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Maschhoffs Biometrics Collection, Storage, and Use Illinois BIPA Class Action

The Maschhoffs, LLC is a business that requires that its employees clock in and out using a punch-clock device that relies on employee fingerprints for identification. The complaint for this class action alleges that the company has collected, stored, and used these fingerprints without complying with an Illinois law, the Biometric Information Privacy Act (BIPA).

The class for this action is all individuals whose biometric data The Maschhoffs collected or stored in Illinois.

Biometrics raise concerns about privacy and confidentiality that are more profound than the concerns surrounding other, more ordinary personal information. The complaint says, “Unlike other forms of personal identification, such as photo IDs or passwords, fingerprints are immutable aspects of our bodies.” If fingerprints are stolen, their owner cannot get another set, cancel their existing prints, or otherwise take the kind of steps normally taken to prevent identity theft.

BIPA is intended to provide the most basic requirements for a private business that wishes to collect, store, or use fingerprints or any other form of biometrics. BIPA provides a number of things private business must do if they are intending to use biometrics:

  • They must tell employees that their biometrics are being collected.
  • They must tell the employees of “how the practice is implemented” or “the specific purpose and length of time for which their biometric data would be collected, stored, and/or used.”
  • They must get the employees’ written consent to collect and store their fingerprints or other biometric data.
  • They must keep the biometrics in a sufficiently secure manner.
  • They must “maintain[] a publicly available disclosure of how the biometric data will be handled and destroyed.” This should include a written retention schedule and guidelines for permanently destroying the biometrics.

The complaint alleges that the company did not do any of these things.

The complaint casts doubt in particular on the security of the information: “Upon information and belief, [the company] is storing its data in a manner less secure than it [uses to store] other similarly sensitive data.”

Other personal information is stored more securely, the complaint claims: “Upon information and belief, [the company] stores its employees’ social security numbers (along with similar personal data) and confidential business records on personal computer systems with demonstrably more security than their fingerprint scanning machines possess. In addition to higher cyber security, [the company’s] personal computer systems are in secure physical locations not as easily accessible to third[ ]parties and [the company’s employees.”

Axos Bank Fees Not Permitted by Account Documents Class Action

The complaint for this class action claims, “Research shows that fees are the most important factor influencing consumers’ selection of a new banking provider.” It brings suit against Axos Bank, claiming that the bank misleads customers in its account documents as to the fees it will charge. At issue are (a) when it chooses to charge an overdraft (OD) fee and (b) its practice of charging more than one non-sufficient funds (NSF) fee (or an NSF fee and an OD fee) on a single item.

Two classes have been defined for this action:

The APPSN Class is all Axos checking account holders who, during the applicable statute of limitations, were charged OD fees on transactions that were authorized into a positive available balance.

The Multiple Fee Class is all Axos checking account holders who, during the applicable statute of limitations, were charged two or more fees (including NSF or OD fees) on the same item.

Overdraft fees
In Axos’s case, the complaint cites a practice called “authorize positive—purportedly settle negative” (APPSN).

Here’s how it works: When a consumer goes to make a debit card transaction, the bank approves the transaction and sets aside the corresponding amount. That amount is no longer included in the account’s displayed available balance. The complaint says, “As a result, customers’ accounts will always have sufficient available funds available to cover these transactions” when they settle.

However, if the customer reduces the account balance with other transactions before the earlier debit card transaction settles, then Axos may consider the earlier transaction as settling into a negative account balance.

The Consumer Financial Protection Bureau calls this process “unfair” or deceptive” because consumers do not understand how it works.

Multiple fees on a single item
Axos charges a fee if an item is presented for payment but the account does not contain sufficient funds to pay it. If it pays the item, it charges an OD fee; if it returns the item, it charges an NSF fee. Both of these are permitted by the account documents, which specify a fee charged per item.

However, if the item is returned, the complaint claims, Axos may decide to try to pay the same item a few days later. If the account still does not have sufficient fees to pay it, Axos charges a second NSF fee; if it decides to pay it then, it will charge an OD fee.

The complaint contends (1) that the account holder did not request the second attempt to pay the returned item, and (2) that the item does not become a different item each time it is reprocessed.

According to the complaint, additional fees charged after the first one are not permitted by the account documents.

US Bank Improper Fees for Payoff Statement Massachusetts Class Action

Mortgages and their servicing are thoroughly regulated, including in the state of Massachusetts. The complaint for this class action alleges that US Bank, NA charges impermissible fees, such as a Payoff Statement Fee and a Discharge Recording Fee, which are included in the Total Amount Due when borrowers request a Payoff Statement for their mortgages.

Three classes have been defined for this action:

  • The Payoff Statement Fee Class is all persons who were charged and paid a Payoff Statement Fee relating to a mortgage recorded in Massachusetts.
  • The Discharge Recording Fee Class is all persons who were charged and paid a Discharge Recording Fee relating to a discharge of a mortgage recorded in Massachusetts.
  • The Payoff Statement Class is all persons who were charged and paid a Payoff Statement Fee or a Discharge Recording Fee that was included as part of the Total Amount Due on a Payoff Statement for a property in Massachusetts.

The plaintiff in this case, Christopher Gillis, held a mortgage for a home in Barnstable County, Massachusetts. It was recorded in the county Registry of Deeds on January 19, 2016. US Bank was “a lender, mortgagee, note holder, and/or third-party loan servicer of” that mortgage.

Gillis requested a Payoff Statement from US Bank. The Payoff Statement was sent on or around May 20, 2021. However, included in the total amount were a “Special Delivery Fee” (which the complaint takes to be a Payoff Statement Fee) and a Recording Fee (which the complaint takes to be a Discharge Recording Fee).

The complaint implies that the mortgage was insured by the Federal Housing Administration (FHA), which is an agency within the Department of Housing and Urban Development (HUD). According to the complaint, the Payoff Statement Fee and Discharge Recording Fee are not on the list of authorized fees or are in excess of the maximum fees permitted by HUD.

Massachusetts law covers the Payoff Statement for a mortgage. A lender, mortgagees, note holder, or third-party loan servicer must give mortgage borrowers “an accurate statement of the total outstanding balance that would be required to pay the borrower’s obligation in full as of a specified date.” The statement must be accurate.

The complaint also claims that Massachusetts law requires that a written discharge be provided for free and that there should be no charge for the first Payoff Statement requested in a six-month period.

The complaint asserts that US Bank charge the fee for sending the Payoff Statement by fax, in which case, it says, federal law requires that US Bank inform Gillis that there are other methods of sending the statement for free. The complaint also alleges that US Bank should not have assessed Gillis a Discharge Recording Fee.

The counts include Unjust Enrichment and violations of the Massachusetts General Laws.

SoClean CPAP Cleaning Devices Produce Ozone Texas Class Action

SoClean, Inc. makes devices to clean continuous positive airway pressure (CPAP) machines. But the complaint for this class action alleges that SoClean uses ozone for cleaning, and that it makes false statements about both this toxic gas and its devices, misrepresenting their potential dangers to humans.

The class for this action is all persons who were or are citizens of Texas who bought or used a SoClean device to clean and sanitize their CPAP, BiPAP, or mechanical ventilation machine.

The cleaning devices include the SoClean 2 CPAP Sanitizing Machine, the SoClean 2 Go CPAP Sanitizing Machine, and their predecessors. These machines work by producing ozone to sterilize and deodorize the CPAP machines.

But ozone (O3) is an unstable gas that is toxic to humans, although it can kill bacteria and viruses. It has a characteristic smell and is sometimes described as “clean smelling.” The complaint alleges, “To be effective as a germicide, ozone must be present in a concentration far greater than can be safely tolerated by people or animals.”

The complaint claims that SoClean violates federal law in that its marketing materials do not reveal that the machines give out ozone. “Instead,” the complaint alleges, “SoClean falsely represents that its devices use ‘activate oxygen’ to clean CPAP machines.” The company claims that its devices are “safe” and “healthy,” which the complaint calls “false give[n] that they generate toxic ozone gas at levels that substantially exceed federal regulations.”

According to the complaint, SoClean makes other misleading or false statements as well. For example, it claims that the devices use “no water or chemicals” and “no harsh chemicals” for cleaning, even though it uses ozone gas, which the complaint calls “a harsh chemical that causes respiratory problems in humans.”

Another claim SoClean makes is that the devices offer the same process used in “hospital sanitizing,” even though the complaint asserts hospitals do not use ozone sanitizers in spaces used by patients. SoClean offers separate filters it claims convert the “activated oxygen” into “regular oxygen,” but the complaint claims that the filters “have no measurable effect on the device’s ozone output.”

SoClean also says its devices are in some way “sealed” so that the “activated oxygen” does not escape. Strikingly, however, the complaint alleges that the devices are so “dangerous and destructive” that some of the major US manufacturers of CPAP machines tell purchasers that if they use a SoClean device for cleaning, they will void the warranty on CPAP machine.

The complaint alleges that SoClean has ninety percent of its market, despite the fact that CPAP users by definition have breathing problems.

The claims include breaches of warranties and fraudulent and negligent misrepresentation, among other things.

Arizona Providers and Requests for Medical Records Class Action

Patients who want to file personal injury cases are likely to need their medical records. If so, they will request them from their healthcare providers. The complaint for this class action cites two problems that come up in this situation: (1) when the records are sent to attorneys, the medical records parties may bill the attorneys for the records; or (2) the medical records parties may refuse to provide part or all of the medical records to the patient unless the records are requested by an attorney.

The class is defined as two subclasses:

  • Subclass 1 is (a) personal injury law firms similarly situated to the plaintiff firms in this case, to which individuals request their medical records be sent, (b) where the personal injury firms are billed for the medical record requests they did not make.
  • Subclass 2 is (a) individuals similarly situated to the plaintiff individuals in this case, who request their own medical records from healthcare providers, (b) whose the healthcare providers refuse to provide them with part or all of their medical records after having received a request from those who qualify for Subclass 1.

The defendants in this case are a large group of medical providers or record holders. A sampling includes Medicopy Services, Inc.; American Medical Response of Maricopa, LLC; Mayo Clinic Arizona; Ciox Health, LLC, doing business as IOD Incorporated; Hospital Development of West Phoenix, Inc. doing business as Abrazo West Campus; Yuma Regional Medical Center; Orthopedic Specialists of North America, PLLC, doing business as OrthoArizona; and Record Reproduction Services, LLC.

The complaint calls it “common practice” for patients who are making personal injury claims against another entity (“patients/claimants”) to ask that their medical records be sent to the law firms that represent them. The patient/claimant is therefore the requesting party, but the complaint alleges that the medical providers often send the invoice to the law firms rather than the patient/claimants who are making the request.

This is the problem for Subclass 1. The complaint points out that the requests for patient records are coming from the patients themselves and not from the law firms: “The members of [Subclass 1] did not enter into any agreement or make any requests of” the healthcare providers who hold the records.

Sometimes, the complaint alleges, when patient/claimants ask a medical provider for their own records and ask that the records be sent to a law firm representing them, the medical providers may refuse to provide the full medical records.

This is the problem for Subclass 2. The complaint provides an example of a man going to his son’s provider and asking for his son’s medical records. The provider gave him incomplete records, the complaint alleges. When he went back to get complete records, the complaint claims, he was told that his attorney must request the records in order for a complete copy to be provided.

Ralph Lauren “Pima” Cottons Contain Too Little Pima Class Action

The Ralph Lauren Corporation sells clothing that is purportedly made from a certain percentage of pima cotton. But the complaint alleges that testing reveals that the lengths of the fibers in some of the garments are significantly below the lengths that would be found if the garments were truly made of pima cotton.

Two classes have been defined for this action:

  • The Wisconsin Class is all persons in Wisconsin who bought the product during the applicable statutes of limitations.
  • The Consumer Fraud Multi-State Class is all persons in Iowa and Arkansas who bought the product during the applicable statutes of limitations.

The Textile Fiber Products Identification Act requires that clothing makers accurately indicate the composition of the textiles used to in the clothing.

Pima cotton is a desirable form of cotton. It generally produces fibers of between 1.2 and 1.44 inches in length. Longer fibers increase the softness, strength, and durability of the fabric, so that longer fibers cost more.

Pima cotton clothing therefore costs more than clothing made from cotton with shorter fibers. The complaint alleges, “This creates incentives for manufacturers and suppliers to mix cotton byproducts and shorter fibers with higher[-]value longer fibers, to gain additional profits at the expense of consumers.”

However, there is a test for clothing fibers. The Single-Fiber Test, D5103, adopted by global-standards group ASTM, can measure the length and length distribution of fibers in articles of clothing.

The complaint alleges that clothing bought from Ralph Lauren “and/or substantially similar products” were tested “in accordance with the ASTM D5103 standard.” According to the complaint, “between most[] and all fibers were shorter than 1.200 (30.48 mm) and shorter than 1.080 inches (27.432 mm), below the range for pima cotton.”

Could some of the fibers have been cut in the process of piecing together the garment? The complaint alleges, “Even where an adjustment is made to the fiber lengths by assuming a twenty-five (25) percent reduction during the manufacturing, approximately fifty (50) of the fibers would fall under the pima classification.”

It states, “These results support the strong inference that the percentage of pima cotton used in the Product is significantly less than the amount indicated on the label and tag.” The item must therefore contain “a significant amount of less expensive, shorter cotton fibers and/or cotton byproduct fibers.”

Textile content forms a material part of consumers’ decisions when deciding what items to buy at a store. According to the complaint, they must rely on clothing manufacturers to be truthful in labeling their clothing.

The complaint alleges, “The value of the Product … was materially less than its value as represented by [Ralph Lauren].”

Jimmy Dean “Whole Grain” English Muffin Breakfast Sandwich Illinois Class Action

The Hillshire Brands Company makes a line of Jimmy Dean Delights breakfast sandwiches. The bread for these sandwiches is supposedly a whole grain English muffin, but the complaint for this class action alleges that the English muffin is made primarily of refined flour, which provides fewer nutritional benefits.

The class for this action is all persons in Illinois who bought the product during the applicable statutes of limitations.

Page 1 of the complaint shows an image of the front of the product box with the purported English muffin sandwich. On the package are the words, “Made with Whole Grain*.”

The complaint says, “The 2015 Dietary Guidelines for Americans recommend that at least half of the grains in a healthy diet should be whole grains.” Consumers “are aware of the healthfulness of whole grains relative to non-whole grains.”

Whole grains include the complete grain seed, including the endosperm, bran, and germ. The bran and germ offer important nutrients, including dietary fiber, vitamins, minerals, and antioxidants. These may include iron, zinc, folate, magnesium, thiamin, niacin, selenium, riboflavin, manganese copper, vitamin A, and vitamin B6.

Non-whole grains have been processed or refined to take out the bran and germ. In doing this, the refiner takes out the fiber and most of the nutrients. Some food manufacturers who used refined or “white” flour enrich it by adding back in some of the nutrients that were removed, like iron and B vitamins. Refined-grain flour is therefore sometimes called “enriched” flour.

Enriched flour contains only the endosperm and is primarily starch. The enrichment process does not add back in all nutrients; it leaves out things like vitamin E, vitamin B6, vitamin K, magnesium, manganese, potassium, phosphorus, copper, calcium, and selenium. The fiber is also not replaced.

The first item listed on the ingredient panel for the Jimmy Dean sandwich is “Enriched Wheat Flour.” After that comes “Water,” and only after that comes “Whole Grain Wheat Flour.”

The complaint alleges, “The amount of ‘Whole Grain Wheat Flour’ in the Product is slightly above two percent of the total weight of ingredients used in the English muffin portion of the product.”

Also, the complaint notes that the product has only two grams of dietary fiber per serving and claims that this is “consistent with a food with a de minimis amount of whole grain.”

Under US Department of Agriculture (USDA) rules, the complaint says, “[t]o make a whole grain claim … a product must contain a minimal quantity of the whole grain component—at least 8 grams of dry whole grain per labeled serving size of the meat or poultry product as declared in the nutrition facts panel on the label.” However, the bottom of the side panel admits that “*This product provides 5g of whole grain in a 1 sandwich serving.”

The complaint therefore alleges, “Thus, the Product does not contain 8g whole grain per serving, nor is the bread part predominantly whole grain…”

Progressive Specialty No UIM Benefits for Unstacked Coverage Pennsylvania Class Action

Michael J. Ford was riding his Honda motorcycle in Hilltown Township in Pennsylvania when he was hit by a driver making a left turn into his path. Because the other driver’s insurance did not have sufficient coverage to pay for his injuries, Ford is trying to get uninsured/underinsured motorist (UIM) coverage from one of his own insurers, Progressive Specialty Insurance Company. Progressive has rejected his claim.

The accident occurred on August 13, 2020. The complaint alleges that the other driver, Steven A. Johnson, was intoxicated at the time. Ford had serious and permanent injuries as a result of the accident.

Johnson’s policy offered $15,000/$30,000 in liability coverage. Ford received the $15,000 payout, but it was not enough to compensate him for his injuries.

Ford had two policies of his own. The motorcycle policy, issued by Progressive Preferred Insurance Company in accordance with the Pennsylvania Motor Vehicle Financial Responsibility Law (MVFRS), paid Ford its $25,000 limit, but it was still not enough.

Ford’s second policy, his Personal Auto Policy, issued by Progressive Specialty in accordance with the Pennsylvania MVFRS, offered $250,000/$500,000 in unstacked UIM benefits for two vehicles. However, when he made a, Progressive Specialty rejected it. The company stated the policy did not provide stacked UIM coverage and that there was a household regular use exclusion.

The complaint argues against these reasons. First, it says, the Limits of Liability language for non-stacked coverage applies only to intra-policy (as opposed to inter-policy) stacking.

Second, the complaint quotes the Other Insurance part of the policy to assert the maximum recovery should be the $250,000 limit on the second policy.

Finally, it claims that the Supreme Court of Pennsylvania has ruled that the waiver of stacking used by Pennsylvania insurers “does not waive inter-policy stacking under multiple vehicle policies…”

The complaint therefore asserts that Ford’s second insurance policy “provided inter-policy stacking of underinsured motorist benefits at the time of the August 13, 2020 motor vehicle accident.

Two classes have been defined for this action:

  • The first is persons who are insureds under policies issued by Progressive Specialty, who were injured in motor vehicle accidents caused by the negligence of an uninsured or underinsured motorist, but who were denied UIM benefits because of (1) the unstacked coverage of their policies, or (2) the household regular use exclusion.
  • The second is persons (1) who were injured in a motor vehicle accident in a household vehicle, (2) who were insured under a policy with UIM coverage, in accordance with the MVFRL for a vehicle in the household, (3) where the Progressive Specialty policy in the household provided for inter-policy stacking of UIM benefits by election or law, (4) who made a claim under the household policy for UIM benefits, and (5) whose claim was denied because of unstacked coverage or the household regular-use exclusion.

State Farm Mutual Auto Insurance Stacked UIM Payout Pennsylvania Class Action

Norman Stanton was riding his Kawasaki motorcycle near the entrance to a Wawa when he was hit from behind by another vehicle. The driver of the other vehicle had insufficient coverage to pay for his injuries. The complaint for this class action alleges that Stanton’s stacked uninsured motorist coverage with State Farm Mutual Automobile Insurance Company should pay out for his injuries, but State Farm is refusing to pay.

The class for this action is persons who were injured in motor vehicle accidents between 1990 and the present because of the actions of an uninsured or underinsured motorist, and who were insureds under State Farm auto policies with uninsured or underinsured motorist

Stanton’s injuries in the July 29, 2019 accident were multiple and severe. The complaint names, to begin with, “traumatic brain injury, spinal fractures, facial fractures, internal injuries, subdural hematoma,” along with others.

According to the complaint, the other vehicle was at fault, but its Bristol West Insurance Company policy only had $25,000/$50,000 in liability coverage. He received the $25,000, but it was not enough to compensate him for the extent of his injuries. He then turned to his own uninsured/underinsured motorist (UIM) coverage.

At the time of the accident, the complaint says, Stanton had on policy with State Farm, “providing $15,000/$30,000 in stacked underinsured motorist coverage for three (3) vehicles in accordance with” Pennsylvania’s Motor Vehicle Financial Responsibility Law (MVFRL). Stanton also had a fourth policy with State Farm with $15,000/$30,000 in stacked underinsured motorist coverage for one vehicle.

A November 11, 2019 letter to Stanton from State Farm indicated that, with the stacking coverage of four vehicles, “there is a total of $60,000 in UIM benefits available.” A November 19 letter from State Farm confirmed that amount.

However, a letter dated April 22, 2020 stated that the company “may have no duty to pay” Stanton’s claim because of an exclusion. The letter quoted the exclusion as saying, “THERE IS NO COVERAGE FOR AN INSURED WHO SUSTAINS BODILY INJURY WHILE OCCUPYING A MOTOR VEHICLE OWNED BY THAT INSURED IF THE VEHICLE IS NOT INSURED FOR UNDERINSURED MOTOR VEHICLE COVERAGE UNDER THIS POLICY OR ANY OTHER POLICY.

A July 30 letter the suggested that Stanton had not registered or owned the vehicle at the time of the accident and that, if so, there was no UIM coverage.

According to the complaint State Farm has refused to pay the coverage based on “the above noted household exclusion…”

The complaint alleges that the Supreme Court of Pennsylvania “held that household exclusion in automobile policies issued in Pennsylvania in accordance with the MVFRL are invalid and unenforceable.” This means, it claims, that State Farm’s disclaimer of coverage is void and unenforceable.

JPMorgan Chase Bank Funds from IOLTA Account Illinois Class Action

Lawyers are not permitted to commingle client funds with their own money. To hold client funds they are administering, they must open Interest on Lawyer Trust Accounts (IOLTAs), which are heavily regulated. The complaint for this class action alleges that JPMorgan Chase Bank, NA broke the rules by taking by taking money from an attorney’s client IOLTA to cover a shortfall in his business operating account.

The class for this action is all lawyers and law firms that maintain Interest on Lawyer Trust Accounts (IOLTAs) in Illinois at Chase.

Attorneys cannot commingle clients’ funds with their own. The complaint quotes findings in an earlier court case as saying that “it is absolutely impermissible for an attorney to commingle his funds with those of his client or with money he holds as a fiduciary.”

Attorneys are also not allowed to take any interest earned on client funds for themselves. IOLTAs enable them to keep separate both the money they are holding for clients and the earned interest on the accounts. The interest may go to designated nonprofit organizations.

In Illinois, IOLTAs may only be established at financial institutions that have agreed to follow the Illinois Rules of Professional Conduct. The institution must also be approved by the Illinois Attorney Registration & Disciplinary Commission (ARDC) and it must report any overdrafts on these accounts to the ARDC. The complaint notes that “banks acting as custodians of IOLTAs are prohibited from accessing funds placed in an IOLTA in order to benefit any other account.”

Plaintiff Michael E. Rediger has been a lawyer for thirty years. He has maintained an IOLTA with Chase.

The complaint alleges, “On February 8, 2021, Chase committed an intentional breach of [Rediger’s] authority over his IOLTA by converting funds held by [Rediger] in his IOLTA.”

This came about because of a $5,000 check Rediger had deposited in his business account on February 3. Chase discovered on February 8 that the check had come from a closed account, rejected it, and charged Rediger a $12 returned-check fee. These actions caused Rediger’s business account to become overdrawn. The following day, Chase withdrew funds from the IOLTA to set off the overdraft.

Rediger claims he did not provide authorization to do this and was not given any notice before Chase did it. According to the complaint, it “was a flagrant violation of the Illinois Rules of Professional Conduct…” Chase, however, claimed it was permitted to do this under its Deposit Account Agreement.

Rediger had written two checks upon the IOLTA to clients related to personal injuries. As a result of Chase’s actions, the checks bounced. Chase then notified the ARDC that the IOLTA account was overdrawn.