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News

Here are some of the latest updates on Carney Bates & Pulliam’s current cases.

 

Court Grants Final Approval in Facebook Privacy Class Action

 

On August 18, 2017, a California district court granted final approval to a class action settlement with Facebook, Inc., brought by Carney Bates & Pulliam and Lieff Cabraser Heimann & Bernstein. The suit alleged that Facebook intercepted the content of users’ Facebook messages without obtaining their consent, in violation of California and federal law.

 

Facebook confirmed that it no longer utilizes data from URLs within private messages to (1) generate recommendations to its users; (2) share user data with third parties; or (3) increase “like” counter numbers on third-party websites. In addition, Facebook verified that it had changed its disclosures to users, informing them how the company may use collected content. Facebook also agreed to display additional educational language on its United States website for Help Center materials concerning its processing of URLs shared within messages.

 

Allegations that Facebook intercepted users’ messages first emerged in 2012, when security researcher Ashkan Soltani reported that Facebook counts in-message links as “likes.” Facebook said at the time that no private information is exposed, but confirmed that the like-counter “reflects the number of times people have clicked those buttons and also the number of times people have shared that page’s link on Facebook.”

 

Final Approval Granted in TCPA Class Action Against Roche Diagnostics Corp.

 

On September 21, 2017, a federal court granted final approval to a class action settlement regarding unsolicited advertisements faxed by Roche Diagnostics Corp. to pharmacies across the nation. CBP was lead counsel for the plaintiff.

 

Roche agreed to pay $17 million into a non-reversionary fund to compensate pharmacies that received one or more facsimile advertisements from Roche between April 11, 2012 to March 17, 2017. Eligible pharmacies were entitled to an award of at least $500.

 

The complaint against Roche, an Indiana-based supplier of medical diagnostic products, was brought by Econo-Med Pharmacy, Inc. of Arkansas in April 2016 after receiving multiple “junk faxes” from Roche. Sending unsolicited advertisements by fax without providing an opt-out notice is illegal under the federal Telephone Consumer Protection Act, as well as the Indiana Deceptive Consumer Sales Act. Roche’s solicitations contained no such notice, thus creating a nuisance for the businesses they targeted and a drain on their fax machines’ paper and toner.

 

Preliminary Approval Granted in Email Users’ Settlement With Google, Inc.

 

On August 31, 2017, a California district court granted preliminary approval to a class action settlement against Google, Inc., brought by CBP, Lieff Cabraser Heimann & Bernstein, LLP, and Gallo, LLP. The suit alleged that Google routinely scans email messages that are sent to non-Gmail users by Gmail subscribers, analyzes content of those messages, and then shares that data with third parties in order to target ads to Gmail users, in violation of California and federal law.

 

Pursuant to the settlement, Google agreed to eliminate any processing of these messages “until after messages have arrived in a Gmail users’ inbox,” and has since announced that it cease scanning emails for targeted advertising or user profiling purposes, altogether.  The proposed changes will not apply to any scanning performed to prevent the spread of spam or malware.

 

A final approval hearing is scheduled for February 8, 2018.

 

Final Approval Granted in False Labeling Case Against Hain Celestial and Jason Natural Products

 

On September 22, 2017, a federal court in New York granted final approval to a class action settlement against The Hain Celestial Group, Inc., and Jason Natural Products, Inc. The suit alleged that some of the companies’ products were mislabeled as being free of sodium lauryl sulfate (“SLS”). CBP represented the class members.

 

Hain Celestial and Jason Natural Products have agreed to set up a $1.1 million fund for customers that purchased Jason Natural’s Long & Strong Jojoba Pure Natural Shampoo, Volumizing Lavender Shampoo, Normalizing Tea Tree Treatment Shampoo, Dandruff Relief 2 in 1 Treatment Shampoo & Conditioner, and/or Smoothing Coconut Body Wash in the United States between August 17, 2011 through June 2, 2017. The companies have also agreed that they will not claim their products are free of SLS unless the products’ formulation has changed such that the companies believe that they can make such a claim.

 

SLS is a synthetic surfactant used in many cleaning and personal hygiene products. Exposure to SLS can cause adverse health effects, however. Hain Celestial and Jason Natural Products promoted their products as being free of SLS, and even included prominent labels on its products’ packaging stating: “NO Parabens, SLS, Petrolatum, Artificial Colors or Phthalates.” In March 2016, the Wall Street Journal uncovered that Hain Celestial and Jason Natural Products used SLS in the manufacturing of their products. Thus, from 2011 to 2016, the companies misrepresented to consumers that their products were SLS-free.

 

Ninth Circuit Issues a Writ of Mandamus Vacating District Court’s Order Compelling Arbitration – Henson, et al. v. Turn, Inc.

 

On September 5, 2017, the U.S. Ninth Circuit Court of Appeals vacated a district court’s order compelling arbitration of a dispute between online marketing firm Turn, Inc. and a putative class of Verizon customers, thereby allowing the case to be resolved through litigation. The plaintiffs are represented by CBP and Lieff Cabraser Heimann & Bernstein LLP

 

The case stems from Verizon’s use of unique, device-specific identifiers, or “supercookies,” that allow third parties to track Verizon users’ online activities for targeted advertising purposes. Turn is one such third party. When Verizon customers alleged that Turn’s use of supercookies amounted to a deceptive trade practice, Turn pointed to an arbitration clause in the contract the customers had signed with Verizon, but not Turn. In March 2016, a U.S. district judge agreed with Turn that the dispute should be sent to arbitration based on the contract (that same month, the Federal Communications Commission fined Verizon $1.35 million for its use of unique device identifiers and forced it to allow customers to opt-out).

 

In vacating the district court’s order, the Ninth Circuit held that Turn, a non-signatory, could not use the Plaintiffs’ contracts with Verizon to escape litigating in federal court.  Read the opinion here.

 

Court Grants Final Approval of Settlement in Financial Institution Class Action Against Home Depot

 

On September 22, 2017, a federal court in Atlanta granted final approval to a class action settlement compensating banks and credit unions for their losses in the wake of a 2014 data breach in which hackers stole credit and debit card numbers and other information from some 56 million customers by exploiting lax cybersecurity at Home Depot’s self-checkout terminals. CBP was co-counsel for the plaintiffs.

 

Home Depot agreed to pay $25 million into a non-reversionary fund to compensate financial institutions that have not yet released their claims against the company related to the 2014 breach. The fund will compensate banks and credit unions to the tune of $2 for each card that was compromised to cover reissuance costs— regardless of whether the institution submits documentation of its losses — as well as a supplemental award of up to 60 percent of documented losses related to reimbursing customers for fraudulent charges. Home Depot will pay an additional $2.225 million to financial institutions whose claims were previously released by a card sponsor such as MasterCard or Visa. Under the settlement, attorneys’ fees and costs will be paid separately.

 

The retailer also agreed to implement enhanced security measures to guard against future acts of fraud and identity theft. Prior to the breach, Home Depot ignored warnings from experts and employees that its data security practices were substandard. Predictably, criminals soon exploited those vulnerabilities by infecting self-checkout terminals with malware that stole consumer data. In 2016, Home Depot agreed to a separate $19.5 million settlement to compensate consumers affected by the 2014 breach.

 

Preliminary Approval Granted in Bank of the Ozarks Overdraft Litigation

 

On August 10, 2017, an Arkansas state court granted preliminary approval to a class action settlement with Bank of the Ozarks, Inc. The suit alleged that Bank of the Ozarks resequenced customer account debit card transactions from largest to smallest in dollar amount so that more overdraft fees could be charged. CBP represented the class members.

 

Bank of the Ozarks has agreed to set up a $2,750,000 settlement fund for class members that were assessed one or more overdraft fees between December 4, 2006 through June 30, 2011. The bank has also changed its policies and practices and no longer engages in resequencing from highest to lowest dollar amount.

 

A final approval hearing is scheduled for November 2, 2017.

 

Class Actions Filed Against The Walt Disney Company, Viacom, and Others, For Violation of Child Privacy Laws

 

Between the months of July 2017 and August 2017, Carney Bates & Pulliam, PLLC and Lieff Cabraser Heimann & Bernstein LLP filed class actions against the Walt Disney Company, Viacom, Inc., and Kiloo ApS and their affiliated partners in California federal courts.

 

These actions are being brought by parents of children who, while playing these companies’ games via smart phone apps, have had their personally identifying information exfiltrated by the companies and their partners for future commercial exploitation in direct violation of the federal Children’s Online Privacy Protection Act (“COPPA”), 15 U.S.C. §§ 6501–6506, as well as numerous state laws. Plaintiffs seek damages and court injunctions forcing the companies to cease these practices and sequester all illegally obtained information.

 

These suits have attracted significant press coverage, including features on CBS News and the Today Show, and in the Washington Post.

 

CBP in Arkansas Business

 

Allen Carney and Hank Bates sat down with Arkansas Business reporter Jan Cottingham to discuss the firm’s data security and privacy practice.  The article provides an overview of recent, high-profile settlements, along with some of the firm’s thoughts on emerging issues in this legal landscape.  Read the article here.

 

Final Approval in Philip Morris Light Cigarette Class Action

 

On November 21, 2016, an Arkansas state court granted final approval to a class action settlement with Philip Morris USA, Inc. The suit alleged that Philip Morris advertised, marketed and sold Marlboro Lights and Marlboro Ultra Lights cigarettes as healthier than regular cigarettes in a manner that had the capacity to deceive consumers who purchased Marlboro Lights and Marlboro Ultra Lights in Arkansas. CBP served as co-counsel to the class.

 

Philip Morris agreed to set up a $45 million fund to compensate class members that purchased Marlboro Lights and Marlboro Ultra Lights in Arkansas from November 1, 1971 to June 22, 2010. The publicity from the suit also brought widespread attention to the allegation that Light cigarettes supposedly containing “lowered tar and nicotine” were actually no safer than “regular strength” cigarettes.

 

In 1971, Philip Morris capitalized upon a national “health scare” about smoking to launch Lights as a safer, healthier, and less addictive alternative to regular cigarettes. Philip Morris championed the supposed health benefits of Lights for over thirty-years, even though the company knew for that entire stretch that the cigarettes were not actually safer, healthier, and less addictive. In fact, mounting evidence increasingly revealed to Philip Morris that Lights were likely more dangerous than their regular-strength counterparts.

 

LifeLock

 

In September 2016, LifeLock, Inc. agreed to an $81 million settlement in a class action complaint filed by CBP and co-counsel, Lieff Cabraser Hiemann & Bernstein LLP, on behalf of consumers misled by LifeLock’s deceptive advertising practices. The company promised its millions of subscribers comprehensive digital security, yet it delivered products of little to no value.

 

The settlement established a $68 million fund for LifeLock customers who received ineffective identity theft protection services between September 1, 2010 and January 20, 2016. Class members are entitled to receive an amount approximately equal to one month of LifeLock’s membership fees, which ranged from $9.99 to $29.99 monthly.

 

With an estimated 3 million customers nationwide, LifeLock is one of the largest specialized consumer services providers in the U.S. Unfortunately, its products failed to provide the protection touted in the company’s advertising. The “comprehensive” network LifeLock promised to subscribers in fact covered only a tiny fraction of the nation’s financial institutions, and the company’s “alert” services were riddled with errors. Its products were often inferior to free-of-charge protection offered to consumers by their banks and credit card companies — despite LifeLock’s advertisements stating that it “watches out for you in ways banks and credit card companies just can’t.” And, LifeLock was all too willing to misrepresent statistical data for the purpose of exaggerating to consumers the threat posed by identity theft in general.

 

 

Ford Focus

 

CBP brought this class action lawsuit against Ford Motor Company on behalf of individuals who either purchased or leased a Ford Focus model years 2005 to 2011.  The lawsuit alleges that the Ford Focus model years 2005 to 2011 have a rear suspension alignment/geometry defect and brings claims for violations of the California Legal Remedies Act, California’s Unfair Competition Law, and breaches of express and implied warranties.

 

On May 17, 2016, the Court entered an order denying Ford Motor Company’s motion for summary judgment.

 

 

Target

 

CBP represents one of the Lead Plaintiffs in the multi-district litigation against Target, which was brought on behalf of financial institutions who suffered injury as a result of the security breach that compromised the sensitive personal and financial data of approximately 110 million Target customers. Such data included customer names, credit and debit card numbers, the card expiration dates, card verification values, PIN numbers, mailing addresses, phone numbers, and email addresses.  On September 15, 2015, the Court granted class certification to a group of financial institutions and approved the appointment of CBP’s client as Class Representative.

 

 

Following settlement negotiations and mediation, the parties entered into a Settlement Agreement valued at $39.4 million.  On May 12, 2016, the Court entered an order approving the Settlement.

 

State Farm

 

CBP brought this class action on behalf of insured customers or former customers of State Farm Mutual Automobile Insurance Company (“State Farm”), alleging State Farm violated Arkansas subrogation law by receiving subrogation payments of medical payment and/or personal injury protection coverage from customers’ settlements without first obtaining a judicial determination and/or agreement that the customer was made whole. CBP successfully opposed Defendant’s Motion for Summary Judgment in September 2014.

 

On May 6, 2016, the Court, on its own motion, removed the case from the trial calendar pending resolution of outstanding motions.  The Court further advised that upon resolution of the outstanding motions, a new trial date, if needed, would be set.

 

 

GEICO

 

On November 3, 2015, CBP, Co-Counsel, and the Class Representatives obtained final approval of a $517,206.30 Settlement with GEICO.  Eligibility for participation in the Settlement, important dates and all relevant documents, including the Complaint, Notice, and Claim Form, can be obtained through the Settlement website www.StokesSettlement.com.

 

Liberty Tax

 

In August 2015, CBP, Co-Counsel, and the Class Representatives entered into a Settlement with Liberty Tax for $5.3 million for the benefit of the Class.  The Court preliminarily approved the Settlement in September 2015.  Eligibility for participation in the Settlement, important dates and all relevant documents, including the Complaint, Notice, and Claim Form, can be obtained through the Settlement website www.LibertyTaxSettlement.com.

 

 

Blue Cross Blue Shield

 

In February 2014, CBP brought suit against USAble Mutual Insurance Company d/b/a Arkansas Blue Cross and Blue Shield for violations of state subrogation laws. In May 2015, a Settlement establishing a common-fund of $1,234,585 for the benefit of the Class was approved by the Court.

 

 

Shelter

 

This class action was filed by CBP against Shelter Mutual Insurance Company for violations of Arkansas subrogation law. The action settled in 2014 for $1,773,453. The Settlement was approved by the Court in early 2015.

 

 

Farm Bureau

 

A class action brought against Southern Farm Bureau Mutual Insurance Company for violations of state subrogation laws, CBP settled this case for $3,600,000. The Settlement received final court-approval in October 2014.