Verde Energy USA Unwanted Telemarketing Calls TCPA Class Action

Verde Energy USA, Inc. is an energy supply company. The complaint for this class action alleges that Verde tries to find customers by telemarketing in violation of the Telephone Consumer Protection Act (TCPA)—and that this is not the first time it has been sued for violating the Act.

The TCPA makes it unlawful for telemarketers to place non-emergency calls to consumer cell phones, using automatic telephone dialing systems (ATDSs) or artificial or prerecorded voices, unless it has the prior express written consent of the consumers to receive such calls. The complaint says, “Ultimately, [Verde] is responsible for verifying telephone number ownership and obtaining consent before placing prerecorded calls to residential telephone subscribers.”

The plaintiff in this case, Mark Metzler, received an unsolicited, prerecorded call from Verde on his cell phone on December 28, 2019. The recording said that the call had been made to offer Metzler discounted electricity and gas. Metzler pressed “1” as requested to reach a live person. The person identified himself as “Tom” and said he was calling from Verde Energy. He told Metzler he could receive 20% off his electricity bill.

A few minutes after this call, Metzler received another unsolicited, prerecorded call on his cell phone. Again, Metzler spoke to a representative who said he was calling from Verde. The representative asked him for his electrical utility information.

The complaint alleges that Metzler had never given his permission for Verde to call him on his cell phone. His cell phone number has also been on the National Do Not Call Registry since 2010.

Two classes have been proposed for this action.

The No Consent Class is all persons in the US who, between March 25, 2016 and March 25, 2020, were sent a prerecorded message from Verde or someone acting on Verde’s behalf, to their cell phone numbers, that were not for emergency purposes and for which Verde had not obtained the persons’ prior express written consent.

The Do Not Call Registry Class is all persons in the US who, from March 25, 2016 on, (1) were sent a prerecorded message by or on behalf of Verde (2) more than once within any twelve-month period (3) where the persons’ phone numbers had been listed on the National Do Not Call Registry for at least thirty days, (4) for the purpose of selling Verde’s products and services, and (5) from whom Verde claims either that it did not obtain prior express written consent or from whom it obtained prior express written consent in the same manner as it supposedly obtained it from the plaintiff in this case.

Northstar End of THE Program for Student Loan Repayment Class Action

It’s great that a student loan company would offer a program to its borrowers with advantages if they pay on time. But can the company then terminate the arrangement at will? The complaint for this class action claims that the program offered by Northstar Education Finance, which does business as Total Higher Education (THE), is “a material and binding term” of the loans offered by THE.

The class for this action is all persons and entities in the US who obtained or co-signed a student loan held by Northstar or a wholly-owned subsidiary of Northstar at the time of the resuspension of the THE program around February to March 2020.

Northstar began offering this THE program in 2001. It consisted of a kind of credit to borrowers, that effectively lowered interest rates for those who were no more than fifty-nine days late in making interest payments. According to the complaint, borrowers accepted the offer as part of their loan agreements.

However, in February 2008, Northstar suspended the THE program, an action that the complaint calls “its first unilateral breach of its loan agreements.” The reason Northstar gave for the suspension was “the ongoing disruption in the global markets”—which the complaint calls “a condition or option neither contained in, nor otherwise incorporated into[,] Northstar’s contracts…”

A class action was filed, and Northstar settled it in December 2009. The settlement agreement required Northstar to honor its THE Program for the remaining life of its loans.

Recently, in February 2020, Northstar again suspended the THE Program. This time, the reason was “changes in economic conditions.” The complaint calls this “a breach of both [Northstar’s] contracts and its settlement agreement … as well as an unfair and/or deceptive trade practice.”

The plaintiff in this case, Demian Oksenendler, researched a number of different companies that offered student loans to finance his law school education. The complaint says he chose Northstar “for one benefit alone—it offered a ‘bonus’ program, wherein for every payment paid in full and on time, he, as the borrower, would receive an additional payment or credit on his loan account, made by Northstar…”

According to the complaint, he even contacted the company to ask a representative to confirm that his understanding of the THE program was correct. The complaint says, “At no time did Northstar disclose to [Oksenendler] … that it could revoke” the program for any reason.

After graduation from law school in 2004, he consolidated his student loan debt with Northstar, again because of the THE program benefit.

When Northstar settled the class action about suspension of the program, the complaint says, the notice document assured him that the reinstatement of the program was the “core settlement benefit” from the case. Yet in 2020, Northstar again suspended the THE program. The complaint alleges that this is a breach of the earlier settlement agreement.

PHH Mortgage Processing Fees for Payments Florida Class Action

The complaint for this class action cites charges made by PHH Mortgage Corporation (which does business as PHH Mortgage Services) when customers pay their mortgages online or by telephone. The complaint claims that this extra charge is unlawful and brings suit under the Florida Consumer Collection Processes Act (FCCPA).

Plaintiff Vincent J Morris owns a home in Hollywood, Florida that he purchased with a mortgage. The mortgage is serviced by PHH, which is a subsidiary of Ocwen Financial Corporation.

When Morris paid his mortgage in April, May, and October 2019, he was charged a $17.50 processing fee for paying the mortgage over the phone or online. For his payments in June, July, August, September, November and December 2019, and January and February 2020, he was charged a $7.50 fee. These fees are identified on Morris’s mortgage statements as “SpeedPay.”

According to the complaint, “The Mortgage does not expressly provide for or authorize charging processing fees for making payments online or over the phone. Furthermore, such processing fees are not expressly authorized by Florida law.”

The complaint looks at the mortgage as a debt and argues that PHH cannot keep those fees: “Where, like here, neither the contract creating the debt nor applicable law expressly authorizes the charging of processing fees, such as those charged by PPH, such fees have been held unlawful because they violate the FCCPA when the debt collector retains any portion of the fee instead of passing the entire fee through to the payment processor.”

PHH does not pass the entire fee on to a payment processor, the complaint claims, and instead retains a substantial portion of it. Also, no such third-party processor is mentioned in any documentation that would explain to Morris who that fee goes to. Also, the complaint says, “It is well known in the payment processing industry (but not by the general public) that third-party processors charge a small fraction of the amounts PHH charges as ‘processing fees.’ [PHH’s] records will demonstrate the exact amount PHH retains for each processing fee charged.”

Three subclasses have been defined as the Florida Class for this action.

  • The FCCPA Subclass is all individuals in Florida who, during the applicable limitations period, paid a processing fee to PHH for paying over the phone or online in connection with any residential mortgage loan owned or service by PHH.
  • The Breach of Contract Subclass is all individual in Florida who, during the applicable limitations period, paid a processing fee to PHH for paying over the phone or online in connection with any residential mortgage loan owned or service by PHH.
  • The Unjust Enrichment Subclass is all individuals in Florida who, during the applicable limitations period, paid a processing fee to PHH for paying over the phone or online in connection with any residential mortgage loan owned or serviced by PHH.

    Employees of PHH, the court, and Morris’s counsel are excluded from the class.

Mountain West Insurance Withholds Overhead and Profit Montana Class Action

Mountain West Farm Bureau Mutual Insurance Company is an insurance provider in Montana. Plaintiffs Jodie and Andy Drange insured their home with Mountain West. When they suffered a covered loss, the complaint for this class action alleges, Mountain West “withheld overhead and profit on the claim unless and until it was incurred.”

The Profit and Overhead Class for this action is all Mountain West policyholders in Montana who made a claim for damage to their real property between March 26, 2016 and March 26, 2020, where Mountain West provided money to policyholder but did not pay overhead and profit until and/or unless it was incurred.

What does this mean?

“Overhead and profit,” sometimes abbreviated as O&P, can be a component of repair and replacement costs. When general contractors create repair or rebuild estimates, O&P may be a line item, calculated as a percentage of the costs of the job. It is most common on jobs when the contractor must supervise and coordinate workers in several different trades, such as carpenters, electricians, and plumbers.

Overhead includes operating expenses for maintaining necessary equipment and facilities, such as offices, trucks, and advertising; profit is the margin that allows a contractor to make a living.

The complaint does not specify when O&P costs are or are not incurred, but it’s likely that this happens during the actual repair or replacement of the damage to the property. If, for example, a garage burns down, the O&P costs are not incurred until the owner has it replaced. If the owner decides not to replace it, the O&P costs are not incurred because no general contractor assembles the needed workers or performs the job of rebuilding it.

In this case, plaintiffs Jodie and Andy Drange suffered a loss to their Montana property on May 21, 2016. The complaint says the Dranges and Mountain West “eventually agreed on a scope and repair cost of the loss…” However, Mountain West “withheld profit and overhead on the claim unless and until it was incurred.”

The complaint notes that Mountain West “did not cite to any insurance contract provision as the basis for withholding profit and overhead on the claim until it was incurred, nor did they cite any regulation of law for such refusal.” According to the complaint, this refusal to pay until the cost was incurred “violates the Montana Insurance Regulations governing the handling of insurance claims.”

The complaint alleges that Mountain West engaged in deceptive and unfair trade practices and asks for a declaration that the company’s practices violates Montana law.

Titan Mutual Lending Unwanted Cell Phone Calls TCPA Class Action

Congress passed the Telephone Consumer Protection Act (TCPA) to help protect the privacy of ordinary people by forbidding telemarketers from intruding on them without their permission. The complaint for this class action alleges that Titan Mutual Lending, Inc. does not comply with the law in its telemarketing.

The volume of unwanted telemarketing calls had risen at the time the TCPA was passed because of the ready availability of automatic telephone dialing systems (ATDSs). Congress said, “Banning such automated or prerecorded telephone calls to the home, except when the receiving party consents to receiving the call or when such calls are necessary in an emergency situation … is the only effective means of protecting telephone consumers from this nuisance and privacy invasion.

Two provisions of the law in particular were designed to help protect consumer privacy.

One was to prohibit telemarketers from calling consumer cell phones, using ATDSs or artificial or prerecorded voices unless the telemarketers had the consumers’ prior express written consent to receive such calls.

The other was the establishment of a National Do Not Call Registry, where consumers could place their numbers indicating that they did not want to receive telemarketing messages.

The phone on which plaintiff Thane Charman received telemarketing calls from Titan Mutual was both (1) a cell phone, and (2) on the National Do Not Call Registry. Nevertheless, Charman received a number of unwanted calls from Titan Mutual between December 29, 2019 and April 25, 2019.

When Charman answered one of the calls, he heard a pause before the line connected to a live person. This, the complaint says, is a sign that the call was made through the use of an ATDS.

The calls were not made for an emergency, and Charman had never given Titan Mutual his prior express written consent to receive telemarketing calls.

Two classes have been defined for this action.

The Automatic Dialing System (ATDS) Class is all persons in the US who received a call on their cell phones from Titan Mutual Lending or its agents or employees, where the call was placed through the use of an ATDS or prerecorded voice, between March 24, 2016 and March 24, 2020.

The National Do Not Call Registry Class is all persons in the US to whose residential or cellular number Titan Mutual Lending or anyone acting in its behalf made more than one call in a twelve-month period to promote Titan’s goods or services, where that number had been on the National Do Not Call Registry for at least 31 days, at any time between March 24, 2016 and the present.

Hilton Worldwide Too Much Info on Receipts FACTA Class Action

The Fair and Accurate Credit Transactions Act (FACTA) was passed quite a few years ago—in 2003, in fact. Companies were given three years—until December 2006—to comply with its requirements. The complaint for this class action alleges that many years later, in December 2019, Hilton Worldwide Holdings, Inc. had still somehow managed not to bring its consumer point-of-service receipt equipment up to date.

FACTA was meant to help protect consumers from identity theft and credit or debit card fraud. For example, as one previous case found, Congress was attempting to “restrict the amount of information available to identity thieves.” It does this by forbidding merchants from printing more than the last five digits of their credit or debit cards, or the cards’ expiration dates, on the paper receipts printed for them at the point of sale for their transactions.

In this case, plaintiff Kevin Rouse made a number of purchases with his credit or debit card at the Hilton Fiji Resort & Spa, including at its Deli Restaurant and Jack’s of Fiji, on Denarau Island, Fiji. At each of these transactions, Rouse received a point-of-sale printed receipt which displayed both the first four and last four digits of his credit or debit card.

The complaint reviews the history of FACTA, pointing out how quickly Visa, American Express, and other card companies amended their rules for merchants to require compliance with the law. The complaint also says, “During the three-year phase-in period, there was extensive publicity regarding the law’s requirements.” Trade associations also undertook to inform their merchant members of FACTA’s requirements.

Even with all this, many companies were not ready to comply with the law by December 2006. Congress then passed the “Credit and Debit Card Receipt Clarification Act to give merchants some amnesty and extend the date of some aspects of compliance to June 3, 2008.

The complaint thus contends that by 2009, Hilton had adequate notice and time to prepare to comply with the law and should not have been printing so many card digits on receipts.

The class for this action is all persons to whom Hilton Worldwide Holdings provided an electronically-printed receipt at the point of sale or transaction, where the transaction occurred between March 25, 2018 and March 25, 2020, on which Hilton printed (1) more than the last five digits of the person’s credit or debit card number or (2) the expiration date of the person’s credit card number.

Amazon Corporate Improper COBRA Notice Class Action

The complaint for this class action begins with an overview statement: “[Amazon Corporate, LLC], the plan sponsor and plan administrator of the Amazon Group Health & Welfare Plan … has repeatedly violated ERISA by failing to provide participants and beneficiaries in the Plan with adequate notice, as prescribed by COBRA, of their right to continue their health insurance coverage following an occurrence of a ‘qualifying event’ as defined by the statute.”

ERISA is the Employee Retirement Income Security Act, which governs certain company benefits; COBRA is the Consolidated Omnibus Budget Reconciliation Act. COBRA’s purpose was, the complaint says, “to facilitate and assist individuals in electing continuation [health care] coverage should they so choose, not discourage them from doing so as Amazon’s does.

The complaint alleges that the COBRA notice form providing information on available COBRA benefits is improper. It alleges, “It is not written in a manner calculated to be understood by the average plan participant because it attempts to scare individuals away from electing COBRA by including an ominous warning suggesting that the submission of even “incomplete” information when electing COBRA may result in civil, or even criminal, penalties.”

It also “needlessly references a possible ‘$50 penalty from the IRS for each failure to provide an accurate tax identification number for a covered individual.’ This information is thrown into [Amazon’s] notice without context, much less with an explanation of why potential criminal penalties, or IRS penalties, are somehow relevant to the COBRA election process.”

The COBRA notice is important enough to have its own regulations set forth by the Secretary of Labor. This is because health insurance is important and workers can’t be presumed to know if and when they may choose to continue coverage when they are laid off or have some other “qualifying event.” It is important enough that the Department of Labor has put out a Model COBRA Continuation Coverage Election Notice. The law also sets penalties for not complying with the notice requirements.

Instead of using the Model Notice, the complaint says, Amazon “deliberately authored and disseminated a notice which omitted critical information required by law and needlessly included language meant to deter and otherwise ‘chill’ election of COBRA benefits, which are expensive for an employer.

Among other things, the notice also provided conflicting dates by which the election had to be made and did not identify the Plan Administrator.

The class for this action is all participants and beneficiaries in Amazon Corporate’s health plan who were given the COBRA notice, in the same form as sent to the plaintiff in this case, during the applicable statute of limitations period, due to a qualifying event, who did not elect COBRA.

Fedex Ground Warehouse Workers California Labor Class Action

This class action brings suit against Fedex Ground Package System, Inc. for violating California’s Labor Code and its Industrial Welfare Commission’s wage orders in its treatment of hourly, non-exempt warehouse employees. The allegations involve payment for all hours worked, meal and rest breaks, and the “downstream” effects of these that lead to other violations.

First, the complaint alleges that employees were forced to go through security screening at the beginning and end of their shifts and any time before and after they left the premises for meal or rest breaks. The time spent on this practice was not included in their clocked time for the week.

Second, if the time spent on this practice caused them to go into overtime—with more than eight hours worked in a day or more than forty worked in a week—they were not paid overtime wages.

Third, employers must give employees meal and rest breaks at specified intervals. If the employee is not relieved of all duties during these time, or if the employee is not free to leave the workplace, it is considered time worked. An employer who fails to provide this fully-off-duty meal break, the complaint says, “must pay the employee one hour of pay at the employee’s regular rate of compensation for each work day that a legally required meal period was not provided or was not duty-free.” The complaint alleges that the requirement to go through the security line reduced their meal and rest breaks.

These violations lead to “downstream” violations. According to the complaint, the employees did not receive accurate, itemized statements because the company did not recognize the extra time spent clocking in and out and its infringement on meal and rest breaks. Furthermore, since this time was not recognized, they did not receive all wages they were due at separation.

The classes for this action include an Overtime Class consisting of all current and former non-exempt warehouse employees required to pass through Fedex’s mandatory security checks employed in California, at any time between March 25, 2016 and the date that the notice is mailed in this case, who were not paid overtime wages for all overtime hours worked in excess of eight per day or forty per week or on the seventh consecutive day of work.

The complaint also proposes a Meal Period Class, a Rest Period Class, a Wage Statement Class, and a Waiting Time Class. For more details of these classes, see page 12 of the Complaint linked below.

Smucker’s Caramel Flavored Syrup Labeling Class Action

A number of recent class actions has addressed the flavoring and labeling of “vanilla” products, such as vanilla ice cream or vanilla almondmilk. This class action, from the same law firm as the “vanilla” ones, is somewhat more intricate. It concerns caramel syrup from the JM Smucker Company (or Smucker’s brand caramel syrup), discusses “vanilla notes” in its flavoring, and whether the vanillin in it should require the label designation that it’s “artificially flavored.”

The classes for this action are all those who bought the product in New York and the other forty-nine states during the applicable statute of limitations and a national class where applicable.

The complaint reproduces an image of the Smucker’s brand caramel syrup, which shows a scoop of vanilla ice cream with caramel syrup running over it and, behind that, what may be a vanilla milkshake laced with caramel syrup. The flavor designation on the label is “Caramel Flavored Syrup.”

Caramel syrup is made from “granulated sugar cooked until it caramelizes, combined with butter, heavy cream and vanilla extract,” the complaint says, and further notes, “The type of caramel flavor depends on its intended usage, such that a caramel flavor may have more than one recognizable flavoring notes, i.e., ‘buttery,’ ‘maple,’ and/or ‘vanilla.’” It claims that the Smucker’s product is “shown by its front label images to be an addition to vanilla ice cream and a vanilla milkshake.”

How does this all fit together? The complaint goes on to say, “Vanilla is known to produce a sensation of creaminess, which enhances the smoothness and richness as part of a caramel flavor…. Reasonable consumers will expect defendant’s Caramel Flavored Syrup to have strong vanilla notes.”

The complaint argues that vanilla notes are part of the dominant or ideal characteristics of a caramel flavor and that, “given the depiction of use with vanilla ice cream and a vanilla milkshake, consumers will expect it to have vanilla notes which contribute to its characterizing caramel flavor.”

The ingredient panel for the product lists “Vanillin (Artificial Flavor).” The complaint claims that “If a product contains ‘any artificial flavor which simulates, resembles or reinforces the characterizing flavor,’ it must be identified in the flavor designation on the front label.”

From this it argues, “Because vanilla is known for enhancing the flavor of caramel, it is misleading to not designate the product as ‘Artificially Flavored Caramel Syrup.’” Further, it says, “By not identifying the Product as being artificially flavored, consumers will expect the Product only contains natural flavors, which are preferred…”

Citizens and Farmers Bank Improper Overdraft, NSF Fees Class Action

This is one in a line of class actions filed over the allegedly improper imposition of fees on checking accounts by banks and credit unions. The complaint alleges that Citizens and Farmers Bank assesses overdraft (OD) fees on certain transactions even when accounts were never overdrawn.

Plaintiff Jeffrey Minter lives in Virginia and has an account with Citizens and Farmers. The complaint alleges that at times the bank charges OD fees on certain debit card transactions that did not actually overdraw Minter’s account. The complaint claims the charges are imposed on what are called “Authorize Positive, Purportedly Settle Negative” (APPSN) transactions.

When an accountholder tries to make a debit card transaction, if the account has sufficient funds, their bank will authorize it. It will then set aside the amount of the transaction, and the accountholder’s available balance will then show the amount in the account minus the amount of the transaction. The complaint says, “As a result, customers’ accounts will always have sufficient available funds to cover these transactions because Citizens and Farmers has already sequestered these funds for payment.”

However, the bank may not settle the transaction—actually send the funds to the other party in the transaction—for several days. What happens with other transactions in those intervening days? The complaint quotes the bank’s Deposit Agreement as saying, “If another transaction is presented for payment in an amount greater than the funds left after the deduction of the temporary hold amount, that transaction will be a nonsufficient funds (NSF) transaction if we do not pay it or an overdraft transaction if we do pay it…”

The complaint alleges, “The account documents misconstrue Citizens and Farmers’s true debit card processing and overdraft practices.” That is because, the complaint says, of a “secret” batch posting process. “Specifically, Citizens and Farmers releases the hold on funds for the transaction for a split second, putting money back into the account, then re-debits the same transaction a second time.” This second time, the transactions may post into an overdrawn account, because of intervening transactions.

The complaint alleges that this is unfair and counter to the statements in the account documents. In addition, it claims that the bank charges more than one NSF fee on the same item if it is presented again.

Two classes have been defined for this class action.

  • The APPSN Class is all consumers who, within the applicable statute of limitations, were charged OD fees on APPSN transactions in their Citizens and Farmers bank account.
  • The NSF Class is all consumers who, within the applicable statute of limitations, were charged more than one NSF fee on the same item in their Citizens and Farmers bank account.