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Overby-Seawell and Fulton Bank Data Breach Class Action

Overby-Seawell Co. (OSC), the complaint for this class action alleges, provides services to Fulton Bank, NA. Both of these entities collect and maintain the personally identifiable information (PII) of their customers in the course of operating their businesses. However, the complaint alleges that they did not take adequate measures to maintain the privacy and security of this information and bear some responsibility for a recent OSC data breach.

The class for this action is all individuals living in the US whose PII was accessed or exfiltrated in the data breach announced by OSC in 2022.

Fulton Bank provides financial services to consumers in Pennsylvania, Maryland, Delaware, New Jersey, and Virginia. OSC provides Fulton with various services, including making sure that Fulton Bank’s residential mortgage customers keep up the property insurance on their homes.

“According to OSC’s Notice of Data Event…” the complaint says, “OSC discovered suspicious activity on their computer systems on July 5, 2022. OSC conducted an investigation which concluded that ‘unauthorized access’ to their servers began on May 26, 2022; and that on July 11, 2022, their investigation concluded that PII was stolen from OSC’s network.”

The complaint claims that the information that the defendants did not safeguard includes names, addresses, loan information, and Social Security information.

The complaint alleges that the scope of the data breach has not been revealed and alleges that “the victims in this Action could number well into the millions, as numerous OSC banking clients were implicated in this Data Breach, including Defendant Fulton Bank, as well as at least one more bank (KeyBank).”

The defendants had an obligation to protect the PII, the complaint alleges: “As sophisticated institutions that collected, stored, and maintained the PII of Plaintiff and Class Members, [Fulton and OSC] owed Plaintiff and Class Members numerous statutory, regulatory, contractual, and common law duties and obligations, including those based on their affirmative representations” that they will keep the information in their care safe.

Also, the complaint alleges, that when customers gave their PII to the bank, they “reasonably expected and relied upon Fulton Bank to ensure that third[-]party vendors to whom it entrusted their PII, like OSC, maintained adequate data security and retention systems.”

According to the complaint, the PII held by OSC “was not encrypted or was not adequately encrypted” before the data breach took place: “Had the PII been properly encrypted, the cybercriminals would have accessed and ‘stolen’ only useless, unintelligible data.”

The complaint alleges that the companies should have foreseen the data breach, in light of the many other data breaches taking place these days. Despite this, the complaint alleges, they did not comply with data standards set forth by the Federal Trade Commission, comply with the Graham-Leach-Bliley Act, or meet industry standards for data security.

Lysol Laundry Sanitizer Offers No More Than Normal Laundering Class Action

Reckitt Benckiser, LLC owns the Lysol brand, which offers a Laundry Sanitizer that it advertises as “Kill[ing] 99% of Bacteria.” But the complaint for this class action alleges that this claim is misleading, because, it says, normal laundry practices already take care of any bacteria on clothing.

Two classes have been proposed for this action:

  • The New York Class is all persons in New York who bought the product during the applicable statutes of limitations.
  • The Consumer Fraud Multi-State Class is all persons in New Mexico, West Virginia, Iowa, Arkansas, Wyoming, Utah, Montana, Idaho, and Alaska who bought the product during the applicable statutes of limitations.

Page 1 of the complaint shows an image of the container for the Lysol Laundry Sanitizer, showing the claim “Kills 99% of Bacteria” on its front label.

The first objection raised by this complaint is that of need, that is, that the product pretends to answer a need that does not exist, because “no credible and accepted studies on domestic laundry practices indicate that the spread of bacteria and/or infection from laundry is a potential risk of bacteria transmission.”

Another consideration is that Americans normally use hot water for laundering clothing, at temperatures of around 140 degrees Fahrenheit. “At hot and warm temperatures,” the complaint alleges, “the washing process inactivate microorganisms, accelerates the activation of detergents and facilitates the mechanical removal of soil and other particulates.”

Nothing on the Lysol container, the complaint says, tells consumers that standard laundry practices already get rid of 99.9% of bacteria in clothing.

But the complaint admits that the product gives an indirect hint of this on the back, which contains the statements, “Works in Cold Water” and “When you wash your clothes in cold water, bacteria can survive.” But because this is only placed on the back of the product, the complaint says, “consumers who only see the front label will expect the Product can provide a meaningful benefit to them…”

“Even the ‘cold water’ disclaimers are misleading,” the complaint contends, “because washing in cold water with detergent, followed by a normal drying cycle, reduces and minimizes any risk of bacteria survival to a negligible level.” Therefore, the complaint alleges, the value of the product is less than the value as represented by the company.

The complaint says the Laundry Sanitizer products are sold at premium price, “no less than $4.99 for 90 oz, a higher price than they would otherwise be sold for, absent the misleading representations and omissions.”

Quest Bills for Services Covered by Workers’ Comp Florida Class Action

This class action brings suit against companies that are trying to collect medical debt from injured consumers, alleging they do so even though the consumers are fully covered by Workers’ Compensation. The complaint calls this a violation of the Florida Consumer Collection Practices Act (FCCPA). The companies are a series of medical laboratories—Quest Diagnostics, Inc.—and a debt collector—CCS Global Holdings, Inc. (CCS).

The class is comprised of two subclasses:

  • The Quest Diagnostics Subclass is all Florida residents to whom, between September 23, 2020 and the date of class certification in this case, Quest Diagnostics or a third party acting on its behalf sent a bill for medical-related fees where the fees arose from a Workers’ Compensation claim under chapter 440, Florida Statutes.
  • The CCS Subclass is all Florida residents to whom, between September 23, 2020 and the date of class certification in this case, CCS or a third party acting on its behalf sent a bill for medical-related fees where the fees arose from a Workers’ Compensation claim under chapter 440, Florida Statutes.

The Workers’ Compensation laws in Florida forbid medical providers from trying to collect payments from people who were injured as employees in the course and scope of their employment. The complaint alleges, “Injured employees are not liable for payment of these medical services.

Providers who do try to collect on these debts, the complaint alleges, also violate the Florida Consumer Collection Practices Act (FCCPA), which forbids creditors from trying to collect any bill that is not legitimate. The complaint alleges, “The FCCPA prohibits the collection of amounts that are not agreed to by contract or expressly provided for by law, in this case, the Workers’ Compensation Statute.”

Debts do not need to be in default in order to be covered by the FCCPA. The complaint claims that Quest and CCS “have routinely and systematically ignored the FCCPA and attempt to collect payment for medical services rendered directly from injured employees in violation of the FCCPA.”

In this case, plaintiff Julia Perlin was injured at work and sought medical services from Quest. The complaint alleges that her injuries were covered by her company’s Workers’ Comp insurer, BroadSpire. The complaint claims, “Despite BroadSpire informing [Quest and CCS] to submit the bill in proper format to BroadSpire, [Quest and CCS] repeatedly sent collection letters and called [Perlin] demanding payment in full.”

The complaint alleges that Quest “has been repeatedly sued for the exact same allegations contained in” this complaint, yet continues to engage in the same behavior. It cites three previous similar class actions for billing and balance billing under Workers’ Comp.

Conservice Refusal to Provide Billing Information California Class Action

Conservice, LLC, which calls itself a utility management provider, bills individual tenants at apartment complexes for their share of utility bills for things like water, pest control, and trash. But the complaint for this class action alleges that Conservice does not follow California law for this pro-rata billing, alleging that it may add upcharges and does not allow individual tenants their rights to review certain master bills or know the formulas used to calculate their individual bills. The complaint alleges that Conservice refuses to provide this information.

Two classes have been defined for this action:

  • The Water Service Class is all current and former tenants of multi-dwelling residential buildings and motorhome parks in California that were invoiced for water service by Conservice and requested Conservice to provide the master-metered water bill and/or calculations substantiating the charges, between September 23, 2018 and September 23, 2022.
  • The Non-Water Service Class is all current and former tenants of multi-dwelling residential buildings and motorhome parks in California that were invoiced for any utility or property-wide services other than water by Conservice and requested Conservice to provide the underlying master-metered or property-wide bill and/or calculations substantiating the charges, between September 23, 2018 and September 23, 2022.

As part of its services, Conservice processes utility bills and bills for property-wide services, breaks them down, and bills the individual tenants. The charges may be for things like water, electricity, pest control, or trash disposal.

California requires a number of things from companies like Conservice, the complaint alleges, for example, that they must bill for utility charges without adding any upcharges. The complaint alleges also that they must provide master-metered bills to any tenant who requests them and the methods used to calculate the tenants’ individual shares. Also, the complaint alleges, “equity affords tenants the right to review any other master-metered or property-wide invoices and the exact formulas used to calculate their billed pro[-]rata share.”

But the complaint claims that Conservice uniformly refuses to provide master-meter bills, property-wide invoices, or the underlying calculations for individual charges to tenants when they ask for them.

The complaint provides examples of the vague responses tenants have received when they have asked for the information. For example, as to water bill, the complaint claims a tenant received this response: “Water service is provided by Sweetwater Authority. Service provider issues bill, property management pays a portion to cover common area usage. Remaining amount is paid by residents using a formula based on the number of occupants and the unit’s square footage.”

Conservice has refused to provide these things “even following demand of legal counsel,” the complaint says, and it alleges, “upon information and belief, the refusal to provide the underlying information only serves the purpose of obscuring illegal upcharging of utility and other property-wide obligations levied against individual tenants.”

This lawsuit has been brought, the complaint says, to declare that Conservice’s refusal to provide information is unlawful and unfair as well as to determine whether its purpose is to hide unlawful upcharges.

Amazon.com “Subscribe & Save” Deceptive Subscription Program Class Action

Amazon.com, Inc. has instituted a Subscribe & Save (S&S) program that the complaint for this class action alleges is “unlawfully administered.” The complaint claims the program makes use of dark patterns that trick consumers into subscribing, repeats orders at too-frequent intervals, and is difficult to cancel.

The class for this action is all individuals who, during the applicable statute of limitations period, were charged for purchases on an automatically recurring basis in connection with Amazon’s Subscribe & Save program. An Illinois Subclass has been defined for those in the above class who made their purchases in Illinois.

The S&S program offers consumers discounted prices and is advertised as a way for consumers to save money, but the complaint alleges that dark patterns are used “at almost every step of the purchase process” to “exploit[] cognitive biases” and “manipulate[e] users into making decisions against their own interests.” The complaint claims that the program also uses other means deceive consumers.

“For example,” the complaint alleges, Amazon “sets the default of S&S products to automatically renew as frequent[ly] as every two weeks for expendable or consumable items such as over[-]the[-]counter medications that Amazon knows need replacement much less often.” It claims that Amazon makes what it knows are untrue statements that the products are “most commonly” bought at these short intervals.

In other cases, the complaint claims, Amazon applies the program to household appliances or other items that are not consumables and represents them as being bought regularly, even though it is not likely that anyone actually does this.

For many items, the complaint alleges, the S&S option is the default purchase option, so that buyers must notice that they will be enrolled in a subscription unless they separately select the option of a single purchase only.

The complaint also details other kinds of dark patterns used on the Amazon mobile interface.

According to the complaint, Amazon also deliberately makes cancellation difficult: “The ‘roach motel’ dark pattern offers another salient example in which cancelling a subscription or membership is significantly tougher than initiating such a transaction.” Users are told they can “cancel anytime,” but the actual process is not easy.

For one thing, the complaint alleges that Amazon “strategically omits the fact that even though a Subscribe & Save item can be shipped as quickly as the next day, a user who wishes to skip or cancel a delivery must provide at least eight days’ notice to do so.”

Pages 11 and 12 of the complaint show nine screenshots of the steps users must take to cancel an S&S subscription. The complaint alleges, “This tedious and confusing calcellation flow is not accident. Each step of the lengthy process is designed to frustrate users into abandoning their goal of cancelling before they can achieve it.”

Columbus Life Insurance Cost of Insurance Basis Class Action

With certain life insurance policies, the insurance company subtracts certain charges from an account value to pay for the policy each month. The complaint for this class action alleges that Columbus Life Insurance Company has for several years deducted too much from its customers’ account values, in breach of the terms of the policy.

The class for this action is all persons who own or owned a universal life insurance policy issued by Columbus in which the terms provide for (1) a charge or deduction calculated with a rate based on Columbus’s expectations about future mortality experience, (2) additional but separate charges, deductions, or expenses, (3) an investment, interest-bearing, or savings component, and (4) a death benefit.

The plaintiff in this case had a flexible premium, adjustable life insurance policy with Columbus dated August 17, 1997. Along with the death benefit, the policy has a savings or interest-bearing element, the amount of which is known as the Account Value.

According to the complaint, the account value rises every month, by (1) the interest earned on the account value during the previous month, and (2) the premium paid for the upcoming month, minus that month’s deduction and expense charges.

The complaint alleges, “The money that makes up the Account Value is the property of the policy owner and is held in trust by” Columbus. Columbus can therefore only take from the account the funds expressly authorized by the policy.

Two deductions are authorized each month, the Monthly Deduction and the Monthly Expense Charge.

The Monthly Expense Charge for the policy is $7. The Monthly Deduction is defined as “the cost of insurance plus the cost of additional benefits provided by rider.” The complaint alleges that the cost of insurance (COI) is calculated each month.

The complaint again quotes from the policy: “Any change in the monthly cost of insurance rates charged will be on a non-discriminatory basis toward any one insured and will apply to all insureds of the same age, sex, and classification whose policies have been in effect the same length of time… The cost of insurance rates will be determined by us based on our expectations as to future mortality experience.”

The complaint alleges, “Although the Policies authorize [Columbus] to use only its expectations as to future mortality experience in determining Cost of Insurance rates, [Columbus] uses other factors, not authorized by the Policies, when determining those rates, including, without limitation, non-mortality related expenses.”

Because of this, the complaint claims, Columbus deducts too much from its insureds’ Account Values each month.

The complaint makes another allegation: Columbus “has, on information and belief, failed to lower Cost of Insurance Rates for the Policies even though is mortality expectations have improved, as people are living longer today than when the Policies were initially priced.

Quanta Services Retirement Plan Breach of Fiduciary Duties ERISA Class Action

People who invest in their employer’s retirement plan must rely on the plan’s fiduciaries to make prudent and loyal choices of investments. This class action concerns the Quanta Services, Inc. 401(k) Savings Plan, bringing suit against Quanta Services, Inc., its Board of Trustees, and the savings plan’s administrative committee, alleging these defendants breached their fiduciary duties to the plan under the Employee Retirement Income Security Act (ERISA).

The class for this action is all participants and beneficiaries in the Quanta Services, Inc. 401(k) Savings Plan at any time between September 26, 2016 and the date of judgment in this case, or an earlier date as determined by the court, including any beneficiary of a deceased person who was a participant in the plan at any time during the class period.

Early on, the complaint points out that, with more than 16,000 participants and account balances and assets around $1.2 billion, the Quanta 401(k) is in the top 0.1% by size of defined contribution plans, with significant bargaining power for administrative and investment management services.

However, the complaint alleges that the defendants chose and retained high-cost and poorly performing investments, when more prudent ones were freely available to them.

The plan has fourteen target date funds (TDFs) from Fidelity Management & Research Company. TDFs gradually shift their underlying investments as a targeted retirement date nears. The complaint alleges, “Among its target date offerings, Fidelity offers the riskier and more costly Freedom funds (the ‘Active suite’) and the less risky and less costly Freedom Index funds (the ‘Index suite’).” The defendants chose the Active suite.

The complaint alleges that an adequate examination of the available “would have raised a significant red flag for prudent fiduciaries” and would have found “that the Active suite was not a suitable and prudent option for the Plan…”

The complaint claims that “the Active suite invests primarily in actively[-]managed funds Fidelity mutual funds,” and that it is “dramatically more expensive than the Index suite, and riskier in both its underlying holdings and its asset-allocation strategy.”

The complaint acknowledges that there is nothing inherent bad about actively-managed funds. However, when funds are actively managed, the complaint alleges, they risk costing investors in two ways: First, the active management may not provide better results than the passive management of index funds. Second, actively-managed funds cost more.

To help make up for this, the complaint alleges, “[t]he Active suite chases returns by taking higher levels of risk that render it unsuitable for the average retirement investor, including Plan participants.”

Even worse, the complaint claims that the Active suite was chosen as the retirement plan’s Qualified Default Investment Alternative (QDIA), for participants who don’t feel they can make their own investment choices.

The complaint alleges that the Active suite had high costs and performed inadequately.

OneTouchPoint West, CareSource Data Breach Class Action

Medical entities must take care in protecting their systems, as they are prime targets for hackers and identity thieves. This class action brings suit against OneTouchPoint West Corp. (OTP), CareSource, CareSource Ohio, Inc., CareSource Indiana, Inc., and CareSource Georgia, Co., alleging they bear some responsibility for a data breach that exposed the personally identifiable information (PII) and protected health information (PHI).

A class and three subclasses have been proposed for this action:

  • The Nationwide Class is all individuals in the US who had their private information stolen or compromised as a result of the data breach, including all those who were sent a notice of the data breach.
  • The Indiana, Ohio, and Georgia Subclasses are all residents of those states, respectively, who had their private information stolen or compromised as a result of the data breach, including all those who were sent a notice of the data breach.

The data breach in question took place on OTP’s network on April 27, 2022, and the complaint alleges that “the company was unable to say definitively what personal information was accessed by the unauthorized actor.”

The complaint says the information may have included patient names, ages, member IDs, health insurance plan names, health condition, and information given during a health assessment. In some cases, the complaint alleges, for some customers of CareSource, the complaint alleges, Social Security numbers may also have been compromised.

Despite the fact that the data breach took place on April 27, was discovered on April 28, and was confirmed on July 27, the complaint alleges that OTP did not begin notifying the individual victims whose information had been stolen until August 10, 2022. “Despite this delay,” the complaint claims, “the notification letter sent by OTP did not offer to change the Plaintiffs’ Member ID or recommend protective measures aside from recommending that Plaintiffs ‘review your mail from CareSource to make sure it looks right.’”

The complaint alleges that OTP offers such things as brand management, marketing, and print-pack-ship services for healthcare entities, such as CareSource. It claims that “CareSource is responsible for ensuring that any third-party vendors it contracts with will safeguard the Private Information of its customers.”

According to the complaint, OTP touted its security: “OTP’s website states that it is part of an exclusive group of organizations worldwide certified by the Health Information Trust alliance (‘HITRUST’). OTP claims that the security framework ensures solutions are built within secure web-based technology and is HIPAA compliant.”

But the complaint claims that OTP failed to comply with industry standards or the Federal Trade Commission’s guidelines for private businesses on data security practices.

Walmart+ Subscription Class Action: Illusory Benefits, Hard to Cancel

Businesses have discovered that the subscription model is profitable, locking customers in to regular payments. Walmart, Inc. now offers a Walmart+ or “Walmart Plus” subscription, but the complaint alleges that the automatically-renewing subscription is unfair to consumers in a number of ways, including misleading representations of benefits and deceptive practices.

Two classes have been proposed for this action:

  • The Michigan Class is all persons in Michigan who subscribed to the Walmart+ subscription during the applicable statutes of limitations.
  • The Consumer Fraud Multi-State Class is all persons in Iowa, Kansas, Montana, Alaska, Arkansas, Wyoming, West Virginia, Kentucky, South Carolina, South Dakota, and Utah who subscribed to the Walmart+ subscription during the applicable statutes of limitations.

Subscriptions involve “negative option marketing,” the complaint alleges, meaning that they do not expire; they continue until consumers take action to cancel.

Sometimes a subscription is offered via a free trial period, after which consumer begins to be charged for a subscription. The complaint claims, “A 2018 report from the Better Business Bureau (‘BBB’) shows losses in the ‘free trial offer’ cases pursued by the [Federal Trade Commission] over the last ten years exceed $1.3 billion.”

The complaint takes issue with the Walmart+ subscription for two reasons. First, it says that the presentation of benefits is misleading and deceptive, telling consumers they can “save $1,300+ a year*” on deliveries, fuel discounts, and other things.

However, the complaint alleges that the fine print discloses that these savings are calculated based on “2 deliveries/wk at non-member $7.95 fee + 2 Walmart.com orders under $35/wk at non-member $6.99 shipping fee.” Most customers, the complaint alleges, do not place two delivery orders per week or two orders per week from Walmart.com of less than $35 each.

Also, the representations of “free delivery from your store” or “$0 delivery fees” are restricted to orders of at least $35, with additional amounts charged for express deliveries. Another representation of “Free shipping, no order minimum,” the complaint alleges, has fine print saying that this “[e]xcludes most Marketplace items.”

The complaint alleges that consumers can be led to sign up for a trial without finding out about these limitations.

Another problem with the Walmart+ subscription, the complaint alleges, is that it is difficult for consumers to cancel it. For example, the complaint alleges that the Terms of Use tells customers to cancel by “call[ing] Walmart Customer Care [], or through your Walmart Account.” But those who call Walmart, the complaint claims, wait an average of 37 minutes to speak to a representative; and those who choose the other option, it says, “are overwhelmed by the numerous selections and settings, and not conspicuously presented with how to cancel.”

Even when they do manage to cancel, the complaint alleges that Walmart sometimes continues to charge them. Finally, if they remove or lose the specific payment method they used to enroll in the program, Walmart will charge the payment to any other payment method it is aware of.

Nissan Altima Defective CVT in 2019-2020 Models Class Action

Plaintiff Ariel Simpson owns a 2019 Nissan Altima with a continuously variable transmission (CVT), but at times, the complaint for this class action, when she is at a stoplight, she must press the accelerator all the way to the floor to get the car moving again. The complaint alleges she is just one of the people who own or lease a 2019 or 2020 Nissan Altima with a defective CVT. The defendants in the suit are Nissan of North America, Inc. and Nissan Motor Co., Ltd.

A class and five subclasses have been defined for this action:

  • The Nationwide Class is all persons or entities who bought or leased a 2019 or 2020 Nissan Altima in the US.
  • The Massachusetts, Maryland, Virginia, New Hampshire, and North Carolina Subclasses are all members of the above class who bought or leased a 2019 or 2020 Nissan Altima in these states, respectively.

A CVT is an automatic transmission that does not use conventional gears but instead “uses a segmented steel belt between pulleys that can be adjusted to change the reduction ratio in the transmission.”

But the complaint alleges that the vehicles at issue in this case have a defect that causes a delay in acceleration, either from a stop or while it is in motion. The delay may come with the sound of the engine revving as the driver presses the gas pedal or with “stalling, jerking, lurching, juddering, and/or shaking” and sometimes leads to the failure of the transmission. The complaint alleges that the cost of repairs is very high.

Nissan has known about the problem for a while, the complaint claims: “Nissan’s CVT has been plagued with the same or similar recurrent problems … for over a decade.” In fact, according to the complaint, it has extended warranties on earlier model-year vehicles, at least twice in response to previous class actions, but it has not done for the 2019 and 2020 model years.

It has issued technical service bulletins (TSBs) on the problem, along with two special tools and instructions on doing a fluid check. “On information and belief,” the complaint alleges, these things were necessary “because its CVTs are prone to leaking transmission fluid and their performance is extremely sensitive to the level of fluid present. Insufficient transmission fluid can cause belt slippage and, ultimately, transmission failure.”

In fact, the complaint asserts, one thing that can go wrong with the transmission is “the build up of metal debris that can contaminate the transmission.” It quotes a Nissan dealer as warning, “If you don’t change your 2019 Nissan Altima transmission fluid, your transmission will have broken metal shavings and alternative corrosive metal spread throughout the big components of your 2019 Nissan Altima.”