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Banco Popular Overdraft Fees on Accounts Not Overdrawn Class Action

This class action complains of a settlement practice that Banco Popular North America, which does business as Popular Community Bank engages in, known as Authorize Positive, Purportedly Settle Negative,” or APPSN. The complaint alleges that this results in the bank’s charging overdraft (OD) fees to customers on accounts that are not actually overdrawn.

The class for this action is all Banco Popular accountholders in the US, during the applicable statute of limitations, who were charged OD fees on an APPSN transaction on a Banco Popular checking account.

The APPSN complained of in this case involves, first, a debit card transaction. When a customer goes to make a debit card transaction, for example, with a store, the bank checks the account balance; if the account contains enough funds for the transaction, the bank authorizes it. This is the “Authorize Positive” part of the APPSN practice.

The bank then places a hold on the amount of the transaction, specifically associating the funds with the particular store transaction. The amount is subtracted from the available balance in the account, so that the customer cannot see it and cannot spend it on anything else.

Because the funds have been set aside and associated with a specific transaction, the complaint alleges, that transaction can never overdraw the account.

However, the transaction may not settle until a few days later. That is, the bank may not actually transfer the funds from the customer’s account to the store’s account until then. According to the complaint, this is where the problem may arise, if another transaction overdraws the account in the meantime.

The complaint alleges that the bank has “a secret posting process” that creates the problem: “Banco Popular releases the hold placed on funds for the transaction for a split second, putting money back into the account, then re-debits the same transaction a second time.”

According to the complaint, “This secret step allows Banco Popular to charge OD fees on transactions that never should have caused an overdraft—transactions that were authorized into sufficient funds, and for which Banco Popular specifically set aside money to pay them.” This is the “Purportedly Settle Negative” part of an APPSN practice.

The complaint alleges that Banco Popular’s account documents do not authorize overdraft fees in these instances. It quotes the Consumer Financial Protection Bureau as calling this practice “unfair” and “deceptive” and saying, “Consumers likely had no reason to anticipate this practice, which was not appropriately disclosed. They therefore could not reasonably avoid incurring the overdraft fees charged.”

The complaint provides an example of this process involving the plaintiff in this case. It claims that funds were set aside for a transaction on March 29, 2021, but at the settlement of the transaction, on March 31, Banco Popular charged an overdraft fee.

Progressive Gulf, Mountain Laurel “Projected Sold Adjustments” Mississippi Class Action

When a vehicle is totaled, insurance companies must determine its actual cash value (ACV) in order to calculate the payout to policyholders. This class action brings suit against Progressive Gulf Insurance Company and Mountain Laurel Assurance Company, alleging they unfairly apply a “Projected Sold Adjustment” to the prices of comparable vehicles, in order to lower the amounts they must pay out.

The class for this action is all Mississippi citizens insured by Progressive Gulf or Mountain Laurel who, from the earliest allowable time through the date the class is certified in this case, received compensation for the total loss of a covered vehicle, based on a valuation report prepared by Mitchell, where the ACV of the covered vehicle was decreased by applying Projected Sold Adjustments to the prices of the comparable vehicles.

In determining the ACV of a totaled vehicle, the two companies rely on valuation reports from third-party vendor Mitchell International, Inc.

Mitchell finds comparable vehicles in the area and adjusts their prices based on things like mileage, options, and equipment. Then, the complaint alleges, the two companies, acting through Mitchell, “systematically [apply] a so-called ‘Projected Sold Adjustment’ that results in a significant downward adjustment to the base values of the comparable vehicles[.]”

The only explanation of this adjustment, the complaint claims, is a statement on the last page of the valuation report that says it is applied to “reflect consumer purchasing behavior (negotiating a different price than the listed price).”

The complaint alleges that this Projected Sold Adjustment is deceptive, contrary to appraisal standards, and “contrary to the used car industry’s market pricing and inventory management practices.”

The two plaintiffs in this case, Betty Vantree and Cynthia Rayborn, each had a vehicle totaled in an accident, in May 2019 and May 2021, respectively.

Vantree’s vehicle was insured by Progressive. Mitchell’s valuation report showed nine comparable vehicles, with Projected Sold Adjustments for six of them, in the amounts of $832, $956, $916, $787, $1,048, and $896.

Rayborn’s vehicle was insured by Mountain Laurel. Mitchell’s valuation report showed four comparable vehicles, with Projected Sold Adjustments in the amounts of $1,280, $1,048, $1,205, and $1,318.

Neither insurance company provided any data about the specific vehicles or about industry practices that might have justified the reductions to the comparable vehicles’ prices, the complaint claims.

It alleges that the adjustments “do not reflect market realities … and run contrary to customary automobile dealer practices and inventory management, where list prices are priced to reflect the intense competition in the context of internet pricing and comparison shopping.”

In fact, the complaint claims, a “negotiated price discount would be highly atypical and therefore is not proper to include in determining ACV.” Those who have lost their vehicles, the complaint claims, generally need to find a replacement immediately and do not have time to loof for “the illusory opportunity to obtain the below-market deal [the companies] assume always exists without any explanation or support.”

Adaptive Health Integrations Failure to Safeguard PII Class Action

Companies associated with healthcare have become prime targets for hackers bent on stealing private information, including personally identifiable information (PII). The complaint for this class action alleges that Medscan Laboratory, Inc., which does business as Adaptive Health Integrations (AHI), is responsible for the exposure of the PII stored in its systems because, it says, it “was maintained on AHI’s computer system and network in a condition vulnerable to cyberattack.”

The class for this action is all persons whose private information was maintained on AHI’s system that was compromised in the data breach and who were sent a notice of the data breach.

AHI offers software, billing, and revenue services for various healthcare businesses and doctors’ offices. It therefore obtains information from healthcare entities about their patients or customers.

The complaint describes the company’s online persona as somewhat slapdash: “[AHI’s] website has no privacy policy, is maintained on a WordPress blog, and misspells the name of the company (Adaptive is spelled as ‘Adapative’) at the top of the website. There is no way for consumers to know what information is being collected about them, if that information is being kept secure, and if [AHI] is who [it says it is], given the name on the website is misspelled. Little information is publicly available on [AHI].”

Hackers appear to have gained access to AHI’s systems on October 17, 2021. The information exposed, the complaint alleges, includes names, dates of birth, addresses, telephone numbers, and Social Security numbers.

The complaint calls AHI’s Data Security Incident Notice “woefully insufficient.” While it does say that AHI undertook an investigation of an incident, it appears that the investigation did not conclude for nearly six months, on February 23, 2022, during which time the complaint claims the company did not notify the victims whose information was stolen.

The Notice was inadequate in other ways as well, the complaint claims: “[I]t lacks critical information, including when [AHI] was first aware of the existence of the Data Breach. The Notice did not explain what type of cyberattack had occurred, what parts of [AHI’s] computer systems were affected, what type of information had been affected, or any of the other facts and circumstances surrounding the Data Breach.”

The complaint speculates, “Upon information and belief, … the Private Information contained in the files accessed by the hackers was not encrypted.”

The complaint faults AHI for maintaining the private information in its systems “in a reckless manner” and for not providing timely notice of the data breach. It claims that AHI did not comply with Federal Trade Commission Guidelines or with industry standards for protecting private information.

Liquid IV “Hydration Multiplier” Claims to Increase Hydration New York Class Action

The LIV Group, Inc. makes Liquid IV Hydration Multiplier electrolyte drink mixes which purport to multiply the ability of water to hydrate the body via a something called Cellular Transport Technology. But the complaint for this class action alleges that the drink mix cannot do this and that the technology that it does use is not even knew but developed fifty years ago for use in certain situations in third-world countries.

The class for this action is all consumers who, within the applicable statute of limitations period, bought, in New York, Liquid IV Hydration Multiplier made, marketed, or sold by LIV.

The product has a distinctive graphic, recognizable even at a distance, of a glass of water with the drink mix spilling in, an equal sign, and three bottles of water. Add the product to a glass of water, the marketing suggests, and it multiplies the water’s hydration properties two to three times.

The complaint quotes LIV as claiming that the product “utilizes the breakthrough science of Cellular Transport Technology” to somehow boost the effects of an amount of water.

The global market for electrolyte drinks was $20.7 billion in 2020, the complaint alleges, with $3.47 of that going for electrolyte drink mixes.

Despite this, the complaint alleges that these products “are remarkably simple concoctions, most often combining just three active ingredients of salt and potassium as electrolytes, and sugar (or some other easily digested carbohydrate) which accelerates the absorption of the electrolytes.”

In fact, it claims, the science behind this was not created or discovered by LIV and does not represent a new technology; instead, the complaint says, the product “is based entirely on a hydration formulation developed by the World Health Organization 50 years ago to treat deadly dehydration in the third world from diarrhea.”

In such places, the complaint alleges, one in ten children died before the age of five of diarrhea, sometimes due to such diseases as cholera and dysentery. Rapid rehydration was needed in such instances, but the complaint alleges that the LIV product “was a solution in search of a problem, as the conditions endemic in the third world did not exist in this country.”

According to the complaint, LIV has recently changed some of its packaging and marketing to change its “one bottle equals three” claim, although product with the old packaging is still available in stores. The change, the complaint claims, “is a powerful acknowledgement by LIV that its claims are untrue and deceptive.”

“Moreover,” the complaint alleges, the company “did not eliminate or minimize its claim to being a ‘hydration multiplier’ or that Liquid IC contains ‘Cellular Transport Technology.’” The complaint claims that Cellular Transport Technology “occurs naturally and automatically in the body” and is essentially the body’s own tendency to homeostatis, or stability and constancy.

L’Oreal Waterproof Mascaras Contain PFAS Class Action

Cosmetics are applied directly to the skin, usually to the face, and even around the eyes and mouth, and consumers must trust cosmetics companies to make sure their products are safe. The complaint for this class action brings suit against L’Oreal USA, Inc., alleging that its waterproof mascaras are in fact not safe and contain per- and polyfluoroalkyl substances (PFAS), a line of synthetic materials that may have toxic effects.

The class for this action is all consumers who bought the products anywhere in the US during the applicable statute of limitations period. A New York Subclass has also been defined, for those who bought the products in New York. The products at issue include the following:

  • L’Oréal Voluminous Waterproof Mascara
  • L’Oréal Voluminous Lash Paradise™ Waterproof Mascara
  • Maybelline Volum’ Express the Falsies Waterproof Mascara
  • Maybelline Volum’ Express Total Temptation Waterproof Mascara
  • Maybelline Great Lash Waterproof Mascara
  • Maybelline Total Temptation Waterproof Mascara

L’Oreal lists the active and inactive ingredients of the mascaras on the packaging, but the complaint alleges it never discloses the presence of PFAS.

According to the complaint, “PFAS are a widely recognized group of man-made synthetic chemicals that are made up of incredibly dangerous substances, especially in the context of applying them to the skin. The complaint alleges that they can be dangerous to humans even in small amounts, because they bioaccumulate, that is, they build up in the body over time.

The complaint says that the mascaras are particularly dangerous in that they are applied around the skin and eyes, which allows them to be absorbed or find their way into the body.

Problems that may be caused by PFAS, the complaint alleges, include cancer, liver damage, decreased fertility, increased risk of asthma, and thyroid disease. The complaint also refers to reports that cite a “Probable Link” between one PFAS—PFOA—and “pregnancy induced hypertension, thyroid disease, ulcerative colitis, testicular cancer, kidney cancer and high cholesterol.”

L’Oreal knew what was in the ingredients of the mascaras, the complaint alleges, or could have obtained information from its suppliers, as to whether the ingredients contained PFAS. The company claims to choose suppliers “who are experts in their field” so that it can be sure of “the quality, effectiveness, and traceability of our products.” The complaint also quotes the company as saying that “The Quality and Safety of Our Products Are Our Priority[.]”

According to the complaint, however, PFAS are sometimes used deliberately in making consumer products because they can “help products become resistant to water, grease, and stains[.]” They may also be added “to increase their long-term wearability and to make skin appear shimmery and smooth. PFAS can also increase product durability, product consistency, and water resistance.”

Lincoln National COI Rates and Improved Mortality Class Action

The cost of insurance (COI) that universal life insurance policyholders pay each month may be based largely on expectations about mortality. So what happens when mortality expectations improve? This class action, against Lincoln National Life Insurance Company, claims that when people are living longer, COI rates should go down.

The COI Overcharge Class is all owners of universal life (including variable universal life) insurance policies issued or insured by Lincoln National Life Insurance Company, or its predecessors, that provide for an insurance or cost of insurance charge or deduction where rates or changes in rates are based on two factors, (1) mortality and (2) expenses.

The plaintiff in this case, John L. Angus, has a Flexible Premium Variable Life Insurance Policy on his parents. The complaint alleges that Angus has had to pay “inflated COI charges that are not allowed by the plaint language of” the insurance contract.

Two lines of the policy in particular are at issue here.

One, as quoted in the complaint, says, “Monthly cost of insurance rates, which are determined by us based on future expectations, include charge for mortality experience, amortized sales charges, and other administrative charges. Changes in cost of insurance rates will be based on changes in future expectations as to mortality experience and expenses.”

The complaint quotes the other as saying, “We will consider changes in the cost of insurance rates at least every five years and when cost of insurance rates for new issues change.”

Mortality rates have improved over past decades, which the complaint claims also means that Lincoln’s expectations as to future mortality experience should also have improved. If people are living longer, the complaint says, then Lincoln is able to collect more COI and to pay death benefits later than it expected.

What about the “amortized sales charges and other administrative charges”? The complaint alleges that these “are a minor component of COI rates and have not materially changed, let alone to a degree that would offset the substantial improvement of expectations as to future mortality experience…” Sales charges, the complaint alleges, are used to pay agent commissions, but the rates are fixed at the time the policy is issued.

So has Lincoln lowered the COI on policies? The complaint alleges that, on the contrary, the company “in fact has routinely increased COI rates year-over-year.”

In fact, the complaint alleges, “Lincoln and its affiliates have been [some] of the most active companies in increasing COI rates scales on other universal life (‘UL’) policies that allow for consideration of non-mortality and non-expense factors… imposing numerous COI rate hikes in the past seven years that have netted Lincoln hundreds of millions of dollars.”

The complaint likens Lincoln’s practices to a “heads I win, tails you lose” situation, where it can increase COI rates but never has to lower them.

Banco Popular Vendor Used “Legacy” Software, Exposing PII Class Action

It seems that personally identifiable information (PII) can now get exposed not just through a company that does not take adequate care of it, but also through its vendors, and even its vendors’ vendors. This class action concerns a data breach that exposed the information of customers of Banco Popular de Puerto Rico, which occurred through one of its vendors, via a vulnerability in a legacy file-sharing software product from Accellion called Accellion FTA.

The Nationwide Class for this action is all individuals living in the US whose PII was accessed during the security incident referenced in the notice sent out on or around June 25, 2021.

The complaint quotes a version of the June 25, 2021 notice that was provided to the Attorney General of Montana as saying, “We write to inform you that a vendor of Popular has informed us that it was a victim of a cybersecurity breach that included Popular files.” According to the complaint, Popular used that unnamed vendor to store or share information on its customers.

The notice, as quoted in the complaint, also said, “The breach involved the compromise of software owned by Accellion, Inc. that our vendor had used to for secure file transfer for its customers, including Popular.” The notice claimed that the vendor had stopped using the affected software.”

The information compromised, the complaint alleges, included names, addresses, accounts, and/or Social Security numbers.

“However,” the complaint claims, “the details of the root cause of the Data breach, the vulnerabilities exploited, and the remedial measures undertaken to ensure a breach does not occur again have not been shared with regulators or Plaintiff and Class Members…”

Accellion FTA was an older software program for file sharing that had been offered by Accellion. The complaint alleges, “On May 18, 2021, Accellion announced that 75% of its customers impacted by the exploitation of the vulnerability in Accellion FTA had migrated to another Accellion product known as ‘Kiteworks.’” Accellion made clear that Accellion FTA was a “legacy” product and “further asserted that Kiteworks, unlike Accellion FTA, was a ‘modern, secure’ platform for protecting third-party communications.”

Since Accellion FTA was a “legacy” program, the complaint says, Banco Popular “should have migrated to Kiteworks or another superior solution before the Data Breach occurred.” However, the complaint alleges that it kept on using the older, less secure software.

The complaint alleges that Banco Popular’s (or its vendor’s) “continued use of Accellion FTA, despite the availability of a superior and more secure alternative, resulted in criminals exfiltrating the Social Security numbers and other PII” that Banco Popular held on its customers.

MusclePharm Essentials BCAA Calorie Content Information Class Action

This class action alleges that MusclePharm Corporation makes products that either omit any mention of calories on their nutritional labels or misstate their calorie content as zero. The products at issue are nutritional powders that contain branched-chain amino acids called Essentials BCAA which supposedly offer “ideal amounts” of certain amino acids to aid in the development of muscles and a lean body.

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

  • The Nationwide Class is all persons who bought the product in the US, between May 12, 2018 and the present.
  • The Maryland Subclass is all natural persons who bought the product in Maryland between May 12, 2018 and the present.

The product comes in a number of flavors, including Blue Raspberry, Watermelon, Lemon Lime, Grape, Orange Mango, and Unflavored.

The complaint alleges that the Essentials BCAA product is one of a number of products from MusclePharm “which have similarly, purposely misbranded calorie content of ‘zero Calories,’ or which omit caloric information altogether from their respective nutritional labels.” In reality, the complaint alleges, the calorie count is about thirty calories, depending on the formulation and guidance for use. The complaint alleges that this violates federal law and the Maryland Consumer Protection Act (MCPA).

The Code of Federal Regulations requires that nutritional labeling show calories counted to the nearest five calories. The Food and Drug Administration (FDA) offers different methods for estimating calories, several of which are listed in the complaint. The FDA considers calories to be a “Third Group” nutrient, that is, one associated with health concerns, like saturated fats, cholesterol, and sodium. Also, the actual number of calories may not be more than 20% over the labeled number.

The complaint makes reference to examples of labeling at the FDA website, which it says “remove any possibility of misunderstanding of the guidance given…”

The complaint alleges that independent testing conducted on the product showed approximately 401 calories per 100 grams of product. If one serving is about 7.5 grams, the complaint says, that means around 30 calories per serving, which is “significantly more” than the “zero calories” that are either advertised for the product or implied by the omission of any calories listed on the product.

Pages 8 and 9 of the complaint show images of the front and back of the container, including the Supplement Facts panel and some marketing information associated with the product. The Supplement Facts panel does not list any calories, and an “About this item” set of bullet points promises that it “contains zero calories[.]”

Samsung Refrigerators Unsafe Temperatures Class Action

Refrigerators have a single purpose: to keep food at a cold temperature, so that it can be preserved. The complaint for this class action alleges that certain refrigerators made by Samsung Electronics America, Inc. and Samsung Electronics Co., Ltd. do not run at a cold enough temperature to safely do this.

The Nationwide Class for this action is all residents of the US and its territories who bought a new refrigerator or otherwise acquired one, primarily for household use and not for resale. Two subclasses have also been defined, one for California and other substantially-similar states, and one for Pennsylvania and other substantially-similar states.

Model numbers include RF28HMEDBSR/AA, RFG298HDRS/XAA, RF28HDEDBSR/AA, RF26HFENDSR, RF26J7500SR, and RF27T5201SG, but all the refrigerators at issue are designed with double French doors above a bottom freezer.

The two plaintiffs in this case, Matthew Jordan and Lisa Saghy, each bought a new Samsung refrigerator.

Jordan bought his in June 2020. After a few months of use, the complaint alleges he noticed some food at the bottom of the refrigerator was freezing.

Page 3 of the complaint shows two thermal images he took of the refrigerator interior. One shows a general temperature of 45 degrees, with 53 degrees at the top. The other shows a general temperature of 29 degrees, with a narrow band of 70 to 74 degrees along one side.

In January 2021, the complaint claims a Samsung repair person came to fix the refrigerator: “When the technician replaced the system board, he and Jordan noticed scorch marks over the back of the refrigerator.” The complaint alleges that the refrigerator still does not maintain a safe temperature for food, and that Samsung has refused to replace it or repair it further.

Saghy bought her refrigerator in 2017. In January 2022, the complaint claims she noticed that food and drinks did not seem to be as cold as they should and that ice was forming on the back panel. In March, she asked Samsung to send a technician.

The complaint alleges that the technician “informed Saghy that the cooling panel on the back of the fridge was ‘totally blown’ and the compressor was not working. He said that the Refrigerator’s failure to keep a safe temperature was a known defect that ‘cannot be fixed.’”

Saghy continued to ask Samsung for a repair, because her father was dying and she kept his medicine in her refrigerator, but the complaint alleges that Samsung did not help. On April 5, after her father died, the complaint claims, Samsung sent her a text message denying her any more help because the appliance was out of warranty.

The complaint claims, “Between January 2019 and December 2021, the Consumer Product Safety Commission (CPSC) received over 600 complaints about the Samsung Refrigerators. According to Consumer Reports, sixty-two of them mentioned food poisoning.

The complaint alleges that Samsung knew that the refrigerators could not maintain safe temperatures but continued to sell them without warning customers.

Dunkin’ Gift Cards No Amount Redeemable in Cash Class Action

Dunkin’ Brands Group, Inc. operates shops for coffee and snacks throughout the US. Together with its subsidiary, SVC Service II, LLC, it issues gift cards for use at Dunkin’ shops. But the complaint for this class action claims that the gift cards “include unfair, deceptive, and illegal conditions that are only revealed to customers after the point of sale, or never revealed at all[,]” that is, that the cards are never redeemable for cash, even when state law requires it.

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

  • The Class is all persons in the US who have gift cards that are maintained by the defendants in this case.
  • The New Jersey Subclass is all those in the above Class who live in New Jersey who have gift cards that are maintained by the defendants in this case.

The cards in question can be bought or refilled at stores throughout the US. On the cards are the words, “Card Value may not be redeemed for cash, check or credit unless required by law.” This is not accurate, the complaint says, because the cards are not refundable even where it is required by law.

The complaint quotes Massachusetts law as saying, “A purchaser or holder of a gift certificate … which, by its terms, authorizes the purchaser or holder to add value thereto and which has been redeemed in part, such that the value remaining is $5.00 or less, shall make an election to receive the balance in cash or continue using the gift certificate. A gift certificate with a zero balance shall be void.”

The complaint quotes a similar New Jersey law as saying, “[I]f a stored value card is redeemed and a balance of less than $5 remains on the card after redemption, at the owner’s request the merchant or other entity redeeming the card shall refund the balance in cash to the owner.”

According to the complaint, at least ten states (in addition to Massachusetts and New Jersey, including California, Colorado, Maine, Montana, Oregon, Rhode Island, Vermont, and Washington) have laws that require that gift card issuers refund up to a certain amount of a gift card’s value. But the Dunkin’s cards cannot be redeemed even in those situations.

The complaint alleges, “These small balances add up. [Dunkin’ and SVC] have distributed millions of these cards to Gift Card purchasers and holders throughout the United States. Thus, [Dunkin’ and SVC] have acquired at least millions of dollars in revenue to which they are not entitled.”

The companies’ policy, the complaint claims, “is that Gift Cards are completely non-refundable and in fact [they] have no mechanism to refund the value of the gift cards even in situattions where state law requires it.”