Frontier Airlines Illusory Offer for Canceled Flights Kentucky Class Action

When airlines cancel flights, they are supposed to provide refunds to persons who booked tickets on that flight. The complaint for this class action alleges that Frontier Airlines, Inc. has refused to provide refunds to would-be passengers when it cancelled flights due to Covid-19.

In January 2020, the plaintiffs in this class action, Danyal and Amelia Solomon, booked flights on Frontier Airlines, intending to celebrate their wedding anniversary in Cancun, Mexico. The departure was scheduled for around May 30, 2020.

Kentucky, where the Solomons live, identified its first case of Covid-19 in March 2020. On March 21, 2020, the US Embassy and Consulates in Mexico told the public about restrictions on travel to Mexico. These limited border crossings to “essential travel,” which does not include tourism. On March 25, the Governor of Kentucky directed people in the state to stay at home and closed non-essential businesses.

Around March 21, the Solomons received an e-mail from Frontier that said, in part, “Cancel now and receive up to $100 in vouchers—important information concerning your upcoming flight!” It also offered a travel credit for the price of their tickets.

It also said, “The best part is your travel does not need to be completed by Dec. 31 just booked!” The complaint alleges that the e-mail “did not include any additional temporal limitations on the use of the flight credits. [Frontier] intentionally concealed its obligation to issue a full refund.” The Solomons then cancelled their trip.

However, the complaint claims that what really happened was that Frontier cancelled their flight because of the pandemic. According to the complaint, “On or about April 1, 2020, Frontier announced it would be ‘cutting more than 90% of flight capacity nationwide in April.’”

On April 3, 2020, the US Department of Transportation an enforcement notice reminding airlines that “passengers should be refunded promptly when their scheduled flights are cancelled…”

Around August 3, the Solomons tried to rebook their flights. However, the complaint alleges, Frontier told them their flight credits had expired. Frontier said that, because the Solomons had canceled their own flights, the offer required rebooking within ninety days.

The complaint alleges that Frontier’s flights out of CVG, the airport the Solomons were departing from, did not resume until July 4, 2020, meaning that a ninety-day policy was illusory. According to the complaint, Frontier intentionally misled the Solomons into canceling their trip and in giving them the impression that they could not get a refund.

The class for this action is all individuals who agreed to buy tickets from Frontier for Frontier flights to or from CVG airport, whose flights were cancelled by Frontier and who were sent notices similar to those sent to the Solomons that did not inform them to their right to a full refund.

Total Renal Care Overtime Pay in National Emergencies Class Action

Total Renal Care, Inc., the party being sued in this class action, is part of DaVita, Inc., which was formerly named Total Renal Care Holdings, Inc. The complaint for this class action refers to provisions in DaVita’s employee handbook to alleges that non-exempt employees should have been paid time and a half for their work for most of this year because of the Covid-19 national emergency declared on January 31, 2020.

DaVita has a network of around 2,753 outpatient dialysis facilities. According to the complaint, DaVita likes to portray its 77,000 employees as a single “village,” even putting DaVita’s trademark on employees’ checks.

DaVita puts out an employee handbook called “Teammate Policies.” At issue in this case is its “Disaster Relief Policy” for non-exempt employees.

The policy states that if non-exempt workers are prevented from working because a facility is closed due to a national emergency, or if it opens late or closes early for that reason, non-exempt workers will receive their normal pay for their normal scheduled hours.

The provision at issue is a third one: if a facility is open during the designated time frame, the complaint claims, “employees who work their regularly scheduled hours will be paid premium pay”¬—that is, time and a half.

A national emergency was declared in the US on January 31, 2020.

The plaintiff in this case, Joseph J. Hesketh, III, has worked for Total for more than thirteen years. He has worked his regular schedule since January 31 and has not been given premium pay during the months since then.

The complaint alleges, “Defendants did not pay [Hesketh] premium pay for the regularly-schedules hours he worked during the time of the state of emergency. Instead, DaVita attempted to later change the terms of the Teammate Policies handbook to now exclude the present emergency from those emergencies covered by the Disaster Relief Policy by a notice sent out in September[] 2020.”

The complaint contends that practices like the pay policy during emergencies “is a method of attracting and retaining employees whose knowledge and skills are valuable to the business profit model developed by DaVita. It is not altruism.”

Even if DaVita was permitted to change its policy, the complaint says, there would have been a period during which the current policy was still effective after the emergency declaration.

The Plaintiff Class for this action is all non-exempt employees of entities owned or controlled by DaVita who (1) were covered by the Teammates Policies handbook, (2) worked for the members of the Defendant Class on and after January 13, 2020 and (3) were not paid the premium pay of time and a half for hours after the declaration of the emergency.

Bravo Arkoma Interest on Late Oil and Gas Payments Oklahoma Class Action

Oil and gas well companies enter into leases that allow them to take oil or gas out of land owned by others. In exchange, they pay the owners a portion of the proceeds from the oil or gas taken from the well. The complaint for this class action alleges that Bravo Arkoma, LLC does not always pay owners on time, and when it does not, it also does not pay the interest required by law on late payments.

The class for this action is all persons or entities (1) who received payments that were late under the PRSA from Bravo Arkoma or its designee for oil and gas proceeds from Oklahoma wells, or (2) whose proceeds were escheated to a government entity by Bravo Arkoma, and (3) whose payments or escheated proceeds did not include the interest required by the PRSA. The class does not include those who are excluded, such as parties related to Bravo Arkoma and agencies, departments, or instrumentalities of the US federal or Oklahoma state governments.

The plaintiff in this action, McKnight Realty Company, is an owner with interests in the Stroehmer-1 oil and gas well in Pittsburgh county in the state of Oklahoma.

Bravo Arkoma, the complaint says, operates the well there and is supposed to pay McKnight “oil-and-gas proceeds pursuant to leases or pooling orders.”

Oklahoma has a Production Revenue Standards Act (PRSA) that governs such arrangements. The complaint quotes it as saying, “Proceeds from the sale of oil or gas production from an oil or gas well shall be paid to persons legally entitled thereto … commencing not later that six (6) months after the date of first sale, and … thereafter not later than the last day of the second succeeding month after the end of the month within which such production is sold.”

This creates the due date for such payments. However, the PRSA also includes a provision for when such payments are not made on time. The complaint quotes it as saying that those who did not pay the proceeds on time must pay interest on “proceeds from the sale of oil or gas production or some potion of such proceeds [that] are not paid prior to the end of the applicable time periods provided” by the law.

The interest on the late payments is automatically due. The party whose payments were late, and who is thus owed interest, does not have to make a specific request for the interest. The complaint alleges, “Compliance with the PRSA is not optional, and the statute contains no demand requirement before an owner is entitled to statutory interest.”

In this case, the complaint alleges, Bravo Arkoma does not pay the required interest to McKnight when it makes its late payments. The complaint contends that it pays the interest only to owners who specifically ask for the interest to be paid.

Natural Bliss “Vanilla” Almond Milk Coffee Creamer New York Class Action

A steady stream of class actions from a single law firm has been challenging the designation of certain food and drink products as “vanilla.” This latest entry brings suit against Nestle Holdings, Inc. for its Natural Bliss “Vanilla” Almond Milk Coffee Creamer, which the complaint claims does not contain the amount of real vanilla suggested by the unqualified use of “vanilla.”

The class for this action is all those who live in New York who bought the product during the applicable statutes of limitations.

The second page of the complaint shows an image of the product at issue. At the very top, on the bottle’s neck, very visible in white on a blue ground, are the words “Vanilla” and “Natural Flavor.” Farther down are the words “All Natural” and an image of a vanilla blossom and three vanilla bean pods.

Directly below this image, the complaint contends, “Contrary to the front label representations of “Vanilla” and “Natural Flavor,” the Product is not flavored mainly from vanilla and has no appreciable amount of vanilla.”

Real vanilla is an expensive and scarce ingredient, and it is a complex flavor that is not easily replicated. The complaint refers to a 2018 “surge in fraudulently labeled vanilla flavored foods.”

The ingredient panel from the product lists no real vanilla. Instead, it shows only “Natural Flavors.” The complaint asserts, “‘Natural Flavor’ is a technical term for an ingredient which is a mix of flavors and does not consist only of vanilla.”

The complaint claims that the product’s labeling “is misleading because consumers will understand ‘Vanilla’ and ‘Natural Flavor’ as meaning a product is flavored with natural vanilla flavor, from the vanilla bean.”

However, the complaint also claims that “lab testing reveals an abnormal excess of vanillin relative to the odor-active compounds in authentic vanilla, an indicator of artificial vanillin.”

“Because vanillin is responsible for between one-quarter (25%) and one-third (33%) of the overall flavor/aroma impact of vanilla,” the complaint says, “the added vanillin skew the balance of flavor compounds which consumers associate with vanilla from vanilla beans.”

Could the vanillin be one of the purported natural flavors? The complaint says no, because no such ingredient as “natural vanillin” exists. Even if it did, this would violate federal labeling laws, because “any non-vanilla flavor compounds that simulate vanilla but are not derived from vanilla beans [are] considered artificial flavors that simulate the natural characterizing flavor.”

In addition, the legal standards for labeling a product as “vanilla” consider vanillin as an artificial flavor when it is used together with vanilla extract. The complaint therefore contends that the product should be labeled as being “artificially flavored.” The omission of this designation, the complaint says, makes the labeling misleading.

BG Products Engine Performance Restoration and Protection Plan Missouri Class Action

This class action relates to an Engine Performance Restoration Kit from Defendant BG Products, Incorporated, which included a Lifetime BG Protection Plan. The complaint alleges that BG has violated the Missouri Merchandising Practices Act and the common law principle of money had and received, although the specifics of the allegations are unclear.

The class for this action is all Missouri residents who bought a consumer protection product made by BG, between November 2, 2015 and November 2, 2020.

The plaintiff in this case, Deshoun Goodwin, owns a 2012 Audi A4. Goodwin bought the Engine Performance Restoration Kit for $50.61.

The complaint appears to allege that the kit contained three components. First, it had EPR Engine Performance Restoration and Advanced Formula MOA, which the complaint calls vehicle protection products under Missouri law. The complaint claims these first two components have a value of no more than $30.

The kit also contained a Lifetime BG Protection Plan, which the complaint alleges was worth the remainder of the kit value, or more than $20. The complaint claims, “Under Plan 2, applicable to [Goodwin’s] Vehicle, the Lifetime BG Protection Plan obligates [BG] to pay for repairs to the engine, among other systems.”

Goodwin took his Audi to a place called Molle Audi of Kansas City on February 28, 2019 and paid it “for the labor associated with the engine performance restoration service.”

A little less than five months later, the complaint alleges, Goodwin “presented the Vehicle to Audi Shawnee Mission because of an illuminated malfunction indicator lamp.” The complaint says the facility made a diagnosis of “internal engine damage, requiring over $6,600 of repairs.” It asserts, “The repairs to the engine of the Vehicle are covered under the Lifetime BG Protection Plan.”

Following that, the complaint enumerates a number of ways it claims BG did not comply with the provisions of the Missouri Vehicle Protection Product Act, which it says BG was required to comply with because it was selling a vehicle protection product.

A number of points are unclear in this complaint. First, why did Goodwin buy the engine restoration kit and have the procedure performed? What was it intended to achieve, and did it achieve that end?

Second, is the complaint alleging that the procedure was responsible for the engine’s need for repair or did the procedure simply fail to restore the engine? Or is the procedure not at issue and the complaint simply claiming that BG should have covered the repair as being required in the vehicle’s subsequent “lifetime”?

Third, were the repairs performed? Did he present a claim for payment of the repairs to BG, and did BG reject it? This is implied, but no reasons are stated for the rejection or for Goodwin’s alleged right to require payment. The specific allegations in the complaint against BG are thus not entirely clear.

KeyBank Overdraft and Nonsufficient Funds Fees Class Action

KeyBank, the complaint for this class action alleges, charges customers improper overdraft (OD) and nonsufficient funds (NSF) fees. The complaint alleges that the bank charges customers unjustified OD fees and charges more than one NSF fee on a single transaction.

How can a bank claim a transaction created an overdraft in an account if it did not? According to the complaint, the problem lies with a process called “Authorize Positive, Purportedly Settle Negative,” or APPSN.

When a customer attempts a debit transaction, the bank approves it. The bank puts aside that amount from customer’s account, and the customer cannot use those funds for another purpose. Thus the bank should always have the funds to pay that transaction.

However, the transaction may not settle until a few days later. If another transaction takes place in the meantime that overdraws the account, the complaint alleges that KeyBank then considers the settlement of the first transaction to also be an overdraft as well and charges the customer an overdraft fee.

According to the complaint the Consumer Financial Protection Bureau has called this practice “deceptive.”

As to the multiple NSF fees, KeyBank’s account agreement does specify that it may charge an NSF fee of $38.50 if an item is presented for payment and the account does not contain sufficient funds to pay the item. The problem is, the complaint says, that if the item is presented again and the account still does not contain sufficient funds, KeyBank will charge an additional NSF, even though it’s the same item.

Thus, the complaint alleges, “each time KeyBank reprocesses a transaction or check for payment after it was initially rejected for insufficient funds, KeyBank chooses to treat it as a new and unique item or transaction that is subject to yet another NSF fee.”

The complaint argues that the same item cannot become a new item, no matter how many times it is presented.

Finally, the complaint alleges that KeyBank charges OD fees to customers who have not opted in to an overdraft protection plan. The complaint quotes KeyBank as saying, “We do not authorize and pay an overdraft for Automated Teller Machine (‘ATM’) and everyday debit card transactions unless you ask us to.”

However, in reality, the complaint says, it does pay such overdrafts even when customers have not opted in and charges them OD fees for doing so.

Three classes have been defined for this action.

  • The Nationwide “Positive Balance” Class is all US residents with KeyBank accounts who were charged OD fees on transactions that were authorized into a positive available balance.
  • The Nationwide Multiple NSF Fee Class is all KeyBank checking account holders in the US who were charged more than one NSF fees on the same item.
  • The Nationwide Opt-In Class is all US residents with accounts with KeyBank who were charged OD fees on ATM and everyday debit card transactions when they had not opted in to overdraft services.

Similac Go & Grow Toddler Drink Misleading Labeling New York Class Action

The toddler years, the complaint says, are important for giving toddlers healthy food preferences. Formula made for toddlers is also called transition formula, because it is intended to be used in the transition from breastfeeding to a normal diet. At issue in this class action is Abbott Laboratories, Inc, Similac Go & Grow Toddler Drink, or “Toddler Drink, Milk-Based Powder.” The complaint claims this product is deceptively and misleadingly named because it is “confusingly similar” to the company’s “Infant Formula with Iron, Powder, Milk-Based” and does not state in what way it is different from the infant product.

The class for this action is all those living in New York who bought the product during the applicable statutes of limitations.

Although the infant product name includes the words “with Iron,” the complaint says that this is not sufficient to differentiate the products because the front of the toddler product’s front label graphics make reference to spinach and broccoli, “two vegetables known to be high in iron…”

The toddler drink’s nature is not clear, the complaint alleges for several reasons.

First, the complaint alleges, “The labeling of the Toddler Drink and Infant Formula gives caregivers … the false impression that the Toddler Drink is the appropriate ‘next step’ for a child’s nutritional needs after the first year of life.”

Second, says the complaint, it gives caregivers the impression that needs of toddlers and infants are the same.

Finally, the complaint reproduces the toddler product’s ingredient panel, saying, “Contrary to the recommended nutritional needs of children in this age range, the Product contains four grams of added sugar (in a four-ounce serving).” This, it says, is indicated by the second listed ingredient, “Lactose,” which the complaint calls “an added sugar.”

The complaint also contends that the Similac toddler product contains less protein than cow’s milk and more sugar (carbohydrates). Also, the complaint alleges, “Transition formula such as Similac Go & Grow Toddler Drink is more than three times as expensive [as] whole cow’s milk.” It shows a chart comparing prices per eight ounces and per gallon for each.

According to the complaint, the toddler drink is marketed “as superior to cow’s milk, in direct contravention of guidelines established by global health authorities for the nutritional needs of young children.”

The complaint alleges that a study of caregivers has shown that “52% expected these products to ‘give toddlers nutrition that they wouldn’t get from other sources.’”

The labeling of the products, the complaint says, therefore “causes caregivers to make inaccurate and ill-advised nutritional purchasing decisions.”

Centerstone Healthcare Phishing Data Breach Class Action

This class action brings suit against certain Centerstone healthcare facilities, claiming they fell for a phishing scam that may have exposed the information of patients and employees in Indiana and Tennessee. The defendants are Centerstone of America, Inc., Centerstone of Indiana, Inc., and Centerstone of Tennessee, Inc.

The class for this action is all persons named by Centerstone as being affected by the data breach, including all those who were sent a notice of the data breach.

Personal and protected health information were exposed in the breach. The information included names of current and former patients and employees, dates of birth, Social Security numbers, driver’s license or ID card numbers, Medicare/Medicaid and other medical insurance information, and information about medical diagnoses or treatments. Some of this is personally identifiable information (PII) or protected health information (PHI), and other of these items are protected by protected by the Health Insurance Portability and Accountability Act (HIPAA).

How did the breach happen? The defendants in this case share an e-mail system. In August 2020, the company saw suspicious activity related to some employees’ e-mail accounts. An investigation showed that certain accounts had been accessed without proper authorization between December 12 and 16, 2019.

The complaint says that, “[u]pon information and belief,” the accounts had been accessed in a phishing scam. Phishing occurs, the complaint says, “when an attacker, masquerading as a trusted entity, dupes a victim into opening an email, instant message, or text message. The recipient is then tricked into clicking a malicious link, which can lead to the installation of malware, the freezing of the system as part of a ransomware attack or the revealing of sensitive information.”

The success of the phishing attack, the complaint alleges, enabled the attackers “to gain access to the employees’ email accounts and subsequently forward messages from these accounts to an outside email account without Centerstone’s knowledge.” The information in the e-mails was not encrypted.

The complaint says, “Incredibly, Centerstone does not appear to have discovered the unauthorized intrusion until August of 2020—approximately eight (8) months after” it occurred. According to the complaint, Centerstone did not notify the affected parties until October 2020.

The complaint claims that Centerstone was “inadequately safeguarding” the information and maintained it “in a reckless manner.” Also, the complaint alleges that “Centerstone and its employees failed to properly monitor the computer network and systems that housed the Private Information. Had Centerstone properly monitored its property, it would have discovered the breach sooner.”

It claims that Centerstone does not follow the data security guidelines set forth by the Federal Trade Commission.

Lululemon Website “Wiretapping” of Visitors’ Sessions California Class Action

California has its own California Invasion of Privacy Act (CIPA). This class action brings suit under this law against Lululemon USA, Inc. and Quantum Metric, Inc. (QM) for the “wiretapping” of visitors to the Lululemon website. The complaint alleges that code entered into the website by Quantum Metric allows the companies to “secretly observe and record website visitors’ keystrokes, mouse clicks, and other electronic communications, including the entry of Personally Identifiable Information (“PII”), in real time.

The class for this action is all California residents who visited the Lululemon website and whose electronic communications there were intercepted or recorded by QM.

QM is a software-as-a-service company that offers a Quantum Metric software for providing market analytics. Part of that software is something called Session Replay, which is intended to help companies improve website design and the experiences of customers who come to the site.

The complaint quotes QM as saying that Session Replay be used “to pull up any user who had visited [a] website and watch their journey as if [the company] was standing over their shoulder.” It lets them “see every click, every tap and exactly what the website responded with—an error, a success message, or nothing.” The function thus “capture[s] all the metadata behind the replay—like user platform, API calls, and network details—as well as dozens of out of the box events and errors, plus the custom ones you’ll configure in our UPI.”

The function collects data from visits to the Lululemon website and sends it back to QM.

The complaint alleges, “Technology like QM’s Session Replay feature is not only highly intrusive, but dangerous. A 2017 study by Princeton University found that session recording technologies were collecting sensitive user information such as passwords and credit card numbers. The research notes that this wasn’t simply the result of a bug, but rather insecure practices.” This kind of program can “leave users vulnerable to data leaks…”

In fact, the complaint claims, Lululemon admits to this kind of spying. It may send after-visit e-mails to visitors saying that the company “see[s] you looking…” The complaint reproduces one such message, which is headed “Make a Move” and which says in part, “Take another look at the pieces you’ve been eying.

Lululemon and QM are both responsible for the wiretapping, the complaint says, because Lululemon consented to the installation of QM’s software on its website. It says the software acts as a wiretap.

The complaint claims that “Lululemon does not ask users … whether they consent to being wiretapped by QM. Users are never actively told that their electronic communications are being wiretapped by QM, nor does Lululemon’s Privacy Policy disclose as much…” The complaint says they also do not consent to their communications recorded and shared with QM.

LinkedIn Inaccurate Overcharges for Advertising Class Action

LinkedIn is known for its services in bringing together employment seekers and employment offers, calling itself “the place to find and be found.” However, it also offers other services, including advertising. The complaint for this class action alleges that LinkedIn’s measurement systems for its advertising impressions and views and that it therefore overcharged those who paid for these services.

The class for this action is all persons or entities who, during the applicable statutes of limitations, paid for advertisements placed on LinkedIn.

The complaint opens its Nature of the Action section by stating, “On November 12, 2020, Defendant LinkedIn stated on its own blog that ‘[i]n August, our engineering team discovered and then subsequently fixed two measurement issues in our ads products that may have overreported some Sponsored Content campaign metrics for impression[s] and video views.’” According to the complaint, LinkedIn admitted that the issues went undetected and influenced measurements for advertisers over a period of two years.

The complaint points out that LinkedIn’s comments on the problem do not outline “the extent of the damage to their customers…” and suggests that the platform may have other problems or that the problems already discovered may not have been fully fixed.

It alleges, “Above and beyond simply overpaying for mismeasured ads, [advertisers] paid for an unknown number of ineffective ads, losing out on the opportunity to serve effective ads that would have fulfilled the purposes of the advertisements.” Advertisers have therefore lost out on the chance to “[take] their ad dollars to other competitive platforms.”

LinkedIn has more than 700 million users in total, with more than 260 million being active on a monthly basis. This, the complaint says, “creates a robust and active audience” for advertising. According to the complaint, advertising on the platform is not cheap; it claims that LinkedIn charges “extortionary amounts” for it.

The complaint quotes a Wall Street Journal article description of the problems: With some Apple iOS devices, “[i]f a LinkedIn user scrolled past a video ad while the video was buffering, for example, the ad would autoplay even when out of view, but [the play would] still be tracked and logged as a video view or completion.” This may have resulted in overstated video views and view-through rates. “The company also said it may have been overreporting impressions and sponsored-content campaigns in the LinkedIn feed—for example, in cases when users would rotate their phones or quickly move to other parts of the app…”

LinkedIn announced that it had discovered the problem in August 2020, but did not fix it or give advertisers notice of it for two months.

Among the counts are accounting, fraud, and violations of California’s Unfair Competition Law.