Purell Hand Sanitizer Deceptive Marketing Class Action

You may not have heard of Gojo Industries, Inc., but you probably have heard of its product Purell Hand Sanitizer. But are the company’s claims for its product accurate? The complaint for this class action says no. It also cites Food and Drug Administration (FDA) criticism that the product is incorrectly marketed as a drug.

The class for this action is all consumers who bought the product anywhere in the US during the class period. A New York Subclass has also been proposed for those who bought the product in the state of New York.

The complaint reproduces more than two pages of claims made for Purell products, including these:

  • “Kills more than 99.99% of most common germs that may cause illness in a healthcare setting, including MRSA & VRE.”
  • “100% MRSA & VRE Reduction[] … A recent outcome study shows that providing the right products, in a customized solution, along with educational resources for athletes and staff can reduce MRSA and VRE by 100%[]”
  • “51% Reduced Student Absenteeism”
  • “Even though norovirus is highly contagious, there are ways you can reduce the risk of its spread.”
  • “The FDA does not allow hand sanitizer brands to make viral claims, but from a scientific perspective, influenza is an enveloped virus. Enveloped viruses in general are easily killed or inactivated by alcohol.”
  • “As of today, we are not aware of any hand sanitizers that have been tested against Ebola viruses…. However, it is important to note that the Ebola virus is an enveloped virus. Enveloped viruses in general are easily killed or inactivated by alcohol.”

The complaint alleges, “The FDA determined that [Gojo’s] statements regarding the efficacy of the Products to combat Ebola, norovirus, influenza, absenteeism and common colds make the claim that the Products are ‘intended to for the diagnosis, cure, mitigation, treatment, or prevention of disease … because they are intended to affect the structure or any function of the body.’”

The complaint claims, “There are no credible scientific studies that link killing or decreasing bacteria on the skin with preventing any of the conditions [Gojo] claims the Products prevent.” Not only that, it says: “The Products’ claims are beyond those permitted for topical antiseptics which the FDA has allowed.” Finally, it alleges, “No topical antiseptic products have ever been able to achieve the results [Gojo] advertises as such outcomes are beyond the ability of ethyl alcohol solution.”

The complaint alleges that the company’s claims are deceptive in more subtle ways as well: “[Gojo’s] invocation of the Ebola virus is intended to demonstrate the potency of the Products.” “Even if the Products may not be effective against Ebola, the logic goes, consumers could reasonably expect the Products to be effective at preventing diseases less serious than Ebola, which would include practically every other known disease.”

Open World Minefaire Unwanted Text Messages TCPA Class Action

When Congress passed the Telephone Consumer Protection Act (TCPA) in 1991, telemarketers were calling more than 18 million Americans per day. According to this complaint, by 2003 and despite the law, telemarketers are calling 104 million Americans every day. The complaint opens a class action alleging that Open World, Inc. sends telemarketing text messages to promote the events it runs, such as Minefaire, in violation of the TCPA.

The TCPA makes it unlawful “to make any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using an automatic telephone dialing system or an artificial or rerecorded voice … to any telephone number assigned to a … cellular telephone service.” Telemarketing calls to wireless numbers and residential lines require “prior express written consent.”

Among the events Open World produces is Minefaire, for the Minecraft community. Visitors to the Minefaire website are offered a change to buy Minefaire tickets. If the tickets are not yet available, the website invites visitors to click a “Presale Access!” button. From there, the visitor is asked to provide a cell phone number for an “invitation” to “Early Bird Ticket Access.

However, the complaint says that those who do provide their cell phone numbers receive “numerous autodialed text messages” from Open World.

According to the complaint, the request for visitors to leave their numbers does not meet the requirements of the TCPA for “prior express written consent” to receive telemarketing calls or messages.

The complaint quotes the law as stating that, before it sends telemarketing texts, it must obtain “an agreement, in writing, bearing the signature of the person called that clearly authorizes the seller to deliver or cause to be delivered to the person called advertisements or telemarketing messages using an automatic telephone dialing system or an artificial or prerecorded voice…”

That’s not all. “The written agreement shall include a clear and conspicuous disclosure informing the person signing that (A) By executing the agreement, such person authorizes the seller to deliver or cause to be delivered … telemarketing calls using an automatic telephone dialing system or an artificial or prerecorded voice…” The complaint alleges that the “Presale Access!” area where visitors are asked for their phone numbers does not meet these requirements.

Four classes have been proposed for this action:

  • An Autodialed No Consent Class
  • An Autodialed Stop Class
  • A Stop Text Do Not Call Class
  • An Internal Do Not Call Class.

For more details on the composition of these classes, see page 11 of the complaint at the link below.

Southern California Edison Incorrect Reporting of Negative Info Class Action

Southern California Edison Company provides information to consumer reporting agencies. The complaint for this class action claims that the company has sometimes reported information on consumers that is inaccurate, thus violating the Fair Credit Reporting Act (FCRA) and the California Consumer Credit Reporting Agencies Act (CCCRAA).

The class for this action is all persons whose consumer credit reports from any of the three major credit reporting agencies reflects an inaccurate consumer credit report message by Southern California Edison where existing negative credit report information is reported as a new occurrence.

Because consumer reports are now used at so many important junctures in a person’s life—buying a home, renting an apartment, applying for a job, asking for credit for a car loan or credit card—it’s important that the information given to them be accurate. Incorrect information can result in a lower credit score, which in turn can affect major aspects of a person’s life.

Southern California Edison claims that plaintiff Robert Bohlke owes it money for home utility services. However, Bohlke says he is not responsible for that debt. Bohlke moved out of the home where the services were allegedly used in 2011. The home was “short sold,” the complaint alleges, and the Bohlke disconnected utility services to it in 2012.

In 2014, Southern California Edison reported non-payment of the alleged debt to it in May 2014. Bohlke says he wrote to the credit reporting agencies disputing the debt. In fact, the complaint says, “On multiple occasions, [Bohlke] unsuccessfully disputed the validity of the reporting, in writing, to the Credit Reporting Agencies.”

Even so, the complaint says, Southern California Edison reported the debt to the credit reporting agencies again in December 2019. Bohlke again contacted the credit reporting agencies. This time, he “was advised by the Credit Reporting Agencies they could not help him as he had previously disputed the reporting. They advised [Bohlke] to contact [Southern California Edison] directly and request the removal of the negative reporting.”

Bohlke did this, but the company “insisted [he] was responsible for the debt and advised [him] that it was [the company’s] normal business practice to renew negative reporting on consumers in perpetuity until the debt is resolved.” The complaint alleges that the company continues to report the inaccurate and derogatory information to credit reporting agencies.

The complaint alleges that this has damaged Bohlke in various ways:

  • Causing him “[e]motional distress and mental anguish” when incorrect derogatory information about him is transmitted to others.
  • Lowering his credit score, “which may result in an inability to obtain credit on future attempts.”
  • Costing him out-of-pocket expenses incurred in disputing the information and trying to get it removed from his credit reports.

Toyota Hybrids Faulty Braking System Class Action

Brakes are a pretty important part of a vehicle. The complaint for this class action alleges that certain Toyota hybrid vehicles have faulty braking systems because of defective booster pump assemblies. These can cause brakes to fail, it says, in certain Prius, Camry, or Avalon hybrids.

The class for this action is all persons or entities who bought or leased a class vehicle:

  • 2010-2015 Prius or Prius PHV
  • 2012-2015 Prius V, 2012-2014 Camry Hybrid
  • 2013-2015 Avalon Hybrid

Arkansas, Florida, and Illinois Classes have also been defined, for those in those states who bought or leased class vehicles.

The defendants include Toyota Motor Corporation, Toyota Motor Sales USA, Inc., and Toyota Motor Engineering & Manufacturing North America, Inc.

The complaint alleges that Toyota has known about the defect for some time but has not told consumers about it when they go to buy its vehicles. In fact, it was an owner of two Toyota dealerships that publicly brought the defect to light, when he petitioned the National Highway Traffic Safety Administration (NHTSA) to start an investigation into the problem. He claimed that the defect was “causing crashes that are injuring people—and Toyota is mishandling it.”

Even where owners or lessees do not experience the brake problem, the possibility of failing brakes has lowered the value of the vehicles.

Four plaintiffs bring this case:

Kamran Khan owns a 2010 Prius he bought in Arkansas. After he bought the vehicle, used, he “noticed that the brakes failed to respond to normal foot pressure, requiring Mr. Khan to apply the brake almost all the way to the floor to get the vehicle to stop.”

Raul and Cristina Rivera, who live in Illinois, bought a used 2010 Prius. Shortly after that, Mr. Rivera, who is the main driver of the vehicle, “noticed that every time he applied the brake and hit a bump in the road, the brake pedal drops to zero pressure causing the vehicle to spring forward. This causes Mr. Rivera to aggressively push down on the brake pedal to avoid slamming into vehicles in front of him.”

Finally, Yvette Winia bought her used 2012 Prius in Florida. In January 2020, her husband was driving the vehicle and passed over a pothole. When he pressed his foot on the brake, “his brakes failed, causing his vehicle to strike another vehicle resulting in damage to both vehicles.”

The complaint claims that Toyota has received reports of the defect for years. It has issued very limited recalls, but none has covered all vehicles included in this case.

Finally, in 2019, the dealership owner brought the problem to the attention of the NHTSA. He claims that many vehicles have the problem but that Toyota has been refusing to correct it until after the brake failure occurs, which puts people at risk.

Blue Diamond Growers “Smokehouse” Almonds Deceptive Labels Class Action

If a food product is labeled as having a “smokehouse” flavor, does that mean it has actually been smoked? Should it mean that? According to the complaint for this class action, Blue Diamond Growers “Smokehouse” Almonds are deceptively labeled because they do not get their characterizing flavor from actual smoking but from added flavoring.

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

The package of the Smokehouse Almonds is depicted in the complaint, with the word “Smokehouse” prominently displayed below the word “Almonds.” According to the complaint, the company further encourages consumers to think the almonds have been smoked through its use of “the color scheme evocative of the fire used in actual smoking with red and orange-red coloring…”

The process of smoking involves cooking a food over a fire containing wood chips. Different types of wood chips create different flavorings. For example, the complaint says, hickory wood chips provide “hearty yet sweet” flavors when used to smoke nuts and meat.

The complaint alleges, “Where a product designates its characterizing flavor as ‘smoke’ without any qualifying terms—flavor, flavored, natural smoke flavor, artificial smoke flavored—consumers get the impression that its smoke taste is contributed by the food being prepared through actual smoking.”

The term does have a trademark symbol next to it, but the complaint claims that this does not communicate to consumers that the nuts are not actually smoked. It quotes a part of the Code of Federal Regulations saying, “If the food contains no artificial flavor which simulates, resembles or reinforces the characterizing flavor, the name of the food on the principal display panel or panels of the label shall be accompanied by the common or usual name of the characterizing flavor…”

There is no information on the package labels showing whether the product has been prepared through the use of smoking. But the ingredient panel, reproduced in the complaint, shows something called “Natural Hickory Smoke Flavor.” Would this have been added if the nuts had actually been smoked?

The complaint compares the packaging with a similar Planters product which is labeled, Smoked Almonds, Naturally Flavored.” This, the complaint says, communicates that the flavor of smoke has been added rather than achieved by smoking.

According to the complaint, Blue Diamond Growers has engaged in negligent misrepresentation, breaches of express and implied warranties and the Magnuson Moss Warranty Act, fraud, and unjust enrichment.

Erie Insurance Depreciation of Labor on Claims Ohio Class Action

Materials used to build structures deteriorate over time. So when insurance companies assess the actual cash value (ACV) of a damaged property, they subtract depreciation according to the structure’s age. However, the complaint for this class action alleges that, while it’s fine to depreciate the materials, labor should not be depreciated. It claims that Erie Insurance Company has paid out less than it should to its insureds because it depreciates the labor required to build the structure.

Plaintiffs Timothy and Carol Stevener insured their home in Sagemore Hills, Ohio with Erie Insurance Company. When their home was damaged in June 2019, it required some replacement or repair. Erie confirmed that the loss was a covered loss and that it was obliged to make a payout to them.

The policy the Steveners’ had with Erie, the complaint says, “provides replacement cost value (‘RCV’) coverage for both total loss of and partial loss to covered dwellings and other structures and, in some cases, ACV coverage for certain structural components.”

An adjuster came out to look at the damage. The loss was valued at $9,212.04. The complaint says that this amount “covered the cost of materials and labor required to complete the repairs.” A copy of the estimate sent to the Steveners was attached to the original complaint as Exhibit A when it was filed.

Erie subtracted $1,000 for the deductible under the policy. Then, the complaint says, it subtracted “an additional $971.08 for depreciation on coverage dwelling plus $6,069.96 for depreciation of the roof and siding.” The net payment was calculated to be $1,173.

According to the complaint, “The estimate upon which Erie’s ACV payment for the Insured Property was based indicates that Erie depreciated both material costs and labor costs associated with repairs to the house.”

The complaint quotes Black’s Law Dictionary as defining depreciation as “decline in an asset’s value because of use, wear, obsolescence, or age.” Materials do decline in this way, but the complaint argues that labor “is not susceptible to aging or wear” and should not be depreciated.

The complaint claims, “The Ohio Department of Insurance and the Sixth Circuit have both determined that it is inappropriate and contrary to industry practice to depreciate labor costs when determining the ACV of structural damage claims.”

The class for this action is all Erie policyholders under any property policies issued by Erie who made (1) a structural damage claim for property located in Ohio, (2) which resulted in an ACV payment from which “non-material depreciation was withheld from the policyholder; or which should have resulted in an ACV payment but for the withholding of “non-material depreciation” causing the loss to drop below the applicable deductible. The class period is the maximum time period allowed by applicable law.

Beyond Meat and PETA Text Messages to Cell Phones TCPA Class Action

Beyond Meat, Inc. has an interesting business: It makes alternatives to food products that come from animals. It’s not surprising, then, that they have partnered in at least one activity with the nonprofit group People for the Ethical Treatment of Animals (PETA). Unfortunately, that that activity is alleged to be sending consumers unwanted text messages, in violation of the Telephone Consumer Protection Act (TCPA). At least, so says the complaint for this class action.

Congress passed the TCPA in 1991, when telemarketing calls had become a real annoyance for many consumers, due to the proliferation of automated telecommunications equipment. Companies could reach tens of thousands of people per day—a good number of whom did not want to be reached in this way.

The TCPA aimed to give consumers some control over which companies were permitted to contact them. Cell phones were a particular concern, since cell phone owners must pay for incoming as well as outgoing calls. This forces them to pay for advertisers’ telemarketing efforts.

As it stands, the Federal Communication Commission’s rules for the TCPA prohibit businesses from making non-emergency calls to consumer cell phones, using an automatic dialing system or an artificial or prerecorded voice, unless they have the consumers’ prior express written consent to receive such calls. The term “calls” in this context includes ordinary voice calls, voicemails, and text messages.

In this case, on or around January 17, 2020, PETA sent two telemarketing text messages to the cell phone of the plaintiff in this case, Nazrin Massaro.

The first message read, “DYK Beyond Meat is available at all On the Border locations? Yum! Be sure to order it at your local restaurant. <3 Melissa from PETA.” The second message was identical. The complaint alleges that the messages were sent for the benefit of Beyond Meat, and that prior to their transmission, PETA “consulted with Defendant Beyond Meat as to the content of the messages, and always received final approval to transmit the text messages from Defendant Beyond Meat.” There is an interesting twist to this case. The complaint claims, “While Defendant PETA, as a non-profit organization, would typically not be subject to the FCC’s express written consent rule, it is in this case because it was acting as a conduit for Defendant Beyond Meat, a for profit corporation, and because it was engaged in marketing. The complaint alleges that the generic nature of the messages suggests that they were sent using an automatic dialing system. The class for this action is all persons in the US to whose cell phones were sent a text message, between March 18, 2016 and March 18, 2020, using the same type of equipment used to text the plaintiff in this case, promoting Beyond Meat’s goods, from the defendants in this case or anyone acting on their behalf.

TD Bank Extra Charges for Paper Statements New York Class Action

In recent years, many consumers and businesses have begun doing as many transactions online as possible. In fact, many banks have taken to charging customers who still want paper account statements to come in the mail. In 2010, New York enacted a law that “made it a deceptive act and practice for a company to charge a fee to customers” to send them their account statements on paper via the US mail. The complaint for this class action alleges that TD Bank, NA violates this law and does charge customers for this.

The class for this action is all New York residents who were charged a fee by TD Bank to receive their account statements in paper form, between March 23, 2017 and either (a) the date the class list is prepared in this case or (b) the data TD Bank stops charging customers for receiving their statements in paper form.

The law is part of New York’s General Business Law. The complaint quotes it as saying, “[P]aper billing and payment fees unfairly impact consumers that do not have Internet access in their homes, as well as those that are uncomfortable using the Internet, including many senior citizens and those concerned about personal privacy. Paper billing and payment fees disproportionately affect low-income consumer, who are less likely to have access to the Internet.”

The complaint argues that paper account statements may serve important functions for consumers:

  • They provide a record of transactions.
  • They allow customers to check for unauthorized charges or mistakes.
  • They disclose the fees that the bank is charging.
  • They let customers make sure they received proper credit for items that are returned or disputed.
  • They help customers keep track of their finances.
  • They are a permanent record of the customer’s income, expenses, transactions, and fees.
  • They may be useful in preparing tax returns or applying for mortgages.

Even when customers have accessed information through a computer or mobile device, the complaint says, they may not be able to access that information when they want it, and they may not be comfortable monitoring an account online. It claims that details are more easily overlooked on a small mobile screen where the fine print may not be seen easily.

Paper statements are not subject to computer crashes, computer changes, or other occasions for data loss, and they will still be available even after a customer closes an account.

Plaintiff Maya Manship lives in Rensselaer County, NY and has an account with TD Bank. She gets paper statements for the account. TD Bank charges her $1 for the paper statement and a separate $5.99 account maintenance fee.

Lowe’s Managers Off-the-Clock Work South Carolina Class Action

Lowe’s Companies, Inc. and Lowe’s Home Centers, LLC operate stores that sell hardware, tools, home appliances, and repair and renovation supplies. The complaint for this class action alleges that Lowe’s employs hourly, non-exempt managers who are not compensated for all the work they perform. According to the complaint, they must perform work before and after their shifts and during their unpaid meal periods.

The class for this action is all similarly-situation current and former hourly managers who work or have worked for Lowe’s at any of their retail stores in South Carolina, at any time during the applicable statutory period.

Lowe’s full-time, non-exempt, hourly managers include department managers, service managers, and support managers, who work to oversee stores, handle departments, and manage employees. However, they are required to perform various duties when they are not on the clock.

For example, before work, they may be told to show up early for work to perform a perimeter check by driving slowly around the store to make sure that nothing unusual has happened during the night. They may have to open and close entrances, set and disarm the alarm system, and log in and out of the computer system. The complaint particularly claims that Lowe’s has failed to pay workers “for time spent reading and responding to work-related smartphone communications during non-work hours, including during unpaid meal periods…”

The complaint alleges that hourly managers “spend significant time performing this off-the-clock work, but [Lowe’s] do[es] not compensate them for it.”

This may be partly because they are told to perform this work before or after their shifts, but they cannot access Lowe’s timekeeping equipment unless they are inside the store. Hourly managers can override the timekeeping system to adjust hours for other employees, but they cannot override it to adjust their own hours.

The company promises hourly managers an unpaid sixty-minute meal period during each shift. However, the complaint claims that the managers are not, as the law requires, completely relieved of their duties during this time.

Sometimes, when managers are attempting to set the alarm system at the end of the day, they may find an error message because of partially open or unlocked doors, and they may have to spend fifteen to twenty minutes resolving the problem. Also, after they leave the store, they may find carts or flatbeds in the parking lot that should be retrieved, and they may perform these duties before they leave.

Even when they are not at the store, they are required to read and respond to work-related messages that come in to their smartphones. They are not paid for this time either.

Lowe’s operates some 2,000 stores in the US, Canada, and Mexico. Approximately fifty of these stores are in South Carolina. The complaint claims that, in requiring employees to perform off-the-clock work, Lowe’s has violated the South Carolina Payment of Wages Act.

Healthy Paws Pet Insurance Premium Increases Class Action

A number of class actions have been filed in recent years protesting allegedly excessive increases in insurance premiums. This class action has the same theme, although the defendant is Healthy Paws Pet Insurance, LLC and the insurance in question is pet health insurance. Policies are issued and administered by Healthy Paws but underwritten by various insurance companies.

The Nationwide Class for this action is all persons who, within the applicable statute of limitations, had their monthly premiums increase on a Healthy Paws pet insurance policy. There is also a California Subclass for all such persons in California.

The complaint says, “More than two million pets in the United States and Canada were insured at the end of 2017 according to the North American Pet Health Insurance Association.” However, the complaint claims that policies vary widely in terms of “what they cover, what they exclude, and what they cost…”

Plaintiff Steven Benanav bought a policy from Healthy Paws on his dog Mali, which became effective in March 2012.

The complaint quotes Benanav’s policy as saying, “Monthly premiums may change for all policyholders to reflect changes in the costs of veterinary medicine.” The complaint comments, “Thus, under the explicit terms of the Policies, Healthy Paws is authorized only to use ‘changes in the costs of veterinary medicine’ when changing monthly premiums…. Healthy Paws is not allowed to increase the cost of monthly premiums based on any other factors, including the pet’s age.”

Healthy Paws has admitted that it uses other factors in calculating premium prices. For example, when a customer complained about a substantial increase in a public forum, a representative posted a reply asserting that premiums “reflect the cost of treatment advances in veterinary medicine, your individual pet’s breed, gender, age, and other factors, in addition to the overall claims experience for the program within the region your pet resides.”

But the complaint claims that Washington’s Office of the Insurance Commissioner fined Healthy Paws and its underwriters for “numerous violations. One such violation consisted of impermissibly taking into account a pet’s age when calculating premiums” which it termed “contrary to policy language indicating the factor would remain constant.”

Between 2013 and 2020, Benanav’s premiums for Mali have increased by over 300%. The complaint alleges that the price of veterinary medicine has not increased that fast. It quotes the Nationwide Purdue Veterinary Price Index as saying that between January 2009 and December 2014, prices actually fell by 3.6%, and that between 2014 and 2018 they rose by 21.1%. This does not nearly account for the 300% increase.

Benanav claims that it’s too late to switch to another insurance company because Mali is now 13 and has “aged out” of most policies.