Protecting What's Right

You probably wouldn’t take a bite of a glazed Krispy Kreme Doughnut then head to the gym for a workout.

But, according to a consumer class action lawsuit filed by Baron and Budd attorneys, if you drink Muscle Milk, you may as well. The benefits are similar – both are high in calories and saturated fat.

Deceptive labeling is at the heart of a class action lawsuit filed by Baron and Budd against Cytosport Inc., the makers of the popular Muscle Milk workout supplement.

Like Cytosport, many companies use ambiguous words on food labels such as nutritious, organic and "all-natural" to promote their products. Those words lure the customer into believing that they are buying a healthy product, when in fact, such words actually conceal the truth.

Baron and Budd also filed suit against Alexia Foods for making claims on its packaging that some products are "All Natural." This claim comes despite the fact that disodium dihydrogen pyrophosphate, a synthetic chemical preservative, is found many of its purportedly "all natural" products, including its "Sauté Reds," "Mashed Potatoes Yukon Gold Potatoes & Sea Salt," "Mashed Potatoes Red Potatoes with Garlic & Parmesan," "Waffle Fries," Harvest Sauté," "Italian Sauté," "Sauté Sweets," and "Potato Bites" products.

In recent years, misleading labels have claimed that a yogurt drink could strengthen immune systems, a cereal could boost attentiveness in children, and a dietary supplement could ward off the flu bug. The Public Health Service, Food and Drug Administration, and Federal Trade Commission have limited resources, so they are unable to crack down on all of this bogus, deceptive labeling.

Fortunately, the FDA did warn Cytosport to stop using its Muscle Milk labels that claim the drink is "healthy." According to the Baron and Budd lawsuit, despite its prominently featured "healthy" claims, Muscle Milk is nothing more than fat-laden junk food.

Cytosport’s standard size Muscle Milk Ready-To-Drink contains the same amount of calories, and almost as much total fat and saturated fat as a Glazed Kreme Krispy Kreme doughnut. The Muscle Milk bars have more calories and more fat than a Chocolate Iced Glazed Krispy Kreme doughnut.  Muscle Milk bars contain other unhealthy ingredients like fractionated palmkernel oil.

And this same company claims that ingesting Muscle Milk will help consumers lose weight. "Go from cover it up to take it off," or "from frumpy to fabulous," its advertisements say.

Cytosport tells its consumers that Muscle Milk will "take the guesswork out of high performance nutrition.

"There’s no question you’re getting a nutritious snack," the company boasts.

The facts don’t support the company’s claims.

The FDA also challenged Cytosport by recently attacking the brand name itself. Muscle Milk isn’t milk at all, and should not be classified as such, the agency said. Muscle Milk is actually derived from milk ingredients including calcium and sodium caseinate, milk protein isolate and whey.

Just as appalling is the company’s claim that in order for users to receive the best "healthy" benefit, Muscle Milk should be consumed multiple times per day: 1.5 to 2 hours before training, 30 to 45 minutes after workouts, as a meal replacement, and in between meals as a snack.

While consumers should not believe everything they read on a label, it’s also important that companies stop preying on our desire to live a healthy lifestyle.

Unfortunately, as a result of these predatory advertising tactics, that "healthy" shake you’re drinking could be as healthy as a bag of doughnuts, and that "all natural" product you are eating actually may contain industrial chemical preservatives. Class actions that hold companies accountable for such false representations are a focal point of Baron and Budd’s mission to protect consumers from deceptive advertising.

Yes, we know that you are busy. But taking part in a class action lawsuit is akin to voting: it is one of the most important ways to protect consumers (AKA you and me) from corporate misdeeds.

Instead of one person taking on a billion dollar business in court, class actions allow an efficient process for hundreds of individuals to have their collective voice heard. It’s the best way individuals can battle powerful companies and their powerful attorneys in a fair fight.

Unfortunately, corporate fraud sometimes goes undetected because it involves only a relatively small amount of money to any one individual. For example, if you were swindled out of $1 by a fraudulent fee, you likely wouldn’t file a lawsuit on your own. But if 5 million other people were also swindled out of the dollar it’s a way to hit the company in the pocketbook. The goal shouldn’t be to get the dollar back; it should be to make the company pay the $5 million they owe consumers to correct deceptive practices.

A class action lawsuit begins when an attorney files a case on behalf of his or her client against a company for committing alleged fraudulent acts. At first the case only involves a handful of plaintiffs, but gradually hundreds or even millions more who were harmed come forward to join the class action. When large numbers join the suit, it encourages wrongdoers to change bad behavior because it affects the company’s bottom line.

It’s important to know that class actions are not filed to get a windfall for the plaintiff. It’s about forcing a company to give up illegally earned profits or get the executives to change fraudulent practices.

Taking part in a class action is easy as filling out a form, or responding to an email. In this way it’s much like voting. One vote probably doesn’t make a difference, but if hundreds of people get together, there is an ability to effect change. An apathetic public is less likely to make a company change its behavior than one that is outraged by fraud. For a company facing a class action, silence is golden. Consumers can break the silence by joining a class action.

To learn more about class actions, visit the Baron and Budd website.

Apparently the phrase “The customer is always right,” means nothing to the United States Supreme Court.

A court decision earlier this month prohibits consumers from filing lawsuits to settle excessive fee disputes if their contracts contained an arbitration clause. Arbitration hearings are out-of-court settlements usually tipped in favor of the company, which hires its own arbiter.

Consumer watchdogs say the decision gives companies more firepower to impose unnecessary fees. And it takes away the consumer’s Constitutional right to a jury trial.

Read the rest of this entry »

On what must be the happiest day in her 22 years, Molly Katchpole, a Washington, D.C. nanny who started an online petition urging Bank of America to drop its new debit fee, scored a big win for herself – and for consumers everywhere – when Bank of America announced plans to scrap its $5 monthly fee for debit card purchases.

The consumer outcry, spawned by Katchpole, had already prompted other major banks, including JPMorgan Chase & Co. and Wells Fargo & Co., to cancel tests of similar debit card fees. But Bank of America hung on, hoping that somehow the outcry would stop and they could go back to doing business as usual (read: business on their own terms, without considering the consumer).

They were wrong.

In this latest instance, involving the $5 per month fee, Bank of America succumbed to the pressure of fed-up folks who felt their new money-making angle was one charge too many.

“For a lot of consumers, this was the last straw,” said Jean Ann Fox, director of financial services for the Washington- based Consumer Federation of America. “Banks have been making a lot of changes to accounts, adding fees and raising the minimum balance needed, and consumers were clear that they objected to one more fee.”

But at other times consumers need more than social media and online petitions to create change. Sometimes they need the power of our legal system through class actions.

In fact, just last year, Bank of America’s strategy to maximize overdraft charges by re-ordering debit transactions was felled by a consumer class action against a number of financial institutions. The result was a $410 million settlement with Bank of America, the largest of the financial institutions involved. The lawsuit accused the banks of manipulating the timing of debit card transactions to increase overdraft fees, sometimes resulting in hundreds of dollars of fees for tens of dollars of actual transactions. Besides the monetary recovery, the lawsuit forced banks across the country to change their overdraft policies. Now they no longer offer “courtesy” overdraft protection or “re-ordering debits.”

Baron and Budd was honored to be involved with the overdraft fee consumer class action and is honored to applaud today the work of Molly Katchpole, the consumer advocate who thought she could – and did.

Chances are, the last time you got a direct mail notification about a class action, you threw it away. And why wouldn’t you? Why bother with signing a totally indiscernible document that, at best, will net you a hundred bucks?

Besides – class actions don’t seem to have much impact. After all, the “issues” are usually small change items and the lawyers make off with all the money – right?

Wrong.

A recent study by the finance and accounting departments of the business schools at Rutgers University and Emory University found that class action lawsuits are a very effective way to

Read the rest of this entry »

For anyone out on a weekend spending spree (a.k.a. running errands), it’s pretty simple: you check your bank balance before you leave the house and do the simple subtraction in your head as you hand your debit card to the mega (and well-priced) grocery store, the cleaners, the coffee shop and wherever.

And, by Monday morning when you awake from your jam-packed weekend, you check again just to make sure you did the mental math right.

So what could go wrong?

Read the rest of this entry »

We continue to be concerned about the rights of people across the nation who, during this tough economic time, feel like they have no options. Case in point: men and women who are fortunate enough to have jobs but are required to work overtime without pay.

Contrary to how some would “position” this issue, the cases of overtime violations we are seeing are not those of small business owners/ entrepreneurs relying on that go-get-’em spirit of the American worker. Rather, they are flagrant abuses of employees by corporations well heeled enough to pay fairly.

Read the rest of this entry »

Just last week, the federal Occupational Safety and Health Association (OSHA) issued a Hazard Alert for the popular hair straightening treatment Brazilian Blowout. The very same day, the class in the class action lawsuit against GIB, the maker of Brazilian Blowout, was certified by a California federal court and Baron & Budd was appointed class counsel.

The law firm of Baron & Budd filed a lawsuit against GIB in November of 2010, regarding their products Brazilian Blowout Solution and Brazilian Blowout Acai Professional Smoothing Solution. The suit claimed that GIB misled salon owners and hair stylists with deceptive marketing and advertising about the Brazilian Blowout Solution. The product, touted as “formaldehyde-free” and “healthy” for the hair, was found to have incredibly high levels of the harmful chemical in it by tests conducted by Oregon OSHA and California OSHA.

Find out more about the Brazilian Blowout litigation, along with Baron & Budd’s involvement here.

By Baron & Budd Attorney Mazin Sbaiti

Ever seen mysterious charges on your credit or debit card statement?  Baron & Budd recently filed Cox v. Clarus Marketing Group LLC, et al., 11-cv-0729, in San Francisco federal court.  This is about an internet fraud that has generated millions of dollars of profits and affected innocent consumers nationwide.

The facts:  Daniel Cox and Brad Barentson were each shopping online, and upon checkout, once they inputted their credit or debit card information, they were presented with a coupon for “free shipping” if they made later online purchases.  They accepted the coupon by putting in their email address and zip code.  But it turned out the “free shipping” wasn’t free at all.  No. for the next several months, each man was being charged anywhere from $8 per month to $15 per month as part of a “membership” in a club they had never heard of, for products and services they never ordered.   It turns out there are thousands of others similarly affected.

This is a species of online scam called “post-transaction marketing” which has been condemned by the United States Senate’s Committee on Commerce. One of the keys to the scam is

Read the rest of this entry »