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Ipsy Cosmetics Subscription Difficult to Cancel California Class Action

Personalized Beauty Discovery, Inc. does business as Ipsy.com, offering cosmetic subscription services. The complaint for this class action alleges that Ipsy falsely advertises its services, claiming that subscribers can cancel at any time, when in practice, it is very difficult to cancel, the complaint says, and the company continues to charge the monthly amount.

The class for this action is all consumers who, from the statute of limitations and the present, bought one or more monthly subscriptions in California, and who were charged without their authorization by Personalized Beauty Discovery, Inc. or Ipsy.com.

Plaintiff Izabella DeForest lives in California. Sometime around August 2019, she signed up for Ipsy’s “Glam Bag” cosmetic subscription. She paid for it with a deduction from the Visa card she shares with the other plaintiff in this case, Dan DeForest. At the time, Ipsy represented that she could cancel the subscription anytime she wanted to.

In November 2019, she contacted the company again to tell them that she wanted to cancel the subscription. However, the company continued to deduct the monthly amount from her Visa card account. The complaint says the DeForests’ “debit card statements reflect charges by [Ipsy] in the amount of $12.93 for at least eight months after [the DeForests] request for cancellation.”

They then tried to cancel the subscription online. However, the website did not appear to offer the option of cancellation. Instead, the complaint says, “it merely offered [the DeForests] the opportunity to pause the subscription for months at a time, after which [Ipsy] would continue to automatically bill them.”

The complaint claims that the company’s “representation, through statements and omissions, that consumers may cancel these subscription services at any time constitute fraudulent affirmative misrepresentations of material fact that would be important to reasonable consumers when deciding between different retailers of like products.”

One of the causes of action is violation of California’s Automatic Purchase Renewals Statute, which sets forth requirements for offers of subscriptions or continuous services. Among them is the requirement to present the terms of the offer in a clear and conspicuous manner before the subscription or purchasing agreement is fulfilled. Businesses are also required to send those who agree to such subscriptions an acknowledgement “that includes the automatic renewal terms, cancellation policy, and information regarding how to cancel in a manner that is capable of being retained by the consumer.”

Other causes of action include violations of the federal Electronic Funds Transfer Act, California’s False Advertising Act, and its Unfair Business Practices Act.

USAA Casualty Insurance Inclusions in Total Loss Payments Georgia Class Action

The issue in this class action is payment of motor vehicles title ad valorem tax (TAVT) by the insurance company when an insured vehicle is declared a total loss. The complaint alleges that this payment is required by the state of Georgia but that USAA Casualty Insurance Company does not pay it. It also claims that this results in an additional underpayment in another provision of Georgia insurance policies.

When a vehicle is in an accident and is declared a total loss, the insurer will pay the owner its actual cash value (ACV). The USAA policy defines this amount as “the amount it would cost, at the time of loss, to buy a comparable vehicle.”

The TAVT replaced the mandatory car sales tax in Georgia in 2013. Along with license plate transfer fees, this is one of the costs that must be paid when someone buys a vehicle, and it’s one of the things that should be included in the ACV, the complaint claims.

The complaint quotes Georgia law as saying that the insurance company “may elect to pay a cash equivalent settlement based upon the actual cost less any deductible provided in the policy, to purchase a comparable automobile by the same manufacturer, same model year, with similar body style, similar options, and mileage, including all applicable taxes, license fees and other fees incident to the transfer of ownership of a comparable automobile.”

At the time of the loss in this case, the TAVT was 7% of the value of the vehicle, as set by the TAVT Manual. The vehicle owned by the plaintiff in this case, Jahazel Black, was valued by USAA at $4,925, meaning the TAVT was $344.75. However, USAA paid only $49.25, the complaint says, and also underpaid the license plate fees.

But that wasn’t all. Black had a Car Replacement Assistance (CRA) endorsement on his policy, and the complaint alleges that USAA caused Black to receive less in the CRA payment.

The complaint alleges that “the Policy requires USAA to including 20% of the ACV, including TAVT, title transfer fees, and license plate transfer fees, as part of CRA coverage. The CRA underpayment was $59.10 (20% of $295.50) for TAVT, and $1 (20% of $5.00) for license plate transfer fees. USAA also failed to account for the $18.00 title transfer fee when calculating CRA, further damaging [Black] by $3.60 (20% of $18.00).”

The class for this action is all insureds under a Georgia private passenger auto policy issued by USAA who, between April 5, 2015 through the date of class certification in this case, had a first-party physical damage claim, adjusted as a total loss, and who received a payment from USAA that did not include the full TAVT or license plate transfer fees due. A subclass has also been proposed of those in the above group who also had CRA with their policy, where the full amount of the fees was not included in the their CRA calculation.

Seresto Flea and Tick Collar Pesticides May Harm Pets Class Action

Can flea and tick collars pose a health hazard to pets and their owners? The complaint for this class action brings suit against Bayer Healthcare, LLC and Elanco Animal Health, Inc., alleging that their Seresto brand flea and tick collars can cause “risk of irritation, rashes, hair loss, gastrointestinal problems, seizures, and even death.”

The class for this action is all persons in the US who bought the products for use and not for resale.

A USA Today March 2021 report that is “based on documents from the Environmental Protection Agency (‘EPA’),” the complaint says, claims that some 75,000 incident reports and 1,698 pet deaths have been associated with Seresto collars. The complaint says, “Of the 75,000 incidents, nearly 1,000 involved human harm.”

The complaint asserts, “The high number of incidents is likely related to the synergistic effect of the two pesticides contained in Seresto Collars: imidacloprid and flumethrin.”

Imidacloprid is part of the class of insecticides most commonly used on crops in the US, in spite of the fact that they have been connected to what the complaint calls “massive die-offs of non-target insects such as bees and butterflies,” the EPA may be reapproving them. While the same chemicals are banned for use on crops in the European Union, they are permitted for use in pet collars. But, the complaint claims, [t]here is growing evidence that mammals can be harmed by these pesticides as well.

As to the second ingredients, the complaint alleges, “Flumethrin, EPA documents show, is only an active ingredient in one product: Seresto Collars.” And, the complaint claims, the two chemicals working together may not be the only problem: “The inert or inactive ingredients in the Products, in combination with Flumenthrin an Imidacloprid may also trigger reactions and/or serious injury.”

The Federal Insecticide, Fungicide and Rodenticide Act requires that the EPA must find that pesticides do not cause “unreasonable effects on the environment” considering both harms and benefits.

Unfortunately, the complaint claims that the information on the Seresto pesticides was provided by Bayer, one of the companies making the product, and most of them involved each one used separately. “However,” the complaint alleges, “a 2012 Bayer study found they have a ‘synergistic effect,’ meaning they are more toxic together on fleas.”

The EPA used this and eight other studies to approve Seresto collars. The California Department of Pesticide Regulation “took issue with the validity of two of the studies[,]” the complaint says, but still approved the collars.

The complaint reproduces some online postings about problems with the Seresto collars and cites individual stories of human reactions when their dogs sleep with them while wearing Seresto collars.

The complaint points out that the packaging for the collars does not include any warnings of possible effects from the collars.

ArtNaturals Hand Sanitizers Benzene Content Class Action

This class action brings suit against Virgin Scent, Inc., which does business as ArtNaturals, for its hand sanitizer products. The complaint alleges that the hand sanitizers contain benzene, which is a known carcinogen, “at levels many multiples of the emergency, interim limit set by” the Food and Drug Administration (FDA).

The class for this action is all individuals and entities in the US and its territories and possessions who, since April 1, 2020, bought a hand sanitizer product, not for resale or distribution, that was made, distributed, or sold by Virgin Scent or ArtNaturals. This class action does not include claims for personal injury.

According to the complaint, the FDA, the Department of Health and Human Services, the World Health Organization (WHO), and the International Agency for Research on Cancer (IARC) all claim that benzene is a carcinogen and/or that it can cause cancer in human beings.

The complaint quotes California’s Proposition 65 Fact Sheet for benzene as saying that benzene “can cause cancer and birth defects or other reproductive harm. Exposure to benzene can cause leukemia. Exposure to benzene during pregnancy may affect development of the child. It may also harm the male reproductive system.”

This is not the image that ArtNaturals seeks to project. The complaint quotes its website as saying that “ArtNaturals was born out of a desire to free beauty from high prices, toxic chemicals and all-around bad vibes,” and that its products are “CHEMICAL FREE—We use only nourishing, natural ingredients to boost your beauty with no preservatives, parabens, or phthalates to drag you down.”

Furthermore, the company claims that its hand sanitizer is “plant-based” and “natural” as well as “Recommended for Repeated Use” and “Safe for Kids.”

The FDA considers hand sanitizers to be over-the-counter (OTC) drugs, subject to the Food, Drug, and Cosmetic Act (FDCA). Since ArtNaturals does not disclose that its hand sanitizers contain benzene, the complaint alleges that it is misbranded or mislabeled.

The complaint claims, “Until early March 2020, the FDA did not allow any benzene in hand sanitizer products given its carcinogenic and reproductive toxicity potential.”

However, as the Covid-19 pandemic increased the demand for hand sanitizers, outstripping the supply, more companies began producing the product and the FDA brought out a Temporary Policy for Preparation of Certain Alcohol-Based Hand Sanitizer Products During the Public Health Emergency (Covid-19), Guidance for Industry. The new Guidance established a temporary limit for benzene of 2 ppm.

In March 2021, the analytical laboratory Valisure found high levels of benzene and other contaminants in hand sanitizers from different makers. It submitted a citizen petition to the FDA later that month, reporting its testing results. The complaint alleges, “The hand sanitizer products with the highest levels of benzene in Valisure’s testing were those marketed by [ArtNaturals]. Two samples of … ArtNaturals-branded hand sanitizer products tested by Valisure contained benzene at 16.1 and 15.2 ppm—approximately eight times the emergency, interim limit established by the FDA.”

Respondus Proctoring Software Uses Student Biometrics BIPA Class Action

Respondus, Inc. offers “online proctoring software” that is meant to allow students to take tests remotely while preventing cheating. However, the complaint for this class action alleges that the company actually “provides sophisticated digital surveillance technologies to third parties” which invade students’ privacy. It also alleges that the company collects “everything from a student’s facial features to their voice” without properly informing students and without fulfilling the requirements of Illinois’s Biometric Information Privacy Act (BIPA).

The class for this action is all persons who took an assessment using Respondus Monitor in Illinois at any time between April 2, 2016 and January 20, 2021.

Because of the coronavirus, many schools have moved learning and/or testing online. Students have little to say about this; if their school is using certain software programs, the students are generally required to download and use them.

The complaint alleges, “One of Respondus’ automatic proctoring tools, called Respondus Monitor, captures, uses, and stores vast amounts of data, including facial recognition data, facial detection data, recorded patterns of keystrokes, eye monitoring data, gaze monitoring data, and camera and microphone recordings to effectively surveil students taking online exams.”

For example, the complaint says that “Respondus’ website and marketing materials acknowledge that the Respondus Monitor tool uses facial recognition technology to determine, among other things, whether the person who started the exam switches to a different person along the way.”

The results flow into another of its programs, Review Priority, which ranks results for the risk that a violation of the testing rules have occurred. Instructors can check flagged events to see if they should be given deeper scrutiny.

Are students aware of all this data collection and storage? No, the complaint says: “Respondus does not disclose or obtain written consent” before it collects biometrics; and it “fails to disclose what it does with that biometric data after collection and does not comply” with the BIPA “retention and destruction requirements for private entities that possess biometric identifiers or biometric information.”

In various states and at various universities, students and faculty have been petitioning officials to terminate their contracts with online proctoring companies.

This class action, the complaint says, aims to enforce legal rights under BIPA for the collection, storage, and use of biometrics. Biometrics are unique to specific persons, and if they are compromised, they cannot be changed.

Respondus updated its Monitor Privacy Policy on January 21, 2021. The complaint says that all of its references to the Monitor Privacy Policy refer to the previous policy, in effect before January 21, 2021.

Walgreens “Usual & Customary” Generic Drug Prices Class Action

This class action alleges that Walgreens artificially inflates its “usual and customary” prices on certain generic prescription drugs. The complaint claims that Walgreens charges lower prices for the drugs to its cash-paying customers who do not have health insurance, if they enroll in something it calls its Prescription Savings Club (PSC).

The plaintiffs in this case are a number of individual consumers and third-party payors, including the International Brotherhood of Electrical Workers Local 38 Health and Welfare Fund, the International Union of Operating Engineers Local 295-295c Welfare Fund, and Steamfitters Fund Local 439.

According to the complaint, “[a] pharmacy cannot charge to a consumer or report to a third-party payor a higher price for prescription drugs than the pharmacy’s ‘usual and customary’ (‘U&C’) price. The U&C price is referred to by Walgreens and known throughout the pharmacy industry as the price that the pharmacy charges the cash-paying public.”

But Walgreens does not do this, the complaint claims; instead, the complaint alleges that it “maintains an undisclosed, dual pricing scheme for the generic prescription drugs available through the PSC.” Thousands of generics are on the PSC formulary drug list, and Walgreens provides discounts off their prices as long as the customer is paying in cash. The complaint thus claims that these prices are Walgreens U&C prices for these drugs.

The complaint alleges that the prices that Walgreens usually gives third-party payors for these drugs are therefore inflated, and consumers are also overcharged because of their copayments, coinsurance, and deductibles. It shows comparisons of the prices charged to the plaintiffs in this case as opposed to those charged to cash-paying individuals.

Page 6, for example, shows a chart of sample prescriptions obtained by one of the individual plaintiffs, Dorothy Forth, where, for example, she paid $40 for a prescription while the PSC price was $15. The complaint states, “Ms. Forth reasonably believed that because she pays premiums for health insurance with prescription benefits coverage that she would pay at least the same as and not more than a cash-paying customer for her prescriptions filled at Walgreens.”

Other large retailers like Walmart and Target have been offering generic prescription drugs to customers at very low prices. However, the complaint claims they report these prices as their U&C prices for those with insurance as well.

The Nationwide Class for this action is all persons or entities in the US and its territories who, during the class period, bought or paid for some or all of the price of generics that Walgreens includes in its Prescription Savings Club formulary, for consumption by themselves and their families, or by their members, employees, insureds, participants, or beneficiaries.

In the alternative, a Multi-State Class has been proposed, involving those in Arizona, California, Colorado, Connecticut, Delaware, Florida, Georgia, Iowa, Illinois, Louisiana, Massachusetts, Minnesota, Nevada, New Mexico, New York, North Carolina, Ohio, Pennsylvania South Carolina, Texas, and Wisconsin.

ADT Technician Accessed Cameras in Private Homes Class Action

In April 2020, ADT, LLC (which does business as ADT Security Service) told customer Randy Doty that the technician who had installed his security system had granted himself access to their cameras and had spied on him and his family. This class action brings suit against ADT and the technician, Telesforo Aviles, on behalf of Doty and the other families who were spied on over a seven-year period.

The class for this action is all individuals in the US who live in a household with an ADT Pulse security system but are not the account holder, (2) where the security system was remotely accessed by an employee or agent of ADT without the account holder’s authorization. A subclass has also been proposed, of all in the above class where the employee or agent was Telesforo Aviles.

According to the complaint, ADT calls itself “#1 in smart home security” with a 145-year history in the home security business—yet, the complaint accuses, it has not managed even to secure its own systems. The complaint alleges that the company left “large vulnerabilities in its Pulse application that compromised the privacy and security of the customers who had requested it.

This vulnerability allowed the installing technicians to grant themselves—or anyone else—access to the application, the complaint alleges, so that they were able to control the system, including by “surreptitiously opening locks, disarming their system, and viewing and downloading security camera footage.”

According to the complaint, “[t]his vulnerability allowed Aviles—as he admitted in a later guilty plea—to watch people in their homes through the cameras for his own sexual gratification. He would watch customers naked and engaging in sexual activity, which he did hundreds and hundreds of times over, for years, without detection.”

In the meantime, the complaint claims, “ADT bragged that it was leading the industry in establishing ‘best practices’ for the protection of consumer privacy, one of which was strict standards for access to data, promising that ‘[s]ecurity providers will only share audio or video with first responders with their customers’ prior consent, or as required by law, and will not otherwise access a customer’s audio or video without the customer’s knowledge.”

When the news about its technician’s spying first emerged, the complaint says that ADT first tried to protect itself by trying to get releases from affected customers in exchange for a payment that the complaint calls “a fraction of the value of their claims.” “This effort,” the complaint alleges, “directed by lawyers but carried out only by customer service representatives, failed to determine whether individuals were represented by counsel, and attempted to mislead them into believing that the release would cover account holders and non-account holders in the household alike.”

It is possible that other technicians accessed cameras as well, the complaint says, and that customers’ private activities were downloaded even posted to the Internet without their permission or knowledge.

Apple Asked to Restore Gambling Losses in Tennessee Class Action

This class action brings suit against Apple, Inc., alleging that it facilitates illegal gambling. The complaint asks for the recovery of money lost at this illegal gambling, pursuant to a provision in the Code of Tennessee. It claims that “Apple promotes, enables, and profits from games downloaded from the App Store … that constitute illegal gambling under the statutory law and the strong public policy of the state of Tennessee.”

Apple maintains tight control of its iOS operating system. “In order to sell apps in the App Store,” the complaint claims, “developers must submit their programs to Apple, which then decides whether the app may be included in the App Store and thus downloaded to iOS devices.”

Apple also takes as much as 30% of all revenue generated by the apps. It can do this because it requires that app makers use its payment interface to process the revenue.

Apple’s App Store, the complaint says, sells “games that are no more or no less than casino-style slot machines, casino[-]style table games, and other common gambling games.”

When customers open such apps for the first time, they have a number of “coins” with which to begin to play. Eventually, customers lose all the coins originally provided. At that point, they are invited to use real money to buy more coins so they can keep playing the game.

The complaint alleges that Apple already has the ability to “geo-restrict” games so that they can only be played in certain states, where they are legal.

The law in Tennessee forbids playing to win anything of value, including free plays.

Apple also promotes the gambling games, another thing that is illegal in Tennessee. A further offense in the Tennessee Code is “Aggravated gambling promotion” where “[a] person commits an offense who knowingly invests in, finances, owns, controls, supervises, manages or participates in a gambling enterprise.”

Tennessee also permits people to recover money paid and lost due to gambling within ninety days from the time of the payment or delivery of the money.

The class for this action is all Tennessee residents who downloaded, played, and paid money for additional coins within games from the Apple App Store that included slots, roulette, blackjack, poker, keno, craps, and other kinds of casino-style gambling games, bingo, or simulations thereof, where the player had a chance to win coins or other means to play for additional time, between July 24, 2020 and a date to be set by the court after the class is certified in this case.

Thompson Creek Windows Falsely Marketed as Energy Star Class Action

Many consumers want to buy products that have the Energy Star mark, as they believe these projects use less energy, lower electricity bills, and are beneficial for the environment. The complaint for this class action alleges that Thompson Creek Window Company claimed that certain of its window models were Energy Star-certified when they were not.

Alternative classes have been proposed for this action. The Multi-State Class is all those who bought the Mislabeled Windows in Maryland, Virginia, or the District of Columbia during the class period. Alternatively, the complaint proposes Maryland and/or Virginia state classes.

In order for a window to get an Energy Star certification, it must meet certain requirements in the categories of U-Factor, Air Leakage, and Solar Heat Gain Coefficient, based on climate zone. Energy Star windows generally cost more, but they also can reduce energy bills and carbon footprints.

At issue in this case are TC 900/7900 and 7800 St. Claire double-paned windows. The complaint claims that Thompson falsely represented that these windows were Energy Star-certified.

The complaint alleges, “because Energy Star is widely recognized as the preeminent designation for energy efficient products, participation in the Energy Star program has a significant impact on the marketability and pricing of windows.”

To get the Energy Star certification for its windows, Thompson Creek needed to participate in the nonprofit National Fenestration Rating Council’s (NFRC’s) certification program. In 2010, NFRC issued new, more stringent testing requirements. It permitted companies whose products failed the testing to have some time to arrive at compliance.

Thompson’s double-paned windows contained argon gas and were built using spacers. Spacers perform important functions in double-paned windows, and Thompson used two different types made by Quanex. Quanex periodically inspected Thompson’s facilities, and the complaint says Quanex “identified problems in Thompson Creek’s manufacturing process…”

The complaint alleges, “Thompson Creek’s machinery was dated and the spacers were faulty. Although Thompson Creek was able to create double paned windows that could hold the insulating argon gas fill when the windows came off the production line, the windows failed when subjected to months of varied environmental conditions at the Testing Lab.

Thompson tried to make improvements and resubmitted the windows roughly every eight months, but they did not pass the tests. The complaint alleges that Thompson chose to use the Energy Star designation anyway.

Sometime around 2018, the complaint alleges that Thompson chose to use only one kind of spacer in its windows. It says that, “[u]pon information and belief, from at least January 1, 2014 to December 31, 2018,” the windows at issue did not meet Energy Star certification requirements, but Thompson continued to label and promote them as if they did.

The Federal Trade Commission (FTC) sent Thompson a warning letter in 2012, asking it to reevaluate certain of its marketing materials. The coordinator of the verification program sent the company an e-mail in July 2015, containing the statement, “Thompson Creek Window Company is not in compliance with Energy Star…”

Credit Union of New Jersey Overdraft Fees Without Overdrafts Class Action

Credit Union of New Jersey (CUNJ), the complaint for this class action alleges, charges customers overdraft fees when their accounts are not actually overdrawn. The complaint claims that account statements for the plaintiff in this case show that the account never actually had a negative balance, but that CUNJ still assessed her overdraft fees, and it claims that CUNJ has followed procedures that have caused others to be assessed such fees as well.

Checking accounts with CUNJ are governed by a document called “Membership Agreement and Disclosures.” Among the provisions in this document on the subject of overdraft fees, the document specifies that if a check, draft, or other transaction is presented that “results in insufficient funds in your account,” the account holder agrees to pay the overdraft and any fee CUNJ assesses as an overdraft fee.

CUNJ’s “Extended Coverage Consent Form” puts it more succinctly: “An overdraft occurs when you do not have enough money in your account to cover a transaction, but we pay it anyway.”

However, the complaint claims this is not true: “In breach of this promise, CUNJ routinely charges overdraft fees resulting from transactions for which there were sufficient funds to cover the item in question and did not actually overdraw the account…” In support of this, it points to the experience of plaintiff Angela Baylor-Baker.

On May 5, 2020, Baylor-Baker made a $39.80 POS card purchase from Walmart.com. Her balance at the time was $109.45. This left her with a balance of $69.65, from which CUNJ took an overdraft fee of $30. Later in the day, she made a POS card transaction of $23.51, which left her with a balance of $16.14. Despite this, she was charged another $30 overdraft fee.

A similar series of events took place on June 10, 2020. Baylor-Baker presented an ACH transaction for $14.29, when her account balance was $108.13. CUNJ charged her a $30 overdraft fee for paying the transaction, even though her account still had a balance of $93.84. Later that day, she made a payment of $17.05 to pay her Netflix bill, leaving her with a balance of $46.79. CUNJ then charged her a $30 overdraft fee, even though the transaction had not left a negative balance in the account.

The complaint alleges that CUNJ has violated its own account agreements with Baylor-Baker and other customers.

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

The Nationwide Sufficient Funds Class is all CUNJ checking account holders in the US who, within the applicable statute of limitations period, were charged one or more overdraft fee because of a transaction that did not overdraw their accounts.

The New Jersey Sufficient Funds Subclass is all CUNJ checking account holders in New Jersey who, within the applicable statute of limitations period, were charged one or more overdraft fee because of a transaction that did not overdraw their accounts.