Article Type: Investigation

Olympic Rescue It! Class Action Investigation

This is an investigation in response to customer complaints about the outdoor resurfacer and sealant called Olympic Rescue It! The collective criticisms of the product allege that the deck stain is utterly ineffective and susceptible to cracking, peeling, and chipping within months after it is applied. Sold as a “high performance” coating, Olympic Rescue It! instead is of poor quality. Thus, the class members assert their money was wasted, as well as their time, since recoating their deck with a different product was necessary.

Olympic is a paint and stain company with corporate headquarters in Pittsburgh, PA. Their line of Rescue It! outdoor resurfacers promises “a durable coating for wood and concrete splits and cracks up to ¼” deep.” Rescue It! also assures its consumers: “A fine texture helps to hide surface imperfections.” Olympic touts the sealants as ideal for lightly to moderately worn wood and concrete. It is also supposed to waterproof and provide a non-slip textured outdoor surface.

Deck stains typically effectively seal wood for three to five years before reapplication is necessary. Yet, members of this class action assert Rescue It! broke down in a short time after it was applied, peeling, cracking, and bubbling. Class members also state that the product required an extensive preparation time before they were even able to begin the application process, which again was time consuming. Olympic has claimed there is no set time period for a sealant to last, and this would depend on how worn the material is to start. Members of the class claim the product broke down in an unreasonably short period of time.

While Olympic has offered to refund unhappy customers who have properly applied the product, and/or replace with another Rescue It! resealent, some members of the class assert that this is not sufficient. The time wasted in preparing and applying a faulty product, only to do the work all over again, has forced them to seek a greater return than simply a refund and replacement.

The class action investigation is calling for consumers to join who have purchased and used Olympic Rescue It! in the last couple of years, and who have seen the product fail within a few months after its application.

Garcinia Cambogia Weight Loss Supplement Investigation

Garcinia cambogia is a Southeast Asian citrus fruit whose extract has been touted as a “miracle” weight loss remedy, but it is quite possible this summation is not accurate. The substance is sold in many health and vitamin stores in pill or powder form, or it can be found in certain snack bars. Weight loss success stories tied to garcinia cambogia have been chronicled on such high-profile outlets such as The Dr. Oz Show. But recent studies have pointed to garcinia cambogia extract as likely ineffective, and possibly dangerous.

The extract from garcinia cambogia rind is called hydroxycitric acid. The processed supplements of the organic substance work to help people lose weight, allegedly, by creating a “full” feeling, reducing appetite, and affecting the metabolism. Recommended doses are between 250 and 1,000 milligrams each day. Yet dietary supplements are not regulated by the FDA, so there is no agreed upon amount per person. The most often reported side effects of garcinia cambogia are mild upset stomach, diarrhea, dry mouth, and dizziness.

The problem with garcinia cambogia is that several international studies from the past and present have concluded the substance shows little to no evidence of weight loss success. Trials have been conducted by institutions such as The American Medical Association, Columbia University’s Obesity Research Center, and The Pennington Biomedical Research Center. Results have been consistent in showing that garcinia cambogia is in fact not effective in weight loss.

More serious than even the supplement’s fraudulent claims is that garcinia cambogia may be harmful. In 2009, the FDA alerted consumers about Hydroxycut, a line of products featuring garcinia cambogia that was tied to serious health problems such as elevated liver enzymes, jaundice, liver problems that required a subsequent transplant, and even one fatality linked to liver failure. The manufacturer of Hydroxycut discontinued sales, and has returned to shelves a similar product minus the garcinia cambogia.

Dr. Tod Cooperman, President of ConsumerLab.com, says that, “Most [garcinia cambogia] products don’t actually deliver what’s on their labels.”

Dr. Steven Heymsfield, former head of The Pennington Biomedical Research Center, reports, “I don’t think [garcinia cambogia] is 100% safe.”

Besides wasting money, fraudulent “miracle” supplements tend to distract those seeking to lose weight from doing what is best for them and most effective: increasing activity levels and eating a healthy diet.

Factory Outlet Prices Class Action Investigation

This class action investigation focuses on pricing practices at factory outlet or discount retail stores in California, where state consumer laws provide protections against merchandisers using alleged prior high false or “fake” prices on item labels.

Who is Affected?

Consumers who purchased goods at certain discount retail or factory outlet stores in California may have acquired items with fraudulent previous price labeling that violates state pricing and advertising laws.

Overview of False Pricing Investigation

A recent court opinion (Case No. 11-55793, U.S. Court of Appeals for the Ninth Circuit) described the pervasiveness of the conduct under investigation as follows:

Most consumers have, at some point, purchased merchandise that was marketed as being “on sale” because the proffered discount seemed too good to pass up. Retailers, well aware of consumers’ susceptibility to a bargain, therefore have an incentive to lie to their customers by falsely claiming that their products have previously sold at a far higher “original” price in order to induce customers to purchase merchandise at a purportedly marked-down “sale” price.

California’s Fair Advertising Law provides:

No price shall be advertised as a former price of any advertised thing, unless the alleged former price was the prevailing market price. . . within three months next immediately preceding the publication of the advertisement or unless the date when the alleged former price did prevail is clearly, exactly and conspicuously stated in the advertisement. Cal. Bus. & Prof. Code § 17501

Additionally, California’s Consumer Legal Remedies Act provides a second, overlapping prohibition on advertising non-existent sales specifically forbidding “[m]aking false or misleading statements of fact concerning reasons for, existence of, or amounts of price reductions.” Cal. Civil Code § 1770(a)(13)

Complicating the issues under review is the common practice of retailers to offer lower quality product lines, referred to in the industry as “made-for-outlets” or “made-for-factories,” in their outlet stores. These goods are generally coded to refer to items made with materials that are inferior to the quality of the products the retailer stocks in the non-outlet locations.

Outlet stores currently being investigated include:

Kenneth Cole Outlet Store
Levi’s Outlet Store
Disney Outlet Store
Coach Factory Store
Guess Factory Store
Michael Kors Factory Store
Neiman Marcus Last Call
Nordstrom Rack
Polo Ralph Lauren Factory Store
Saks Off Fifth
Barney’s New York Outlet
Bloomingdales Outlet
Colombia Outlet
DSW Designer Shoe Warehouse
Theory Outlet

Consumers who purchased items at various California outlet stores and other discount retailers where advertising and/or labeling indicated the product was on sale by using a fictitious “original” price may have a claim against the merchandiser.

Floor & Decor® Laminate Investigated for Formaldehyde Levels

The giant flooring retailer, Floor & Decor®, is currently under investigation for selling laminate flooring that violates the allowable formaldehyde standards set by the U.S. Environmental Protection Agency. The flooring was sold as compliant with the California Air Regulatory Board, when this is in fact false. Legal claims are being filed by consumers who purchased laminate flooring from Floor & Decor® due to the health risks associated with installing the material in the home. Claims allege the flooring may also be defective.

Floor & Decor® was founded in 2000. With their headquarters in Atlanta, the megastores are accessible to homeowners and professional contractors. Floor & Decor® boasts warehouse prices with showroom quality and a wide array of flooring materials. Yet, the company is the subject of claims that some of the material they have sold is not in compliance with laws that are set to avert serious health problems from dangerous emissions, and is incorrectly labeled as safe.

Formaldehyde is a chemical compound that occurs naturally. It is also manufactured for industrial use in many everyday products, such as wood flooring. Specifically, urea formaldehyde resin is an adhesive that presses veneers and wood particles together in the flooring material. Standards continue to evolve regarding allowable levels of this adhesive in flooring, but the California Air Regulatory Board has had the strictest standards in the United States. These standards under review nationally, and may be copied and enforced nationwide by the Environmental Protection Agency. Still, certain laminate flooring sold by Floor & Decor® allegedly exceeds levels set by both agencies, putting customers at risk for health problems.

Some people have more severe reactions to formaldehyde than others. The compound is proven to trigger asthma attacks, however. The most common health problems associated with formaldehyde are respiratory symptoms such as wheezing and coughing, skin rashes, fatigue and headaches, and eye, nose, and throat irritation. Severe allergic reactions that may be life threatening are possible. Formaldehyde is also a suspected carcinogen. The most dangerous period is when the tainted product is first laid in the home, as formaldehyde levels decrease with time.

Mislabeled formaldehyde levels on products purchased for the home is a serious issue. Consumers should be protected from fraudulent, deceptive, and unfair practices during the course of any purchase or trade.

Timber Treatment Technologies Wood Product TimberSIL Alleged Defective in Investigation

This investigation alleges that TimberSIL, a wood product from Timber Treatment Technologies, is defective and suffers from premature rotting.

TimberSIL is a glass-infused wood, used as an alternative to traditional wood, for outdoor steps, decks, porches, handrails, and other similar uses. It is advertised to be eco-friendly because it does not contain materials that are environmentally toxic and because, unlike conventional treated wood, it can later be mulched.

Its maker, Timber Treatment Technologies, promotes is as “an effective barrier in lumber to rot, decay and common wood problems” without the use of toxic ingredients. It also offers a forty-year warranty on the product. However, a 2009 study by the Department of Wood Science Engineering at Oregon State University found that TimberSIL wood was “only slightly resistant to decay,” and therefore unsuitable for exterior exposure.

TimberSIL was used extensively for rebuilding in New Orleans, after Hurricane Katrina. In particular, actor Brad Pitt’s Make It Right Foundation rebuilt over one hundred homes in the Lower Ninth Ward, between 2008 and 2010, designing them with an eye towards making them eco-friendly and energy-efficient. However, by 2013, the foundation claims it was receiving complaints from residents that the decks and stairs built with TimberSIL were showing signs of rot and decay.

The current investigation alleges that, despite the product’s forty-year warranty users of TimberSIL have found problems within only a few months or years of use of the product, including the following:

Inability to withstand moisture
Rotting and mildew
Decay of material and falling apart of items built with it
Moisture of material severe enough to prevent absorption of paint

The Make It Right Foundation claims that it attempted to negotiate a settlement with the company, but that it was unable to resolve the matter. It has now filed a lawsuit alleging that TimberSIL is a defective product, and that Timber Treatment both “falsely advertised and misrepresented” the product and “failed to honor its product warranty or to take corrective action.” It believes that the wood must now be replaced.

In an even more eyebrow-raising assertion, the lawsuit claims that Make It Right was also contacted in 2013 by an investor in TimberSIL who said that the company was “taking shortcuts with the TimberSIL infusion process, which resulted in a defective product.”

Other users of TimberSIL are also believed to have had problems with the product. For example, contractors renovating a nineteenth-century inn in Massachusetts claim that the TimberSIL they used would not hold paint and could not withstand the inn’s northern climate. They say that they were forced to replace the TimberSIL at a cost of $100,000.

TimberSIL and Timber Treatment Technologies are thus now the subject of an investigation into the material’s possible defects and the company’s potential breaches of warranty.

Laundry Detergent Slack Fill Class Action Investigation

This class action investigation focuses on laundry detergent and seeks to determine whether manufacturers use non-functional “slack fill” to mislead consumers as to the actual amount of laundry detergent in a container.

Who is Affected?

Purchasers of these laundry detergent products in specific containers:

XTRA™ 45 ounce
OxiClean™ 60 ounce
Dreft® 50 ounce
Era® 50 ounce
Cheer® 50 ounce

Overview of Detergent Slack Fill Investigation

Detergents are sold in a variety of containers and packaging materials. Consumers often notice the empty space in product containers for a wide range of products. This space is referred to as “slack fill”.

The U.S. Food and Drug Administration (FDA) defines slack fill as the difference between the actual capacity of a container and the volume of the product it contains. The FDA allows slack fill but prohibits “misleading” containers that do not allow consumers to fully view the contents. The FDA defines “nonfunctional slack-fill” as the empty space in a package that is filled to less than its capacity for reasons other than:

(1) Protection of the contents of the package;

(2) The requirements of the machines used for enclosing the contents in such package;

(3) Unavoidable product settling during shipping and handling;

(4) The need for the package to perform a specific function (e.g., where packaging plays a role in the preparation or consumption of a food), where such function is inherent to the nature of the food and is clearly communicated to consumers;

(5) The fact that the product consists of a food packaged in a reusable container where the container is part of the presentation of the food and has value which is both significant in proportion to the value of the product and independent of its function to hold the food, e.g., a gift product consisting of a food or foods combined with a container that is intended for further use after the food is consumed; or durable commemorative or promotional packages; or

(6) Inability to increase level of fill or to further reduce the size of the package (e.g., where some minimum package size is necessary to accommodate required food labeling (excluding any vignettes or other nonmandatory designs or label information), discourage pilfering, facilitate handling, or accommodate tamper-resistant devices). (21 CFR 100.100)

Consumer actions for use of prohibited slack fill allege the manufacturers have been unjustly enriched by collecting millions of dollars from the sale of their products that they would not have otherwise earned.

Slack Fill Complaints Lawsuits and Settlements Continue

Regulatory enforcement and class action damage actions against corporations for misleading packaging of various products in violation of the federal Fair Packaging and Labeling Act (21 U.S.C. 321) are not new and violations continue. Slack fill cases have resulted in civil penalties against Coty, CVS, Hershey, Johnson & Johnson, Mars, and Walgreens in recent years and a class action suit is currently pending against Johnson & Johnson Inc. in U.S. District Court for the Southern District of New York.

Class action lawyers are currently investigating several companies for allegedly manufacturing, distributing, marketing and selling laundry detergent products in misleading containers that contained nonfunctional slack fill, in violation of FDA requirements and state consumer protection laws. Purchasers of XTRA™ (45 oz) and Dreft® (50 oz) laundry detergents (Manufacturer: Church & Dwight Co., Inc.) and OxiClean™ (60 oz), Era® (50 oz) and Cheer® (50 oz) laundry detergents (Manufacturer: Procter & Gamble Co.) may be eligible to join a free class action lawsuit investigation.

Febreze Air Vent Clips Class Action Investigation

This investigation focuses on the safety of Febreze car air vent clips, after some consumers have reported that the clips can leak causing the liquid inside to corrode and damage the interior of their cars.

Product Overview

Febreze Car Vent Clips, a Proctor & Gamble (PG) product, are square-shaped pods which contain scented liquid cartridges in the center. The clips are advertised as intended to emit scents into the air when the pods are activated when clipped to an automotive air conditioning or heating unit vent. According to PG product directions, the pods are to be attached to a car vent and to “activate scent, firmly push clip until you hear it click in.”

Consumer Complaints Claim Febreze Car Vent Clips Leak and Damage Car

Febreze Car Vent clips have been the subject of many consumer complaints. The complaints all describe a similar product defect and damage to vehicle interiors; specifically, that the liquid inside the unit leaks out of the pod onto an interior surface in the vehicle causing corrosive damage to the surface of the dashboard, vent and vent cover, console and/or car computer. Many angry purchasers have filed product defect and repair claims with PG alleging the leaking Febreze liquid “stripped the paint and ate into the plastic” of one or more interior auto surface.

Although PG received notice of defects within a few months of marketing this product, PG has not addressed the leakage through any product revisions nor has it stopped manufacturing the air vent clips. Dissatisfied purchasers report that PG has responded to their complaints by providing a pre-paid complaint package requiring the consumer to return a questionnaire, the clips at issue, and photos of vehicle damage.

Class action lawyers are currently investigating allegations that Febreze Car Vent Clips are defective due to a design defect and/or failure to warn by PG. Purchasers of this product who experienced vehicle damage from the leaking liquid contents may be eligible to join a free class action lawsuit

Broker Ahmad “Kevin” Wares Investigated For Unauthorized Trading

Triggered by customers’ complaints, the Financial Industry Regulatory Authority (FINRA) has initiated an investigation into broker Ahmad “Kevin” Wares’ alleged violations of securities law. Wares has already been subject to a judgment, multiple customers complaints and has a history of employment with troubled financial firms which have been expelled from FINRA.

Investors, who have suffered losses as a result of Wares’ fraudulent conduct, may be able to recover same through securities arbitration. This is accurate even when an investor did not end up opening an account with Wares’ firm. Any brokerage agreement has an Arbitration Clause present as a means for dispute resolution, which allows defrauded investors to seek restitution of losses and compensation. FINRA Arbitration can take as little as nine months and the rules of discovery and evidence are more relaxed than in a civil litigation.

FINRA’s investigation of Wares is based on allegations of unauthorized trades and churning by Wares. Under FINRA Rule 2510(b), brokers are not allowed to engage in unauthorized trading – buying, exchanging or selling securities without the prior consent or authority from the investor – a broker must discuss all trades with the investor prior to executing them.

“Churning” means excessive trading, which is not economically advantageous to the investor but is conducted solely to generate a commission for the broker. All that is needed to establish a churning claim is (1) excessive purchases and sales of securities, which generate broker commissions; and (2) broker control over the transactions in the account and discretion over account activity.

Malcolm Babin Former PFS Investments Stockbroker Fraud Investigation

Broker Malcolm Babin has been barred by the Financial Industry Regulatory Authority (FINRA) following a refusal to cooperate during an ongoing investigation of Babin by FINRA in July 2015. Babin, a Series 6 licensed broker, was being investigated by FINRA for allegations of conversion of customer funds and undisclosed outside business activities. In May 2015, Babin had been terminated from PFS Investments for allegations of “selling away,” which is prohibited by FINRA Rule 3040.

“Selling away” occurs when a broker buys, solicits or sells securities which have not been approved or recorded on the broker’s affiliated firm books. The most common form of securities sold away are private placements and promissory notes. Because both are securities, which are not required to be registered with the Securities and Exchange Commission (SEC), such investments are riskier because of lack of SEC and FINRA oversight and often turn out to be scams.

Under FINRA rules, the brokerage firm with which Babin was employed, was required to properly monitor and supervise its brokers and have internal supervisory procedures in place designed to detect improper conduct and interaction with the public.

Investors, who have suffered losses as a result of Babin’s fraudulent conduct, may be able to recover same through securities arbitration. This is accurate even when an investor did not end up opening an account with Babin’s firm. Any brokerage agreement has an Arbitration Clause present as a means for dispute resolution, which allows defrauded investors to seek restitution of losses and compensation. FINRA Arbitration can take as little as nine months and the rules of discovery and evidence are more relaxed than in a civil litigation.

Invokana Lawsuits

Invokana, Invokamet, Jardiance, Xigduo XR, Farxiga, and Glyxambi are drugs that are often prescribed to lower blood sugar for patients with Type 2 diabetes. An investigation is now looking into possible connections between these drugs and a serious condition called ketoacidosis.

All of these drugs contain canagliflozin, dapagliflozin, or empagliflozin (or a combination of one of these and another drug) and belong to a class of drugs known as sodium-glucose cotransporter-2 (SGLT2) inhibitors. These drugs work by causing the kidneys to remove sugar from the body through the urine.

Although all of these drugs have been approved for treatment of Type 2 diabetes, in May 2015, the FDA issued a warning that these drugs may lead to ketoacidosis, a condition where the body produces high levels of blood acids called ketones. Ketoacidosis is a serious health condition and can lead to diabetic coma and even death.

The warning was based on reports received by the FDA of twenty adverse incidents involving ketoacidosis and patients who had taken the SGLT2 inhibitors. Particularly noticeable were some reported cases of DKA or diabetic ketoacidosis, a condition that most commonly occurs in patients with Type 1 diabetes when insulin levels are too low or during prolonged fasting and that is usually accompanied by high blood sugar levels. However, these particular cases were found in Type 2 diabetics and their blood sugar levels were reported to be only slightly increased.

In all twenty adverse incidents with the SGLT2 drugs, the patients needed to be hospitalized or treated in the emergency room. The FDA continues to receive similar reports.

Four months later, on September 10, the FDA issued new warnings that canagliflozin—the most important ingredient in Invokana and Ivokamet—may decrease bone mineral density and increase the risk of bone fractures. The FDA has revised label warnings for these drugs and is investigating the other SGLT2 drugs for similar problems.

The FDA warns patients taking these drugs to pay close attention for any signs of ketoacidosis and to seek medical attention immediately. Symptoms of ketoacidosis may include difficulty breathing, nausea, vomiting, abdominal pain, confusion, and unusual fatigue or sleepiness. It does not recommend that patients stop taking the medicines without talking first to their prescribers.

Although no deaths have so far been reported in connection with these drugs, the risk remains, and an investigation is now looking into cases of ketoacidosis that may be associated with these drugs.