All The Latest Consumer Class Action News

Happy Hour at Bottle King!

UnknownNew Jersey shoppers are getting a round on the house this month thanks to a FACTA settlement in a class action against liquor retailer Bottle King.  A State Court Judge in New Jersey granted preliminary approval of a class action settlement in Nelson v. Ledgewood B.K., Inc. / Bottle King, Docket No. MRS-L-2426-12 paving the way for twenty percent discount coupons for all eligible class members.

The claims in the Bottle King case involve Bottle King’s company-wide practice of printing personal credit and debit card receipts containing card expiration dates.  Under both Federal and New Jersey law, retailers are prohibited from printing sales receipts that contain a consumer’s card expiration date or certain other uniquely identifying elements.  Bottle King ceased the practice after suit was filed in late 2012, but the practice was ongoing since at least April 2008.  The class action was the first of its kind filed in New Jersey under the State’s Fair Credit Reporting Act, which is a corollary to FACTA, the Federal statute.  The claims were brought under the Truth-in-Consumer Contract, Warranty and Notice Act (“TCCWNA”), which was triggered by the underlying expiration date violation.

The Bottle King claim period is open now, and claim forms can be obtained through the settlement website, www.bottlekingsettlement.com.  If you’re interested in the Bottle King case, or if you’ve ever received a receipt that violates FACTA, please feel free to contact DiSabato & Bouckenooghe LLC.

You’ve Been Served, Mortgage Servicer!

saxon_logoNew Jersey homeowners warmed up this month with a tremendous win in a class action against infamous mortgage servicer, Saxon Mortgage Services, Inc.  A State Court Judge in New Jersey denied Saxon’s motion to dismiss and will allow class claims to proceed against the now-banned-from-the-business servicer.

The claims in Neglia v. Saxon Mortgage Services, Inc., Docket No. CPM-L-220-13, stem from, among other things, Saxon’s alleged practice of fraudulently inducing homeowners into entering Trial Payment Plans and failing to provide permanent modifications after the homeowner successfully completes the trial period.  When discussing Saxon’s conduct, the Court observed that Saxon used Trial Payment Plans to “set the hook” in struggling homeowners.  The Court denied Saxon’s motion in its entirety and will allow claims for breach of Trial Payment Plan contracts, fraudulent misrepresentation and violations of the New Jersey Consumer Fraud Act all to move ahead.

If you’d like more information on the Saxon case, or if you have mortgage servicing grievances against Saxon, please contact DiSabato & Bouckenooghe LLC.

Check Please! Restaurant.com’s Picking Up The Tab!

images-3 New Jersey consumers were treated to the best table in the house this week in a big win against online gift certificate seller, Restaurant.com.  On July 9, 2013, the New Jersey Supreme Court handed down a long awaited decision in Shelton v. Restaurant.com (Case No. A-123-10).  The Restaurant.com class action included claims under New Jersey’s Truth In Consumer Contract Warranty and Notice Act (“TCCWNA”) relating to online discounter Restaurant.com’s practice of including a one-year expiration date on its gift certificates and failing to identify which provisions of its certificates are or are not applicable in New Jersey.

TCCWNA is one of New Jersey’s most powerful consumer protection statutes.  In simple terms, TCCWNA provides for statutory liability where a seller uses provisions that violate any New Jersey or Federal law.  The Shelton plaintiffs alleged that Restaurant.com’s gift certificates violated New Jersey’s Gift Card Act by including an impermissible expiration date.

The Restaurant.com case did not survive its run in Federal Court, but the Third Circuit – in a rare move – certified a handful of TCCWNA-specific questions to the New Jersey Supreme Court.  The result was this week’s favorable decision.  The unanimous Court held that the gift certificates sold by Restaurant.com are consumer contracts subject to TCCWNA and that, despite the fact that the certificates are purchased online, they must still be considered “written” contracts under TCCWNA.

The Restautrant.com case still has a long road to travel, but the Supreme Court’s favorable interpretation of TCCWNA is great news for consumers.

If you have any questions about the Restaurant.com case, or if you’ve had problems with gift card and/or gift certificate terms and conditions, please contact DiSabato & Bouckenooghe LLC.

Tropicana’s OJ Ads Leave Court With A Bad Taste

s-ORANGE-JUICE-ARTIFICIAL-large300Is Tropicana’s advertising full of pulp?  A Federal Court in New Jersey wants to find out.  On June 12, 2013, the Court partially denied Tropicana’s motion to dismiss claims brought against the juice giant alleging that it falsely advertisies its orange juice as all natural. 

The plaintiffs in Lynch v. Tropicana Products Inc. (Case No. 11-cv-07382), assert that Tropicana’s “100% Pure” orange juice is in actuality heavily processed and flavored.

The plaintiffs claim that Tropicana’s orange juice is “pasteurized, de-aerated, stripped of flavor and aroma, stored for long periods of time before available to the public, and colored and flavored before being packaged.”  The class action includes claims against Tropicana for unjust enrichment, breach of express warranty, numerous violations of New York, New Jersey and Wisconsin laws, punitive damages, injunctive relief and declaratory relief.  Many of these claims were dismissed by the recent Order, but several have survived, including fraud claims made under New Jersey law where the premium paid by consumers for a “100% pure” product was found to be a sufficient predicate for the claim.

If you’d like more information about the Tropicana case, or if you’ve been mislead by false or exaggerated advertising claims made in relation to food products, please feel free to contact DiSabato & Bouckenooghe LLC.

Bally’s “Lifetime” Runaround

Bally 1Former Bally Total Fitness “lifetime” members are giving the iconic fitness chain a real workout.  Earlier this week, a Federal Court in New Jersey denied in part Bally’s motion to dismiss claims relating to the transition of Bally lifetime memberships from Bally to LA Fitness in the mass sale of most Bally facilities in 2011.  In Piegaro v. Bally Total Fitness Holding Corp., Case No. 3:12-cv-04595, Plaintiffs allege that Bally failed to honor its lifetime membership contracts by closing most of its facilities and failing to properly transfer those contracts to LA Fitness.  LA Fitness acquired the majority of Bally’s assets, including most of its member contracts, in a 2011 assets sale between the two fitness giants.  In the wake of the sale, it became apparent that LA Fitness did not intend to honor Bally’s lifetime memberships, some of which date back to the 1980′s.  Lifetime members were allegedly told that their contracts were never included in the assets acquired by LA Fitness, and that those members should continue to use Bally facilities.  The problem was that Bally had closed or sold substantially all of its facilities.  The Court in Piegaro denied Bally’s motion to dismiss and will allow the Plaintiffs’ breach of contract and certain fraud claims to go forward.

If you were a Bally “lifetime” member and your contract was not honored after the sale to LA Fitness, you may be a member of the putative class.  If you’d like more information on the Bally Total Fitness Lifetime Membership class action, please feel free to contact DiSabato & Bouckenooghe LLC.

Nope, Frosted Mini-Wheats Don’t Make Kids Smarter . . .

Frosted Mini-WheatsA Federal Court recently granted preliminary approval of a $4 Million settlement in the Kellogg’s Frosted Mini-Wheats class action.  If you purchased Frosted Mini-Wheats in the United States between 2008 and 2009, you may be eligible to receive up to $15 cash from the settlement.  The Mini-Wheats settlement will resolve a four-year-old class action lawsuit pending in Federal Court in the Southern District of California called Dennis v. Kellogg Co., Case No. 9-cv-01786.  The case centers around Plaintiff’s allegation that Kellogg falsely advertised the benefits of eating the popular Frosted Mini-Wheats breakfast cereal.  Specifically, Kellogg’s ads claimed that Mini-Wheats improved kids’ attentiveness, memory and other cognitive functions.  Plaintiff argued that Kellogg’s ads were exaggerated to a degree not supported by competent clinical evidence.  Kellogg stands by its advertising and denies any wrongdoing but has agreed to this partial refund settlement in order to resolve the litigation.

You are a class member if you purchased Kellogg’s Frosted Mini-Wheats in the United States between January 28, 2008 and October 1, 2009.  

Class members may seek reimbursement of $5 per box of cereal purchased, up to a maximum of three boxes ($15).

If you’d like more information about the Frosted Mini-Wheats settlement, or if you’ve been mislead by false or exaggerated advertising claims made in relation to food products, please feel free to contact DiSabato & Bouckenooghe LLC.

Milk Money

imagesA sweet settlement was just approved in a class action claiming that the amount of sugar content in Horizon Organic Milk and Silk Soy Milk was misrepresented to consumers.  The plaintiff in Singer v. WWF Operating Company (Federal Court, Southern District of Florida, Case No. 1:13-CV-21232) alleged that certain products were falsely or misleadingly labeled and marketed because they list “evaporated cane juice” rather than “sugar” as an ingredient.  The products bearing the allegedly false labeling, which include Silk Soymilk, Silk Coconutmilk, or Horizon Organic milk, yogurt or Tuberz products, were sold between 2005 and 2013.

WWF denies any wrongdoing but has agreed to settle the class action and resolve the claims.  You are a class member of the Silk/Horizon Organic Milk settlement if, from January 1, 2005 to April 19, 2013, you purchased WWF products that listed evaporated cane juice as an ingredient.  Under the class action settlement, class members with valid proof of purchase will receive reimbursement for 75% of the purchase price, subject to a cap of $50 per household. Those without proof of purchase can still receive a refund of 25% of the purchase price of up to 5 products.

If you’d like more information about the Silk/Horizon Organic Milk settlement, or if you’ve been mislead by the use of false labeling terms such as “evaporated cane juice” on a food product, please contact the attorneys at DiSabato & Bouckenooghe LLC.

LivingSocial Offers Daily-Deal On Your Personal Information!

LivingSocial LogoAs many as 50 million LivingSocial accounts were impacted in a decidedly unsocial data hack last week.  The hugely popular daily-deal website confirmed that its computer systems were hacked, resulting in “unauthorized access” to customer data stored on its servers.  LivingSocial has disclosed that names, e-mail addresses, some users’ dates of birth and salted passwords were accessed.  Salting is a security method where a sequence of symbols is added to passwords before they’re hashed.  LivingSocial has not confirmed how its systems were compromised, nor has it disclosed the true extent of the data breach.  Although LivingSocial maintains that no customer credit card information was accessed, it is certain that customers’ private  personal information was compromised.  LivingSocial joins a long line of companies that were hacked recently, including LinkedIn, Yahoo, eHarmony, Formspring and Billabong.

As with any data breach, if you are a LivingSocial customer, we recommend that you immediately change your passwords on other on-line accounts, be extra vigilant when it comes to spam e-mail and purchase a credit monitoring package that will alert you to any identity theft attempts.  If you were a victim of the LivingSocial data breach or any other personal data hack, please contact DiSabato & Bouckenooghe LLC for more information.

Bad Buzz For Budweiser

AB LogoSay it ain’t so! The King of Beers watering down its products?? According to four class action lawsuits filed this week across the Country, Anheuser-Busch waters down its beers “well below” their advertised 5% alcohol volume in order to boost profits. The plaintiffs in the suits allege intentional “mislabeling” of at least 10 beers’ alcohol content, after the brewer has added water to boost the amount of beer produced from raw materials. The suits allege that Anheuser-Busch violated consumer protection laws by “deliberately manipulating the brewing process and producing malt beverages knowing that their alcohol content is mislabeled.”

 They further claim that Anheuser-Busch has the technology to precisely control the amount of alcohol in its beers but adds water so that the alcohol content is “significantly” below the advertised figure of 5% by volume and that, as a result, Anheuser-Busch is unjustly enriched by the additional volume it can sell.  The claims are based on information from former employees at various breweries operated by Anheuser-Busch. Anheuser-Busch has emphatically stated that the claims are “completely false.”  The allegedly mislabeled beer includes Budweiser, Bud Light Platinum, Michelob, Michelob Ultra, Natural Ice, and others.  The Plaintiffs are seeking over $5 million in damages and are asking the court to require the beer maker to fund a corrective advertising campaign.

If you have concerns about deceptively labeled products, foods or beverages, please contact DiSabato & Bouckenooghe LLC to discuss your issue.

 

Smile! Crest Owes You Four Bucks!

UnknownConsumers in the Crest Sensitivity toothpaste false advertising class action finally have something to smile about.  A Federal Judge has granted preliminary approval to a class wide settlement between Proctor & Gamble Co. and customers who allege the company falsely advertised the benefits of its Crest Sensitivity Treatment & Protection toothpaste.  Consumers who purchased the product stand to get a $4 refund out of the deal.

The suit was filed in 2011 by a New Jersey consumer who claimed that the toothpaste failed to deliver relief from tooth sensitivity “within minutes” as advertised by Proctor & Gamble, and that the false advertising induced consumers into paying as much as 75% more for Crest Sensitivity Treatment & Protection over comparable products that require weeks of use to reduce tooth sensitivity.  Plaintiff also alleged that Crest Sensitivity Treatment & Protection is essentially identical to Crest Pro-Health toothpaste except for the packaging, color and, of course, the price (which is $3 higher for the Sensitivity version).

Proctor & Gamble denies the allegations but has agreed to the settlement to resolve the litigation.  The case is pending in Federal Court in New Jersey and is captioned as Rossi v. The Procter & Gamble Co., Case No. 11-cv-07238.

If you have ever been mislead by false advertising or inaccurate labeling, you may have a consumer claim.  Please feel free to contact DiSabato & Bouckenooghe LLC for more information or to discuss your claim.