ClassAction.org Roundup—Wayfair Arbitration, Revised USC Sex Abuse Settlement, Veterans Court Class Certification and More [UPDATE]

Friends, we’ve made it to the brink of actual summer. And we mean summer, not that liaison period between the end of April until about week after Memorial Day when most days are warm but other days are rainy and sluggish and yeah, we’ve had some decent weather but it’s gross outside. You know? Summer summer.

Air conditioners abuzz, we have for you this week news on a judge’s ruling in a class action over some alleged bedbugs, a Facebook ad metrics settlement, a big-money TD Bank settlement, a newly greenlit settlement in the USC sexual abuse case, class certification from the Veterans Court and news on a case claiming Cheerios contained a weedkilling chemical, among other items.

As always, you can cut into the meat and potatoes of what we do over on our Newswire and elsewhere throughout our Blog. Surf’s up.

Judge Orders Illinois Man’s Wayfair Bedbug Claim into Arbitration

MarketWatch reports that United States District Judge Matthew Kennelly has sided with Wayfair in granting the online retailer’s motion to compel arbitration over an Illinois man’s claim that he bought a headboard infested with bedbugs.

Judge Kennelly’s order falls in line with the familiar trend of proposed class actions from consumers that get diverted into arbitration as the result of binding clauses wielded by companies that prefer a more, let’s say, cozy form of dispute resolution. While the plaintiff argued in his lawsuit that his bedbug claims fell outside of any arbitration clause—specifically in that the defendant’s arbitration policy covered only “issues related to Wayfair’s privacy policy, intellectual property rights, rules governing user-generated content, social media usage, and the Wayfair Rewards program”—Judge Kennelly called foul on the man’s interpretation of Wayfair’s arbitration provision.

“[The plaintiff] advocates a reading that would effectively limit the contract to disputes arising from the navigation of Wayfair’s website, and perhaps intellectual property disputes related to the imagery displayed on it,” Judge Kennelly wrote in the arbitration order. “But that reading ignores much of the provision’s language—most critically the position about disputes arising from relationships resulting from the terms of use—and, as a result, is contrary to law.”

In other words, Judge Kennelly stated, Wayfair’s arbitration clause clearly covers the purchase and sale of products, and as a result shapes “the contours of a contractual buyer-seller relationship.” And for good measure, Judge Kennelly also addressed the plaintiff’s claim that he had not read Wayfair’s approximately 4,500-word terms of use in which the arbitration clause was lodged.

“[The plaintiff’s] complaints that he did not actually read the terms are of no consequence,” Judge Kennelly said.

For more on arbitration and its upsides and downsides for consumers, check out our recent blog post detailing one major credit card company’s move to bring back arbitration clauses for cardholders. 

Facebook Settles Class Action Lawsuit Over Alleged Inflation of Video Ad Metrics

Facebook has agreed to end an amended proposed class action lawsuit that alleged the under-fire social media platform significantly overstated the average amount of time users spent watching video advertisements. According to the Hollywood Reporter, the terms of the settlement are unknown at this time.

Word of the settlement comes on the heels of mediation between a number of advertisers and Facebook. According to court documents, the parties have agreed to terms on a class-wide settlement that would fully resolve the litigation, and have asked Judge Jeffrey S. White for a pause on all deadlines related to the suit in order for the parties to “devote their attention to finalizing and presenting their settlement to the Court for approval.”

In their lawsuit, the plaintiffs cited a 2016 Wall Street Journal article in which Facebook admitted it had beefed up its video ad metrics by between 60 and 80 percent, and only discovered the problem about a month prior to the article's publication. According to the plaintiffs, however, Facebook’s ad metrics inflation was far worse than that, and the company wasn’t entirely truthful on when it realized the issue. From the case:

“Internal records recently produced in this litigation suggest, however, that Facebook’s action rises to the level of fraud and may warrant punitive damages. Facebook did not discover its mistake one month before its public announcement. Facebook engineers knew for over a year, and multiple advertisers had reported aberrant results caused by the miscalculation (such as 100% average watch times for their video ads). Yet Facebook did nothing to stop its dissemination of false metrics.
 
In addition to Facebook knowing about the problem far longer than previously acknowledged, Facebook’s records also show that the impact of its miscalculation was much more severe than reported. The average viewership metrics were not inflated by only 60%-80%; they were inflated by some 150 to 900%.”

Facebook, admitting no guilt, said through a spokesperson that the lawsuit “is without merit but we believe resolving this case is in the best interests of the company and advertisers.” The proposed settlement is subject to approval by the judge.

Navient Sidesteps Robocall Class Action in Illinois

United States District Court Judge Sharon Johnson Coleman has dismissed with prejudice a proposed class action lawsuit filed by an Illinois man who claimed Navient Solutions, LLC placed at least 105 automated calls to his cell phone in an effort to contact an unrelated individual.

Filed in February 2018, the Telephone Consumer Protection Act (TCPA) complaint alleged the nation’s largest student loan servicer began calling the plaintiff in August 2017. The plaintiff claimed the calls were automated due to the noticeable four- to five-second pause after he picked up the call and before he was connected with a live representative.

According to the suit, Navient was attempting to collect a debt owed by an individual who did not share the plaintiff’s name. The man claimed that he was unaware of any individual by the name shared by Navient and was therefore confused as to why the company was calling him. The case alleged that despite the plaintiff’s demands that the calls stop, Navient continued calling, leaving voice messages on the man’s phone when he did not answer, and going so far as to send text messages in search of the unknown individual. In October 2017, the plaintiff, according to the suit, sent Navient a letter via certified mail in which he demanded the company stop contacting him. Navient received the letter, the lawsuit said, but did not cease calling the plaintiff.

In her ruling, Judge Coleman sided with Navient’s argument that the plaintiff failed to allege the company used an autodialer to place the alleged calls, a key component in TCPA-related litigation.

“Simply put,” Judge Coleman wrote, “[the plaintiff] does not put forth any factual allegations that suggest Navient Solutions dialed his number using equipment that had the capacity to generate random or sequential numbers.”

More granularly, though the plaintiff argued Navient’s continued calling was evidence enough that it had stored his phone number, meaning it had used an autodialer, Judge Coleman clarified that prior case law required the man to establish that Navient used equipment “with the capabilities to generate numbers randomly in order to allege the use of an autodialer.”

-Corrado Rizzi

TD Bank Settles Years-Long Overdraft Fee Class Action for $70 Million

TD Bank has agreed to a $70 million deal that will end a years-long battle over the bank’s alleged assessment of illegal overdraft fees. As part of the settlement, TD Bank is set to pay $43 million in cash and forgive $27 million in customer overdraft fees.

According to the motion for preliminary settlement approval, TD Bank improperly charged overdraft fees even when customers had sufficient funds in their accounts to cover a particular transaction. Instead of assessing whether a transaction cost more than the amount of money in a customer’s account—which the case says is what reasonable consumers would consider to be an overdraft—TD Bank allegedly applied an overdraft fee every time a transaction exceeded an account’s “Available Balance,” i.e. the amount excluding funds set aside for pending earlier transactions.

Though TD Bank has apparently changed its overdraft assessment practices since the litigation began nearly six years ago, the settlement looks to compensate those who may have been affected before the changes went into effect.

The preliminary agreement, which looks to cover six classes, will settle multi-district litigation that includes nine class actions. Included in the proposed settlement classes are those who incurred sustained overdraft fees from between mid-2010 through mid-2016, those who were not signed up for TD Bank’s overdraft protection program and incurred an overdraft fee on Uber or Lyft transactions, and Carolina First Bank/Mercantile Bank accountholders who suffered improper overdraft fees.

You can find more precise definitions of who the settlement aims to cover on page eight of the settlement document.

The deal now awaits a judge’s final approval. At this time, it’s unclear when the claims process will begin.

Judge Grants Preliminary Approval of Revised $215 Million USC Sexual Abuse Settlement

A California federal judge has granted preliminary approval of an amended $215 million settlement that aims to resolve the claims of possibly thousands of women who say they were sexually abused by a former University of Southern California gynecologist.

A previous version of the settlement was rejected back in April over concerns that it lacked key information and left open the possibility that the approximately 14,000 to 17,000 class members would receive “unfair or inadequate” relief. The original settlement laid out a three-tier award system that would grant each claimant between $2,500 and $250,000 depending on whether a victim submits a simple “no questions asked” claim, answers a written questionnaire, or participates in an interview about her experience.

The judge expressed concern that the original deal did not elaborate on how much each claim may be reduced in the event the total claims amount exceeds the amount set aside for the $215 million settlement fund, noting that the reduction could affect some women’s decision to undergo the potentially painful claims process.

The parties to the settlement addressed this concern by providing a better estimate of how much money each claimant could expect to be awarded, including the minimum and maximum amounts for each tier. The parties further noted that they had accepted the judge’s suggestion to engage a three-member panel to decide claims instead of relying on one Special Master.

The revised settlement lays out a more specific plan for “sweeping institutional reforms” at USC, including requiring the university to conduct pre-employment background checks on health center workers and offer students the option to choose a doctor based on gender, and implement suggested methods for detecting and addressing potential misconduct.

“Ultimately, this Settlement holds USC accountable in two important ways,” the settlement document reads. “First, it ensures that USC will pay substantial compensation to Class members for the pain they have endured, and in a manner that allows the women to choose whether and how much they wish to be involved. Second, it ensures that USC will improve its campus policies and procedures, as a sign of accountability to the community, and to protect students on its campus going forward…”

You can find the full text of the amended settlement here.

The deal, which covers all women who were treated by Dr. George Tyndall at USC’s student health center between August 14, 1989 and June 21, 2016, will head back to the court in January 2020 for a final approval hearing. Those who wish to opt out of the settlement must to do by November 7, 2019.

-Erin Gilmore

Progressive Settles Missing Discount Class Action

Earlier this month, Progressive Specialty Insurance Company agreed to pay $2 million to end a class action that claimed that the car insurance provider cheated its Pennsylvania customers out of their premium discounts for anti-theft devices. The case alleged that Progressive failed to give some of its customers a state law-mandated 10% discount for having a passive anti-theft device installed in their car, like PassLock, Sentry Key Immobilizer, and SecuriLock.

The settlement, which court documents say is the result of “sometimes contentious” negotiations that spanned several years, still needs to obtain final approval before any compensation will be awarded. As it stands now, the deal looks like it will cover those who had a passive anti-theft device installed and didn’t get their 10% discount between November 19, 2005 and December 31, 2018. Progressive has denied any wrongdoing.

You can find the specifics on the official approval notice.

Cheerios Weedkiller Class Action Dismissed

A proposed class action out of Florida that claimed General Mills failed to disclose that Cheerios contains glyphosate—a possibly carcinogenic weedkiller—has been dismissed. United States District Court Judge Robert N. Scola, Jr. tossed the suit because the plaintiff failed to provide evidence supporting a link showing she suffered concrete injuries and instead asserted only hypothetical health risks.

“Mere conjecture that something has the potential to be harmful is not enough,” Judge Scola wrote.

Essentially, the case failed to show how the cereal caused any health issues, and claimed only that it could potentially cause problems. In fact, the lawsuit made no claim that the plaintiff suffered any negative health effects by eating Cheerios. The complaint also claimed General Mills committed a breach of warranty and violated the Florida Deceptive & Unfair Trade Practices Act.

The rest of the details can be found in the dismissal order.

-Ty Armstrong

Veterans Court Certifies its First Class Action Lawsuit

A lawsuit filed by veterans facing lengthy delays for disability benefits has been given the green light to proceed as a class action. Originally filed in 2017 against the Department of Veterans Affairs, the case is the first lawsuit to be granted class action status by the U.S. Court of Appeals for Veterans Claims, which ruled last August in a separate lawsuit that it would “in appropriate cases, entertain class actions.”

The suit argues that the Department of Veterans Affairs takes too long to process claims for disability benefits, such as those for food, clothing, housing and medical care. The certified class includes veterans who have been waiting at least 18 months for the department to process their cases—an amount of time vets say is unreasonable and violates their right to due process. The court ordered the department to resolve class members’ pending benefits claims within 120 days.

The Military Times reports that the decision to certify the case as a class action is being hailed as a “landmark moment” in tackling systemic issues within the Department of Veterans Affairs. For most of its 30-year history, the department only addressed problems on an individual basis, Military Times writes, meaning systemic problems such as delays in its disability benefits program were allowed to continue largely unchecked.

Attorneys Accused of Collecting Excessive Fees from Pelvic Mesh Lawsuit Settlements

A class action out of New Jersey accuses several law firms and attorneys of illegally collecting excessive fees and expenses from the settlements of about 1,450 pelvic mesh lawsuits.

The complaint names as defendants Nagel Rice, LLP; Potts Law Firm, LLP; Bailey Peavey Bailey Cowan Heckaman, PLLC; Mesh Litigation Center; Junell & Associates, PLLC; Steelman McAdams; Burnett Law Firm; and five individual attorneys. According to the case, the plaintiff sought to join the Bard and Gynecare multi-county litigation and hired at least one of the defendants to represent her in May 2013. After reaching a settlement with Johnson & Johnson and Ethicon in September 2016, the plaintiff’s counsel allegedly collected more money for their services than they were entitled to under New Jersey law, relying on an illegal retainer agreement signed by their client.

Specifically, some of the defendants allegedly contracted with the woman for a 40-percent attorneys’ fee, which exceeds the 33.33 percent allowed by state law for the first $750,000 recovered. On top of that, the suit alleges the woman’s attorneys improperly took their payments “off the top” of the gross settlement amount and deducted it from her portion of the recovery. The retainer agreement signed by the woman also failed to disclose that her counsel would be sharing legal fees with attorneys she never hired and who were not authorized to receive such fees, the case says. As a result, the defendants collected attorneys’ fees and expenses from the plaintiff’s settlement based on non-complaint or non-existent retainer agreements – which violates New Jersey law, the lawsuit alleges.

The lawsuit seeks to represent anyone who hired and paid at least one of the defendants to file a pelvic mesh lawsuit in New Jersey.

-Nadia Abbas