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Virtual Beauty Makeovers and Privacy Investigation

Selfie Face on Smartphone Screen

Have you used the virtual online beauty makeover apps in beauty-product stores or makeup-testing programs on cosmetic websites? Do you live in Illinois?

When these sites obtain an image of you that allows you to try on different cosmetics, they may be taking scans of your features and face. 

Illinois has a Biometric Information Privacy Act (BIPA) that regulates what private businesses must do before they collect your biometrics, how they must handle or use them once they have them, and a requirement that they must eventually destroy them. But it appears that many of these sites don’t come anywhere near meeting the legal requirements.

Do You Qualify?

Here are some companies whose store apps or websites that may not meet the legal requirements:

  • Estee Lauder
  • Nars
  • Laura Mercier
  • Maybelline
  • L’Oreal 
  • MAC
  • Nyx
  • Schwartzkopf
  • MaryKay
  • DailyMakeover.com
  • Sephora
  • GlamST (from Ulta Beauty)
  • LiftMagic.com (for plastic surgery)

If you live in Illinois and you used one of these virtual makeover or makeup testing features, and a scan was made of your face, live or from a photo, you may qualify to start a class action under BIPA.

The Problem with Biometrics

Biometrics are often used as identifiers for individuals. For example, some employees are required to clock in or out at work through a palm scan or fingerprint.

But the storage and use of biometrics present problems that other identifiers and personal information don’t. For example, if your driver’s license or credit card number is stolen, you can get a new driver’s license or credit card with a different number. But you cannot get a new set of fingers with a different set of prints.

Also, what happens if the company storing your biometrics is threatened with going out of business? Can it sell its databases, including those with your information, to another party?

What BIPA Does

BIPA is a first attempt at regulating private businesses’ use of biometrics. It requires a number of things of them, including that they inform people of the specific purpose for which their biometrics are being collected and that they get a written release from those people to collect their biometrics. 

BIPA requires that private businesses apply at least the same level of security to the biometrics they store as they do to other important personal information. 

Private businesses must also publish a written policy, made available to the public, that specifies how long the biometrics will be kept on file and a plan for destroying them eventually. At most, businesses can only retain biometrics for three years after their last use for the original purpose.

Importantly, it also forbids private businesses from selling biometric information.

BIPA applies to things like retinal scans and facial recognition information as well as to fingerprints and hand scans.

However, because BIPA is an Illinois law, it only applies to people who live in Illinois.

Class Actions Have Already Been Filed

A number of class actions have already been filed against companies that are believed to have violated BIPA. Some bring suit against employers who do not follow the law for employees in Illinois. Others have been brought against major companies like Apple, Facebook, and Instagram who may have scanned the faces in photos posted, either for facial recognition or to build databases that will help them develop or improve facial recognition programs.

We’re all aware of the unacceptably high number of data breaches occurring in recent years. Our individual biometrics should not be put at more risk than necessary.

What We’re Investigating 

It may be that the only way these programs can accurately position blush, eye makeup, or lipstick on an image of a face is to scan and analyze that face.

One company that supplies such software claims that it analyzes 99 different points on a face; another claims to cite 200 “facial landmarks.” Can they do this on a live image, where you are sitting in front of your computer camera, moving around? Or must they take and have a still image to analyze?

And what happens to this image and the facial analysis when you leave the website? 

If you’ve used one or more of these makeover or makeup programs, fill out the form on this page and let us know what your experience was. If you qualify, an attorney will call you to ask for more information. This consultation is free. Note, however, that only persons who used these programs while living in Illinois are eligible.

“Free” Gambling Apps, In-App Purchases, and State Law Investigation

Are free gambling apps subject to state gambling laws? What about if they offer in-app purchases, so that players pay real money to keep playing?

Are these gambling apps legal, or are the Apple App Store and the Google Play Store profiting from illegal gambling? We’re launching an investigation to sort this out.

With the Internet playing an ever-larger role in how people do everything, things like gambling apps have proliferated and are testing jurisdictional boundaries.

Up to now, “Real” gambling apps, where players must pay real money up front to play and can win real money in return, have only been allowed in four countries: Brazil, France, Ireland, and the United Kingdom. However, Google has announced that it will be bringing these kinds of games to its Play Store in another fifteen countries starting March 1, 2021. They may include online casinos, sports betting, lotteries, or daily fantasy sports, depending on the types of gambling each country permits.

But what about free gambling apps, where players are not required to pay to play? Those have been offered at the Apple and Google stores, with the idea that players are not risking real money. Players start out with a number of “chips” or “coins.” If they win, they gain more. But if they lose, their use up that initial supply and are invited to use real money to buy more. Their cash purchases then allow them to keep playing.

Gamers have lost a lot of money on these in-app purchases. It is reported that Americans spent $3.5 billion in 2019 playing these “free” games, which appear to be addictive.

Class action suits have already been filed against the Apple App Store, alleging violations of Ohio laws, and against the Google Play Store alleging New Mexico violations. Yet another against the Apple App Store alleges that the Zynga apps it offers violate the laws of twenty-five states.

Google and Apple distribute the games, and they also make a considerable amount of money from the in-app purchases.

Huuuge, Big Fish, Playtika, and others have already agreed to settlements in other cases.

We’d like to hear from you if you’ve downloaded and played one of the “free” gambling apps below, and you’re from one of the following states: Alabama, Arkansas, Connecticut, Georgia, Illinois, Indiana, Kentucky, Massachusetts, Minnesota, Mississippi, Missouri, Montana, New Hampshire, New Jersey, New Mexico, New York, Ohio, Oregon, South Carolina, South Dakota, Tennessee, Vermont, Virginia, Washington, and West Virginia.

Fill out the form on this page and see if you qualify to join a class action.

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Investigation: Index Universal Life Policy Marketing May Offer Too Much

Do you have an Indexed Universal Life (IUL) life insurance policy? Are you getting the kind of increases in your account value that you saw in the marketing materials for the policy?

The basic idea of IUL policies is that you can allocate amounts from your cash value to an account based on an index, such as the S&P 500 or NASDAQ 100.

We’re investigating to see if insurance companies have been promising more than their IUL policies are likely to deliver.

How IULs Work: Insurance Plus Cash Value Gains

When you pay the premium for a universal life (UL) insurance policy, the insurance company subtracts the cost of insurance, plus certain fees or expenses, and puts the rest into the cash value of your account.

IULs let you allocate percentages of your cash value to two different kinds of accounts. One kind has a guaranteed fixed interest rate.

The other kind of account earns interest based on the gains of an index, for example, the S&P 500. The gains on an S&P 500-indexed account will match the gains in the S&P 500.

For example, if the S&P 500 rises by 10% in a particular year, then the interest you earn on your IUL S&P index account for that year will be 10% of the account’s cash value. If the S&P 500 falls instead, generally your account will not earn any interest.

There are different ways of calculating the interest, A “participation rate” may also be applied. In the above example, the participation rate is 100%, but it may also be 25% or 50%. In that case, the gains would be lower.

An article in Investopedia says, “IUL insurance policies are more volatile than fixed ULs, but they are less risky than variable UL insurance policies, because no money is actually invested in” the stocks or bonds making up that index fund.

Explaining IUL Policies

The Investopedia article notes, “IULs are considered advanced life insurance products in that they can be difficult to adequately explain and understand.” However, insurance companies still have the burden of offering explanations that are both understandable and realistic.

Some insurance companies, it seems, may be painting an overly-rosy picture of IULs.

Inadequate or False Marketing Practices

The following are suspected of inadequate or false marketing practices:

However, other companies may also be giving consumer false hopes.

Were You Disappointed?

When you bought your IUL policy, what did the salespeople tell you about gains? What kind of illustrations of potential gains did they show you? Were you disappointed by your actual gains?

If someone gave you a false idea about your IUL policy, fill out the form on this page. Let us know what your experience was, so we can determine whether a class action is needed.

Investigation of Hidden Costs in “Free” Coronavirus Testing

Were you charged for what was supposed to be a free Covid-19 test? Did your insurance provider refuse to pay the bill, or refuse to pay for things like the office visit or lab fees? We’re investigating to see if a class action is needed.

Congress has required that insurance companies cover testing and a government program has been set up to cover tests for the uninsured. Still, many people are finding that they are being billed for other costs associated with the procedure—separate charges for an office visit, for example, for a flu test that is given at the same time, or for out-of-network charges.

A New York Times article highlights the case of a woman who got tested after seeing ads about free tests, only to receive a bill for $2,718. The article is entitled, “Coronavirus Tests Are Supposed to Be Free. The Surprise Bills Come Anyway.”

Tests for Covid-19 are important element in getting the coronavirus under control. People who don’t know they have the virus are unlikely to be careful about quarantining or taking other precautions. To make sure that money was not an obstacle to getting tested, Congress has passed two pieces of legislation on billing for tests.

The Families First Coronavirus Response Act informed insurance companies that they could not apply co-payments or deductibles for tests, whether the tests are for the coronavirus itself or for antibodies.

The CARES Act went further, establishing rules for out-of-network tests, which also had to be covered at no charge to the person being tested. Out-of-network tests tend to be more expensive.

However, this has not stopped the bills from coming. Some parties claim this is because the US healthcare system has complicated coding and billing procedures, so that the services provided aren’t always clear. Policies may not be clear about out-of-network testing. “In other cases,” the New York Times article says, “insurers are interpreting gray areas in these new rules in ways that work in their favor.” Others seem to be simply denying claims.

“Patients’ bills suggest that the rules aren’t always being followed,” the article says. “Insurers have, for example, applied co-payments and deductibles to the tests, claim documents show.”

Unfortunately, many people are used to getting unexpected bills from their health providers, or they simply don’t know they should be paying nothing at all for their tests.

Tests are important. People who provide essential services, such as health care workers, supermarket clerks, and police officers are necessarily exposed to the virus, and they must make sure that they are not spreading it to the rest of us. Tests to find out if they’re infected should not be a financial burden they have to shoulder alone, when Congress has already provided for free testing.

If you’ve been billed for a coronavirus test, or for associated services like an “office visit” or “after-hours fee,” we’d like to know what your experience was. Fill out the form on this page and let us know.

Mortgage Processing Fees for Online or Phone Payments Investigation

Have you ever made a mortgage payment online or over the telephone? Were you charged a fee for it?

Many such “processing” fees are unlawful. This may be because they are not permitted under the mortgage agreement, or because they are much higher than the actual cost of processing. We’re investigating to see if a class action is needed to curb this practice.

These fees, which may also be called pay-to-pay fees, convenience fees, speedpay fees, or the like, were the subject of a warning bulletin issued by the Consumer Financial Protection Bureau (CFPB) in July 2017. The CFPB warned companies about misleading consumers about the purpose or amount of the fees, and not telling them about cheaper options.

For example, one such company claimed to charge consumers a “processing fee” of $14.95, when the fee was actually for same-day posting to the consumer’s account. Many consumers don’t need immediate posting, but the company led them to believe they had to pay simply to process the payment.

Other companies don’t disclose such fees. They don’t put them in writing, up front, and they rely on phone representatives to tell the consumer about the fees at the time of payment. When cheaper options are available, but the phone representative often does not tell the consumer.

Pay-to-pay fees are completely legal for many payment situations—for example, for buying a movie ticket online, for remitting taxes, or for paying tuition. They are often imposed for payment methods that fall outside of the business’s normal payment channels.

However, mortgages are governed by agreements that set the rules for payments and fees. Also state or federal laws may limit what companies can charge to the actual costs of processing, which may be as little as fifty cents.

A number of class actions have already been filed against this practice.

A Texas class action brought suit against servicer Arvest Central Mortgage Co., alleging that its $5-$10 fees violate Texas law forbidding mortgage servicers from charging consumers more than the amount they actually pay for processing the payment.

A Florida class action brought suit against Seterus, Inc., claiming that the fees it charges are not explicitly permitted under the law or the terms of its mortgage agreements.

We’re conducting an investigation of similar practices and the state and federal rules and law governing these practices.

If you’ve had to pay high fees to process your mortgage payment online or over the phone, you may qualify to be part of a class action. Fill out the form on this page and let us know what your experience was.

WeWork Investors Claim Company Misled Them Class Action

The fall of the We Company, also known as WeWork, was described as “one of the most spectacular flameouts in recent corporate history.” Its company valuation fell by 90% in a single year. This class action claims that WeWork misled the public about the company’s actions and intentions, violating the California Corporations Code.

The class for this action is all persons who directly or indirectly bought WeWork securities between May 15, 2017 and September 30, 2019.

WeWork rents commercial office space with long-term contracts, redesigns and furnishes the spaces, and re-rents them in smaller portions to tech startups and other businesses. The spaces were intended to provide a sense of “community” to the new companies who occupied them.

The company’s purported ends were lofty—offering a “physical social network,” “to elevate the world’s consciousness,” providing “a culture of inclusivity and the energy of an inspired community, all connected by [the Company’s] extensive technology infrastructure.” The company said it had “the power to elevate how people work, live and grow.”

WeWork displayed amazing growth, with revenues that purportedly quadrupled between 2016 and 2018. The complaint claims that “its community membership and occupancy metrics had soared, that the Company was extracting more revenue per member on a constant-city basis, and that it was poised for rapid revenue growth and on a sustained path to profitability.”

Like other startups, WeWork had substantial losses. However, company executives claimed these were part of what the complaint calls “controlled expansion plans and growth investment strategy.” As the company expanded into other, non-real-estate areas, the complaint alleges it claimed that its “core business remained highly profitable and that the investments in growth initiatives were laying the foundation for a profitable future once WeWork achieved market dominance, much like other successful technology startups such as Amazon, Inc. and Netflix, Inc. had done.”

In January 2019, with its valuation at $47 billion, WeWork began pursuing an initial public offering (IPO).

However, the complaint alleges that the company’s losses were anything but the controlled growth and strategic investment spending it claimed. Instead, the complaint alleges, the company “was engaged in profligate spending in a reckless bid for growth at all costs” with the intention of attracting investment at high valuations. The complaint claims, “The Company has since admitted as much.”

According to the complaint, “In an October 2019 slide presentation, after shocking details emerged of the Company’s behind-the-scenes excess in the course of its failed IPO bid, WeWork acknowledged it had eschewed a disciplined focus on profitable market expansion … and instead strove to ‘[g]row business commitments prior to funding commitments.’ In other words, WeWork expanded its business empire not because it made business sense, but for the primary purpose of inducing additional investment in the Company.”

The complaint also mentions the company’s “use of fanciful accounting metrics to obscure its true financial condition, such as ‘community adjusted EBITDA,’” which the Securities and Exchange Commission (SEC) “rejected … as misleading.”

Paycheck Advance Programs and Apps High Fees Investigation

Have you gotten an advance on your paycheck through a wage-advance app or a program your employer offers? Do you live in the state of New York, or is your employer’s headquarters in that state?

Some users of these apps or programs have been surprised at the price they were charged for this advance. We’re investigating to see if these lenders or programs have given users sufficient information about what they were to pay for this advance service.

Companies sometimes offer an advance on wages to help employees meet emergencies or shortfalls between paychecks. The arrangement consists of an agreement for an online entity or app to provide you with your earnings a few days before they’d normally be paid. This loan is repaid when your actual paycheck is deposited. Sometimes, the employer is not involved, and the individual enters into the arrangement with the lender.

Some of the better-known apps or lenders in this business include the following:

• Daily Pay
• Even
• FinFit
• FlexWage
• Instant Financial
• PayActiv
• Others

Daily Pay’s website advertises its PayEx platform by saying, “With our PayEx solution, employees can access their pay and tips early and save it as they earn it.” It claims that its program can “reduce financial stress for … employees.”

Even’s website puts it this way: “Employee financial stress and uncertainty are at an all-time high. Even’s Daily Money Platform gives employees visibility into their daily earnings, access to pay when they need it, and the power to plan—before payday arrives.”

And FinFit bills itself as “Building Employee Financial Wellness” and claims its services are an “Affordable alternative to high-interest loans.”

But are these statements true? Do they really help reduce financial stress, or do they add to it with high fees? Do these platforms in fact charge larger amounts for their services than expected, just as payday lenders do?

Because the money is repaid immediately, there does not seem to be an interest rate. However, these advances are a form of loan, and you pay a fee for them. The fee you’re charged can actually be similar to a high interest rate on a normal loan. We’re investigating to see if a class action is appropriate.

If you’ve used one of these programs, and you’re a resident of New York or an employee of a company headquartered in New York, we’d like to know about your experience. If you were surprised at the high fee, and you feel that the program deceived you about this, please let us know about it.

L’il Critters and Vitafusion “Complete” Multivitamin Investigation

Do you or members of your family take vitamins to provide all the essential nutrients your body needs? Did you buy L’il Critters Multivitamins, Vitafusion Women’s Complete Multivitamins, or Vitafusion Men’s Complete Multivitamins because the advertising claimed they are “complete” and provide “essential” nutrients?

We’re investigating these vitamins, their advertising claims, and their actual contents to see if a class action is warranted on the basis of false advertising.

What Does the Advertising Say?

Many consumers these days are looking for healthy foods and supplements, and they are willing to pay more for what they see as quality. Companies cater to this desire in their advertising.

The company that makes these vitamins, Church & Dwight Co., Inc., has advertised these vitamins as “complete” and providing the “essential” nutrients people need.

For example, the front label of the L’il Critters product advertises it as a “Complete Multivitamin.” The website page says, “For a complete children’s multivitamin with a delicious fusion of vitamins and minerals, try L’il CrittersTM Gummy VitesTM.”

The page for Vitafusion Women’s Complete Multivitamins says, “Women’s gummy vitamins provide a complete multivitamin formula that has been specially formulated to support the specific health needs of women. A fusion of essential vitamins, minerals and natural fruit flavors…”

Similarly, the page for Vitafusion Men’s Complete Multivitamins says, “Men’s multivitamin provides a complete gummy multivitamin that has been specially formulated to address the health needs of men. These delicious gummies combine essential vitamin and minerals with natural fruit flavors.”

What’s the Problem?

Consumers are now alleging that the vitamins are not “complete,” but in fact lack three vitamins that are “essential” for health: vitamin B1 (thiamine), vitamin B2 (riboflavin), and vitamin K. Also, they claim, the Men’s version of the vitamins claims to offer vitamin B3 (niacin) when it does not.

The complaint for a recent class action against Church & Dwight argues that consumers were misled by the company’s claims, thinking that the vitamins were “complete” and would provide all the “essential” nutrients they needed.

The judge in the case found that, whether or not the Food and Drug Administration (FDA) has a fixed definition of “complete” for multivitamins, consumers could still be misled by the advertising and labeling.

What Do You Look for in a Multivitamin?

Did you buy any of these multivitamins? Was your purchase influenced by the claim that they were “complete” and supplied “essential” nutrients? If so, fill out the form on this page and let us know what your experience was.

Investigation of Covid-19 Business Cancelations with No Refunds

To stop or slow the spread of the coronavirus, many businesses and organizations have shut down or curtailed services. But what happens if you’ve already paid for those services and they’re no longer available? Some businesses are giving refunds, but others are offering credits that may turn out to be useless or simply shrugging.

A class action may be necessary to get some of these parties to refund your money.

What’s the Problem?

A number of class actions have already been filed against airlines. Airlines have been severely underbooked, so they have canceled a substantial percentage of their flights. However, many are not giving the affected passengers refunds. They have been offering vouchers or credits instead, but these expire, and it’s not clear how long we’re going to be affected by waves of this pandemic.

While the Department of Transportation has issued an Enforcement Notice, reminding airlines of their obligation to refund tickets for flights they cancel, many airlines are still not complying.

Cruises are particularly high-risk, and they’ve been canceled as well. But some companies want to hold on to the money they’d expected to earn and, like the airlines, give vouchers or credits for future cruises in place of refunds.

Gyms have closed down, because a group of people breathing hard in an enclosed space now presents risks. Some customers have paid for yearlong memberships, however, and they’re no longer getting the benefit of the bargain.

Concerts and sports events have been forbidden by order prohibiting assemblies of large groups of people. Some of these will be difficult or impossible to reschedule as time goes on, and later, substitute events may not be as attractive to ticketholders.

Why isn’t a credit or voucher good enough?

The problem of Covid-19 makes these cancellations unlike those in ordinary times, when a concert could be easily rescheduled or a vacationer could take a different flight. Travel and activities are restricted, and even when they can be rescheduled, they may be dangerous for people who are at high risk of death from Covid-19.

Also, people have lost jobs, hours of work, or income, and they may be worried about paying their basic expenses at the moment.

It’s become difficult to plan ahead, since no one can say for sure what the course of the pandemic will be or what restrictions will exist a few months from now. Credits that expire may become worthless before they can be used.

We’re investigating to see if a class action is necessary.

What’s Your Experience?

Have you lost the benefit of any of the following items you’ve already paid for?
• Flights
• Hotels and resorts
• Cruises
• Rental cars
• Concert and sports event tickets
• Gym and other memberships
• Other prepaid services or benefits that have been canceled

If you have, and if you have not received a refund, fill out the form on this page and let us know what your experience was.

Investigation of Foreign Transaction Fees on Payments at Foreign Websites

Do you shop on foreign websites? Has your debit or credit card been charged a foreign (or international) transaction fee on a purchase you made there?

We’re investigating how foreign transaction fees are applied.

Originally, foreign transaction fees were applied only to purchases you made with your card in a foreign country. In earlier days, this situation was pretty clear-cut: You were only charged these fees if you actually were in the foreign country. Now the Internet has made it possible to buy from foreign countries while we’re still at home. Is a foreign transaction fee appropriate on these purchases, or does it violate the rules?

Why Do They Exist?

When you make a transaction in a foreign country, the payment card company must make pay the merchant in the currency of that country. For example, a transaction in France must be paid in francs; a transaction in Japan must be paid in yen; and a transaction in Canada must be paid in Canadian dollars.

To complete your transaction, then, an American card company therefore has to exchange American dollars for the currency needed. For this service, card companies normally charge a fee of from one to three percent of the transaction amount. Some of the fee goes to the card processor (such as Visa or Mastercard) and some to the card issuer (for example, a bank).

The rules for the charges vary by company. Some companies, like Capital One and Discover, do not charge foreign transaction fees for transactions in our nearest neighboring countries, Canada and Mexico.

Expanding the Charges

While each individual fee may be modest, they can add up. Card companies make significant revenue from these fees each year.

A recent class action against Bank of America claims, “The 1% international transaction fees assessed by VISA International alone resulted in $424 million in revenue in 2004—which was nearly 30% of its revenue that year.” It’s therefore profitable for banks or companies to find more occasions to charge such fees.

The Bank of American class action alleged that the bank was charging “hidden and inflated” transaction fees when customers withdrew money from their home accounts through an ATM while they were in a foreign country.

Now that the Internet has enabled consumers to shop at foreign websites, card companies see another chance to earn fees. But are they legitimate? Do the card company’s own agreements with the customer permit it to charge these fees? We’re investigating to see if a class action is needed.

Have You Been Unfairly Charged?

If you’ve been charged a foreign or international transaction fee when you used your American payment card at a foreign website, fill out the form on this page. Let us know what your experience was.