The hotel destroyed the evidence by disinfecting the room, lawsuit charges

By Truman Lewis of ConsumerAffairs

A California woman is suing the Renaissance Marriott Hotel in Palm Springs, claiming she was bitten by bed bugs more than 400 times while sleeping at the hotel.

Kerstin Minass, 26, said she faces permanent scarring to her face, body and hands and said her social life has been marred because of fears that she may be carrying the blood-sucking anthropods on her person or clothing, Courthouse News Service reported.

Minass said that after the bed bug attacks on May 5, she notified the hotel management, which immediately began cleaning and disinfecting the room, thereby destroying key evidence, to wit the bed bugs.

The suit says the hotel breached its obligation to protect its guests from harm by allowing the bed bugs to take up residence in the hotel. 

In the suit, filed in U.S. District Court in California, Minass notes that the bed bug is "most often associated with substandard housing, filthy conditions and poor hygiene." 

"Typically feeding every four days, [the bed bug] sucks blood from its hosts with piercing mouthparts," as Minass contends the hotel's bed bugs did to her.

Alleged that gossip site TheDirty.com posted false posts

A former cheerleader for the Cincinnati Bengals has trudged a long road in her defamation case against gossip site TheDirty.com, but now a verdict could be just days or even hours away.

Sarah Jones, who is also a former teacher, sued the website over two posts it published in 2009. Both posts were written anonymously to one of the website’s operators.

The first post, published on October 27, 2009, claimed that Jones had “been spotted around town lately with the infamous Shayne Graham. She also has slept with every other Bengal Football player. This girl is a teacher too!”

The second post, published on December 7, 2009, claimed that Jones’s ex-husband Nathan Wilburn “cheated on her with over 50 girls in 4 yrs,” and that “in that time he tested positive for Chlamydia Infection and Gonorrhea ... so im sure Sarah also has both.”

Jones: Conduct was “cyberbullying”

Jones says both posts were false, and in testimony on Monday she called TheDirty’s conduct “cyberbullying.”

"I don't believe what the website does is fair. I don't believe it is right," Jones said.

This is the not the first time the case has gone to trial. In January, a judge declared a mistrial after jurors were unable to reach a unanimous verdict regarding whether the posts in question were substantially false.

And before that, Jones won an $11 million default judgment in 2010 after the named defendant failed to respond to her complaint. Unfortunately, Jones and her lawyer later learned that they had sued the wrong defendant, serving Dirty World Entertainment Recordings LLC (owner of TheDirt.com), rather than Dirty World LLC (owner of TheDirty.com).

Engaged to formerly underaged student

Jones has also had her day in criminal court. In October, she pled guilty to charges that she slept with one of her former students. The student, Cody York, was underaged at the time their relationship began.

In June, Jones and York, now 19, announced they are engaged.

Despite her criminal conviction and the complications that have arisen in her civil case, Jones is considering entering the legal profession herself. Last fall, The Washington Post reported that Jones was “working as a legal assistant in [her lawyer Eric Deters’s] office.”

“Jones has expressed interest in becoming a lawyer and is studying to take the Law School Admission Test [LSAT],” the Post said.

The suit concerned last-minute seat shortages

A federal court has denied class certification in a suit involving a last-minute seat shortage at the 2011 Super Bowl between the Green Bay Packers and the Pittsburgh Steelers.

The suit stemmed from a decision mere hours before the big game, held at Cowboys Stadium, that over 1,000 temporary seats were unsafe and couldn’t be used.

The suit, filed within a week of the February 6, 2011 game, alleged breach of contract, fraud, and deceptive sales practices. The action, which sought compensatory damages exceeding $5 million, named as defendants the NFL, the Dallas Cowboys, and team owner Jerry Jones.

According to the suit, the defendants’ unlawful actions meant that around 850 fans were displaced from their original seats, and 400 had to stand through the hours-long game. This was especially disappointing given the time and money that fans had spent in order to attend the game.

Judge: Too many individual issues

U.S. District Judge Barbara M.G. Lynn, of the U.S. District Court for the Northern District of Texas, ruled that the plaintiffs hadn’t sufficiently shown that there were common issues making a class action preferable to individual suits. Lynn also noted that monetary damages varied among the class members, making a joint action inappropriate.

"The Court … concludes that the variation in the materiality of the omissions combined with the individual questions of reliance and damages predominate over common issues," Lynn wrote in her opinion.

"[T]he burdens and costs associated with proceeding as a class action outweigh potential benefits,” Lynn’s ruling said.

In a statement, the NFL said it was “pleased with the court’s decision refusing to certify any class in this case.”

Plaintiffs’ lawyer vows to fight on

Michael Avenatti, an attorney for the plaintiffs, said he was “disappointed with the court's ruling but look forward to representing hundreds of our clients this year in the trials against the NFL,” indicating that he may file individual suits on behalf of his clients.

Avenatti has been fierce in his prosecution of the case since the start, demanding that the defendants “reimburse fans one hundred percent for their expenses and damages” at the time the case was filed.

“You don’t have to own the Cowboys or run the NFL to know that you cannot lawfully treat people like this,” Avenatti said at the time. “At an absolute minimum, Jones, the Cowboys and the NFL need to accept full responsibility and reimburse fans one hundred percent for their expenses and damages. Anything short of that is a slap in the face to the fans of the NFL and the Cowboys.”

Judge orders mediation in hopes of settlement

A judge presiding over a suit against the National Football League (NFL) focusing on players’ concussions has ordered lawyers for both sides into mediation in the hopes of reaching a settlement. The order was handed down by Judge Anita Brody of the U.S. District Court for the Eastern District of Pennsylvania.

The suit, originally filed in 2011, was brought on behalf of 4,200 former NFL players who say concussions they suffered while playing football have led to a number of serious brain-related medical issues.

The NFL says that, under the terms of the Labor Management Relations Act, the case cannot be litigated in court, but rather must be handled in arbitration.

Brody’s order names Layn Phillips, a retired judge from the U.S. District Court for the Western District of Oklahoma, as the mediator.

Prospects unclear

Gabriel Feldman, who directs Tulane Law School’s Sports Law Program, told The New York Times that he doubted the mediation would produce a settlement.

“[Phillips] might bring them closer, but to what? This is complex litigation," Feldman told the Times. "A settlement here would be dollars going to the plaintiffs, and I'd be surprised at this early a stage for the NFL to give a large settlement."

The plaintiff’s complaint alleges that the NFL “continuously and vehemently denied that it knew, should have known or believed that there is any relationship between NFL players suffering concussions while playing ... and long-term problems such as headaches, dizziness, dementia and/or Alzheimer's disease that many retired players have experienced."

Physical and emotional suffering

The case has been explosive from the start, involving tales of physical suffering and emotional heartache for former NFL players and their families.

The players’ injuries range from Alzheimer’s and dementia to depression to Lou Gehrig's Disease to kidney disorders to recurring seizures.

Lead plaintiff Ray Easterling, whose lawyer filed the suit in August 2011, killed himself the following year. Easterling had struggled with insomnia and depression and, ultimately, increasing memory loss. In 2011, he was diagnosed with dementia.

Pennsylvania couple's lawsuit claims SPF insulation is carcinogenic

By James R. Hood of ConsumerAffairs

A Pennsylvania couple claims that the spray polyurethane foam (SPF) insulation in their home is carcinogenic. In a lawsuit that seeks class-action status, they say the insulation remains toxic after insulation and poses health hazards to occupants of the homes where it is used.

Daniel and Paula Slemmer are suing the company that installed the foam insulation in their home and its manufacturer, Barnhardt Manufacturing Co., Courthouse News Service reported.

The companies moved to dismiss the complaint but a federal district court judge in Pennsylvania denied the motion.

Risk of disease

In the suit, the Slemmers charge that they "have developed a significantly increased risk of contracting a serious latent disease" due to the insulation, which has resulted in "off-gassing, damaging the real and personal property of plaintiffs and class members and/or caused personal injuries resulting in eye irritations, sore throats and cough, nausea, fatigue, shortness of breath, and/or neurological harm."

They say the only remedy is to completely remove the "highly toxic" insulation.

Charlotte-based Barnhardt Manufacturing Company and research chemist Dr. H. W. Bradley formed NCFI Polyurethanes in 1964 to manufacture a full line of SPF products, including those used in furniture, bedding, carpet padding, marine, medical and aerospace industries, the company says on its website.

The Slemmers say that all outstanding SPF should be recalled and homeowners should be compensated for having it removed from their homes.

They claim that SPF was advertised and sold as a "safe, green and non-toxic product" and say they would not have purchased it had they known of its alleged shortcomings.

Ingredients can be hazardous

SPF is widely used but, like many products in general use, contains ingredients that can be hazardous if not handled properly. Isocyanates, a key ingredient, "can cause asthma, sensitization, lung damage, other respiratory and breathing problems, and skin and eye irritation," according to the Environmental Protection Agency. 

The EPA and other agencies caution that workers should use prescribed precautions when installing the material.

 "There is no recognized safe level of exposure to isocyanates for sensitized individuals. Isocyanates have been reported to be the leading attributable chemical cause of work-related asthma. Both dermal and respiratory exposures can trigger adverse health responses," the agency cautions.

The agency's warnings deal with exposure to chemicals in SPF that are activated during installation and do not suggest any continued toxicity once the product has been installed. 

California affiliate aired racially offensive list of “pilots’ names”

A local news affiliate in Oakland, Calif. is potentially facing a lawsuit after airing the purported names of the pilots of Asiana Airlines Flight 214, which crash-landed in San Francisco last Saturday. The list was later found to be a racially offensive prank, although its origin remains unclear.

The list, which aired on San Francisco Fox affiliate KTVU on Friday, appeared under the header “Asiana Flight 214 Pilots’ Names.”

When sounded out, the names -- "Sum Ting Wong," "Wi Tu Lo," "Ho Lee Fuk" and "Bang Ding Ow" -- are clearly references to the crash (the second name refers to the fact that the plane was flying too low during its descent into San Francisco International Airport).

KTVU did contact the National Transportation Safety Board (NTSB) to affirm the veracity of the list before airing it. For reasons unknown, a summer intern confirmed that the names were accurate.

Station apologizes

In a statement aired on Friday evening, KTVU apologized for the “several mistakes” that led to the debacle.

“We made several mistakes when we received this information,” the statement said. “First, we never read the names out loud, phonetically sounding them out. Then, during our phone call to the NTSB where the person confirmed the spellings of the names, we never asked that person to give us their position with the agency.”

Asiana considering legal action

But Asiana, already trying to control the public relations fallout from the crash, said in a statement that it is weighing legal options against both the affiliate and the NTSB.

"The reputation of the four pilots and of the company had been seriously damaged by this report," the statement said. "The company is reviewing taking legal action against both KTVU-TV and the NTSB."

The incident has also prompted an angry reaction from the Asian American Journalists Association (AAJA).

“Words cannot adequately express the outrage we ... feel over KTVU's on-air blunder that made a mockery of the Asiana Airlines tragedy and offended so many loyal viewers of the ...  station," a statement from the AAJA said. “We are hardly satisfied with the station’s statements, and its unwillingness to help us understand how the gaffe originated.”

The Association added that it was “embarrassed for the anchor, who was as much a victim as KTVU’s viewers and KTVU’s hard-working staff, including the journalists who produced stellar work covering the crash.”

Suit challenges water’s nutritional claims

A lawsuit accusing Vitaminwater of misleading customers as to its nutritional value moved forward on Thursday, with a federal magistrate judge giving his seal of approval to the case proceeding as a class action.

Judge Robert Levy, of the U.S. District Court for the Eastern District of New York, ruled out financial damages in the case, but said that the plaintiffs are allowed to pursue an injunction against Vitaminwater’s parent company Coca-Cola. Were such an injunction successful, it could limit the claims that Coca-Cola is allowed to make about the water in the future.

Judge Dora Irizarry, also of the Eastern District, had asked for Levy’s input, and will now rule on the magistrate’s opinion.

The suit was first filed in 2009 by the Center for Science in the Public Interest (CSPI). In a statement issued at the time the suit was filed, the CSPI said that, “Coke markets VitaminWater as a healthful alternative to soda by labeling its several flavors with such health buzz words as ‘defense,’ ‘rescue,’ ‘energy,’ and ‘endurance.’”

“The company makes a wide range of dramatic claims, including that its drinks variously reduce the risk of chronic disease, reduce the risk of eye disease, promote healthy joints, and support optimal immune function,” the CSPI said.

“No more than non-carbonated soda”

In 2010, Judge John Gleeson of the U.S. District Court for the Eastern District of New York refused to dismiss the suit, writing in an opinion that the water’s name potentially "reinforce[s] a consumer's mistaken belief that the product is comprised of only vitamins and water," and ignores "the fact that there is a key, unnamed ingredient [sugar] in the product."

After Gleeson’s ruling, the CSPI issued a statement calling Vitaminwater “no more than non-carbonated soda, providing unnecessary added sugar and contributing to weight gain, obesity, diabetes, and other diseases.”

Vitaminwater burst onto the drink scene in 2000, when it was introduced by Glacéau (also known as Energy Brands). It followed Smartwater and Fruitwater, which were introduced, respectively, in 1996 and 1998. Coca-Cola purchased Glacéau in 2007 for $4.1 billion.

Several companies agreed not to poach, suit says

Lucasfilm and Pixar have settled an anti-poaching suit, according to a report in the San Jose Mercury News.

The Mercury News says that the judge in the case “indicated she has received a letter from lawyers in the case disclosing the two companies have settled their part of the hotly contested case, leaving five companies in the litigation.”

“The order did not disclose the terms of the settlement,” the story says.

The settlement is part of an ongoing legal battle in which the software engineer plaintiffs claim that a number of companies agreed not to recruit -- or “poach” -- each other’s employees, thereby foreclosing job opportunities and also deflating salaries.

The original complaint, which alleged violations of the federal Sherman Antitrust Act and California’s Cartwright Act, claimed that Apple, Google, Intel, Adobe, Pixar, Lucasfilm, and Intuit were all privy to the agreement.

Class action status denied

In April, Judge Lucy Koh, of the U.S. District Court for the Northern District of California, denied class action status to the suit, writing that the proposed class definition was too broad.

“The court is most concerned about whether the evidence will be able to show that the defendants maintained such rigid compensation structures that a suppression of wages to some employees would have affected all or nearly all class members,” Koh wrote.

"The court is also concerned that plaintiffs' proposed classes may be defined so broadly as to include large numbers of people who were not necessarily harmed by defendants' allegedly unlawful conduct.”

During the course of the litigation, it was revealed that Steve Jobs, Apple’s late CEO, wrote an email to Google’s Eric Schmidt in March 2007 asking that his company to stop recruiting Apple employees.

"I would be very pleased if [Google’s] recruiting department would stop doing this,” Jobs’s email said.

The 434-page lawsuit charges blacks are more likely to be disqualified for outside activities

By Truman Lewis of ConsumerAffairs

A class action lawsuit claims that American Idol routinely uses background information about black contestants to publicly humiliate them and boot them off the show.

 "Over the course of the show's eleven year history, the adverse action of being 'officially disqualified' from American Idol was reserved exclusively for black contestants, and more specifically, black male contestants," the lawsuit argues, Courthouse News Service reported.

The plaintiffs are Jaered Andrews, Cory Clark, Donnie Williams, Terrell Brittenum, Derrell Brittenum, Thomas Daniels, Akron Watson, Chris Golightly, Jacob John Smalley and Ju'Not Joyner.

They claim that the defendants "engaged in a conscious effort to perpetuate false stereotypes about African-Americans" by publicly throwing 15 black contestants off the show compared to no such actions against white contestants. The suit, which seeks damages of $250 million, names  Freemantle N.A., Fox Broadcasting, Ford Motors, Coca-Cola, AT&T, and Nigel Lythgoe.

One of the plaintiffs, Cory Clark, was disqualified from the second season of American Idol after it was revealed that he had been charged with battery, resisting arrest and other charges in a 2002 incident at his Topeka, Kan., home. 

Two years later, Clark charged in an e-book, They Told Me to Tell the Truth, So...: The Sex, Lies and Paulatics of One of America's Idols, that he had enjoyed a sexual relationship with singer Paula Abdul, then a judge on the show. 

In 2003, Jaered Andrews was charged with assault after a bar fight that ended in the death of a 39-year-old man in Farrell, Pa. Reports at the time said that Andrews had been celebrating his selection as a finalist on the talent show. 

Consumers say Clorox misrepresented its Fresh Step product

By Truman Lewis of ConsumerAffairs

Consumers are lining up against Clorox in its epic kitty litter battle with competitor Church & Dwight. It all started back in 2010 when Clorox began claiming in its ads that its carbon-based Fresh Step was better at killing litter box odors than C&D's baking soda-based product Super Scoop.

C&D sued Clorox, challenging the accuracy of its claims and won an injunction that blocked Clorox from continuing the ads.

Now consumers want a piece of the action and a federal judge has allowed the consumers' suits to go forward, Courthouse News Service reported.

Suits filed in California, Florida, New Jersey, New York and Texas have been consolidated in the Northern District of California, where Clorox moved for dismissal, saying the consumers had not shown they suffered any injury and had not shown that Clorox's product didn't perform as well as C&D's.

But U.S. District Judge Samuel Conti left several claims intact, saying that if Fresh Step is in fact inferior to Super Scoop, it is "irrelevant" that the plaintiffs did not "experience that inferiority first hand."

Conti said the court must also seriously consider the studies C&D performed.

"At this stage, the court must take all well-pleaded, factual allegations as true," Conti said. "According to the complaint, C&D studies show that baking soda-based cat litters are objectively better at reducing cat odors than Fresh Step. The notion that one cat litter is objectively better at fighting odors is not implausible. Indeed, that is the very claim that Clorox makes in its own advertisement. In sum, Clorox's arguments raise factual issues that are not suitable for determination on a motion for judgment on the pleadings."

The state is not required to administer aid, the court rules

By James R. Hood of ConsumerAffairs

You see ambulances racing around, paramedics dashing back and forth, firefighters bursting into burning buildings, and all of this would lead you to think that city and state governments are required to come to the aid of their citizens, wouldn't it?

Sorry, it's just not so, Chief Philadelphia U.S. District Judge Petrese Tucker ruled in the case of the late Leonard Sedden, Courthouse News Service reported.  

It seems that Sedden was riding the Southeastern Pennsylvania Transportation Authority (SEPTA) "night owl" bus on April 11, 2010, from downtown Philadelphia to the Frankford Transportation Center, which was, for him, both the literal and figurative end of the line.

Around 4 a.m., the bus driver had called her dispatcher to report that Sedden was unresponsive, lying in urine and covered with drool.  A SEPTA supervisor boarded the bus and claimed to have found Sedden sitting up and breathing.

Sued for negligence

But by 5:30 a.m., when the bus rolled into Frankford, Sedden was pronounced dead. His family sued SEPTA for negligence, wrongful death and violation of Sedden's civil rights.

But the judge ruled that SEPTA had done nothing to create the conditions that led to Sedden's death and, further, that SEPTA should not have to face claims over its policy on responding to medical emergencies.

"The Supreme Court clearly articulated that the due process clause does not require a state to administer aid when it would be necessary to secure life, liberty, or property interests," Judge Tucker wrote. "Similarly, it is evident in the 3rd Circuit that the due process clause does not guarantee a 'federal constitutional right to rescue services, competent or otherwise.'"

"SEPTA was under no obligation to provide rescue services to Mr. Sedden therefore SEPTA's lack of action in this matter did not rise to a constitutional violation," she concluded. 

Consumer says the company uses genetically-modified ingredients

By Truman Lewis of ConsumerAffairs

Are Crisco Oil products "all natural" even if they're made with genetically-modified crops? A lawsuit against Crisco parent Smuckers claims they're not and a federal judge has agreed to let the suit proceed.

Diane Parker filed the suit, which seeks class action status, saying that Crisco's oils, far from being "all natural" are "so heavily processed that they bear no chemical resemblance to the ingredients from which they were derived," Courthouse News Service reported.

Crisco disputes the allegations.

"We fully stand behind our Crisco products and are confident they are in
full compliance with all applicable labeling laws and regulations. While we
cannot provide more detailed information on pending litigation we look
forward to presenting our case in court," Maribeth Burns, Smuckers Vice President, Corporate Communications told ConsumerAffairs.

The Smucker oil lineup consists of Crisco Pure Vegetable Oil, Crisco Pure Canola Oil, Crisco Pure Corn Oil and Crisco Natural Blend Oil.

Parker claims that Smucker's tricks consumers "into buying products they otherwise would have avoided, whether due to health concerns or mere preference" because products with an "all natural" label are perceived to be "better, healthier, and more wholesome."

But Parker alleges that, in fact, it would be impossible for Smucker's oils not to contain genetically modified ingredients because "70% of U.S. corn, over 90% of U.S. soy, and over 80% of U.S. canola crops are [genetically modified]."

In its motion to dismiss the case, Smuckers said Parker had not proved that the oils contained genetically-modified ingredients and said they were in compliance with Federal Drug Administration policies on bioengineered foods and federal food labeling regulations.

But U.S. District Judge Samuel Conti said Parker had shown it was "more than a sheer possibility" that the oils contain genetically modified ingredients.

A lawsuit challenged the use of phrases such as "100 percent fruit"

By James R. Hood of ConsumerAffairs

Anyone who drinks a concoction containing broccoli and spinach must be doing so because they expect to reap a health benefit of some kind.

But since it also contains apple, kiwi, mango, banana and other tasty fruits, Naked Juice's "Green Machine" smoothie is actually delicious, or so we found when we swallowed hard and bravely downed a bottle while navigating the treacherous shoals of the New Jersey Turnpike over the Labor Day.

See, there really is no limit to the risky research we consumer reporters will take to dig out the naked truth.  

Naked not transparent

But delicious just isn't enough for some people and a class action lawsuit claims that Naked Juice is not being sufficiently transparent about what's really in those bottles. The company denies all the claims but has agreed to pay $9 million to settle the case, which could be good news for habitual guzzlers.

Under terms of the settlement, anyone who bought Naked Juice in the last six years could get up to $75. Full details, including instructions for filing a claim, are at the class-action's website, NakedJuiceClass.com.

The suit challenged the company's claims of "100 percent juice," "100 percent Fruit," "From Concentrate," "All Natural," "All Natural Fruit," "All Natural Fruit + Boosts" and "Non-GMO. 

Suit claims Apple sold a "Season Pass," then broke the season into two parts

By James R. Hood of ConsumerAffairs

If you buy a ticket to a football game, you don't have to buy a second ticket if you want to stay past halftime.

That's the argument that's being made in a class action lawsuit against Apple. Lead plaintiff Noam Lazebnik says iTunes sold customers a "Season Pass" for the final season of "Breaking Bad," the saga of a high school chemistry teacher turned meth cooker and murderer.

Season 5 of "Breaking Bad," produced by AMC Networks, was announced as the final season and was to include 16 episodes.

AMC said in a 2012 press release that the "final season" -- Season 5 -- of the show "consists of 16 episodes, with the first eight episodes beginning July 15th and culminating with the series' final eight episodes next Summer 2013," according to the complaint, Courthouse News Service reported.

So that's one season consisting of 16 shows stretched out over the time period that would normally be two seasons, more or less. 

So when Season 5 became available on iTunes, customers were offered a "Season Pass" -- $21.99 for high definition and $13.99 for standard definition -- that Apple said "includes all current and future episodes of Breaking Bad, Season 5,'" Lazebnik says in the complaint.

But when the second half of the season became available on iTunes in early August this year, customers with a season pass had to pay another $22.99 or $14.99 to get them, Lazebnik says. The suit asks that Apple be ordered to refund the second-half charge and pay damages. 

Can an airline strip passengers of their elite status for complaining about the service?

By James R. Hood of ConsumerAffairs

Can an airline throw you out of its frequent flyer program if it thinks you complain too much? Northwest Airlines thinks it can, but the U.S. Supreme Court will have the last word.

The court has agreed to hear the case of Rabbi S. Binyomin Ginsberg vs. Northwest in December. The Minneapolis-area rabbi challenged Northwest after it stripped him of his elite Platinum status in 2008.

Rabbi Ginsberg is a consultant, author and speaker who flies hundreds of times per year. He came to rely on his Platinum status for upgraded seats and the other goodies the airlines bestow on their best customers.

But one day in 2008, he got a call from Northwest advising him that he was being booted out of the frequent-flier program. Why? Ginsberg says Northwest told him he complained too much.

Suspicious timing

Ginsberg admits he complained about things like lost and delayed luggage but he doesn't think that's the real reason he was ejected.

"This happened at the time that Northwest and Delta were merging," he told the Minneapolis City Pages. "The suspicion was that they had too many frequent fliers at the higher status in their roll, and they were showing too much of a liability on a balance sheet for the accumulated miles by those passengers. So they had to creatively find ways of getting rid of people."

Others may have gone quietly but not Ginsberg. He filed suit in federal court and, after a series of dismissals and appeals, the case is headed for the Supreme Court, where Ginsberg will be represented by Public Citizen.

The question before the court is whether the Airline Deregulation Act pre-empts Ginsberg’s contract claim based on the covenant of good faith and fair dealing. The answer is no, according to Supreme Court precedent, Public Citizen says in its brief.

“The Airline Deregulation Act does not give airlines free rein to breach the obligation to perform their contracts in good faith.” said Adina Rosenbaum, the Public Citizen attorney who will argue the case before the Supreme Court in December. “Moreover, claims that are about membership in a frequent flyer program are not sufficiently related to air travel to be pre-empted.”

Secret program captured photos, screenshots and keystrokes, suit charges

By Truman Lewis of ConsumerAffairs

A lawsuit charges that a Rent-A-Center subsidiary spied on its customers courtesy of a "secret, undetectable" program that it installed on the rent-to-own computers in customers' homes. A similar suit in 2011 accused Aaron's Rent To Own of spying on its customers in a similar manner.

The lawsuit claims the program gathers information on consumers' online activities and emails them back to ColorTyme Inc., and its franchise outlets.

In the suit, Leslie Arrington says she signed a rent-to-own contract for a personal laptop computer with a ColorTyme franchisee in Clarkston, Wash., on March 31, 2011, Courthouse News Service reported.

Arrington says she never consented to the software's installation and was not informed of it by ColorTyme. Her suit seeks class action status on behalf of all consumers in the same situation. It charges that the defendants violated the Electronic Communications Privacy Act (ECPA).

ColorTyme and CMG moved to dismiss, but U.S. District Judge Cathy Bissoon in Pittsburgh denied the motion.

The Aaron's suit charges that the retailer uses the software to spy on its customers. The alleged spying began as early as 2007 and enables Aaron's and its agents to capture screen images, keystrokes and images from computers rented and sold to the firm's customers.

Plaintiff says the company is misleading consumers, even though it lists the disputed ingredient

By Truman Lewis of ConsumerAffairs

Does anyone really think Coca-Cola is free of artificial flavors and chemical preservatives? Paul Merritt apparently thinks so. At least he claims in a California lawsuit that Coca-Cola labels fail to list phosphoric acid as an artficial flavor and preservative.

"Indeed, many of the cartons and containers of defendants' Coca-Cola brand sodas affirmatively and falsely state that they contain no artificial flavoring or chemical preservatives," the complaint states, Courthouse News Service reported.

We didn't have a Coca-Cola product available for inspection but numerous online photos of Coke labels show that phosphoric acid is clearly listed among the ingredients. Merritt's contention, however, rests around whether phosphoric acid is "natural." 

In his lawsuit, Merritt claims that Coca-Cola states on its website that it adds phosphoric acid to sodas to improve their flavor and "tartness" and protect them from spoiling. He alleges that Coke claims on its website that, "Phosphoric acid contains phosphorous, one of the basic elements of nature and an essential nutrient. Phosphorous is a major component of bones."

But Merritt claims that phosphorous and phosphoric acid "are two different things" and that phosphoric acid is not derived from natural ingredients, such as spices, fruits, barks or herbs.

"Defendants knowingly and intentionally falsely stated that Coca-Cola soda has 'no artificial flavors. No preservatives added,' despite the fact that Coca-Cola soda contains artificial flavoring and chemical preservatives," the complaint states.

Merritt seeks restitution and a variety of other remedies.

Members who canceled were assessed a fee even when they followed the procedure

By Truman Lewis of ConsumerAffairs

A federal judge has given final approval to the settlement of a class action suit against L.A. Fitness, charging that it overcharges members who cancel their contracts.

The case was filed by Sophia Martina who -- unlike many consumer who don't follow the contract provisions when trying to cancel their membership --  actually did everything right and was still charged a $40 fee.

Martina had paid about $288 to joint an L.A. Fitness club in New Jersey in February 2008. She paid about $288, covering her first and last month's membership dues. When she notified the club she wanted to end her membership a few months later, it charged her for an extra month, her lawsuit contends, Courthouse News Service reported.

Martina said she mailed her notice 30 days in advance, as required by the contract, but the club claimed it didn't get the letter for a month or so and charged her a $40 wait-time fee.

Under the settlement agreement, L.A. Fitness has agreed to pay up to 46,000 class members an aggregate amount of $3.8 million, plus attorneys' fees and more than $11,000 to resolve Martina's credit card charges.

Senior U.S. District Judge William Walls approved the settlement but did so reluctantly, noting that L.A. Fitness' actual exposure is "nowhere near" $3.8 million, since few class members have come forward to claim their share.

Free pass 

Under the settlement, consumers who qualify will get a 45-day access coupon and possible reimbursement for one-third of a month's dues. Those who had personal trainers may get two free training sessions or a $100 credit towards a new membership.

Judge Walls noted that the out-of-pocket cost to L.A. Fitness is minimal and he noted that the class members are "not enthusiastic" about the settlement. 

"Though the parties' claimed value for the settlement of $3.8 million is inflated and misleading - based, as it is, on a faulty assumption that 100 percent of class members will claim their relief - the settlement is fair enough, especially given the risks of litigation," Walls wrote.

Feds say the company funneled kickbacks through a network of shell companies

By James Limbach of ConsumerAffairs

Kentucky law firm Borders & Borders, PLC and its principals are being targeted by the Consumer Financial Protection Bureau (CFPB), for allegedly paying illegal kickbacks for real estate settlement referrals through a network of shell companies.

“The action,” said CFPB Director Richard Cordray, “sends a clear message that companies cannot design business structures to hide illegal kickbacks. The CFPB will continue to pursue companies that seek to profit from convoluted arrangements that limit competition and hurt honest businesses.”

In its lawsuit, the CFPB contends that the firm and its principals, Harry Borders, John Borders, Jr., and J. David Borders, violated the Real Estate Settlement Procedures Act (RESPA) by operating a network of affiliated companies to pay kickbacks for referrals of mortgage settlement business.

RESPA prohibits giving and receiving kickbacks for referrals of settlement service business involving federally related mortgages. When companies pay kickbacks in exchange for referrals, it can hurt competition and inflate real estate settlement costs for consumers, while creating an uneven playing field that puts law-abiding businesses at a disadvantage.

Defendants respond

Borders & Borders said in a statement that it “would not and did not violate RESPA. This case concerns a number of title agencies that were affiliated with our firm several years ago. The title agencies were 'affiliated business arrangements' that are expressly allowed by RESPA. There were disclosures to every consumer, as required by the statute, and in every instance in which title insurance was issued through the agencies, the consumer approved.

“We note that the CFPB does not allege that there was any consumer harm, or that any consumer paid a penny more for title insurance issued through the agencies in question.

“We are very disappointed by the CFPB’s conduct, and we will certainly defend the case vigorously.”

Phony profit-sharing alleged

The CFPB complaint charges that Borders & Borders operated nine joint ventures with the owners and managers of local real estate and mortgage broker companies, and allegedly used the joint ownership to disguise illegal kickbacks as legitimate profit sharing.

According to the complaint, when a local real estate or mortgage broker company with a preexisting arrangement referred a homebuyer to Borders & Borders for closing or other settlement services, the law firm would arrange for the title insurance to be issued by the corresponding joint venture. The profits from the joint venture would then be split between the joint venture’s owners: the Borders principals and the referring real estate or mortgage broker.

Sham operations

The complaint maintains the nine joint ventures were not bona fide entities and did not have their own office space, email addresses, or phone numbers, and all nine companies shared a single independent contractor who was also an employee of Borders & Borders. Each company only issued title insurance policies for homebuyers that had been referred to and by Borders & Borders, and did no advertising to attract other business.

The companies performed no substantive title work, all of which was instead performed by the staff at Borders & Borders. The CFPB believes the entire arrangement served no significant business purpose beyond acting as a conduit for kickbacks in exchange for referrals.

Borders & Borders PLC received substantial fees for closing services it provided to consumers referred by the brokerages involved in the illegal referral network. The principals received substantial distributions from the nine companies during that period. The CFPB’s lawsuit seeks disgorgement of all ill-gotten proceeds from the referral arrangement, and an injunction to stop the defendants from further violating RESPA.

The investigation that led to the lawsuit was begun by the Department of Housing and Urban Development (HUD). After receiving notice of the HUD investigation, Borders shut down the joint ventures. The case was transferred to the CFPB in July 2011 when it was given authority to enforce RESPA.  

Similar suit against Nestle's Buitoni pasta products dismissed

By Truman Lewis of ConsumerAffairs

The latest trend in consumer class actions is suing big food manufacturers over their labeling, particularly claims that products are "natural." But judges aren't all buying the argument.

A federal judge last week expressed misgivings about a suit filed against Frito-Lay accusing it of misrepresenting the nutritional content of its snack products.

In another case, a federal judge shot down a suit claiming Buitoni misleading labels its stuffed pasta products "all natural." 

The lead plaintiffs -- Markus Wilson and Doug Campen -- claim Frito-Lay is deceiving customers by making false claims about its potato chips, corn chips and other snacks. The company says the "all natural" description is accurate since the chips contain potatoes and vegetable oil, among other things.

But U.S. District Judge Samuel Conti balked at Wilson and Campen's claim that they should have standing to sue over the labeling of 85 Frito-Lay products as well as the handful of products they actually bought and, presumably, consumed.

“Plaintiffs do not plead to have bought these products. Instead they simply provide long lists of products that they flatly state contain unlawful or misleading statements,” Judge Conti said. “Plaintiffs have taken lists of snack foods ... and asserted in their briefs — not in their pleadings — that they are all basically the same.”

He also dismissed the plaintiffs’ claims that Frito-Lay website content constituted “labeling.”

The plaintiffs alleged that by printing “Visit our website @ fritolay.com” on the back of packaging, any language on the websites constituted misleading labeling.

Buitoni stuffing

In the Buitoni case, a California federal judge shot down the customer’s interpretation of the phrase "all natural."

Plaintiff Maritza Pelayo claimed she had bought the pasta because of the “all natural” assurances on the product label, and that she would not have bought them if she she knew they contained artificial ingredients. But U.S. District Judge John F. Walter dismissed her claims, finding she had failed to offer an objective or plausible definition of the phrase “all natural” as it appears on the label of Nestle’s Buitoni brand of products.