Class-Action

Wisconsin Class Action Against Insurance Company Remanded to State Court Because of State Law Claims – LaPlant v. Northwestern Mut. Life Ins. Co.

July 5, 2013 | Peter S. Lubin and James V. DiTommaso

Our Chicago class action attorneys note that a class action claim against an insurance company, which the defendant had removed to federal court, fell within an exception to the federal jurisdiction statute, according to a federal district judge in LaPlant v. The Northwestern Mutual Life Insurance Company, No. 11-CV-00910, slip op. (E.D. Wis., Aug. 20, 2012). The court remanded the case to Wisconsin state court under the corporate governance exception to the Class Action Fairness Act (CAFA), 28 U.S.C. § 1332(d). It held that the plaintiffs’ claims related exclusively to the defendant’s “internal affairs,” based on Wisconsin law.

The defendant issued an annuity insurance policy to the lead plaintiff. As a mutual insurance company, the defendant was “owned cooperatively by its policyholders,” LaPlant, slip op. at 1, and paid dividends to policyholders out of its profits. In 1985, it moved policyholders’ money into a separate fund and began paying dividends based on interest generated by the fund. Id. The amount of the payments received by the policyholders allegedly decreased as a result of this change. Wisconsin law gives policyholders the right to participate in annual profit distributions. Wis. Stat. § 632.62(2).

The lead plaintiff brought a class action lawsuit for breach of contract and breach of fiduciary duty on behalf of a class of policyholders in Wisconsin. The class prevailed at trial, and the lead plaintiff moved to expand the scope of the class to include policyholders in other states. The defendant removed the case to federal court under CAFA, which confers jurisdiction to federal courts over class actions with more than one hundred class members, more than $5 million in controversy, and diversity of citizenship between the defendant and at least one class member. The plaintiff moved to remand the case to Wisconsin state court based on the “corporate governance exception,” which applies when a class action’s claims solely relate (1) “to the internal affairs or governance of a corporation” (2) based on the laws of the state of incorporation. LaPlant, slip op. at 2, citing 28 U.S.C. §§ 1332(d)(9)(B), 1453(d)(2).

Court Retains Most of a Deceptive Business Practices Putative Class Action Against a Bank for Overdraft Fees – White v. Wachovia Bank

June 28, 2013 | Peter S. Lubin and James V. DiTommaso

A federal court allowed most causes to proceed in a putative class action against a bank for allegedly fraudulent overdraft fees. White, et al v. Wachovia Bank, N.A., No. 1:08-cv-1007, order (N.D. Ga., Jul. 2, 2008). The plaintiffs, who alleged that the bank had recorded transactions out of chronological order to maximize overdraft fee liability, claimed violations of state deceptive trade practice laws and several claims related to breach of contract. The court denied the defendant bank’s motion to dismiss as to all but two of the plaintiffs’ claims.

The two lead plaintiffs opened a joint checking account with Wachovia Bank in 2007. They signed a Deposit Agreement that stated that the bank could pay checks and other items in any order it chose, even if it resulted in an overdraft. It also stated that the bank could impose overdraft charges if payment of any single item exceeded the balance in the account. The plaintiffs alleged in their lawsuit that Wachovia ordered its posting of transactions in a way that would cause their account to incur overdraft fees, even when they had sufficient funds to pay the items. They also alleged that the bank imposed overdraft fees when no overdraft had occurred.

The lawsuit, originally filed in a Georgia state court in February 2008, asserted violations of the Georgia Fair Business Practices Act (FBPA), O.C.G.A. §§ 10-1-390 et seq., and breach of the duty of good faith. The plaintiffs also claimed that the clause of the Agreement related to the ordering of transaction was unconscionable, that the bank had engaged in trover and conversion, and that it had been unjustly enriched. The defendant removed the case to federal court under the Class Action Fairness Act of 2005, 28 U.S.C. § 1332(d)(2), which allows defendants to remove certain class actions to federal court. It then moved to dismiss all claims under Federal Rule of Civil Procedure 12(b)(6), which allows a court to dismiss a lawsuit that “fail[s] to state a claim upon which relief can be granted.” To defeat such a motion, a plaintiff must show a plausible factual basis for their claims.

Chicago Class Action and Consumer Fraud Attorneys DiTommaso Lubin Bring Alleged Counterfeit Rare Wine Lawsuit Against Famed Chicago Chef Charlie Trotter

June 21, 2013 | Peter S. Lubin and James V. DiTommaso

The Chicago class action attorneys and consumer fraud lawyers at DiTommaso Lubin filed a lawsuit alleging consumer fraud on behalf of our clients against famed Chicago Chef Charlie Trotter claiming that he sold what the specially retained expert concludes is a counterfeit bottle of rare wine. Trotter denies our client’s claims and asserts that they simply have “buyer’s remorse” according to a report in the Chicago Tribune. Our clients, a small family of wine enthusiasts, very much wanted to add the rare wine to their collection. They believed it was a magnum-size bottle of 1945 Domaine de la Romanée-Conti. They sought to have it insured but their carrier required them to get it authenticated. The expert concluded in the report attached to the lawsuit that the bottle was not authentic. After trying to get their money back, the client believed that they had no choice but to file suit so that they could get their over $46,000 investment back. They retained our Chicago fraud attorneys and we filed suit alleging consumer fraud and magnuson moss warranty claims on their behalf. We based the suit on the expert report that the wine was unmerchantable and that Charlie Trotter should have known based on his claimed expertise that it was not authentic. Charlie Trotter denies the claims according to the Chicago Tribune report and has not yet responded to the suit formally so it will now be a matter of proving the case in court before a jury which will decide the merit of the claims. The Complaint only states our clients’ claims which they need to prove.

The Complaint filed by our Chicago class action lawyers and Chicago consumer fraud attorneys alleges the following:

13. … A Charlie Trotter’s employee negotiated the price – $46,227.40 – with Benn and Ilir. Based on Defendants’ representation of the rarity and value of the DRC magnum, Benn and Ilir agreed to purchase it. Ben and Ilir paid Charlie Trotter’s $40,000 in cash and $6,227.40 by credit card for the DRC magnum.

14. On June 17, 2012, Defendants shipped the DRC magnum to Benn’ New York residence.

15. Upon receiving the DRC magnum, Benn contacted his insurance carrier. He notified the carrier that he wanted to list the DRC magnum on his homeowners insurance. Benn’s carrier informed Benn that 1945 bottles of Domaine de la Romanee-Conti are often counterfeited and that Benn would need to authenticate the DRC magnum through an expert before it would provide coverage.

16. On or about September, 2012, Benn retained Maureen Downey, DWS, CWE, FWS of Chai Consulting to authenticate the DRC magnum. Ms. Downey determined that the DRC magnum was counterfeit and valueless based on the physical attributes of the DRC magnum, the provenance provided by Charlie Trotter’s, and her discussions with experts on Domaine de la Romanee-Conti wines. See Exhibit 1. Ms. Downey visited the estate of Domaine de la Romanee-Conti after preparing her report. She spoke with Jean-Charles Cuvelier, the estate director of Domaine de la Romanee-Conti, regarding the production of large format bottles. The information Ms. Downey received from Jean-Charles Cuvelier confirmed the accuracy of her report.

The Complaint’s claims have been denied by Charlie Trotter according to the Chicago Tribune report and Defendants have denied the allegations.

Below is a video about famed Chef Charlie Trotter:

Court Reverses Class Certification in Case Alleging Wrongful Withholding of Bonus Compensation – InPhyNet Contracting Services v. Soria — Our Chicago Class Action Attorneys Defend Businesses in Class Cases

June 10, 2013 | Peter S. Lubin and James V. DiTommaso

A Florida appellate court reversed an order certifying a class of doctors claiming breach of fiduciary duty and other causes of action against their employer. InPhyNet Contracting Services v Soria, 33 So.3d 766 (Fl. Ct. App. 2010). The case began as a suit alleging breach of a covenant not to compete against one physician, leading the physician to counterclaim on behalf of a putative class with regards to a bonus compensation plan. After separating the physician’s individual claims from the class claims, the trial court certified a class. The appellate court reversed, finding that the class claims did not meet the requirements of commonality or predominance over class members’ individual claims.

InPhyNet Contracting Services (ICS) places physicians in hospitals around the state of Florida on a contractual basis. It offers incentives to physicians to work in hospital emergency rooms through a Physician Incentive Plan (PIP), which pays doctors out of a “bonus pool” associated with a hospital based on performance and similar factors. Id. at 768. ICS placed Dr. David Soria in the emergency room of Wellington Regional Medical Center, where he worked as Medical Director. The dispute between Soria and ICS began when Wellington terminated its contract with ICS and contracted with a competitor, and Soria began working for the competitor.

Illinois Federal Court Finds Putative Class Action Precluded by Arbitration Agreement – Collier v. Real Time Staffing Services

June 7, 2013 | Peter S. Lubin and James V. DiTommaso

A putative class action alleging violations of the Fair Credit Reporting Act, 15 U.S.C. §§ 1681 et seq. (FCRA), must be submitted to binding arbitration, according to the court in Collier v. Real Time Staffing Services, Inc., No. 11 C 6209, memorandum opinion and order (N.D. Ill., Apr. 11, 2012). The court found that a clause in the contract between the plaintiff and defendant required both parties to submit any disputes between them to arbitration. On the question of whether the class claims asserted by the plaintiff were subject to mandatory arbitration, the court left it for the arbitrators to decide.

The plaintiff, Darion Collier, submitted an electronic job application to the defendant, Real Time Staffing Services, which did business as SelectRemedy. According to the court’s order, the plaintiff signed an acknowledgment that said his employment with SelectRemedy would begin once he started an assignment for one of its clients, and that it would be on an “at-will” basis. The acknowledgment further said that SelectRemedy could at any time modify the terms and conditions of his employment. Order at 2. SelectRemedy did not hire the plaintiff after reviewing his application, allegedly based on information in his consumer credit report.

The plaintiff filed suit on September 7, 2011, alleging violations of the FCRA on behalf of himself and a proposed class. SelectRemedy filed a motion to dismiss under Rule 12(b)(1) of the Federal Rules of Civil Procedure, asserting that an arbitration agreement signed by the plaintiff with his application precluded the lawsuit. The agreement stated that the plaintiff agreed to submit any disputes to binding arbitration in accordance with the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (FAA). In opposing the motion to dismiss, the plaintiff argued that the arbitration agreement was unenforceable for lack of consideration, that SelectRemedy’s ability to change the terms of employment rendered the contract illusory, and that the arbitration agreement should not cover class claims.

Decision in Kohl’s Case Reversed and Class Claim Regarding Use of Alleged Fake Sales Prices Allowed to Proceed — Our Chicago Class Action Lawyers Enabled Illinois Consumers to Collect Substantial Class Action Recoveries

May 29, 2013 | Peter S. Lubin and James V. DiTommaso

Many times people buy things because they are on sale that they would not have bought otherwise. The idea of a good deal is a powerful motivator for shoppers and many retailers our Chicago class action lawyers have observed take advantage of that fact. Kohl’s is currently facing a class action lawsuit for allegedly advertising certain items as being marked down between 32 and 50 percent from their “original” prices when those items were not, in fact, marked down at all.

Antonio Hinojos bought a Samsonite suitcase at Kohl’s that was advertised as being 50% off of its original price of $299.99. He also bought some shirts that were allegedly marked as being on sale for 32 to 40 percent less than their original prices.

However, Hinojos alleges in his lawsuit that the items were, in fact, not marked down at all, and that their supposed “sale” prices were the same as the prices the items regularly sold for. Hinojos says that, had he known that, he never would have purchased the items.

A district court dismissed the lawsuit, saying that, because Hinojos got the items he wanted, he could not show that he had lost any money as a result of the alleged false advertising.
The 9th U.S. District Court of Appeals disagreed and reversed the ruling. In the court’s 21-page opinion, it argued that Hinojos demonstrated that he had lost money as a result of the false advertising, “because the bargain hunter’s expectations about the product he just purchased is precisely that it has a higher perceived value and therefore has a higher resale value.”

The court stated that advertisements such as “not available in stores”, “available for a limited time only”, “the same model shoe worn by LeBron James”, and “more doctors recommend our product than any other brand” are not examples of false advertising. However, the court finds this case to be distinctly different from those claims.

The court went on to enumerate that, in this case, “Hinojos specifically and plausibly alleges that Kohl’s falsely markets its products at reduced prices precisely because consumers such as himself reasonably regard price reductions as material information when making purchasing decisions.”

The court also rejected Kohl’s motion to certify the matter to the California Supreme Court. Kohl’s did not do so until after the oral arguments, at which point it perceived that the judges were not sympathetic to its position. According to the court, “Kohl’s conduct regarding certification violated both our rule against belated certification requests and our long-standing prohibition against a party’s use of procedural motions to avoid having its appeal decided by a panel it perceives as unfavorable.”

Chicago Class Action Attorneys at DiTommaso Lubin Obtain Certification of Nationwide Class

May 28, 2013 | Peter S. Lubin and James V. DiTommaso

Judge Certifies Nationwide Class in Lawsuit against Abercrombie & Fitch
A nationwide class has been certified in a lawsuit against Abercrombie & Fitch for allegedly voiding gift cards issued to customers as part of a 2009 winter holiday promotion despite the fact that the gift cards stated “No Expiration Date.” Class counsel, DiTommaso Lubin, P.C. and Schad, Diamond & Shedden, P.C., has created a website http://www.abercrombieclassaction.com where potential class members can obtain more information and review important documents and dates.

A nationwide class has been certified in a lawsuit against Abercrombie & Fitch for allegedly voiding gift cards issued to customers as part of a 2009 winter holiday promotion despite the fact that the gift cards stated “No Expiration Date.”
Chicago, IL (PRWEB) May 24, 2013
A judge in the Northern District of Illinois has certified a nationwide class in a class action lawsuit filed against Abercrombie & Fitch (case no.10-cv-04866). The lawsuit, filed by Tiffany Boundas through her attorneys DiTommaso Lubin, P.C. and Schad, Diamond & Shedden, P.C., alleges that Abercrombie and abercrombie kids issued $25 gift cards to customers as part of a 2009 in-store winter holiday promotion. Abercrombie then voided the gift cards a couple months later despite language on the cards that stated “No Expiration Date.” By doing so, the lawsuit contends, Abercrombie breached its contracts with customers. The lawsuit seeks a payment of the value of the gift cards that customers could not redeem as a result of Abercrombie’s actions. Abercrombie contends that more than $5 million is at issue in this lawsuit.

Copies of the Complaint, the judge’s opinion certifying the class, and the Class Notice can be obtained by going to http://www.abercrombieclassaction.com.

The judge has set a July 20, 2013 deadline for class members to exclude themselves from the class. For more information and to learn other important dates in this case, please visit http://www.abercrombieclassaction.com.

DiTommaso Lubin, P.C. is a law firm committed to fighting for consumer’s rights. With over two and a half decades of experience litigating class action lawsuits across the nation, the attorneys at DiTommaso Lubin, P.C. have recovered millions of dollars for consumers. DiTommaso Lubin, P.C. has offices in downtown Chicago and throughout the Chicagoland area. To learn more about DiTommaso Lubin, P.C. or to contact one of its attorneys please visit https://www.chicagobusinesslawfirm.com.

Viacom Sued in TCPA Class Action For Allegedly Sending Out Unsolicited Text Messages — Our Chicago Class Action Lawyers File Unsolicited Text Message and Fax Class Actions

May 22, 2013 | Peter S. Lubin and James V. DiTommaso

With all the spam that companies tend to send out, it’s no wonder that most people carefully guard their telephone numbers. Many people, however, don’t think of the fact that they are giving their number to every person and company that they call or send text messages to. In a recent class-action lawsuit against MTV’s parent company, Viacom, plaintiffs allege that the company violated the Telephone Consumer Protection Act by sending promotional texts to people who voted in the 2011 Video Music Awards.

The lead plaintiff in the case, Erin Mock, voted in the 2011 Video Music Awards via text message and was allegedly bombarded with promotional text messages shortly thereafter. According to the lawsuit, one such message read “MTV: ‘Jersey Shore’ sneak peek of tonight’s episode – why is Snooki lying in a bush? Watch”. Another said, “MTV: ‘Real World San Diego’ premieres Wednesday, Sept. 28 at 10/9c”.

The lawsuit alleges that, during the VMA solicitation for votes, viewers were never warned that, by voting, “they would be consenting to receipt of future text SPAM advertisements from Defendant and/or its subsidiaries and/or employees and/or agents”.

Mock further alleges that she sent a text message asking to stop receiving these text advertisements. She received a confirmation that the text messages would stop, but she allegedly received another such message (this one with a link to a “Real World” trailer) after she received her confirmation.

The lawsuit, filed in U.S. District Court in Tennessee, alleges that the “Plaintiff and the members of the Class and Sub-Class have all suffered irreparable harm as a result of the Defendant’s unlawful and wrongful conduct”. The suit is seeking $1,500 per alleged violation for each member of the class, as well as an injunctive relief against such conduct in the future.

Chicago Tribune Settles Class Action Alleging Subscribers Overcharged

May 21, 2013 | Peter S. Lubin and James V. DiTommaso

Once a subscriber gives a company their credit/debit card or bank information to charge subscription fees, some companies will take advantage of that to raise their fees without notifying their subscribers. Such is allegedly the case with the Chicago Tribune.
Cheryl Naedler and Theodore Raab, two Tribune subscribers, filed a class-action lawsuit against the company in the Circuit Court of Cook County. The lawsuit alleges that the Chicago Tribune breached its contract with subscribers and violated the Illinois Consumer Fraud Act by charging an inflated subscription fee, without warning subscribers at least 30 days in advance of the change.

According to the class counsel, what the Chicago Tribune should have done, “is send notice at least one billing cycle in advance saying we’re going to increase it … if you agree to pay. And they didn’t do it.”

Our Chicago class action lawyers note that the Chicago Tribune recently began mailing out a proposed offer to settle the lawsuit. Although the company denies the allegations, it said that it reached the settlement to, “avoid the cost, risk, and delay of litigation and uncertainty of trial” according to the notice.

If the court approves the settlement, about 41,000 subscribers will receive $6.50 each as part of the settlement. Naedler and Raab, as the class representatives, will receive $2,000 each.

Sketchers Settles Class Actions Alleging That its Shape-Ups Don’t Really Help Consumers Get in Shape

May 20, 2013 | Peter S. Lubin and James V. DiTommaso

Many people are on the look-out for a quick fix to lose weight and get in shape. It is therefore no surprise that hundreds of thousands of people took advantage of Skechers’s offer when they introduced shoes that claimed to help people lose weight and tone up.

Skechers’s ads featured celebrity endorsers such as Kim Kardashian and Brooke Burke. The shoe company claimed that its Shape-Ups were designed to promote weight loss and tone butt, leg, and stomach muscles with the shoe’s curved “rocker” or rolling bottom. Skechers said that this caused instability which would cause the wearer of the shoes to “use more energy with every step.” Shape-ups cost about $100 and are sold across the country.

The Resistance Runner shoes were advertised as a fitness tool that could help people who wore them increase “muscle activation” by up to 85% for posture-related muscles and 71% for muscles in the buttocks.

The current lawsuit against Skechers consolidates more than 70 lawsuits from across the country into one lawsuit in federal court in Louisville, Kentucky. U.S. District Judge Thomas B. Russell recently approved the settlement reached between Skechers and the plaintiffs for $40 million. The judge also ordered Skechers to pay an additional $5 million for the attorneys in the case to share. Russell ordered that the money cannot come out of the $40 million settlement.
The two lead plaintiffs in the case will receive payments of $2,500 each.

Those with approved claims will be able to collect repayment for their purchase – up to $80 per pair of Shape-Ups; $84 per pair of Resistance Runners; up to $54 per pair of Podded Sole Shoes; and $40 per pair of Tone-Ups. The settlement covers more than 520,000 claims. About 1,000 people who are eligible for coverage by the settlement opted out.

Eleven objections to the settlement were filed, including people seeking the full purchase price of their shoes and one person saying the settlement would prevent him from seeking damages on his own. The judge rejected all of these arguments.

The settlement comes just one year after Skechers reached a deal with the Federal Trade Commission regarding the ads. A settlement with the Federal Trade Commission bars Skechers from ever again running the ads. If there is any money left over from the $40 million after all of the claims have been processed, the judge has ordered that the remainder of the money is to go to the Federal Trade Commission.

Skechers denies the allegations but said that it is settling in order to avoid a long and costly litigation.