On April 11, 2014, Prisoner Legal News (PLN), a project of the Human Rights Defense Center (HRDC), filed a lawsuit against Lewis County of the State of Washington and several of its employees directly involved in the operation of Lewis County Jail. The complaint alleged that defendants violated several of the prisoners First and Fourteenth Amendment rights by enforcing a “post card only” policy. PLN also asserted that the rights of the individuals who attempted to correspond with these prisoners were also violated.
PLN publishes and distributes a 64-page monthly magazine that reports on criminal justice issues as well as prison and jail related civil ligation with an emphasis on prisoner rights. From September 2013 through October 2013, PLN mailed informational brochures to several prisoners of Lewis County Jail. Unbeknownst to PLN, the Lewis County Jail had a “post card only” policy. This policy prompted the County Jail employees to return over 45 mailings to PLN due to their “unauthorized status.”
On April 21, 2014, PLN filed a motion for a preliminary injunction to stop Lewis County from enforcing their “post card only” policy during litigation. Although the Lewis County Jail argued that the policy has since been changed and that the case is now moot, Judge J. Richard Creatura of the U.S. District Court of Washington at Tacoma stated that “there is substantial evidence to believe that this policy has not been adopted.”
In a 27-page order, Judge Creatura granted PLN’s injunction and enjoined defendants from restricting incoming and outgoing prisoner mail to postcards only, and ordered defendants not to refuse to deliver or process prisoner personal mail on the ground that it is in a form other than a postcard.
In this order, Judge Creatura explained that in order to obtain a preliminary injunction, four elements must be met: (1) that plaintiff is likely to succeed on the merits, (2) that plaintiff is likely to suffer irreparable harm in the absence of preliminary relief, (3) that the balance of equities tips in plaintiff’s favor, and (4) that the injunction is in the public interest. In his discussion of how these elements were met, Judge Creatura also stated that the post card only policy “prevents family members from sending items like photographs, copies of bills, and medical information; None of these things can be easily replaced by telephone calls or regular visitation.”
If you or someone you know have experienced what you believe is a violation of Constitutional rights, you may be entitled to relief. Please call Khorrami Boucher, LLP for a confidential consultation.
General Motors agrees to set up a victim’s compensation fund to pay for 19 deaths caused by faulty ignition switches in their vehicles. The estimate of deaths due to ignition switch problems originally stood at 13, but has recently risen to 19 deaths and is likely to go higher. Compensation expert for General Motors, Kenneth Feinberg, has determined that 19 wrongful death claims are eligible for compensation. Due to confidentiality agreements, Feinberg is not at liberty to identify any of the victims eligible for payment, or to state whether the 19 wrongful death claims include the 13 deaths originally documented by General Motors.
The ignition switch defect responsible for the 19 deaths was installed in 2.6 million GM cars and causes the ignition to slip out of the “run” position which stalls the vehicle and disables the car’s airbags. Although GM admitted to knowing about the ignition switch problem for over a decade, it did not begin recalling the vehicles until earlier this year. Feinberg has received 125 death claims due to faulty ignition switches in older Chevrolet models and over 320 claims for compensation due to injuries. Of the 320 injury claims, 58 fell into the most serious category seeking compensation for injuries resulting in amputation, permanent brain damage, and loss of limb. The remaining 262 claims fall into less serious injuries that resulted in hospital stays or outpatient medical treatment within 2 days of the car accident. Feinberg has not released the dollar amount that GM plans to offer each eligible claim, but GM estimates that it will cost $400 million to compensate all victims, acknowledging that it can rise to $600 million.
The compensation fund began accepting claims on August 1st, and the deadline for filing a claim is December 31st. The fund accepts claims from anyone who was a driver, passenger, pedestrian, or an occupant of another vehicle that was injured in a car accident caused by the ignition switch defect. Those who file a claim and accept compensation, agree not to sue GM, while those who do not take part in the compensation fund are free to file a lawsuit against GM.
If you or someone you know has suffered injuries as result of a defective product, you may be entitled to relief. Please contact Khorrami Boucher LLP for a confidential consultation.
Plaintiff Aaron Siani says Southwest Airlines secretly recorded a cellphone conversation without his consent, in violation of his right to privacy. On September 1, 2014, Siani received a call from a Southwest customer service agent regarding a refund for airline tickets he had previously purchased. After providing personal information to the representative, Siani asked whether the conversation was being recorded and the representative acknowledged in the affirmative that it was. Had he known that the conversation was being recorded, Siani says that he would have been more careful with the sensitive information that he communicated to the representative.
On September 7, 2014, in California federal court, Plaintiff Siani brought a class action suit against Southwest Airlines Co. alleging that the airline has a uniform practice of having employees record cellphone conversation without customers’ consent, in violation of California state law. California Penal Code Section 632 requires that all parties must consent to an electronic amplifying or recording device. As a “two-party state,” California customers must be notified of the recording and must give consent prior to being recorded. Siani says that he did not give consent, and had to ask the Southwest representative whether the call was being recorded before he was informed that it was.
The class action suit seeks an injunction, $5,000 per violation per each class member, and an order preventing Southwest Airlines from recording calls to Californians without consent and to maintain client confidentiality in regards to the information that airline representatives receive. According to the complaint, the class may include more than 10,000 members of California residents whose phone conversations with Southwest were recorded without their consent in the past year.
If you are someone you know has suffered injuries as a result of illegal recordings of confidential communications, you may be entitled to relief. Please contact Khorrami Boucher, LLP for a confidential consultation.
A Pennsylvania police officer is facing claims filed against him for having fatally shot a man inside his own home before the police obtained a mental health warrant.
On November 7, 2012, “an employee or agent of Community Counseling Services requested that a mental health commitment warrant be issued against” Brian Williams after he allegedly “threatened to kill his wife” during a counseling session. Police officers from Overfield Township, including police officer Mark Papi, subsequently went to William’s home despite not having the warrant yet at the time of their arrival.
When Williams refused to exit, the officers “did a number of things to further antagonize” Williams, who was suffering from a mental health breakdown at the time. The officers pepper-sprayed the Williams family dogs and also prevented Williams’ wife and mother from going inside the house, even though Williams said he would “come out as long as he got to talk to his wife and mother.” After finally expressing a willingness to come out, the officers, rather than wait for William’s peaceful exit, instead took out their shields and guns and entered through the front and basement doors. Williams was knocked down and shocked with taser guns; shortly thereafter Officer Papi, who was instructed to “stay outside, in the perimeter of the home,” charged into the home and shot Williams; Officer Papi was the “only officer who discharged his weapon,” and Williams’ cause of death was listed as “multiple gunshot wounds.”
On July 3, 2014, Judge Robert Mariani denied Papi’s Motion to dismiss the unreasonable seizure as well as assault and battery claims filed against him in the United States District Court for the Middle District of Pennsylvania, arguing that he was entitled to qualified immunity under the Fourth Amendment. The opinion noted that the defendant Papi made a lot of “assertions of fact in support of his Motion that either involve gross generalizations or cannot reasonably be implied from the facts of the Complaint.” An example cited was defendant’s assertion that Williams was in a “dangerous state of mind, as revealed by the indisputable fact that police were at his residence to execute a mental health warrant . . . .” Judge Mariani rejected these assertions noting that, “it cannot be said that a passive individual with a mental health warrant against him is just as dangerous as an obstreperous one . . .the circumstances of William’s own death . . . cannot be generalized according to abstract notions of ‘danger’ . . . .”
In denying the motion, Judge Mariani concluded that there is “no reason to believe that qualified immunity exists as a matter of law.”
If you or someone you know has been a victim of police misconduct, you may be entitled to relief. Please call Khorrami Boucher, LLP for a confidential consultation.
A class action lawsuit recently filed against Whole Foods asserts that the popular specialty food retailer is mislabeling products as “organic” or “all natural”—in spite of such products not meeting those standards—to trick consumers into paying premium prices.
Arkansas woman Connie Stafford is seeking damages on behalf of herself and any Arkansas resident who purchased the following products from Whole Foods: 365 Everyday Value Cola, 365 Everyday Value Ginger Ale, 365 Everyday Value Root Beer, 365 Everyday Value Organic Tomato Ketchup, or 365 Everyday Value Organic Chicken Broth. The complaint alleges violations of state consumer protection laws. (Connie Stafford v. Whole Foods Market California Inc., Case No. 14-cv-00420, in the U.S. District Court for the Eastern District of Arkansas).
The Whole Foods class action argues that those laws “recognize that the failure to disclose the presence of risk-increasing nutrients is deceptive because it conveys to consumers the impression that a food makes only positive contributions to a diet, or does not contain any nutrients at levels that raise the risk of diet-related diseases or health-related conditions.” The five products listed above feature labels with phrases like “organic” or “all natural.”
Despite those labels, however, Whole Foods’ store brand cola includes synthetic ingredients, such as caramel coloring and tartaric acid; the root beer and ginger ale both contain carbon dioxide and citric acid. According to the class action, Whole Foods designed its marketing campaign to increase sales of those products. The class action also contends that “a reasonable person would attach importance to the [mislabeling]…in determining whether to purchase the products at issue.”
Plaintiff Stafford’s lawsuit is only one of an increasing number of lawsuits being filed across the country where consumers seek monetary damages and an injunction on purportedly illegal terms on food and beverage labels, such as “all natural” and “organic.” Cases like the Whole Foods class action have been popping up in courts across the nation, and false advertising has become a hot-button issue, especially in California.
According to Food-NavigatorUSA.com, California federal judges have allowed class actions against companies like Blue Diamond and Dole to proceed. Moreover, a California judge recently granted final approval of $3.4 million settlement in a class action against Trader Joe’s.
If you or someone you know has suffered injuries as a result of false or misleading advertising, you may be entitled to relief. Please contact Khorrami Boucher, LLP for a confidential consultation.
On July 9, 2014, a federal judge granted approval of a $10.2 million settlement in the Suave Keratin class action lawsuit, which alleged that Unilever PLC—the manufacturer of the Suave Keratin Infusion 30-Day Smoothing Kit—had engaged in the sale of defective products. The class action, filed in 2012 (Sidney Reid, et al. v. Unilever United States Inc., et al., Case No. 1:12-cv-06058, in the U.S. District Court for the Northern District of Illinois), alleged that Unilever’s Suave Keratin Smoothing Kit caused consumers to suffer hair loss and/or scalp injury.
Class members of the Suave Keratin class action settlement include all individuals who purchased the Suave Professionals Keratin Infusion 30-Day Smoothing Kit in the United States for personal or home use prior to February 17, 2014.
The lawsuit claimed that Unilever allured consumers into buying the Suave Keratin Infusion Smoothing Kit by making false and misleading statements about the safety of its hair product. Specifically, this class action argued that Unilever failed to disclose to consumers the unreasonable risk of hair and/or scalp injury associated with use of the Suave Keratin 30-Day Smoothing Kit.
Unilever denies such allegations but has agreed to the settlement to avoid the burden of ongoing litigation. Under the terms of the settlement, a Reimbursement Fund worth $250,000 and an Injury Fund worth $10 million will be created. The Injury Fund will compensate injured class members for their medical expenses and emotional distress.
The settlement provides that class members who suffered Smoothing Kit injuries may submit reimbursement claims ranging between $40 and $25,000, based on the extent of their injuries and proof of their treatment costs. Additionally, class members who did not suffer injury from the Smoothing Kit may receive reimbursements of up to $10.
U.S. District Judge Ruben Castillo granted approval of the Unilever class action settlement after the final fairness hearing. Judge Castillo overruled objections from class members who argued the payout was too small for those who suffered serious injuries as a result of using the Suave Smoothing Kit. Furthermore, Judge Castillo stated that class members were free to opt out of the settlement and file their own individual personal injury lawsuits.
On June 13, 2014, a California federal judge denied a motion to certify a class of California consumers in a class action against ConAgra Foods for alleged deceptive and misleading advertising of the company’s Hunt’s tomato products, PAM cooking sprays, and Swiss Miss hot cocoas.
Plaintiffs Levi Jones, Christin Sturges, and Edd Ozard filed the class action on behalf of themselves and all Californians who had purchased Hunt’s, PAM, and Swiss Miss products, alleging that the company mislabeled its products as 100% natural, when they contained chemicals, preservatives, and other artificial ingredients and made unlawful claims respecting the products’ antioxidant properties. By filing the lawsuit as a class action, the plaintiffs sought to represent a larger group, or “class”; in this case, California consumers who had also purchased the products. In order to proceed as a class action in federal court, the plaintiffs were required to file a motion for class certification, demonstrating to the court, among other things, that the class meets various prerequisites, including commonality of the claims of the various class members (e.g., that they have all been subjected to the same unlawful practices by the defendant), that the named class members’ claims are typical of those of the class members they seek to represent, and that the plaintiffs’ lawsuit will adequately protect the interests of the class.
The court denied the plaintiffs’ motion for class certification with respect to each of the three products at issue for several reasons. The reasons cited by the court included difficulties determining who the class members are and how many of which type of product each class member purchased due to numerous label changes for the various products and lack of consumer receipts. The court also determined that individual issues would predominate over common ones related to whether the challenged “100% natural” and antioxidant claims in the various product advertisements and labels were material to consumers and/or whether they relied upon the alleged misrepresentations in deciding to purchase the products. The plaintiffs may decide to appeal the decision, but have not indicated that they will do so at this time.
If you or someone you know has purchased a product based upon false or misleading advertisements, you may be entitled to relief. Please call Khorrami Boucher, LLP for a confidential consultation.
On June 4, 2014, San Diego woman Danika Gisvold filed a class action accusing Merck & Co. Inc. of consumer fraud (Danika Gisvold v. Merck & Co. Inc., et al., Case No. 14-cv-01371, S. D. CA.). The class action lawsuit asserts that Merck is tricking consumers into paying higher prices for its Coppertone sunscreen products with Sun Protection Factors (SPF) of 55 to 100+, even though they allegedly contain “virtually identical active ingredients as the Coppertone SPF 50 Products,” which cost less.
The class action alleges that Merck is conducting a “false, misleading, and deceptive” advertising campaign. The lawsuit also claims that “Merck has consistently conveyed the message to consumers…that the Coppertone SPF 55-100+ collection provides superior UVB protection compared to the comparable lower SPF valued products…” The class action claims that the Coppertone’s 55-100+ SPF sunscreens in fact do not offer greater sun protection.
According to the complaint, “[c]onsumers have become familiar with SPF values because they have appeared on sunscreen product labels for decades,” and “[c]onsumers have learned to associate higher SPF values with greater sun protection.” The class action stresses that consumers reasonably assume that a product with SPF 100+ provides double the sun protection as a product with 50 SPF.
The complaint alleges that the US Food and Drug Administration and other scientific studies have revealed that products with SPF values over 50 do not provide greater sun protection than SPF 50 products. Plaintiff Gisvold asserts that “none of the sunscreen products in the Coppertone SPF 55-100+ collection provide any additional clinical benefit over the Coppertone SPF 50 products.”
The class action complaint states, “As a result of Merck’s superior UVB protection claims, consumers…have purchased products that do not perform as advertised.” According to Topclassactions.com, Merck allegedly continues to claim that the Coppertone SPF 55-100+ sunscreens offer “superior UVB protection and sells the products for a premium price.”
If you or someone you know has purchased a product in reliance on misleading labeling or advertising, you may be entitled to relief. Please contact Khorrami Boucher, LLP for a confidential consultation.
Iovate Health Sciences USA, Inc. has recently decided to settle a class action lawsuit brought against it for allegedly making false and misleading statements in advertising and labeling its Hydroxycut dietary supplement products. (Daniel Garcia v. Iovate Health Sciences U.S.A., Inc., Case No. 1402915 ,filed with the Superior Court of the State of California, County of Santa Barbara.)
The class action argued that Iovate, in marketing its Hydroxycut products, violated California’s Consumer Legal Remedies Act, Unfair Competition Law, as well as breach of express warranty. The suit alleged that Iovate falsely advertised the efficacy of over thirty of its products, such as its Hydroxycut Weight Loss Drink Mix, Hydroxycut Green Coffee, and Hydroxycut Premium Cleanse.
As a result of the Iovate Hydroxycut Settlement, class members who bought certain Hydroxycut supplement products between July 20, 2008 and March 19, 2014 may receive refunds for their purchases if they have a purchase receipt. In addition, Iovate has agreed to a Settlement Fund of $550,000 to reimburse class members who no longer have their receipts for the price of up to two bottles of Hydroxycut purchased. The deadline for Hydroxycut purchasers to file a claim for reimbursement pursuant to the settlement is July 30, 2014. (See the Stipulation and Agreement of Settlement.)
If you or someone you know has purchased a product in reliance on misleading labeling or advertising, you may be entitled to relief. Please contact Khorrami Boucher, LLP for a confidential consultation.