Tesla named in class action lawsuit over sudden acceleration issue in Model X vehicles

 

Since the introduction of the Model X, Defendant Tesla Motors, Inc., has sold approximately 16,000 Model X vehicles throughout the United States. Model X vehicles operate with an electronic acceleration control system by which complex computer and sensor systems communicate an accelerator pedal’s position to the vehicle’s onboard computers, telling the vehicle how fast it should go.

Able to accelerate from zero to sixty miles per hour in 2.9 to 3.8 seconds (depending on battery pack) and equipped with advanced safety features including Forward Collision Warning and Advanced Early Braking, Tesla proclaims that the Model X is “the safest, fastest and most capable sport utility vehicle in history.”

As alleged, the Model X is susceptible to sudden unintended acceleration (“SUA”), in which the Model X will accelerate at full power even though the driver reports that they did not command the acceleration by pressing on the accelerator pedal, either at all or not to the degree that would call for the application of full power.

COMPLAINT

Staples named in class action lawsuit for failing to honor obligations of its Member Rewards Program

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The complaint alleges that Staples engaged in a deceptive scheme whereby it purported to offer and provide to Plaintiff and the Class—as Staples Rewards Program Members (“Members”)—credit for a certain percentage of his/her/their total Qualifying Purchase Amount (“Rewards Points”) for purchases made during the applicable calendar quarter when, in fact, Members received credit in amounts far less than the represented percentage of their Qualifying Purchase Amount.

Specifically, Staples took affirmative steps to ensure that its Members received Program credit at rates well below the percentage represented of Purchase Amount by applying coupons used on exempted items (i.e., items that do not constitute as a “Qualifying Purchase”) on a pro rata basis across all purchases made—including “Qualifying Purchases” which should be added in their entirety to a Member’s quarterly total Qualifying Purchase Amount causing them to accrue fewer Rewards Points than represented. By employing this deceptive method of calculating Rewards Points, Staples shorted its Members’ account credit which could have been used towards the purchase of most merchandise in Staples’ stores, online at staples.com, or by phone.

Staples engaged in, and continues to engage in, an egregious misleading and deceptive practice designed to take advantage of its Members. Per the Staples Rewards Program and Conditions (the “Program”)that were in effect when Plaintiff made his purchase (annexed hereto as Exhibit B), “Members’ accounts will receive credit for Qualifying Purchases . . . made during the applicable calendar quarter if the Reward minimum . . . is met. Qualifying Purchase Amount is the amount paid at checkout after application of all promotions, coupons and Rewards redemption.” It is simply unfair and deceptive to apply coupons redeemable only for non-qualifying purchases under the Program on a pro rata basis across all purchases made in the same transaction—including merchandise qualifying under the Program. Indeed, Defendant’s sale receipts conceal this practice and apply coupons only to a single item—the item for which the coupon applies. This practice violates statutory and common law.

Complaint

Nestle USA, manufacturer of Lean Cuisine products, named in class action for deceptively marketing its products as containing no preservatives

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Plaintiff brings this class action against NESTLE USA, INC, for the deceptive practice of marketing its Lean Cuisine® frozen meals as having “No Preservatives” when many of them contain citric acid (2-hydroxypropane-1,2,3-tricarboxylic acid), a well-known preservative commonly used in commercial food and drink products.

Defendant sold Plaintiff and Class members, and continues to sell consumers, the following products containing citric acid with misleading “No Preservatives” language:

  1. Lean Cuisine® favorites Alfredo Pasta with Chicken & Broccoli
  2. Lean Cuisine® favorites Four Cheese Cannelloni
  3. Lean Cuisine® favorites Cheese Ravioli
  4. Lean Cuisine® favorites Chicken Enchilada Suiza
  5. Lean Cuisine® favorites Fettuccini Alfredo
  6. Lean Cuisine® favorites Classic Five Cheese Lasagna
  7. Lean Cuisine® favorites Asian-Style Pot Stickers
  8. Lean Cuisine® favorites Spaghetti with Meatballs
  9. Lean Cuisine® favorites Macaroni & Cheese
  10. Lean Cuisine® favorites Chicken Fettuccini
  11. Lean Cuisine® favorites Five Cheese Rigatoni
  12. Lean Cuisine® favorites Cheddar Potatoes with Broccoli
  13. Lean Cuisine® favorites Lasagna with Meat Sauce
  14. Lean Cuisine® MARKETPLACE Roasted Chicken & Garden Vegetables
  15. Lean Cuisine® MARKETPLACE Creamy Basil Chicken with Tortellini
  16. Lean Cuisine® MARKETPLACE Chicken with Almonds
  17. Lean Cuisine® MARKETPLACE Sesame Chicken
  18. Lean Cuisine® MARKETPLACE Chicken Pecan
  19. Lean Cuisine® MARKETPLACE Ginger Garlic Stir Fry with Chicken
  20. Lean Cuisine® MARKETPLACE Tortilla Crusted Fish
  21. Lean Cuisine® MARKETPLACE Orange Chicken
  22. Lean Cuisine® MARKETPLACE Apple Cranberry Chicken
  23. Lean Cuisine® MARKETPLACE Chile Lime Chicken
  24. Lean Cuisine® MARKETPLACE Mushroom Mezzaluna Ravioli
  25. Lean Cuisine® MARKETPLACE Ranchero Braised Beef
  26. Lean Cuisine® MARKETPLACE Cheese and Bean Enchilada Verde
  27. Lean Cuisine® MARKETPLACE Cheese Tortellini
  28. Lean Cuisine® MARKETPLACE Ricotta Cheese & Spinach Ravioli
  29. Lean Cuisine® MARKETPLACE Spicy Beef & Bean Enchilada
  30. Lean Cuisine® MARKETPLACE Spicy Mexican Black Beans & Rice
  31. Lean Cuisine® Comfort Chicken Parmesan
  32. Lean Cuisine® Comfort Herb Roasted Chicken
  33. Lean Cuisine® Comfort Meatloaf with Mashed Potatoes
  34. Lean Cuisine® Comfort Salisbury Steak with Macaroni & Cheese
  35. Lean Cuisine® Comfort Shrimp Alfredo
  36. Lean Cuisine® Comfort Grilled Chicken Caesar
  37. Lean Cuisine® Craveables Four Cheese Pizza

 

By deceptively marketing the Products as having “No Preservatives,” Defendant wrongfully capitalized on, and reaped enormous profits from, consumers’ strong preference for food products made free of preservatives.

Plaintiff brings this proposed consumer class action on behalf of herself and all other persons in New York, who, from the applicable limitations period up to and including the present purchased for consumption and not resale any of Defendant’s Products.

 

Transnational Foods, Inc named in class action lawsuit over sales of fake octopus

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Transnational Foods, Inc (“TFI”) is a food product brand that sells three canned octopus products under the brand name “Pampa”: (1) Octopus in Garlic Sauce, (2) Octopus in Vegetable Oil, and (3) Octopus in Marinara Sauce (collectively the “Octopus Products”).

Cerqueira is a large seafood supplier and cannery that supplies various seafood products to United States based brands. At all times relevant, and during the relevant class period, it supplied and supplies all of the Octopus Products to TFI. It also sells similar products to other United States brands including but not limited to Roland Foods, Iberia, and Vigo Importing Co., and Conchita Foods, Inc. (all octopus sold in the United States which were and are supplied by Cerqueira shall be referred to as the “Cerqueira Cross-Brand Octopus Products”).

TFI has labeled and sold its Octopus Products as octopus (or pulpo). Independent DNA testing, however, has determined that TFI’s Octopus Products (supplied by Cerqueira) are actually jumbo squid and not octopus; squid is significantly cheaper and of a lower quality than octopus. The word “Octopus” or “Pulpo” is prominently displayed on the label of each box in a large font as shown below. Nowhere on the box does it state that the Octopus Products contain squid instead of octopus. Additional testing has revealed that this bait and switch is occurring throughout the Cerqueira Cross-Brand Octopus Products.

Plaintiff is informed and believes that TFI and Cerqueira have intentionally replaced the octopus in its Octopus Products with squid as a cheap substitute to save money because they knew an ordinary consumer would have trouble distinguishing the difference. In fact, in 2011, CERQUEIRA was sanctioned by a local government in Spain for this bait and switch, and CERQUEIRA committed to stopping the offending conduct.

Complaint

Viva Labs named in class action over misleading marketing of Organic Extra Virgin Coconut Oil

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Viva Labs misleadingly labels and markets its Organic Extra Virgin Coconut Oil as healthy, and as a healthy alternative to butter and other cooking oils, despite that it is actually inherently unhealthy and a less healthy alternative.

Plaintiff relied upon Viva Labs’misleading claims when purchasing the Coconut Oil and was damaged as a result. She brings this action challenging Viva Labs’ labeling and marketing claims relating to the Coconut Oil on behalf of herself, all other similarly-situated consumers in California, and the general public, alleging violations of the California Consumer Legal Remedies Act, Cal. Civ. Code §§ 1750 et seq. (“CLRA”), Unfair Competition Law, Cal. Bus. & Prof. Code §§ 17200 et seq. (“UCL”), and False Advertising Law, id. §§ 17500 et seq. (“FAL”). Plaintiff further alleges that Viva Labs breached express and implied warranties under state law.

Complaint

Hyundai named in class action over defect in 7-speed dual-clutch automatic transmission Hyundai Sonata and Hyundai Elantra vehicles

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Plaintiffs bring this action on behalf of all persons in the United States who purchased or leased any Hyundai Veloster, Hyundai Sonata (Eco) and Hyundai Elantra (Eco) vehicles equipped with a 7-speed dual-clutch automatic transmission (DCT) (collectively, “Hyundai Vehicles” or “Class Vehicles”)1 designed, manufactured, marketed, distributed, sold, warranted, and serviced by Hyundai Motor America, a California corporation.

In October 2014, Hyundai premiered its 7-speed DCT, designed to “provide an improvement in fuel consumption and CO2 emission compared to a conventional six-gear automated transmission, while acceleration performance increases” and featuring two dry clutches that transfer engine power “independently into the odd and even gear train to always be ready to shift into the next gear.”2 However, Plaintiffs allege on information and belief that Hyundai’s 7-speed DCT contains a design defect in the Transmission Control Module (“TCM”) that causes, among other problems, failure to shift, stalling, delayed acceleration, or loss of power (“TCM Defect”). The TCM is a small electronic component within the powertrain that processes data from various sensors throughout the engine in order to determine the optimal gear for shifting and fuel-economy.

On information and belief, the TCM is defective because it fails to interpret data from the vehicle’s sensors properly, thus miscalculating both the appropriate gear and the correct shift timing, which results in an unresponsive accelerator pedal and stalling. Since 20 4. 15, in an effort to address owner complaints regarding the TCM Defect, Hyundai has issued Technical Service Bulletins (“TSBs”), as detailed below. However, these efforts failed to resolve the TCM Defect.

The TCM Defect causes unsafe conditions, including the transmission failing to shift, stalling, and delayed or unresponsive acceleration, especially from a stop. These conditions are hazardous because they severely affect the driver’s ability to control the vehicle during normal driving conditions and prevent drivers from accelerating to maintain safe speeds in traffic. For example, the TCM Defect may make it difficult for drivers to accelerate safely from traffic stops because Class Members’ vehicles hesitate, fail to shift gears, and stall when drivers try to accelerate from stops.

Since at least 2015, through consumer complaints and dealership repair orders, among other internal sources, Defendant knew or should have known that the 7-speed DCT in the Class Vehicles contained a design defect that diminishes the drivability of the Class Vehicles and causes safety hazards, in part because the same concerns were expressed regarding the 2016-2017 Hyundai Tucson that is equipped with the same 7-speed DCT and TCM.

On information and belief, Defendant’s corporate officers, directors, or managers knew about the TCM Defect but failed to disclose it to Plaintiffs and Class Members, at the time of sale, lease, repair, and thereafter. In fact, in or around August 2016, Hyundai issued a Technical Service Bulletin (“TSB”) for Hyundai Tucson vehicles equipped with the 7- speed DCT and a limited recall in September 2016 for certain of the same vehicles informing its dealers that a faulty “transmission clutch application logic can result in a delayed engagement when accelerating from a stop” or fail to accelerate at all “if the accelerator pedal is repeatedly cycled.” Hyundai dealers were instructed to reprogram the TCM in the affected vehicles. However, both the TSB and the recall were limited to the 2016 Tucson, despite owners complaining of similar issues in other Hyundai vehicles equipped with the same 7-speed DCT.

Because Hyundai will not notify Class Members that the 7-speed DCT is defective, Plaintiffs and Class Members (as well as members of the general public) remain subject to dangerous transmission malfunctions that can occur without warning. As alleged, the alleged TCM Defect was inherent in each Hyundai Vehicle and

was present in each Hyundai Vehicle at the time of sale. Hyundai knew about and concealed the TCM Defect present in every Class Vehicle, as well as its attendant hazardous conditions, from Plaintiffs and Class Members, at the time of sale, lease, repair, and thereafter. In fact, instead of repairing the defects in the 7-speed DCT, Hyundai either refused to acknowledge their existence or performed repairs that simply masked them.

If they had known about these defects at the time of sale or lease, Plaintiffs and Class Members would not have purchased or leased the vehicles.

Complaint

Audi named in class action over use of illegal defeat devices on at least its 3.0-liter gasoline Q5, Q 7, A6 and A8 models equipped with automatic transmissions

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In September 2015, and again in November 2015, Volkswagen and Audi admitted using defeat device software to activate emissions controls when diesel cars were being smog tested and deactivate those controls during normal, on-road driving. Volkswagen, Audi AG’s parent company, took the position that the diesel defeat device was an isolated incident, which it dubiously blamed on “rogue engineers.”

According to the complaint, it was not an isolated incident, and the unlawful activity was not perpetrated by a few “rogue engineers” but by hundreds of personnel throughout the companies.

Moreover, Audi’s unlawful activity was not limited to its diesel vehicles. It has recently been reported that Audi has been hiding its use of a completely different defeat device on at least its 3.0-liter gasoline Q5, Q 7, A6 and A8 models equipped with automatic transmissions.

In those cars, Audi installed software which detects when the vehicle undergoes emissions and mileage testing and then programs the car to shift into each higher gear sooner, thus reducing engine RPM, fuel consumption, and CO2 emissions. But otherwise, during normal driving operation, the cars’ shift points are higher, resulting in more power and acceleration, but increased fuel consumption, lower MPG, and higher CO2 emissions.

Plaintiffs purchased Audi models. Audi represented in the “Monroney Stickers” on the vehicles Plaintiffs purchased the estimated fuel efficiency for the vehicles, and represented that Plaintiffs’ vehicles emitted a certain amount of carbon dioxide per mile. Upon information and belief, these representations were false. Unbeknownst to Plaintiffs, the vehicles purchased were surreptitiously equipped with a “defeat device” designed to limit emissions and increase fuel efficiency when the vehicle was being subjected to regulatory emissions and fuel efficiency testing, but not during regular use. As a result, the actual CO2 emissions and fuel efficiency of Plaintiffs’ vehicles are materially different from the representations set forth on the Monroney Stickers and in advertisements and marketing representations made by Audi to consumers.

Plaintiffs bring this proposed class action for damages on behalf of themselves and all other persons and entities nationwide who purchased or leased an Audi vehicle equipped with the defeat device, including but not limited to A6, A8, Q5 and Q7 models with 3.0 liter gasoline engines and automatic transmissions, and perhaps others (collectively, the “Affected Vehicles”).

Plaintiffs and members of the class all suffered damages as a result of Audi’s misrepresentations and omissions regarding the defeat device. Plaintiffs and class members overpaid to purchase vehicles incapable of providing the balance of performance, efficiency, and cleanliness that Audi represented these Affected Vehicles to offer. Plaintiffs and the class members have also suffered diminution of vehicle value now that the existence of the defeat devices has been revealed publicly. Accordingly, Plaintiffs and similarly situated owners and lessees of the Affected Vehicles are entitled to compensation for their losses, including losses related to increased fuel expenditures.

Complaint

1-800 Contacts and Vision Direct, Inc named in class action alleging conspiracy to restrain trade

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1-800 Contacts and Vision Direct, Inc named in class action lawsuit alleging a conspiracy to restrain competition in the  direct-to-consumer and online markets for contact lenses

Plaintiffs bring this action on behalf of all direct-to-consumer purchasers of contact lenses, including those who purchased contact lenses online, in the United States and a subclass of all California residents against defendant 1-800 Contacts as the ringleader behind a scheme to prevent competition in the online market for contact lenses.

This action arises out of defendants’ overarching scheme to restrain competition in the direct-to-consumer and online markets for contact lenses.

As recently revealed in a complaint by the Federal Trade Commission (“FTC”), 1-800 Contacts is the instigator and enforcer of an unlawful series of agreements between 1-800 Contacts and at least 14 of its “competitors” to divide up the direct-to-consumer and online markets for sales of contact lenses. These 15 “competitors” combine to control over 50% of the direct-to-consumer and online markets for contact lenses. 1-800 Contacts accounts for over 50% of the online market by itself. In particular, 1-800 Contacts abused its monopoly power and entered into bilateral agreements with each of its competitors/co-conspirators to not bid against each other in advertising auctions conducted by internet search engines.

Due to the massive amount of information available on the internet, internet search engines have become indispensable to anyone seeking to use the internet. Internet search engines are generally simple to use – a user need only enter keywords, such as “contact lenses,” into a field and the search engine will use an algorithm to find and list the webpages that are responsive to the query, usually ranked in order of relevance. Search engines, such as Google or Bing, are usually free to users. The main source of revenue for these search engines is the advertising they sell, which appears in response to a user’s search and is displayed adjacent to the respective search engine’s organic results. This form of advertising has a proven track record of being successful, as it allows the advertisers to market directly to consumers at the very moment they are looking to make a purchase or have expressed an interest in a specific subject. Online search engine advertising is critical to nearly every company’s ability to compete in the digital age. Google and Bing sell this advertising through automated auctions.

A successful way for competitors to raise awareness of their products and compete for sales is to purchase search advertising that mentions their competitors, especially as a comparison. For example, if a consumer is looking to buy a  television for the cheapest price and knows a big retailer like Best Buy sells televisions, the consumer might search for “cheaper than best buy for tvs.” Such a search will likely  yield sponsored ads by Best Buy, but also ads by competitors, such as Walmart.

This is not the case in the contact lenses industry. A search of “cheaper than 1-800 contacts for contact lenses” yields sponsored advertising by only one company, 1-800 Contacts. The reason for this disparity is that anti-competitive bilateral agreements between 1-800 Contacts and its co-conspirators prevent each other from bidding on any search keywords or phrases with the other company’s brand names, websites or trademarks in them. In addition, the agreements require that 1-800 Contacts and its co-conspirators use “negative keywords.” This is an instruction to the search provider that a company’s advertisement should not appear in response to a search query that contains a particular term or terms.

Normally negative keywords are used to prevent advertising appearing from irrelevant queries that may contain similar words. For example, a company that sells billiards accessories would bid for the term “pool” in order to advertise for pool sticks, but use a negative keyword of “swimming” to prevent its ads from appearing when someone is looking for water-related accessories. While many companies use negative keywords to properly tailor advertisements to interested consumers, defendants use negative keywords to allocate the market for contact lenses. 1-800 Contacts and its co-conspirator agreed to instruct search advertisers that their advertising should not appear when a search includes a competitor’s trademark through the use of negative keywords.

As alleged, the 1-800 Contacts-led scheme has been ongoing for more than a decade. In 2003, there was an estimated $200 million worth of online contact lens sales. Though 1-800 Contacts accounted for $187 million worth of those sales, the company realized that it was beginning to have real competition for direct sales. 1-

800 Contacts thereafter devised a plan to unlawfully stifle online competitors so that it could continue to sell contact lenses at higher prices than its rivals without losing market share. Specifically, in order to restrict competition and maintain its market share and pricing, 1-800 Contacts began accusing its then competitors of trademark infringement if a rival’s advertisement appeared on the search results page in response to internet search queries that involved 1-800 Contacts’ brand name, websites or trademarks. 1-800 Contacts’ position was legally baseless and a transparent threat to inundate its competitors with prolonged and costly litigation.

 

Between 2004 and 2013, fourteen of 1-800 Contacts’ competitors agreed with 1-800 Contacts not to bid against 1-800 Contacts in certain auctions in order to settle the sham lawsuits or threat thereof. Most of the competitors agreed to 1-800 Contacts’ terms before even asserting counter claims. The agreements – which are reciprocal – prevented 1-800 Contacts and its competitors from bidding in search advertising auctions for any of the others’ trademarked terms and common variations, including common misspellings, of any of those terms. Each competitor knew that by entering into this agreement, its market share and profits would be protected. Of course, to ensure this was the case, all a competitor needed to do was a Google search. In addition, 13 of the agreements called for the adoption of negative keywords. Only one competitor, Lens.com, refused to enter into an agreement. 1-800 Contacts and Lens.com proceeded to litigate 1-800 Contacts’ bogus trademark claim, and after years of litigation, Lens.com prevailed. The district court in that action specifically called the practice of seeking agreements that preclude a competitor’s advertisements from appearing on a search results page any time its mark is entered as a search term “an anti-competitive, monopolistic protection to which [1-800 Contacts] is not entitled.” Notably, in its answer to the FTC action, 1-800 Contacts admitted that it entered into these agreements with competitors in all but one case to allegedly resolve threatened or actual trademark litigation.

Members of the Class were injured by defendants’ actions by paying supra-competitive prices for contact lenses. In addition, defendants’ actions prevented the Class from receiving the benefits of a fair and competitive marketplace for both information and pricing of contact lenses sold directly to consumers, including online.

 

Samsung named in class action lawsuit over exploding batteries in other model cell phones

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Samsung manufactures and sells smartphones which pose a threat to the safety of consumers. These dangers made international headlines when numerous Samsung Note7 devices exploded and burst into flames leading to a complete recall of the product.

 

Samsung has yet to determine the cause of the problems with the Note7, and continues to sell, market, and distribute other smartphones which are at risk of overheating, fire and explosion. Samsung recalled the Note7 while leaving other dangerous products in the marketplace. Unfortunately, the problem is not limited to the Note7. The Note7 recall was a Band-Aid to a pervasive problem for which major surgery was required.

 

According to the complaint, Samsung has been made repeatedly aware of the issues with its smartphones, yet has failed to warn consumers of the dangers posed by the lithium ion batteries in the devices.

 

While Samsung recalled the Note7, it has failed, and continues to fail, to recall other dangerous products, failed to warn consumers of the dangers they pose, and failed to adequately respond to consumers whose phones have suffered from overheating, fire and explosion.

 

The complaint seeks to certify the following class:

All persons residing in the State of California who purchased, in the State of California, at least one (1) of the Subject Phones at any time during the four (4) year period preceding the filing of this Class Action Complaint and continuing through the date of trial. The Subject Phones are the S6, S6 Edge, S6 Edge+, S6 Active, S7, S7 Edge, S7 Active, and Note5

Buffalo Trace Distillery, Old Charter Distillery and Sazerac Company, makers of Old Charter Bourbon named in class action lawsuit over deceptive advertising

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Defendants represent that Old Charter is an 8-year aged bourbon. The complaint alleges this is false and misleading. Old Charter used to be aged for 8 years, but Defendants stopped that practice in approximately January 2014. The bourbon bearing the Old Charter name is now aged for significantly less than 8 years and is of inferior quality to its former self. But in an attempt to upsell the newer, younger, and inferior product, Defendants’ bottle labeling still misleads consumers to believe that the bourbon is aged 8 years.

The misrepresentation appears in three places on the bottle: on the neck, on its own label on the top of the body, and in the text portion which reads “gently matured for eight seasons in century old brick warehouses:”

As alleged, the label from before and after Defendants’ switch was unchanged with one minor exception.  Defendants omitted the words “aged” and “years” from the label, but continued touting the number 8.

This deceptive change fails to inform anyone that Defendants’ product is now composed of cheaper and lower-quality bourbon. The number 8 is still prominently shown in the same three places on the bottle, and the label still reads “gently matured for eight seasons ….”

Despite the fact that Defendants switched the Old Charter bourbon to a younger and lower quality spirit, the price remained the same. Consumers therefore got stuck paying the premium price of an 8-year bourbon for a much lower-value product.

Plaintiff is a purchaser of Old Charter who asserts claims on behalf of himself and similarly situated purchasers of Old Charter for violations of the consumer protection laws of New York, unjust enrichment, breach of express warranty, violation of the Magnuson-Moss Warranty Act, fraud, and negligent misrepresentation.