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Article Type: Lawsuit

Eureka Casino Hotel Data Breach Compromises PII Class Action

Rancho Mesquite Casino, Inc., which does business as Eureka Casino Hotel, says the complaint for this class action, suffered a large data breach that ran from November 9-13, 2022, exposing the personally identifiable information (PII) of casino customers and possibly employees. The complaint faults Eureka for maintaining the data “in a reckless manner” and failing to take adequate measures to prevent the data breach.

Two classes have been proposed for this action:

  • The National Class is all persons whose PII was compromised in the cyberattack that Eureka discovered on or around November 12, 2022, that took place between November 9-13, 2022, and who were sent notice of the data breach.
  • The California Class is all residents of California whose PII was compromised in the cyberattack that Eureka discovered on or around November 12, 2022, that took place between November 9-13, 2022, and who were sent notice of the data breach.

The complaint alleges that the information stolen in the data breach includes Social Security numbers and driver’s license numbers, and possibly other sensitive information, such as financial account numbers and debit or credit card information.

According to the complaint, the information of more than 229,000 persons was involved. It also claims that Eureka only informed the individual victims around a month later, on December 9, 2022, and also on or around February 16, 2023.

The complaint suggests that “the mechanism” used in the attack and the “potential for improper disclosure” of the information “was a known and foreseeable risk to [Eureka], and [Eureka] was on notice that failing to take steps necessary to secure the Private Information from those risks left that property in a dangerous condition.” The complaint also claims that Eureka and its employees did not properly monitor its computer systems, because the cyberattack would have been discovered sooner.

According to the complaint, Eureka only became aware of the intrusion into its systems when the cybercriminals encrypted its systems in a ransomware attack. The complaint claims that Eureka did not itself encrypt the information in its systems, so that the intruders were able to steal legible information.

The complaint alleges that the restaurant and hospitality businesses have been targeted more and more often by cybercriminals in recent years. “In fact,” it claims, “a similar data breach occurred recently involving another casino/restaurant in Nevada, where the defendant is facing a similar class action lawsuit in this District Court.”

The Federal Trade Commission (FTC) publishes guidelines for businesses for establishing reasonable cybersecurity practices. The complaint alleges that Eureka did not comply with these guidelines and also did not comply with industry standards for cybersecurity.

OB “Organic” Tampons Contain PFAS Class Action

Consumers these days prefer natural and organic ingredients, without chemicals or artificial ingredients. Edgewell Personal Care Company offers OB Organic tampons, but the complaint for this class action alleges that the product, which is advertised as containing no potentially harmful
Chemicals, does contain per- and polyfluoroalkyl substances (PFAS), which the complaint alleges has “a toxic, persistent, and bioaccumulative nature” possibly posing health concerns.

Three classes have been proposed for this action:

  • The Nationwide Class is all persons who, during the fullest period allowed by law, bought the tampons in the US within the applicable statute of limitations, for personal use and not for resale, until the date the Notice is sent out in this lawsuit.
  • The Multi-State Consumer Protection Class is all persons who, during the fullest period allowed by law, bought the tampons in California, Florida, Illinois, New York, Massachusetts, Michigan, Minnesota, Missouri, New Jersey, and Washington, within the applicable statute of limitations, for personal use and not for resale, until the date the Notice is sent out in this lawsuit.
  • The California Class is all persons who, during the fullest period allowed by law, bought the tampons in California within the applicable statute of limitations, for personal use and not for resale, until the date the Notice is sent out in this lawsuit.

The complaint speaks about “increased concern” among women about chemicals in tampons and other menstrual products: “These concerns arise, in part, from the fact that the vagina and vulva absorb chemicals at a higher rate than other areas of the body.”

Edgewell makes the OB Organic tampons, promising that they are “100% Organic Cotton.” Page 3 of the complaint reproduces an image of the front of the box, including this promise, and two others: “Free from chlorine” and “No fragrances or dyes.”

The following page bears an image of the back of the box, which also promises, “Made from 100% certified organic cotton—from tip to string,” “Responsibly sourced. Free from pesticides,” and “Only what you need, nothing you don’t.”

The complaint alleges that Edgewell makes these promises “in order to lead reasonable consumers to believe that the Tampon Products do not contain any potentially harmful chemicals[,]” particularly as they are intended to be used internally.

Unfortunately, the complaint alleges that the tampons contain PFAS, which are not natural and have been associated with many health concerns. The complaint lists some of these concerns as “decreased male and female fertility, negative developmental effects or delays in children, increased, risk of cancers, liver damage, and thyroid disease, adverse impacts on the immune system, interference with hormones and increased cholesterol levels.”

According to the complaint, testing has shown that the tampons contain PFAS: The “independent testing was conducted in accordance with accepted industry standards for detecting whether the Tampon Products contain organic fluorine, which is a surrogate for PFAS chemicals.”

Snapple “All Natural” Juice Drinks Labeling Class Action

Snapple Beverage Corp. makes Snapple brand fruit drinks that it advertises as being “All Natural,” although the complaint for this class action alleges they contain both citric acid, a chemical preservative, and added coloring. It claims that the product labeling is misleading.

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 Wyoming, Idaho, Iowa, and Montana who bought the product during the applicable statutes of limitations.

Page 1 of the complaint reproduces an image of a Snapple Apple juice drink, showing a large apple and apple wedge on the front label along with the words “All Natural.”

Consumers are attracted to “All Natural” products these days for a number of reasons, the complaint alleges, including that they believe that synthetic ingredients are not as healthy and not as good for the environment. “According to a recent Nielsen survey,” the complaint alleges, “a significant majority of consumers are willing to pay more for foods with natural ingredients as opposed to artificial ingredients.”

Page 2 of the complaint displays an image of the ingredient panel of the drink which shows the presence of “Citric Acid” and “Vegetable and Fruit Juice Concentrates (for Color)…” The complaint alleges that the presence of both these things is incompatible with the “All Natural” claim.

Originally, the complaint alleges, all citric acid was natural and made from citrus fruit. “For over a hundred years,” the complaint claims, “none of the production of citric acid has been natural because it is made beginning with fermentation from the Aspergillus niger mold.” The resulting citric acid, the complaint says, “must be recovered through numerous chemical reactions with synthetic mineral salts and reagents.”

The complaint also alleges that federal regulations require that when chemical preservatives are used in a food, the label must show both its common or usual name and its function, such as “preservative” or “to retard spoilage” or “to promote color retention.” The Snapple product does not identify the citric acid’s function, the complaint claims, or the fact that it is a chemical preservative.

The identification of the added color is also a problem, the complaint alleges: “The definition of natural includes the absence of added color, regardless of source.” Also, the complaint claims, while the added concentrate is natural, “it is not from apple and pear juices.”

Finally, the Nutrition Facts label shows calories and nutrients based on two different sizes, 8 ounces (half the bottle) and 16 ounces (the whole bottle). But the complaint alleges that the reference amount customarily consumed (RACC) for drinks that are not carbonated is 12 ounces. Furthermore, when consumers have a 16-ounce bottle of a drink, the complaint alleges, they will consume the whole bottle, so that the 8-ounce serving size is not appropriate.

Robitussin Naturals Honey and Ivy Cough Relief Claims Class Action

GSK Consumer Health, Inc. makes a Robitussin Naturals “Cough Relief” product that it promotes as a dietary supplement that contains no artificial colors, flavors, or preservatives but relieves coughs. The complaint brings suit against the company for three reasons—for its “natural” claims, for its druglike claims, and for claims that honey and ivy extract can relieve coughing.

Two classes have been proposed for this action:

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

According to the complaint, many consumers are looking for natural products and may even seek out natural remedies rather than traditional over-the-counter (OTC) medicines for things like coughs. This may be because they distrust OTC medicines for young children, the complaint alleges, or because they “believe standard OTC and prescription products merely suppress symptoms, while natural alternatives work in concert with the body’s healing mechanisms.”

Natural Claims
Page 1 of the complaint shows an image of the product bottle, its label showing the statement “Free from artificial colors, flavors & preservatives.” However, the complaint alleges that this statement is false, because the product contains citric acid, a synthetic preservative.

Citrus acid was originally natural, derived from citrus fruit. However, the complaint alleges, “For over a hundred years, the production of citric acid has not been natural because it is made beginning with fermentation from the Aspergillus niger mold.” Fermentation can in some instances be a natural process, the complaint alleges, but “the multiple chemical reactions, synthetic mineral salts and synthetic reagents required for extracting citric acid mean it is not a natural preservative, but an artificial one.”

Druglike Claims
In addition, the claim of “cough relief” on the front label, the complaint alleges, is a “disease claim” that dietary supplements are not permitted to make. “By promoting the Product as providing ‘cough relief,’” the complaint claims, “it tells purchasers that it is effective for treating an upper respiratory infection (‘URI’), which is the cause of the common cough.”

Even the placement of the product in stores, alongside regular OTC cough medicines, the complaint claims, leads consumers to think that it is equally effective at stopping coughs.

Honey and Ivy Ingredients
Finally, the honey and ivy extract are supposedly the ingredients included to provide relief from coughing, but the complaint alleges that these substances cannot do this “because they are unable to act on the areas causing coughs.”

Apple Recovery Leaves Validation Rights Out of Debt Collection Letter Class Action

The Fair Debt Collection Practices Act (FDCPA) regulates the actions of third-party debt collectors when they are trying to collect consumer debts. This class action brings suit against one such debt collector, Apple Recovery Services Corp., claiming that the company sent out collection letters that did not provide information to consumers about their rights regarding having the debt validated, as required by the FDCPA.

The class for this action is all persons living in the US who, between February 20, 2022 and February 20, 2023 received a debt collection letter from Apple Recovery that did not tell them of their right to request validation of the alleged debt. A California subclass has also been defined for those in the above class who live in California.

The FDCPA is a federal law; however, California has a similar state law, the Rosenthal Fair Debt Collection Practices Act (RFDCPA), that makes reference to parts of the federal law. These laws are meant to stop debt collectors from using abusive practices to try to collect debts and to forbid them to mislead or confuse consumers or otherwise use unfair tactics.

One thing the FDCPA requires is that third-party debt collectors provide certain information to consumers when they make their first contact with them (or very soon thereafter). Among other things, they must tell consumer about certain rights they have to validate the debt they are accused of owing.

The plaintiff in this case, David Maillet, received a debt collection from Apple Recovery that was dated January 15, 2023. It claimed to be trying to collect a debt from him of $3,891.89 that originated from Texaco Oil.

The letter, the complaint alleges, gave Maillet three options for settling the debt, which were presented as only being valid until February 10 of that year. But the letter also made a significant omission.

“In the letter,” the complaint alleges, Apple Recovery “did not inform [Maillet] of his right to request validation of the debt, nor did it information [Maillet] that [Apple Recovery] would assume the debt was valid if he did not dispute the validity of the debt within thirty days of receipt of the letter.”

Also, the complaint alleges, the letter does not tell Maillet that if he sends Apple Recovery a written notice that he disputes the debt, within thirty days of receiving the collection letter, the company must verify the debt in writing.

The complaint further implies that the February date for the acceptance of the settlement plans “overshadows” the thirty-day dispute period.

Google Pixel 6 Smartphone Fast Charging Claims Class Action

If a smartphone advertises that it “Charges 50% in about 30 minutes,” can it actually charge that fast? And how long should it take to charge completely? The complaint for this class action takes issue with the claims it alleges Google North America, Inc. makes for its Pixel 6 smartphones and their charging abilities.

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 Arkansas, Montana, Wyoming, Utah, Idaho, and Alaska who bought the product during the applicable statutes of limitations.

Page 1 of the complaint shows an image of the Pixel 6 smartphone with a claim beside it: “Charges 50% in about 30 minutes. And charges your headphones.” The complaint alleges, “This promise of faster charging speeds is misleading for multiple reasons.”

First, the complaint points out that this particular advertising does not disclose that the charging must be done with a particular charger, the Google 30W USB-C Charger, which costs $30 and uses the USB Power Delivery PPS charging protocol. But even when this is disclosed, the complaint alleges, the information is not accurate.

Independent testing, the complaint alleges, showed that “the maximum power obtained from both the Pixel 6 and Pixel 6 Pro is just 22W, with an average of just 13W over a full cycle[.]” Charging speeds do not get close to the promised 30W, the complaint says, even with the special 30W charger.

The claim that the smartphone “[c]harges 50% in about 30 minutes” is also misleading, the complaint says, pointing to “a lengthy footnote with numerous caveats and exclusions” that ordinary consumers may not even see. The complaint quotes the footnote as saying, in part, “Charging testing conducted … on pre-production hardware and software using default settings… Charging speed depends upon many factors including usage during charging, battery age and ambient temperature.”

Also, the complaint alleges, that same claim leads consumers to believe that the phone will charge 100% in around an hour. Startlingly, however, the complaint alleges that the “full charge from near empty takes over two hours.” This is because, it claims, the fast charging draws more power at the beginning of the charging process, then gradually drops to 2.5W, with the second 50% taking “three times as long” as the first.

Why does the phone not draw the advertised 30W from the charger? The complaint suggests several reasons, including that the Pixel 6 itself is at fault, with other smartphones drawing more power: “For example, the Samsung Galaxy, with the same battery capacity of 5,000 mAh, ‘draws 25W from the same plug and even hits peaks of 28W before reducing its charging power at the 50% mark,’” and completes its charge in 49 fewer minutes.

The complaint also faults the Pixel 6’s charging algorithm, which it claims is the same as for older versions and cannot take advantage of the full 30W.

Blue Diamond “Smokehouse” Almonds Not Actually Smoked Class Action

Blue Diamond Growers makes bags and cans of almonds that are labeled as being “Smokehouse” almonds. But the complaint for this class action alleges that this name is misleading because the almonds are not actually made in a smokehouse but have added, liquid smoke flavoring.

Two classes have been proposed 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 Puerto Rico, the US Virgin Islands, American Samoa, Guam, and Arizona who bought the product during the applicable statutes of limitations.

The first page of the complaint shows the front of a bag and a can of the almonds, showing the words “Blue Diamond Almonds” and “Smokehouse,” with a picture of the almonds and red and orange coloring that calls up the image of fire.

Smoking is a way preparing and preserving protein-rich foods by cooking them with smoke over a fire of wood chips. Different kinds of wood add different flavors. A “smokehouse” is a place where smoking is done. When almonds are smoked in an industrial process, they are spread on a tray and placed in an enclosed structure that is also known as a “smokehouse.”

Many consumers have come to believe that natural ingredients and processes are healthier and provide better quality than synthetic or chemical ones. The complaint alleges that “consumer research company Mintel determined that the last two decades have seen a resurgence in consumer demand for foods made through natural processes, like [smoking] in a smokehouse, without advanced chemistry and synthetic ingredients.”

According to the complaint, the “European Food Safety Authority (‘EFSA’) [has] confirmed that smoke flavorings contain compounds at levels high enough to pose a toxic risk when consumed.”

The complaint refers to food regulations, saying, “Where a food’s flavor does not come exclusively from a characterizing ingredient or processing method, but contains natural flavor derived from that ingredient or processing method, this must be disclosed to consumers on the front label, in addition to on the ingredient list.”

It quotes a statement from the Food and Drug Administration (FDA) as warning, specifically, “If these smoke ingredients [natural smoke flavor] are added flavors, they should be declared … [on the front of the label]; however, if these ingredients describe the smoking process, then they must not be listed as ingredients in the ingredient statement.” The FDA has also said that a label “should not include the term ‘smoked’” or other, similar terms, the complaint alleges, which do not properly represent whether the food in question was subject to actual smoking.

Page 7 of the complaint reproduces the ingredient label, which shows “Natural Hickory Smoke Flavor.”

The complaint alleges, “Added smoke flavor is unable to make the Product taste like it was made in a smokehouse for several reasons.”

Hu Organic Simple Dark Chocolate 70% Cocoa Bars Lead Content Class Action

This class action springs from testing of dark chocolates done by Consumer Reports that uncovered concerning levels of lead and cadmium in certain dark chocolate bars. It brings suit against Hu Products, LLC, Hu Master Holdings, LLC, and Mondelez International, Inc., alleging that Hu’s Organic Simple Dark Chocolate 70% Cocoa bars contain excessive amounts of lead.

The class for this action is all consumers who bought the products anywhere in the US during the applicable statute of limitations. A New York subclass has also been proposed for those in the above class who bought the products in the state of New York.

For its testing, Consumer Reports used California’s Maximum Allowable Dose Levels (MADLs) for the heavy metals. According to the complaint, the MADL for lead is 0.5 micrograms, and “Consumer Reports found that Hu’s Organic Simple Dark Chocolate 70% Cocoa product contained 210% of the MADL of lead.”

The complaint alleges that the MADLs are “a regulatory standard for chemicals causing reproductive toxicity.” But the complaint alleges that no level of lead is safe to ingest. It quotes the Mayo clinic as saying, “Lead poisoning occurs when lead builds up in the body, often over months or years. Even small amounts of lead can cause serious health problems. Children younger than 6 years are especially vulnerable to lead poisoning, which can severely affect mental and physical development. At very high levels, lead poisoning can be fatal.”

The complaint alleges that Hu and Mondelez “knew and could not be unaware of the existence of lead in the Products. [Hu and Mondelez] source the ingredients and manufacture the Products, and have exclusive knowledge of the quality control testing on the Products and the ingredients contained therein.” The complaint also claims that the companies test their products for quality control and receive Certificates of Analysis and other certifications from suppliers of the ingredients used to create the products. These documents will also disclose the levels of chemicals, such as lead, contained in each constituent ingredient.”

Even so, the complaint alleges, the companies present the brand as a “health and wellness” one, representing that their products are “clean,” “organic,” “better for you,” and made with “simple, close to nature ingredients.” It quotes Hu as saying, “We obsessively vet every ingredient to unite unbeatable taste with unmatched simplicity.” The complaint also reproduces part of an ad for the chocolate bars which offers a trademarked promise: “No Weird Ingredients. Ever.”

However, in light of the Consumer Reports findings, the complaint calls these representations “false, misleading, and deceptive[.]” No disclosure is made anywhere on the packaging that the products contain lead.

Michaels Excessive Use Tax Charges on Sales to Missouri Class Action

When retailers sell their products to Missouri customers remotely—that is, through the Internet, by telephone, or via catalog—and ship them to Missouri from an out-of-state facility, Missouri requires that the retailers charge customers a use tax of 4.225%. The complaint for this class action alleges that Michaels Stores, Inc. charges Missouri customers a significantly higher rate of tax on their purchases.

The class for this action is all persons who bought a product from Michaels, for personal, family, or household use, through a remote sales channel, including the Michaels website, that was delivered from an out-of-state facility to a Missouri delivery address.

The plaintiff for this class action, Amber Kelly, lives in Blue Springs, Missouri. On January 4, 2023, the complaint alleges, she placed an order for twenty-one Gildan Short-Sleeve T-Shirts from the Michaels website that were intended for personal, family, or household use.

The complaint alleges, “Missouri state law mandates that retailers charge a ‘use tax’ on sales of their products through remote means …to Missouri purchasers that are shipped from an out-of-state facility. … There are also additional local use taxes that are imposed on sales made through remote sales channels based on the delivery address of the Missouri purchasers.”

According to the complaint, the Missouri Department of Revenue decrees that the appropriate tax rate for sales through remote sales channels to Kelly’s address is 4.225%. However, the complaint alleges that Michaels charged Kelly an 8.603% sales tax.

The complaint claims, “Michaels illegally and erroneously overcharges tax monies at a higher tax rate than the correct applicable use tax rate on products purchased through remote sales channels, including from Michaels’s Internet website, that are shipped to Missouri customers from an out-of-state facility, resulting in the overcollection of monies from Missouri customers.”

The complaint claims the company has violate the Missouri Merchandising Practices Act (MMPA) because Michaels’s actions are an “illegal deceptive practice” involving “deception, fraud, false pretense, false promise, misrepresentation, unfair practice and/or concealment, suppression, or omission of material fact” with respect to the sale of the t-shirts to Kelly.

Another count is unjust enrichment, the complaint alleges, because Michaels “misrepresented the amount of tax due” for the items Kelly bought and kept the difference for itself.

The final count proposed by the complaint is “money had and received, for the excessive tax charges.

The complaint asks that the excess taxes paid be restored to class members who have been overcharged and also for “compensatory and punitive damages,” attorneys’ fees, and the costs of this lawsuit.