior to February 22, 2011, free shipping was the only benefit to consumers who purchased Prime memberships. Amazon allegedly encourages third-party vendors utilizing Amazon’s “Fulfillment by Amazon” (“FBA”) service, in which Amazon warehouses, sells, ships, handles returns, and provides payment and collection services for third-party-owned goods sold on Amazon.com, to list items for sale as Prime-Eligible. Vendors utilizing the FBA service are charged a fee by Amazon in exchange for having their items show up first in the list of customer search results.
Ekin alleges that “Amazon advised FBA Vendors to include the amount they would have charged for shipping in their item prices in order to maximize total revenue and profit margins.” Ekin argues that Amazon’s practices are not only a breach of contract, but violate Federal Trade Commission (“FTC”) guidelines. The lawsuit cites to the FTC’s definition of “free,” which explains that “a purchaser has a right to believe that the merchant will not directly and immediately recover, in whole or in part, the cost of the free merchandise or service by marking up the price of the article which must be purchased.”
Ekin has alleged causes of action for breach of contract and violations of the Washington Consumer Protection Act. He seeks compensatory damages, treble damages, attorneys’ fees, and interest on behalf of all US residents who became Amazon Prime members between October 24, 2007 and February 22, 2011, and paid one or more $79 annual Prime membership fees during that period.
If you or someone you know has been the victim of consumer fraud or breach of contract, you may be entitled to relief. Please call Khorrami Boucher Sumner Sanguinetti, LLP for a confidential consultation.
Two Florida based companies reached a settlement in a class action lawsuit over alleged violation of the Telephone Consumer Protection Act of 1991 (“TCPA”). Palm Beach Mall Holdings LLC and Upscale Events by Mosaic LLC have agreed to pay $6.5 million to avoid litigation.
The TCPA was created to protect consumers from harassing conduct by telemarketers and was intended to limit the ability of telemarketers and other companies from contacting consumers unsolicited. New technologies such as “robodialers” and mass text messaging made it easier for companies to contact large numbers of consumers. Under the TCPA, companies may not send out mass-messages using an autodialer unsolicited.
According to the lawsuit, the two companies contacted consumers to alert them of an upcoming job fair in the air. The companies allegedly obtained thousands of consumers’ cellular phone numbers from public voting records in order to make the mass messages.
If you or anyone you know has been of a victim of unsolicited, corporate mass messaging, please contact Khorrami Boucher Sumner Sanguinetti, LLP for a private consultation.
General Motors, the maker of Chevrolet and Pontiac vehicles, has issued a recall of 778,562 of its 2005-2007 Chevrolet Cobalt compact vehicles and 2007 Pontiac B5 compacts, according to reports. At least 22 accidents, and 6 deaths, have been attributed to faulty ignition switches in the Cobalt and G5, which have been shown to turn off suddenly if the ignition is jolted while driving.
In some cases, the ignition switch defect has prevented deployment of the airbags in the affected vehicles during front-end collisions. According to a report, GM acknowledged that these ignition switches may not have met specifications, and has issued the voluntary recall to address safety concerns. Owners of 2005-2007 Chevy Cobalts and 2007 Pontiac G5s who have yet to be contacted about the recall are warned not to use heavily loaded key-chains, as the extra weight may cause the ignition switch to shut off without warning. (See, report.)
In certain circumstances, a manufacturer, such as GM, can be strictly liable for manufacturing and selling a product with a defect in design that causes injury to the consumer (See, McCabe v. Am. Honda Motor Co., Inc. (2002) 100 Cal.App.4th 1111, 1120; Barker v. Lull Engineering Co. (1978) 20 Cal. 3d 413, 428. Strict liability means that the manufacturer can be liable to pay a consumer damages, even if they didn’t intend injury, or act negligently, in manufacturing their product.
If you or someone you know has been injured due to a defect in product design, whether or not it relates to an auto accident, please contact Khorrami Boucher Sumner Sanguinetti, LLP for a confidential consultation concerning your legal rights and remedies.
On January 31, 2014, a middle school student in Kennebunk, Maine suffered second-degree burns when her iPhone 5c caught fire in her pants. The 14-year old girl had just sat down before class was to start when she and her friends heard a pop from the phone in her pocket, and smoke immediately started billowing around her. As her pants caught fire, other students rushed to her aid and helped put the fire out.
This is not the first time an Apple product has allegedly burst into flames and caused injury. There have been numerous accounts of similar fires and injuries both in the United States and abroad. Most recently, on August 20, 2013, a California man was charging his iPhone 4 when it suddenly burst into flames reaching at least one-foot in height. He contacted Apple to inform them and figure out whether the smoke he had inhaled was toxic, but they refused to answer and instead offered him only a replacement phone. The California man did not file suit.
Again, in 2009, an iPod Touch exploded in its owner’s pocket causing him second-degree burns. A lawsuit was filed against Apple, alleging that Apple failed to provide adequate warnings as to the risks of their products. The lawsuit was ultimately settled outside of court for an undisclosed amount.
As this issue grows increasingly more common, it will likely result in a slew of lawsuits against Apple.
If you or someone you know has been harmed as a result of a product’s failure to warn, please contact Khorrami Boucher Sumner Sanguinetti, LLP for a private consultation.
New Jersey based drugmaker Merck has agreed to settle thousands of lawsuits brought by women and families of women, who have suffered severe side effects, including heart attacks, stroke, and death, from use of Merck’s NuvaRing contraceptive ring. The settlement was announced just one day after the American Heart Association issued new guidelines recommending that women using an oral contraceptive, which includes NuvaRing, get screened for high blood pressure because the contraceptive “can up risks for blood clots and stroke.” Severe side effects connected to NuvaRing include blood clots, strokes, heart attacks, high blood pressure, heart disease, and cancer of the reproductive organs and breasts.
Merck has refused to acknowledge any wrongdoing, and still supports the research that led to the approval of NuvaRing, but has stated it will settle all U.S. litigation involving the product to avoid further litigation. The settlement will also cover some patients eligible to sue Merck but who have yet to file suit.
The settlement could resolve as many as 3,800 cases, including lawsuits filed in New Jersey by more than 200 women who accused the drugmaker of selling NuvaRing despite knowing it posed a higher risk of heart attack-inducing blood clots than competing products.
If you have purchased the NuvaRing contraceptive, experienced a negative side effect, or had a family member die from side effects linked to the NuvaRing contraceptive, contact Khorrami Boucher Sumner Sanguinetti, LLP for more information and a free consultation regarding your possible claims.
On January 9, 2014, William Q. Hayes, United States District Court Judge for the Southern District of California, granted final approval to a class action settlement against luxury fashion house Louis Vuitton. The class action lawsuit alleged that a California Louis Vuitton store requested and received personal identification information from its credit card customers in violation of Section 1747.08(a) of the California Civil Code, which specifically prohibits retailers from requesting and recording personal identification information, such as an address, zip code, phone number, and email address, when making certain credit card transactions with customers.
Louis Vuitton denies the allegations, but decided to settle the class action lawsuit, entitled Deanna Morey v. Louis Vuitton North America, Inc., to avoid further litigation. Under the terms of the settlement, Louis Vuitton has agreed to reward Louis Vuitton Merchandise Certificates, in the amount of $41, to over 23,000 consumers who submitted valid claims.
If you or a loved one feels they have been misled by deceptive sales practices, please contact Khorrami Boucher Sumner Sanguinetti, LLP for a confidential evaluation of your rights.
On January 23, 2014, Thamar Santisteban Cortina filed a class action lawsuit against Pepsico, Inc., in San Diego federal court (Case No. 3:14cv168), accusing the soft drink giant of using dangerous chemicals in Pepsi’s caramel coloring without warning consumers.
Cortina alleges that Pepsi soft drinks contain dangerous levels of the carcinogen 4-methylimidazole (“-MeI”), an impurity in the caramel coloring used in the soft drinks. According to a study by the National Toxicology Program, laboratory animals developed significant increases in cancerous lung tumors after exposure to 4-MeI. California law requires manufacturers of beverages containing more than 29 micrograms of 4-MeI per 12-ounce serving to include “clear and reasonable” warning labels. The lawsuit alleges that Pepsi beverages containing harmful levels of 4-MeI do not contain the warning labels required by Proposition 65 and that Cortina and other California consumers would not have purchased the beverages had they known they contained carcinogens.
This lawsuit coincides with a January 23, 2014, Consumer Reports article, reporting that Pepsi, Diet Pepsi, and Pepsi One beverages purchased in California each contained more than 29 micrograms of 4-MeI per 12-ounce serving. Pepsico responded by stating that consumers who drink diet sodas generally drink less than a third of a 12-ounce can per day, and therefore the soft drinks do not require cancer-risk warning labels, even if they contain more than 29 micrograms of 4-MeI per can. Consumer Reports has alerted the California Attorney General’s office and the FDA of their findings. According to Consumer Reports, “the FDA said it does not believe that 4-MeI from caramel color at levels currently in food pose a risk. However, they appreciated Consumer Reports’ tests and are currently doing their own tests of foods, including sodas, for 4-MeI.”
Cortina has also filed a separate but similar lawsuit against Goya Foods, Inc. in San Diego federal Court (Case No. 3:14cv169), alleging the soft drink “Malta Goya” contains more than 29 micrograms of 4-MeI per 12-ounce serving without cancer-risk warning labels. Cortina alleges that both Pepsico and Goya knew about the risks associated with 4-MeI bust deliberately concealed them from consumers. Both lawsuits allege negligence, false advertising, misrepresentations, and violations of the California Unfair Competition Law and Consumer Legal Remedies Act for failure to warn consumers of unsafe levels of 4-MeI.
If you believe you have purchased a product containing harmful ingredients or have purchased a product based upon false advertising, you may be entitled to relief. Please call Khorrami Boucher Sumner Sanguinetti, LLP for a confidential consultation.
A California federal judge recently refused to dismiss a putative class action lawsuit alleging thatGerber Products mislabels its baby food products. U.S. District Court Judge Lucy H. Koh denied Gerber’s motion to dismiss the class action, but dismissed some of the class claims.
The class, led by California resident Natalia Bruton, alleges Gerber labeled baby food products as an “Excellent” and “Good” source of vitamins and minerals. The labels also state Gerber’s products are “Healthy” for growth and immune support with “No Added Sugar.”
Bruton claims that federal law restricts companies making nutritional, sugar content, or health claims for food products targeted for children under the age of two. Addressing this claim, Judge Koh stated that Bruton must be more specific about how Gerber violated federal law.
“In the absence of any federal regulatory authority that imposes upon Gerber a duty to disclose its own labeling misstatements, the Court concludes that Bruton is attempting to impose a labeling requirement that is not identical to federal requirements,” said Koh.
Bruton’s claim for violations of California’s Unfair Competition Law (“UCL”), however, survived Gerber’s motion.
Judge Koh explained that food misbranding cases require actual reliance and injury “to establish statutory standing under the UCL’s “unlawful” prong whenever the underlying alleged misconduct is deceptive or fraudulent.” Because Bruton adequately plead injury and reliance, she may proceed with the prosecution of her UCL claim.
Gerber products at issue include Gerber Nature Select, Gerber Yogurt Blends, Gerber Graduates Fruit, Gerber Organic SmartNourish, Gerber Organic SmartNourish, and Gerber Single Grain Cereals brands. Judge Koh removed some products from the class action’s original lawsuit because they were not similar enough to the products purchased by Bruton.
The Gerber Class Action is being litigated in the U.S. District Court for the Northern District of California. See Bruton v. Gerber Products Co., et al., Case No. 5:12-cv-02412.
On March 10, 2010, Trevor Brady was riding his bicycle near a construction site when he ran into several iron beams protruding from a backhoe two feet into the sidewalk. Trevor’s cheek was torn off, and he suffered other facial lacerations and injuries to his teeth. He was 13 years old.
The Defendant, Plocher Construction, immediately accepted liability for the accident. The case went to trial on the issue of damages. According to the lawsuit, Plaintiffs sought $3.5 million for disfigurement, loss of normal life, pain and suffering and emotional distress. However, the defense asked the jury to award the Plaintiff only his actual medical expenses: $250,000. The defense argued that Trevor was living a normal life, which included dating and planning to go to college.
At the conclusion of trial, Jurors awarded $725,000 to Trevor to compensate him for his injuries, which required plastic and oral surgeries, and over 60 visits to physicians. The jury also awarded Trevor’s parents $185,000.
If you or someone you know has been injured in a bicycle accident, or as a pedestrian, in connection with a dangerous condition on or near a construction site or a public roadway, you are encouraged to contact Khorrami Boucher Sumner Sanguinetti, LLP for a confidential consultation. You may be entitled to compensation for you injuries, including economic and non-economic damages.