Sirius XM Radio Internal Do Not Call List TCPA Class Action

The Telephone Consumer Protection Act (TCPA) has a number of provisions that are meant to allow consumers to not receive, or to stop receiving, unwanted telemarketing calls. In this case, two plaintiffs bring suit against Sirius XM Radio, Inc. for violating a number of those provisions.

Plaintiff Victoria Sawyer received a number of calls from Sirius XM, beginning in November 2020. After the second call, she called back and followed the prerecorded instructions to ask to be taken off the company’s call list. She was then connected to a live operator who tried to sell services to her. Sawyer asked again that Sirius XM stop calling her.

The calls did not stop.

Sawyer’s phone number has been listed with the National Do Not Call Registry since sometime in 2006.

Sirius XM called plaintiff Joseph Roberts in November 2020. When he answered, he heard a click and had to say “hello” a number of times before a live human being came on the line. The complaint claims that this is “indicative of ATDS usage.”

Both plaintiffs claim they had never given Sirius XM their prior express consent to call them.

Three classes have been defined for this action:

  • The No Consent Class is all persons in the US who, (1) between January 8, 2017 and the date the Notice is sent to class members in this case, (2) received a call on their cell phones (3) from Sirius XM or someone acting on its behalf (4) for the same purpose as it called the plaintiffs in this case (5) using the same equipment used to call the plaintiffs, and (6) from whom Sirius XM claims to have obtained prior express consent in the same manner as it claims to have received it from the plaintiffs in this case.
  • The Internal Do Not Call Class is all persons in the US, whose numbers were called, between January 8, 2017 and the date the class in this action is certified, (1) by Sirius XM or someone acting on its behalf, more than once (2) within any twelve-month period (3) for substantially the same reason it called the plaintiffs in this class action.
  • The DNC Registry Class is all persons in the US whose numbers were called, between January 8, 2017 and the present (1) by Sirius XM or someone acting on its behalf, more than once (2) in any twelve-month period, (3) where the number had been on the National Do Not Call Registry for at least thirty days, (4) in order to sell Sirius XM’s products or services, and (5) from whom Sirius XM claims to have obtained prior express consent in the same manner as it claims to have received it from the plaintiffs in this case or from whom it did not obtain prior express consent.

Manufacturers, Distributors, Pharmacies Opioid Epidemic RICO Case

A very large multi-district litigation (MDL) case on opioids is currently working its way through the court system, with multiple complaints, long lists of defendants, and around 3,500 documents currently on file. The complaints bring suit against a group of manufacturers, marketers, distributors, national pharmacies, and pharmacy benefit managers, for creating or contributing to the opioid epidemic, with addictions and deaths across the US.

Many of the cases bundled into this MDL are not, strictly speaking, class actions. However, many of them are brought by large groups, such as cities. The lists of defendants are very long, covering in some instances more than two pages. They include such parties as Purdue Pharma, LP, Jansson, Endo, Walmart, CVS, Express Scripts, Optum RX, and many more.

The complaints claim that the manufacturers attempted to change the perceptions of medical providers about opioids and to increase the demand for opioid drugs. Opioids had long been regarded as effective but having a high potential for addiction, so that doctors had been reluctant to prescribe them for extended periods or for situations that were not presumed to involve severe pain at the end of life.

The complaint details alleged misrepresentations made by the defendants and the methods they used to spread them, such as unbranded advertising and speakers’ bureaus.

Also, the complaints allege that marketers aimed their sales pitches at vulnerable populations, and that they had a duty to educate doctors with accurate information.

Distributors contributed, the complaints allege, because they did not properly control the drug lots that passed through their hands. This allowed for diversion of the drugs to illegitimate markets, which in turn fueled addictions, particularly to people who could no longer obtain prescriptions for the drugs through proper channels.

Another allegation is that the companies involved worked to delay real responses to the growing opioid crisis. The complaints allege that they merely “pretended” to work with law enforcement and worked together to maintain their markets and keep their profits up.

The result, the complaints claim, have been “devastating” for individuals and the communities they live in. The various actions brought under this MDL case attempt to detail the complexity of the attempt to promote and sell opioids and all the actions and circumstances that should have mitigated the enterprise, but that the defendant companies resisted.

The counts include RICO charges, negligence, common law public nuisance, unjust enrichment, civil conspiracy, and a request for punitive damages.

American Bank Systems Exposes Financial Institution Customers’ PII Class Action

This class action brings suit against American Bank Systems, Inc. (ABS), claiming that it has responsibility for its recent data breach. The complaint blames the company “for failing to comply with industry standards to protect information systems that contain PII, and for failing to provide timely, accurate, and adequate notice” to victims that their information had been exposed.

The class for this action is all individuals in the US and its territories whose PII was exposed in the ABS data breach which occurred between October and November 2020.

All individuals in the United States, and its territories, whose PII was compromised in the American Bank Systems Data Breach which occurred between October and November 2020.

A group called Avaddon claimed to have perpetrated the attack. It issued a “leak warning” that claimed the group had hacked into ABS’s system and taken more than fifty gigabytes (GB) of information, including the personally identifiable information (PII) of ABS’s customers. Some reports claim that the group published a 4 GB sample of the stolen information. Avaddon asked for a ransom in exchange for returning and not releasing the data.

The complaint alleges, “It appears that when ABS did not pay the fee, Avaddon published a 52.57 GB dump of the remaining data. What is particularly notable is that much of the data that was disclosed seems to have been stored by ABS as “unencrypted, plain-text files” that anyone could read.

ABS’s business is providing compliance and document management services to its customers, who are some 350 financial companies across 35 states. It therefore naturally works with files that have highly sensitive PII.

One of ABS’s customer is Freedom Bank of Southern Missouri, which used ABS to store customer information. The plaintiff in this case, Larry Lyles, is a customer of Freedom. ABS told freedom about the data breach on November 20, 2020, about ten days after it found out about the hack, but did not tell Lyles until the following month.

On December 10, 2020, ABS sent a notice to Freedom’s customers, including Lyles, the complaint says, telling them that their PII had been compromised in a data breach. Lyles’s information is now in the hands of unauthorized third parties, putting him at risk of identity theft for year to come.

The complaint’s counts allege violations of the Oklahoma Consumer Protection Act, negligence, negligence per se, and unjust enrichment. It asks for a declaratory judgment against ABS, requiring it to put in place “reasonably sufficient practices to safeguard PII” kept in its systems.

Genworth Long-Term Care Insurance Omissions on Rate Increases Class Action

Long-term care (LTC) insurance is expensive. When choosing which plan to buy, consumers must choose a policy that will be affordable over many years, until the time it is needed. This class action centers on price rises for LTC policies from Genworth Life Insurance Company and Genworth Life Insurance Company of New York. It does not contend that Genworth should not raise prices on policies, but that disclosures made to customers were inadequate.

The policies in question are “product blocks” the company calls PCS I (issued between 1994 and 1997) and PSC II (issued between 1997 and 2001).

When these policies were being sold, the complaint alleges, Genworth’s sales agents pointed out that the company had not been raising the rates on its LTC insurance. This, the complaint says, led would-be customers to believe that future rises would be minimal.

By 2012, however, the complaint alleges, Genworth was having problems, including “a substantial shortfall in its LTC reserves, much larger than it ever anticipated.” The problem was increasing, but the company continued to pay dividends to its holding company.

Genworth devised a Multi-Year Rate Increase Action Plan (MYRAP) designed to right its finances. But because this would not have an immediate effect, Genworth began making its calculations with “significant anticipated (but not yet filed) future premium rate increases…”

The complaint claims that Genworth “was so confident in its ability to achieve these rate increases that it relied on them in its then-current financial reporting and when paying executive compensation bonuses that were tied to successful execution of these plans.”

However, policy holders were not told of the “massive” rate increases that were coming. Still, the hole that had to be plugged by the rate increases became larger. The complaint says, “By the end of 2019, that number had grown to $7.6 billion.”

When it instituted its first, smaller rate increases, it only told customers only that it was “likely” or “possible” that their rates would increase again in coming years. Had customers known that the planned rate increases might double or triple their costs, the complaint claims, they might have made different decisions, such as deciding to drop the policies and buy from another insurance company. The earlier they did this, the lower their rates with the new company would likely be. However, Genworth did not provide them with enough information to make an informed decision.

The counts include fraudulent inducement by omission, among other things. The complaint notes that this case is very similar to another filed in 2019, but this one is field “on behalf of policyholders that were not included in the prior lawsuit.”

Two classes have been defined for this action:

  • The PCS I Class is all persons living in the US who have Genworth PCS I LTC policies.
  • The PCS II Class is all persons living in the US who have Genworth PCS II LTC policies.

Yumions “Onion Snacks” Real Onion Content Multi-State Class Action

Yumions are “crunchy onion snacks,” says the front of the bag, under 7-Eleven, Inc.’s 7-Select brand. But are they truly made from onions? The complaint for this class action alleges that the “onion” representations for the snack food are “false, deceptive, and misleading[.]” Why? Because it gives reasonable consumers [the impression] that the Product contains real onions in a non-de minimis amount.”

The class for this action is all those who live in New York, Pennsylvania, Ohio, North Carolina, Virginia, and Connecticut who bought the product during the applicable statutes of limitations.”

Yumions come in a bright yellow bag, depicted on page 2 of the complaint. The front of the bag displays the words, “crunchy onion snacks” along with images of an onion and three onion rings.

However, the ingredient panel shows very little onion: The main ingredients are corn meal, vegetable oil, and seasoning. Onion appears as part of the seasoning component, in the form of onion powder; onion flavor is part of the “natural flavor” in the seasoning.

Onion powder is a seasoning powder created with dehydrated, ground onions. While the flavor in it is much stronger than the flavor of real onions, the complaint alleges that it “lacks the depth of flavor provided by real onions because [it is] typically made with part of the onions, such as the bulb.”

In the Yumions snacks, the complaint says, the onion powder “is part of the seasoning, which itself contains more corn, salt and sugar than onion powder.” It claims that the product is really deep-fried corn chips with added onion flavor, and because it does not admit this, “consumers are misled to expect a non-de minimis amount of real onions.”

The complaint alleges, “Onion powder and added onion flavor also lack the health and nutrition benefits that are provided by real onions.” These include fiber, vitamin C, folate, vitamin B6, and potassium. According to the complaint onion powder contains much less of these substances, “while the added onion flavor contains none.”

The complaint makes one more allegation about labeling: “The addition of onion powder and onion flavor means the label is required to state ‘natural onion flavored’ or ‘onion flavored’ fried corn snack.”

The ingredient list also shows caramel food coloring. The complaint claims this “gives consumers a misleading impression that the Product contain more onions than it does since the color is a darker brown than it otherwise would be, similar to the color of onions.”

According to the complaint, the company “misrepresented” the product: 7-Eleven, it says, “knows consumers will pay more for the Product because the front label only states ‘Crunchy Onion Snacks’ instead of ‘natural onion flavored fried corn snacks’….”

Arx Fit Website Not Accessible to the Visually Impaired Class Action

The Americans with Disabilities Act (ADA) tries to ensure that handicapped persons are able to have the full enjoyment of goods and services of any place of public accommodation. The complaint for this class action alleges that Arx Fit, Inc., a maker of fitness equipment, has a website that is not accessible to blind or visually impaired persons who use standard screen readers. This case is brought under the ADA and also under New York City Human Rights Law.

The class for this action is all legally blind individuals in the US who have tried to access Arx Fit’s website and as a result have been denied access to the equal enjoyment of goods and services, during the appropriate statutory period. A New York City Subclass has also been defined.

The ADA is quoted in the complaint as saying, “No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.”

The legal definition of blindness, according to the complaint, is “a visual acuity with correction of less than or equal to 20 x 200.”

Visually-impaired people need access to the Internet, which the complaint says has become “a significant source of information, a portal, and a tool for conducting business, doing everyday activities such as shopping, learning, banking, researching, as well as many other activities…”

Fortunately, screen reading software now exists that can help the blind and visually impaired gain access to websites that can, for example, read and vocalize alternate entries for website elements, for example pictures. The complaint says, “For screen-reading software to function, the information on a website must be capable of being rendered into text.”

The World Wide Web Consortium (W3C) publishes version 2.0 of the Web Content Accessibility Guidelines that set standards to achieve accessibility for the blind and visually impaired. Big businesses and government agencies generally use this standard.

Unfortunately, the complaint alleges that Arx Fit does not. When plaintiff Josué Paguada visited the website in January 2021, the complaint claims, he “was denied a user experience similar to that of a sighted individual due to the website’s lack of a variety of features and accommodations…”

For example, the complaint says, “many features on the Website lacks alt.text, which is the invisible code embedded beneath a graphical image.” Without this, he could not determine what products were on the screen. Other features “fail[ed] to contain a proper label element or title attribute for each field” so that the screen reader cannot “communicate the purpose of each element” and the user cannot know what to enter in the various fields.

Also, because some pages contain the same title elements, which means that the screen cannot “distinguish one page from another.” Broken links were another problem.

The complaint asks that the website be made accessible to visually-paired persons and the blind.

State Farm Mutual Auto Insurance Underpayment of Wage Benefits Class Action

If a person is injured in a car accident, what must the auto insurance company pay for lost earnings due to the accident? The complaint for this class action alleges that State Farm Mutual Automobile Insurance Company makes calculations that are improper under New York state’s insurance laws and pays accident victims less than they are entitled to.

On July 31, 1999, plaintiff Jose Manrique was in an accident. At the time, he was riding in a Toyota that was insured by State Farm Mutual Automobile Insurance Company. After the accident, he applied for the First Party Benefits included in the policy. His wages at the time were around $3,425.

State Farm paid benefits for a while, but terminated them on June 25, 2020, claiming they had been exhausted. The complaint alleges that he was underpaid and is still owed benefits

At issue here is the calculation of amounts for Basic Economic Loss and First Party Benefits under New York’s Comprehensive Automobile Insurance Reparations Act.

Under Basic Economic Loss (§ 5102(a)(2) of the law), Manrique should have been entitled to up to $50,000 for medical expenses and wages; wages are defined as “Loss of earnings from work which the person would have performed had he not been injured” with a cap of $2,000 per month for the three years after the accident. The policy on the Toyota included this Basic Economic Loss coverage, with its $50,000 in benefits, plus Optional Basic Economic Loss coverage, with another $25,000 in benefits.

Under First Party Benefits (§ 5102(b) of the law), however, the complaint says, Manrique “is entitled to be reimbursed from the Basic Economic Loss coverage, with wages calculated as ‘payments to reimburse a person for basic economic loss,’ i.e., loss of actual earnings, LESS ‘Twenty percent of lost earnings,’ again capped at $2,000 per month.”

The complaint claims that State Farm paid Manrique $49,214.90 in First Party medical benefits and $14,444.08 in First Party Wage Benefits over five months “and took a credit of $4,420 in New York State Disability benefits and $2,648 in Social Security benefits…” This adds up to a total of $70,726.98.

The complaint alleges that State Farm’s “conclusion that Basic Economic Loss coverage of $75,000.00 had been exhausted was based upon [State Farm’s] improper reduction of Basic Economic Loss by more than the statutorily capped amount of $2,000.00 per month for wages as provided by (§ 5102(a)(2).”

The class for this action is all Eligible Injured Persons (as defined by 11 NYCRR §§ 65-1.1-65-1.3) covered under a State Farm Mutual Automobile Insurance Company policy and subject to Insurance Law §5102, who had monthly wages of more than $2,000 per month, who have made claims for and received First Party Benefits including claims for lost wages “and which, after paying at least one month of first party wage benefits, January 12, 2015” [sic]. (Note that the lack of clarity at the end is in the original class definition on page 6 of the complaint.)

Keebler Fudge Stripes and “Fudge” Content New York Class Action

The Keebler brand has a type of cookies called Fudge Stripes, which are shortbread cookies purportedly covered in fudge. But the complaint for this class action alleges that the references to “fudge” are “false, deceptive and misleading,” because the product does not contain fudge.

The class for this action is all those who live in New York who bought the cookies during the applicable statute of limitations.

Keebler, which is owned by Ferrara Candy Company, makes the cookies in regular and mini sizes. Page 2 of the complaint shows an image of a package of Minis. The label shows the words “Fudge Stripes” and “made with real Keebler fudge” and an image of pieces of fudge. The complaint alleges, “The representation as being made with ‘real [Keebler] fudge’ is false, deceptive and misleading because it lacks the ingredients essential to any fudge, let alone ‘real’ fudge.”

According to the complaint, one dictionary definition of “fudge” is “a type of sugar candy that is made by mixing sugar, butter and milk.” Fudge normally contains chocolate or cocoa but can be flavored with other things as well.

The complaint refers to the American Bakers Association 2019 Power of Bakery report as saying that 50% of consumers—in other words, half—want “real” ingredients when they shop for “indulgent bakery products.”

According to the complaint, then, when consumers see that the cookie package says “made with real Keebler fudge,” they expect the fudge used to make the product to contain the ingredients that “real” fudge contains—that is, sugar, milk, and butter. Instead, the complaint alleges, it contains vegetable oil, invert syrup, and whey. The complaint reproduces the ingredient panel to show this.

The oils used include soybean, palm kernel, and palm oil; no butter is used. As to whey in place of milk, the complaint says, “Whey is the watery part of milk that is separated from the coagulable part… Whey is mainly protein and lacks the milkfat present in real milk.” As to sugar, the complaint says the invert sugar is “a combination of glucose and fructose.”

These substitutions for the “real” ingredients, the complaint alleges, means the fudge provides less satiety, has a waxy and oily mouthfeel and leaves an aftertaste.” It charges that the vegetable oils raise cholesterol in a way that butter does not and are linked to health problems; that butter and milk contain lactones for flavor as well as vitamins A, D, E, and K.

The complaint alleges that the company “misrepresented the Product through affirmative statements and omissions.”

Hoover “Made in USA” Vacuums’ Parts Made in Hong Kong NY Class Action

For some consumers, it’s important to buy products made in the USA. Some companies display a “Made in USA” or “Made in America” sticker or seal to attract those people. But the complaint for this class action alleges that the seal applied to Hoover vacuum cleaners by their maker, Royal Appliance Manufacturing Co., misleads consumers, because its small print reads, “With Globally Sourced Components.”

The class for this action is all those who live in New York who bought the product during the applicable statutes of limitations.

According to the complaint, over 70% of Americans want to buy products made in the US. Some consumers want to support jobs and companies in this country. Others believe that, because the US is more highly regulated than some countries, its products will be safer. Companies thus may tout the US origins of their products to gain customers.

Royal Appliance also emphasizes the US origin on its Hoover products in other ways besides the seal, the complaint alleges. It points to Royal Appliance YouTube video called, “Made in the USA—Meet the people behind Hoover PowerDash.” The complaint quotes a worker in the video at the Cookeville, Tennessee facility who says, “When it says ‘made in America,’ I take pride in the fact that it’s made in Cookeville, that it’s made here, that we made it.” Another in the video says, “It makes me want to purchase that specific product because I know that my people made this.”

However, according to the complaint, US Customs records reveal that Royal Appliance “receives most of the parts and components for the products from China…” The complaint reproduces a part of such a record and alleges, “The company which exports the components from China to the U.S. is [Royal Appliance’s] parent company, a Chinese firm named Techt[r]onic Industries, headquartered in Hong Kong.

The complaint alleges that “a substantial transformation” must occur to justify the “Made in USA” claim, and that this does not happen with the vacuum cleaners because the “name, form and character of each component of the Products remain unchanged after they are assembled into the finished vacuum cleaners.” The complaint adds, “Most to all of the total manufacturing costs are attributed to overseas parts and processing.”

A designation called “Assembled in the USA” exists, but the complaint contends that it can be used “only is more than a ‘screwdriver’ assembly occurs”—that is, if it “involves complicated processes and skill.” The complaint contends that this is not true of the vacuum cleaners.

The complaint raises another point: Many Americans do not have a positive image of China or of goods coming from China. American companies, it says, are believed not to be able to cut corners the way some Chinese companies are believed to do.

The complaint thus alleges that Royal Appliance has “misrepresented the Product through affirmative statements and omissions.”

Tech Benefits Welfare Plan Prohibited Transactions ERISA Class Action

The complaint for this class action brings suit against Sequoia Benefits and Insurance Services, LLC and Gregory S. Golub, for breach of fiduciary duty to the RingCentral, Inc. Welfare Benefits Plan and other similar plans. The complaint not makes not only the usual allegations of high costs, but alleges, “Defendants have collected more than $100 million from the Plans in transactions prohibited by” the Employee Retirement Income Security Act (ERISA).

The class for this action is all participants and beneficiaries in employee welfare benefit plans that have participated in the Tech Benefits MEWA since January 11, 2015.

The complaint claims that Sequoia and its sole member Golub are fiduciaries of the plans at issue “under a Multiple Employer Welfare Arrangement (MEWA) established by the Defendants called the Tech Benefits Program…” A MEWA provides welfare benefits for employees of two or more employers that are not related.

The RingCentral Plan is one of around 180 employer-sponsored plans in the Tech Benefits MEWA. It provides benefits, such as medical, vision, dental, and life insurance, for employees of tech industry companies in California.

Sequoia administers the Tech Benefits MEWA. Its managing member (and only member) is Golub, who is also the trustee of the plans in the MEWA. Under the rules for such plans, both Sequoia and Golub are parties-in-interest to the plans.

Sequoia and Golub have a great deal of discretionary power over the plans, since they determine the contributions necessary, choose the insurance providers, and set other program costs. The agreements for the plans do not specify the compensation for these services. “Instead,” the complaint alleges, Sequoia and Golub “have exercised discretion in setting their own compensation by arranging for commissions to be paid to themselves from the insurers…”

Since they are fiduciaries, their negotiations are supposed to be done in the interest of the plans’ participants. However, their commissions are a percentage of plan funds paid to the insurers. The complaint claims that “this arrangement creates a perverse incentive for [Sequoia and Golub] to allow (or cause) the cost of the program’s benefits to increase in order to increase the amount of compensation” they earn.

The complaint quotes ERISA rules on prohibited transactions and alleges, “Under these rules, a welfare plan fiduciary … is prohibited from receiving commissions from insurance companies with whom the fiduciary places coverage.” Also, the complaint alleges, “Prohibited transactions likewise may occur if a welfare plan fiduciary, including a MEWA fiduciary, exercises discretion over his own compensation or contracts with entities he owns on behalf of participating plans.”

Fiduciaries are supposed to carry out their duties solely in the interests of the participants and beneficiaries of the plan. The complaint alleges that Sequoia and Golub violated ERISA by receiving improper commissions and authorizing excessive administrative fees.