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.
On June 17, 2014, U.S. District Judge Lucy Koh refused to dismiss a class action lawsuit alleging that Mars mislabeled calorie and nutrient information on M&Ms, Twix, Snickers, and Dove chocolates. The complaint attacks Mars’ advertisements that the chocolates are “natural source(s) of cocoa flavanols.”
The class representative, Phyllis Gustavson, claims to have spent over $25 dollars on these products, which purportedly violate Food & Drug Administration (FDA) requirements by using undefined terms, like “source,” and by making nutritional content claims for the nutrient flavanol without a fixed percentage of the established daily value.
Gustavson claims that the Mars chocolates in question cannot contain sufficient flavanols to meet the FDA’s requirements because the FDA has yet to establish a recommended daily value for flavanols. Mars filed a motion to dismiss, arguing that its advertisements simply inform customers that flavanols are naturally present in the chocolate, but at no specific level. Nevertheless, Judge Lucy Koh disagreed, denying Mars’ motion, stating that the term “natural source” arguably “implies that the nutrient is present in substantial quantities.”
Additionally, Gustavson claims that Mars violated FDA regulations by not including directions prompting customers to read the full nutrition information regarding the high levels of fat contained in the products located on the back of the packaging.
Gustavson also accuses Mars of not identifying “polyglycerol polyricinoleic acid” by its known name. Mars made no efforts to challenge this claim.
If you or someone you know has been misled by nutritional representations made by Mars, you may be entitled to relief. Please call Khorrami Boucher, LLP for a confidential consultation.
California insurance companies have denied coverage for treatment of autism with increasing regularity. In response to this serious issue, the California Department of Insurance and the Office of Administrative Law recently bolstered the Mental Health Parity Act by requiring health insurance plans cover behavioral health treatments for individuals with autism. These regulations will enable more rigorous enforcement practices and impose stricter penalties on insurance companies that delay or refuse coverage for necessary autism treatments.
Industry professionals have credited Insurance Commissioner, Dave Jones, with the recent regulatory improvements. For example, Julie Kornack, a senior public policy analyst at the Center for Autism and Related Disorders, stated “This really is making the state law and making the public policy clear. You shouldn’t underestimate that we have an insurance commissioner who is committed to the autism community and to make health plans behave. That’s not something you find in every state.”
The new regulations forbid “unreasonable” denials and delays of necessary behavioral health treatments. For example, the regulations identify “unreasonable” delays as delays due to an alleged need for IQ testing and “unreasonable” denials as encompassing refusals due to the experimental nature of certain treatments. “Unreasonable” denials also include refusals of treatment from an appropriately accredited treatment provider not specified as a doctor or one who does not have a specific license.
Furthermore, the new regulations bar insurance companies from imposing limitations on coverage for necessary treatment visits, or from instituting monetary caps on treatment unless the limit uniformly applies to an entire policy.
Multiple non-profit autism organizations, such as Autism Speaks, recognize the necessity of neurological, language and speech therapy, and occupational therapy treatments, which can decrease a variety of issues that autistic individuals face. In accordance with the recently approved regulations, if these treatments are deemed medically necessary they should be covered by health insurance plans offered in California.
Commissioner Jones believes that the recent regulatory changes “will help end improper insurer delays and denials of medically necessary treatments for autistic individuals.” Additionally, the Commissioner stated, “This regulation provides clear guidance to the industry, stakeholders and consumers on the requirements of the Mental Health Parity Act.”
If you or someone you know has been denied coverage for necessary autism treatment forApplied Behavioral Analysis (ABA), speech therapy, or occupational therapy, you may be entitled to relief. Please call Khorrami Boucher, LLP for a confidential consultation.