ClassAction.org Roundup – Juul E-Cigarettes, Rachael Ray Dog Food, Vaginal Mesh Ban and More

Well, there were plenty of April showers. Now we’re all waiting on those (allergen-packed) May flowers. In the meantime, though, we have news on a potential class action against Juul Labs, the filing of a class action in connection with the Orchids of Asia sex trafficking investigation, an FDA order to pull surgical mesh from the market, an update on the Rachael Ray dog food situation, and more.

Threatening Class Action Litigation, Northeastern University Advocacy Group Demands Juul Labs Fund Treatment Program for Teens

The first steps have been taken toward the filing of yet another proposed class action lawsuit against e-cigarette company Juul Labs. Only this new potential lawsuit will reportedly focus on the treatment of under-18 Juul users.

The Public Health Advocacy Institute (PHAI) at Northeastern University in Boston has sent a five-page letter in which it demands Juul Labs fund a statewide treatment program for teenagers who started using the company’s nicotine vaporizer before they turned 18 and want to quit. The letter, as reported on by the Boston Globe, claims Juul Labs has engaged in “unfair and deceptive trade practices,” and accuses the company of explicitly designing its vaporizer to be highly addictive and appealing to young people.

Though Juul is no stranger to potential class action litigation, the PHAI, as the Globe notes, may file the first lawsuit to ask Juul to put some of its Big Tobacco-funded weight behind helping some users kick their nicotine addictions. According to PHAI executive director Mark Gottlieb, there’s simply not enough being done with regard to options available for Juul users and their parents.

“We don’t have anywhere to send these parents or kids,” Gottlieb told the Globe. “There’s a real need for figuring out how to treat them and providing them with treatment.”

The PHAI’s letter, the Globe writes, asks for Juul addiction treatment programs to include, but not be limited to, “individual and group cessation counseling, telephone quit-line support, intensive nicotine cessation support services, and the provision of nicotine cessation medications.”

Juul has 30 days from April 29 to respond to the letter before a proposed class action lawsuit is actually filed. If and when that lawsuit is filed, ClassAction.org will have a breakdown of the case.

Read more about Juul’s swift rise to the top of the e-cigarette mountain—as well as the investigations the company faces—over in writer Ysabelle Kempe’s write-up.

Dozens of Orchids of Asia Spa Customers File Class Action Over Alleged Videotaping During Sex Trafficking Investigation

Thirty-one John and Jane Doe plaintiffs have filed a proposed class action lawsuit in which they claim they were illegally videotaped receiving legal massages in January 2019 at the now-infamous Orchids of Asia Day Spa in Jupiter, Florida, as part of an investigation into alleged human sex trafficking.

According to the lawsuit, as covered online by CBS Local, the Jupiter Police Department unlawfully obtained warrants that allowed them to install cameras in the spa. The case looks to block the videos from being released publicly and asks for them to be destroyed, in addition to seeking unspecified monetary damages.

An attorney who filed the suit, Joseph Tacopina, described the scenario as “akin to going to a bathroom.”  

“You are in a state of undress and you are surreptitiously recorded and that recording is now subject to disclosure and being disseminated around the internet,” Tacopina said. “It is an abomination of any form of privacy rights and constitutional rights.”

None of the proposed class action’s 31 plaintiffs have been charged with a crime, the lawsuit notes.

The Orchids of Asia spa was at the center of a sweeping investigation into a string of Florida massage parlors once believed to be connected with human sex trafficking. The investigation kicked off after the Jupiter Police Department received a tip in October by investigators in a neighboring county that Orchids of Asia was one of a number of massage parlors that offered sex acts to male clients. Executing a warrant in mid-January 2019, officers installed cameras in the day spa, which caught some men, most notably New England Patriots owner Robert Kraft, paying for sex acts.

Since news of the investigation and subsequent arrests broke, the human sex trafficking allegations have been dropped.

-Corrado Rizzi

Rachael Ray Escapes “Natural” Dog Food Litigation

Rachael Ray’s dog food company has escaped a proposed class action filed over claims that its “natural” label misled customers.

According to the now-dismissed complaint, Rachael Ray Nutrish dog food (made by Ainsworth Pet Nutrition) was made with unnatural ingredients – including trace amounts of the weed killer and active ingredient in Roundup, glyphosate. The suit was dismissed by a New York federal judge who found that the lawsuit failed to state how much of the chemical was found, or whether that amount was harmful. The judge went on to say that a reasonable customer wouldn’t find issue with an “accidental and innocuous” amount of glyphosate and that the claims couldn’t be considered misleading.

These types of “natural food” cases (even dog food) have been hard to argue in court and can easily go either way – since the FDA still won’t definitively answer the question: “What is the definition of ‘natural food’?”  That being said, this case was dismissed without prejudice – meaning that the judge is allowing an opportunity for the complaint to be amended and the case re-opened.

Here’s the dismissal order if you want all the details.

iPhone Power Button Lawsuit Moves Forward

In a testament to how slowly class actions tend to move, we finally have a trial date for a six-year-old lawsuit filed over a design flaw found in iPhone 4, 4s and 5 models. The lawsuit took issue with the phones’ sleep/wake button, stating that a known flaw caused the button to fail – conveniently, right after the typical one-year warranty ran out. Apple allegedly knew about the defect, continued to sell the affected models, and failed to warn its customers about the issue.

The trial is set to take place in the Superior Court of California on October 25, 2019. But, these types of cases rarely ever make it to trial, and we will most likely see a settlement in the works as we get closer to the trial date.

The affected phones may seem like archaic technology at this point as many of you have probably gone through several more iterations of the iPhone since the case launched, but progress is progress.

Want to know more? Apple Insider has the scoop.

-Ty Armstrong

Supreme Court Rules on Class Arbitration in Data Breach Case

The U.S. Supreme Court on April 17 ruled in a 5-4 decision that parties subject to an arbitration agreement cannot be forced into class arbitration unless that process is specifically mentioned in the agreement.

The ruling overturned an appellate court’s decision to let a Lamps Plus worker pursue class claims in a data breach lawsuit filed against the lighting retailer. In the Lamps Plus case, the worker argued that the retailer failed to protect his and about 1,300 other workers’ tax data from a 2016 phishing attack. A California federal court sent the case to arbitration based on an agreement the worker signed when he was hired, but the trial court judge said the man could pursue arbitration on a classwide basis since the agreement did not specifically block that process. The Supreme Court disagreed with that decision.

The Supreme Court’s ruling expounded on an earlier decision in Stolt-Nielsen S.A. v. AnimalFeeds Int’l Corp. in which the court specified that parties subject to an arbitration agreement cannot be forced to submit to class arbitration when the agreement is “silent” on whether that process is available. The issue with the Lamps Plus case is that the arbitration agreement between the retailer and its employees was not “silent” but “ambiguous” on the subject of class arbitration. The agreement, according to the suit, didn’t necessarily block class arbitration, but it also didn’t explicitly state that class arbitration was available.

The majority of the justices maintained that ambiguity was not enough to allow class claims. According to the high court’s decision in Epic Systems Corp. v. Lewis, a party cannot be forced to submit to class arbitration unless there is “a contractual basis for concluding that the party agreed to do so.” Therefore, the court concluded, class arbitration cannot be forced upon Lamps Plus because it did not specifically agree to this process in its arbitration agreement.

Read the Supreme Court’s decision here.

USC’s $215M Abuse Settlement Rejected

A California federal judge in mid-April rejected a settlement offer that aimed to resolve a lawsuit filed against the University of Southern California on behalf of thousands of women who claim they were abused by the school’s former gynecologist. According to the order, the judge was concerned that the proposed settlement was lacking key information and laid out procedures that may be “unfair or inadequate” to class members.

More specifically, the judge voiced concerns that the settlement offer didn’t adequately estimate how much compensation potential class members should expect to receive if they were to engage in certain parts of the claims process. He pointed out that under the terms of the settlement, Tier 2 and Tier 3 claims (which require more involved submissions and seek to grant higher payments) may be reduced if too many people file claims, yet the settlement doesn’t specify the “worst-case scenario” reductions. The judge said this left open the possibility that the settlement balance would be exhausted and victims would receive much less than they were led to believe when they decided to go through the potentially painful claims process.

The order also proposed that the settlement notice provide class members with a better idea of the risks they would take should they decide to file individual claims, and a better idea of USC’s ongoing responsibilities to “monitor, prevent, and respond” to future abuse allegations.

Lastly, the judge proposed that instead of appointing one Special Master to oversee the claims administration process, the court nominate a three-person committee made up of a retired judge, an OB/GYN, and a forensic psychologist. With the committee determining Tier 2 and Tier 3 claims instead of just one person, there would be a lower possibility of “arbitrary decision-making” and a fairer and more trusted appeals process, the order said.

The parties to the settlement were given 30 days to implement the judge’s changes and resubmit their proposal.

Read the full court order here.

-Erin Gilmore

FDA Bans Last Remaining Transvaginal Mesh Products Amid Safety Concerns

The FDA has ordered the last two remaining manufacturers of transvaginal mesh to immediately stop selling the products after failing to provide enough evidence of the devices’ safety.

After classifying transvaginal mesh as a high-risk medical device in 2016, the FDA required manufacturers to submit applications for safety evaluations. As a result, most manufacturers stopped marketing their mesh for transvaginal repair, except for Boston Scientific and Coloplast, who have just been notified that their applications failed to demonstrate that the benefits of their implants outweigh their risks.

The New York Times reports that the extensive litigation over potentially harmful transvaginal mesh “ranks as one of the largest mass tort cases in the nation’s history.” Manufacturers have apparently paid billions of dollars to settle lawsuits that claim the devices cause severe damage, including chronic pain, scarring and infection – and the lawsuits over the allegedly dangerous implants are still coming in.

Government Expands Air Bag Investigation to Include 12.3 Million Vehicles

A U.S. National Highway Traffic Safety Administration (NHTSA) investigation into possibly defective air bag units has expanded to include 12.3 million vehicles. The air bag units in question were supplied by TRW Automotive Holdings Corp and were installed in some 2010 through 2019 car models sold by Fiat Chrysler, Honda, Hyundai, Kia, Mitsubishi and Toyota. It’s suspected that the units may fail to deploy during a crash and that the potential defect may be responsible for several deaths and injuries.

Fiat Chrysler, Hyundai and Kia have already recalled millions of cars with TRW air bags after becoming aware of the possible defect back in 2016. NHTSA documents say the growing investigation seeks to “evaluate whether an unreasonable risk exists that requires further field action.”

Visit Reuters for more details.

-Nadia Abbas