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Ford Underreporting of Emissions-Related Parts California Class Action

The California Code of Regulations (CCR) requires that car makers identify to the California Air Resources Board all high-cost emissions-related parts, as part of its Emission Control System Warranty Requirements, and to warrant those parts for seven years or 70,000 miles. The complaint alleges that Ford Motor Company, Inc. tries to minimize its warranty obligations by limiting the parts it reports as included under the state’s Emissions Warranty.

According to the complaint, “the CCR very clearly defines the methodology that Ford is required to use” to identify the parts that should be covered as emissions parts as well as the parts that should be covered by the 7-year 70,000-mile warranty.

The complaint alleges that a “warranted part” under this law is “any part that either [affects] a vehicle’s emissions, or causes a vehicles on-board diagnostic malfunction indicator light to illuminate…” Such parts must have a 3-year, 50,000 mile warranty, unless they are “high-priced” warranted parts, which must have a 7-year, 70,000-mile warranty.

However, the complaint claims, “Ford has engaged in a systematic business practice of omitting from the Ford warranty booklet provided to owners and lessees…, and in resources provided by Ford to its dealerships…, all of the parts that should be identified as emissions[-]related warranty parts covered under the 3-year 50,000-mile warranty and the ‘high-priced’ warranted parts [] that should be covered under the 7-year 70,000-mile California High-Cost Emissions-Related Parts Warranty.”

This practice, the complaint claims, “is intended to minimize the amount of money that Ford has to pay out in warranty claims.”

The complaint alleges that the plaintiff in this case presented his 2016 Ford Focus to a dealership for repairs, “complain[ing] that the coolant reservoir was going low while driving and that there was smoke [] coming from the rear exhaust.” The dealership, the complaint alleges, “diagnosed the Vehicle as having a cracked cylinder head and a scored wall at cylinder #3” and told him he would have to pay for the repairs. The complaint alleges that the repairs should have been covered “because the cylinder head and cylinder wall as located in the engine block are emissions[-]related parts.”

Three classes have been proposed for this action:

  • The Cylinder Head Class is all persons in California who have been owners or lessees of Ford vehicles and who have paid for repairs and parts pertaining to defective cylinder heads and cylinder walls that should have been covered under Ford’s “high-priced warranted parts” 7-year, 70,000-mile California Emission Warranty.
  • The Cylinder Wall Class is all persons in California who have been owners or lessees of Ford vehicles and who have paid for repairs and parts pertaining to defective cylinder heads and cylinder walls that should have been covered under Ford’s “high-priced warranted parts” 7-year, 70,000-mile California Emission Warranty.
  • The High-Cost Class is all persons in California who have been owners or lessees of Ford vehicles and who have paid for repairs and parts that should have been covered under Ford’s “high-priced warranted parts” 7-year, 70,000-mile California Emission Warranty.

Milliman Retirement Plan Underperforming Investments Class Action

Those in charge of company retirement plans are considered fiduciaries of those plans, and they have the duties of loyalty and prudence to plan participants. One of the things they must do is monitor the investment options offered in the plan. This class action brings suit against Milliman, Inc., its Board of Directors, and the Investment and Administrative Committees for the company’s Profit Sharing and Retirement Plan under the Employee Retirement Income Security Act (ERISA), alleging they have breached their fiduciary duties by retaining investment options that are significantly underperforming.

The class for this action is all participants and beneficiaries of the Milliman plan who invested in any of the Unified Funds, between January 13, 2016 through the date of judgment in this case.

According to the complaint, the Investment Committee selected for the plan three funds that are designated according to their levels of risk: the Unified Trust Wealth Preservation Strategy Target Growth Fund (the most aggressive), the Unified Trust Wealth Preservation Strategy Target Moderate Fund (an option intended to pose a more moderate risk), and the Unified Trust Wealth Preservation Strategy Target Conservative Fund (the one that poses the least risk of the three).

These funds come from the Unified trust Company and allocate invested assets among equity securities, bonds, and cash investments according to the desired levels of risk. (Higher levels of risk are usually associated with higher expected levels of return.) These funds were only launched in 2012, so when they were offered in the plan in 2013, they were still new and had no investment track record, the complaint alleges.

The complaint claims, “By the end of 2013, the Plan was the sole investor in the Moderate and Conservative Funds and represented about 97% of the assets of the Aggressive Fund, according to Department of Labor (‘DOL’) filings.” It adds, “Milliman’s investment adviser affiliate, Milliman Financial Risk Management LLC, is the sub-adviser to the Unified Funds offered by the Plan.”

The complaint alleges that in the years since, the plans have “significantly underperformed meaningful benchmarks, which include both benchmark indexes (including the index preferred by the Unified Funds’ investment manager itself) and comparable target risk funds.” The almost consistent underperformance is not the whole story; the complaint claims that “the depth and breadth of the underperformance is as jarring as it is incomprehensible.”

The complaint alleges, “Since January 1, 2013, the Aggressive Fund’s investment return underperformed a key investment benchmark by a cumulative total of over 62%; and it ranks in the bottom 90th percentile among the funds in its peer universe, according to the highly regarded financial services research firm, Morningstar, Inc…. In the investment world, this level of underperformance cannot be justified.”

It adds, “Over the last five-year period, the three Unified Funds have performed worse than 70% to 90% of funds within their recognized peer universe, according to Morningstar.”

According to the complaint, these funds should have been removed from the plan as investment options and replaced with better-performing alternatives.

Terminix Refunds for Cancelled Annual Contracts Class Action

Terminix International Company, LP, which does business as Terminix, is a residential pest control company that offers yearly contracts to customers. The contracts are supposedly cancellable at will, for example, if the customer sells the house. However, the complaint for this class action alleges that when customers do make such cancellations, the company refuses to provide a pro-rated refund for the unused portion of the contract.

On June 3, 2020, the plaintiff in this case, Charles M. Greene bought an annual plan from Terminix called the Subterranean Liquid Defend System Plan, for his home in Fort Lauderdale, Florida. The plan cost $345 for the period between June 22, 2020 and June 22, 2021.

A little over a month later, on July 17, 2020, Greene sold the home. That meant that his contract with Terminix was no longer useful to him. He contacted Terminix and asked them to cancel the contract and give him a refund. According to the complaint, the refund should have been for $322.31. However, the complaint alleges that Terminix refused to give Greene a refund.

After that, the complaint alleges, Greene “filed an administrative complaint with the Florida Department of Agriculture and Consumer Services, Division of Agricultural Environmental Services.” In response to this complaint, the complaint claims, Terminix acknowledged that it owed Greene a refund of $345. The complaint alleges that Terminix “knew that the fees that it was retaining were illegitimate, unfair, and contrary to the contract and public policy.”

The complaint alleges that Terminix’s conduct violates Florida’s Deceptive and Unfair Trade Practices Act (FDUTPA). According to the complaint, “Florida courts must liberally construe FDUTPA to afford the most protection to consumers.” The complaint alleges that “recognized examples of such unfair, deceptive, or unconscionable[] practices include unlawfully, knowingly, or systematically overcharging consumers, concealing or misrepresenting charges to consumers, or retaining amounts that were illegally charged.”

The complaint also claims that Terminix violated Florida’s Consumer Collection Practices Act (FCCPA) and breached its contracts with its customers.

Three classes have been proposed for this action:

  • The Breach of Contract/Unjust Enrichment Class is all persons or entities across the country who cancelled their annual service contract with Terminix before the expiration of its term and did not receive a prorated refund, between January 14, 2017 and January 14, 2022.
  • The FDUTPA Class is all persons with Florida addresses who cancelled their annual service with Terminix before the expiration of its term and did not receive a prorated refund, between January 14, 2018 and January 14, 2022.
  • The FCCPA Class is all Florida persons or entities with Florida service addresses who were charged by Terminix, or from whom Terminix retained one year’s worth of fees for less than one year’s worth of service, between January 14, 2020 and January 14, 2022.

Wilderness Sports Warehouse Accessing of Customers’ PII Class Action

This class action takes up an all-too-present topic—a data breach. It brings suit against Wilderness Sports Warehouse, LLC (which does business as Tackle Warehouse, LLC0; Sports Warehouse, Inc. (which does business as Tennis Warehouse, LLC); Running Warehouse, LLC; and Skate Warehouse, LLC. The complaint alleges that the companies are e-commerce companies that sell specialty sporting goods to customers online, due to the companies’ “negligent and/or careless acts and omissions and the failure to protect customers’ data.

The class for this action is all individuals in the US whose personally identifiable information (PII) was compromised in the data breach announced on or about December 16, 2021. A Maryland Subclass has also been proposed, for those living in Maryland.

On October 15, 2021, the complaint alleges, the companies became aware of the data breach when someone accessed payment card information from their websites, probably from an e-commerce platform they shared. The hackers stole customers’ PII, including names, addresses, payment card numbers and expiration dates, and payment card verification codes. Nearly two million customers were victims.

According to the complaint, the companies are responsible in at least three ways:

  • They did not adequately protect the PII.
  • They did not warn users of their inadequate protection.
  • They did not properly watch their websites and e-commerce platform for security problems and incidents.

The complaint quotes the Running Warehouse’s Privacy Policy as saying that the companies use “commercially reasonable ethical, physical, managerial, and technical safeguards to preserve the integrity and security of your personal information consistent with industry standards.”

However, the complaint also claims that the companies do not claim that they comply with the Payment Card Industry Data Security Standard (PCI DSS), which it says “is a requirement for businesses that store, process, or transmit payment card data.” According to the complaint, “[t]he PCI DSS defines measures for ensuring data protection and consistent security processes and procedures around online financial transactions. Businesses that fail to maintain PCI DSS compliance are subject to steep fines and penalties.”

Despite the fact that the data breach was discovered on October 15, 2021, the complaint alleges, the companies did not send out notices to the victims until around December 16, 2021. The investigation into the incident determined that the hackers had accessed information around October 1, two weeks before the intrusion was discovered.

The complaint alleges that the companies “failed to use encryption to protect sensitive information transmitted online, and unauthorized individuals accessed [the companies’] customers’ unencrypted, unredacted information…”

Finally, the complaint claims that the companies “have not offered [their] affected customers any identity protection services, which leaves affected customers unprotected from fraudulent activity stemming from the breach.”

PayPal Seizure of Customer Funds Without Notice Class Action

Lena Evans began using PayPal in August 1999. The complaint for this class action alleges, “Without any advance warning, on or about November 22, 2020, Ms. Evans learned that her PayPal account was frozen.” Later, she learned that PayPal had seized nearly $27,000 from the account without providing her with any reason why. The other two plaintiffs in this class action have had similar experiences. The complaint alleges that PayPal, Inc. has a practice of seizing funds from customer accounts without notice or explanation, alleging that the customer has violated the company’s Acceptable Use Policy (AUP).

The class for this action is all natural persons or legal entities who, within the applicable statutes of limitations, were users of PayPal who had funds taken from their accounts by PayPal, based on a purported breach of the company’s Acceptable Use Policy.

The complaint alleges that PayPal has a “widespread business practice of unilaterally seizing funds from its clients’ financial accounts, without cause and without any fair or due process.” In fact, the complaint alleges that the company has gone so far as to tell customers “that they will ‘have to get a subpoena’ to learn the simple information as to why PayPal was holding, and denying [to them], access to their own money.”

“Upon information and belief,” the complaint alleges, PayPal “seizes these funds without first obtaining any conclusive information of actual breaches by the users of the AUP—indeed, [PayPal] does so without even conducting a reasonable investigation…”

PayPal’s User Agreement is a contract of adhesion, with no opportunity given for users to negotiate terms. The complaint argues, “To interpret the ambiguous language … in PayPal’s favor is against all equity and contrary to prevailing rules of contractual construction.”

The complaint quotes the User Agreement as saying, “If [the user] violated our Acceptable User Policy, then you’re also responsible for damages to PayPal caused by your violation of this policy.” It adds, “You acknowledge and agree that $2,500.00 U.S. dollars per violation of the Acceptable Use Policy is presently a reasonable minimum estimate of PayPal’s actual damages…”

The AUP is not part of PayPal’s User Agreement. Also, the complaint claims, “These provisions explicitly only allow for [PayPal to collect damages if there has been a violation of the AUP—not merely a suspected violation, or an alleged violation. Moreover, even where there is an actual violation, users are expressly only liable to [PayPal] for [PayPal’s] ‘damages’ caused by said violation.”

The complaint further alleges that the plaintiffs in this case, whose money has been seized, have had great difficulty even contacting a human being or getting a response from PayPal as to why their funds have been seized or what they must do to get them back.

The causes of action include conversion, violations of the Electronic Funds Transfer Act, and civil violations of the Racketeer Influenced and Corrupt Organizations (RICO) Act, among other things.

Petzl Shunt May Detach from Rope During Climbing, Says Class Action

Craig Faulhaber was climbing in Haus Rock in Summit County, Colorado when his rope detached from his Petzl Shunt during a fall, claims the complaint for this class action. Faulhaber fell to the ground and was severely injured. The complaint alleges that the Shunt, made by Petzl America, Inc., does not work as advertised, and that Petzl has not adequately warned the public or recalled the device.

At the time of the accident, Faulhaber, an experienced rock climber, was “‘soloing’ utilizing a top rope method. This means that [Faulhaber] did not have another person to belay himself, instead, he relied upon the Shunt for this purpose.”

When Faulhaber fell, the complaint alleges, he “fractured approximately 12 bones including the L1 and L2 vertebrae in his back, both heels, his pelvis, knee, right elbow, sacrum, and ribs.” He is currently in a wheelchair, “unable to live freely outside of an ADA accessible hotel room.”

After the accident, Faulhaber contacted Petzl about the Shunt. He says he had an email exchange and telephone call with its Chief Operating officer, who, the complaint alleges, “was opaque about the Shunt’s testing, known use, and deficiencies … otherwise being dismissive of Faulhaber’s request for a prominent and unambiguous warning or a re-design of the Shunt.”

Furthermore, “Faulhaber advised Petzl’s Chief Operating Officer that the climbing community believes that a stopper knot is a viable backup to the Petzl Shunt while rope soloing, which Faulhaber knows today that it is not…”

Faulhaber also claims to have found a study Petzl never warned climbers about, discussing the possibility that the Shunt might release the rope during climbing. The complaint quotes it as saying that “if the Shunt is loaded when it is only a short distance above a knot on the rope, it will be prevented from slipping by the knot and high forces could be achieved. This situation is possible in rope access, and could result in the Shunt releasing the rope at forces as low as 4 kN…”

Despite all this, the complaint alleges that “Petzl has done nothing to protect or warn climbers like Craig Faulhaber.”

Just twenty days after his call with Petzl, the complaint alleges, another experienced climber, Trevor Stuart, was seriously injured while using a Shunt. The complaint alleges, “Stuart’s Petzl Shunt also failed[,] allowing his safety rope to unexpectedly detach from the Shunt[,] causing the climber to fall from 60 feet above the ground[,] causing life-threatening injuries…”

The complaint alleges that this accident might have been prevented had Petzl issued a timely warning or recall of the Shunt. According to the complaint, Petzl has still not redesigned or recalled the device and has not warned customers about it.

The counts include strict product liability—failure to reasonably warn, negligence, and fraudulent concealment, among other things. The complaint does not specifically define the proposed class or class period.

Audi Gateway Control Module Affected by Water Class Action

This class action concerns certain Audi vehicles, which the complaint alleges have defective or badly-placed gateway control modules. It brings suit against Volkswagen Group of America, Inc., which does business in part as Audi of America, Inc., Audi Ag, and Volkswagen AG, claiming that the J533 gateway control module has been placed under the rear bench seat, allowing liquid to enter and leading to the failure of the module.

The class for this action is all individuals in the US who bought or leased any 2012-2017 Audi vehicle equipped with the 2.0-liter turbocharged engines. Connecticut, Florida, and Illinois Subclasses have also been proposed for those who bought their vehicles in those states.

The gateway control module is a relay that enables different control modules in a vehicle, such as the drivetrain and airbags, to communicate with each other. The complaint alleges that “if the gateway control module is damaged, the vehicle immediately displays several warnings and shuts down even if it is currently being driven. Often a driver will be unable to turn the vehicle back on.”

How does this happen? The complaint alleges that the compartment in which the gateway control module has been placed is unsealed. This allow liquid to enter from the outside, splashing up from the road in wet and rainy conditions, and also from any liquid spilled in the backseat. When the gateway control module fails, the complaint alleges, it immediately shuts down.

When this happens, the complaint alleges, the owner or lessee must pay for the repair because VW does not cover it under its warranty. According to the complaint, this costs between $1,3000 and $1,800, plus any repairs needed to other components that may be damaged when the module shorts out.

Some owners or lessees have been given “goodwill” replacements, but the complaint alleges that “they are specifically cautioned that any further damage will not be covered by goodwill.” Even worse, they “have been instructed by authorized dealerships to avoid bringing any liquids into the vehicles, for fear of spills, and to avoid driving their vehicles in the rain.”

The complaint alleges that the companies have been aware of the defect, but that they do not tell would-be customers about it before they buy their vehicles. The complaint comments, “Clearly, no reasonable consumer would purchase a vehicle that is unable to be driven during a rainstorm.”

The defective module presents a safety risk to consumers, the complaint alleges, because when it fails, it causes an immediate loss of power to the vehicle. The complaint contends, “It goes without saying that a sudden loss of power poses a clear-cut safety risk—it can prevent the driver from accelerating, maintaining speed, adequately controlling the steering wheel, or engaging the brakes, all of which drastically increase the risk of collisions.”

Rocket Mortgage Telemarketing Calls and Text Messages FTSA Class Action

The Florida Telephone Solicitation Act (FTSA) tries to protect Floridians from unwanted telemarketing. But the complaint alleges that Rocket Mortgage, LLC uses unauthorized telemarketing calls and text messages, including to consumers in Florida, to try to recruit customers.

The class for this action is all persons in Florida or Florida residents who (1) were sent a telephonic sales call about Rocket Mortgage’s good or services, (2) using the same equipment or type of equipment used to call the plaintiff in this case.

The complaint quotes the FTSA as saying that it is a violation of the law to “make or knowingly allow a telephonic sales call to be made if such call involves an automated system for the selection or dialing of telephone numbers or the playing of a recorded message when a connection is completed to a number called without the prior express written consent of the called party.”

The plaintiff in this case is Richard Maroius. Beginning on or about September 27, 2021, the complaint alleges, Rocket Mortgage sent a number of text messages to the Marous’s number.

The complaint reproduces a screenshot of some of the messages:

  • Two September 27 messages begin, “Rocket Mortgage: Is your mortgage rate still over 3%? If so, give us a call today…”
  • An October 5 message begins, “Rocket Mortgage: ALERT: Is your mortgage rate still over 3%? If so, give us a call today…”
  • An October 12 message begins, “Rocket Mortgage: Not planning to stay in your home long? Our 7-year ARM rates have dropped!…”

The complaint claims that the purpose of these text message calls “was to solicit the sale of [Rocket Mortgage’s] goods and/or services.”

The messages were sent using a short code, which is significantly shorter than a telephone number, and which the complaint says means the messages could only have been sent via a computer.

The complaint alleges, “The impersonal and generic nature of [Rocket Mortgage’s] text messages, coupled with their frequency, and the fact that they originated from a short[ ]code, demonstrates that [Rocket Mortgage] utilized a computer software system that automatically selected and dialed” consumers’ telephone numbers.

According to the complaint, Rocket Mortgage “used a messaging platform … which permitted [Rocket Mortgage] to transmit thousands of text messages automatically and without any human involvement.”

The complaint claims that plaintiff Marous never gave his express written consent to Rocket Mortgage permitting it to send telemarketing calls to his number. It also claims that the calls caused harm to Marous and to the other consumers they were sent to, including such things as “inconvenience, invasion of privacy, aggravation, [and] annoyance.”

The Athletic Automatic Subscription Renewals North Carolina Class Action

The Athletic Media Company publishes The Athletic, a subscription-based sports website that covers forty-seven US cities and the UK. But the complaint for this class action alleges that subscribers to The Athletic are automatically enrolled in an auto-renewal program that keeps renewing their subscriptions from month to month or year to year without providing required disclosures and authorizations under North Carolina law.

The class for this action is all persons in North Carolina who, within the applicable statutes of limitations, up to and including the date of final judgment in this case, were charged renewal fees in connection with a subscription to The Athletic.

Customers who subscribe to The Athletic must give the company their billing information. According to the complaint, the company then automatically renews their subscriptions on a month to month or year to year basis, which results in continuing charges to their credit card, debit card, or other payment account. The complaint alleges that the company “is able to unilaterally charge its customers renewal fees without their consent, as it is in possessionof its customers’ payment information.

Under North Carolina law, companies may sign customers up for products or services than automatically renew, but the complaint claims they must do certain things:

They must disclose the automatic renewal clause clearly and conspicuously in the offer or contract.

They must disclose clearly and conspicuously how to cancel, in the initial contract, offer, or with the delivery of the products and services.

For automatic renewals for longer than sixty days, they must give the consumer written notice, by personal delivery, email, or first-class mail, at least fifteen days, but no longer than forty-five days, before the automatic renewal date, telling the customer the contract will renew unless it is cancelled before that date.

If the terms of the contract will change at the time of renewal, they must disclose the changing terms clearly and conspicuously on the notification in at least 12-point type and in bold characters.

The complaint alleges that the automatic renewals for The Athletic do not meet the second and third of these requirements.

The complaint includes screenshots of the sign-up page at the company’s website and of a screen of the mobile app offering a free trial with the automatic renewal information in a tiny font.

According to the complaint, the company violates the law “by (i) failing to disclose clearly and conspicuously how to cancel the contract in the initial contract, and [] (ii) for yearly subscriptions, by failing to provide written notice to the consumer at least fifteen days before the contract is to be renewed.”

The complaint therefore alleges that “the automatic renewal is rendered void and unenforceable.”

Benzene in Dry Shampoo and Conditioner Aerosol Sprays Class Action

This class action is one of a number that have been filed in recent months alleging that certain aerosol products offered by the Procter & Gamble Company (P&G) contain benzene, a human carcinogen. The complaint repeats these allegations about a list of P&G aerosol dry shampoos and aerosol dry conditioners sold under the brand names Waterless, Pantene, Herbal Essences, Aussie, Hair Food, and Old Spice.

The Nationwide Class for this action is all consumers who bought any Herbal Essences, Aussie, Pantene, Waterless, Hair Food, or Old Spice dry shampoo or dry conditioner aerosol spray products, for personal use or consumption, in the US or its territories, between January 10, 2018 and the present. A Florida Subclass has also been defined for those who bought the products in Florida.

The products at issue include the following:

  • Waterless Weightless Smooth Dry Conditioner
  • Waterless Instant Moisture Dry Conditioner
  • Pantene Sultry Bronde All in One Luxury Mist Dry Conditioner
  • Pantene Smooth Talker Dry Conditioning Oil
  • Pantene Mist Behaving Dry Conditioning Mist
  • Pantene Gold Series Instant Nourishing Spray Dry Conditioner
  • Aussie Smooth Vibes Dry Conditioner
  • Aussie Petal Soft Dry Conditioner
  • Aussie Sleekend Warrior Dry Conditioner
  • Herbal Essences Blue Ginger Refresh Dry Shampoo
  • Herbal Essences White Grapefruit & Mint Dry Shampoo
  • Herbal Essences White Strawberry & Sweet Mint Dry Shampoo
  • Herbal Essences Cucumber & Green Tea Dry Shampoo
  • Pantene No Water Refresh Dry Shampoo
  • Pantene Sheer Volume Dry Shampoo
  • Pantene Never Tell Dry Shampoo
  • Aussie After Hours Dry Shampoo Texture Spray
  • Aussie Tousle Hustle Dry Shampoo
  • Aussie Bounce Back Dry Shampoo
  • Aussie Clean Color Protect Shampoo

During 2021, Valisure, LLC and ValisureRX, LLC, an analytical pharmacy performed testing on a number of aerosol sunscreen products. The complaint alleges, “In some cases, Valisure engaged the Chemical and Biophysical Instrumentation Center at Yale University to conduct simultaneous testing to help ensure the validity of the results.” The tests found significant concentrations of benzene in various sunscreen sprays.

After the Valisure report, P&G tested its aerosol products itself, then announced it was voluntarily recalling certain lots of aerosol dry shampoo and dry conditioner sprays under the brand names mentioned above.

However, the complaint alleges that P&G’s recall announcement “does not disclose how many dry shampoo and dry conditioner aerosol spray products it tested or what levels of benzene were detected in those products.” The company has not specified the specific levels of benzene concentration which triggered recalls for the individual products, the complaint alleges, and it calls this “concerning since there is [] ‘no safe level of benzene’ exposure.”

According to the complaint, the products are adulterated and misbranded.