Welcome

Welcome to Leonard Law Office’s consumer law blog. The mistreatment of consumers by businesses is one of the most interesting subjects in the law.  Deception and misconduct in the marketplace has a long and colorful history. From the rattlesnake oil rheumatism cures peddled by immoral salesmen in the 1800’s, to modern day products aimed at weight loss and anti-aging — unfair business practices affect most Americans.

Snake Oil

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…Is this couch “leather” or “pleather”?

What is “Pleather” Furniture?

There are various names under which fake or imitation leather furniture is sold, some of which refer to products that may contain small amounts of leather (though not furniture-grade leather).    Some of the more common technical terms used by sellers of these products include “bonded leather,” “bicast,” “bi-cast leather,” “PU Leather,” and “leather match.”

Companies that sell these and other types of fake leather Furniture

There are many businesses that sell authentic and fake leather furniture products, including Wayfair.com, JCPenney, Value City, Jennifer, and Bob’s Discount Furniture, and Bernie & Phyl’s.

What is wrong with Bonded Leather and other similar Fake Leather Products?

Like all imitation products, there are serious quality and durability issues with bonded leather and other fake leather  furniture.  Many consumers have complained that furniture they believed would stand the test of time and have the durability of genuine leather (which can and should last for many years) has instead developed deep cracks, delamination, and tearing (sometimes within a few months after purchase).  Some fake leather furniture products (including bonded leather and bicast leather) may be sold using deceptive advertising and marketing. Some consumers have been led to believe they are purchasing genuine leather furniture, when in fact that is not the case.

"Pleather" Sofa

“Pleather” Sofa

What can you do if you were deceived into buying furniture that was not real leather?

If you believe you may have purchased fake leather furniture based on deceptive advertising or marketing, you are welcome to contact us. Even if the advertising or promotional material refers to the product by its actual name, such as “bonded leather,” this does not necessarily mean that the advertising and product description may not have been deceptive.

Related information

There is a detailed blog post published by FOW Furniture in New Jersey that explains the true nature of many so-called “leather” products: A Look at the Bi-Cast Leather Controversy.

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Trump Hotels Data Breaches

A leading data security expert named Brian Krebs has revealed that there have been three separate data breaches at Trump-branded properties in the past two years.

MAGA

Mr. Krebs wrote:

“…I thought it might be useful to see these events plotted on a timeline, because it suggests that virtually anyone who used a credit card at a Trump property in the past two years likely has had their card data stolen and put on sale in the cybercrime underground as a result.” (Krebs post here)

Why do data breaches matter?

Data breaches are obviously very troubling incidents.  Businesses have certain duties to safeguard customers’ private information. Careless network security practices make businesses vulnerable to data breaches, and businesses have a legal duty to exercise great care when they collect customer information and process credit card transactions. Consumers suffer when their personal data is stolen because of careless information security practices.  Data breaches can be deeply unsettling to their victims, and can cause long term financial damage. When thousands of passwords and usernames are stolen, and posted on the Internet, or sold on dark corners of the web, people are undoubtedly hurt. Credit card information that is taken can be used to make clone cards that can then be used to pull money directly from victims’ accounts. Identity theft is a common consequence for data breach victims.

Why don’t businesses do more to prevent data breaches?

Just as banks have a duty to invest in vaults with impenetrable walls and thick steel doors, almost any business operating in the Internet age must have robust defenses against data thieves. Solid digital defense are expensive to design and implement. Businesses focused on cutting costs to improve their profits do not make it a priority to invest in proper network security. Businesses with sloppy network security do not live up to the legal duty of care required of them. Negligent network / information security practices can result in great harm to consumers.

Where are Trump Hotels?

The list of Trump Hotels in America is:

  • Trump International Hotel & Tower New York, New York
  • Trump SoHo, New York, New York
  • Trump International Hotel Washington, D.C.
  • Albemarle Estate at Trump Winery, Virginia
  • Trump International Hotel & Tower Chicago, Illinois
  • Trump National Doral Miami, Florida
  • Trump International Hotel Las Vegas, Nevada
  • Trump International Hotel Waikiki, Hawaii

The business has a website at Trumphotels.com.

Will the Trump Hotels Data Breach Class Action be about Donald Trump‘s Presidency?

No. The focus of this (potential) case will be about whether Trump International Hotels Management LLC has used adequate data security practices to safeguard its customers’ Personal Identification Information (i.e. first and last names, home addresses, dates of birth, email addresses, ZIP codes) and Financial Information (i.e. credit card/debit card information, card numbers, PIN numbers, expiration dates).

Related Materials

Hotel Data Breaches

  • Hotel data are hacker heaven, so be cyber-smart before you check in (Bloomberg BNA) (link here)
  • 2016 Was a Record Year for Data Breaches (Bloomberg Technology) (link here)

Data Breaches

  • HBO Breach Did Not Compromise Full Email System: CEO (Dark Reading) (link here)

Constitutional Law

  • U.S. Constitution, 25th Amendment, Section 4 (Cornell Law School LII link here)
  • U.S. Constitution, Article I, Section 9, Clause 8 (Cornell Law School LII link here)
  • Ethics Issue ‘Nonsense,’ Said Official Who Cleared Trump Hotel (Bloomberg Politics) (Bloomberg link here)

Cybersecurity & Election Interference

  • Senate Intelligence Committee hearing on Russian interference in European elections (June 28, 2017) (YouTube) link here)
  • To Fix Voting Machines, Hackers Tear Them Apart (Wired) (link here)

Leadership

  • Leadership Lessons from Gen. James Mattis (USMC Ret.) (YouTube) (link here)
  • Make Your Bed: Little Things That Can Change Your Life…And Maybe the World,William H. McRaven (USN Ret.) (Barnes & Noble) (link here)

Political Lawsuits

  • Republican donor from Virginia Beach sues GOP, accusing the party of fraud over failed Obamacare repeal (The Virginian-Pilot) (link here)

Political Books

  • Devil’s Bargain: Steve Bannon, Donald Trump, and the Storming of the Presidency (Barnes & Noble) (link here)

Presidential Quotes

  • “Perseverance and spirit have done wonders in all ages.” – George Washington
  • “The only thing we have to fear is fear itself.” -Franklin Roosevelt
  • “Ask not what your country can do for you – ask what you can do for your country.” -John F. Kennedy
  • “The problems of the world cannot possibly be solved by skeptics or cynics, whose horizons are limited by the obvious realities.  We need men who can dream of things that never were, and ask why not?” -John F. Kennedy
  • “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness. -That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed…” -Thomas Jefferson
  • “This nation was founded by men of many nations and backgrounds. It was founded on the principle that all men are created equal, and that the rights of every man are diminished when the rights of one man are threatened…The heart of the question is…whether we are going to treat our fellow Americans as we want to be treated.” -John F. Kennedy
  • “You know, I’m automatically attracted to beautiful — I just start kissing them. It’s like a magnet. Just kiss. I don’t even wait. And when you’re a star, they let you do it. You can do anything…Grab ’em by the [vulgarity deleted]. You can do anything.”-Donald Trump (transcript here)
  • “Up in New Hampshire – I won New Hampshire because New Hampshire is a drug-infested den – is coming from the southern border.” -Donald Trump (transcript here)

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Do Valspar “One Coat” & “Paint + Primer” Paints work well?

Have you used Valspar  “paint + primer” or “one coat” paint?

If you have purchased Valspar Reserve, or any Valspar paint that claimed to be an all in one paint/primer product, it is possible that you were disappointed with “one coat coverage” claims on the can.

What is paint and primer in one and why do people buy it?

Homeowners and “do-it-yourselfers” are always interested in stretching a buck when it comes to home improvement projects. Whenever a new product comes out that promises to do more, for less money, people are interested. Over the past five years or so, a number of paint companies have been promoting all-in-one primer and paint products. The appeal is obvious. One advantage potential advantage to purchasing a combo product would be avoiding buying too much or too little primer. The biggest selling point is the potential of doing less work to the get the same result. If a paint and primer product could cover in one coat, as most of them claim, that could mean doing at least half as much work (and using far less paint as well). However, some consumers have questioned the efficacy of many of these “all in one” primer/paint products, after finding the coverage claims were too good to be true. According to many consumer complaints about primer and paint combo products, some do not cover adequately – among other other problems – and end up greatly increasing labor and material costs.

What is primer and why does it matter?

Traditionally, primer is used on bare wood, sheetrock, metal, or plaster before finish paint is applied. Finish paint does not adhere well to bare surfaces. Without a solid base of primer underneath, most finish paint applications are bound to fail in a least three ways. First, ink markings on sheetrock, and knots and sap on wood tend to “bleed through.” Second, peeling becomes a problem. Third, it is often difficult to achieve a uniform appearance without a base coat of primer of the same color, especially with dark colors. A good coat of primer should prevent these problems. The downside is that using primer takes more work and planning. And, some novices are not even aware of what primer is, or what it does. They skip the primer step without even realizing it. Sometimes, contractors and painters looking to make a quick buck cut costs, and deliberately don’t use primer. They want to get the job done and get paid as fast as possible, neither caring about their reputation, nor the problems that will turn up for the homeowner later on. If the primer layer in a painting project is skipped, sometimes it is necessary to start all over again. This can mean hours of scraping and paint removal just to be able to start all over again and do the job right. No one likes to waste labor and material costs. For the do-it-yourselfer, it means time wasted that could be spent with their family. Whenever a paint job fails, whatever the circumstances, it is an infuriating waste of time money. Often it is due to the use of inferior products, and/or by not using traditionally accepted preparation and painting techniques.

Is Valspar all in one paint & primer worth purchasing and using? 

Valspar Reserve claims to do the job of both primer and finish paint in one coat –  but does it work as advertised? From reading the litany of complaints at consumeraffairs.com about Valspar paints, it is clear that a large number of consumers have been completely dissatisfied with the performance of various Valspar paints, such as Valspar Reserve, Valspar Infinity, Valspar Duramax, and Valspar Perfect White Paint + Primer.

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Valspar Reserve at Lowe’s Home Improvement in Saugus MA, April, 2017

Information about Valspar

The full name of the company is The Valspar Corporation. According to Bloomberg, Valspar was founded in in 1806, is headquartered in Minnesota, and the CEO makes over a million dollars per year. Valspar owns Cabot Stains.

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Are Bell + Howell Tactical Flashlights as Powerful as Claimed?

Some consumers have questioned brightness and visibility claims made in connection with the marketing of Bell and Howell “tactical” flashlights.

The flashlights are priced around $20.00, are made in China, and are powered with three AAA batteries. The claims made about the power of the Bell & Howell tactical flashlights on Amazon and HSN are impressive:

  • “22x brighter than your regular flashlight”
  • “2 nautical mile visibility”
  • “Up to 40 times brighter than standard incandescent flashlights”
  • “can be seen 5 nautical miles away”

flashlight

If Bell + Howell’s claims exaggerate the power of their tactical flashlights, these flashlights may be falsely advertised.

If you purchased a Bell and Howell tactical flashlight, we are interested in hearing from you.

 

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Stun Guns – Are they as powerful as they claim?

Some consumers have questioned voltage claims made in connection with the marketing of various stun guns.

For example, does the “Vipertek VTS-989 – 230,000,000 V Heavy Duty Stun Gun” produce a 230 million volt charge – or does the Vipertek VTS-881 – 38,000,000 V Micro Stun Gun produce 38 million volts?

This youtube video shows a 7.5 million volt stun gun not doing much.

The youtube video below from the funny pair at Good Mythical Morning showcases a “1 million volt” stun gun.

If you have purchased a stun gun based upon high voltage claims, you are welcome to contact us.

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Life Support Recovery Shot – Does this stuff really work?

Some consumers have questioned marketing claims made by an interesting product intended to combat the age-old problem of the common hangover.

Is there such a thing as a real hangover cure?

According to the company behind the Life Support Recovery Shot, Life Support Development, Ltd., of Columbus Ohio, the answer is “yes.”

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They claim:

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These are bold claims indeed. Does science truly support this alleged hangover cure?

In 2005, the Food and Drug Administration “found serious violations of the Federal Food, Drug, and Cosmetic Act” in regards to Life Support’s Recovery Shot’s labeling, and accused Life Support of marketing an “unapproved new drug.”

If you have purchased a Life Support Recovery Shot product, we are interested in hearing from you.

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Idea for federal legislation to protect women from domestic violence

There should be federal legislation analogous to Megan’s Law to protect women from domestic violence. Just as there is a national registry to protect children from sex offenders, this law would provide for a national registry to protect women from domestic abusers.

Potential levels

  • Level 1 –  restraining order issued by any court
  • Level 2 – restraining orders issued on behalf of two or more women, or adjudged to have violated a restraining order.
  • Level 3 – convicted of a charge of domestic battery, criminal harassment, or stalking.
  • Level 4 – convicted of a charge of rape, kidnapping, murder, or an attack resulting in disfigurement or grievous bodily harm.

There are several reasons this is a good idea. First, prevention is the best way to address domestic violence. It is well-known how difficult it can be for victims of domestic violence to break free once they are in a relationship with a violent partner. For obvious reasons, batterers go to great lengths to conceal or minimize their past offenses. Women should be able to easily learn whether a potential partner has a history of restraining orders, or criminal convictions for violent crimes against women. Since restraining orders are issued by probate and family courts on a county-by-county basis, they essentially remain hidden.

There are scores of cases spanning several decades of women being murdered by men who have strong predictors of violence (a history of past offenses). Many of these tragedies could have been prevented. Legislation of the kind I am proposing would save lives.

 

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Numerous Massachusetts restaurants, bars, and stores violate the ADA

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wheelchair inaccessible business entrance

The Americans with Disabilities Act (“ADA“) was enacted to protect disabled individuals from discrimination, frustration, and outright lack of access when they seek the full enjoyment of places of public accommodation, such as restaurants, bars, and retail locations. Most people take for granted that they can easily enter and move about any business they wish to visit. However, for disabled Americans, simply going out to eat with friends, buying groceries, or shopping for a gift, can be an unpleasant ordeal – or altogether impossible. This is because thousands of businesses, ignorant of a law in force for over two decades, or simply too cheap to pay for compliant facilities, blatantly violate the ADA. Usually the only consequences of ADA violations are suffered by those the law is intended to protect, not those who break the law.  Unfortunately, unless a business is sued for ADA violations, it has little incentive to comply with the law.  Government agencies almost never pursue ADA claims on behalf of citizens. The ADA was designed to be enforced by so-called “private attorney generals” plaintiffs’ lawyers empowered by the statute to bring cases on behalf of aggrieved clients.  ADA violations are everywhere; below is a list of common ADA violations.

Entrance
• There is a step at the entrance door.
• The main entrance has no ramps, just steps.
• There is not a properly designed and sloped ramp or route into the facility.
• The entrance door lacks the necessary maneuvering clearance for a wheelchair user at the pull/latch side of the door.
• At the exterior main entrance, there is not a level landing.
• The entrance door lacks a level landing of sufficient size.
• There is a slope in excess of 2% at the entrance door.
• The entrance to the facility does not provide compliant directional and informational signage, complete with the International Symbol of Accessibility.
Inside
• Inside, there are several steps to get up to the restaurant area, making entrance inaccessible.
• There is not an accessible route throughout the site and facility.
• Counters where customer service and/or transactions occur are inaccessible.
• The height of the sales counter exceeds the 36 inch height allowance.
• There are steps up to the back section of the facility.
• There is not a properly designed and sloped ramp to the back section of the Facility nor is there a wheelchair lift.
• There items and self-service areas are too high.
Seating
• The facility does not provide a minimum of 5% of its seating and dining tables to be accessible.
• The tables provided within the restaurant are not accessible for a wheelchair user.
• The height of the bar counter exceeds the maximum height allowance of 34 inches.
• There are dining tables that exceed the maximum height allowance of 34 inches.
• The booths do not provide the required knee and toe clearance.
Restrooms
• There are restrooms that are inaccessible.
• The lavatories are inaccessible.
• The restroom door is inaccessible.
• The water closets are inaccessible.
• The restroom door has inaccessible round door hardware.
• Patrons with disabilities cannot access the restrooms because of the steps on the route leading to the restrooms.
• The restrooms are too small to accommodate a wheelchair.
• The restrooms lack sufficient clear floor space, maneuvering clearance and turning space.
• There are obstructions within the restroom that restrict and/or limit the clear floor space, maneuvering clearance and/or turning space.
• The water closets are inaccessible.
• The restroom toilet compartment door is not self-closing and does not provide door pulls on both sides.
• The water closet lacks accessible grab bars.
• The grab bars at the water closet are not properly mounted.
• The side grab bar is too short and inaccessible.
• There are exposed water supply lines and drain pipes under the lavatories in the restroom.
• The coat hook on the restroom toilet compartment door is mounted outside the required reach range.
• The coat hook within the restroom is too high.
• The trash receptacle in the restroom toilet compartment obstructs the clear floor space to the stall door.
• The flush control is on the narrow side of the water closet.
• The flush control at the water closet is out of reach.
• The lavatory blocks the maneuvering clearance at the door in the restroom.
• The lavatory is too shallow and does not provide the required knee clearance.
• The paper towel dispenser in the restroom require two hands to operate.
• The soap dispenser in restroom is mounted outside of the required reach range allowance.
• The toilet paper dispensers are located outside of the required reach range allowance.
• The pipe beneath the lavatory is not wrapped, insulated and/or protected from contact.
• The mirror within the restroom is located too high.
• There is insufficient maneuvering clearance on the route out of the restroom.

PDFU.S. Department of Justice 2010 ADA Standards

Have you experienced an ADA Violation?

PDFADA Compliance Checklist

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Does Garnier Fructis Fortifying Shampoo really make hair ten times stronger?

Some consumers have questioned the accuracy of marketing claims made by Garnier regarding its “Fructis Fortifying Shampoo.”

“Fortifying” means to “make stronger.” Is it really possible to make hair stronger with shampoo? What about ten times stronger? Is there a special “active fruit concentrate” that can perform this miraculous feat?

Garnier wants consumers to think that its Fructis shampoo will make your hair 10X stronger.

Their Fructis Fortifying Shampoo makes bold claims including:

  • “Every inch 10X STRONGER”
  • “Fortifying daily hair care with a Powerdoes of Active Fruit Concentrate & Ceramide renews hair’s strength to bring life back to every inch: stronger, healther & shinier.”

fructis

Articles about questionable hair strengthening claims

 

 

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Primark Data Breach

Information about the Primark Data Breach

primark-photo

Pimark in Boston’s “downtown crossing”

Primark has reported that its Boston store, located in Downtown Crossing at 10 Summer Street, was affected by a data breach running from July to October of 2016. On or about October 17, 2016, Primark found out that “skimmers” had been secretly installed in their credit card machines. They failed to make this discovery for approximately four months.

As a result, it is believed that cybercriminals may have intercepted tens of thousands of consumers’ credit card numbers and financial data. Primark’s public notification about their data breach is here.

Information about Primark

Primark is an inexpensive clothing company.  It has been harshly criticized for its labor practices. It is known for selling fashionable, yet extremely low-priced goods manufactured in 3rd world factories.According to Bloomberg, Mr. Arthur Ryan is the Founder, Chairman and Managing Director, and the company is headquartered in the United Kingdom.

News Reports about the Primark data breach

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Primark – Boston

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Does Jergens Skin Firming Lotion work?

Some consumers have questioned bold claims made by Jergens “Skin Firming” lotion. Is this yet another “anti-cellulite” cream? Respected dermatologists have firmly rejected the notion that any such product can produce the results promised, and consistently indicated that as a matter of accurate science and physiology, cellulite cannot be successfully combated by any skin cream.

Jergens Skin Firming Lotion, sold at national retailers such as CVS, makes a number of questionable claims, including but not limited to:

  • “Reduces appearance of cellulite for visibly firmer skin.”
  • “Helps you achieve deeply luminous, visibly firmer skin.”
  • “Tightens and increases elasticity of cellulite prone skin for visibly firmer results.”

Jergens claims that the magic ingredients giving this otherwise ordinary lotion the ability to fight cellulite are its unique “Hydralucence blend,” collagen, and elastin. “Hydralucence” is a scientific-sounding word, but does it have any real meaning?

One thing is for sure – consumers who buy lotions claiming to have special properties that defy the boundaries of reality and science – i.e. “anti-aging” and “anti-cellulite” creams – spend lots of money, but may be extremely disappointed when they compare the benefits promised to the results obtained.

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Have you purchased questionable anti-cellulite products?

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Mustela “Body Restructuring Gel” – Fact or Fiction?

“Mustela” is a popular skin cream brand for mothers. Some of the creams that bear the Mustela name claim to address three issues on the minds of many  new and expecting mothers. They are: 1) “Stretch Marks”; 2) “Comfort”; and 3) “Firmness.”

It is the so-called “Firmness” products that are under examination and may become the topic of a class action lawsuit alleging false advertising.

Within the “Firmness” product line are two products. They are the “Body Firming Gel,” and “Bust Firming Serum.”

The company’s website claims that in a clinical trial of the so-called “body firming gel” that “78% of women saw a reduction in the appearance of unsightly fatty deposits.”

The active ingredients, purportedly behind the fantastic results of Mustela’s “Firming Gel” are:

  • “Avocado peptides, a patented ingredient of natural origin helps relieve sensations of tightness, reinforces skin elasticity and leaves the skin feeling supple and comfortable.”
  • “Centella asiatica improves and tones the skin for an intense firming effect.”
  • “Sophora japonica helps to visibly remodel body contours.” (http://www.mustela.com/en/content/Body-Firming-Gel).

The claims and attributes of Mustela Body Firming Gel, as listed on its website are:

“Specially formulated for new mothers, Body firming gel tones and firms the skin to help remodel body contours after childbirth thanks to its unique combination of active ingredients and ingredients of natural origin.”

Mustela’s Questionable Skin Firming and Body Remodeling Claims

Are Mustela’s “Firming Product” claims nothing more than pseudo scientific nonsense intended to trick women into parting with extra money to address issues that skin creams cannot in reality address?

The price of these products are astronomical – costing up to ten times more than normal skin cream.

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Who are the “Fake Monk Mafia?”

Occasionally, it is good to take a moment to stop and ask a few questions. A question some people have been having matches the title of this blog post.

If you are like me, over the past couple of years, you’ve seen benevolent-looking men wearing saffron-colored robes striding purposefully around Boston’s busiest attractions. Their pitch is one that does not include words. They courteously hand a shiny piece of metal to an unsuspecting person, and somehow obtain money in return. I am not sure what is going on here, but my understanding of Buddhism is that it does not include shiny metal objects, or hitting up tourists and locals for cash.

Here are photos of a sign that appears in Boston’s Faneuil Hall marketplace.

The sign reads:

DO NOT GIVE MONEY TO THE FAKE MONK MAFIA

These are not real monks.  They have been harassing our visitors – please do not encourage them by giving them money.

If you are being harassed by one of these individuals please call Faneuil Hall Marketplace Security: 1-857-208-1585.

These “monks” are also heavily active in New York City’s Central Park. Below are some recent photos of a man dressed as a monk obtaining money from New York tourists.

These nice folks gave him $5.00. As they walked away feeling as though they had done something good for the universe, he secured the cash in a pouch on his waist, paused to make a notation in his ledger, then moved on to the next target.

Who are these people?  Are they committing the crime of larceny by false pretense – or are they merely enjoying their First Amendment rights of free speech? A lot of people would like to know if these are legitimate monks, or a gang of sneaky criminals swindling gullible people.

Another question (assuming these are not real monks) is: how long will they get away with it?

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Class action lawsuit alleges Honey Stinger maple waffles do not contain maple

On August 19, 2016, a California resident represented by lawyers on the East and West coasts filed a class action lawsuit against EN-R-G Foods, LLC. The company manufactures and distributes Honey Stinger Gluten Free Organic Maple Waffle, an energy food popular with marathoners, triathletes, and other endurance athletes.

The lawsuit alleges that the organic maple waffle does not actually contain any maple and is, therefore, falsely advertised and mislabeled in violation of California and Federal law. The class action seeks damages as well as an injunction to stop the company from falsely advertising the product as containing maple.

Honey Stinger Lawsuit

Honey Stinger Maple Waffle Class Action Complaint

Nutritionists consider maple syrup a healthier alternative to sugar, corn syrup, or other mass-produced sweeteners. Maple is an artisanal food product with a rich history tied to the preservation of New England forests and local, small-scaled agriculture. The production of authentic maple syrup requires forest land, the correct climate conditions, and arduous physical labor.

Maple syrup is an icon of New England agriculture and forestry and its local economy. Therefore, it is no surprise that companies want to use the word “maple” on their mass-produced food products to give consumers a false impression of enhanced value and quality.

False advertising doesn’t only have a negative impact on consumers. It hurts maple producers by creating unfair competition. Authentic maple producers cannot compete against mass-marketers that seek to enhance their market share by “claiming” maple at the expense of consumers and maple farmers.

Consumers who have purchased the Honey Stinger maple waffle product are able to participate in the class action by contacting class counsel.

FREE CONFIDENTIAL CASE EVALUATION – HONEY STINGER MAPLE WAFFLE CLASS ACTION

Related Post:

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Pack of Jackals Arrive to Feed on the Quaker Maple Case

The first Quaker Maple case was Eisenlord v. The Quaker Oats Company, et al, filed in California on March 1, 2016.  On March 11, 2016, Attorney Thomas A. Zimmerman filed a copycat case in Illinois with cereal plaintiff Mario Aliano (pun intended). Note how similar the Aliano v. Quaker Complaint is to the Eisenlord v. Quaker Complaint. As Charles Caleb Colton famously remarked, “imitation is the sincerest form of flattery.”

The subsequent filing of two more Quaker Oats Maple and Brown Sugar Oatmeal class actions in multiple jurisdictions led to MDL No. 2718 – In Re: Quaker Oats Maple & Brown Sugar Instant Oatmeal Marketing And Sales Practices Litigation.

Plaintiff Eisenlord’s Response to Motion for Coordination or Consolidation and Transfer Pursuant to 28.U.S.C. § 1407 is a must-read for anyone interested in the nature of copycat class action suits.

On June 2, 2016, the Chair of the Panel on Multidistrict Litigation, Judge Sarah S. Vance, issued orders denying transfer and consolidation of the copycat Quaker Maple actions. See Order Denying Transfer.

On June 16, 2016 yet another copycat case – Kevin Phung v. Quaker  – was filed! The Kevin Phung case, filed 2½ months after the initial Quaker case, seeks to represent a class of California consumers. The Kevin Phung class action complaint lists no less than 11 lawyers from 6 law firms (Erich Schork, Walter Haines, Patrick Heegan, David Markham, Peggy Reali, Aron Robinson, Timothy Blood, Anthony Parkhill, Jeffrey Blake, Erich Schork, and Ben Barnow). One is reminded of scenes from the Nature Channel depicting a pack of hungry, scavenging jackals gathering around a carcass to feed.

Pack of Hyenas scavenging

On June 20, 2016, Quaker responded by filing a Motion to Transfer or Stay, pointing out that “Aliano and his counsel have filed at least 17 class actions together, incluing a number of follow-on and copycat actions…”

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Interesting Massachusetts laws

This list of interesting Massachusetts laws is a work in progress.

  1. It is a crime against public health to spit on a sidewalk or subway platform. The punishment is a mandatory fine of no more than $25.00.  G.L. c. 270, § 14.
  2. It is illegal to throw away a refrigerator without first removing its door. G.L. c 271, §46.
  3. Children may not work as beggars before they are fifteen years old.  G.L. c. 272, §58.
  4. The song “Massachusetts (Because of You Our Land Is Free)” is the official “Patriotic Song” of Massachusetts. G.L. c. 2, §31.
  5. Massachusetts has a “stolen valor” law, modeled after the federal Stolen Valor Act. It is a criminal offense to obtain money, property, or some tangible benefit by misrepresenting oneself as a veteran or active member of the armed forces, or recipient of certain service medals, including but not limited to the Silver Star.  G.L. c. 272, §106.
  6. Massachusetts has a “wage gap” statute, called the Equal Pay Act. It makes it unlawful for employers to pay women less than men for doing the same work. G.L. c. 149 § 105A.
  7. Sales of diapers and United States flags are exempt from the 6.25% Massachusetts Sales Tax. A Guide to Massachusetts Sales and Use Tax.
  8. The City of Boston is one of many municipalites in Massachusetts to adopt the “Local Option” sales tax on meals of .75% on top of the 6.25% state sales tax on meals. G.L. c. 64L, § 2(a).
  9. Blasphemy is a punishable by up to one year in prison. G.L. c. 272, § 36.
  10. It is unlawful to put the word “maple” or “maple syrup” on a food product unless it actually contains maple syrup. Massachusetts Maple Law, G.L. c. 128, § 36C.

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America’s Epidemic of Campus Rape

Must see: The Hunting Ground (Netflix). It is an appalling expose about two issues: (1) the prevalence of rape on college campus in the U.S., and (2) how academic institutions routinely and systematically cover up rapes in order to protect their financial/reputational interests — while blaming the victims of rape and interfering with law enforcement’s ability to prosecute offenders.

My takeaways from the movie:

Some college athletic programs, especially football, can be dangerous to women. Serial rapists who are skilled at tasks such as catching, throwing, and running, may receive special status and protection.  Even though students who are good at athletics should be punished for their abusive, criminal actions, they may be deliberately protected from legal consequences.

Fraternities can be dangerous for women.  Certain notorious fraternities create the ideal setting, or “hunting ground” for rapists.  Frat boy sex offenders conspire and share information about how to carry out the crime of rape, and how to get away with it. They use alcohol and other drugs to break down young womens’ defenses.

Even the most elite academic institutions in the country cannot be fully trusted to protect students from sex crimes. Shockingly, some schools are more interested in silencing victims of rape than safeguarding them.

 Related Information:

This government study about sexual assault on college campuses is a must read:

PDF   Campus Climate Survey Validation Study (U.S Department of Justice / Bureau of Justice Statistics)

A veteran adult sex crimes detective explains why these cases are difficult to prosecute: Campus Drunk Confidential.

 

 

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When does “Maple” not mean “Maple”?

WHEN IS USING THE WORD MAPLE FALSE ADVERTISINGIf you have purchased any food product that contains the word “maple” and the ingredients do not list maple syrup or maple sugar, you may you have a false advertising claim, and you are encouraged to contact this office.

Some consumers have questioned whether certain products, such as Quaker Oats Maple & Brown Sugar and Cream of Wheat Maple Brown Sugar instant oatmeal actually contain any maple syrup. To maple syrup producers and consumers alike, there are important differences between artificial maple and the real thing.

In February of 2016, the Vermont Maple Sugar Maker’s Association (VMSMA) sent a letter asking the Food and Drug Administration (FDA) to take action against certain companies. In the letterPDF VMSMA informed FDA:

“Maple syrup, a premium ingredient, plainly has a material bearing on the price and/or consumer acceptance of food products that contain it, which is why it is frequently an ingredient named in the title of foods or displayed on its packaging. Thus, if a product name includes “maple,” or its packaging emphasizes the presence of maple (e.g., through vignettes of maple syrup, leaves, and trees), but the product does not actually contain any maple syrup, it is unlawfully misbranded under this regulation 21 CFR § 102.5].” (VMSMA Letter to FDA, 2/15/16)…The following products are examples misbranding [sic] under 21 CFR § 102.5:

  • MOM Brands’ Better Oats Maple & Brown Sugar Instant Oatmeal with Flax,
  • Madhava Natural Sweeteners Maple Agave Nectar,
  • Honey Stinger Organic Maple Waffle,
  • Quaker Oats Maple & Brown Sugar Instant Oatmeal,
  • Quaker Oats Maple & Brown Sugar High Fiber Instant Oatmeal,
  • GU Maple Bacon Energy Gel, Quaker Oats Maple Pecan Raisin Flavored Oatmeal,
  • Hood Ice Cream Maple Walnut. (VMSMA Letter to FDA, 2/15/16).

On March 10, 2016, twenty-four lawmakers signed a letter urging the FDA to investigate false maple claims. The letter PDF stated in part:

“Maple syrup is a pure product, made 100 percent by concentrating the sap of maple trees. Pure maple syrup production (sugaring) provides income to an estimated 10,000 maple producers across 10 states in the Northwest and Upper Midwest, including Vermont, New York, Maine, Wisconsin, Pennsylvania, New Hampshire, Michigan, Ohio, Massachusetts and Connecticut. The United States produced 3.4 million gallons of maple syrup in 2015, worth approximately $100 million dollars. For some, sugaring is full-time work, while others tap trees to supplement their income, providing an important source of earnings for many rural families.”

Two days earlier, the Massachusetts Maple Producers Association wrote a letter PDF to Massachusetts Attorney General Maura Healey, asking her office to investigate violators of the Massachusetts Maple Law.

The letter states in part:

“A number of Massachusetts-based companies are in violation of the law as well, such asWilbraham-based Friendly’s, with their Maple Walnut ice cream. Dunkin’ Donuts, with their headquarters in Canton, has eight varieties of baked goods labeled as maple, and none of them have any maple syrup or maple sugar listed in their ingredients. Honey Dew Donuts, based in Plainville, has a Maple Cream Coffee listing, which also contains no maple syrup. Lynfield’s Hood Ice Cream also sells a Maple Walnut flavor with no maple syrup listed as an ingredient.”

To date, the FDA has not launched any maple-related enforcement actions, despite repeated urgings to do so. And, the Massachusetts Attorney General has also declined to take action.

Government inaction is inexcusable here, because inauthentic maple products present  a real economic injury to farmers and consumers.  The lack of  action by states with strict labelling laws concerning the use of the word “maple” on food products sends the message that flouting maple laws is permissible.

What are the laws on false advertising and Maple?

There are a number of state laws governing advertisement concerning maple products. For example, there is the Massachusetts Maple Law:

No person shall manufacture, label, package, sell, keep for sale, expose or offer for sale any food article or food product branded as maple, maple syrup, maple candy, maple creams, maple butter, or maple sugar which is not made from pure maple syrup derived from the sap of the maple tree. Any compound or mixture branded or labelled as maple, maple syrup, maple candy, maple creams, maple butter or maple sugar, or branded as an imitation thereof, which consists of maple syrup mixed with any other substances or ingredients shall have printed on the package containing such compound or mixture a statement of the ingredients of which it is made, all said ingredients to be set forth in the same size type as the words “maple syrup”.

The use of the words “maple” or “maple syrup”, shall not be used in the labelling or branding of any food product which does not contain any maple syrup in its ingredients. M.G.L. ch. 128, § 36C.

Vermont’s Maple Law:

All maple flavored products shall be clearly labeled on their principal display panel or panels in a manner which will alert the purchaser to the fact that the product is not a 100 percent pure maple product, in accordance with the Act and other applicable statutes and regulations, such as CP 120.

Artificial maple flavored products shall be clearly and conspicuously labeled on their principal display panel or panels with the term “artificial flavor” shall be of a size equal to, or larger than, other words used to describe the product. It is unlawful to use the terms “maple syrup” or “maple sugar,” however modified, to describe an artificially flavored product.

No person shall advertise any maple syrup, maple product, maple flavored product, or artificial maple flavored product in any manner which is untruthful, unfair, or deceptive. CVR 20-011-002 (2013)

Examples of Questionable “Maple” Products

Below is a photograph of a Quaker Maple instant cereal box:

image001

Other products that use the word “maple” in product descriptions may be in violation of the Massachusetts Maple Law:

For instance, there is Madhava’s maple flavored agave product line, and Stop & Shop has a whole line of questionable “Bacon Maple” products,

maple and bacon

such as Maple Bacon Gelato,

maple bacon gelato

Maple Cream Craft Brewed Soda,

Maple cream soda

and Blueberry Caramel Maple Ice Cream.

caramel maple

And, Walmart sells a product called Kellogg’s Frosted Mini-Wheats Maple Brown Sugar Whole Grain Cereal.

Maple mini wheat

CVS sells an instant hot cereal that may be a bogus maple product:

20160726_170112

Examples of Real Maple Products

Obviously, there are many products that have the right to claim “maple” because they are bona fide maple goods.

For example, Green Mountain Creamery Maple Greek Yogurt (ingredients pictured below) actually contains maple syrup. It is a premium, high value food item.

20160404_135630

The History of Maple-Related “Food Fraud”

“Food fraud” is a type of false advertising in which the seller misrepresents the nature, quality, or character of the food product being sold. An egregious example of food fraud would be selling horsemeat labelled as beef.

There have been a number of notable maple-related food fraud cases in the past. For example, McDonald’s found itself in trouble with the Vermont Agency of Agriculture Food & Markets in 2011.

The Quaker Maple Case

VMSMA’s letter to FDA and the news coverage that followed inspired a class action lawsuit against Quaker Oats, Eisenlord v. The Quaker Oats Company, et al, filed in California on March 1, 2016.

The Hostess “Maple Glazed” Mini Donuts Case

On May 23, 2016, this office, with co-counsel from California, New York, and Boston, started a new maple-related class action. The VanCleave v. Hostess Complaint alleges that Hostesses’ miniature maple glazed donuts or “donettes” do not contain any maple syrup or maple sugar and are therefore misbranded under state and federal law.

Vancleave v. Hostess

Related Articles

Related Laws and Regulations

 

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The Parmesan Cheese You Sprinkle on Your Pasta Could Be Wood!

Target’s “Market Pantry brand 100% grated Parmesan” contained no parmesan cheese according to an FDA warning letter; and “Essential Everyday 100% Parmesan Cheese” (found at Star Market and Stop and Shop) tested at 8.8% cellulose according to Bloomberg news.

For Related Articles See

cellulose-can-be-obtained-easily-wood-pulp-straw-grass-cotton-by-refining-petrol-plant-waste

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Is Dial “Pheremone Infused Attraction Enhancing Body Wash” Falsely Advertised?

Some consumers have complained that Dial for Men Magnetic Attraction Enhancing Body Wash contains misleading claims.

A body wash claming that it is “Attraction Enhancing” is “PHEREMONE INFUSED,” and contains a “fragrance proven to attract,” is a product that could attract the attention of male consumers.

The question is, are these “attracting enhancing” claims supported by valid scientific research?

One behavioral neuropsychologist disputes the claims, calling them “Hogwash.” He states: “humans don’t have a functioning vomeronasal organ,” and “[t]he few studies of androstadienone that do show an effect have been small and poorly designed, and use concentrations of the compound  that are as much as a million times higher than what occurs naturally. And women might have higher natural levels of androstadienone than men.”

He also indicates there has “been a lot of misconception about what human pheromones do. . .We want to raise a flag and say, where’s the evidence? How human pheromones work is still totally questionable.”

Discover magazine concludes “Body washes, cosmetics, perfumes, and more all boast of their pheromone contents. There’s just one problem: There is no scientific evidence that people produce or respond to pheromones at all, or that dabbing them on will make you more attractive to potential mates.”

IMG_20160208_145909       IMG_20160208_145858

 

 

 

 

 

 

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Lierac Body-Slim – too good to be true?

We are looking into Ales Group, U.S.A., Inc.’s  Lierac Body-Slim products.  The issue is whether Ales has made false representations to deceive women into believing that by simply applying expensive creams and serums, they can obtain relief from “cellulite.”

“‘Cellulite’ is a word first coined in France sometime around 1920 to describe the dimpled, uneven appearance of skin caused by the distribution of subcutaneous fat, particularly around the hips, thighs, and posterior of women. Primed by unrelenting pressure to appear youthful and attractive, women have been presented with “anti-cellulite” products in recent years.

Ales has marketed anti-cellulite products by presenting idealized, possibly photo-shopped images of young models in association with their “body slim” line of skin products, and by promoting the idea that the normal human imperfection of cellulite can be fixed by applying consumer goods.

Ales has made claims that its products work against “unwanted bodily curves.” Ales has made, and continues to make claims and promises to consumers about the efficacy of its Lierac Paris Body-Slim line of cellulite products, (collectively “Lierac Body-Slim” or “Lierac Body-Slim Cellulite Products”).

Do Lierac Body-Slim Cellulite products live up to advertised claims?

For example, one in-store display claims, “You’re only 2 weeks from a firmer, smoother body.”Body Slim Ad

Is the premise that there are slimming or cellulite-banishing effects available through the application of any cream, ointment, supported by credible scientific evidence?

According to our research, there is a long line of peer-reviewed scholarly articles, and credible medical opinions revealing the ineffective and useless nature of anti-cellulite creams.

Is there a product on earth that by mere application to human skin, can bring about a “firmer, smoother body,” “[h]elp[] correct the appearance of all visible signs of stubborn cellulite,” or live up to various other claims made by Ales to promote its Lierac Body-Slim Cellulite Products?

Molly Wanner, MD, MBA, and Mathew Avram, MD, JD, both of Massachusetts General Hospital and Harvard Medical School, after carefully studying cellulite, its causes, and attempts at stopping it, have published their conclusion that cellulite is a normal condition affecting virtually all women, for which there is no effective remedy to be found on the shelves of a drug store:

“Cellulite is the characteristic, nonpathologic appearance of dimpled, ‘cottage cheese-like’ skin surface change typically seen in women on the thighs and buttocks. It is commonly seen on the abdomen, breasts, and arms. Given that the occurrence of cellulite is nearly universal in post-pubertal females, it is thought of as a female secondary sex characteristic. Nevertheless, it can be a distressing condition and patients spend billions of dollars on treatments that are largely ineffective.”[1]

Facts Relating to Ales’ Body-Slim Anti-Cellulite Claims

Ales markets a line of anti-cellulite products through its Lierac “Body-Slim” brand. There are at least seven products in this line:

Lierac Body-Slim Multi-Action Concentrate

Lierac Body-Slim Stomach and Waist

Lierac Body-Slim Stubborn Areas

Lierac Body-Slim Destock Night

Lierac Body-Slim Oil

Lierac Body-Slim Triple Action

Lierac Body-Slim Day and Night Duo

Each of these products specifically promises, by statements on its packaging, to reduce the appearance of cellulite and/or have a slimming effect on the user. In particular, the product packaging contains the following statements:

Lierac Body-Slim Multi-Action Concentrate packaging

 BODY-SLIM

MULTI-ACTION CONCENTRATE

COMPLETE BODY CONTOURING

. . . .

Helps correct the appearance of

all visible signs of stubborn cellulite:

dimpled skin, loss of firmness,

excess water retention

improves skin quality

. . . .

Visible results in just 14 days*

-Reduction in the appearance of cellulite

and orange peel skin 100%**

-Refining effect on thighs and hips 96%**

-Firmer skin 93%**

Study conducted with 29 women

*Clinical study with instrumental measurements recorded after 14 days –

**Self-assessment after 56 days

Lierac Body-Slim Stomach and Waist packaging (Exhibit 2)

BODY-SLIM

STOMACH & WAIST

MULTI –ACTION CONCENTRATE

AGAINST UNWANTED ABDOMINAL CURVES

.   .   .   .  

“Flat stomach” effect

Helps refine the waist

Firms and tightens the skin

Firms the skin

Helps reduce excess water

.   .   .   .  

Visible results in just 14 days.

After 28 days:

– Reduction in the appearance of

abdominal fat 91%*

(average reduction of abdomen

circumference: 3.34 cm** and of

waist circumference: 1.46 cm**)

– firmed skin 97%*

Study conducted with 34 women

*Self-assessment after 28 days

**Clinical study with instrumental measurements after 28 days

 Lierac Body-Slim Stubborn Areas packaging: (Exhibit 3)

BODY-SLIM

STUBBORN AREAS

SLACKENED & STUBBORN AREAS – FIRMING

LIFTING SERUM AGAINST EMBEDDED CELLULITE

.   .   .   .

Firming Lifting Serum Against Embedded Cellulite

Helps Firm and Shape Inner Arms & Thighs

Reduces the Appearance of Cellulite in Stubborn Areas

.   .   .   .  

RESULTS IN JUST 14 DAYS

Improved tone on inner arms: 85%* and thighs: 90%*

Reduction in the appearance of stubborn cellulite: 77%**

Lifted skin: 83%***

*Study conducted with 19 volunteers after 28 days of use – % of subjects improved

Study conducted on the active ingredient

**Self-assessment after 14 days conducted with 48 volunteers

***Self-assessment after 28 days conducted with 52 volunteers

Lierac Body-Slim Destock Night packaging: (Exhibit 4)

BODY-SLIM

DESTOCK NIGHT

NIGHT-TIME BODY CONTOURING

INTENSIVE CONCENTRATE

.   .   .   .  

Helps fight the appearance of

stubborn cellulite while you sleep

Helps release stored fat

Helps reduce fat storage

.   .   .   .  

9 out of 10 WOMEN[1]

“DIMPLED SKIN” IS SMOOTHED:

IMPROVEMENT IN SKIN PROFILE

MEASURED EFFECTIVENESS AFTER JUST 14 DAYS[2]

[1]Self-assessment by 29 women after 28 days

[2]Clinical study with instrumental measurement conducted

among 31 women

Lierac Body-Slim Oil packaging: (Exhibit 5)

BODY-SLIM

DRAINAGE

DRAINAGE-ENHANCING

BI-PHASE OIL

AGAINST “DIMPLED SKIN”

.   .   .   .  

Smoothes the appearance

of “dimpled skin”

Helps fight excess

water retention

.   .   .   .  

96%* ANTI-CELLULITE EFFECT

MEASURED EFFECTIVENESS AFTER JUST 14 DAYS

*Thighs – Self-assessment after 14 days –

Study conducted with 28 women

Lierac Body-Slim Triple Action packaging (Exhibit 6)

BODY-SLIM

TRIPLE ACTION

SMOOTHING

BODY-CONTOURING

CONCENTRATE

.   .   .   .  

Smoothes the appearance

of “dimpled skin”

Firms the skin

Helps reduce excess water

.   .   .   .  

96%* BODY CONTOURING EFFECT ON THIGHS AND

MEASURED EFFECTIVENESS AFTER JUST 14 DAYS

*Self-assessment after 56 days

Lierac Body-Slim Day and Night Duo is two-pack package containing Body-Slim Multi-Action Concentrate and Body-Slim Destock Night. In addition to the representations on the individual boxes, as previously detailed, Lierac Body-Slim Day and Night Duo packaging (Exhibit 7) claims:

BODY-SLIM DAY & NIGHT DUO

24 HOUR INTENSIVE TREATMENT

. . . .

Firming and shaping formulas to help reduce the appearance of cellulite

and dimpled skin night and day

Lierac Body-Slim Slackened & Stubborn Areas Firming Lifting Serum Against Embedded Cellulite (Exhibit 8).

BODY SLIM

SLACKENED & STUBBORN AREAS – FIRMING LIFTING SERUM AGAINST EMBEDDED CELLULITE

.   .   .   .  

Helps firm and shape

inner arms and thighs

Reduces the appearance

of cellulite in stubborn areas

.   .   .   .  

2% patented WTB SYSTEM [sacred lotus – white willow – peptide]

12.5% LIPO-REVERSE [10% active caffeine

+ 2.5% glaucine complex]

1% anti-glycation complex

5% sesame extracts.

.   .   .   .  

Results after just 14 days

Improved tone on inner arms: 85% and thighs: 90%

Reduced appearance of stubborn cellulite: 77%

Lifted skin: 83%

Any studies appearing in product footnotes may lack credibility, due to this non-exhaustive list of flaws:

  • Ø not published or subjected to critique or peer-review by the scientific community
  • Ø based upon self-reporting of subjects
  • Ø unblinded – i.e. not a double blind placebo-controlled trial
  • Ø small sample size
  • Ø no meta-analysis of other cellulite studies
  • Ø possible test subject selection bias

 

The Lierac Body-Slim products are expensive ($50 – $80) but do they serve a real purpose or benefit to consumers?

The Scientific Community’s Rejection of Anti-Cellulite Claims

According to the first scholarly paper written on the topic of cellulite, “[I]t is an important obligation of physicians to teach the fact that so-called cellulite is not a disease, but is the result of the sex-typical structure of the skin of women and a natural consequence of aging,” and “there is up to now no other cosmetic or medical (short of surgical) treatment to improve so-called cellulite, certainly none at all to cause complete disappearance of it.” Nürnberger, F. and Müller, G. “So-Called Cellulite: An Invented Disease.”   The Journal of Dermatologic Surgery and Oncology (1978) 4:3 221-9.

Medical practitioners still soundly reject the notion that any topical product can effectively treat the condition of cellulite:

  • “At this point, there is no outstanding treatment for cellulite.” (Dr. Molly Wanner, dermatology instructor at Harvard Medical School. See St. Louis, Catherine. “Treating Cellulite? It’s Still There.”[2] The New York Times (June 24, 2009).   See also Wanner, Molly. “An evidence-based review of existing cellulite-reduction treatments.” Journal of Drugs in Dermatology. (2008) April 7(4):341-5.
  • “It’s a Madison Avenue term. It’s a normal variant of fat that shows as dimples. There’s no way a cream or pounding will change that fat.” (Dr. Samuel J. Stegman, associate clinical professor of dermatology at the University of California at San Francisco). See Wells, Linda. “Beauty; Battle of the Bulge.”[3] The New York Times, July 3, 1988.
  • “It’s not a happy situation for women who want to get rid of it because we don’t know how to treat it.” (Dr. Arthur Shipp, clinical professor of plastic surgery at Albert Einstein College of Medicine in New York who conducted an extensive cellulite study. See Carr, Amy. “Erasing Cellulite.”[4] Daily Herald (Arlington Heights) June 7, 1998.
  • “[A]ccording to 27 years of medical literature recently reviewed in The Journal of Cosmetic and Laser Therapy, scientific proof that creams make a real, lasting difference does not exist. ‘There is no evidence to show that any topical medications improve cellulite.’” (Dr. Mathew Avram, Harvard Medical School). See Siegel, Jessica. “Fat Chance.”[5] The New York Times, August 15, 2005.
  • “According to [UCLA’s David Geffen School of Medicine Dr. Jenny] Kim, no studies have convincingly shown that cellulite creams do any good on actual bodies.” Woolston, Chris. “Little proof of cellulite cream success.”[6] Los Angeles Times, November 3, 2008.
  • “I don’t think the evidence is there to recommend spending money on a cellulite cream,” says Dr. Molly Wanner, a dermatologist at Massachusetts General Hospital in Boston and an instructor at Harvard Medical School. Id.

In January 2014, The Federal Trade Commission announced a settlement enjoining a cosmetics company from making deceptive cellulite cream claims.   See “FTC Approves Final Consent Settling Charges that L’Occitane, Inc. Misled Consumers to Believe that Creams Could Slim Their Bodies.[7] In that case, the FTC alleged that L’Occitane violated the Federal Trade Commission Act because it advertised a cream that “helps to visibly reduce the appearance of cellulite,” and “reduces cellulite.” See Complaint, In re L’Occitane, Inc. a corporation, FTC file No. 122 3115[8].

Ales sells Lierac Body-Slim to United States consumers through a variety of different channels, including through independent retailers (such as CVS, Walgreens, Amazon, Drugstore.com), and through Ales’ website, http://www.lierac-usa.com.

[1] Wanner M, Avram M. “An evidence-based assessment of treatments for cellulite.” J Drugs Dermatol. 2008 Apr;7(4):341-5.

[2] http://www.nytimes.com/2009/06/25/fashion/25skinintro.html?_r=0, last accessed November 19, 2015.

[3] http://www.nytimes.com/1988/07/03/magazine/beauty-battle-of-the-bulge.html, last accessed November 19, 2015.

[4] https://www.highbeam.com/doc/1G1-68783688.html, last accessed November 19, 2015.

[5] http://www.nytimes.com/2005/08/15/opinion/fat-chance.html, last accessed 11/19/15.

[6] http://www.latimes.com/health/la-he-skeptic3-2008nov03-story.html, last accessed November 19, 2015.

[7] https://www.ftc.gov/news-events/press-releases/2014/04/ftc-approves-final-consent-settling-charges-loccitane-inc-misled, last accessed November 19, 2015

[8] https://www.ftc.gov/system/files/documents/cases/140408loccitanecmpt.pdf, last accessed November 19, 2015

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Reliv Supplements – Junk Science and Junk Products?

Reliv is a multilevel marketing company that sells nutritional supplements.

The company claims to have an edge over competitors due to their products’ ability to play a role in “epigenetics.” Reliv products contain a soy based ingredient that they claim is the key ingredient behind these special health benefits: “the soy peptide lunasin is the first dietary ingredient identified to affect gene expression and promote optimal health at the epigenetic level.”

On the company website, they pose the question –

“What’s epigenetics?

Their answer:

“Think of it this way: who you are is written in both pen and pencil. Things written in pen you can’t change. That’s DNA. But things written in pencil you can. That’s epigenetics.”

That explanation does not really clear up the question. Websters has a definition for epigenics: “the study of heritable changes in gene function that do not involve changes in DNA sequence.” There is a Wikipedia page devoted to epigenetics.

The Reliv website has video called “How Lunasin Works” and “Lunasin and Nutriotional Epigenics.”

It starts with a discussion by Dr. Alfredo Galvex, Nutritional Genomics, UC Davis, of the the human genome. He says “the genome is the blueprint of life,” and using a computer analogy, the genome is liked to “hardware,” and the “software is the epigenome.”

Then, he makes the following claims about lunasin:

“Lunasin is the first dietary ingredient identified to affect gene expression through an epigenetic mechanism of action. Now Lunasin can come in – it can actually bind to the histones and when it does that it allows the cellular machinery to recognize that it needs to turn on that gene. It has been shown to have numerous health benefits and that included immune response, some anti oxidant effects, inflammation, and general cellular health. Lunarich maximizes the amount of the bio active lunasin found in Reliv products. You can’t control the DNA you have but you can control the genes through lifestyle choices.”

Does this video contain a scientifically reasoned explanation for the product claims?

One Reliv product of particular interest is “ReversAge,” which is supposedly “Anti-Aging Nutrition.”

Product claims:

“Now you can get better with age. With three proprietary complexes that address aging at every level, ReversAge delivers the most complete array of youth-promoting ingredients available anywhere — at a fraction of the cost of alternative anti-aging treatments.”

Is this false advertising, or does ReversAge actually “address aging at every level?”

Reliv’s headquarters are at 136 Chesterfield Ind. Blvd., Chesterfield, MO 63005. It was founded by Robert L. and Sandy Montgomery.

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Chipotle Food Poisoning Claims

Chipotle has been in the headlines for allegedly sickening as many as 100 people in Boston (and others around the country). Boylston St. Boston MA Sep. 2015

chipolte

Chipotle boasts that it sells high quality food “wihout antibiotics or added hormones,” and “non-GMO” ingredients.

Consumers should not have to specify  “no salmonella” or “hold the E-coli” when placing a burrito order.

Food poisoning is the last thing a person expects when visiting a state-inspected and licensed food establishment.

Related Stories

E. coli? The Chipotle cult scoffs: ‘We’re totally willing to throw up a little.’

 

 

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Peabody Market forced to pay its employees unpaid wages

“BOSTON – A Peabody convenience store and its owner have been cited more than $43,000 for failing to properly pay an employee in violation of the state’s wage and hour laws and for failing to keep accurate payroll records, Attorney General Maura Healey announced today.

Ad Market Inc., d/b/a Peabody Market, and its president, Azhar Ali, have been cited more than $32,000 in restitution for failure to pay minimum wage and failure to pay proper overtime to an employee. They were also cited $6,400 in penalties, along with an additional $5,000 penalty for failure to keep accurate payroll records.

“This business repeatedly took advantage of an employee by failing to pay him the hard-earned money he was owed in exchange for providing temporary living accommodations in a broken walk-in cooler,” AG Healey said. “Our office will continue to fight on behalf of our most vulnerable workers to make sure that they do not fall victim to unfair and exploitative employment practices.”

In May 2014, the AG’s Office began its investigation of Peabody Market, following a complaint from a former employee. The office determined that, from August 2012 to March 2014, the complainant worked as a clerk handling various duties at the store. In place of the legally required minimum wage, the market provided temporary accommodations for the employee to reside inside a broken walk-in cooler at the store for the majority of time he worked there.

The investigation revealed that he frequently worked in excess of 100 hours a week, but was only sporadically compensated for this work. The AG’s investigation found that Peabody Market also failed to keep true and accurate payroll records.

This case serves as an example of the office’s focus on providing economic security to the residents of Massachusetts, particularly vulnerable workers. The AG’s Office enforces the laws regulating the payment of wages, including prevailing wage, minimum wage and overtime laws.”

Source: Massachusetts Attorney General’s Office Press Release (November 5, 2015)

Most employment situations in which there are wage and hour violations do not involve such extreme facts, such as 100 hour work weeks, and living in a broken walk-in cooler instead of receiving pay. However, this is an excellent example of a “wage theft” case that the Attorney General’s Office chose to prosecute.

It is important to note that a) Massachusetts law permits a “private right of action” for wage theft, meaning that you are free to use your own lawyer to recover money an employer has stolen from you in the form of unpaid wages, and b) the Attorney General’s Office does not have sufficient resources to pursue every single complaint it receives about unpaid wages. See our page about wage theft cases here.

Some key points about Massachusetts worker’s rights, from the AG’s website are:

Massachusetts Wage Act
You must be paid for every hour you work, even if you quit or are fired. This applies to hours worked, tips, vacation pay, holiday pay and commissions. If you voluntarily leave your job, you must be paid in full on the next regular pay day. If you are laid off or fired, you must be paid in full on the day your employment ends.

Meal Breaks
If you work at least six hours a day, you are entitled to a 30 minute break. During your break you must be relieved of all duties and allowed to leave the premises. If you voluntarily elect to give up your meal break, you must be paid for the time worked.

Tips
You may be paid $3.00 an hour if you regularly receive tips of more than $20.00 per month, and only if those tips, when added to the $3.00 per hour, equal at least $9.00 per hour. Your tips are yours to keep. No employer, manager or boss may request or accept any part of your tips.

Minimum Wage
Massachusetts’ minimum wage is $9.00 per hour.

Overtime
By law, employers are required to pay time-and-a-half if you work over 40 hours a week. For example, if you usually earn $9.00 per hour, you would be paid $13.50 per hour for each hour worked beyond 40 hours.

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Discussion: The Illinois Biometric Information Privacy Act

The Illinois Biometric Information Privacy Act  (IL ST CH 740 § 14/1 et. seq.) is here.

Illinois’ biometrics statute says in part:

(a) A private entity in possession of biometric identifiers or biometric information must develop a written policy, made available to the public, establishing a retention schedule and guidelines for permanently destroying biometric identifiers and biometric information when the initial purpose for collecting or obtaining such identifiers or information has been satisfied or within 3 years of the individual’s last interaction with the private entity, whichever occurs first. Absent a valid warrant or subpoena issued by a court of competent jurisdiction, a private entity in possession of biometric identifiers or biometric information must comply with its established retention schedule and destruction guidelines.
(b) No private entity may collect, capture, purchase, receive through trade, or otherwise obtain a person’s or a customer’s biometric identifier or biometric information, unless it first:
(1) informs the subject or the subject’s legally authorized representative in writing that a biometric identifier or biometric information is being collected or stored;
(2) informs the subject or the subject’s legally authorized representative in writing of the specific purpose and length of term for which a biometric identifier or biometric information is being collected, stored, and used; and
(3) receives a written release executed by the subject of the biometric identifier or biometric information or the subject’s legally authorized representative.
(c) No private entity in possession of a biometric identifier or biometric information may sell, lease, trade, or otherwise profit from a person’s or a customer’s biometric identifier or biometric information.
(d) No private entity in possession of a biometric identifier or biometric information may disclose, redisclose, or otherwise disseminate a person’s or a customer’s biometric identifier or biometric information unless:
(1) the subject of the biometric identifier or biometric information or the subject’s legally authorized representative consents to the disclosure or redisclosure;
(2) the disclosure or redisclosure completes a financial transaction requested or authorized by the subject of the biometric identifier or the biometric information or the subject’s legally authorized representative…

Which other states have Biometric Privacy Laws?

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Does Behr Paint & Primer In One Perform as Advertised?

Some consumers have questioned the efficacy of “all in one” primer/paint products.

Traditionally, primer is used on bare wood, sheetrock, metal, or plaster before finish paint is applied.

Behr Paint & Primer In One claims to fulfill both roles.

If the primer layer in a painting project fails,  it is necessary to start all over again – after the unpleasant task of scraping off all the paint that did not adhere properly. No one likes to waste labor and material costs.

When an atttempted shortcut fails, the saying “do it right, or do it again” comes to mind.

Does Behr Paint & Primer In One actually work?

Have you used this product and found that it failed to live up to the claims it makes? If so, you are encouraged to contact this office.

Information about the BEHR paint company

The full name of the company behind Behr paint is “Behr Process Corporation.” It is based in California.

Behr is sold at Home Depot

20160809_135357

The display above is located at the Home Depot in Dorchester. Here, 5 gallon containers of paint and primer combo cost $108.00 (as of August 9, 2016).

The combination primer & paint Behr product is sold in numerous variations:

20160809_135321

The idea is that you can apply the Behr dual-purpose product when painting new walls, ceilings, and woodwork – and save the separate step of applying primer as a base coat. Some consumers have indicated that this product is a waste of money due to total coating failure.

 

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How to Claim Settlement Funds from the Equity Residential “Move-in Fee” Class Action Lawsuit

The Equity Residential Move-in Fee Class Action has settled.  Now is the time to file a claim form. Only class members who submit timely claim forms will receive money.  The settlement website is here.

Class members who submit claim forms on time will receive:

  • 100% of any application fees, move-in fees and/or up-front pet fees that they paid, with 10% interest from February 23, 2012 through July 10, 2015 (for move-in fees) and from August 24, 2012 through July 10, 2015 (for application fees and up-front pet fees);

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Will Poland Spring stop selling water in plastic containers?

Seal of the waters of Nantucket, MA

Seal off the waters of Nantucket, MA

Sign the Petition

I’ve started the petition “Tell Nestlé to stop selling water in plastic bottles.” Please take a few seconds to sign here  Continue reading

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The OPM Cyber Breach: the most dangerous data breach in U.S. history?

Original Post

Have you completed form “SF-86” or “Questionnaire for National Security Positions” to apply for a job with the U.S. Government since 2000? Are you related to, or lived with someone who has applied for a position requiring a U.S. government Secret or Top Secret security clearance?  If so, it is highly likely that you were impacted by the Office of Personnel Management (“OPM”) cyber-breach.

Millions of current, former, and prospective employees, and contractors of the U.S. government were affected, whether they realize it or not.  In addition, millions of their family members, spouses, contacts, and roommates who never even applied for a security clearance position with the U.S. government, had their personal information and records compromised as well.

All individuals who went through a background investigation by OPM in 2000 or afterwards (which occurs through the submission of forms SF 86, SF 85, or SF 85P) are highly likely to have been impacted by the OPM cyber breach (or breaches). The total number of people affected is estimated to top 20 million.

The personal details of individuals applying for jobs requiring a security clearance are some of the most valuable intelligence an enemy could obtain. Current CIA, FBI, and NSA (to name only a few agencies) employees, as well as many armed forces personnel, have been vetted through form SF-86 and the Office of Personnel Management.

The Office of Personnel Management’s repeated failures to uphold its duty to safeguard secret data, may have serious consequences on the national security of the United States for many years to come.

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Related Press Accounts:

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OPM is a federal agency headquartered in Washington, D.C.  It performs vital functions in the process of screening and hiring federal employees and contractors. Either directly, or through private contractors, OPM gathers and stores vast amounts of sensitive data about candidates and their families.

Because nearly everyone who applies for employment with the federal government receives some form of vetting through OPM, it “stores more Personally Identifiable Information” (“PII”) and other sensitive records than almost any other Federal agency.”[1]

Consequently, millions of persons, ranging from mail carriers, to submarine component technicians, spies, secret service agents, and certain United States Marines – have been screened by OPM.

The PII that OPM collects and has collected is stored on networked computer systems, which are by their nature, subject to unauthorized access, or a “data breach.”

In 2014, there were so many data breaches that it was dubbed the “year of the breach,” with four out of ten major U.S. companies holding credit card data suffering a network intrusion and data breach of some kind.[2]  The threats facing any digital custodian of sensitive data could not have been more obvious, with major retailers such as Target and The Home Depot in headlines suffering record breaking data breaches affecting tens of millions of Americans.[3]

PII about United States government employees and contractors, including names, addresses, social security numbers, and close relatives, would be of great intelligence value to a foreign government, or to “cyber criminals” aiming to commit financial crimes or identity theft. An obvious target, all OPM data should have been well secured against intrusion from any enemy.

Although charged with safeguarding some of the most important data possessed by the U.S. government, OPM failed to fulfill that duty.

After learning of data breaches affecting its networks, OPM issued two public disclosures.  The most recent disclosure, updated June 23, 2015 suggested the astonishing extent of the damage:

“Through the course of the ongoing investigation into the cyber intrusion that compromised personnel records of current and former Federal employees announced on June 4, OPM has recently discovered that additional systems were compromised. These systems included those that contain information related to the background investigations of current, former, and prospective Federal government employees, as well as other individuals for whom a Federal background investigation was conducted.[4] The full extent of the breach centers around the wholesale loss of Department of Defense Standard Form 86, or “SF-86” a “127 page document [that] asks government employees to disclose information about family members, friends and past employment as well as details on alcohol and drug use, mental illness, credit ratings, bankruptcies, arrest records and court actions.”[5]

According to the Navy Times:

“Some military officials believe the recent hack targeting the civilian-run OPM seized information from tens of thousands of Standard Form 86s, which are required for all service members and civilians seeking a security clearance. That includes service members of all ranks, officers and enlisted, in a wide range of job specialties and assignments.  ‘They got everyone’s SF-86,’ one Pentagon official familiar with the investigation told Military Times.”[6]

As a result of the OPM breaches over twenty million individuals were affected. OPM has publicly disclosed:

“OPM and the interagency incident response team have concluded with high confidence that sensitive information, including the Social Security Numbers (SSNs) of 21.5 million individuals, was stolen from the background investigation databases.  This includes 19.7 million individuals that applied for a background investigation, and 1.8 million non-applicants, primarily spouses or co-habitants of applicants. Some records also include findings from interviews conducted by background investigators and approximately 1.1 million include fingerprints. Usernames and passwords that background investigation applicants used to fill out their background investigation forms were also stolen.”[7]

OPM failed to live up to its duty to protect highly sensitive PII, even though it knew or should have known about profound vulnerabilities in its data security practices as early as 2007.

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Footnotes

[1] Actions to Strengthen Cybersecurity and Protect Critical IT Systems, OPM, June 2015, last accessed on September 7, 2015 from https://www.opm.gov/news/latest-news/announcements/cybersecurity-report/.

[2] If 2014 Was The Year Of The Data Breach, Brace For More, Forbes, January 2, 2015.  Last accessed September 7, 2015, from http://www.forbes.com/sites/danielfisher/2015/01/02/if-2014-was-the-year-of-the-data-breach-brace-for-more/.

[3] Home Depot’s Record-Breaking Credit Card Breach Could Have Been Much Worse, The Motley Fool, September 20, 2014. Last accessed September 7, 2015 from http://www.fool.com/investing/general/2014/09/20/home-depots-record-breaking-credit-card-breach-cou.aspx.

[4] Information about OPM Cybersecurity Incidents – Latest News, OPM, last accessed on September 7, 2015 from https://www.opm.gov/news/latest-news/announcements/.

[5] Military clearance OPM data breach ‘absolute calamity.’ Navy Time, June 18, 2015, last accessed September 8, 2015 from http://www.navytimes.com/story/military/2015/06/17/sf-86-security-clearance-breach-troops-affected-opm/28866125/.

[6] Id.

[7] Information about OPM Cybersecurity Incidents – What Happened, OPM, last accessed on September 7, 2015 from https://www.opm.gov/cybersecurity#FAQs.

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Related Filings: 

Related Cases:

MDL No. 2664

  • Michael Hanagan v. United States Office of Personnel Management et al (CAC/2:15-cv-06045)
  • National Treasury Employees Union, et al v. Archuleta (CAN/3:15-cv-03144)
  • McGarry v. U.S. Office of Personnel Management et al (CO/1:15-cv-01705)
  • American Federation Of Government Employees et al v. United States Office of Personnel Management et al (DC/1:15-cv-01015)
  • Krippendorf v. United States Of America, Office Of Personnel Management et al (DC/1:15-cv-01321)
  • Cox v. United States Office of Personnel Management et al (GAN/1:15-cv-02986)
  • Hobbs v. United States Office of Personnel Management et al (ID/2:15-cv-00302)
  • Woo v. United States Office of Personnel Management et al (KS/6:15-cv-01220)
  • Sims v. United States of America, Office of Personnel Management, et al (Mass/1:15-cv-13426-DJC)

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Updates

10/2/2015 — Activity in Case MDL No. 2664 IN RE: U.S. Office of Personnel Management Data Security Breach Litigation Conditional Transfer Order Finalized

United States

United States Judicial Panel on Multidistrict Litigation

Notice of Electronic Filing

The following transaction was entered on 10/27/2015 at 8:07 AM EDT and filed on 10/27/2015

Case Name: IN RE: U.S. Office of Personnel Management Data Security Breach Litigation
Case Number: MDL No. 2664
Filer:
Document Number: 64

Docket Text:
CONDITIONAL TRANSFER ORDER FINALIZED (CTO-1) – 6 action(s) re: pldg. (16 in CAC/2:15-cv-06045, 20 in CO/1:15-cv-01705, 10 in GAN/1:15-cv-02986, 20 in ID/2:15-cv-00302, 1 in MA/1:15-cv-13426, [61] in MDL No. 2664, 5 in VAE/1:15-cv-01202) Inasmuch as no objection is pending at this time, the stay is lifted.

Signed by Clerk of the Panel Jeffery N. Luthi on 10/27/2015.

Associated Cases: MDL No. 2664, CAC/2:15-cv-06045, CO/1:15-cv-01705, GAN/1:15-cv-02986, ID/2:15-cv-00302, MA/1:15-cv-13426, VAE/1:15-cv-01202 (TB)

Case Name: Hobbs v. United States Office of Personnel Management et al
Case Number: ID/2:15-cv-00302
Filer:
Document Number: 22

Docket Text:
CONDITIONAL TRANSFER ORDER FINALIZED (CTO-1) – 6 action(s) re: pldg. (16 in CAC/2:15-cv-06045, 20 in CO/1:15-cv-01705, 10 in GAN/1:15-cv-02986, 20 in ID/2:15-cv-00302, 1 in MA/1:15-cv-13426, [61] in MDL No. 2664, 5 in VAE/1:15-cv-01202) Inasmuch as no objection is pending at this time, the stay is lifted.

Signed by Clerk of the Panel Jeffery N. Luthi on 10/27/2015.

Associated Cases: MDL No. 2664, CAC/2:15-cv-06045, CO/1:15-cv-01705, GAN/1:15-cv-02986, ID/2:15-cv-00302, MA/1:15-cv-13426, VAE/1:15-cv-01202 (TB)

Case Name: McGarry v. U.S. Office of Personnel Management et al
Case Number: CO/1:15-cv-01705
Filer:
Document Number: 22

Docket Text:
CONDITIONAL TRANSFER ORDER FINALIZED (CTO-1) – 6 action(s) re: pldg. (16 in CAC/2:15-cv-06045, 20 in CO/1:15-cv-01705, 10 in GAN/1:15-cv-02986, 20 in ID/2:15-cv-00302, 1 in MA/1:15-cv-13426, [61] in MDL No. 2664, 5 in VAE/1:15-cv-01202) Inasmuch as no objection is pending at this time, the stay is lifted.

Signed by Clerk of the Panel Jeffery N. Luthi on 10/27/2015.

Associated Cases: MDL No. 2664, CAC/2:15-cv-06045, CO/1:15-cv-01705, GAN/1:15-cv-02986, ID/2:15-cv-00302, MA/1:15-cv-13426, VAE/1:15-cv-01202 (TB)

Case Name: Cox v. United States Office of Personnel Management et al
Case Number: GAN/1:15-cv-02986
Filer:
Document Number: 12

Docket Text:
CONDITIONAL TRANSFER ORDER FINALIZED (CTO-1) – 6 action(s) re: pldg. (16 in CAC/2:15-cv-06045, 20 in CO/1:15-cv-01705, 10 in GAN/1:15-cv-02986, 20 in ID/2:15-cv-00302, 1 in MA/1:15-cv-13426, [61] in MDL No. 2664, 5 in VAE/1:15-cv-01202) Inasmuch as no objection is pending at this time, the stay is lifted.

Signed by Clerk of the Panel Jeffery N. Luthi on 10/27/2015.

Associated Cases: MDL No. 2664, CAC/2:15-cv-06045, CO/1:15-cv-01705, GAN/1:15-cv-02986, ID/2:15-cv-00302, MA/1:15-cv-13426, VAE/1:15-cv-01202 (TB)

Case Name: Oravis et al v. United States of America, Office of Personnel Management et al
Case Number: VAE/1:15-cv-01202
Filer:
Document Number: 7

Docket Text:
CONDITIONAL TRANSFER ORDER FINALIZED (CTO-1) – 6 action(s) re: pldg. (16 in CAC/2:15-cv-06045, 20 in CO/1:15-cv-01705, 10 in GAN/1:15-cv-02986, 20 in ID/2:15-cv-00302, 1 in MA/1:15-cv-13426, [61] in MDL No. 2664, 5 in VAE/1:15-cv-01202) Inasmuch as no objection is pending at this time, the stay is lifted.

Signed by Clerk of the Panel Jeffery N. Luthi on 10/27/2015.

Associated Cases: MDL No. 2664, CAC/2:15-cv-06045, CO/1:15-cv-01705, GAN/1:15-cv-02986, ID/2:15-cv-00302, MA/1:15-cv-13426, VAE/1:15-cv-01202 (TB)

Case Name: SIMS v. UNITED STATES OF AMERICA, OFFICE OF PERSONNEL MANAGEMENT et al
Case Number: MA/1:15-cv-13426
Filer:
Document Number: 3

Docket Text:
CONDITIONAL TRANSFER ORDER FINALIZED (CTO-1) – 6 action(s) re: pldg. (16 in CAC/2:15-cv-06045, 20 in CO/1:15-cv-01705, 10 in GAN/1:15-cv-02986, 20 in ID/2:15-cv-00302, 1 in MA/1:15-cv-13426, [61] in MDL No. 2664, 5 in VAE/1:15-cv-01202) Inasmuch as no objection is pending at this time, the stay is lifted.

Signed by Clerk of the Panel Jeffery N. Luthi on 10/27/2015.

Associated Cases: MDL No. 2664, CAC/2:15-cv-06045, CO/1:15-cv-01705, GAN/1:15-cv-02986, ID/2:15-cv-00302, MA/1:15-cv-13426, VAE/1:15-cv-01202 (TB)

Case Name: Michael Hanagan v. United States Office of Personnel Management et al
Case Number: CAC/2:15-cv-06045
Filer:
Document Number: 18

Docket Text:
CONDITIONAL TRANSFER ORDER FINALIZED (CTO-1) – 6 action(s) re: pldg. (16 in CAC/2:15-cv-06045, 20 in CO/1:15-cv-01705, 10 in GAN/1:15-cv-02986, 20 in ID/2:15-cv-00302, 1 in MA/1:15-cv-13426, [61] in MDL No. 2664, 5 in VAE/1:15-cv-01202) Inasmuch as no objection is pending at this time, the stay is lifted.

Signed by Clerk of the Panel Jeffery N. Luthi on 10/27/2015.

Associated Cases: MDL No. 2664, CAC/2:15-cv-06045, CO/1:15-cv-01705, GAN/1:15-cv-02986, ID/2:15-cv-00302, MA/1:15-cv-13426, VAE/1:15-cv-01202 (TB)

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Submitting a Target data breach claim

If You Shopped at Target from November 27 through December 18, 2013 or Received Notice That Your Personal Information Was Compromised, You Could Get Money from a Data Breach Settlement.

Visit the official Target Breach Settlement Website (www.targetbreachsettlement.com) to determine your eligibility to submit a claim. All claims must be submitted by July 31, 2015.

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FCC Strengthens Consumer Protections Against Unwanted Calls And Texts

June 18, 2015 – The Federal Communications Commission today adopted additional rules (Declaratory Ruling and Order FCC 15-72) to protect consumers against unwanted robocalls and spam texts.

Highlights for consumers:

  1. Green Light for ‘Do Not Disturb’ Technology – Service providers can offer robocall-blocking technologies to consumers and implement market-based solutions that consumers can use to stop unwanted robocalls.
  2. Empowering Consumers to Say ‘Stop’ – Consumers have the right to revoke their consent to receive robocalls and robotexts in any reasonable way at any time.
  3. Reassigned Numbers Aren’t Loopholes – If a phone number has been reassigned, companies must stop calling the number after one call.
  4. Third-Party Consent – A consumer whose name is in the contacts list of an acquaintance’s phone does not consent to receive robocalls from third-party applications downloaded by the acquaintance.
  5. Affirming the Law’s Definition of Autodialer – “Autodialer” is defined in the Act as any technology with the capacity to dial random or sequential numbers. This definition ensures that robocallers cannot skirt consumer consent requirements through changes in calling technology design or by calling from a list of numbers.
  6. Text Messages as Calls – The Commission reaffirmed that consumers are entitled to the same consent-based protections for texts as they are for voice calls to wireless numbers.
  7. Internet-to-Phone Text Messages – Equipment used to send Internet-to-phone text messages is an autodialer, so the caller must have consumer consent before calling.
  8. Very Limited and Specific Exemptions for Urgent Circumstances – Free calls or texts to alert consumers to possible fraud on their bank accounts or remind them of important medication refills, among other financial alerts or healthcare messages, are allowed without prior consent, but other types of financial or healthcare calls, such as marketing or debt collection calls, are not allowed under these limited and very specific exemptions. Also, consumers have the right to opt out from these permitted calls and texts at any time.

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Class action lawsuit alleges Purina Beneful sickened dogs

A class action lawsuit alleged that certain Purina Beneful dry foods contained substances that are toxic to animals, resulting in serious illness and death of thousands of dogs.

Case Documents:

Malcolm v. Nestle Purina Petcare - Class Action Complaint

Malcolm v. Nestle Purina Petcare – Class Action Complaint

The Complaint claims:

Beneful contains Menandione, Propylene Glycol, and Mycotoxins:

“Beneful contains menadione, a controversial and harmful form of vitamin K, linked to liver toxicity, allergies and the abnormal break-down of red blood cells.”

“Beneful contains propylene glycol, which is added to the product to help preserve the moisture content. Propylene glycol, a key ingredient in newer automotive anti-freeze, is toxic and has been proven to cause a serious type of blood disease in animals called Heinz body anemia. Because of this, propylene glycol has been banned by the FDA for use in cat food.”

“The Association for Truth in Pet Food (“ATPF”) conducted testing of Beneful Original and found that it contained high risk levels of mycotoxins. Mycotoxins are a group of toxins produced by fungus that occurs in grains, a principal ingredient in Beneful. The ATPF’s testing also revealed that the Beneful brand tested, Beneful Original, has a Risk Equivalent Quality rating of 32, where anything over 20 indicates a High Risk…”

Beneful may have poisoned dogs

“…The illnesses and deaths experienced by dogs consuming Beneful… including Plaintiff’s dog, have been caused by the harmful and toxic ingredients in Beneful.”

These Purina Beneful dry foods may be dangerous:

This case concerns only the dry or kibble variety of foods sold under the Beneful name:

  • Beneful Healthy Growth for Puppies
  • Beneful Healthy Radiance
  • Beneful Healthy Smile
  • Beneful Healthy Weight
  • Beneful IncrediBites
  • Beneful Original
  • Beneful Healthy Fiesta
  • Beneful Playful Life

Information about Nestlé Purina PetCare Company

Nestlé Purina Petcare is a St. Louis, Missouri-based subsidiary of Nestlé. It produces and markets pet food, treats and litter. Some of its pet food brands include Purina Pro Plan, Purina Dog Chow, Friskies, Beneful and Purina ONE.

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Herbal Supplements – Sometimes they lie about what’s in them

If you purchased any of the supplements listed below from GNC, Target, Walgreens, or Walmart, and you are interested in serving as a class representative, in a potential false advertising class action lawsuit, you are invited to contact us.

GNC

  • “Herbal Plus” brand Gingko Biloba
  • “Herbal Plus” brand St. John’s Wort
  • “Herbal Plus” brand Ginseng
  • “Herbal Plus” brand Echinacea
  • “Herbal Plus” brand Saw Palmetto

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Wage Theft in Massachusetts

Few situations are more unfair, harmful, or more deserving of aggressively seeking justice than wage theft.

There are a number of laws addressing wage theft in Massachusetts.  The first among these laws is the Massachusetts Wage Act, M.G. L. c. 149, § 148.  It is also known as the “The Prompt Payment of Wages Statute.” The Massachusetts Misclassification Law G.L. c. 149, § 148B, and the Fair Labor Standards Act (a federal law) are also significant tools to combat wage theft.

The Prompt Payment of Wages Statute establishes the basic principle that wages must be paid within certain time frames, depending on the type of employee.  Some employers stall their employees, and make them wait too long for money they have earned, or pay some, but not all wages.  Not paying employees promptly and in full is a form of “wage theft.”

The full text of the the Prompt Payment of Wages Statute is available here. The first 169 words of § 148 (there are 1268 in total) are below:

  • Every person having employees in his service shall pay weekly or bi-weekly each such employee the wages earned by him to within six days of the termination of the pay period during which the wages were earned if employed for five or six days in a calendar week, or to within seven days of the termination of the pay period during which the wages were earned if such employee is employed seven days in a calendar week, or in the case of an employee who has worked for a period of less than five days, hereinafter called a casual employee, shall, within seven days after the termination of such period, pay the wages earned by such casual employee during such period, but any employee leaving his employment shall be paid in full on the following regular pay day, and, in the absence of a regular pay day, on the following Saturday; and any employee discharged from such employment shall be paid in full on the day of his discharge…

 

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Massachusetts Tenants’ Rights to Warm Apartments under the State Sanitary Code

In Massachusetts, the State Sanitary Code (105 CMR 410) provides minimum standards of safety, cleanliness, and comfort for an apartment to be considered legally fit for human occupation.

The State Sanitary Code establishes the temperature that an apartment must be maintained during the “heating season” (September 15 – June 15):

410.201: Temperature Requirements

The owner shall provide heat in every habitable room and every room containing a toilet, shower, or bathtub to at least 68°F (20° C) between 7:00 A.M. and 11:00 P.M. and at least 64°F (17° C) between 11:01 P.M. and 6:59 A.M. every day other than during the period from June 15th to September 15th, both inclusive, in each year except and to the extent the occupant is required to provide the fuel under a written letting agreement. The temperature shall at no time exceed 78°F (25° C) during the heating season…

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The “Low Fat” deception that is making America fat

(Updated Novemeber 8, 2014)

Please watch the documentary Fed Up, available on Netflix.  Description from Netflix: “Childhood obesity has become an ever-more serious medical issue in the United States. This eye-opening documentary examines the underlying causes behind the epidemic, including the marketing strategies of major U.S. food producers.” Official website of the movie Fed Up: http://fedupmovie.com/#/page/home.

Program Summary

The Problem:

Highly processed sugary foods are addictive and are making Americans fat and sick. Americans are consuming far more sugar than is healthy.  Source: World Health Organization TRS 916. The problem starts in childhood.

The Root Cause:

Processed and fast food giants are harming Americans intentionally sell us habit-forming and disease-causing foods through sophisticated and deceptive marketing.

Solutions:

  • Increased awareness of food industry tactics
  • Going to farmers’ markets instead of supermarkets. For example, Bostonian can buy real food at the Copley Square Farmer’s Market (footage of recent visit here).
  • Buying real food
  • Cooking at home
  • Stop buying processed foods!

*     *     *

Original post (June 16, 2012)

Foods that have labels saying they are “low fat” are usually high in sugar. Sugary foods makes people fatter than fatty foods — in other words, a person who eats bacon and whole milk but avoids sugar, is generally going to be thinner than the person who eats donuts and Coca-Cola. Most of the sugar in our foods today comes from high fructose corn sugar (HFCS).  “Endocrinologist Robert Lustig was one of the first to recognise the dangers of HFCS but his findings were discredited at the time. Meanwhile a US Congress report blamed fat, not sugar, for the disturbing rise in cardio-vascular disease and the food industry responded with ranges of ‘low fat’, ‘heart healthy’ products in which the fat was removed – but the substitute was yet more sugar.” Read the BBC Story “The Men Who Made Us Fat,” here.

There is entire industry aimed at making America thin – but unfortunately, it too is largely rooted in deception.

Below are some real ways to lose weight that should work for most healthy people (I am a lawyer, not a doctor – so please check with your doctor before making any changes to your to lifestyle or diet).

  • don’t waste money on “weight loss” pills, and fad diets
  • stop eating sugary foods and snacks
  • eat healthy food instead of junk food
  • exercise regularly (running, weight-training, or some kind of sport; aim for 30 minutes of exercise every day).
  • keep a food diary (reduces over-eating)
  • sleep 8 hours every night
  • reduce stress in your daily life

 

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Is Lincoln Property Company a Good Landlord?

Have you had issues as a tenant at one of Lincoln Property Company’s Massachusetts apartment buildings? If so, we would like to hear from you.

The properties that the Lincoln Property Company rents in Massachusetts are:

  • Edgewood Apartments (North Reading)
  • The Estates Apartments (Hull)
  • The Residences at Little River (Haverhill)
  • Jefferson at Bellingham Apartments (Bellingham)
  • Jefferson at Salem Station Apartments (Salem)
  • Villas at Old Concord Apartments (Billerica)

Lincoln Property Compan’s address is 2000 McKinney Avenue, Suite 100, Dallas Texas, 75201. Phone: (214) 740-3300 Fax: (214) 740-3441.

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Is the Dolben Company a Good Landlord?

Have you had issues as a tenant at one of the Dolben Company’s Massachusetts apartment buildings?

The properties that the Dolben Company rents in Massachusetts are:

100 Memorial Drive
Fairlawn Apartments
Neponset Landing
Northgate Apartments
One North of Boston
The Groves at Milford
Kensington at Chelmsford
Longview at Georgetown
Woodview at Randolph
Cordis Mills
Schoolhouse at Lower Mills
Heritage at Bedford Springs
Richmond Vista at Wakefield
Stockbridge Court
Townhouse Apartments
Pine Brook Place
Metro at Wilmington Station
Saunders Crossing
Chestnut Park

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The Massachusetts Home Depot Data Breach Class Action

This case has settled– Home Depot has agreed to pay timely claims, which you can submit here online: https://gilardigateway.com/HomeDepotBreachSettlement/Claimant/UnKnownClaimForm

SETTLEMENT OVERVIEW
Documented Losses and Time
If you have documentation establishing that you suffered out-of-pocket losses, unreimbursed charges, or time spent remedying issues relating to the Home Depot data breach, you can make a claim for reimbursement up to $10,000, including up to 5 hours of documented time at $15 per hour. If you have documented out-of-pocket losses or unreimbursed charges, you will be eligible to self-certify your time spent remedying issues relating to the data breach at $15 per hour for up to 2 hours.

Monitoring Services
If you used a credit or debit card at a self-checkout lane at a U.S. Home Depot store between April 10, 2014 and September 13, 2014, and your payment card information was compromised, you are eligible to enroll in 18 months of free Identity Guard® Essentials identity monitoring services, regardless of whether you are eligible to submit a claim for documented losses or time. You may make a claim for documented losses or time and also enroll in monitoring services.

– Case Documents –

Leonard Law Office, PC is representing Massachusetts consumers in an active class action lawsuit against Home Depot. The complaint alleges:

  • A nationwide breach in Home Depot’s point-of-sale retail credit/debit card processing network and computer system and/or “cardholder data environment” compromised personal and financial data (the “Personal Information”) connected to about 56 million Home Depot customers’ credit and debit card accounts. The breach, which began in April 2014 and ended on or about September 8, 2014, was the second largest retail payment card data breach in U.S. history. Home Depot is the world’s largest home improvement retailer.
  • As a result of the breach, millions of customers who shopped at a Home Depot “brick and mortar” store anywhere in the United States between April 1, 2014 and September 8, 2014 and paid by credit or debit card, had their personal and financial information breached. Many of these customers have already reported unauthorized charges to their accounts, and many more such unauthorized transactions are expected in the coming weeks and months.
  • Home Depot failed to live up to its duty to protect customers’ private financial information, although its own employees warned the company of known weaknesses in its cardholder data environment as early as 2008[1]
  • A massive breach of a retailer’s cardholder data environment and wide scale release of Personal Information, such as the one that affected Home Depot during some of the busiest home improvement shopping days of the year, would not have occurred absent the retailer’s failure to comply with these and dozens of other Data Security Standards.
  • Home Depot failed to exercise the care it owes to Plaintiffs and the other Class members – namely, safeguarding its cardholder data environment and securing their Personal Information.
  • News of the widespread data breach was first published by Brian Krebs, a data security expert.   Brian Krebs’ computer security blog is a “top source for investigative reporting on cybercrime and Internet security.”[1] On September 2, 2014 Krebs posted: “Multiple banks say they are seeing evidence that Home Depot stores may be the source of a massive new batch of stolen credit and debit cards that went on sale this morning in the cybercrime underground.”[2]
  • After Krebs broke the story, a flood of national mainstream media reports followed. By September 18, 2014, Home Depot’s data breach was fully exposed by all of the major news outlets.
  • The Wall Street Journal Reported:”…56 million cards may have been compromised in a five-month attack on its payment terminals, making the breach much bigger than the holiday attack at Target Corp.”[3]
  • Reuters Reported: “Wesley McGrew, an expert of retail breaches who is an assistant research professor at the department of  computer science at Mississippi State University, said that Home Depot is going to be expected to bear the costs related to fraud and payment card replacement…Criminals have frequently used software that evades detection, but retailers are expected to closely monitor their networks using tools that are designed to uncover signs of a crime in progress, McGrew said…It’s hard to feel sorry for them when there are things they could have done to improve the security of these transactions.”[4]
  • The Boston Globe Reported: “Home Depot might have also benefited in the timing in another way— the disclosure came in September, months after the spring season, which is the busiest time of year for home-improvement chains.[5]
  • Information encoded on the magnetic stripe of cards is known in the industry as “Magnetic Stripe Data” or “Track Data.” The data encoded in the magnetic stripe is for authorization during card-present transactions.   Unauthorized possession of this information is dangerous, because having it enables miscreants to combine all of the elements necessary to create usable counterfeit cards. The theft of ‘track data’ enables the creation counterfeit cards encoded with consumers’ information onto “clone cards” with a magnetic stripe. This means that criminals are able to make clones of cards that were swiped at Home Depot stores and use them to make fraudulent “card-present,” or “card-not-present” debit or credit transactions on consumers’ accounts.
  • What Home Depot’s announcement in the aftermath of the data breach did not disclose is the full scope of risks posed to consumers who shopped at Home Depot during the breach, or Home Depot’s failure to take precautions in time to prevent the breach from occurring in the first place.
  • Home Depot’s public relations announcement[6] on its website emphasized the steps it undertook to improve security after the breach, but downplayed the actual harm to consumers. In a press release, Home Depot’s CEO stated, “[w]e apologize to our customers for the inconvenience and anxiety this has caused, and want to reassure them that they will not be liable for fraudulent charges,” and “from the time this investigation began, our guiding principle has been to put our customers first, and we will continue to do so.”
  • On September 8, 2014, a full six days after Brian Krebs revealed the breach, Home Depot finally released a statement fully confirming that a breach had occurred.
  • The breach occurred during the busy spring season, a time when consumers historically spend the most on home-improvement goods.

[1] Krebs, Brian. Why KrebsOnSecurity.com?, retrieved from http://krebsonsecurity.com/cpm/ on October 21, 2014.

[2] Id. Banks: Credit Card Breach at Home Depot, retrieved from http://krebsonsecurity.com/2014/09/banks-credit-card-breach-at-home-depot/ on October 6, 2014.

[3] The Wall Street Journal. Home Depot’s 56 Million Card Breach Bigger Than Target’s, retrieved from http://online.wsj.com/articles/home-depot-breach-bigger-than-targets-1411073571 on September 22, 2014.

[4] Reuters. Home Depot breach bigger than Target at 56 million cards, retrieved from http://www.reuters.com/article/2014/09/18/us-home-depot-dataprotection-idUSKBN0HD2J420140918 on September 22, 2014.

[5] The Boston Globe. Home Depot says 56 million payment cards breached, retrieved from http://www.bostonglobe.com/business/2014/09/18/home-depot-says-million-payment-cards-breached/DS5ZV79i7Ro69yIMySzmXM/story.html on September 23, 2014.

[6] Home Depot. Customer update on payment breach, retreived from https://corporate.homedepot.com/MediaCenter/Pages/Statement1.aspx on October 6, 20

[1] New York Times. Ex-Employees Say Home Depot Left Data Vulnerable, retrieved from http://mobile.nytimes.com/2014/09/20/business/ex-employees-say-home-depot-left-data-vulnerable.html?_r=0 on September 22, 2014.

Original Post (9/3/14)

Home Depot — the biggest data breach in U.S. History?

According to the same Internet security researcher that broke the Target data breach story, there is evidence that Home Depot has experienced a massive credit card data breach. It may have started back in April, 2014, and affected nearly every Home Depot in America. If you have shopped at a Home Depot with a credit or debit card in the past six months,  you are welcome to contact us immediately.  Fake “clone” credit cards have apparently already been made from consumers’ private information obtained during the breach — and  are currently being sold by criminals on the Internet.

See Brian Krebson’s article: Nearly All U.S. Home Depot Stores Hit

See Home Depot’s current disclosure: Message to our customers about news reports of a possible payment data breach

Home Depot, South Bay, Dorchester Massachusetts

Home Depot – South Bay – Dorchester, Massachusetts

Home Depot’s September 18 Press Release:

The Home Depot Completes Malware Elimination and Enhanced Encryption of Payment Data in All U.S. Stores * * * Provides Further Investigation Details, Updates Outlook ATLANTA, September 18, 2014 — The Home Depot®, the world’s largest home improvement retailer, today confirmed that the malware used in its recent breach has been eliminated from its U.S. and Canadian networks. The company also has completed a major payment security project that provides enhanced encryption of payment data at point of sale in the company’s U.S. stores, offering significant new protection for customers. Roll-out of enhanced encryption to Canadian stores will be complete by early 2015. Canadian stores are already enabled with EMV “Chip and PIN” technology. The company said its fiscal third quarter sales, including sales in September, are on plan. Additional guidance is provided below. Investigation Details The investigation into a possible breach began on Tuesday morning, September 2, immediately after The Home Depot received reports from its banking partners and law enforcement that criminals may have breached its systems. Since then, the company’s IT security team has been working around the clock with leading IT security firms, its banking partners and the Secret Service to rapidly gather facts, resolve the problem and provide information to customers. The company’s ongoing investigation has determined the following:

Criminals used unique, custom-built malware to evade detection. The malware had not been seen previously in other attacks, according to Home Depot’s security partners.

The cyber-attack is estimated to have put payment card information at risk for approximately 56 million unique payment cards.  The malware is believed to have been present between April and September 2014. To protect customer data until the malware was eliminated, any terminals identified with malware were taken out of service, and the company quickly put in place other security enhancements. The hackers’ method of entry has been closed off, the malware has been eliminated from the company’s systems, and the company has rolled out enhanced encryption of payment data to all U.S. stores.

There is no evidence that debit PIN numbers were compromised or that the breach has impacted stores in Mexico or customers who shopped online at HomeDepot.com or HomeDepot.ca. The Home Depot is offering free identity protection services, including credit monitoring, to any customer who used a payment card at a Home Depot store in 2014, from April on. Customers who wish to take advantage of these services can learn more at http://www.homedepot.com or by calling 1-800-HOMEDEPOT (800-466-3337). Customers in Canada can call 800-668-2266. “We apologize to our customers for the inconvenience and anxiety this has caused, and want to reassure them that they will not be liable for fraudulent charges,” said Frank Blake, chairman and CEO. “From the time this investigation began, our guiding principle has been to put our customers first, and we will continue to do so.” Payment Security Enhancements The company’s new payment security protection locks down payment data through enhanced encryption, which takes raw payment card information and scrambles it to make it unreadable and virtually useless to hackers. Home Depot’s new encryption technology, provided by Voltage Security, Inc., has been tested and validated by two independent IT security firms. The encryption project was launched in January 2014. The rollout was completed in all U.S. stores on Saturday, September 13, 2014. The rollout to Canadian stores will be completed by early 2015. EMV “Chip and PIN” technology, which began rolling out in early 2013 and already exists in Canadian stores, will be deployed to all U.S. stores by the end of the year, well ahead of a 2015 deadline established by the payments industry. These projects required writing tens of thousands of lines of new software code and deploying nearly 85,000 new pin pads to stores.

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Case Closed: Equity Residential “Move-in Fee” Class Action Lawsuit in Massachusetts

Updates

September 2, 2015

How to Claim Settlement Funds from the Equity Residential “Move-in Fee” Class Action Lawsuit

August 11, 2015

Order for Preliminary Approval of Class Settlement signed by Judge Zobel.

July 30, 2015

Thousands of tenants in Massachusetts apartments owned by Equity Residential stand to fully recoup illegal pet, move-in and application fees collected by the company — plus 
10 percent interest — under a proposed federal court settlement.” (Boston Herald)

September 10, 2014

Sam Zell‘s company is appealing class certification to the First Circuit.

August 26, 2014

After a two year legal battle with Equity Residential, Massachusetts tenants have achieved a significant legal victory.  Federal Judge Rya Zobel has declared that move-in fees, community fees, application fees, and up-front pet fees violated the Massachusetts Security Deposit Statute.

Boston Herald

Boston Herald, Friday, August 29, 2014

The law firms that filed the original move in fee /amenity fee class actions against Equity Residential are: Pastor Law Office, LLP, Fogelman & Fogelman, LLC, and Leonard Law Office, P.C.  Have you been affected by Equity’s business practices in Massachusetts? If so, you are welcome to contact us.

Boston Herald: Judge Says Equity’s Tenant Fees Illegal (pdf).

See August 26, 2014 – Memorandum and order: pdf

Excerpts:

Application Fee
Two Commonwealth courts have concluded that section 15B(1)(b) does not authorize landlords to charge prospective tenants an application fee…. I agree.

Amenity Fee/Move-in Fee
The amenity fee, at times called a move-in fee, is indistinguishable from the Community Fee. Defendant argues the community fee is lawful because it does not collect the fee until the second month of tenants’ occupancy…But the statute prohibits landlords from “requir[ing] a tenant or prospective tenant to pay” unlisted fees. That is just what defendant does when it charges the fee before a tenant moves in. Deferring collection does not make an unlawful fee lawful. “amenity use fee” Judge Young found unlawful in Hermida. It is not on the list of permissible charges; it is therefore prohibited.

Up-Front Pet Fee
Like the others, the up-front pet fee is not among the permissible charges. It is therefore prohibited.

Monthly Pet Fee
The monthly pet fee is not incurred up front, but rather each month during which the tenant owns a pet. Because plaintiffs became obligated to pay the fee after they were already tenants, they may not turn to section 15B(1)(b) for relief.”

*     *     *     *

Miller v. Equity Residential Management LLC

On May 8, 2012, a class action lawsuit was filed against EQUITY RESIDENTIAL MANAGEMENT LLC, a subsidiary of  Equity Residential (EQR)-NYSE, in the United States District Court, District of Massachusetts.  Equity Residential is the biggest, and perhaps the most infamous landlord in the America.

Boston Business Journal: “The suit, filed in U.S. District Court in Boston, seeks refunds for all tenants in Equity Residential properties. The Chicago-based company owns more than 6,000 apartments in the Bay State.” Read the rest of that article here.  Additional media coverage here.

Perry v. Equity Residential Management LLC

Massachusetts Lawyers Weekly:  “Residents of Equity Longview Place in Waltham are suing their property management company over similar allegations.  Equity Residential Management LLC, and Illinois company, manages more than two dozen apartment complexes in Massachusetts. ” Read the rest of that article here.

What are the recent Equity Residential class actions about?

Both suits allege that up-front fees Equity Residential has charged tenants (“amenity fees,” “amenity use fees,” “move-in fees”) are in violation of the Massachusetts Security Deposit Law.

Matthew J. Fogelman established a significant legal precedent on which the plaintiffs in Perry and Miller now rely in support of their claims. See Hermida v. Archstone, 826 F. Supp. 2d 380 (D. Mass. 2011).

Who is part of the Class?

The Class is defined as:  all current and former tenants of Equity Residential apartments in Massachusetts who from May 8, 2008 through May 8, 2012  paid an Amenity Fee or a Move In fee.

Case Documents:

May 8, 2012 – CLASS ACTION COMPLAINT

June 1, 2012 – MOTION OF PLAINTIFFS BRIAN PERRY, KIM PERRY AND CHERYL MILLER TO CONSOLIDATE RELATED ACTIONS AND APPOINT INTERIM CLASS COUNSEL AND FOR ENTRY OF PRETRIAL ORDER NO. 1

June 6, 2012 – EQUITY RESIDENTIAL MANAGEMENT, L.L.C.’S MOTION TO DISMISS

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National Robocall Class Action Filed Against Specialized Loan Servicing (SLS)

According to a recent class action complaint (pdf here) filed by the Leonard Law Office, PC and co-counsel:

“Plaintiff  brings this class action challenging Specialized Loan Servicing, LLC’s (SLS’s) standardized practice of calling cellular telephones using an automatic telephone dialing system (“ATDS”) or a prerecorded voice without obtaining the subscriber’s prior express consent. These calls violate the Telephone Consumer Protection Act, 47 U.S.C. § 227, et seq. (TCPA). Such calls are characterized as “robocalls” for purposes of this Complaint.

Part of SLS’s loan servicing business involves making dunning calls to consumers to encourage their payment of outstanding debts. SLS places robocalls to consumers’ cell phones throughout the nation in its collection efforts.

SLS makes a significant portion of such robocalls to cell phone subscribers or users like Plaintiff, who have not consented to receiving any type of call from SLS, much less a robocall from a debt collector. There is no legitimate purpose for these calls.

SLS is a limited liability company formed in the State of Delaware. SLS is wholly-owned by Specialized Loan Servicing Holdings, LLC, a company whose ultimate parent is Computershare Limited, a publicly traded company on the Australian stock exchange. A third party residential mortgage servicer, SLS has offices in Colorado, Georgia, and Arizona, and is licensed in all fifty states and the District of Columbia.

According to Plaintiff’s phone records and cellular device, a partial list of calls he from received on his cell phone from SLS are as follows:

  • 06/12/13 05:40 PM from 800-268-9706
  • 08/20/13 10:31 PM from 800-268-9706
  • 08/20/13 10:32 PM from 800-268-9706
  • 11/20/13 09:21 AM from 800-268-9706
  • 12/03/13 02:30 PM from 800-268-9706
  • 01/06/14 04:50 PM from 800-268-9706
  • 03/19/14 from 800-268-9706
  • 04/29/14 09:16 PM from 800-268-9706
  • 04/03/14 from 800-268-9706
  • 04/16/14 from 800-268-9706
  • 5/30/14 from 800-268-9706

SLS Routinely And Systematically Violates The TCPA

There are numerous entries on Internet sites set up to collect and share complaints about unwanted calls. A number of such sites contain complaints regarding similar calls from the same number regarding SLS. For example there are numerous complaints and comments on 800notes.com about (800) 268-9706, the number SLS frequently uses to contact Plaintiff:

  • “These a***oles call me every day with their recorded message and 800#. I don’t know what the hell they are calling about, but I don’t want to talk
    to them.”
  • “Sounds like a debt collector… since the number they are calling is a new one for me I assume it is wrong. Obviously I have no intention of calling
    them back.”
  • “This company is calling me everyday (sic) to get a debt collection from someone else. I really hate it, they should go after the real person… Source: http://800notes.com/Phone.aspx/1-800-268-9706, accessed May 14, 2014.”

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Have you received Junk Faxes from Crystal Training?

August 2017

To report junk faxes from Crystal Training — or more importantly — to provide information about the company and those who operate it, please contact the U.S. Government Agency known as the Federal Communications Commission, or FCC.

You have three options for asking for the FCC’s help in putting a stop to Crystal Training’s junk faxes:

  • File a complaint online
  • By phone: 1-888-CALL-FCC (1-888-225-5322); TTY: 1-888-TELL-FCC (1-888-835-5322); ASL: 1-844-432-2275
  • By mail (please include your name, address, contact information and as much detail about your complaint as possible):

Federal Communications Commission
Consumer and Governmental Affairs Bureau
Consumer Inquiries and Complaints Division
445 12th Street, S.W.
Washington, DC 20554

Another U.S. Government Agency with jurisdiction over junk faxes, robocalls, and violations of the Telephone Consumer Protection Act is the Federal Trade Commission. (FTC). The FTC provides an easy process for making complaints via their website.

**************************************************************************

July 2017

Someone from Crystal Training really wanted this site to remove references to another company with a very similar name, going so far as claiming to be a D/B/A of a real Florida business by a different name, and represented by a real Florida attorney.

Part of the email thread is below (from “Justin Lee” – “justin@crystaltrainingsource.com”)

“We absolutely train Nationwide and Canada since they are within reach.

I would respectfully request that you remove our site www.CrystalTrainingSource.com  and simply indicate that Crystal Training from Canada and Crystal Training Source from Jacksonville, Florida are in fact not affiliated.”

It turns out that Florida attorney has never heard of Justin Lee.

***************************************************************************

2016

DEAR CRYSTAL TRAINING:

  • PLEASE STOP SENDING JUNK FAXES TO AMERICAN BUSINESSES!! 
  • SENDING UNSOLICITED FAXES VIOLATES UNITED STATES LAW
  • TONER AND PAPER COST MONEY

A consumer recently complained about receiving a junk fax from Crystal Training (pdf here). The Crystal Training fax from (307) 200-3919 said:

FAX

Crystal Training
2981 Ford St. Ext., Unit #333 Ogdensburg, NY 13669
Phone: 1-800-535-8176 Fax: 1-800-455-7012

Dear Owner/Manager,

We would like to take a moment of your valuable time to tell you about our upcoming QuickBooks, Sage 50 (formerly Peachtree Accounting) and Excel training in your area. Our company provides training classes in many cities coast-to-coast.

The classes run from 9:00 am to 4:30 pm, with 30 minute lunch break.  Every student is provided with a notebook computer for use during the class.  Registration cost for any single class is $259 or save 10% with any two or more classes at $229 each. We accept Visa, MasterCard, and Paypal.

Boston: Embassy Suites Boston, 207 Porter Street, Boston MA

For full details, including course topic outlines, please visit our website, at http://www.crystal-training.net or call us at 1-800-535-8176.

Best regards,

Crystal Training
Phone: 1-800-535-8176 Fax: 1-800-455-7012
Live operators: Monday – Friday from 8AM EST to 7PM EST/5AM PST to 4PM PST
web: http://www.crystal-training.net  Email: Info@crystal-training.net

*           *           *

Who is really behind these faxes?

The address given on the Crystal Training faxes in New York is a “mail drop”;  2981 Ford St. Ext. Ogdensburg NY 13669 is a UPS store (See http://ogdensburg-ny-2946.theupsstorelocal.com/) and “Suite #3333” is just a mail box within that UPS store.

Zoominfo.com reports the following information as of 8/8/16 at http://www.zoominfo.com/p/Rudolf-Galan/1752047586

Rudolf Galan
Manager and Co-owner
Crystal Training
85033-1250 Main Street
Stittsville, Ontario k2s 1×6
HQ Phone: (800) 535-8176

Linkedin reports the following information as of 8/8/16 at https://ca.linkedin.com/in/rudolf-galan-a3240017

Rudolf Galan
Manager at Crystal Training
Ottawa, Canada Area
Manager
Crystal Consulting
August 2010 – Present (6 years 1 month)

WHOIS results on the crystal-training.net domain name offers few clues:

Domain Name: CRYSTAL-TRAINING.NET
Registrar: REBEL.CA CORP.
Sponsoring Registrar IANA ID: 735
Whois Server: whois.domainsatcost.ca
Referral URL: http://www.DomainsAtCost.ca
Name Server: CARL.NS.CLOUDFLARE.COM
Name Server: GAIL.NS.CLOUDFLARE.COM
Updated Date: 25-may-2016
Creation Date: 25-may-2013
Expiration Date: 25-may-2017

 

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Consumers’ 3 Day Right to Cancel Gym Memberships in Massachussetts

Q: If you join a Massachusetts gym and change your mind, how long do you have to cancel the contract and get your money back?

A: Three days, pursuant to MG.L. ch. 93  § 81.

MG.L. ch. 93  § 81 Every contract for health club services shall provide clearly and conspicuously in writing that such contract may be cancelled within three business days after the date of receipt by the buyer of a copy of the written contract or written receipt indicating the buyer’s payment for health club services. The contract for health club services shall contain the following written notice in at least ten point bold type:

“CONSUMER’S RIGHT TO CANCELLATION. YOU MAY CANCEL THIS CONTRACT WITHOUT ANY PENALTY OR FURTHER OBLIGATION BY CAUSING A WRITTEN NOTICE OF YOUR CANCELLATION TO BE DELIVERED IN PERSON OR POSTMARKED BY CERTIFIED OR REGISTERED UNITED STATES MAIL WITHIN THREE (3) BUSINESS DAYS OF THE DATE OF THIS CONTRACT OR THE DATE OF YOUR RECEIPT TO THE ADDRESS SPECIFIED IN THIS CONTRACT.”

Notice of the buyer’s right to cancel and the method of cancellation under this section shall also be posted clearly and conspicuously on the premises of the health club.

The notice of the buyer’s cancellation of his contract shall be in writing and delivered in person or by certified or registered United States mail at the address specified in the contract. Such notice shall be accompanied by the contract forms, membership cards and any other documents or evidence of membership previously delivered to the buyer. All monies paid pursuant to such contract shall be refunded within fifteen business days of receipt of such notice of cancellation. If the buyer has executed any credit or loan agreement to pay for all or part of the health club services, any such negotiable instrument shall be void upon cancellation under this section and shall also be returned to the buyer within said fifteen days.

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Junk Mail from Restoration Hardware

Some consumers have complained about twelve pound parcels of junk mail they have received from Restoration Hardware. Have you received Restoration Hardware’s massive catalogue?

Restoration Hardware

Restoration Hardware recently suffered a $36,000,000 judgment related to its California junk mail operations (Hernandez v. Restoration Hardware – pdf)

Information About Restoration Hardware

Restoration Hardware Holdings, Inc., together with its subsidiaries, operates as a luxury home furnishings retailer. The company offers various categories, including furniture, lighting, textiles, bathware, decor, outdoor and garden, tableware, and children’s furnishings. These products are sold through the company’s stores, catalogs, and Websites.” Restoration Hardware is a publicly traded company (RH Form 10-Q)).

Restoration Hardware Headquarters
15 Koch Road, Suite J
Corte Madera, CA 94925
Phone: 415-924-1005
www.restorationhardware.com

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FTC sues T-Mobile for “Wireless Cramming”

An excerpt from the complaint (pdf):

Until at least December 2013, in addition to charging for phone services offered by Defendant (T-Mobile) Defendant has charged many consumers for other services offered by third-party merchants. These purported services have included monthly subscriptions for content such as ringtones, wallpaper, and text messages providing horoscopes, flirting tips, celebrity gossip, and other similar information (“Third-Party Subscriptions”). Defendant typically has charged consumers $9.99 per month for such Third-Party Subscriptions.

In numerous instances, Defendant has charged consumers for Third-Party Subscriptions that the consumers did not order or authorize, a practice known as cramming. Defendant has continued to charge consumers for Third-Party Subscriptions even after large numbers of consumers complained about unauthorized charges. Refund rates for the subscriptions were high – in some cases as high as 40%. Further, Defendant has continued to charge consumers for Third-Party Subscriptions even after industry auditor alerts, law enforcement and other legal actions, and news articles indicated that the third-party merchants were not obtaining valid authorization from consumers for the charges.

Defendant has retained a portion of each charge for Third-Party Subscriptions paid by consumers, typically at least 35% of the charge and in some cases as high as 40%. Defendant has retained a larger cut from subscriptions that generate a large percentage of refunds. Defendant has earned hundreds of millions of dollars from Third-Party Subscriptions. T-Mobile’s practices have caused consumers millions of dollars of injury.

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Class Action Investigation: GM Ignition Recall

General Motors is the subject of investigation for taking more than ten years to recall 2.6 million cars with an ignition switch defect that allegedly caused between 13 and 74 fatalites. We are currently accepting clients who own GM vehicles of the models/years listed below:

Buick Lacrosse 2005-2009
Chevrolet Impala 2006-2014
Cadillac Deville 2000–2005
Cadillac DTS 2007–2011
Buick Lucerne 2006–2011
Buick Regal LS & GS 2004-2005
Chevrolet Monte Carlo 2006–2008
Chevrolet Camaro 2010—2014

If you have one of these vehicles, you may be entitled to financial compensation.

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Questions and Answers about Class Actions

What is a class action?

A class action is a type of lawsuit in which one or several persons sue on behalf of a larger group of similarly-situated persons.

What is a class representative?

Class representatives are plaintiffs named in the lawsuit who assert the claims of the entire class so that everyone with the same claim or injury does not have to file his or her own separate lawsuit.

What are the duties of class representative?

A plaintiff must meet certain basic requirements in order to be certified by the court as a class representative. The representative’s situation must be typical of the situation in which other class members find themselves and the representative must be generally familiar with the litigation. A class representative must cooperate in the preparation of the case, and be present on reasonable notice for any necessary appearances. In addition, a class representative may be asked to produce documents and/or give deposition testimony throughout the litigation process.

Are class representatives entitled to additional compensation?

If a class action is successful in winning relief for the class, some courts will provide class representatives with “service awards.” Judges are typically given broad discretion in deciding whether these awards are appropriate and in setting the amounts of the awards. In deciding how much, if anything, to award to the class representatives, courts look at factors such as the amount of involvement of the class representative and the size of the recovery for the class. The duties of class representatives may require an effort deserving of a service premium in addition to any recovery the representative may obtain by virtue of his or her membership in the class. Therefore, the attorneys may attempt to recover an appropriate amount for the class representative’s service, but make no promise or guaranty that the attorneys will seek a service award or that the Court will award any service premium.

What are the costs to me?

Most class action law firms work on a contingency-fee basis. This means that, to the extent provided by law, you do not pay any costs or expenses of litigation upfront, and lawyers do not collect any fees from you unless the firms working on the case obtain a recovery on your behalf.

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Connecticut Passes its own mini-TCPA, with sharp teeth: “…shall be fined not more than [eleven] twenty thousand dollars for each violation.”

The Connecticut Legislature passed its own version of the Telephone Consumer Protection Act. This new law goes into effect in October, 2014. The full text (pdf) is pasted below.

 

Substitute Senate Bill No. 209

Public Act No. 14-53

AN ACT PROHIBITING UNSOLICITED COMMERCIAL TEXT
MESSAGES AND INCREASING PENALTIES FOR VIOLATIONS OF
THE DO NOT CALL REGISTRY. Continue reading

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Balise Toyota settles service department mispricing class action — $87,000 settlement to consumers

Updates
July 30, 2014 – This case has settled, resulting in a favorable settlement for class members and a cy pres distribution to a charity.
Court Documents
  1. Class Action Complaint (pdf)
  2. Class Notice (pdf)
  3. Order for Notice and Hearing (pdf)
  4. Settlement Agreement (pdf)
  5. Final Judgment (pdf)
SETTLEMENT NOTICE
AS A CUSTOMER OF BTLS, INC. d/b/a BALISE TOYOTA YOU MAY BE ENTITLED TO BENEFITS UNDER A CLASS ACTION SETTLEMENT. READ THIS NOTICE CAREFULLY. The Massachusetts Superior Court for Suffolk County authorized this notice. This is not a solicitation from a lawyer. You are not being sued. YOU MAY RECEIVE A DISCOUNT COUPON FROM THIS SETTLEMENT.
 A class action lawsuit by a service customer against BTLS, Inc. d/b/a Balise Toyota (“Balise Toyota”) has been settled for $87,500.  Plaintiff alleges that Balise Toyota charged 4,269 customers more than the advertised price (an “Overcharge”) for a variety of services including oil changes, tire rotations, and brake work at its dealership and service center located at 1399 Riverdale Street, West Springfield, Massachusetts (the “West Springfield Location”). Plaintiff sought as damages the amount of the Overcharge and statutory damages under Massachusetts General Law Chapter 93A on her own behalf and on behalf of the purported class of similarly situated customers (the “Class”). Balise Toyota contends that any Overcharge was inadvertent and the result of a coding error in its billing software. Despite their differences, Plaintiff and Balise Toyota have entered into a Settlement Agreement to compromise the claims that plaintiffs have asserted against Balise Toyota.  Under the proposed Settlement Agreement, approximately 4,269 customers will share net settlement proceeds of approximately $55,000 worth of $15.00 coupons (the “Coupon”), redeemable for a discount on any product or service sold by Balise Toyota at the West Springfield Location.  The $15.00 Coupon(s) you receive will average more than 15 times the size of each of your calculated Overcharge, as the vast majority of all Overcharges were under $1.00.  You do not need to do anything to get your Coupon(s). If the Settlement Agreement is approved by the Court, you will automatically receive one Coupon for each Overcharge transaction with Balise Toyota. The Coupon(s) will be sent to the same address as this notice….

Why did I get this notice?

According to records maintained by Balise Toyota, you were overcharged by Balise Toyota for an automotive service or parts purchase at its West Springfield Location. This notice concerns the settlement of a class action lawsuit that challenges the manner in which Balise Toyota advertised and charged for these services and purchases. The case has been settled, and the Court has ordered that you be sent this Notice, because you have a right to know your options before the Court decides whether to approve the settlement. This Notice explains the lawsuit, the settlement, your legal rights, what benefits are available, who is eligible for them, and how to get them….

….the rest of this notice: pdf) —————————————————–
 May 29, 2014 – the Leonard Law Office and co-counsel filed a class action complaint (pdf) against BTLS, Inc. d/b/a Balise Toyota.
  • This case seeks compensation for Balise Toyota’s alleged systematic mispricing of goods and services received by its service customers at the Balise Toyota at 1399 Riverdale Street, West Springfield, Massachusetts.
  • The complaint alleges that rates listed on signage and pricing literature at the Balise Toyota service department were lower than amounts consumers were actually charged.
Balise
* If you have been affected by pricing issues at any Balise location in Massachusetts, you are welcome to contact us. 

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Not Spam: Ticketmaster Settlement email

The notice pasted below was emailed to class members. Some people have wondered if it is spam. It is not. This is not our case, so please do not contact us for additional information.

SUPERIOR COURT OF THE STATE OF CALIFORNIA – COUNTY OF LOS ANGELES

If you purchased tickets from http://www.Ticketmaster.com you may be entitled to benefits from a class action settlement.

This is a court ordered notice. This is not a solicitation from a lawyer.

• For each ticket order (up to 17 orders) you made from http://www.Ticketmaster.com between October 21, 1999 and February 27, 2013, a settlement will provide a credit of $2.25 for use on future ticket orders. You will receive an additional $5 credit towards UPS delivery of future orders, for each order where you purchased the UPS delivery option (up to 17 purchases). Continue reading

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The 9 Leading Data Brokers, and What They Know About You

  1.  Acxiom: Acxiom provides consumer data and analytics for marketing campaigns and fraud  detection. Its databases contain information about 700 million consumers worldwide with over 3000 data segments for nearly every U.S. consumer.
  2. Corelogic: Corelogic provides data and analytic services to businesses and government based primarily on property information, as well as consumer and financial information. Its databases include over 795 million historical property transactions, over ninety-three million mortgage applications, and property-specific data covering over ninety-nine percent of U.S. residential properties, in total exceeding 147 million records.
  3. Datalogix: Datalogix provides businesses with marketing data on almost every U.S. household and more than one trillion dollars in consumer transactions.23 In September 2012, Facebook announced a partnership with Datalogix to measure how often Facebook’s one billion users see a product advertised on the social site and then complete the purchase in a brick and mortar retail store.
  4. eBureau: eBureau provides predictive scoring and analytics services for marketers, financial services companies, online retailers, and others. eBureau primarily offers products that predict whether someone is likely to become a profitable customer or whether a transaction is likely to conclude in fraud. It provides clients with information drawn from billions of consumer records adding over three billion new records each month.
  5. ID Analytics: ID Analytics provides analytics services designed principally to verify people’s identities or to determine whether a transaction is likely fraudulent. The ID Analytics networkincludes hundreds of billions of aggregated data points, 1.1 billion unique identity elements, and it covers 1.4 billion consumer transactions.
  6. Intelius: Intelius provides businesses and consumers with background check and public record information. Its databases contain more than twenty billion records.
  7. PeekYou: PeekYou has patented technology that analyzes content from over sixty social media sites, news sources, homepages, and blog platforms to provide clients with detailed consumer profiles.
  8. Rapleaf: Rapleaf is a data aggregator that has at least one data point associated with over eighty percent of all U.S. consumer email addresses.31 Rapleaf supplements email lists with the email address owner’s age, gender, marital status, and thirty other data points.
  9.  Recorded Future: Recorded Future captures historical data on consumers and companies across the Internet and uses that information to predict the future behavior of those consumers and companies. As of May 2014, Recorded Future had access to information from over 502,591 different open Internet sites.

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Massachusetts Minimum Wage and Tipped Employees

In Massachusetts, the minimum wage for tipped employees (i.e. waitresses, bartenders) is $2.63 per hour. No matter how much a tipped employee makes in tips, they must also be paid their minimum wage. Also, if on a given shift, minimum wage pay and tips do not add up to an hourly pay rate of $8.00 per hour, the employer must make up the difference. The Massachusetts “Reporting Pay” regulation requires employers to pay an employee for a minimum of three hours of work if they are called in for any shift of four hours or more, and then sent home.  Employers must pay their employees on a weekly or biweekly schedule.

Hypothetical examples:

A. Shirley is a “bottle service” waitress  at the Coconut Grove. She is putting herself through college with the money she makes from tips. Her job is to pour alcohol at tables reserved by patrons willing to spend hundreds, and sometimes thousands of dollars a night on vastly overpriced champagne and hard liquor. She’s on her feet for five hours in heels, lugging bottles, and pushing through crowds of drunk people. Sometimes the customers are all over her, but she puts up with it to make her tuition and rent payments. On a good night, she can take home $1,500.00.  On a bad night, her table cancels, or for whatever reason, no one reserves a table, and she’s sent home.  After paying for parking, she’s minus $40.00. Over a three year period, she is sent home with zero pay 20 times.

By law, on a night when Shirley is cut, she’s entitled to the following in reporting pay, assuming a 5 hour shift:

3 * $8.00 * 24 = $576.00

If she sues the Coconut Grove, she’s entitled to:

$576.00 * 3 = $1,728.00  and her employer must pay her attorney’s fees and costs of filing suit.

B. Katrina is also a bottle service waitress at the Coconut Grove. She is only scheduled for the busiest nights, because she’s a top earner for the nightclub. She has close relationships with the high rollers patrons, so they never cancel on her. Over a three year time span (one hundred shifts a year) she makes $300,000 in tips. She is never paid her hourly tipped employee minimum wage.

By law, Katrina is entitled to:

5 * $2.63 * 300  = $3,945.00 (trebled to $11,835.00).

 Have you been affected by wage and hour law violations in your workplace? The Leonard Law Office is accepting Massachusetts wage theft cases.

  • It is illegal to retaliate against employees for bringing wage claims. 
  • Employers must pay the wronged employee’s attorneys fees in wage theft cases.
  • Triple damages are automatic; employers must pay the amount owed in wages times three. 

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Wage Practices of McDonald’s, Subway, Dominos, and Dunkin Donuts

Do Massachusetts fast food franchises violate labor laws?

Examples of labor law violations:

Minimum wage violations – Not paying employees the minimum wage. This can happen in a variety of ways, such as when employees are required to pay for uniforms, causing net pay to sink below minimum wage. The Massachusetts minimum wage is $8.00/hr., and the Federal minimum wage is $7.25/hr.

Break violations – Not granting breaks, or deducting a 30 minute lunch break from pay, without actually allowing the break.

Overtime violations – Not paying employees for time and a half for work over 40 hours in a week.

“Off-the-clock” violations – Requiring employees to do unpaid work before or after punching in.

Paycheck docking violations – Deducting money from paychecks for cash register shortages when this causes the paycheck to fall below minimum wage.

Misclassification violations – Illegally designating employees as “Independent Contractors,” Providing 1099 instead of W2 forms to employees to save the business money.

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Unpaid Interns – Should You Be Paid For Your Work?

Unpaid internships can seem like a great opportunity.  Sometimes, however, unpaid internships benefit the employer far more than the intern.  In some cases, unpaid internship programs violate state and federal labor laws.

Have you been negatively affected by an unpaid internship? We are accepting stories about unpaid internships in Massachusetts. We are also accepting clients who wish to seek financial compensation after working as unpaid interns. 

The use of unpaid interns obviously allows employers to reduce labor costs. Starving for opportunity, energetic and naive young people are routinely exploited through unpaid internships.

Unpaid interns are becoming the modern-day equivalent of entry-level employees, except that employers are not paying them for the many hours that they work.  Unlike apprenticeship programs of the past, many interns are not taught a trade, or given paid employment after their internship. Instead, most interns are required to do general menial tasks and gopher work with no educational value, for no pay.

Minimum wage laws require that employers pay all employes (even college students and recent grads who are desperate for work) the minimum wage, as well as overtime for hours over forty in a workweek.

The Fair Labor Standards Act (FLSA) has no exemption for interns unless they are apprentices or in a vocational training program. The Department of Labor (DOL) uses a six-factor test to evaluate whether a worker is a trainee or an employee.  It is only permissible to pay interns and less than minimum wage (and even then at no less than 75% of minimum wage) after applying for and being granted an authorizing certificate from the DOL, pursuant to Section 14(a) of the FLSA.

Another aspect of the use of unpaid interns is the unfair business advantage that this business practice creates.  The competitive disadvantage suffered by businesses not supplemented by unpaid intern labor in unfair.

The Department of Labor published a fact sheet about how federal law applies to unpaid internships — see below:

Fact Sheet #71: Internship Programs Under The Fair Labor Standards Act

This fact sheet provides general information to help determine whether interns must be paid the minimum wage and overtime under the Fair Labor Standards Act for the services that they provide to “for-profit” private sector employers.

Background

The Fair Labor Standards Act (FLSA) defines the term “employ” very broadly as including to “suffer or permit to work.”  Covered and non-exempt individuals who are “suffered or permitted” to work must be compensated under the law for the services they perform for an employer.  Internships in the “for-profit” private sector will most often be viewed as employment, unless the test described below relating to trainees is met.  Interns in the “for-profit” private sector who qualify as employees rather than trainees typically must be paid at least the minimum wage and overtime compensation for hours worked over forty in a workweek.*

The Test For Unpaid Interns

There are some circumstances under which individuals who participate in “for-profit” private sector internships or training programs may do so without compensation.  The Supreme Court has held that the term “suffer or permit to work” cannot be interpreted so as to make a person whose work serves only his or her own interest an employee of another who provides aid or instruction.  This may apply to interns who receive training for their own educational benefit if the training meets certain criteria.  The determination of whether an internship or training program meets this exclusion depends upon all of the facts and circumstances of each such program.

The following six criteria must be applied when making this determination:

  1. The internship, even though it includes actual operation of the facilities of the employer, is similar to training which would be given in an educational environment;
  2. The internship experience is for the benefit of the intern;
  3. The intern does not displace regular employees, but works under close supervision of existing staff;
  4. The employer that provides the training derives no immediate advantage from the activities of the intern; and on occasion its operations may actually be impeded;
  5. The intern is not necessarily entitled to a job at the conclusion of the internship; and
  6. The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship.

If all of the factors listed above are met, an employment relationship does not exist under the FLSA, and the Act’s minimum wage and overtime provisions do not apply to the intern.  This exclusion from the definition of employment is necessarily quite narrow because the FLSA’s definition of “employ” is very broad.  Some of the most commonly discussed factors for “for-profit” private sector internship programs are considered below.

Similar To An Education Environment And The Primary Beneficiary Of The Activity

In general, the more an internship program is structured around a classroom or academic experience as opposed to the employer’s actual operations, the more likely the internship will be viewed as an extension of the individual’s educational experience (this often occurs where a college or university exercises oversight over the internship program and provides educational credit).  The more the internship provides the individual with skills that can be used in multiple employment settings, as opposed to skills particular to one employer’s operation, the more likely the intern would be viewed as receiving training.  Under these circumstances the intern does not perform the routine work of the business on a regular and recurring basis, and the business is not dependent upon the work of the intern.  On the other hand, if the interns are engaged in the operations of the employer or are performing productive work (for example, filing, performing other clerical work, or assisting customers), then the fact that they may be receiving some benefits in the form of a new skill or improved work habits will not exclude them from the FLSA’s minimum wage and overtime requirements because the employer benefits from the interns’ work.

Displacement And Supervision Issues

If an employer uses interns as substitutes for regular workers or to augment its existing workforce during specific time periods, these interns should be paid at least the minimum wage and overtime compensation for hours worked over forty in a workweek.  If the employer would have hired additional employees or required existing staff to work additional hours had the interns not performed the work, then the interns will be viewed as employees and entitled compensation under the FLSA.  Conversely, if the employer is providing job shadowing opportunities that allow an intern to learn certain functions under the close and constant supervision of regular employees, but the intern performs no or minimal work, the activity is more likely to be viewed as a bona fide education experience.  On the other hand, if the intern receives the same level of supervision as the employer’s regular workforce, this would suggest an employment relationship, rather than training.

Job Entitlement

The internship should be of a fixed duration, established prior to the outset of the internship.  Further, unpaid internships generally should not be used by the employer as a trial period for individuals seeking employment at the conclusion of the internship period.  If an intern is placed with the employer for a trial period with the expectation that he or she will then be hired on a permanent basis, that individual generally would be considered an employee under the FLSA.

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Judge Posner affirms TCPA class certification and upholds 7th Circuit’s TCPA standing precedent

In a good decision [PDF] for TCPA class actions, Judge Posner today ruled for plaintiffs in ARNOLD CHAPMAN and PALDO SIGN & DISPLAY COMPANY, v. WAGENER EQUITIES, INC. and DANIEL WAGENER.

“…our decision in Holtzman v. Turza, 728 F.3d 682, 684 (7th Cir. 2013), holds that no monetary loss need be shown to entitle the junk‐fax recipient to statutory damages. Whether or not the user of the fax machine is an owner, he may be annoyed, distracted, or otherwise inconvenienced if his use of the machine is interrupted by unsolicited faxes to it, or if the machine wears out prematurely because of overuse attributable to junk faxes.”

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Starbucks, “Greek Yogurt,” and Consumer Law

In early 2013, this office wrote to Starbucks CEO Howard D. Schultz challenging the “Greek Yogurt,” claim made on various yogurt products sold at Starbucks in Massachusetts.

Authentic Greek yogurt has two main ingredients: milk and active yogurt cultures. It differs from ordinary yogurt in that most of the whey is strained out of it, producing an end result that is higher in protein, lower in fat, and has a thicker consistency than ordinary yogurt. Greek yogurt costs more than ordinary yogurt because it requires more milk and more work to make it, and has health benefits that make Greek yogurt more desirable than ordinary yogurt.

Before: 

  • Contains Whey Protein Concentrate
  • Contains Pectin
  • Calories: 300
  • Protein: 8g

Starbucks greek yogurt label 600dpi black and white cropped

Starbucks’ previous “Greek Yogurt” version

After:

  • Whey Protein Concentrate 
  • Pectin
  • Calories: 260
  • Protein: 15g

2

Current Ingredients Label

*     *     *

Current Lid Label — “15g of Protein”

*     *     *

Starbucks has obviously changed the packaging and the product contained inside, despite Mr. Shultz’s lawyers dismissing the substance of the letter:

ScreenHunter_39 Mar. 30 20.28

“no legal basis”

*     *      *

The new version tastes better, has more protein, fewer calories, and costs the same.

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Class Action Alleges Massachusetts Employees Misclassified as Independent Contractors

In March of 2014, we filed a class action lawsuit in federal court against The Boston Institute for Psychotherapy, Inc. (“BIP”) alleging that BIP failed to pay its employees in accordance with the Massachusetts Wage Act and that BIP misclassified its employees as “independent contractors” in violation of Massachusetts law.

The lawsuit alleged that BIP classified its psychotherapy clinicians, and other employees, as “independent contractors” to avoid expenses commonly associated with having employees, such as employment tax, health insurance, unemployment insurance, workers’ compensation and other employee benefits. The lawsuit also claimed that BIP, by classifying these employees as “independent contractors,” attempted to skirt the Massachusetts Wage Act by paying its employees once per month, which exceeds the permissible time frame allowed by law.

The lawsuit, filed in the United States District Court for the District of Massachusetts sought class certification on behalf of all current and former clinicians and other employees who were affected by BIP’s allegedly unlawful payroll practices.

PDF Doulamis v. BIP Class Action Complaint

This case resulted in a classwide settlement.  The BIP closed its doors in 2016.

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Privacy Class Action Filed Against Fresh

The case alleges that Fresh violated a Massachusetts credit card privacy law.

Fresh

Fresh — Newbury Street, Boston

Excerpts from the complaint:

Plaintiff brings this action for redress of the unlawful practice of Fresh of collecting ZIP codes at checkout at its Massachusetts store from customers who make purchases with Credit Cards, recording that information as part of the Credit Card transaction, and then using that information for its own marketing and promotional purposes, including to send unsolicited marketing and promotional materials, or “junk mail.” This practice, which has affected Plaintiff and members of the Class, as described and defined herein, is an invasion of privacy and violates G. L. c. 93 § 105(a) and G. L. c. 93A, § 2.

Information About Fresh:

Fresh is a for-profit corporation, organized under the laws of Delaware with a principal place of business at 560 Harrison Avenue, Suite 407, Boston, Massachusetts 02118. It sells cosmetics, skin cream, and hair care products.

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Free People Privacy Class Action Filed

The case alleges that Free People violated a Massachusetts credit card privacy law.

Free People -- Prudential Center, Boston

Free People — Prudential Center, Boston

Excerpts from the complaint:

Plaintiff brings this action for redress of the unlawful practice of Free People of collecting ZIP codes at checkout at its Massachusetts store from customers who make purchases with Credit Cards, recording that information as part of the Credit Card transaction, and then using that information for its own marketing and promotional purposes, including to send unsolicited marketing and promotional materials, or “junk mail.” This practice, which has affected Plaintiff and members of the Class, as described and defined herein, is an invasion of privacy and violates G. L. c. 93 § 105(a) and G. L. c. 93A, § 2.

Information About Free People

Free People LLC is a limited liability company, organized under the laws of Delaware, with a principal place of business at 5000 South Broad Street, Philadelphia, PA 19112. Defendant Free People of PA LLC is a limited liability company, organized under the laws of Delaware, which merged with Free People LLC in 2005.  Free People is a subdivision of Urban Outfitters. The President of Free People is Margaret Hayne.

Free people one

 

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