Class Action Blog : Consumer Fraud, Consumer Protection, Securities and Antitrust Lawyer & Attorney : Meiselman, Denlea, Packman, Carton & Eberz

Mouthwash is an important product for maintaining oral hygiene, and many of us are willing to pay a little extra for fresher breath and cleaner teeth. Unfortunately, it appears that the makers of ACT mouthwash are taking advantage of our desire for clean mouths.

The product ACT Total Care costs significantly more than regular ACT mouthwash, even though the two products are made from the exact same ingredients. In addition, ACT Total Care advertises to consumers that it “rebuilds enamel.” However, it is impossible to rebuild or restore enamel. Many customers of ACT Total Care may pay more, thinking they will be able to rebuild enamel or that ACT Total Care is in some way superior to regular ACT Mouth Wash. If you purchased ACT Total Care because you were deceived into believing that the product would rebuild enamel or that it was otherwise superior to regular mouthwash, please contact us to discuss your legal rights
 

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Federal law, along with the laws of many states, requires that companies who pay their delivery drivers at or near the minimum wage must fully reimburse those delivery drivers for their gas and other driving-related expenses.  Unfortunately, too many companies try to make extra profit by systematically under-reimbursing their delivery drivers.  As a result, Meiselman, Denlea, Packman, Carton & Eberz P.C. has filed suit against a Pizza Hut franchisee for failing to reimburse delivery drivers. 

We recently learned that Burger King is getting into the delivery business.  If Burger King fully reimburses their delivery drivers, Burger King delivery is a great idea.  However, if Burger King follows the lead of many pizza chains and under-reimburses delivery drivers, delivery drivers have a right to be fully compensated.  If you are a delivery driver and you believe you are being under-reimbursed, please contact us to discuss your legal options.

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On January 24, on behalf of over 24 million customers of the shoe and clothing store Zappos, Meiselman, Denlea, Packman, Carton & Eberz P.C. filed suit in federal court against Amazon, the corporate parent of Zappos. Zappos recently put its customers at risk by negligently allowing a major security breach. As a result, cyber-criminals have obtained the following information for up to 24 million Zappos customers: name, e-mail address, billing and shipping addresses, phone number and the last four digits of credit cards. Zappos was so unprepared for the breach that, instead of living up to its responsibilities helping the victims, Zappos shut down its customer service phone lines. Even worse, some criminals appear to have used this breach to steal directly from Zappos customers and to commit identity theft.

Identity theft is a multi-billion dollar problem and, too often, identity theft is caused by the negligence of giant corporations. To help remedy this problem, Meiselman, Denlea, Packman, Carton & Eberz, P.C. has previously brought lawsuits on behalf of identity theft victims in the TRICARE/SAIC and Sutter Health data breaches. These lawsuits will obtain relief for identity theft victims and will ensure that the corporations responsible for the breaches improve their security. We look forward to obtaining relief for the Zappos victims. If you are a Zappos customer and you believe your rights may have been violated, please contact us immediately to discuss your legal options. 

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As consumers become more concerned with reducing their impact on the environment while keeping monthly bills as low as possible, energy efficient appliances are becoming more popular. In fact, washing machines, refrigerators and air conditioners are some of the most significant sources of electricity usage in the home. One way consumers can tell if the appliance they are thinking of purchasing is energy efficient is by relying on its Energy Star certification.

Energy Star is an international standard for energy efficient consumer products. Appliances carrying the Energy Star logo generally use 20%–30% less energy than required by federal standards. As a result, consumers expect that appliances with the Energy Star logo deliver the promised energy savings. Unfortunately, that is not always the case.

Indeed, it has been reported that certain Maytag Centennial washing machines and KitchenAid refrigerators failed to meet the required Energy Star specifications, notwithstanding the fact that they bore the Energy Star certificate. In addition, investigators have reported that certain models of Kenmore, Electrolux, Frigidaire and LG Electronics refrigerators do not meet the Energy Star specifications they claim.

If you or someone you know has purchased any of these appliances, please contact us to discuss your legal options.

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One of the classic means by which unscrupulous business deceive consumers is by imposing unauthorized charges on phone bills. These types of scams have been going on for decades, and as a result, many states have specific statutes requiring explicit authorization and notice before a charge can be added to a consumer’s telephone bill by a third party. Unfortunately, not everyone gets the message.

One such company might be Member’s Edge, which provides voice mail and email related services. Member’s Edge charges $19.95 for monthly voice mail charges. It also sells email services marketed under the name “Family Discount Network,” with monthly charges of $14.95, with a $14.95 non-refundable set-up fee. According to the Vermont Attorney General in a recent lawsuit, Member’s Edge does not just rely on fair marketing to convince consumers that they should pay for their voice mail and email services; it also imposes unauthorized charges on phone bills. Many consumers who have identified charges by Member’s Edge complain that they never authorized any such charges. The Vermont Attorney General also claims that a similarly company, Residential Voice Mail, is guilty of imposing unauthorized charges on telephone customers.

If you or anyone you know has been the victim of unauthorized charges by Member’s Edge, Family Discount Network or Residential Voice Mail, please contact us to discuss your legal options.

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Tax filing season is officially upon us. If recent trends continue, approximately 100 million tax returns will be filed this year. Of these 100 million tax returns, more than 20 million will be prepared using tax software. Attempting to capitalize on the fast-growing tax preparation software market, Office Depot offers $1,300 in free software, a total of 24 different titles, if you buy certain tax preparation software like TurboTax Deluxe or H&R Block Deluxe. 

Consumers are told that after purchasing qualifying tax preparation software, to receive their $1,300 in “free” software, all they have to do is purchase the “free” software and fill out the accompanying rebate forms to get their money back. However, many of the 24 “free” software titles require that the consumers enclose the original tax preparation software UPC with their rebate form. The consumer obviously only has 1 original UPC, thereby making it impossible for the consumer to receive the rebates for the entire $1,300 in “free” software as advertised.

If you or someone you know purchased tax preparation software like TurboTax Deluxe or H&R Block Deluxe from Office Depot and are unable to receive your $1,300 in “free” software please contact us to discuss your legal options.

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Consumers should be cautious when purchasing medical discount plans, which should not be confused with health insurance. In this age of expensive health insurance, medical discount plans can be attractive for some people to save money on their health care costs, but consumers should understand that medical discount plans do not insure them.

When you buy health insurance, you are insuring yourself against a broad range of services - the insurance generally pays your health care provider for the cost of service. However, with a medical discount plan, you are simply purchasing a card that allows you to visit certain medical practitioners who may be willing to offer discounts on their medical services. The big difference is that medical discount plans do not insure you against your health care costs, but simply allow you to obtain discounted medical care from certain providers. Medical discount plans are not health insurance.

Before you purchase a medical discount plan, make sure that you determine whether there are doctors in your geographic area that participate in the discount plan. It is also a good idea to call your preferred providers, or those providers listed as participating in the discount plan, to confirm that they in fact offer discounted medical care. The lists of medical practitioners that participate in discount medical plans change very often, so make sure that you have current information as to which providers participate in the plan you are considering.

If you think you have been misled by the advertising or promotional materials of a medical discount plan, please contact us to discuss your legal rights.
 

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Identity theft is a multi-billion dollar problem. Many companies have responded to this threat by upgrading their security procedures. However, some companies continue to put their customers at risk. The shoe and clothing store Zappos recently put its customers at risk by allowing a major security breach. As a result, a cyber-criminal has obtained the following information for up to 24 million Zappos customers: name, e-mail address, billing and shipping addresses, phone number and the last four digits of credit cards.

If you are a Zappos customer, the most important thing you can do right now is be vigilant about identity theft. Monitor your bills and statements for unwanted purchases and keep an eye on your credit report.

Meiselman, Denlea, Packman, Carton & Eberz, P.C. has brought lawsuits on behalf of identity theft victims in the TRICARE/SAIC and Sutter Health data breaches. If you are a Zappos customer and you believe your rights may have been violated, please contact us immediately to discuss your legal options.

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Novartis Consumer Health, Inc. announced on January 8, 2012 that it was voluntarily recalling all lots of select bottle packaging configurations of Excedrin and NoDoz with expiration dates of December 20, 2014 or earlier, as well as Bufferin and Gas-X prevention products with expiration dates of December 20, 2013 or earlier. The recall is being made because these products may contain stray tablets, capsules, or caplets from other Novartis products, or may contain broken or chipped tablets.

The recall affects 1,645 lots of Excedrin, NoDoz, Bufferin, and Gas-X medicines that were manufactured at a Novartis manufacturing plant in Lincoln, Nebraska. In addition to manufacturing the over-the-counter medications that have been recalled, the plant also manufactures prescription painkillers containing opioids, such as Opana and Percocet. The recall was prompted by concerns that the various over-the-counter and prescription drugs manufactured at this plant may have been mixed up during processing, raising concerns that some bottles of these over-the-counter medications may contain tablets that include powerful prescription painkillers, or may contain tablets that are broken or chipped and therefore not proper human ingestion.

The list of the medications effected by the recall is available at http://www.fda.gov/downloads/Safety/Recalls/UCM286242.pdf.

If you have any of the medicines being recalled, please make sure to check this webpage so you may ensure that your medicine has not been recalled.

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Tinnitus is a medical condition that causes those afflicted to constantly hear noise, typically an incessant ringing in the ears. For many sufferers, this is not a small inconvenience. In fact, some tinnitus victims become so frustrated that they consider surgically removing their ear drums, and other experience suicidal ideation.

Unfortunately, there are very few medical treatments for tinnitus. However, this has not stopped unscrupulous marketers from selling bogus tinnitus cures to consumers desperate enough to try anything. One such marketer may be Quietus, which is sold on late-night television shows and on the Internet. Quietus is touted as a “homeopathic remedy” that “helps support your body’s healing power and helps your inner ear function better.” Not surprisingly, the makers of Quietus are unwilling to divulge its contents.

There are serious questions as to whether Quietus is capable of helping consumers with tinnitus at all.

Tinnitus is not a disease; but a symptom resulting from a range of underlying causes that can include: ear infections, foreign objects or wax in the ear, nose allergies that prevent (or induce) fluid drain and cause wax build-up. Tinnitus can also be caused by natural hearing impairment (as in aging), as a side-effect of some medications, and as a side-effect of genetic (congenital) hearing loss. However, the most common cause for tinnitus is noise-induced hearing loss.

A serious problem that I have with the whole "tinnitus cure" issue is the fact that the symptoms of tinnitus can have a variety of different causes and for that reason medications and treatment strategies may vary based on these factors. Sad to say, there really is no panacea for all those suffering from tinnitus symptoms so, it might be wise to first understand the cause of your particular condition before making the decision to buy a product such as Quietus for tinnitus or any other tinnitus supplement.

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A gray market, which is also known as a parallel market, is the trade of a commodity through distribution channels which, although legal, are unofficial, unauthorized, or unintended by the original manufacturer. A new phenomenon in the United States is gray market drug companies that profit by trading drugs that are in critically short supply. These companies buy drugs that are in critically short supply and then mark them up at drastic rates in order to profit from the critical shortage of needed drugs.

There are approximately two hundred prescription drugs used at hospitals and by doctors that are currently in critically short supply. The country is experiencing record drug shortages, which gray market companies exploit by hoarding drugs and then selling them at massive markups. In one instance, a drug that sold for $12.00 a vial was sold by a gray market drug company for $1,000.00 per vial, a staggering profit. Unfortunately, the profit is made at the risk of patients who sometimes cannot afford the hugely marked up cost.

You may ask how these companies learn which drugs are in short supply. The answer is easily found on a page of the official website of the United States Food and Drug Administration, which publicly posts an extensive list of drugs that are in short supply (http://www.fda.gov/Drugs/DrugSafety/DrugShortages/ucm050792.htm).  This is an easy mechanism for profiteers to learn which drugs are in short supply so that they can jack up the price at the expense of the American consumer and endangering the health and well being of Americans.

Some people may view this as the free market in action, but a committee of the United States Senate is investigating the legality of the practice. In December 2011, the United States Senate Committee on Commerce, Science, and Transportation served subpoenas on several gray market companies as part of an investigation to determine how the gray market companies are obtaining the drugs and how much they are making in profits by selling them to hospitals, pharmacies, and other health care providers at drastically marked up costs. It will be interesting to see what the committee’s investigation reveals.

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Meiselman, Denlea, Packman, Carton & Eberz P.C. has filed a new class action on behalf of New York consumers; the complaint alleges that Rite Aid Corporation has deceptively overcharged thousands of New York consumers for generic drugs. Rite Aid advertises that consumers who join its “Rx Savings Program” will pay only $8.99 for a 30-day supply of more than 500 listed generic drugs, and $15.99 for a 90-day supply of the same 500 offerings. Rite-Aid offers “membership” in the Rx Savings Program, regardless of whether a consumer has health insurance or not. As a result, for those members who do have health insurance and who would otherwise be required to make an expensive copayment, membership in the Rx Savings Program offers the consumer significant savings.

However, MDPCE has uncovered evidence indicating that Rite Aid’s pharmacy computer system is programmed with a default setting that charges consumers their applicable insurance copayment, rather than the Rx Savings Program price. Given ever-escalating insurance costs, this copayment is oftentimes higher than the Rx Savings Program price. For example, a member of the Rx Savings Program with an insurance plan that requires a $25 co-pay for prescription medicine will be charged as a default the $25 co-pay, rather than the lower, advertised Rx Savings Program membership price. As a result, Rx Savings Program members who have had prescriptions processed using insurance are, unbeknownst to them, being charged a copayment that is higher than the Rx Savings Program price they should otherwise be charged.

Unfortunately, this deceptive practice may not be limited to Rite Aid. Most large retail pharmacies, such as CVS, Wal-Mart and Walgreens, have a generic drug savings program; if their pharmacy registers are programmed the same way Rite Aid’s appear to be, consumers may be at risk no matter where they have their prescriptions filled. If you have insurance that covers prescriptions and you purchase generic drugs, be sure you don’t pay a higher copayment, and it might be a good idea to check your records for prior purchases. It is possible that you have been charged an expensive copayment for your generic drugs instead of the price available through your pharmacy’s generic drug savings program.

If you or anyone you know has paid a copayment for a generic drug that is higher than the price advertised under a pharmacy’s savings program, please contact us to discuss your legal options.

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A life insurance check book account is where, instead of issuing a check to a beneficiary of a life insurance policy for the full amount of the policy proceeds, the insurance company provides an interest bearing account from which the beneficiary can withdraw some or all of the benefits at any time. Some people may find it surprising that a life insurance company could keep the proceeds of a death benefit by allowing the beneficiary to have a “check book” against the death benefit, and the fairness of the practice has been questioned in the court.

Life insurance, and other forms of insurance, are regulated by state administrative agencies, but the rights between a policy holder and an insurance company are generally governed as a matter of contract. Depending on what the contract of life insurance states, and depending upon what options the insured or the person purchasing the policy elects, courts will determine a particular case based upon the terms of what is stated in the policy.

Ultimately, the issue is whether the contract of insurance and the elections made by the insured comply with basic contract law, although it does seem unfair that a beneficiary of a life insurance policy could be required to obtain the benefits by way of a check book account.

If you feel that you have been treated unfairly with respect to a life insurance check book account, please contact us to discuss your legal rights.

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Health care costs continue to escalate, and prescription drugs are no exception. While there may be some reasonable market forces at play, American consumers have the right to expect that pharmaceutical companies are not manipulating the market for life-changing drugs just so they can enhance their bottom line. Unfortunately, that is precisely what drug maker Wyeth may have done.

Effexor XR is an antidepressant used to treat generalized anxiety, social and panic disorders. Wyeth’s right to exclusively market Effexor XR should have expired in 2008. However, it appears that Wyeth may have engaged in inappropriate anti-competitive behaviors to delay the emergence of generic alternatives for two years. In order to prevent the generic form of Effexor from cutting into its profits, Wyeth may have fraudulently obtained patents for venlafaxine hydrochloride. Even though Wyeth had good reason to believe that no court would ever enforce these patents against Effexor generics, Wyeth nonetheless represented to the Patent And Trademark Office that its “new” drugs were deserving of protection (the result of which is to extend the exclusive marketing of Effexor). Wyeth may have also engaged in bad faith litigation to prevent generic drug manufacturers from marketing competing drugs. If these allegations are true, then Wyeth’s actions likely caused consumers to pay substantially more for their drugs than they otherwise would have. 

If you or someone you know purchased Effexor XR, contact us to discuss your legal options.

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Millions of Americans suffer from sensitive teeth. As anyone in that position can tell you, the pain from sensitive teeth can be unbearable. It is not surprising, then, that toothpaste companies spend substantial sums developing and marketing toothpaste to help those with sensitive teeth. Unfortunately, Proctor & Gamble may have gone too far in making promises it cannot keep. The National Advertising Division of the Council of Better Business Bureaus Claims recently issued a report indicating that Proctor & Gamble’s advertising in connection with Crest Sensitivity Treatment & Protection Toothpaste may be misleading. Proctor & Gamble promises that users will experience “relief within minutes.” 

However, it appears that there is no scientific substantiation for the claim that the toothpaste provides relief “within minutes.” The NAD found that while Proctor & Gamble has support for the claim that its toothpaste provides relief over the course of days and weeks, there is inadequate support for the “relief within minutes” claim.

If you or someone you know purchased Crest Sensitivity Treatment & Protection Toothpaste and did not receive “relief within minutes,” please contact us to discuss your legal options.

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America is one of the largest consumer markets in the world, and so it is not surprising that European businesses often try to break in to our market. One such business is Banco Santander S.A., a large bank headquartered in Spain. Santander has announced its intention to market its consumer financial services in America; unfortunately, if its early efforts are any indication, Santander might not place the interest of American consumers ahead of its own bottom line.

Beginning a few years ago, Santander began purchasing sub-prime auto loans from American banks and financiers. While there was nothing wrong with doing so, the manner in which Santander has gone about collecting on those loans appears to run afoul of American consumer protection laws. Indeed, Santander appears to have engaged in a number of questionable collection tactics. Perhaps the most egregious involves repeated abusive phone calls. Santander apparently uses “robocalls” -- one consumer reported receiving 800 calls – to harass consumers into paying claimed car loan debts. Consumers also report many instances of abusive in-person calls, in which Santander representatives call consumers’ homes (often late at night), as well as calls to relatives, neighbors, and even employers. Some consumers even report illegal repossession of cars that were paid for or for which consumers are not in arrears. Others report late fees assessed for minor delinquencies many years after the fact, with interest and further “fees on fee” totaling thousands of dollars. 

If you or someone you know has been plagued by Santander’s harassing or wrongful collection activities, please contact us to discuss your legal options.

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One of the most difficult issues consumers trying to losing weight face is purchasing a diet product that works. Unfortunately, many unscrupulous marketers deceive consumers into buying unproven or outright worthless products based on bogus weight loss claims. One of the more egregious scams that have come to light recently concerns HCG.  In fact, the FDA sent letters to several HCG diet-product companies, warning them that HCG weight-loss drugs have not been approved by FDA, and that the claim that HCG can help in weight loss is unsupported.

HCG, or human chorionic gonadotropin, is a hormone produced by the human placenta during pregnancy. HCG is approved by FDA as a prescription drug for the treatment of female infertility, and other medical conditions. However, it is not approved for weight loss. Nonetheless, may HCG marketers claim that HCG can “reset your metabolism,” change “abnormal eating patterns,” and cause one to two pounds of weight loss per day. Typically, these products come with a very low calorie diet, and any weight loss is attributable to the diet, not HCG.

If you or someone you know purchased a HCG weight loss product, contact us to discuss your legal options.

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As Americans struggle with weight loss and strive to maintain the best image they can, they are often beset by unscrupulous advertisers offering miracle cures. One of the most difficult issues facing many women is cellulite; not surprisingly, unscrupulous advertisers seek to take advantage of consumers’ desire to rid themselves of cellulite by offering bogus “cures” that are nothing less than snake oil. The word “cellulite” is not a medical term; instead, it originated in European salons and spas to describe deposits of dimpled fat on women’s legs. Cellulite is described by advertisers as a different type of fat than found elsewhere on the body, a combination of fat, water, and toxic wastes.  In fact, cellulite is nothing more than ordinary fatty tissue. Fibrous tissues connect the skin to underlying layers and create compartments containing fat cells.  When those fat cells grow, they create a dimpled appearance.

Products claiming to reduce cellulite are legion, as are related false advertising claims. For example, many anti-cellulite products claim to remove “toxins” as a cure to cellulite. However, fat in cellulite contains no toxins not present in other fat cells, and the presence or absence of “toxins” has no effect on the size or shape of fat cells that make up cellulite. Similarly, products that claim to permanently “shrink cellulite” or reduce collagen are based on misrepresentations, as no cream or other product can produce that miracle.

Another popular, but perhaps no less bogus, anti-cellulite product is Hot Pants by Zaggora. HotPants allegedly contain “bioceramics” that will help you deal with cellulite. In fact, HotPants, which is also touted as a weight loss device that helps consumers “drop up to 2 dress sizes in 2 weeks,” appears to be sold on the basis of a number of questionable claims. First, Zaggora claims that its bioceramics emit “infrared rays” that both help with weight loss and cellulite appearance; however, the company website and advertising materials we reviewed did not contain a reference to a single proper study substantiating its claims. Second, Zaggora claims that its pants “boosts sweating by up to 80% and aids in eliminating the toxins responsible for cellulite.”  Not only are toxins not responsible for cellulite, but sweating only has a short term effect as any fluid reduction is soon reversed by drinking or eating.

If you or someone you know purchased Hot Pants or any other cellulite cure, please contact us to discuss your legal options.

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It is hardly surprising that many businesses, unwilling to defend their misdeeds in a court of law, have begun surreptitiously inserting arbitration clauses in consumer contracts following the U.S. Supreme Court’s decision in AT&T Mobility LLC v. Concepcion, 131 S. Ct. 1740 (2011), in which the Supreme Court struck down a state law prohibiting such clauses. More surprising is the recent trend by gaming companies who are trying to change the terms of their bargain with their customers well after it has been consummated. In September, Sony altered the terms and conditions every PSN user “agrees” to when they install updates; those terms now include an arbitration clause with a class action waiver. As written, and assuming any court upholds it, this arbitration clause appears to preclude any future class action suits, even for claims that arise from actions or events that predate the new terms and conditions. 

While Sony gives consumers 30 days to opt-out, it appears that there is no consideration for the new arbitration clause. To the contrary, Sony holds users’ ability to access the PSN hostage unless they agree to the new terms; only users that install new updates can access the PSN. On December 7, 2011, Microsoft followed suit, requiring users to agree to a new arbitration clause with a class action waiver if they wish to continue to access the Xbox Live network for which they have already paid.

It remains to be seen whether any court will enforce such an ex-post facto arbitration clause that is foisted on consumers with little or no meaningful choice and no commensurate consideration. If you or someone you know has an issue with a PS3 or Xbox that might be appropriate for class action treatment, please contact us to discuss your legal options.

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