Consumer Protection Laws

TCPA Class Action Defense: Appellate Court Rules Single Text Message Insufficient to Create Standing

January 1, 2020 | Peter S. Lubin and Patrick Austermuehle

A recent decision by the Eleventh Circuit federal court of appeals adds another arrow to class action defendants’ quiver by making it more difficult for plaintiffs to establish standing to sue under the Telephone Consumer Protection Act (“TCPA”). The appellate court ruled that a single text message did not cause sufficient harm to sue in federal court.

In Salcedo v. Hanna, 936 F.3d 1162 (11th Cir. 2019), the plaintiff, John Salcedo, received a single form text message from his former attorney offering a discount on the attorney’s services. After receiving the message, Salcedo filed suit in the district court alleging that the text message violated the TCPA, 47 U.S.C. § 227(b)(1)(A)(iii). Salcedo sought to prosecute the suit on behalf of a putative class of the attorney’s former clients who also received unsolicited text messages from the attorney in the past four years. He alleged that the text message caused him to “waste his time answering or otherwise addressing the message” and infringed upon his “right to enjoy the full utility of his cellular device” and sought statutory penalties of $500 to $1,500 for each text message as damages.

After the defendant unsuccessfully moved to have the case dismissed for lack of standing and failure to state a claim, the district court permitted the defendant to file an interlocutory appeal recognizing that the question of standing “involves a controlling question of law as to which there is a substantial ground for difference of opinion.” The three-judge panel of the Eleventh Circuit did not buy the plaintiff’s standing arguments.

In a detailed opinion, the panel examined its own precedent, the legislative history of the TCPA, and the history of Article III’s standing requirement. Any discussion of standing would not be complete without an examination of the Supreme Court’s 2016 decision in Spokeo v. Robins. At the conclusion of this examination, the appellate court concluded that the plaintiff’s allegations about a single text message failed to state a “concrete injury-in-fact” necessary for federal jurisdiction.

FTC Investigation Leads to Filing Complaint against Cosmetics Company Accused of Posting False Customer Reviews Online

December 10, 2019 | Peter S. Lubin and Patrick Austermuehle

Real product reviews are a great tool for helping consumers make better, informed decisions. Many of these reviews come from real customers who really used the product. Other reviews, however—particularly those on websites, in blogs, and on social media—are not from legitimate customers but come from companies that use fake reviews to paint a pretty picture of their products and boost their bottom line.

Earlier this year, the Federal Trade Commission (“FTC”) set its sights on a cosmetic company accused of posting fake consumer reviews of its own products online. According to a leaked internal email, the CEO of the company allegedly pressured employees to post positive reviews of new products that the company had recently released and even provided detailed instructions regarding what the employees should write about the product in reviews as well as how to avoid having the reviews traced back to the company’s IP address by using a VPN. Continue reading ›

Consumer Lawsuit Alleges NutriBullet Blenders Explode — Consumer Rights and Class Action Attorneys Near Naperville and Oak Brook

August 27, 2018 | Peter S. Lubin and Patrick Austermuehle

For years the NutriBullet blender has been marketed as a small, convenient blender people can use to make single-serving smoothies and other cold drinks, then pop off the cannister and drink. The blender has been marketed as a “nutrition extractor,” implying people can get more nutrition in their diets by drinking their fruits and vegetables with the help of the blender. What the blender’s marketing fails to mention is the allegation that it tends to build up the pressure and explode.

Capital Brands, the company that makes the NutriBullet blenders, advises users of the product to only make cold drinks in the blenders and avoid putting anything hot in it to avoid overheating. They also recommend using it for no more than 60 seconds, at which point a safety mechanism will turn the NutriBullet off in order to avoid any accidents as a result of overheating.

But consumer lawsuits claim the blender has been known to overheat and even explode, even when consumers follow the directions and use it with cold foods for less than 60 seconds. One such lawsuit was brought against the company in North Carolina and is currently pending in court. In California, one consumer rights attorney says he has brought almost two dozen lawsuits against Capital Brands over the alleged defect in their NutriBullet blenders.

Now Deveta White has joined the list of consumers to sue Capital Brands over their allegedly dangerous NutriBullet blenders. The only difference is that White’s consumer lawsuit is the first to seek to represent a class of similarly situated plaintiffs against Capital Brands. Continue reading ›

Security Company Allegedly Knew Mall’s Walkway Was Dangerous — Chicago Consumer Rights Law Firm

August 10, 2018 | Peter S. Lubin and Patrick Austermuehle

Elevated walkways overlooking parking lots, store entrances, and other commercial spaces can be both beautiful and functional, giving shoppers a chance to grab some fresh air and watch people coming and going below them, while also giving retailers extra space for storage, lockers, kiosks, and places for shoppers to walk, hang out, and mingle.

But according to a recent lawsuit against a Manhattan mall, such walkways can also be dangerous, posing a potential liability for both the mall and the security company charged with keeping the mall and its customers safe.

The East River Plaza Mall in East Harlem was sued for more $45 million after two boys shoved a shopping cart over the railing of the elevated walkway in October of 2011. The shopping cart hit Marion Hedges, a philanthropist, and real estate agent, on the head. She had been shopping for Halloween candy with her son, Dayton, who was 13 at the time.

Hedges collapsed immediately, stopped breathing for a time, and was rushed to the hospital. She suffered severe brain damage, which allegedly resulted in symptoms such as double vision, memory loss, diminished cognitive abilities, and incontinence. According to her attorney, Hedges continues to suffer from the effects of her head injury almost seven years after the incident.

The two boys who shoved the shopping cart over the railing were 12 and 13 years old at the time of the incident. They were both arrested and convicted as minors, although Hedges did not sue them. Instead, she sued the mall and Planned Security Service, the security company the mall had hired to secure the mall’s common areas, including the walkway in question. Continue reading ›

Drug Companies at War With Legislation

February 28, 2018 | Peter S. Lubin and Patrick Austermuehle

The constitutional basis on which pharmaceutical legislation has been enacted is being challenged. Many Pharmaceutical Manufacturing companies are afraid that this new law has the capability of dictating health care policies when it comes to the governing of prices at which drugs can be sold. The complaint as filed has indicated that the sole determinant of price fixing should be manufacturers only, the inclusion of other entities reduces competition. To them, it is believed that prices can be thwarted as a result.

Other core belief systems are challenged including what lies in the public interest of the health forum and increases the scope for debate on the matter. Should having affordable access to medicine matter or does competition and profit for companies that gain matter? Whether public policy overrides or the victimization of the pharmaceutical companies will be seen.

The pharmaceutical company believed it was in its best interest to sue so that the legislationn is not enacted in other states. California is considered a state that is of high influence and for such reasons, a national trade group that represents 37 drug companies tried to defeat the bill.This same trade group for drugmakers cited concerns within its lawsuit that California’s law illegally tries to dictate national health policy. It further went to indicate that because the law is tied to a national measure of drug prices, advance notification requirement could restrict drugmakers’ ability to raise prices in other states. In what seems an otherwise futile attempt to sue, the main rationale behind the suit is also to ensure that the implementation does not become as at the national level, thereby reducing profit margin for such companies. The law requires pharmaceutical companies to notify insurers and government health plans at least 60 days before a planned price increase of more than 16 percent during a two-year period and to explain the rationale for the increase. The information would be available on a government website. Continue reading ›

Wells Fargo Scandals Continue With Alleged Loan Fraud– Our Chicago Class Action Attorneys Pursue Suits for Loan Fraud

September 8, 2017 | Peter S. Lubin and Patrick Austermuehle

Shortly after having paid a total of more than $300 million in fines and settlement payments for allegedly opening fake accounts for its customers without their knowledge or consent, Wells Fargo is once again back in the spotlight for allegations of fraud.

This time the allegations are in regards to the bank’s auto lending business, which allegedly signed up and charged customers for car insurance they may or may not have needed or been made aware of. According to the class action lawsuit, most of the approximately 570,000 customers involved were not looking for a car loan from Wells Fargo, but got one anyway after they had chosen an automobile.

Wells Fargo required borrowers to maintain comprehensive car insurance, like almost any other auto loan company. Unlike other auto loan companies, Wells Fargo allegedly bought insurance for its customers who did not have comprehensive insurance, then charged them for it. Wells Fargo even admitted to buying insurance for customers who already had coverage.

National General has also been named as a defendant in the lawsuit, as it is the company from which Wells Fargo purchased insurance on behalf of the customers it deemed were underinsured (whether they were or not). The bank then charged their customers for that insurance, regardless of whether those customers could afford the insurance Wells Fargo had bought for them.

Many of the customers who were forced to pay for auto insurance they could not afford fell behind on their payments, to the point where some were forced to default on their loans, resulting in the repossession of their vehicles. Continue reading ›

Nursing Homes Will be Barred From Using Arbitration Agreements

November 24, 2016 | Peter S. Lubin and Patrick Austermuehle

Death is a part of life and that’s even more true in certain places of our communities, such as hospitals and nursing homes. It’s expected that most people will die there or shortly after their stay, but there are still plenty of deaths happening in these places that are preventable.

Liability insurance for the medical industry is much higher than other industries because they need to protect themselves from angry family members looking for someone to blame for their loss. Sometimes they’re just lashing out, but all too frequently, the families have a legitimate complaint and now many of them are claiming that nursing homes have been working to keep allegations against them out of the public eye.

Over the past decade or so, an increasing number of businesses, including nursing homes, have been including arbitration agreements in both their employment and service contracts. The result is that it has become nearly impossible for consumers to do anything without signing away their right to take the company to court in the event of a legal dispute.

Arbitration was created as a way for businesses to settle disputes between themselves without cluttering the courts with their lawsuits. It is a private process that is much less formal, and often less neutral, than our current legal system. For example, is common for negotiations to take place in the offices of an attorney representing one of the parties. Continue reading ›

Consumer Protection Bureau Protects Consumers by Banning Forced Arbitration and Class Action Waivers Used by Predatory Lenders

May 11, 2016 | Peter S. Lubin and Patrick Austermuehle

Have you ever wondered if that bank fee or overdraft charge from your bank was legal? If you tried to challenge your bank in a court of law, chances are you found out you had signed an arbitration agreement, which meant you could not settle the dispute in a court of law. Instead, you had to go through arbitration to accuse your bank of charging illegal fees or mismanaging your money.

If you choose to use arbitration, you have to cover all your legal fees yourself, which can quickly reach thousands of dollars. If you believe your bank has illegally taken funds out of your account, the chances are the amount they took was negligible. Three dollars for an overdraft fee may not seem like much, but for some people it can mean passing on a box of groceries. Even if it’s not much for the individual consumer, if the bank is improperly charging these types of fees to a large portion of its customers, it’s probably making a fortune illegally. Continue reading ›

Used Car Fraud Nightmare — We Sue For Flood Cars, Rebuilt Wrecks and Odometer Roll Backs in Court or Arbitration

March 4, 2016 | Peter S. Lubin and Patrick Austermuehle

Consumers often make the mistake of signing away their rights to go to court. Even if you have signed away your rights we pursue crooked auto dealers in arbitration and have won large arbitration judgments or settlements of over $50,000 and even $100,000 for buyers of flooded cars or rebuilt wrecks.

Class Actions Accuse Dollar General of Misleading Consumers by Selling Motor Oil That Only Works on Cars Made After 1998

February 23, 2016 | Peter S. Lubin and Patrick Austermuehle

Millions of car owners use motor oil to keep their engines running smoothly, but buying the wrong oil can do more harm than good.

To many consumers, one brand of motor oil is much like any other brand. But according to a recent consumer class action lawsuit against Dollar General, the discount retailer has been taking advantage of this assumption by selling their own brand of motor oil at a much lower cost than other brands, but there’s a catch.

The fine print on the back of the bottle says the oil is not intended for use in cars made after 1988. Dollar General’s oil is marked as 10W-30 and stored on shelves right next to oil meant for newer vehicles, so many consumers assume there’s no real difference, other than the price. Because Dollar General’s brand is considerably cheaper, many consumers buy it thinking they can use the motor oil in any car, but that’s not actually the case.

Joe Wood, a plaintiff in one of the consumer lawsuits against Dollar General, says his car died after he started using Dollar General’s brand of motor oil.

Tom Glenn, the president of the Petroleum Quality Institute of America, said that he considers Dollar General’s motor oil to be obsolete, because it should only be used on cars 28 years or older. The class action consumer lawsuit likewise called the motor oil obsolete, but Dollar General objected to the use of that word, saying their oil can be used in the millions of cars that were made prior to 1988 that are still on the road. Continue reading ›