U.S. federal judge Lucy Koh has granted class action status to a lawsuit against Silicon Valley companies Apple, Google, Adobe, and Intel. The lawsuit alleges that the companies struck an anti-poaching deal from 2005 through 2009 in which they agreed not to compete for each other’s employees, and which ultimately left workers stuck at a lower pay because employers weren’t competing for their skills. Specifically, the defendants are accused of violating the Sherman Act and Clayton Act antitrust laws by conspiring to eliminate competition for labor, which deprived workers of job mobility and hundreds of millions of dollars in compensation.
The lawsuit was filed in 2011 by five software engineers who alleged an “overarching conspiracy” to suppress employee compensation to artificially low levels. Most of the case has been built on email correspondence between top Silicon Valley executives, including the late Apple Chief Executive Steve Jobs and former Google Chief Executive Eric Schmidt.
In the original complaint, the plaintiffs sought certification of an “All Employee” class, which included every salaried employee throughout the United States who worked for the defendant companies between 2005 and 2009, which was estimated to be more than 100,000. However, Judge Koh instead certified a proposed class of technical employees, including software and hardware engineers, component designers, and application developers. The plaintiffs believe this proposed class includes more than 50,000 people.
If you or someone you know has been the victim of unlawful employment practices, please contact Khorrami Boucher Sumner Sanguinetti, LLP for a private consultation.
On October 17, 2013, plaintiff Paul Merritt filed a class action lawsuit in San Diego Superior Court against Coca-Cola Bottling Company. The lawsuit claims that the Coca-Cola misrepresents its beverages as containing no artificial flavoring or chemical preservatives.
Merritt alleges that Coca-Cola deceives consumers by failing to identify phosphoric acid as an artificial flavor and preservative on the labels of Coca-Cola sodas sold in California. According to the complaint, “Defendants knowingly and intentionally falsely stated that Coca-Cola soda has ‘no artificial flavors. No preservatives added,’ despite the fact that Coca-Cola soda contains artificial flavoring and chemical preservatives.” As evidence of Coca-Cola’s alleged misrepresentations, the complaint cites claims on Coca-Cola’s website that “Phosphoric acid contains phosphorous, one of the basic elements of nature and an essential nutrient. Phosphorous is a major component of bones.” Merritt claims that phosphorous and phosphoric acid “are two different things” and that phosphoric acid is “an artificial, man-made chemical, that defendants use both for flavoring and as a preservative.”
Merritt claims that Coca-Cola’s mislabeling and false representations violate state and federal laws requiring food and beverage manufacturers to list all ingredients, including artificial flavoring in their products. Merritt argues that Coca-Cola knowingly and intentionally took advantage of the health concerns of California consumers, mislabeling its products to increase beverage sales. He claims that he would not have purchased the Coca-Cola products if he knew they contained phosphoric acid.
Merritt filed the lawsuit on behalf of himself and all California consumers who purchased Coca-Cola beverages during the last four years. The complaint alleges violations of California’s False Advertising Laws and Unfair Competition Laws, and seeks restitution, disgorgement, and punitive damages on behalf of all class members.
If you or someone you know has purchased products in reliance upon false and misleading advertisements, you may be entitled to relief. Please call Khorrami Boucher Sumner Sanguinetti, LLP for a confidential consultation.
A California appellate court revived a former putative class action against Skype which had initially been dismissed by the trial court without leave to amend due to the finding that Skype had adequately and conspicuously stated the terms of its service.
Melissa Chapman claimed that Skype has falsely named one of its services as “Unlimited” when the service is far from unlimited as it limits the minutes and the number of calls per day. A footnote designator appears immediately after the word “unlimited” in the title “Unlimited U.S. and Canada” which leads users to a hyperlink called “fair usage policy” which then led users to another page covering the usage policies. Ms. Chapman filed a lawsuit on behalf of Skype customers alleging unjust enrichment, negligent and intentional misrepresentations, violation of laws prohibiting unfair competition and false advertising.
Skype initially succeeded in persuading the trial court to dismiss the case by showing that the hyperlink provided in their footnote laid out the usage policy which limited the call time and that it was conspicuous and clear enough for the users to notice and follow. The trial court based its decision on the basis that the Plaintiff had failed to state any valid claims. However the Second District California Court of Appeals reversed the decision and revived the suit ruling that the plaintiff has made valid claims of false advertising and violation of California’s unfair competition laws and allowed her to amend her claims for negligent and intentional misrepresentation.
The opinion written by Justice H. Walter Croskey explained that “The trier of fact reasonably could conclude based on the facts alleged in the complaint and those judicially noticed that consumers are likely to believe that Skype’s Unlimited US & Canada calling plan offers unlimited calling within the United States and Canada for a fixed monthly fee, and that they will fail to notice the disclosure to the contrary in the fair usage policy.”
The judgment was reversed with directions to trial court to vacate its previous order.
If you or someone you know has purchased a product or service based upon false or misleading advertisement, you may be entitled to relief. Please call Khorrami Boucher Sumner Sanguinetti, LLP for a confidential consultation.
On October 1, 2013, a California federal judge granted final approval of the class action settlement in a consumer lawsuit against Intuit for charges associated with its online tax preparation software, TurboTax. In January 2013, plaintiffs Tasha and Fredierick Smith filed the class action lawsuit alleging that Intuit engaged in unfair and fraudulent business practices in violation of the Truth in Lending Act (“TILA”), California’s Unfair Competition Law, and California’s False Advertising Law.
The complaint alleged that Intuit’s TurboTax software offered a Refund Processing Option (“RPO”), which allowed those who used the tax filing software to defer payment of the TurboTax service fees, which were later deducted from the tax refund for an additional fee. The plaintiffs alleged that the $29.95 Refund Processing Service Fee they paid was a finance charge Intuit assessed against their tax return for essentially a two-week loan of the $86.90 tax preparation and filing fee associated with use of the TurboTax software. The Smiths alleged that Intuit failed to disclose the Refund Processing Service Fee as a finance charge, in violation of TILA.
The Smiths filed the class action lawsuit on behalf of all persons who used the TurboTax online filing software and selected to defer payments through the RPO after January 12, 2008. The complaint sought injunctive relief, enjoining Intuit from continuing to engage in acts violating TILA and California’s Unfair Competition and False Advertising Laws, restitution, compensatory damages, interest, and attorneys’ fees.
Despite denying any wrongdoing, TurboTax agreed to refund consumers under the terms of the settlement, which was approved by the court earlier this month. To be eligible to take part in the class action settlement, consumers must have used the TurboTax online software and utilized the RPO service between January 12, 2008 and May 28, 2013, and must submit a valid claim form to the settlement administrator on or before October 28, 2013.
If you or someone you know has paid hidden and/or illegal fees or purchased a product based upon false advertising, you may be entitled to relief. Please call Khorrami Boucher Sumner Sanguinetti, LLP for a confidential consultation.
Based on a recent claim by a customer of the Wells Fargo bank, the bank has set quotas for the number of new accounts opened by a branch, which if not met would result in the employees losing their jobs. In fear of this, some employees have forged customers’ signatures on new account applications in order to meet those numbers.
These claims were brought by David E. Douglas who believes Defendants, the Wells Fargo bank along with three of the branch managers or assistant mangers of the bank’s branches located in Los Angeles have routinely used the existing customers’ account information, date of birth and Social Security and taxpayer identification numbers to open new additional accounts or fake business accounts under their customers’ names without their consent.
Douglas describing himself as a “long-time valued customer” of the bank claims he has recently learned that the bank has continuously forced a policy on its employees and branch managers to meet a certain quota in new account openings or face the possibility of losing their jobs; a practice which Douglas believes it was the bank’s duty to be informed about regarding its employees and their fraudulent methods to obtain the expected results.
Douglas has claimed that the Defendants have opened at least eight different accounts using his name and forged signature. The business accounts created consist of names like “David E. Douglas Painting and Design” or “David Douglas Landscaping”, none of which with any resemblance to the line of business Douglas is operating.
He also claims that one of the Defendants has transferred or attempted to transfer money from his account to Defendant’s mother account. By the time he learned about the unauthorized opened accounts and transfers, he has contacted the bank’s fraud investigator whom has assured him that the matter would be investigated but since then he has not received any information regarding the matter which made Douglas decide to follow his rights through a lawsuit.
He is seeking $25,000 in special, exemplary and punitive damages for unlawful business practices, fraud, negligence and negligent hiring.
If you or anyone you know has been a victim of fraudulent practices and misrepresentations by banks and financial institutions, contact Khorrami Boucher Sumner Sanguinetti, LLP for a confidential consultation.
The Food and Drug Administration (“FDA”) recently sent warning letters to the manufacturers of several homeopathic ear drop manufacturer ordering them to stop selling the products as over-the-counter (“OTC”) medications. The FDA is concerned about the following ear drops:
|Homeolab USA Inc.||Kids Relief Earache|
|Insight Pharmaceuticals Corp.||Auro Earache Relief Ear Drops|
|Medtech Products Inc.||Murine Ear Drops for Earache Relief|
|Topco Associates, LLC||TopCare Earache Relief Ear Drops|
In their letter, the FDA states the homeopathic ear drops labeling says their intended purpose is treat diseases that require a physician’s diagnosis. Accordingly, these drops fall under the definition of a drug and must be dispensed by a prescription only.
OTC drugs may not be used for to treat illnesses that can only be diagnosed by a physician. The FDA elaborated that OTC treatment for ear pain is also inappropriate as it may lead to serious injury if the condition is not evaluated by a physician.
If the manufacturers do not stop labeling these ear drops as OTC medications, they may face serious consequences. It is within the FDA’s authority to seize the drugs if the drugs continue to hit the marketplace. The FDA’s letter demands prompt corrective action to protect consumers.
The original blog posted on October 14, 2013 mistakenly listed TRP Company, Inc.’s Ring Relief Homeopathic Ear Drops and tablets as a company who received a letter from the FDA. This statement was made in error. I apologize for any confusion this error may have caused.
If you or someone you love has suffered harm from OTC ear drop medications, please contact Khorrami Boucher Sumner Sanguinetti, LLP for a private consultation.
Beginning on October 16, 2013, the laws regulating telephone and text marketing will become more protective of the recipients of these advertisements. Companies will now need to show that they had the “express written consent” of the consumer to whom their calls or texts were directed. The new law, which amends the already existing Telephone Consumer Protection Act (TCPA), only applies to businesses that use autodialing equipment, and is designed primarily to protect cell phone users. However, if the company in question uses recordings or artificial voice technology, residential phones will also be protected.
The “written consent” must be unambiguous, which means that: (i) consumers must receive a “clear and conspicuous disclosure” that they will receive future calls or texts that deliver autodialed or pre-recorded telemarketing messages on behalf of a specific advertiser; (ii) consent must not be a condition of purchase; and (iii) consumers must designate a phone number at which to be reached. If there is a disagreement over consent, the advertiser bears the burden of proof to show that they had “express written consent.”
The TCPA provides severe penalties for each infraction, ranging from $500 to $1,500 per offending communication. Damages will be higher if the business is found to have intentionally or knowingly violated the statute. Almost all calls or texts that offer or market products or services to the consumer are included within the ambit of the amended TCPA provisions.
If you receive unsolicited text or telephone marketing communications after October 16, 2013, you may be entitled to relief. Please contact Khorrami Boucher Sumner Sanguinetti, LLP for a confidential consultation.
A recent federal class action lawsuit alleges that Apple deceived iTunes customers who purchased a “Season Pass” for the final season of the popular AMC series “Breaking Bad” by breaking the season in two and charging customers a second time to watch the second half of the season.
The fifth and final season of Breaking Bad includes 16 episodes. The first eight episodes aired in Summer 2012 and the final eight episodes aired in Summer 2013. Although the episodes aired one year apart, the episodes are listed as part of the same season.
When season 5 became available on iTunes, customers were offered a Season Pass for $21.99 for high definition and $13.99 for standard definition. In exchange, “they were promised: ‘[t]his Season Pass includes all current and future episodes of Breaking Bad, Season 5,’” according to the complaint.
When the second half of the season became available on iTunes in early August, customers who had already paid for the season 5 Season Pass were required to pay another $22.99 or $14.99 for access to the final episodes.
The lawsuit accuses Apple of deceptive and unfair trade for the way it sold Breaking Bad on iTunes.
If you feel that you have been the victim of a company’s unfair or illegal practice, please contact Khorrami Boucher Sumner Sanguinetti, LLP for a private consultation.
Are you a California resident who purchased the no!no! Hair Removal System? Did you purchase it based on the manufacturer’s claims that it offers long-lasting or even permanent hair removal results? If so, your rights under California law may have been violated by such false and misleading claims.
The no!no! Hair Removal System is a popular hair removal product that consists of a small wire mounted toward the open end of a rectangular metal casing. When the user turns on the device, the wire heats up and melts the user’s hair upon contact. The user is then supposed to rub the treated area with an abrasive buffing pad which is included with the product, in order to remove the burnt hair. The manufacturer of this product has engaged in an increasingly heavy campaign of national television and Internet advertising to the general public to promote sales of the product. Unfortunately, many of these claims are false.
For example, the manufacturer of the no!no! Hair Removal System repeatedly claims in product labeling and advertising that use of the product results not simply in a removal of hair, but in the reduction of hair re-growth and hair density. The company claims, for example, that “[a]s you continue with the no!no! treatment [sic] less hair grows back…” (Link.) In info-mercials, the manufacturer claims that “no!no! not only slows down hair regrowth so that you can remove your hair less and less often – over time , it actually helps keep it from growing back!” (Link.) In fact, the company has boldly asserted that use of the product results in “[u]p to 94% less hair regrowth with no pain, no mess, no stress.” (Link.) The company’s website and videos have also described the product as a “permanent” hair remover while others claim that the results are supported by science and research:
- “no!no! uses Thermicon, a heat-based technology, that singles the hair down to the root…” (Link.)
- “no!no! uses science, not magic, to get these great results” (Link.).
- “The great thing about no!no! is that it has been shown scientifically to actually have an effect similar to what lasers accomplish in the dermatologist office.” (Link.)
The manufacturer has not submitted these studies to the FDA, meaning there is no FDA clearance for the product or the claims about its use and efficacy. These unsupported claims are designed to mislead and deceive consumers into buying this expensive and ineffective product.
However, a recent study conducted by the Department of Ophthalmology, Dermatology, Otolaryngology, out of Vanderbilt University Medical Center, and published by the National Center for Biotechnology Information, suggests that the no!no! Hair Removal System is no more effective than shaving with a razor. The results demonstrated that shaving and using the hot-wire no!no! device are indistinguishable both in short-term and long-term effect, based on visual assessment of photographs of areas where the product was used and a statistical analysis of the hair count following use. The study concluded that the no!no! device does not produce lessened hair density, decrease hair re-growth, change hair thickness or color, or offer any benefit as compared to shaving.
California consumer protection laws make it illegal to use false or misleading advertising, or claim positive health benefits of a product without support, in order to sell the product to consumers. The results of this latest study showing the ineffectiveness of the no!no! Hair Removal System makes clear that the company behind no!no! is defrauding consumers with their false and misleading claims regarding this product.
If you or someone you know are a California resident who recently purchased the no!no! Hair Removal System, please contact Khorrami Boucher Sumner Sanguinetti, LLP for a free and confidential consultation concerning your legal rights. Additionally, if you have purchased any product based on an advertisement which did not deliver the results that were promised, or that had a negative impact on your health, please contact Khorrami Boucher Sumner Sanguinetti, LLP.
On September 16, 2013, Kathleen Holt filed a class action lawsuit in California federal court against Reserve Life Organics, LLC (“RLO”), alleging that claims made in the company’s advertisements of its Resveratrol anti-aging product are false and misleading and that the product contains harmful ingredients.
According to the complaint, RLO advertises its Resveratrol product as “primarily consisting of ‘Organic Resveratrol From French Red-Wine Grapes,’” and the product’s packaging contains images of grapes on the vine, states “The Original Red Wine Antioxidant,” claims that it is “The World’s Finest Resveratrol,” that it is “from the heart of France,” and that it is “Made With Certified Organic Ingredients.” Despite these claims, Holt alleges that the RLO product contains little “organic” resveratrol and substantially less than reasonably expected by consumers relying on the advertisements. Holt alleges that RLO’s Resveratrol product consists mostly of non-organic resveratrol sourced from China, not France, which is much cheaper than the organic, grape-based substance.
Holt claims that RLO has violated federal regulations requiring products labeled “organic” to contain at least 70% organic ingredients. These misrepresentations, Holt claims, were contained in print and online advertisements, as well as point-of-purchase displays. According to the complaint, California consumers paid more for RLO’s product than other products containing resveratrol because they perceived the RLO product as being of higher quality and having health and safety benefits associated with organic products.
The complaint also alleges that RLO failed to disclose that its Resveratrol product contains “significant” amounts of magnesium strearate, which Holt alleges “is or may be harmful” to the human immune system. Holt alleges that health conscientious consumers of “organic” products rely on product labels and advertising to truthfully and accurately disclose product ingredients. The complaint alleges that RLO failed to declare that its product contains “significant amounts” of magnesium stearate in the Supplement Facts printed on the product’s packaging.
Holt has sued RLO on behalf of a class of all California consumers who purchased RLO’s Reservatrol product between September 16, 2009 and the present. The complaint includes claims for both negligent and intentional misrepresentation, as well as violations of California’s Unfair Competition Law and False Advertising Law. Holt has asked the court for injunctive relief, and to award disgorgement of profits, restitution, special, general, and compensatory damages, interest, and attorneys’ fees.
If you or someone you know has purchased a product based upon false advertising, you may be entitled to relief. Please call Khorrami Boucher Sumner Sanguinetti, LLP for a confidential consultation.