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Giles Lenox Investigates Advertising of Single Serving Coffee CupsBryce LenoxBy Bryce A. Lenox on Thursday, August 13, 2015CINCINNATI, OHIO - Giles Lenox is currently investigating potential claims concerning single serve coffee cups and representations by certain manufacturers that their products are compatible with Keurig 2.0 coffee brewers, when in fact they are not compatible with Keurig 2.0 coffee makers. 
 
Keurig coffee machines are single service coffee systems made by the Keurig Company.  Keurig coffee systems use “K Cups” as the delivery mechanism for single serve coffee. Each K-Cup is a plastic container with a coffee filter inside. Ground coffee beans are packed in the K-Cup and sealed airtight with a combination plastic and foil lid. When the K-Cup is placed in a Keurig brewer, the brewer punctures both the foil lid and the bottom of the K-Cup and forces hot water, under pressure, through the K-Cup and into a mug or cup. Initially used only for coffee, K-Cup varieties now include tea, hot chocolate, iced teas and coffee, as well as fruit drinks. Keurig licenses its K-Cup technology to coffee roasters and tea makers such as Starbucks, Folgers and Green Mountain Coffee.
 
Certain manufacturers produce generic versions of single-serving “K Cups.” However, for a certain period of time, these single serving K-Cups, including those manufactured by Luzianne Tea, did not work in Keurig 2.0 machines, despite advertising on the product’s packaging stating that their products will work in Keurig brewers.  When those single serve cups were placed into a Keurig 2.0 machine, the brewer would not brew the coffee, and Keurig’s screen displayed the following message: “Oops! This pack wasn't designed for this brewer. Please try one of the hundreds of packs with the Keurig® logo.”
 
If you or someone you know purchased single serving coffee cups that were advertised to be compatible with Keurig 2.0 coffee brewers but in fact were not compatible with a Keurig 2.0 brewer, you may be entitled to compensation for your recent purchase. For more information, please contact attorneys Brian Giles or Bryce Lenox at 513.815.3853 or via email at Brian@gileslenox.com and Bryce@gileslenox.com.
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Can You Get Your Job Back If Your Employer Breaches Your Employment Contract?Bryce LenoxBy Bryce A. Lenox on Thursday, March 26, 2015Oftentimes, employees enter into employment contracts with their employer for a period of years.  Sometimes there are disagreements among them, and employees may be terminated, whether rightfully or wrongfully.  If the latter, can the employee be returned to employment?  In Cedar Fair LP v. Falfas, 2014 Ohio 3943, the Ohio Supreme Court answered that question, holding that an employee may return to his job in very limited circumstances.

In Cedar Fair, Falfas was the Chief Operating Officer for Cedar Fair, and signed an employment contract.  Tensions arose between Falfas and Cedar Fair’s CEO, and after a heated conversation, Falfas believed that he had been fired, while Cedar Fair believed that Falfas had resigned.  The parties arbitrated the matter, and the arbitrator ordered Cedar Fair to restore Falfas to his previous position.

On appeal, the Supreme Court reversed.  The Court first noted a long history of Ohio precedent that precludes specific performance – the performance of a contractual obligation – in service contracts and employment agreements.  While the Court noted a few narrow exceptions to the rule in cases involving collective-bargaining agreements, civil-service laws, and civil-rights laws, the Court noted that none of those exceptions applied in this case.

The Court then looked to the terms of Falfas’ contract to determine whether reinstatement was a bargained-for provision.  Finding none, the Court ultimately opined that “specific performance is not an available remedy for breach of an employment contract unless it is explicitly provided for in the contract or by an applicable statute.”  Instead, money damages should be awarded in those circumstances.

The Court’s opinion in Cedar Fair is not surprising, as it merely followed longstanding precedent in Ohio.  The takeaway from the case is that if an employee for whatever reason wishes to return to his employment after a heated contract dispute with his employer, that provision must be explicitly set forth in the employment contract.       
Employment ContractCourtsEmployeesEmployers
Giles Lenox Investigating Lumber Liquidators for Sales of Allegedly Hazardous Formaldehyde-Tainted FlooringBryce LenoxBy Bryce A. Lenox on Thursday, March 26, 2015CINCINNATI, OHIO - Giles Lenox is currently investigating allegations that Lumber Liquidators, Inc., a subsidiary of Lumber Liquidators, Holdings, Inc. (“Lumber Liquidators”) (NYSE:LL), sold laminate flooring that emits formaldehyde gas at levels that exceed safety levels set by the California Air Resources Board (“CARB”).  This topic was also the subject of a recent “60 Minutes” news investigation.

Lumber Liquidators is a U.S. company, but obtains some of its laminate flooring from manufacturers in China, which it then sells in its stores and through its retail website.  Certain tests have shown that some of the Lumber Liquidators laminate products that were produced in China can emit formaldehyde gas at up to three times the CARB limit.
Formaldehyde is sometimes found in the glues and resins used to hold the pressed wood together in laminate wood flooring. According to the National Cancer Institute, formaldehyde has been classified as a known human carcinogen (cancer-causing substance) by the International Agency for Research on Cancer and as a probable human carcinogen by the U.S. Environmental Protection Agency.  Formaldehyde can also cause burning eyes, nose and throat irritation, coughing, headaches, dizziness, joint pain and nausea.  It has also been linked to the exacerbation of asthma in formaldehyde-sensitive individuals.

More than 100 million square feet of the Lumber Liquidators' laminate flooring is installed in American homes every year. If you or someone you know purchased laminate wood flooring from Lumber Liquidators, you may have been exposed to formaldehyde, a toxic chemical known to cause cancer.  If you are concerned about your recent purchase of Lumber Liquidators laminate wood flooring, please contact attorney Brian Giles or Bryce Lenox at 513.815.3853 or via email at Brian@gileslenox.com and Bryce@gileslenox.com
Lumber Liquidatorsformaldehydeclass actiontoxic tort
New False Claims Act SettlementBrian GilesBy Brian Giles, Esq. on Tuesday, January 13, 2015On October 10, 2014, Boeing agreed to pay $23 million to resolve False Claims Act allegations it submitted false claims on maintenance contracts with the government.  Four whistleblowers will receive $3.9 million for filing the complaint concerning the alleged overcharging of the Air Force.

The False Claims Act (31 U.S.C. §§ 3729–3733) is a federal law that imposes liability on persons and companies (typically federal contractors) who defraud governmental programs. It is the federal government’s primary tool in combating fraud against the government.  The law includes a "qui tam" provision that allows people who are not affiliated with the government, called "relators" under the law, to file actions on behalf of the government (informally called "whistleblowing"). Persons filing under the Act stand to receive a portion (usually about 15–25 percent) of any recovered damages. As of 2012, over 70 percent of all federal government False Claim Act actions were initiated by whistleblowers. Claims under the law have typically involved health care, military, or other government spending programs.

The False Claims Act has a detailed process for making a claim under the Act.  A lawsuit must be filed in U.S. District Court in camera (under seal). After an investigation by the Department of Justice within 60 days, or frequently several months after an extension is granted, the Department of Justice decides whether it will pursue the case.  If the case is pursued, the amount of the reward is less than if the Department of Justice decides not to pursue the case and the plaintiff/relator continues the lawsuit himself.

At Giles Lenox, we are experienced in handling False Claims Act cases.  If you believe you have a claim or a claim has been submitted against your company, contact the attorneys at Giles Lenox immediately to determine your rights.

WhistleblowerFalse Claims ActDOJBoeing
Choose Your Words Carefully When Drafting Arbitration Provisions, According to The Sixth CircuitBryce LenoxBy Bryce A. Lenox, Esq. on Tuesday, January 13, 2015While the phrases “arising under” or “related to” may seem interchangeable, in United States ex rel. Paige v. BAE Sys. Tech., the Sixth Circuit recently distinguished them for purposes of determining whether the claims at issue required mandatory arbitration.  The Sixth Circuit held that an arbitration clause requiring arbitration of “any dispute arising from this Agreement” did not cover the statutory retaliation claim of an employee under the False Claims Act.

In BAE, the appellants filed a qui tam action alleging, among other things, that appellee BAE Systems Technology Solutions & Services, Inc. (“BAE”) violated § 3730(h) of the False Claims Act by retaliating against them for cooperating with investigation authorities and “whistleblowing” under the FCA.  Appellants’ contract with BAE stated that “any dispute arising from this Agreement, which cannot be resolved through normal practices and procedures of the Company, shall be resolved through a mediation/arbitration approach,” and if the mediation is unsuccessful, “the dispute shall be decided by binding arbitration…”  The district court dismissed the claim on the basis that the employment agreement required mandatory arbitration.

On appeal, the Sixth Circuit reversed, holding that the mandatory arbitration clause found in the employment agreement does not cover Appellants’ FCA retaliation claim because that claim does not arise under the terms of the employment agreement. The court noted that Appellants’ FCA retaliation claim is purely statutory and exists independent of the employment agreement, and because the employment agreement does not reference the FCA, retaliation or statutory claims anywhere, such claims cannot be brought within the purview of the arbitration provision.  The Court distinguished the “arising out of” language in the employment agreement from other cases where the agreement mandated arbitration of claims “related to” the contract, the latter being broad enough to encompass claims falling outside the contract.    

The takeaway from this case is that companies should check their contracts to confirm that their mandatory arbitration and mediation provisions are broadly drafted so as to encompass all claims, whether or not those claims “arise out of” the contract.
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