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Pingora Mortgage Servicing Data Breach Class Action

This class action brings suit against two companies, Pingora Loan Servicing, LLC and Pingora Asset Management, LLC. The complaint alleges that the two companies bear responsibility for a data breach that took place near the end of 2021. The complaint alleges the data breach was able to take place because of Pingora’s “unlawful, willful and wanton failure to reasonably protect” the personally identifiable information (PII) stored in its systems.

The class for this action is all persons whose PII was compromised as a result of the data breach at Pingora, between October 27 and December 7, 2021.

Pingora provides loan servicing tasks for mortgage lenders, including duties such as payment collection. In this role, Pingora collects and keeps on file a great deal of PII related to the borrowers of the mortgages it services and their applications, modifications, and servicing.

Pingora discovered that unauthorized parties had intruded into its computer systems in December 2021. It hired third-party specialists to help it investigate the attack, and found that it had taken place between October 27 and December 7, 2021. Pingora reported that the PII exposed to the cybercriminals included names, addresses, Social Security numbers, loan numbers, and other information relevant to loan applications, modifications, and servicing.

Unfortunately, Pingora did not provide the individual victims with timely notice of the data breach. The two plaintiffs in this case, Michael Kassem and Kimberley Rowton, both were victims of the cybercriminals before they even received notice of the data breach.

Pingora was servicing a mortgage for Kassem that he had taken out in 2019. Among the PII he provided to Pingora were financial account information, investment account information, information on other loans, and employment and income information.

The complaint alleges, “In or around December 2021, Plaintiff Kassem was notified by the Georgia Department of Labor that someone had filed a fraudulent unemployment claim using his Social Security number. Kassem did not receive a notice of the data breach until around four months later, around April 2022.

For Rowton, Pingora was servicing a mortgage buyout that she had entered into sometime around April 2021. She had provided Pingora with financial account information and statements, investment account information and statements, information on other loans, and employment information such as W-2s and tax reports.

The complaint alleges, “In or around January 2022, Plaintiff Rowton became aware that someone had used her PII to access one of her investment accounts and fraudulently transferred money from it.” Rowtin did not receive a notice of the data breach until around three months after this event, around April 2022.

The complaint alleges that Pingora could have prevented the data breach. It quotes Lucy Thompson’s Data Breach and Encryption Handbook as saying, “In almost all cases, the data breaches that occurred could have been prevented by proper planning and the correct design and implementation of appropriate security solutions.”

Alacrity Solutions Group Data Breach Class Action

Every week brings more news of data breaches. This class action alleges that Alacrity Solutions Group, LLC (ASG) did not exercise reasonable care in trying to safeguard its clients’ personally identifiable information (PII), resulting in a data breach in or around March 2021. The complaint also faults ASG for not informing the individual victims until more than a year after the data breach occurred.

The Nationwide Class for this action is all persons nationwide whose private information was compromised in the data breach discovered on or around March 2021, and who were sent a notice of the data breach. A Texas Subclass has also been defined, for all those in the above class living in Texas.

ASG administers insurance claims for various companies. In this role, it obtains significant amounts of private information on the customers of its customers.

Disturbingly, the plaintiff in this case, Aldreamer Smith does not know the nature of her connection to ASG: “Plaintiff Smith maintains car and renter’s insurance for her home, but it unsure how Alacrity Solutions would have obtained her Private Information.”

Nevertheless, she received a notice of the “security incident” to inform her that her name and Social Security number had been compromised.

The notice, as quoted in the complaint, said that ASG had seen suspicious activity in its system on March 3, 2021. It engaged third-party forensics specialists to investigate: “This investigation determined that certain files on Alacrity Solutions’ systems could have been subject to unauthorized access and/or acquisition between March 1 and March 3, 2021, but not confirm which specific data was impacted.” ASG’s investigation then continued until sometime in February 2022.

According to the complaint, notices were not sent out until April 2022.

The notice offered victims a year’s worth of credit monitoring from Equifax, but the complaint notes that that was “ineffective” for Smith: “In order to receive the free credit monitoring services, Plaintiff Smith would have had to share additional sensitive private information with third parties connected to ASG.”

The complaint alleges, “In maintaining Plaintiff Smith’s Private Information, [ASG] expressly and impliedly promised to safeguard Plaintiff Smith’s PII.” However, the complaint claims, it did not take adequate measures to do so.

According to the complaint, ASG did not comply with the security guidelines for information set forth by the Federal Trade Commission.

Sandviks Discloses Subscribers’ Data Michigan Class Action

Are publishers allowed to earn money from information about their subscribers? The complaint for this class action sues Sandviks, Inc. for disclosing subscribers’ Private Reading Information during a particular time period, before Michigan’s Preservation of Personal Privacy Act (PPPA) was amended.

The class for this action is all Michigan residents who, at any point during the relevant pre-July 30, 2016 time period, had their Private Reading Information disclosed to third parties by Sandviks without their consent.

Sandviks operates subscription-based book clubs for those with children up to six years of age, such as Hooked on Phonics, Hooked on Reading, Dr. Seuss & His Friends, The Cat in the Hat’s Learning Library, National Geographic Kids, and Early Moments.

The complaint quotes a part of the PPPA as saying, “[A] person, or an employee or agent of the person, engaged in the business of selling at retail, renting, or lending books or other written materials … shall not disclose to any person, other than the customers, a record or information concerning the purchase … of those materials by a customer that indicates the identity of the customer.”

The plaintiff in this case, Teagan Lilly, subscribes to the Sandviks Early Moments book club. The complaint alleges that Sandviks disclosed subscribers’ information to “data aggregators, data appenders, data cooperatives, and list brokers, among others, which in turn disclosed her information to aggressive advertisers, political organizations, and non-profit companies. As a result, [Lilly] has received a barrage of unwanted junk mail.”

How do we know Sandviks was disclosing subscriber information to others? The complaint shows a listing from list broker NextMark, Inc., entitled “Early Moments Book Club Enhanced Masterfile” which makes available this the information of more than 250,000 US subscribers at a base price of $95 per thousand.

The complaint alleges, “By renting, exchanging, or otherwise disclosing the Private Reading Information of its Michigan-based subscribers during the relevant pre-July 30, 2016 time period, Sandviks violated the PPPA.”

According to the complaint, Sandviks did not tell Lilly that it discloses the Private Reading Material of its customers to others, and it did not get her authorization to share her information.

The complaint alleges that customer information is often sold to direct-mail advertisers. “In addition to causing waste and inconvenience,” the complaint alleges, “direct-mail advertisers often use customer information to lure unsuspecting consumers into various scams, including fraudulent sweepstakes, charities, and buying clubs.” Some of the information also finds its way to thieves and fraudulent telemarketers, the complaint alleges.

According to the complaint, the Federal Trade Commission (FTC) has also cautioned, “The elderly often are the deliberate targets of fraudulent telemarketers who take advantage of the fact that many older people have cash reserves or other assets to spend on seemingly attractive offers.” The complaint claims that “an entire black market exists where the private information of vulnerable elderly Americans is exchanged.”

The complaint contends that Sandviks is “jeopardizing its subscribers’ privacy and wellbeing in exchange for increased revenue[.]”

Flovent, Arnuity Ellipta, Ventolin Inhalers Patents Antitrust Class Action

When patents for name-brand drugs expire and generic versions are allowed to enter the market, drug prices fall for consumers. But this class action alleges that GlaxoSmithKline, PLC (GSK) has managed to keeps its exclusivity and high prices with schemes to avoid competition for its inhalers. The complaint claims that the company has managed to obtain thirty-five years of “uninterrupted patent and regulatory protection” for its Flovent and Arnuity Ellipta inhalers and sixty years of it for its Ventolin inhalers, through a process called “device hopping.”

The class for this action is all persons or entities in the US and its territories who bought or paid for some or all of the purchase price for Ventolin and Arnuity Ellipta inhalers, for consumption by themselves, their families, or their members, employees, insureds, participants, or beneficiaries, not for resale, between January 1, 1986 and the time the anticompetitive effects of GSK’s unlawful behavior end.

Inhalers contain prescription drugs inside a delivery device that administers the medicine. They are considered drug-device combinations and are the primary way of treating asthma and chronic obstructive pulmonary disease (COPD).

Inhalers are expensive; the complaint alleges they comprise five percent of the country’s net retail spending on prescription drugs.

Because they are complex products, the Food and Drug Administration (FDA) have special regulatory requirements before it will approve generic versions, the complaint alleges, in that “the FDA is prohibited from approving the generic version of that product until the patent protection [of the brand-name original] expires or is challenged and overturned.”

The patent protection period is twenty years and can be extended, the complaint says, “under unique regulations governing pharmaceutical patents.” One method of doing this, the complaint alleges, is a process known as “device hopping.” The complaint alleges, “Device hopping works by retiring a branded inhaler but placing the same active ingredients into a new ‘follow on’ branded inhaler with new patent and regulatory protection periods.”

The complaint contends that this works because “a generic version of a reference brand-name inhaler may only be approved for that specific brand-name inhaler” and not for the follow-on version.

This is why, the complaint contends, GSK has managed to have a thirty-five-year period of exclusivity for its Flovent and Arnuity Ellipta inhalers and a sixty-year period of exclusivity for its Ventolin inhalers.

The complaint alleges that GSK has “used its unlawfully[-]obtained market exclusivity to charge artificially[-]inflated prices for inhalers.”

The counts include violations of the federal antitrust Sherman Act and state antitrust statutes, as well as unjust enrichment.

Avanir Encouraged Nuedexta Use for Off-Label Purposes Class Action

When drugs are approved by the Food and Drug Administration (FDA), they are approved for specific uses, to treat specific diseases or problems. The complaint for this class action brings suit against Avanir Pharmaceuticals, Inc., which it claims attempted to market a drug called Nuedexta for other than its original uses, including, it claims, by offering kickbacks to doctors to prescribe it for other conditions.

A class and a subclass have been defined for this action:

  • The Nationwide Class is all third-party payors in the US and its territories and possessions that paid for Nuedexta, between 2011 and the present, where the Nuedexta was made, distributed, or sold by Avanir.
  • The subclass is all third-party payors that paid for Nuedexta prescriptiosn written by Dr. Deepak Raheja, between 2011 and the present, where the Nuedexta was made, distributed, or sold by Avanir.

Nuedexta is a drug that contains dextromethorphan hydrobromide and quinidine sulfate, which the complaint claims was tested and approved to treat a condition called pseudobulbar affect (PBA), a rare condition that affects only 0.5% to 2% of people in the US. People who have this condition may have bouts of uncontrollable laughing or crying that have nothing to do with their actual emotions.

PBA can occur in people who have multiple sclerosis (MS) and amyotrophic lateral sclerosis (ALS). That was the use for which the FDA approved Nuedexta, the complaint claims, but “it did not approve prescribing Nuedexta for patients with other types of emotional liability than can commonly occur in patients with Alzheimer’s disease and other dementias.”

But, presumably, a drug to treat a condition that occurs in only a half a percentage of the population will not be sold in great quantities. The complaint alleges, “Avanir “aggressively marketed and promoted Nuedexta by expanding the drug’s application to include treating PBA-like symptoms.”

Another step Avanir took, the complaint alleges, was paying for a study that associated Nuedexta with a decrease in PBA-like symptoms. The study’s authors were five doctors, but the complaint alleges that one was an employee of Avanir and the other for were paid by the company. Avanir then used the study to help sell the drug.

As if that weren’t enough, the complaint alleges, “Avanir also provided illegal kickbacks and incentives to doctors to prescribe Nuedexta[.]”

Eventually, the US Department of Justice filed a criminal action against the company for this activity, which the complaint claimed resulted in Avanir’s agreeing to a Deferred Prosecution Agreement (DPA). A copy of the DPA was attached to this class action complaint at the time of its filing.

The complaint is brought by plaintiff MSP Recovery Claims Series LLC, for itself and other third-party payors, who ended up providing payment for the drug under Medicare parts C or D.

Mercedes Brake Boosters and Corroding Housing Class Action

German cars have a reputation for exacting and superior engineering, but this class action questions that assumption. It sues Mercedes-Benz USA, LLC, Daimler North American Corporation, and their German parent companies about brake boosters and corrosion, claiming that Mercedes has done little to address the problem, although the complaint alleges that the companies have known about the problem for many years.

The class for this action is all persons and entities who bought or leased a class vehicle in the US, including its territories. A Florida Subclass has also been defined, for those who bought or leased their class vehicles in Florida.

The class vehicles include the following:

  • 2009 Mercedes-Benz GL320BTC
  • 2007-2008 Mercedes-Benz GL320CDI
  • 2010-2012 Mercedes-Benz GL350BTC
  • 2007-2012 Mercedes-Benz GL450
  • 2008-2012 Mercedes-Benz GL550
  • 2009 Mercedes-Benz ML320BTC
  • 2007-2008 Mercedes-Benz ML320CDI
  • 2006-2011 Mercedes-Benz ML350
  • 2010-2011 Mercedes-Benz ML350BTC
  • 2010-2011 Mercedes-Benz ML450H
  • 2006-2007 Mercedes-Benz ML500
  • 2008-2011 Mercedes-Benz ML550
  • 2007-2011 Mercedes-Benz Mercedes-AMG ML63
  • 2009 Mercedes-Benz R320BTC
  • 2007-2008 Mercedes-Benz R320CDI
  • 2006-2012 Mercedes-Benz R350
  • 2010-2012 Mercedes-Benz R350BTC
  • 2006-2007 Mercedes-Benz R500
  • 2008 Mercedes-Benz R550
  • 2007 Mercedes-Benz Mercedes-AMG R63.26

Mercedes uses the motto “The Best or Nothing,” but the complaint alleges that the company has had a number of recalls in recent years, including for Takata airbags, electrical grounding, and a different brake problem.

But identifying problems isn’t the only difficulty, the complaint alleges: “In November 2017, Consumer Reports found that of 19 automakers in the United States, Mercedes-Benz appears to be the worst when it comes to fixing recalled vehicles, having fixed only 2% of the vehicles recalled due [to] its use of deadly airbags.” It also quotes a November 2018 Consumer Reports article as reporting that US auto-safety regulators had “launched an investigation into whether Mercedes-Benz has been too slow to disclose safety defects and make needed repairs.”

The recall at issue in this case is a May 20, 2022 Mercedes recall involving certain Mercedes brake boosters. The complaint alleges, “When exposed to moisture, the brake booster housing corrodes and the function of the brake force is reduced[.]” It quotes the Part 573 Recall Report as saying that, where the corrosion is severe, “the connection between brake pedal and brake system would fail” completely, which poses a significant threat of a crash or injury.

The recall may be recent, but Mercedes’s knowledge of the problem may not be. The complaint alleges that the company issued a Technical Service Bulletin (TSB) to its dealers in June 2009 on corrosion and brake components, and most likely knew about the problem earlier than that because of testing, failure mode analysis, reports to dealers, and complaints to the National Highway Traffic Safety Administration (NHTSA).

Despite all this, the complaint alleges, Mercedes has “concealed this information, delayed issuing a recall, and still to this day has not sent notification letters to owners of the defective vehicles.”

West Bend Mutual Improper Depreciation of Labor Class Action

When an insurance company calculates a payout for property damage, what part of the replacement value gets depreciated? The complaint for this class action alleges that West Bend Mutual Insurance Company improperly depreciates the cost of labor for replacing or restoring the property, even though labor does not depreciate.

West Bend offers property coverages for homes and businesses in Illinois, Kentucky, Missouri, Ohio, Tennessee, Virginia, and Wisconsin. The complaint alleges that the laws in these states are nearly identical as they pertain to the matters in this case. This class action covers coverage for buildings and structures only—not for their contents—and only in cases where West Bend itself chose to calculate the actual cash value (ACV) exclusively according to the replacement cost less depreciation methodology.

The plaintiff in this case, No Joke, Inc., has property in Loves Park, Illinois that it insured with West Bend. On or around April 7, 2020, the complaint says, the property was damaged and required replacement or repair.

When West Bend calculates its ACV payments for its policyholders, the complaint alleges, it first estimates the amount needed to repair or replace the damage with new materials. This is the replacement cost value (RCV), from which West Bend subtracts the estimated depreciation.

According to the complaint, West Bend uses a computer program called Xactimate to estimate RCV and depreciation, as well as ACV. The complaint alleges, “West Bend’s adjuster determined that No Joke had suffered a covered loss in the amount of $49,041.78 (the RCV) to its property.” To calculate the ACV payable to No Joke, the complaint claims, “West Bend subtracted from the RCV estimate the deductible plus an additional amount of $6,113.89 for depreciation.”

But the complaint alleges that No Joke was underpaid because, it says, West Bend withheld depreciation on both the costs of materials and labor to repair or replace No Joke’s property. The complaint alleges that West Bend should not have withheld depreciation and further claims that the Xactimate software allows a choice as to whether to depreciate materials and labor or materials only.

The class for this action is all West Bend policyholders (1) who made a structural damage claim for property located in Illinois, Kentucky, Missouri, Ohio, Tennessee, Virginia, or Wisconsin, (2) for which West Bend accepted coverage and then chose to calculate actual cash value exclusively pursuant to the replacement cost less depreciation methodology and not any other methodology, such as fair market value, (3) which resulted in an actual cash value payment during the class period from which non-material depreciation was withheld from the policyholder; or which should have resulted in an actual cash value payment but for the withholding of non-material depreciation causing the loss to drop below the applicable deductible, for the maximum limitations period as may be allowed by law.

Signature Care “Rapid Release” Acetaminophen Gelcaps Class Action

This class action sues Albertsons Companies, Inc., as well as Safeway, Inc., Better Living Brands, LLC, and LNK International, Inc., which it claims are responsible for two generic medicines under the Signature Care brand: Signature Care Rapid Release Gelcaps and Signature Care PM Rapid Release Gelcaps. The complaint alleges that, despite being marketed and labeled as “rapid release,” the gelcaps actually dissolve more slowly than the companies’ acetaminophen in traditional tablet and caplet form.

A class and a subclass have been defined for this action:

  • The Nationwide Class is all persons in the US who, between the beginning of the applicable limitations period and the date of final judgment in this case, bought any of the products at issue in this case.
  • The California Subclass is all members of the above class who, between the beginning of the applicable limitations period and the date of final judgment in this case, bought any of the products at issue in this case in California.

According to the complaint, a different company, Johnson & Johnson, introduced two products under the Tylenol brand in the 2000s. One was Tylenol Extra Strength Rapid Release Gels; the other was Tylenol PM Rapid Release Gels. Marketing for the products claimed that the gelcaps were “specially designed with holes to allow the release of powerful medicine even faster than before.”

Tylenol is a brand name for a drug generally known as acetaminophen. The complaint alleges that the two Signature Care products are other versions of these two acetaminophen products.

But the complaint alleges that Albertsons and the other companies responsible for the Signature Care products mislead consumers “about the nature, quality, and effectiveness of the Products.” This is because, despite the “Rapid Release” name, the complaint claims, the gelcaps actually dissolve more slowly than other, more traditional tablets and caplets and do not provide faster pain relief.

A 2018 study, the complaint alleges, shows that the generic acetaminophen rapid release gelcaps sold by a number of companies dissolve more slowly than other non-rapid-release products. The complaint quotes the study as saying, “Results indicate that acetaminophen gelcaps marketed as rapid or fast-release are slower acting under in vitro dissolution conditions compared to the company-matched tablet dose.”

The complaint alleges that the rapid-release gelcaps sell at a higher price than the regular pills. According to the complaint, the companies make the rapid-release claims “to induce consumers to pay more than they would pay for other comparable products that are not falsely labeled with Rapid Release Claims…”

Dorrance Publishing Hidden Sales Figures, False Royalties Class Action

How do writers know whether they are getting proper royalties on their books? The complaint for this class action alleges that Dorrance Publishing Company, Inc. hides true sales figures from its writers, telling them that their books have sold only a few copies, and does not pay them the royalties they are due.

The class for this action is all natural persons living in the US who entered into a contract with Dorrance Publishing company or any of its affiliates (I-Proclaim Books, Red Lead Press, Rose Dog Books, or Whitmore Publishing company) and who were due to receive commissions from sales of books, between May 19, 2016 and May 19, 2022, where Dorrance did not pay those commissions.

In 2008, the plaintiff for this class action, Tina M. Lockhart, published her young-adult novel Ten Houses Filled with Leaves with Dorrance. The complaint alleges that the contract said that Dorrance would “publish, print, market and distribute” the book, in exchange for 60% of its domestic sales and 75% of its international sales. Lockhart also paid Dorrance $8,000, the complaint claims.

Dorrance controlled the sales data for the book, the complaint alleges, and did not provide her with detailed sales reports.

In 2015, the complaint claims, Dorrance terminated the contract with Lockhart, telling her that only nine copies of the book had been sold. However, the complaint says Lockhart eventually found an Amazon feature called Author Central that tells authors how many units have been sold.

According to the complaint, when she looked at the domestic sales report for her book for the four-week period of April 9 through May 6, 2012, she “was shocked to see that Amazon was reporting 51,133 copies of her novel sold in that four-week period.” With a cover price of $11, the complaint figures that this amounted to $562,463 in gross sales, with 40% of that, or $244,985, due to her.

“However,” the complaint alleges, “consistent with its fraudulent pattern and practice, [Dorrance] reported zero sales for that same period, and paid no royalties to [Lockhart].”

The complaint reproduces other online postings complaining about Dorrance for similar reasons:

  • “ [A]ll I want is proof[,] real proof[,] because on [A]mazon it showed as my books being sold out and restock coming soon…. I want to know why they [can’t] provide paperwork or proof coming from the vendors…”
  • “I know for sure the number of books which were sold through Amazon, [Barnes] and Noble, Walmart and in other countries are more than … reported to me.”
  • “Rosedog Publishing swears no books have been sold, but I know of so many books being bought… I even had a Melbourne, Australia city library buy the book because I saw it on their shelves myself…”
  • “…I bought my own book, so how can they say there were no sales?”

At the time of filing, the complaint claims Lockhart has been paid only $10.20 by Dorrance.

Penuma Penis Implant Pain and Scarring Class Action

According to the complaint for this class action, Dr. James Elist promotes himself as the “Thomas Edison of penis surgeries,” having invented the Penuma device, a silicone implant designed to enlarge penis size. Elist and the companies associated with the device advertise it as being “FDA-cleared,” the complaint says, but it claims that the device is neither safe nor effective.

The class for this action is all individual in the US, including its territories and the District of Columbia, who bought a Penuma device and implantation, and whose procedures were performed by Dr. James Elist at the Beverly Hills South Pacific Surgery Center, between May 19, 2018 and the date the class is certified in this case.

According to the complaint, medical devices like the Penuma are subject to the Medical Device Amendments of 1976 (MDA) to the Food, Drug and Cosmetic Act (FDCA). In keeping with that, the complaint suggests that the Penuma should have been subject to a rigorous scientific review and premarket approval (PMA) process by the Food and Drug Administration (FDA).

However, the complaint claims that the Penuma did not go through that process, but was grandfathered in: “Manufacturers seeking a less stringent review can thus avoid the FDA’s thorough, scientific PMA process by showing that their devices are ‘substantially equivalent’ to devices that were already on the market in 1976.” Thus, the complaint claims that the device was “FDA-cleared” without the rigorous testing usually required for such devices.

But according to the complaint, the Penuma was cleared only “for use in the cosmetic correction of soft tissue deformities” and not for the enlargement of normal, healthy penises.

The plaintiff in this case, Edward Peña, claims to have had “a normal, healthy penis” with no soft-tissue deformity. In reading the advertising for the Penuma, he says he believed it had been approved by the FDA and was safe for enlarging normal penises. He had the surgery in October 2021.

After the surgery, the complaint alleges, his penis had “no feeling on the top of the shaft and pain on the bottom of the shaft. Two corners of the implant began sticking out…” The complaint alleges he had pain during intercourse and that ‘[t]he implant eventually punctured the skin and poked out through a small hole, through which fluid discharged.” The implant interfered with his sleep, the complaint claims, and gave him painful erections.

Peña eventually had the implant removed, but the complaint alleges he “has continued to suffer complications, including retraction, loss of sensation, and scarring.” The complaint alleges that the implant sometimes even makes penises shorter, because of the scar tissue it causes.

The complaint brings suit against Elist and various related companies associated with the device: International Medical Devices, Inc., Menova International, Inc., Gesiva Medical, LLC, and James J. Elist, MD, a Medical Corporation.