Audi named in class action lawsuit for use of emissions defeat devices in gasoline vehicles equipped with automatic transmissions

 

Plaintiff brings this action in connection with Audi’s practice of equipping certain gasoline vehicles with an illegal “defeat device” designed to evade governmental emissions regulations by tricking the public and regulators into thinking the vehicles emit far less noxious carbon dioxide gas (“CO2”) than they actually do.

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.”

As alleged, 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 additional gasoline vehicles equipped with automatic transmissions.

The vehicles containing the illegal defeat device include at least those vehicles Audi equipped with (1) a ZF 8HP55 “AL551” transmission, including but not limited to, the A6, A8, Q5, and Q 7 or (2) a DL 501-7Q “DL 501” transmission, including, but not limited to, the Audi S4, S5, S6, and S7 models (collectively the “Affected Vehicles”). In those vehicles, 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.

Audi sold the Affected Vehicles to Plaintiff and Class members without informing them of the existence of the defeat devices, and by falsely representing to them that the Affected Vehicles were compliant with all relevant emissions standards when in normal use. Audi also falsely represented the fuel efficiency of the Affected Vehicles.

Because the existence of the defeat devices was concealed, Plaintiff and the Class members were unaware that the vehicles they purchased were equipped with illegal defeat devices. Plaintiff and Class members suffered damages as a result of Audi’s misrepresentations and omissions regarding the defeat device. Plaintiff would not have purchased the Affected Vehicle at all and/or—if the Affected Vehicle’s true nature had been disclosed and mitigated, and the Affected Vehicle rendered legal to sell—would have paid significantly less for it. At the very least, Plaintiff and Class members overpaid for their vehicles, which are incapable of providing the balance of performance, fuel efficiency, and cleanliness that Audi advertised. Plaintiff and Class members have also suffered diminution of vehicle value now that the existence of the defeat device has been revealed.

Complaint

 L’Oreal USA, Inc., makers of Matrix Biolage Keratindose Pro-Keratin + Silk Shampoo named in class action for false advertising

 

This is a nationwide class action brought by Plaintiffs on behalf of consumers who purchased Matrix Biolage Keratindose Pro-Keratin + Silk Shampoo, Pro-Keratin + Silk Conditioner, and/or Pro-Keratin Renewal Spray.

As alleged, keratin is a protein naturally present in human hair, skin and nails. It is made by cells called keratinocytes and consists of amino acids. Its primary function is to protect the cells in hair, skin and nails from damage or stress. Through its uniform, nationwide advertising campaign, including the name of the Keratindose Product line and the names of each Product, Defendants have led consumers to believe that their Keratindose Products actually contain keratin and will confer the claimed benefits of keratin to the consumer.

According to the complaint, the Keratindose Products do not contain any keratin at all and are incapable of providing the claimed benefits of keratin to the consumer.

 

Naming the Products “Keratindose” when they contain no keratin, and echoing that representation with additional statements on the Product labels and in a uniform advertising campaign, is unlawful. The Keratindose Products’ labels are false, deceptive and misleading, in violation of the Federal Food Drug & Cosmetics Act and its parallel state statutes, and almost every state warranty, consumer protection, and product labeling law throughout the United States.

  1. Defendants’ misbranding is intentional, and renders the Products worthless or less valuable. If Defendants had disclosed to Plaintiffs and putative Class Members that their Keratindose Products do not contain any keratin at all, and that the Products do not provide the claimed benefits of keratin, Plaintiffs and putative Class Members would not have purchased the Products or they would have paid less for the Products.

As a result of Defendants’ misconduct and misrepresentations, Plaintiffs and putative Class Members have suffered injury in fact, including economic damages.

Complaint

HP named in class action lawsuit for installing firmware that caused wireless printers to fail when being used with non-HP brand ink cartridges

 

Plaintiffs contend that HP intentionally installed firmware on certain wirelessly-enabled HP printers that caused the printers to fail when being used with non-HP brand ink cartridges.

As alleged, Plaintiffs are the purchasers of “all-in-one” HP printers and devices offered by and sold through Defendants. On or around September 13, 2016, these printers ceased to function. The malfunction of the printers was caused by firmware that HP wirelessly installed on these printers in March 2016, without notice or consent from their owners. The firmware operated to disable the printers if ink cartridges manufactured by an HP competitor were being used. In such cases, error messages appeared on the printer and/or the device sending the print job to the printer stating that the printer error was due to a damaged or failed ink cartridge. The error messages instructed the users to replace the non-HP ink cartridges with new cartridges. Only if the cartridges were replaced with ones manufactured by HP did the printers resume operation.

HP intentionally installed this firmware in order to force consumers to purchase HP’s more expensive ink cartridges as opposed to the less expensive ink cartridges manufactured by its competitors. This scheme was intended to and did cause HP to profit in the form of ink cartridge sales and servicing charges.

HP misrepresented to Plaintiffs that the printers were compatible with non-HP ink cartridges. Plaintiffs were induced to purchase the printers and/or ink cartridges from Defendants based on these misrepresentations regarding the functionality and quality of the printers. Defendants also intentionally misrepresented that the printers failed because the ink cartridges being used were damaged or had failed.

COMPLAINT

FTC files lawsuit against D-Link alleging it put consumers’ privacy at risk due to inadequate security of its computer routers and cameras

The Federal Trade Commission filed a complaint against Taiwan-based computer networking equipment manufacturer D-Link Corporation and its U.S. subsidiary, alleging that inadequate security measures taken by the company left its wireless routers and Internet cameras vulnerable to hackers and put U.S. consumers’ privacy at risk.

The FTC charged that D-Link failed to take reasonable steps to secure its routers and Internet Protocol (IP) cameras, potentially compromising sensitive consumer information, including live video and audio feeds from D-Link IP cameras.

According to the FTC’s complaint, D-Link promoted the security of its routers on the company’s website, which included materials headlined “EASY TO SECURE” and “ADVANCED NETWORK SECURITY.” But despite the claims made by D-Link, the FTC alleged, the company failed to take steps to address well-known and easily preventable security flaws, such as:

 

“hard-coded” login credentials integrated into D-Link camera software — such as the username “guest” and the password “guest” — that could allow unauthorized access to the cameras’ live feed;

a software flaw known as “command injection” that could enable remote attackers to take control of consumers’ routers by sending them unauthorized commands over the Internet;

the mishandling of a private key code used to sign into D-Link software, such that it was openly available on a public website for six months; and

leaving users’ login credentials for D-Link’s mobile app unsecured in clear, readable text on their mobile devices, even though there is free software available to secure the information.

According to the complaint, hackers could exploit these vulnerabilities using any of several simple methods. For example, using a compromised router, an attacker could obtain consumers’ tax returns or other files stored on the router’s attached storage device. They could redirect a consumer to a fraudulent website, or use the router to attack other devices on the local network, such as computers, smartphones, IP cameras, or connected appliances.

The FTC alleges that by using a compromised camera, an attacker could monitor a consumer’s whereabouts in order to target them for theft or other crimes, or watch and record their personal activities and conversations.

 

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

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

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.

 

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.

Mylan Pharmaceuticals named in class action lawsuit over price gauging EpiPen

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At the heart of this proposed class action is a pharmaceutical corporation seeking to boost profits at the expense of families who need the lifesaving product it sells. The product at issue is the EpiPen®, a lifesaving emergency auto-injector treatment for millions of people who suffer from severe allergies and are at risk for anaphylaxis. Anaphylaxis is a potentially life-threatening allergic reaction that can occur quickly, sometimes within minutes, following exposure to an allergen including foods, medicines, latex, and insect bites or stings. EpiPen®s are sold in packs of two, expire, and must be replaced on an annual basis.

As alleged, the need for many families to have one or more EpiPen®s on hand is hard to overstate. According to Food Allergy Research & Education—an allergy advocacy and research group— approximately 15 million people have food allergies in the United States and allergic reactions account for about 200,000 emergency room visits per year.

When someone has a severe allergic reaction, he or she must promptly inject themselves or be injected with epinephrine to prevent anaphylactic shock. Anaphylactic shock can kill, so having handy, pre-measured, pre-loaded epinephrine in a portable EpiPen® can be lifesaving.

Mylan is the only company selling EpiPen®s, and it has increased the price of its product more than 500% since 2007 when it began selling the device, which originally cost just $94.00 for a two-pack. While the EpiPen® reportedly costs Mylan just $34.501 to produce, today it sells the EpiPen® for a staggering amount: $600 or more for a two-pack.

Plaintiffs bring this consumer class action individually and on behalf of a putative nationwide class, as defined below (hereinafter “the Class”). Plaintiffs seek declaratory and injunctive relief, and to recover drug payments and overpayments made from at least the year 2007 through the present (hereinafter the “relevant time period”), as a result of Defendants’ unlawful scheme involving unfair, exorbitant, and unconscionable price increases.

This case concerns all EpiPen® products manufactured and distributed by Defendants including the following:

  1. EpiPen®;
  2. EpiPen Jr.®;
  3. EpiPen 2-Pak®;
  4. EpiPen Jr. 2-Pak®;
  5. My EpiPen®;
  6. LIFE HAPPENS®;
  7. Be Pepared®;
  8. EpiPen4Schools®
  9. Never-See-Needle®.

Complaint

 

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

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According to a class action complaint, Viva Labs misleadingly labels and markets its Organic Extra Virgin Coconut Oil (“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 dues to high saturated fat content

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.

Plaintiff seeks an order compelling Viva Labs to, inter alia, (a) cease marketing the Coconut Oil using the misleading tactics complained of herein, (b) conduct a corrective advertising campaign, (c) destroy all misleading and deceptive materials, (d) restore the amounts by which it has been unjustly enriched, and (e) pay restitution, damages, and punitive damages as allowed by law.

Complaint