/raid1/www/Hosts/bankrupt/CAR_Public/131104.mbx
C L A S S A C T I O N R E P O R T E R
Monday, November 4, 2013, Vol. 15, No. 218
Headlines
AIRGAS ON-SITE: Employees File Overtime Class Action in Calif.
AMERICAN HONDA: Recalls Foreman ATVs Due to Crash Hazard
ANZ: Customers Have Until Dec. 13 to Join Bank Fee Class Action
APPLE INC: Faces Class Action Over Faulty iMac Screens
BANK OF AMERICA: Settles "Robo Calling" Class Action for $32MM
BREATHABLEBABY: Recalls Wearable Blanket Due to Choking Hazard
CARRINGTON MORTGAGE: Court Strikes Abdelfattah's Class Allegations
CASSELS BROCK: Costs Awards in Class Action Certification Rise
COUNTRYWIDE FIN'L: To Ask Judge to Overrule Settlement Objections
CVS CAREMARK: Objectors to "Tennille" Suit Deal Must Post Bond
DBS SATELLITE: Faces Class Action Over Unlawful Subscriber Charges
DELTA AIR: Seeks Dismissal of Baggage Price-Fixing Class Action
DEUTSCHE BANK: Shareholders' Suit Can't Proceed as Class Action
ENSTAR GROUP: Approval of Acquisition Suits Deal Became Final
ENTEGRA COACH: Recalls 21 Anthem and Cornerstone Model Motorhomes
ENTERGY CORPORATION: "Payton" Class Action Returns to State Court
FAMILY DOLLAR: WSJ Criticizes Class Action Opinion
FORMULA BRANDS: Recalls Betty Crocker Cordless Electric Jug Kettle
FRED DEELEY: Recalls 145 Harley-Davidson Motorcycles
FRED DEELEY: Recalls 1,583 Harley-Davidson Motorcycles
FREIGHTCAR AMERICA: Awaits Ruling on Bid to Dismiss "Zeng" Suit
GLAXOSMITHKLINE: Federal Court Applies McDarby in Avandia Ruling
HEATHCO LLC: Recalls Motion-Activated Outdoor Lights
HSBC BANK: S.D.N.Y. Court Dismisses Putative TILA Class Action
JAYCO: Recalls 96 Travel Trailers Over Safety Issues
LAS VEGAS SANDS: Awaits Ruling on Bid to Dismiss Securities Suit
MAGNUM HUNTER: Continues to Defend Suits in New York and Texas
MICROSOFT CORP: Awaits Court Ruling on Antitrust Class Action
NQ MOBILE: Rosen Law Firm Files Securities Fraud Class Action
PHILIPS ELECTRONICS: Settles Wage Class Action for Nearly $1MM
SAKUMA BROTHERS: Berry Pickers File Class Action Over Breaks
SETRA: Recalls 69 Various Model Buses Over Safety Concerns
SOUTHERN TELECOM: Recalls A/C Adaptors for Internet Tablets
SPARK ENERGY: Court Dismisses TCPA Class Action Suit
SPIRIT REALTY: Has MOU to Settle "Kendrick" Merger-Related Suit
SUZUKI MOTOR: Recalls 13,112 Motorcycles Over Brake Problems
SWEDISH MEDICAL: Faces Class Action Over ER Overcharges
TARGET CORP: Recalls Children's Sitting Stools Due to Fall Hazard
TAYLOR FARMS: Recalls Additional 22,849 Pounds of Products
TREASURY WINE: Rayner Faces Pressure to Sell Business After Suit
TRITAP FOOD: Recalls Tiffany Strawberry Banana Sandwich Cookies
TRUMP UNIVERSITY: Faces Class Action Over Deceptive Conduct
UNIVERSITY OF CALIFORNIA: Court of Appeals Limits CMIA Liability
VIRGINIA: Judge Hears Arguments on Same-Sex Marriage Ban Suit
WEBMD HEALTH: No Appeal Filed Over Dismissal of Securities Suit
WPX ENERGY: Gets More Time to Reply to Abraham's Class Cert. Bid
YELP: Unpaid Reviewers Launch Class Action
*********
AIRGAS ON-SITE: Employees File Overtime Class Action in Calif.
--------------------------------------------------------------
Zachary Zagger, writing for Law360, reports that employees of
Airgas On-Site Safety Services Inc. hit the company with a
proposed class action on Oct. 25 in California federal court
accusing the company of failing to pay employees wages for
overtime and for all hours worked including for time employees
take to put on and take off necessary safety equipment.
Hourly workers Diane Brown and Kierre Townsend allege Airgas, a
leading distributor of industrial chemical and gas safety products
and services, committed numerous labor code violations for its
payment practices including not paying workers for overtime,
travel time and for not reimbursing workers for purchase of
specialty safety clothing such as steel-toed boots.
The workers make several claims in their complaint revolving
around a central allegation that they have not been paid for all
of the time they have worked and have not have been reimbursed for
necessary expenses incurred in order to perform their jobs.
The workers said in their complaint they worked off the clock
while putting on and taking off "required protective and/or
sanitary gear over their clothing at the beginning and end of
their shifts" and that Airgas "failed to pay hourly wages for time
spent in company vans to remote job sites upon arrival at the out
of state location(s)."
The workers also said they should be reimbursed for purchasing
specialty safety clothing and equipment such as steel-toed boots.
Costs for this clothing and equipment are a necessary expense for
the workers to fulfill their job duties, the complaint said.
The complaints said Airgas did not even provide workers with
accurate wage statements showing itemized payment of wages and
other things such as total hours worked at each rate and any
deductions made from each worker's wages.
"Inaccurate information on their wage statements has prevented
immediate challenges to the defendants' unlawful pay practices,
has required discovery and mathematical computations to determine
the amount of wages owed, has caused difficulty and expense in
attempting to reconstruct time and pay records, and/or has led to
the submission of inaccurate information about wages and
deductions to state and federal government agencies," the
complaint said.
The workers also alleged that failure to pay them for all time
worked constitutes unfair competition because Airgas has "gained a
competitive advantage over other comparable companies doing
business in the state of California that comply with their legal
obligations," the complaint said.
The workers are demanding Airgas pay them for the unpaid work time
and expenses incurred during the past four years and are asking
the court to pay each member of the proposed class a civil penalty
for each of several of the alleged violations of the labor code.
Representatives for the parties could not immediately be reached
for comment on Oct. 28.
The plaintiffs are represented by Shaun Setareh and Adrienne
Herrera of the Setareh Law Group.
Counsel information for Airgas was not immediately available.
The case is Brown et al v. Airgas On-Site Safety Services Inc.,
case No. 3:13-cv-04975 in the U.S. District Court for the District
of Northern California San Francisco Division.
AMERICAN HONDA: Recalls Foreman ATVs Due to Crash Hazard
--------------------------------------------------------
The U.S. Consumer Product Safety Commission, in cooperation with
American Honda Motor Company, of Torrance, Calif., announced a
voluntary recall of 21,000 All-terrain vehicles (ATVs). Consumers
should stop using this product unless otherwise instructed. It is
illegal to resell or attempt to resell a recalled consumer
product.
The ATV's steering shaft can break unexpectedly and cause the
rider to lose steering control and crash. This poses a risk of
injury or death to riders.
Honda has received 18 reports of the ATV's steering shaft
breaking, including two in which the riders were involved in a
crash. No injuries have been reported.
The recall involves four-wheel drive 2012 and 2013 Honda FourTrax
TRX500 Foreman ATV models FE and FM. The ATVs are red, green or
camouflage and have "Honda" on both sides of the fuel tank and
"Foreman" on the front cowl below the handlebars and on the left
rear fender. The model number is on the left front frame down
pipe above the driver's left-hand side front wheel. The following
VIN ranges are included in the recall.
Model VIN Ranges
----- ----------
2012 TRX500FE 1HFTE387*C4000006 thru 1HFTE387*C4005765
2012 TRX500FE Camo 1HFTE385*C4000002 thru 1HFTE385*C4001201
2012 TRX500FM 1HFTE380*C4000004 thru 1HFTE380*C4007923
2012 TRX500FM Camo 1HFTE381*C4000003 thru 1HFTE381*C4000902
2013 TRX500FE 1HFTE387*D4100001 thru 1HFTE387*D4101860
2013 TRX500FE Camo 1HFTE385*D4100001 thru 1HFTE385*D4100600
2013 TRX500FM 1HFTE380*D4100001 thru 1HFTE380*D4102400
2013 TRX500FM Camo 1HFTE381*D4100001 thru 1HFTE381*D4100480
Camo means the body panels have a camouflage coloring
*Denotes a random alphanumeric identifier: "0-9" or "X"
Pictures of the recalled products are available at:
http://is.gd/s47pZK
The recalled products were manufactured in United States and sold
at Honda ATV dealers nationwide from May 2011 through September
2013 for between $6,900 and $7,900.
Consumers should immediately stop using the recalled ATVs and
contact a Honda ATV dealer to schedule a free repair. American
Honda is contacting its customers directly.
ANZ: Customers Have Until Dec. 13 to Join Bank Fee Class Action
---------------------------------------------------------------
BusinessDay reports that ANZ and former National Bank customers
have until December 13 to sign up to the class action law suit
against the banks' fees.
The High Court has delivered an interlocutory judgment in the Fair
Play on Fees class action against ANZ bank allowing customers who
signed up after the court documents were lodged in June, to
participate.
Previously, there was no guarantee those who signed up after June
would be included in the case.
Customers have until December 13 to sign up to the class action.
Fair Play on Fees lawyer Andrew Hooker said the judgment gave
thousands more customers the opportunity to sign up. Mr. Hooker
said the ruling was a great outcome for ANZ/National Bank
customers.
"We are very happy for those ANZ/National Bank customers who came
to us wanting to join the campaign after the court documents were
lodged," he said.
Mr. Hooker said there were more than 1000 clients who signed up
after June. "It is important that everyone who wants to take part
in the action gets the opportunity to do so."
Mr. Hooker said he expected tens of thousands or even hundreds of
thousands more eligible New Zealanders to join the case. "We will
be doing what we can over the next seven weeks to ensure that as
many people as possible know about their legal rights to join the
case".
Fair Play on Fees now has 14,700 clients signed up from ANZ and
National Bank.
The High Court also gave the case the green light to proceed in
its present form.
ANZ had sought to break the group into six sub-groups covering the
different default fees.
The High Court declined ANZ's request, saying the representative
plaintiffs were sufficiently "representative" for the matter to
move forward as originally formulated.
The Fair Play on Fees campaign was kicked off in March by Auckland
lawyer Andrew Hooker, Australian legal heavyweight Slater & Gordon
and litigation funder Litigation Lending Services (NZ). The group
intends to sue all the major trading banks for charging penalties
such as dishonor fees and late credit card payment fees, which do
not represent the real costs incurred.
The next administrative hearing is expected to take place on
November 28. A date for trial proceedings is expected to be set
early next year.
APPLE INC: Faces Class Action Over Faulty iMac Screens
------------------------------------------------------
Jeff John Roberts, writing for Gigaom, reports that an Idaho man
who paid $2,259 for a 27" iMac computer is suing Apple on behalf
of others who purchased the computer, claiming half of its display
went dark after 18 months.
In a complaint filed in San Jose, aspiring music teacher
Corbin Rasmussen says he thought the iMac was expensive but,
relying on Apple's claims that it was "designed for a long
productive life," saved up to buy one to use as a home computer
and media center.
Mr. Rasmussen claims that, after 50 percent of the screen went
dim, the iMac became nearly useless for watching movies and made
basic web browsing difficult. He complained to Apple, which told
him a repair would cost more than $500 since the defect arose
after the product's one year warranty expired.
The complaint also states that Apple received hundreds of
complaints about the display problem, and that it failed to
address the alleged defect in 2011 when it put out a new version
of the 27" inch iMac with an updated processor and graphics card.
It also cites reports from the website Tech Crunch describing the
computer as "iLemon."
The lawsuit says the case is worth more than $5 million, and seeks
to represent everyone in America who bought a 27" inch iMac with a
LG-LED-backlit display before December 2012. The suit relies on
California's consumer protection laws to say Apple deceived Mr.
Rasmussen and others, but the lawsuit may face an uphill battle.
Another class action based on out-of-warranty claims -- this one
over a "wiggly" power button in the iPhone 4 -- recently failed.
Apple did not immediately respond to a request for comment.
BANK OF AMERICA: Settles "Robo Calling" Class Action for $32MM
--------------------------------------------------------------
Doug Sherwin, writing for The Daily Transcript, reports that
San Diego attorney Mark Ankcorn recently helped settle a
"robo calling" class-action lawsuit against Bank of America for
$32 million.
Mr. Ankcorn, an of counsel member of the law firm Casey Gerry
Schenk Francavilla Blatt & Penfield, claimed the bank was
harassing consumers who were behind on mortgage or credit-card
payments, in violation of the Telephone Consumer Protection Act
(TCPA).
According to Mr. Ankcorn, it's the largest cash payout ever under
the TCPA, designed to protect consumers from unwanted phone calls.
Settlement papers were filed in federal court in San Jose and the
proceeds will go to nearly 8 million consumers in the class.
A Bank of America spokesperson said the company is pleased to
resolve the lawsuit.
"Bank of America denies the allegations, but agreed to settle the
claims to avoid further legal costs," the company said in a
statement.
According to Mr. Ankcorn, when someone was late on a payment, Bank
of America would transfer all known telephone numbers for the
account into a computerized calling system that would make as many
as seven calls per day, per number.
"This harassment was intense and ongoing -- and violated federal
law by running up cellphone bills for millions of consumers across
the country," he said.
Mr. Ankcorn said even consumers who talked to a live
representative on the phone, and explained how they were working
on a payment plan, still continued to receive phone calls.
"They (bank officials) figured the more persistent you are, the
more money you get," Mr. Ankcorn said. "It's profoundly
frustrating and angering, and you want to tear out your hair when
someone's talking about your mortgage. You're trying to negotiate
but, at the end of the day, nobody's listening."
The statute dates back to the early 1990s when cellphones were
beginning to proliferate and lawmakers wanted to minimize expenses
for consumers, who were being charged for every incoming call on a
cellphone.
Technology today makes it easy for companies to make tens of
thousands of calls simultaneously, according to Mr. Ankcorn,
making it expensive for consumers who receive these unwanted calls
on a cellphone.
According to the Federal Trade Commission, the number of robo-
calls is soaring -- thanks to new, inexpensive technology that
enables companies to send out thousands of calls per minute.
Companies are allowed to make unlimited calls to a resident's
landline, but they have to get consent in order to make auto-
dialed calls to someone's cell phone under the TCPA.
As part of the settlement, Bank of America agreed to implement
sweeping changes to its business practices and obtain separate
consent before making any robo-dialed call to a cellphone.
The company also will start tracking consents on a more
individualized basis and stop using an automatic dialer when they
identify a number that is attached to a cellphone.
"It really is great to see we've helped, a tiny bit, change the
business practice of a major corporation," Mr. Ankcorn said.
"We're happy to get the result we got. I think it's a very good
result."
BREATHABLEBABY: Recalls Wearable Blanket Due to Choking Hazard
--------------------------------------------------------------
The U.S. Consumer Product Safety Commission, in cooperation with
BreathableBaby LLC, of Minnetonka, Minn., announced a voluntary
recall of about 15,000 BreathableSack wearable blanket for
infants. Consumers should stop using this product unless
otherwise instructed. It is illegal to resell or attempt to
resell a recalled consumer product.
The zipper pull tabs and sliders can detach posing a choking
hazard to infants.
There were no incidents that were reported.
The BreathableBaby BreathableSacks are sleeveless, wearable
blankets. They come in two sizes: small (10-18 pounds) and medium
(16-24 pounds) and come in three colors: kiwi Whoo, pink Hip, and
blue Splash. There is one animal stitched on the left chest of
each blanket of an owl, hippo or elephant. Only BreathableSacks
from Lot No. 124 with a manufacture date of 04/17/2012 are
included in the recall. A tag sewn inside the recalled units
where the infant's right foot would be located states the "Date of
Manufacture: 04/17/2012, Lot No. 124," along with the washing
instructions on the back of the tag.
Pictures of the recalled products are available at:
http://is.gd/7VWVBg
The recalled products were manufactured in China and sold at
various stores and online retailers, and at
http://www.breathablebaby.com,nationwide from June 2012 to August
2013 for about $20.
Consumers should immediately stop using the BreathableSacks from
Lot No. 124 and contact BreathableBaby to request a replacement
garment.
CARRINGTON MORTGAGE: Court Strikes Abdelfattah's Class Allegations
------------------------------------------------------------------
The defendant in ABDELFATTAH v. CARRINGTON MORTGAGE SERVICES LLC
moved to strike all class allegations asserted by plaintiff Ahmed
Abdelfattah in his First Amended Complaint pursuant to Federal
Rule of Civil Procedure 12(f) and 23. At issue in the motion is
whether the requirement for actual damages under Section
1785.31(a) of the California Consumer Credit Reporting Agencies
Act limits all relief available under the Act.
District Judge Ronald M. Whyte grants the request and strikes
Abdelfattah's class allegations with leave to amend.
"He has thirty days from the date of this order to file an amended
complaint, if he can do so in good faith, that the purported class
suffered actual damages and the Abdelfattah is an adequate class
representative," ruled Judge Whyte. "The remaining issues raised
are moot."
The case is AHMED ABDELFATTAH, an individual, Plaintiff, v.
CARRINGTON MORTGAGE SERVICES LLC, a limited liability corporation,
Defendant, CASE NO. C-12-04656-RMW, (N.D. Cal.).
A copy of the District Court's October 21, 2013 Order is available
at http://is.gd/sfH9O2from Leagle.com.
CASSELS BROCK: Costs Awards in Class Action Certification Rise
--------------------------------------------------------------
Kirk Baert, writing for Canadian Lawyer, reports that in a recent
decision on costs arising from a motion for certification, Justice
Paul Perell of the Superior Court acknowledged the ever-upward
spiral in costs awards in class proceedings are becoming an
impediment to the viability of the class action regime.
The reason for these enormous costs awards is the tendency for the
parties to the certification motion to use it as a road test for
the merits of the litigation. The focus of the certification
motion ought to be whether the certification criteria are
satisfied and that the some-basis-in-fact evidentiary standard in
this regard is very low. In ordering half of the costs awarded on
the motion payable forthwith and the other half in the cause,
Justice Perell struck an appropriate balance between compensating
the victorious parties to the motion for the costs they incurred
and ensuring these motions are not prohibitively expensive, which
will result in a chilling effect on the purposes of the class
proceedings legislation.
Lipson v. Cassels Brock & Blackwell, was a costs decision arising
from a proposed class action claiming a law firm negligently
provided a tax opinion in support of a donation scheme.
Participants in the scheme would donate both cash and resort
timeshares to Canadian athletic associations in return for tax
credits for their charitable donations. In the marketing of the
scheme, a tax opinion prepared by Cassels Brock & Blackwell LLP
was included in the promotional material. That opinion said it
was unlikely the Canada Customs and Revenue Agency could
successfully deny the tax credits. However, Canada Revenue
ultimately disallowed the anticipated tax credits in their
entirety.
To recover his losses, Jeffrey Lipson commenced a class action
against Cassels Brock and a number of other defendants. After a
two-day hearing, certification of the class action was denied on
the basis the class' claims were statute-barred under the
Limitations Act, 2002. The Court of Appeal reversed the lower
court's judgment and certified the action.
At the motion for the determination of costs, the plaintiffs
sought payment on a partial indemnity basis of C$298,582.71.
Cassels Brock submitted that Lipson should receive costs of
C$100,000 plus reasonable disbursements, some of which should be
made payable in the cause.
Justice Perell went further. Although he acknowledged the motion
for certification was hard fought and called for a vigilant and
concerted effort from class counsel, he commented that a C$300,000
costs award for a certification motion for this case was
excessive. A significant amount of the evidence went to the
merits of this action, which is contrary to the purpose of the
motion for certification, which is procedural in nature.
In the end, Justice Perell ordered costs payable to Lipson of
$298,582.71, with C$150,000 of that payable in the cause. This
amount provided fair compensation for the successful certification
hearing, and preserved to the prosecution of the litigation the
work effort of class counsel, much of which would be carried
forward into the action.
Over the last few years, costs awards against unsuccessful parties
in class proceedings have skyrocketed despite the potential
chilling effect such awards can have on the purposes of the class
proceedings legislation. A review of recent costs awards arising
from motions for certification demonstrates this trend:
Martin v. AstraZeneca
Pharmaceuticals PLC (2012) C$475,000 plus disbursements
McCracken v. Canadian
National Railway Co. (2012) C$475,000
Fresco v. CIBC (2010) C$525,000
Lambert v. Guidant Corp. (2009) C$650,000 plus disbursements
Ruffolo v. Sun Life Assurance
Co. of Canada (2008) C$215,000
Enormous costs awards at certification typically result from the
tendency to use the certification motion as a road test for the
merits of the litigation. By reducing the amount of costs awarded
to class counsel and splitting the costs and by making half of the
costs award payable forthwith and the other being payable in the
cause, there is hope the tide is turning, and that both parties to
the motion for certification will recognize a certification motion
remains just a procedural motion and the merits of the litigation
remain to be determined.
COUNTRYWIDE FIN'L: To Ask Judge to Overrule Settlement Objections
-----------------------------------------------------------------
Edvard Pettersson, writing for Bloomberg News, reports that Bank
of America Corp.'s Countrywide unit and investors in its devalued
residential mortgage-backed securities will ask a federal judge to
overrule objections from the Federal Deposit Insurance Corp. and
approve a $500 million class-action settlement.
U.S. District Judge Mariana Pfaelzer in Los Angeles, who in August
gave preliminary approval to the settlement, is scheduled to hear
arguments on Oct. 29 on final approval of the accord, which the
plaintiffs' lawyers says is the largest of a mortgage-backed
securities class-action lawsuit to date.
The FDIC, as receiver for 19 failed banks that had invested in the
securities before the collapse of the U.S. housing market in 2007,
objects to the settlement, saying it favors a small group of
investors whose securities were among those owned by the
plaintiffs that filed the first securities-fraud claims against
the mortgage lender.
"Named plaintiffs and class counsel have a conflict of interest
with the members of the class that invested in 9,325 of the 9,383
covered tranches," the FDIC said in its Oct. 7 objection to the
settlement.
The settlement resolves claims that Countrywide Financial Corp.,
which was bought by Bank of America in 2008, provided false and
misleading information in the offering documents for the
securities. The investors alleged that Countrywide, at the time
the largest U.S. mortgage lender, lied about the quality of the
loans that were pooled for the securities.
Credit Ratings
Many of the securities, which had been given the highest credit
ratings when they were issued, were cut to junk after a surge of
defaults. When Calabasas, California-based Countrywide, which
originated or purchased about $1.4 trillion in mortgages from 2005
to 2007, could no longer sell mortgages to the secondary market,
it was taken over by Bank of America.
The settlement is separate from the proposed $8.5 billion
settlement Bank of America reached with institutional investors in
Countrywide residential mortgage-backed securities who brought
claims against the bank for breaching its obligations to
repurchase delinquent mortgages pooled for the securities.
Pfaelzer in a series of rulings in 2010 and 2011 excluded Bank of
America, as corporate parent, from the cases before her and
narrowed the number of securities the investors could sue over to
include only those individual segments of them that were bought by
the plaintiffs who filed the first lawsuits in California state
court in 2007 and 2008.
The settlement involves three lawsuits, including the ones that
had been pending in state court until last year. Judge Pfaelzer's
rulings on which segments of the securities could be included in
the cases weren't yet applied to the ones transferred to federal
court, creating what the FDIC called a "loophole" for the
plaintiffs in those cases to settle on behalf of all investors.
'Remarkable' Settlement
Lawyers for the named plaintiff said in Oct. 21 filing that the
settlement is "remarkable," in particular given the potential risk
Bank of America could put the Countrywide unit into bankruptcy
court protection because of the billions of dollars in possible
legal claims.
"Because the court has already dismissed Bank of America as
potential defendant, any sizeable verdict in plaintiff's favor at
the conclusion of a trial, or upon a successful appeal of this
court's rulings on standing and tolling, would be an empty victory
if Countrywide would declare bankruptcy," the lawyers said.
Of the $500 million, the lawyers seek $89 million in fees and
expenses. Investors in the 58 segments of the securities that
were owned by the first plaintiffs in state court will receive
$267 million. Investors in 111 segments, for which there were
plaintiffs who sought to represent other investors and for which
the claims were filed too late, will get $85 million.
That leaves $41 million for investors in 9,214 of the slices,
according to the FDIC's objection. That amounts to 0.012% of the
face value of the securities for most of the investors, the FDIC
said.
The case is Maine State Retirement System v. Countrywide Financial
Corp., 10-00302, U.S. District Court, Central District of
California (Los Angeles.)
CVS CAREMARK: Objectors to "Tennille" Suit Deal Must Post Bond
--------------------------------------------------------------
JAMES P. TENNILLE, on behalf of himself and all others similarly
situated, Plaintiff, v. THE WESTERN UNION COMPANY and WESTERN
UNION FINANCIAL SERVICES, INC., Defendants, CIVIL ACTION NO.
09-CV-00938-JLK, CONSOLIDATED WITH NO. 10-CV-765-JLK, (D. Colo.),
is a class action litigation which arose out of Western Union's
business practice of leveraging the time value of unclaimed
transfer funds until state unclaimed property laws mandated they
disclose and attempt to repatriate them. In extensive motions
practice over a period of years, Western Union succeeded in
dismissing all of Plaintiffs' claims save for Plaintiffs'
equitable claims premised on various theories of unjust
enrichment. Western Union's motion to compel class members to
submit to individual arbitration was denied, and an appeal was
taken. After lengthy negotiations before private and Tenth Circuit
mediators, the litigation culminated in a global settlement
calling for sweeping and substantive changes to the way Western
Union does business. Class members were notified of the Class
Action Settlement Agreement and afforded the opportunity both to
opt out of the settlement class or object to the Agreement's
terms. Final Judgment approving the Settlement was entered on June
25, 2013.
Objecting class member Sikora Nelson filed an appeal of the Final
Judgment and Court findings overruling her objection, and Paul
Dorsey joined in that appeal. The matter is now before the Court
on the Class Plaintiffs' Motion for Appeal Bond, which the Court
originally granted over Ms. Nelson's written objection and without
hearing from Mr. Dorsey given that the time for responding to the
Motion had run.
Having considered Mr. Dorsey's response to the Motion for Appeal
Bond together with Plaintiffs' Motion to Supplement the Record and
related briefing, Senior District Judge John L. Kane reaffirms the
Order granting the Appeal Bond and orders a bond in the amount of
$1,007,294 payable jointly and severally by Ms. Nelson and Mr.
Dorsey. With the exception of ancillary attorney fee issues, which
have been referred to Magistrate Judge Tafoya and do not affect
appellate jurisdiction, the proceedings in the district court are
concluded, says Judge Kane.
A copy of the District Court's October 21, 2013 Order is available
at http://is.gd/kYwQ3afrom Leagle.com.
DBS SATELLITE: Faces Class Action Over Unlawful Subscriber Charges
------------------------------------------------------------------
Bezeq the Israeli Telecomunictn Corp. Ltd. on October 24, 2013,
received notice from D.B.S. Satellite Services (1998) Ltd. ("Yes")
of a claim together with a motion to certify the claim as a class
action that had been filed against it with the Tel Aviv District
Court on grounds that Yes unlawfully charged its subscribers
arbitrary and varying amounts for services provided, at first for
free or at a reduced cost, without providing subscribers notice
thereof or obtaining their consent thereto.
The Petitioner has moved the Court, inter alia, to require Yes to
reimburse group members for all of the amounts they were allegedly
unlawfully charged and to compensate the group members for
violating their freedom of contract and/or the anguish they were
caused by being forced to continue the contract with Yes.
The Petitioner did not indicate a claim amount, with the exception
of non-monetary damage (only) estimated at approximately NIS8.6
million. Yes is studying the claim and the motion to certify the
claim as a class action and neither Yes nor the Company is unable,
at the present stage, to evaluate the claim's likelihood of
success.
DELTA AIR: Seeks Dismissal of Baggage Price-Fixing Class Action
---------------------------------------------------------------
Brian Mahoney and Lana Birbrair, writing for Law360, report that
Delta Air Lines Inc. urged a Georgia federal judge on Oct. 25 not
to certify a class of travelers accusing the airline and AirTran
Airways Inc. of colluding to fix baggage fees, saying further
discovery is required to readily identify the individual class
members.
Delta claims that the class of travelers has failed to meet the
so-called ascertainability requirement for class action plaintiffs
seeking certification. Delta also says it deserves to defend
itself from individual member claims before the case proceeds as a
certified class action, according to its opposition brief.
"Certification here is foreclosed for at least two overriding
reasons: class members are not ascertainable without extensive
class-member specific discovery and adjudication," the brief said.
"And Delta has genuine and serious defenses to the injury claim of
many class members, and allowing this case to proceed as a class
action would improperly deprive Delta of its right to litigate and
assert those defenses."
Delta said the plaintiffs have the burden of offering a way to
ascertain the class members, but so far have come up with no
acceptable methods.
"Plaintiffs, however, have failed to offer any methodology for
identifying proposed class members -- a failure that, on its own,
dooms plaintiffs' request for certification," the motion said.
Delta also argues that two recent landmark U.S. Supreme Court
cases -- Wal-Mart Stores Inc. v. Dukes and Comcast Corp. v.
Behrend -- make clear that the class cannot be certified without
running afoul of the Constitution and the Federal Rules of Civil
Procedure.
The airline further claims that the adoption of first-bag fees for
passengers resulted in lower fares for some class members, the
brief said.
"If the adoption of the first bag fee economically helped and
harmed a putative class member, both effects must be considered,"
Delta said.
The plaintiffs filed a consolidated complaint against the airlines
in February 2010, accusing the two companies of discussing their
intentions to increase prices in a series of earnings calls,
industry conferences and joint negotiations with the Hartsfield-
Jackson Atlanta International Airport.
After suffering steep revenue declines in 2008, when oil prices
jumped to more than $130 per barrel, AirTran initiated
communications with Delta about reducing its daily flight routes
and charging $15 baggage fees to offset the losses, according to
the complaint.
The plaintiffs say their claims are supported by the fact that
Delta and AirTran both implemented $15 baggage fees on the same
date -- Dec. 5, 2008 -- and decided to reduce flight capacity
within weeks of each other.
The suit alleges each airline would not have instituted baggage
fees and capacity changes without knowing the other was going to
do so.
The plaintiffs are represented by Conley Griggs LLP, Kotchen & Low
LLP, McCulley McCluer PLLC, Richardson Patrick Westbrook &
Brickman LLC and Schreeder Wheeler & Flint LLP.
Delta is represented by Alston & Bird LLP and Boies Schiller &
Flexner LLP.
AirTran is represented by Vinson & Elkins LLP, Wiley Rein LLP,
Morrison & Foerster LLP and Smith Gambrell & Russell LLP.
The case is In re: Airline Baggage Fee Antitrust Litigation, case
number 1:09-md-02089, in the U.S. District Court for the Northern
District of Georgia.
DEUTSCHE BANK: Shareholders' Suit Can't Proceed as Class Action
---------------------------------------------------------------
Nate Raymond and Jonathan Stempel, writing for Reuters, report
that a U.S. judge on Oct. 29 refused to allow shareholders to
proceed as a group in a lawsuit accusing Deutsche Bank AG of
misrepresenting the risks of mortgage-related investments that
were central to the financial crisis.
The ruling by U.S. District Judge Katherine Forrest in New York
effectively ends the class action against the German bank,
although shareholders could proceed individually.
Judge Forrest ruled that an expert hired by the shareholders to
give an opinion on whether the market for Deutsche Bank shares was
efficient was unqualified and used a flawed methodology.
"For this court to rely on testimony from someone who lacks real
expertise asks this Court to dispense with the need for real
qualifications," Judge Forrest wrote.
Renee Calabro, a spokeswoman for Deutsche Bank, said it was
"pleased with the court's decision." John Grant --
johng@rgrdlaw.com -- a lawyer for the plaintiffs at Robbins Geller
Rudman & Dowd, did not responded immediately to requests for
comment.
Filed in 2011, the lawsuit accused Deutsche Bank of issuing false
and misleading statements about its health in the run up to and
during the global financial crisis.
The lawsuit said Deutsche Bank packaged and sold mortgage-backed
securities and collateralized debt obligations that it knew were
riskier than it told the market.
The lawsuit also accused Deutsche Bank of misrepresenting its risk
management practices and said it was too slow to write down
impaired mortgage securities.
The misrepresentations enabled Deutsche Bank to inflate its stock
price and maximize its profits, but as the bank began announcing
losses in 2008 its stock price fell 87% to $21.27 in January 2009
from $159.59 in May 2007, the lawsuit said.
In March, Judge Forrest denied a motion by the bank to dismiss the
lawsuit, and the plaintiffs moved to certify plaintiffs who bought
shares in the United States from January 3, 2007, through
January 16, 2009.
The lawsuit is led by shareholders Building Trades United Pension
Trust Fund, Steward Global Equity Income Fund, and Steward
International Enhanced Index Fund.
'Significant Flaws'
Judge Forrest, in denying class certification on Oct. 29, focused
extensively on the qualifications of the expert hired by the
plaintiffs, Michael Marek.
Judge Forrest said Mr. Marek's expertise came from acting as an
expert in securities class actions, which she said was "not
sufficient." She added that he had "not been specially trained by
academics in the field; he has not written articles, taught any
courses, or conducted any relevant research."
The judge said Mr. Marek's training instead "appears to have been
one year he spent working for a firm after college and then his
work for an economist who was later indicted for submitting false
declarations."
The economist, John Torkelsen, pleaded guilty in 2008 to lying to
judges about secret payments he took from plaintiffs' law firms.
Among the firms he worked for was Milberg, which at the time was
at the center of a massive kickback scandal.
Robbins Geller, which represents the Deutsche Bank plaintiffs,
spun out of Milberg in 2004.
Even if Mr. Marek was qualified, Forrest said his analysis
suffered from "certain significant flaws."
Judge Forrest said Mr. Marek failed to consider that more than 90
percent of Deutsche bank securities were traded outside the United
States, in Germany, which he conceded drove U.S. pricing.
Judge Forrest said Mr. Marek also failed to consider that, during
the time in question, both the United States and Germany
instituted short-sale bans, even though he acknowledged arbitrage
was an important driver of an efficient market.
Mr. Marek did not immediately respond to a call or an email
seeking comment.
The case is IBEW Local 90 Pension Fund v. Deutsche Bank AG, et al,
U.S. District Court, Southern District of New York, No. 11-04209.
ENSTAR GROUP: Approval of Acquisition Suits Deal Became Final
-------------------------------------------------------------
The order approving Enstar Group Limited's settlement of
acquisition-related class action lawsuits became final and
unappealable on August 19, 2013, according to the Company's
August 9, 2013, Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarter ended June 30, 2013.
In connection with the Company's acquisition of SeaBright, two
purported class action lawsuits were filed against SeaBright
Holdings, Inc. ("SeaBright"), the members of its board of
directors, the Company's merger subsidiary (AML Acquisition,
Corp.) and, in one of the cases, the Company. The first lawsuit
was filed September 13, 2012, in the Superior Court of the State
of Washington and the second lawsuit was filed September 20, 2012,
in the Court of Chancery of the State of Delaware. The lawsuits
alleged, among other things, that SeaBright's directors breached
their fiduciary duties when negotiating, approving and seeking
stockholder approval of the Merger, and that SeaBright and the
Company or the Company's merger subsidiary aided and abetted the
alleged breaches of fiduciary duties.
The Company believed these lawsuits were without merit;
nevertheless, in order to avoid the potential cost and distraction
of continued litigation and to eliminate any risk of delay to the
closing of the Merger, the Company, SeaBright and the SeaBright
director defendants agreed to settle the two lawsuits, without
admitting any liability or wrongdoing. The settlement required
SeaBright to make supplemental information available to its
stockholders through a filing of a Current Report on Form 8-K with
the U.S. Securities and Exchange Commission. The settlement did
not change the amount of the merger consideration that the Company
paid to SeaBright's stockholders in any way, nor did it alter any
deal terms. On July 19, 2013, the Superior Court of the State of
Washington entered an order approving the settlement. This order
became final and unappealable on August 19, 2013.
Enstar Group Limited -- http://www.enstargroup.com/-- is a
Bermuda-based company that acquires and manages insurance and
reinsurance companies in run-off and portfolios of insurance and
reinsurance business in run-off, and provides management,
consulting and other services to the insurance and reinsurance
industry.
ENTEGRA COACH: Recalls 21 Anthem and Cornerstone Model Motorhomes
-----------------------------------------------------------------
Starting date: October 18, 2013
Type of communication: Recall
Subcategory: Motorhome
Notification type: Safety Mfr
System: Electrical
Units affected: 21
Source of recall: Transport Canada
Identification number: 2013362
TC ID number: 2013362
Affected products:
Maker Model Model year(s) affected
----- ----- ----------------------
ENTEGRA ANTHEM 2010, 2011, 2013, 2014
ENTEGRA CORNERSTONE 2010, 2012, 2013, 2014
On certain vehicles, exterior freezer power cables may come into
contact with the freezer sliding rails. This could result in an
electrical short, increasing the risk of a fire causing injury
and/or damage to property.
Dealers will install a wiring protector and retainer clips.
ENTERGY CORPORATION: "Payton" Class Action Returns to State Court
-----------------------------------------------------------------
In the case, COURTNEY PAYTON, ET AL, v. ENTERGY CORPORATION, ET
AL., SECTION: "H"(5), CIVIL ACTION NO. 12-2452, (E.D. La.), the
Court heard the Plaintiffs' Motion to Remand, and the Defendants'
Motion in limine to exclude the testimony and opinions of Dr.
Helmut Schneider, an expert in statistics.
The Plaintiffs filed the class action lawsuit in the Orleans
Parish Civil District Court against Entergy Corporation, Entergy
New Orleans, Inc. (ENO) and Entergy Louisiana, LLC. ENO provides
utility services to the east bank of Orleans parish, while ELL
provides utility services to most of southern Louisiana outside of
New Orleans. Plaintiffs alleged that the Defendants breached their
respective duties to ensure a timely restoration of power to their
customers in the aftermath of the August 28, 2012 Hurricane Isaac
in southeastern Louisiana. Plaintiffs requested Dr. Schneider to
design a survey which could be used to determine the citizenship
of a representative portion of the Plaintiff class. The purpose of
this survey was to allow Dr. Schneider to offer an opinion
regarding the percentage of the class members who are Louisiana
citizens.
In an October 21, 2013 Order and Reasons available at
http://is.gd/8Ltwe8from Leagle.com, District Judge Jane Triche
Milazzo granted in part and denied in part the Motion in Limine
saying Dr. Schneider is accepted as an expert in the fields of
statistics and survey design. Additionally, he said, the sample
Dr. Schneider created from the Defendants' customer lists meets
the Daubert reliability standard, as do the results of the
residential survey. However, the commercial survey and results do
not meet the Daubert reliability standard and are excluded.
Judge Milazzo further granted the Plaintiffs' Motion to Remand
saying the case should be remanded to the Civil District Court for
the Parish of Orleans in the interests of justice and the totality
of the circumstances.
FAMILY DOLLAR: WSJ Criticizes Class Action Opinion
--------------------------------------------------
Meagan Hatcher-Mays, writing for Media Matters, reports that an
editorial in The Wall Street Journal criticized a recent class-
action opinion but completely misrepresented its holding, all
while falsely accusing a group of federal appellate judges of
"ignoring Supreme Court precedents" in a series of decisions that
would allow consumers to hold huge corporations liable for selling
defective products.
The WSJ, hardly the first right-wing media outlet to support pro-
business legal reforms that would make it nearly impossible for
consumers to sue large corporations, painted the appellate courts'
decision to allow the class actions to proceed as inappropriately
partisan, despite the fact that a diverse group of judges agreed
that the suits were appropriate. It also rather egregiously
misunderstood the ruling in the Scott v. Family Dollar case, which
did not, as the WSJ asserts, "grant[] class certification" to the
plaintiffs.
From the October 24 editorial:
"Elections have judicial consequences, and nowhere is that more
evident than on the Fourth Circuit Court of Appeals, which last
week brushed off a Supreme Court class-action ruling like a lapful
of cracker crumbs. The case has damaging consequences for
business and highlights a growing trend of lower-court rejection
of High Court precedents."
"In Scott v. Family Dollar Stores, 51 current or former managers
allege that the low-cost retail chain uses "subjectivity and
gender stereotyping that causes disparate impact to compensation
paid to female store managers." A Fourth Circuit panel by 2 to 1
overturned a lower court ruling and granted class certification
despite clear rules set down in 2011 by the Supreme Court in Wal-
Mart. v. Dukes.
[. . .]
"This latest ruling continues a troubling trend of lower appellate
courts ignoring Supreme Court precedents, perhaps on the
assumption that the Justices can't take every case. Think of it
as a war of attrition against lover-not-a-fighter Chief Justice
John Roberts.
"Similar behavior was in evidence recently in the Sixth Circuit's
Whirlpool v. Glazer and the Seventh Circuit's Sears v. Butler over
whether to certify class actions among consumers with allegedly
moldy washing machines. In Sears, Judge Richard Posner clearly
disregarded the Supreme Court's certification guidelines. The
High Court vacated those judgments and remanded them in light of
their ruling in 2013's Comcast v. Behrend, but the lower courts
simply reinstated their prior decisions. Both cases are now
bidding for another High Court hearing.
"The Family Dollar majority was made up of Obama appointee Barbara
Keenan and Clinton recess-appointee Roger Gregory, who was later
renominated by George W. Bush as an olive branch to Senate
Democrats. Democratic Presidents have appointed 10 of the 15
active Fourth Circuit judges, including six by President Obama.
"Consider this disdain for precedent a preview if Mr. Obama gets a
new majority on the Supreme Court. Chief Justice Roberts and his
colleagues need to deliver some remedial instruction in class-
action law and legal hierarchy."
As an initial matter, the October 16 decision in the Family Dollar
case explicitly states (in the first paragraph of the opinion)
that the court had issued its ruling "[w]ithout resolving the
class certification issue," and remanded it "for the district
court to consider whether, based on our interpretation of Wal-
Mart, the proposed amended complaint satisfies the class
certification requirements of [the Federal Rules of Civil
Procedure]."
Even if the WSJ had analyzed the Family Dollar case correctly, its
characterization of the recent class-action cases as a "troubling
trend" indicative of "disdain" for the law is odd -- especially
given the fact that the judges who wrote these decisions were
appointed or nominated by Democratic and Republican presidents
alike.
For example, reliably conservative Judge Richard Posner, a Reagan
appointee and veteran judge on the Seventh Circuit U.S. Court of
Appeals, has argued in favor of the continued necessity of class-
action lawsuits because they are the most economically efficient
way to litigate a large number of claims on the same issue.
Judge Posner reiterated that view in the Sears case the WSJ finds
so objectionable:
"It would drive a stake through the heart of the class action
device, in cases in which damages are sought rather than an
injunction or a declaratory judgment, to require every member of
the class have identical damages. If the issues of liability are
genuinely common issues, and the damages of individual class
members can be readily determined in individual hearings, in
settlement negotiations, or by creation of subclasses, the fact
that damages are not identical across all class members should not
preclude class certification. Otherwise defendants would be able
to escape liability for tortious harms of enormous aggregate
magnitude but so widely distributed as not to be remediable in
individual suits. As we noted [in a prior case], "the more
claimants there are, the more likely a class action is to yield
substantial economies in litigation. It would hardly be an
improvement to have in lieu of this single class 17 million suits
each seeking damages of $15 to $30. . . . The realistic
alternative to a class action is not 17 million suits, but zero
individual suits, as only a lunatic or a fanatic sues for $30[.]"
[. . .]
"A class action is the efficient procedure for litigation of a
case such as this, a case involving a defect that may have imposed
costs on tens of thousands of consumers, yet not a cost to any one
of them large enough to justify the expense of an individual
suit."
How Judge Posner's opinion serves as a "preview" for President
Obama's potential future Supreme Court picks, as the WSJ
apparently fears, is not altogether clear. This decision is
hardly ignorant of Supreme Court precedents -- Judge Posner did
not "simply reinstate[]" the Seventh Circuit's prior decision, and
neither did the judges in the Sixth Circuit Whirlpool case that
the WSJ similarly attacked. Both courts carefully reviewed the
Supreme Court's decision in Comcast and both courts concluded that
it did not affect the certification of the classes in the washing
machine cases. As both the Sixth and Seventh Circuit opinions
point out, the Sears case is distinct from the Supreme Court's
recent decision in Comcast. The class in Sears wants the courts
to determine liability for an injury that all class members share.
By contrast, Comcast was not solely about liability, but about
damages -- the class in Comcast was ultimately decertified because
the damages owed to the class members were not based on a common,
class-wide injury.
Given the WSJ's concern about judicial bias, it's curious that it
would ignore the influence conservative groups have had over the
American legal system. One group in particular, the pro-business
lobbying powerhouse U.S. Chamber of Commerce, has spent millions
of dollars in its fight to end "frivolous" lawsuits and to make
class actions even more difficult for consumers to bring. The
group has been uniquely successful in not only getting its cases
in front of the Supreme Court, but in finding a sympathetic ear in
Chief Justice John Roberts and his conservative cohort.
As Emily Bazelon at Slate explained, the appellate court decisions
allowing the two washing machine class actions to go forward have
"made these cases the latest whipping boys of corporate defense
lawyers and the U.S. Chamber of Commerce." She continued:
"Both have wildly cheered as over the past few years, the Supreme
Court, usually by a 5-4 vote of conservatives vs. liberals, has
made it harder and harder to bring a class action. As Yale law
professor Judith Resnik puts it,'The rule for class actions,
written in 1966, was designed to make it easier to get into court,
by banding small-value claims together. But the 2013 Supreme
Court is unraveling those bands, piece by piece.'"
"Defense lawyers and the Chamber of Commerce -- the group that is
the most successful, hands down, in getting the Supreme Court's
attention -- are pushing hard for the Supreme Court to hear the
moldy washing machine cases. 'The Sears case clearly has defense
lawyers rattled," Forbes writer Daniel Fisher wrote in May.
"They've mounted an aggressive public relations campaign to get
reporters like me to write about it.' Mr. Fisher did, along with
the Wall Street Journal editorial page . . . and the Washington
Times in multiple pieces."
"I guess the Chamber is only looking for a certain kind of pro-
business coverage, though: When I called and emailed its press
office over a couple of days, no one responded. Oh well."
"For all its consternation surrounding partisanship in the federal
judiciary, the WSJ seems strangely unconcerned with the pro-
business, conservative leanings of the Roberts Court,"
Ms. Hatcher-Mays said.
FORMULA BRANDS: Recalls Betty Crocker Cordless Electric Jug Kettle
------------------------------------------------------------------
Starting date: October 30, 2013
Posting date: October 30, 2013
Type of communication: Consumer Product Recall
Subcategory: Household Items, Appliances
Source of recall: Health Canada
Issue: Suspected quality concern
Audience: General Public
Identification number: RA-36467
Affected products: Betty Crocker Cordless 1.7 L Electric Jug
Kettle
The voluntary recall involves certain Betty Crocker Cordless
Electric Jug Kettles sold exclusively through Canadian Tire
stores. The only kettles affected by this recall are date code
marked with the number 2613 which is located on the base of each
kettle. Kettles that do not have this date code are not affected
by this recall.
The following models are included in the recall:
-- Model BC-1853C (White Colour) UPC 722007018535; and
-- Model BC-1853CB (Black Colour) UPC 722007118532;
A post production evaluation performed by the manufacturer has
revealed that the affected kettles may have a defect in the steam
switch that does not meet the Canadian Standards for electrical
product safety.
Neither Health Canada nor Formula Brands Inc. has received any
reports of incidents or injuries related to the use of the
recalled kettles.
Approximately 314 units of the affected kettles were sold at
Canadian Tire stores across Canada.
The affected kettles were manufactured in China and sold from the
week of September 4th, 2013 through the week of October 7th, 2013.
Companies:
Importer Formula Brands Inc.
Richmond Hill
Ontario
Canada
Consumers should stop using the recalled kettles immediately and
contact Formula Brands by telephone at 1-877-244-1110, or return
the product to a Canadian Tire store, for a full refund or
replacement kettle.
FRED DEELEY: Recalls 145 Harley-Davidson Motorcycles
----------------------------------------------------
Starting date: October 23, 2013
Starting date: October 23, 2013
Type of communication: Recall
Subcategory: Motorcycle
Notification type: Safety Mfr
System: Powertrain
Units affected: 145
Source of recall: Transport Canada
Identification number: 2013364
TC ID number: 2013364
Manufacturer recall
number: 0154
Affected products:
Maker Model Model year(s) affected
----- ----- ----------------------
HARLEY-DAVIDSON TRI-GLIDE ULTRA CLASSIC (FLHTCUTG) 2014
HARLEY-DAVIDSON CVO BREAKOUT (FXSBSE) 2014
HARLEY-DAVIDSON CVO SOFTAIL DELUXE (FLSTNSE) 2014
On certain motorcycles, the clutch may not disengage fully when
the clutch lever is depressed. This could result in the rider
experiencing difficulty slowing or stopping the motorcycle and
could increase the risk of a crash causing injury and/or damage to
property.
Dealers will replace the clutch plate.
FRED DEELEY: Recalls 1,583 Harley-Davidson Motorcycles
------------------------------------------------------
Starting date: October 23, 2013
Type of communication: Recall
Subcategory: Motorcycle
Notification type: Safety Mfr
System: Brakes
Units affected: 1583
Source of recall: Transport Canada
Identification number: 2013365
TC ID number: 2013365
Manufacturer recall
number: 0513
Affected products:
Maker Model Model year(s) affected
----- ----- ----------------------
HARLEY-DAVIDSON POLICE ELECTRA GLIDE (FLHTP) 2014
HARLEY-DAVIDSON STREET GLIDE (FLHX) 2014
HARLEY-DAVIDSON ELECTRA GLIDE ULTRA CLASSIC (FLHTCU) 2014
HARLEY-DAVIDSON ULTRA LIMITED (FLHTK) 2014
HARLEY-DAVIDSON STREET GLIDE SPECIAL (FLHXS) 2014
HARLEY-DAVIDSON CVO LIMITED (FLHTKSE) 2014
HARLEY-DAVIDSON CVO ROAD KING (FLHRSE) 2014
On certain motorcycles, the clutch may not disengage fully when
the clutch lever is depressed. This could result in the rider
experiencing difficulty slowing or stopping the motorcycle and
could increase the risk of a crash causing injury and/or damage to
property.
Dealers will rebuild the clutch master cylinder and replace the
clutch plate as required.
FREIGHTCAR AMERICA: Awaits Ruling on Bid to Dismiss "Zeng" Suit
---------------------------------------------------------------
FreightCar America, Inc., is awaiting a court decision on its
motion to dismiss a class action lawsuit pending in Pennsylvania,
according to the Company's August 9, 2013, Form 10-Q filing with
the U.S. Securities and Exchange Commission for the quarter ended
June 30, 2013.
On July 9, 2013, the United Steel, Paper & Forestry, Rubber,
Manufacturing, Energy, Allied Industrial & Services Workers
International Union, AFL-CIO, CLC (the "USW") and certain Retiree
Defendants filed a putative class action in the United States
District Court for the Western District of Pennsylvania (the
"Pennsylvania Court"), captioned as Zanghi, et al. v. FreightCar
America, Inc., et al., Case No. 3:13-cv-146. The complaint filed
with the Pennsylvania Court alleges that the Company does not have
the right to terminate welfare benefits previously provided to the
Retiree Defendants and requests, among other relief, entry of a
judgment finding that the Retiree Defendants have a vested right
to specified welfare benefits.
On July 26, 2013, the USW filed with the United States District
Court for the Northern District of Illinois, Eastern Division (the
"Illinois Court") a Motion to Dismiss Pursuant to Fed. R. Civ. P.
12(b) or in the Alternative, to Transfer Pursuant to 28 U.S.C.
1404(a), as well as a Motion to Stay and/or Prevent Plaintiff from
Obtaining Defaults against the Retiree Defendants. On August 5,
2013, the Company filed with the Pennsylvania Court a Motion to
Dismiss Pursuant to Fed. R. Civ. P. 12(b) or in the Alternative,
to Transfer Pursuant to 28 U.S.C. 1404(a). Both the Illinois
Court and the Pennsylvania Court have established briefing
schedules relating to the respective motions to dismiss and/or
transfer venue.
Chicago, Illinois-based FreightCar America, Inc., is a
manufacturer of aluminum-bodied railcars and coal cars. The
Company also refurbishes and rebuilds railcars and sells forged,
cast and fabricated parts for all of the railcars the Company
produces, as well as those manufactured by others. The Company
provides railcar repair and maintenance, inspections and railcar
fleet management services for all types of freight railcars
through its subsidiaries.
GLAXOSMITHKLINE: Federal Court Applies McDarby in Avandia Ruling
----------------------------------------------------------------
John J. Sullivan, Esq., at Dechert LLP reports that the plaintiff
in In re Avandia Marketing, Sales Practices and Prods. Liability
Litig., 2013 U.S. Dist. LEXIS 148641 (E.D. Pa. Oct. 15, 2013), was
suing over the drug Avandia. But he wasn't claiming personal
injuries. He was claiming economic loss and trying to bring a
class action. He alleged that he and others would have sought
other types of treatment for their diabetes if GSK had not
allegedly concealed Avandia's risks. This sure sounds like a
failure to warn claim. It replaces a personal injury with a
supposed economic loss.
Fortunately, the New Jersey Appellate Division has already dealt
with this in McDarby v. Merck, 949 A.2d 223 (N.J. App. Div.
May 29, 2008), which we posted about 5 years ago. There, one of
the plaintiffs lost his claim under New Jersey's Product Liability
Act (PLA) but nonetheless sought to use the New Jersey's Consumer
Fraud Act (CFA) and its damages provisions to triple his $45
dollars in co-pays for Vioxx into an award of $135 and accompany
that with an attorneys fee award exceeding $2 million. If this
were allowed, virtually every action properly brought under the
PLA could be usurped as a CFA claim with treble damages and
attorneys fee awards, neither of which is authorized by the PLA.
The Appellate Division saw this problem:
With these precepts in mind, we find no basis, in legislative
history, statutory language or Court decisions, to conclude that
plaintiffs can maintain separate causes of action under the PLA
and the CFA in this case. As Merck notes, to permit such an
expanded form of relief would be to destroy the balance
established between the interests of manufacturers, the public and
individuals established by the Legislature in enacting the PLA by
introducing an otherwise unavailable treble-damage remedy for
harms resulting from a failure to warn. Additionally, the
essential effect of recognition of a cause of action for the
fraudulent withholding of safety information such as that espoused
by plaintiffs pursuant to the CFA -- a cause of action that likely
would be available to most product liability plaintiffs claiming a
failure to warn -- would be to permit an award of attorneys fees
in the majority of product liability actions without Legislative
authorization for such relief. We find no warrant for such
action. Plaintiffs' verdicts based upon Merck's alleged violation
of the CFA are thus reversed, and the awards of attorneys' fees
and costs are vacated.
Accordingly, the Appellate Division held that the PLA subsumed the
CFA claims.
With this background, it's pretty clear what should happen to
plaintiff's CFA claim in the Avandia case. And it did happen.
Citing New Jersey Supreme Court and Appellate Division precedent,
the court dismissed the claim:
As the New Jersey Supreme Court has held, "[t]he language chosen
by the Legislature in enacting the PLA is both expansive and
inclusive, encompassing virtually all possible causes of action in
relating to harms caused by consumer and other products."13 New
Jersey courts have explicitly held that the PLA encompasses claims
such as those brought by Plaintiff (except for the express
warranty claim), although Plaintiff seeks to recover economic
losses, not compensation for a personal injury. "To allow
plaintiffs to seek damages for loss of their co-payments as a
result of purchasing defendants' drugs under a theory of consumer
fraud will create a cause of action entirely inconsistent with the
PLA's comprehensive legislative scheme."14 Thus, all of
Plaintiff's claims, with the exception of the express warranty
claim, can only be brought under the PLA, and Plaintiff does not
attempt to proceed under that statute. 15
13 Sinclair v. Merck & Co., 948 A.2d 587, 595 (N.J. 2008)
(citations omitted).
14 Bailey v. Wyeth, Inc., 37 A3d 549, 582 (N.J. Super. Ct. Law
Div. 2008) (internal quotation omitted), aff'd sub nom. DeBoard v.
Wyeth Inc., 28 A.3d 1245 (N.J. Super. Ct. App. Div. 2011), cert.
denied, 48 A.3d 355 (N.J. 2012).
15 Id. at 580.
2013 U.S. Dist. LEXIS 148641, at *5-6.
Plaintiff also brought an express warranty claim. And, while the
PLA explicitly leaves such claims alone, that didn't matter.
Plaintiff's complaint -- his third amended complaint -- fell
"significantly short of what is required" to be alleged under
TwIqbal. Id. at *7. So the court not only dismissed it. The
court dismissed it with prejudice.
When McDarby was decided, plaintiff was seeking to bring a CFA
claim alongside a PLA claim. That would have, in effect,
destroyed the notion of a uniform action for product liability
claims under the PLA. Instead, almost every product liability
claim -- certainly those involving a drug -- would've been
accompanied by a CFA claim with very different remedies from those
envisioned by the PLA. McDarby stopped that. This Avandia
decision stops the next step: turning those product liability
actions into class actions.
HEATHCO LLC: Recalls Motion-Activated Outdoor Lights
----------------------------------------------------
The U.S. Consumer Product Safety Commission, in cooperation with
HeathCo, LLC, of Bowling Green, Ky., announced a voluntary recall
of about 210,000 in the U.S. and 13,000 in Canada Motion-Activated
Outdoor Lights. Consumers should stop using this product unless
otherwise instructed. It is illegal to resell or attempt to
resell a recalled consumer product.
The internal fixture wiring can energize the entire surface and
fittings of the fixture, posing an electrical shock hazard.
No injuries were reported.
The recall includes multiple Heath/Zenith Motion Activated Outdoor
Lights used for porch lighting. The product comes in 21 designs
with a variety of finishes and is designed to turn on at night
when motion is detected. The product replaces a standard outdoor
wall-mounted light fixture. The brand name and model number can
be found on a label located on the back of the motion sensor for
wall-mounted models, or underneath the motion sensor cover for
ceiling-mounted models. These brand names with their model
numbers are recalled:
BRAND MODEL NUMBER
----- ------------
Portfolio PF-4129-AZ
Heath-Zenith SL-4129-AZ
Heath-Zenith SL-4148-RB4-A
Heath-Zenith SL-4148-RB-A
Heath-Zenith Secure Home SH-4169-BK
Heath-Zenith Secure Home SH-4169-SV
Heath-Zenith SL-4169-BK
Heath-Zenith SL-4169-SV
Heath-Zenith SL-4254-RS
Portfolio PF-4294-OR
Heath-Zenith Secure Home SH-4294-OR
Heath-Zenith SL-4294-OR
Heath-Zenith HZ-4305-BK
Heath-Zenith HZ-4305-WH
Heath-Zenith SL-4305-BK4-B
Heath-Zenith SL-4305-BK-B
Heath-Zenith SLV-4305-BK4-B
Heath-Zenith SLV-4305-WH4-B
Heath-Zenith SL-4350-AZ-B
Heath-Zenith SL-4350-BK
Heath-Zenith SL-4350-NB-B
Pictures of the recalled products are available at:
http://is.gd/Xlb6pZ
The recalled products were manufactured in China and sold at large
home improvement retailers, lighting, electrical and other retail
stores nationwide and online from December 2006 to July 2013 for
between $50 and $120.
Consumers should immediately stop using the lights and turn off
the power switch before removing the light from its mounting.
Contact the company for instructions on how to return the light
fixture and receive a free replacement.
HSBC BANK: S.D.N.Y. Court Dismisses Putative TILA Class Action
--------------------------------------------------------------
BuckleySandler LLP reports that on October 18, the United States
District Court for the Southern District of New York dismissed a
putative TILA class action alleging that a bank made improper
interest rate disclosures on credit card bills and assessed
incorrect late fees and interest. Schwartz v. HSBC Bank USA, N.A.,
No. 13-cv-00769, 2013 WL 5677059 (S.D.N.Y. Oct. 18, 2013). The
card holder asserted that despite his timely payments the bank
assessed him late fees and incorrectly disclosed the annual
interest rate and balances on his monthly statements. The court
first rejected the card holder's disclosure claim, characterizing
the alleged violations as "hypertechnical" disclosure defects that
did not provide a basis for plaintiff to recover. The court held
that, while the applicable TILA rule mandates the disclosure of
the applicable rate, the balance to which the rate applied, and
the nominal APR, the card holder did not properly allege how his
statements lacked or misstated any of these required disclosures.
The court also held that dismissal was warranted because the bank
had refunded the alleged improper late fees before plaintiff
commenced the lawsuit, and therefore plaintiff sustained no actual
damages.
JAYCO: Recalls 96 Travel Trailers Over Safety Issues
----------------------------------------------------
Starting date: October 22, 2013
Type of communication: Recall
Subcategory: Travel Trailer
Notification type: Safety Mfr
System: Electrical
Units affected: 96
Source of recall: Transport Canada
Identification number: 2013363
TC ID number: 2013363
Affected products:
Maker Model Model year(s) affected
----- ----- ----------------------
JAYCO JAY FLIGHT TRAVEL TRAILER 2014
JAYCO JAY FLIGHT SWIFT TRAVEL TRAILER 2014
On certain travel trailers, electrical connections for the water
heater 110V AC ignitor may have been made incorrectly and could
overheat. This could result in a fire causing injury and/or
damage to property.
Dealers will inspect and repair as necessary.
LAS VEGAS SANDS: Awaits Ruling on Bid to Dismiss Securities Suit
----------------------------------------------------------------
Las Vegas Sands Corp. is awaiting a court decision on its motion
to dismiss a consolidated securities class action lawsuit,
according to the Company's August 9, 2013, Form 10-Q filing with
the U.S. Securities and Exchange Commission for the quarter ended
June 30, 2013.
On May 24, 2010, Frank J. Fosbre, Jr. filed a purported class
action complaint in the United States District Court for the
District of Nevada (the "U.S. District Court"), against LVSC,
Sheldon G. Adelson, and William P. Weidner. The complaint alleged
that LVSC, through the individual defendants, disseminated or
approved materially false information, or failed to disclose
material facts, through press releases, investor conference calls
and other means from August 1, 2007, through November 6, 2008.
The complaint sought, among other relief, class certification,
compensatory damages and attorneys' fees and costs. On July 21,
2010, Wendell and Shirley Combs filed a purported class action
complaint in the U.S. District Court, against LVSC, Sheldon G.
Adelson, and William P. Weidner. The complaint alleged that LVSC,
through the individual defendants, disseminated or approved
materially false information, or failed to disclose material
facts, through press releases, investor conference calls and other
means from June 13, 2007, through November 11, 2008. The
complaint, which was substantially similar to the Fosbre complaint
sought, among other relief, class certification, compensatory
damages and attorneys' fees and costs. On August 31, 2010, the
U.S. District Court entered an order consolidating the Fosbre and
Combs cases, and appointed lead plaintiffs and lead counsel. As
such, the Fosbre and Combs cases are reported as one consolidated
matter.
On November 1, 2010, a purported class action amended complaint
was filed in the consolidated action against LVSC, Sheldon G.
Adelson and William P. Weidner. The amended complaint alleges
that LVSC, through the individual defendants, disseminated or
approved materially false and misleading information, or failed to
disclose material facts, through press releases, investor
conference calls and other means from August 2, 2007, through
November 6, 2008. The amended complaint seeks, among other
relief, class certification, compensatory damages and attorneys'
fees and costs. On January 10, 2011, the defendants filed a
motion to dismiss the amended complaint, which, on August 24,
2011, was granted in part, and denied in part, with the dismissal
of certain allegations. On November 7, 2011, the defendants filed
their answer to the allegations remaining in the amended
complaint. On July 11, 2012, the U.S. District Court issued an
order allowing Defendants' Motion for Partial Reconsideration of
the Court's Order dated August 24, 2011, striking additional
portions of the plaintiff's complaint and reducing the class
period to a period of February 4, to November 6, 2008. On
August 7, 2012, the plaintiff filed a purported class action
second amended complaint (the "Second Amended Complaint") seeking
to expand their allegations back to a time period of 2007 (having
previously been cut back to 2008 by the U.S. District Court)
essentially alleging very similar matters that had been previously
stricken by the U.S. District Court. On October 16, 2012, the
defendants filed a new motion to dismiss the Second Amended
Complaint. The plaintiffs responded to the motion to dismiss on
November 1, 2012, and defendants filed their reply on November 12,
2012. On November 20, 2012, the U.S. District Court granted a
stay of discovery under the Private Securities Litigation Reform
Act pending a decision on the new motion to dismiss and therefore,
the discovery process has been suspended.
On April 16, 2013, the case was reassigned to a new judge. On
July 30, 2013, the U.S. District Court heard the motion to dismiss
and took the matter under advisement. This consolidated action is
in a preliminary stage and management has determined that based on
proceedings to date, it is currently unable to determine the
probability of the outcome of this matter or the range of
reasonably possible loss, if any. The Company intends to defend
this matter vigorously.
Las Vegas Sands Corp. -- http://www.lasvegassands.com/-- was
incorporated as a Nevada corporation in August 2004 and is
headquartered in Las Vegas, Nevada. Las Vegas Sands is a Fortune
500 company and a global developer of destination properties
(integrated resorts) that feature premium accommodations, world-
class gaming, entertainment and retail, convention and exhibition
facilities, celebrity chef restaurants and other amenities. The
Company currently owns and operates integrated resorts in Asia and
the United States.
MAGNUM HUNTER: Continues to Defend Suits in New York and Texas
--------------------------------------------------------------
Magnum Hunter Resources Corporation continues to defend itself
against securities class action lawsuits pending in New York and
Texas, according to the Company's August 9, 2013, Form 10-Q filing
with the U.S. Securities and Exchange Commission for the quarter
ended June 30, 2013.
On April 23, 2013, Anthony Rosian, individually and on behalf of
all other persons similarly situated, filed a class action
complaint in the United States District Court, Southern District
of New York, against the Company and certain of its officers, two
of whom also serve as directors. On April 24, 2013, Horace
Carvalho, individually and on behalf of all other persons
similarly situated, filed a similar class action complaint in the
United States District Court, Southern District of Texas, against
the Company and certain of its officers, two of whom also serve as
directors. Several substantially similar putative class actions
have been filed in the Southern District of New York and in the
Southern District of Texas. All such cases are collectively
referred to as the Securities Cases. The complaints in the
Securities Cases allege that the Company made certain false or
misleading statements in its filings with the SEC, including
statements related to the Company's internal and financial
controls, the calculation of non-cash share-based compensation
expense, the late filing of the Company's 2012 Form 10-K, the
dismissal of Magnum Hunter's previous independent registered
accounting firm, and other matters identified in the Company's
April 16, 2013 Form 8-K, as amended. The complaints demand that
the defendants pay unspecified damages to the class action
plaintiffs, including damages allegedly caused by the decline in
the Company's stock price between February 22, 2013, and April 22,
2013. The Company and the individual defendants intend to
vigorously defend the Securities Cases. It is possible that
additional putative class action lawsuits could be filed over
these events.
Based in Houston, Texas, Magnum Hunter Resources Corporation --
http://www.magnumhunterresources.com/-- is an independent oil and
gas company engaged in the exploration for and the exploitation,
acquisition, development and production of crude oil, natural gas
and natural gas liquids resources in the United States and Canada.
The Company is also engaged in midstream and oil field services
operations, primarily in West Virginia, Ohio and Texas.
MICROSOFT CORP: Awaits Court Ruling on Antitrust Class Action
-------------------------------------------------------------
Julius Melnitzer, writing for Financial Post, The Supreme Court of
Canada was poised to determine the fate and scope of antitrust
class actions in Canada on Thursday, Oct. 31.
On Dec. 1, 2011, the court agreed to hear appeals from the British
Columbia Court of Appeal's twin decisions in Pro-Sys Consultants
Ltd. v. Microsoft Corporation and Sun-Rype Products Ltd. v. Archer
Daniels Midland Company. It later heard an appeal in Infineon
Technologies AG. c. Option Consommateurs together with the B.C.
cases. In Samsung, the Quebec Court of Appeal dealt with the same
issues as the B.C. courts but reached the opposite conclusion,
adopting the reasoning of the minority in the B.C. cases.
The core issue before the high court is whether indirect
purchasers -- those who bought the product after the initial
purchase from those involved in the anti-competitive conduct --
have a class action remedy under s. 36 of the Competition Act,
which allows for a private right of action to "any person" who has
suffered loss as a result of criminal misconduct under the
legislation. By a 2-1 majority in each case, the B.C. Court of
Appeal held that such class actions were not available to indirect
purchasers. The Quebec decision came down in favor of indirect
purchasers.
The key holding of the B.C. Court of Appeal was that indirect
purchasers have no remedy under s. 36 of the Competition Act,
which allows for a private right of action to "any person" who has
suffered loss as a result of criminal misconduct under the
legislation. The decisions adopt the longstanding position of the
U.S. Supreme Court as expressed in Illinois Brick Co. v. Illinois,
decided in 1977. But they seem inconsistent with the November
2010 decision of a different panel of the B.C. Court of Appeal in
Pro-Sys Consultants Ltd. v. Infineon Technologies AG and various
Ontario Superior Court decisions including the 2009 ruling in
Irving Paper Limited v. Atofina Chemicals Inc., all of which
certified actions that included indirect purchasers.
The British Columbia and Quebec cases centered around DRAM, a
semiconductor memory product found in most electronic devices.
All the defendants in the DRAM cases save one plead guilty to
charges under the U.S. Sherman Antitrust Act and received
substantial fines before the Canadian civil actions began.
Although there is an outstanding DRAM class action in Ontario, no
date has been set for the certification hearing.
Determining whether indirect purchasers should be allowed a right
of private action gives rise to significant policy considerations,
including the extent to which deterrence of unlawful conduct is at
the heart of the justification for the very existence of class
actions. Indeed, some experts are predicting that if the indirect
purchasers lose, legislative intervention could be a real
possibility.
While it is of course difficult to predict the outcome in the
Supreme Court, it may be noteworthy that the court denied leave to
appeal from the B.C. Court of Appeal's initial DRAM decision in
favor of indirect purchasers in Pro-Sys Consultants v. Infineon
Technologies.
NQ MOBILE: Rosen Law Firm Files Securities Fraud Class Action
-------------------------------------------------------------
The Rosen Law Firm, P.A. on Oct. 28 disclosed that it has filed a
class action lawsuit on behalf of investors of NQ Mobile, Inc.
(NYSE:NQ) who purchased NQ common stock, call options or sold put
options, during the period between May 5, 2011 and October 24,
2013, seeking to recover damages for violations of the federal
securities laws.
To join the NQ class action, visit the firm's website at
http://rosenlegal.comor call Phillip Kim, Esq. or Yu Shi, Esq.
toll-free, at 866-767-3653; you may also email pkim@rosenlegal.com
or yshi@rosenlegal.com for information on the class action. The
lawsuit filed by the firm is pending in the U.S. District Court
for the Southern District of New York.
NO CLASS HAS YET BEEN CERTIFIED IN THE ABOVE ACTION. UNTIL A
CLASS IS CERTIFIED, YOU ARE NOT REPRESENTED BY COUNSEL UNLESS YOU
RETAIN ONE. YOU MAY CHOOSE TO DO NOTHING AT THIS POINT AND REMAIN
AN ABSENT CLASS MEMBER.
The lawsuit asserts violations of the federal securities laws
against NQ, its officers and directors, and certain underwriters
for issuing false and misleading statements about the Company's
financial condition. On October 24, 2013, Muddy Waters Research
issued a report asserting that NQ has greatly exaggerated its true
financial performance. The report states, among others things,
that: at least 72% of NQ's purported China security revenue is
fictitious; NQ's largest customer is actually itself; and NQ's
actual market share in China is approximately 1.5% as opposed to
55% as the company claims. In addition, the report also questions
the veracity of NQ's cash balance, its reported international
revenue and its financial statements filed with the State
Administration for Industry & Commerce of the People's Republic of
China and the U.S. Securities and Exchange Commission.
If you wish to serve as lead plaintiff, you must move the Court no
later than December 27, 2013. A lead plaintiff is a
representative party acting on behalf of other class members in
directing the litigation. If you wish to join the litigation, or
to discuss your rights or interests regarding this class action,
please contact Phillip Kim, Esq. of The Rosen Law Firm, toll-free,
at 866-767-3653, or via e-mail at pkim@rosenlegal.com
You may also visit the firm's website at http://rosenlegal.com
The Rosen Law Firm represents investors throughout the globe,
concentrating its practice in securities class actions and
shareholder derivative litigation.
PHILIPS ELECTRONICS: Settles Wage Class Action for Nearly $1MM
--------------------------------------------------------------
Kurt Orzeck, writing for Law360, reports that more than 300
employees of Philips Electronics North America Corp. will receive
nearly $1 million after a California federal judge preliminarily
approved a settlement on Oct. 28 in a class action accusing the
company of denying them meal and rest breaks.
Under the terms of the settlement, Philips will pay $900,000 to
215 current and 100 former nonexempt workers in the company's LTI
operating division, which manufactures digital lamps used in movie
projectors. The class period extends between Mar. 1, 2009, and
Oct. 28, 2013.
Lead plaintiff Huey Nguyen alleged that Philips pressured
employees to work through their state-mandated 30-minute meal
breaks or forced them to forego the breaks altogether. Philips
continues to deny all the claims in the class action.
Nguyen initially sought $5 million but told the court earlier last
month that $900,000 was fair and reasonable. On Oct. 28, U.S.
District Judge John F. Walter agreed.
"Considering the strength of the allegations [and] the risk,
expense, complexity and likely duration of further litigation, the
stipulation of settlement is fair on its face and is suitable for
submission to the class members," the order said.
Nguyen sued in California state court in March, saying Philips
didn't allow the workers to take breaks they were owed under
California state laws because their production schedule required
them to make a certain number of lamps during each work shift.
The California Labor Code requires employers to provide nonexempt
employees with a first meal period after five hours of work and a
second meal period after 10 hours of work.
Nguyen alleged that the employees didn't get a second meal period
when they worked a shift lasting longer than 10 hours and didn't
know they were entitled to that meal break under state laws.
The class action also accused Philips of skimping on overtime pay
and not compensating employees, including Nguyen, who left the
company during the class period.
The case was removed to California federal court in April, and the
parties entered private mediation the following month. Earlier
last month, the parties told Judge Walker that they had struck an
agreement that both sides considered fair and reasonable.
The settlement amount received by each class member will be based
on the number of weeks they worked and were scheduled to work
during the class period, according to court filings.
Class counsel will receive $270,000 of the settlement amount,
while $25,000 will cover litigation costs and $1,875 will go to
the California Labor and Workforce Development Agency, court
papers said. Nguyen will receive $15,000.
In addition to approving the settlement on Oct. 28, Judge Walter
conditionally certified the class and appointed Nguyen as its
representative.
A final approval hearing is scheduled for Jan. 27.
An attorney for Nguyen declined comment on Oct. 29.
Attorneys for Philips didn't immediately respond to requests for
comment on Oct. 29.
Nguyen is represented by Richard E. Quintilone II of Quintilone &
Associates and John D. Trieu of the Law Offices of John D. Trieu.
Philips is represented by Robert A. Jones --
robert.jones@ogletreedeakins.com -- Carolyn B. Hall --
carolyn.hall@ogletreedeakins.com -- and Erica Rocush --
erica.rocush@ogletreedeakins.com -- of Ogletree Deakins Nash Smoak
& Stewart PC.
The case is Huey Nguyen v. Philips Electronics North America Corp.
et al., case number 2:13-cv-02427, in the U.S. District Court for
the Central District of California.
SAKUMA BROTHERS: Berry Pickers File Class Action Over Breaks
------------------------------------------------------------
Levi Pulkkinen, writing for Seattle Post-Intelligencer, reports
that a Sakuma Brothers Farms berry picker has sued his employer,
claiming he and others at the embattled Skagit County farm were
unfairly denied pay and breaks.
Filing a potential class action lawsuit, Sakuma employee Raul
Merino Paz contends he and hundreds of other seasonal berry
pickers weren't paid what they were owed for their work. The
claim also alleges workers were denied breaks required by state
law.
Sakuma Bros., a prominent farm in the Northwest Washington
agricultural community, saw a tumultuous summer during which
workers walked off the job several times in a protest related to a
pay dispute and claims of retaliation.
Workers returned to the fields in July after reaching an agreement
with management, only to strike again in September when the
company fired a leader in the workers' rights movement, according
to The Associated Press. Sakuma Bros. said the man was fired
after he was arrested on suspicion of assault. Organizers claimed
the firing was retaliation for the earlier labor actions.
Underlying much of the dispute were worker concerns about the
farm's participation in a federal guest worker program, which
allowed Sakuma Bros. to legally hire foreign nationals for the
harvest.
The farm brought in foreign workers for the first time this year,
prompting workers already in the U.S. to worry their jobs were
being undercut by the legal temporary workers. A Sakuma Bros.
spokesman said the prior two years saw the farm leave about
500,000 pounds of berries on the fields due to a shortage of
workers.
While Sakuma Bros. President Ryan Sakuma has been critical of the
guest worker program, he has asserted it was the only way for the
farm to secure enough workers for the harvest. According to the
farm, all workers were paid $12 an hour or more while visa holders
were on the Mount Vernon and Burlington fields.
"Our want is simple; to have a stable, legal, and cost effective
work force to harvest our crops," Ryan Sakuma said in a statement
earlier this year. "The requirements are clear and our analysis
over the past 10 years has concluded the seasonal labor pool is
shrinking.
"Immigration reform and having an executable guest worker program
could fix this problem."
Now, though, the fight in the fields appears poised to move into
federal court.
If attorneys for Mr. Merino are permitted to pursue the class
action, hundreds of Sakuma Bros. berry pickers could join the
claim against the farm.
Mr. Merino, a 26-year-old California resident, has been a seasonal
Sakuma employee since 2006. He's picked berries at the farm in
October and November each year, before returning to California.
Through his attorneys, Mr. Merino claims Sakuma Bros. failed to
pay him correctly for the berry picking he has done since
October 2010. Mr. Merino also claims he was denied breaks during
his shifts.
Writing the court, attorneys Toby Marshall and Daniel Ford said
Sakuma Bros. has been shorting workers for years in a "systematic
scheme of wage and hour violations" targeting workers in
Burlington and Mount Vernon.
According to the attorneys, Sakuma Bros. didn't keep accurate
records and failed to honor commitments made to workers. They
also claim Sakuma workers were denied breaks mandated by state
law.
Messrs. Marshall and Ford claim that all Sakuma Bros. seasonal
workers who've worked the harvest since October 2010 are due
payment for wages they were wrongly denied. They estimate at
least 400 workers were wronged, though Mr. Ford said that is a
conservative estimate.
Mr. Ford, an attorney with Columbia Legal Services in Seattle,
said the lawsuit is distinct from the strikes.
"This case is a separate legal action, although many workers also
have several other grievances against Sakuma," Mr. Ford said via
email.
A U.S. District Court judge will now be asked to decide whether
the lawsuit can go forward as a class action.
To do so, Mr. Merino's attorneys must show there are other
potential plaintiffs whose situations are similar enough to their
client's that they would be due compensation for the same reason.
Other workers could then join in the lawsuit and receive payment
through any judgment, if one is eventually ordered.
Attorneys for Sakuma Bros. have not yet responded to the lawsuit,
which was filed on Oct. 24 in U.S. District Court at Seattle. A
spokesman for the farm declined to discuss the claims in detail.
SETRA: Recalls 69 Various Model Buses Over Safety Concerns
----------------------------------------------------------
Starting date: October 30, 2013
Type of communication: Recall
Subcategory: Bus
Notification type: Safety Mfr
System: Electrical
Units affected: 69
Source of recall: Transport Canada
Identification number: 2013375
TC ID number: 2013375
Affected products:
Maker Model Model year(s) affected
----- ----- ----------------------
SETRA S417 2008, 2009, 2010, 2011, 2012
SETRA S 407 CC 2012
On certain coaches equipped with Sure Power battery equalizers
and/or convertors, the equalizer and/or convertor could develop an
internal short circuit, resulting in a risk of overheating, smoke
and/or fire. This may result in property damage and/or personal
injury.
Owners will be supplied with replacement parts and instructions on
how to affect repairs. Alternatively, the manufacturer may carry
out on-site repairs.
SOUTHERN TELECOM: Recalls A/C Adaptors for Internet Tablets
-----------------------------------------------------------
The U.S. Consumer Product Safety Commission, in cooperation with
Southern Telecom, Inc., of Brooklyn, NY, announced a voluntary
recall of about 21,000 A/C Adaptor (charger) included with
Polaroid PMID 709 Internet Tablets. Consumers should stop using
this product unless otherwise instructed. It is illegal to resell
or attempt to resell a recalled consumer product.
The adaptors can overheat, posing a fire hazard.
The firm has received approximately ten reports of the adaptor
overheating. No injuries or property damage have been reported.
The recalled adaptor, also commonly referred to as a charger, was
included with the Polaroid PMID709 seven inch Internet tablet
(also known as the PMID709KB). The adaptor has two prongs for
plugging into an outlet on one end and a wire leading to a single
plug for the tablet. A label on the bottom of the casing near the
plug prongs has "Polaroid Power Adaptor" printed on it with the
model number SX-30017-D.
Pictures of the recalled products are available at:
http://is.gd/vbfYEO
The recalled products were manufactured in China and sold
exclusively at Big Lots in July 2013 for $90 for the tablet and
adaptor.
Customers should immediately stop using the adaptor and contact
Southern Telecom for a replacement adaptor at no cost. Customers
will receive an envelope for returning the recalled product with
their replacement adaptor.
SPARK ENERGY: Court Dismisses TCPA Class Action Suit
----------------------------------------------------
In the case, TODD C BANK, Plaintiff, v. SPARK ENERGY HOLDINGS LLC,
SPARK ENERGY, LP, and SPARK ENERGY GAS, LP, Defendants, CIVIL
ACTION NO. 4:11-CV-4082, (S.D. Tex.), the Court considered (1)
Defendants Spark Energy Holdings, LLC, Spark Energy, L.P., and
Spark Energy Gas, LP's motion to dismiss under Federal Rule of
Civil Procedure 12(b)(1); and (2) Plaintiff Todd C. Bank's motion
for extension of time to move for class certification.
The case is an individual and putative class action filed under
Federal Rule of Civil Procedure 23(a) and (b) pursuant to the
Telephone Consumer Protection Act seeking statutory damages,
injunctive relief, attorney's fees, and costs.
District Judge Melinda Harmon concludes that the Fifth Circuit's
general rule -- a Rule 68 offer that satisfies the entirety of a
named plaintiff's claims, where no motion for certification has
been filed and no class has been certified, and where no
exceptions apply, even if the plaintiff rejects the offer both the
named plaintiff's claims and the class action become moot --
applies, that Spark Energy's offer of judgment moots his and the
putative class's claims, and that dismissal of this suit is
appropriate.
Accordingly, the Court granted Spark Energy's motion to dismiss
under Federal Rule of Civil Procedure 12(b)(1) as to the whole
action. Mr. Bank's motion for extension of time to move for class
certification is moot.
The Court directed Defendants Spark Energy Holdings, LLC, Spark
Energy, LP, and Spark Energy Gas, LP to provide the Court with a
proposed Final Judgment.
A copy of the District Court's October 18, 2013 Opinion and Order
of Dismissal is available at http://is.gd/AxYuR4from Leagle.com.
SPIRIT REALTY: Has MOU to Settle "Kendrick" Merger-Related Suit
---------------------------------------------------------------
Spirit Realty Capital, Inc., has entered into a memorandum of
understanding to settle a merger-related class action lawsuit,
according to the Company's August 9, 2013, Form 10-Q filing with
the U.S. Securities and Exchange Commission for the quarter ended
June 30, 2013.
Cole Credit Property Trust II, Inc. (the "Company") is a Maryland
corporation formed on September 29, 2004, that has elected to be
taxed, and currently qualifies, as a real estate investment trust
("REIT") for federal income tax purposes. On January 22, 2013,
the Company entered into an Agreement and Plan of Merger, as
amended by the First Amendment to Agreement and Plan of Merger,
dated as of May 8, 2013 (the "Merger Agreement") with Spirit
Realty Capital, Inc. ("Spirit"), a publicly-listed REIT. Pursuant
to the Merger Agreement, on July 17, 2013, Spirit merged with and
into the Company, (the "Merger"), at which time Spirit ceased to
exist, the Company continued as the surviving corporation and the
Company changed its name to Spirit Realty Capital, Inc. Pursuant
to the Merger, Spirit stockholders received 1.9048 shares of the
Company's common stock for each share of Spirit common stock they
owned (which equated to an inverse exchange ratio of 0.525 shares
of Spirit common stock for each share of the Company's common
stock). On July 18, 2013, the surviving corporation commenced
trading on the NYSE under Spirit's existing ticker "SRC."
Prior to the Merger, substantially all of the Company's business
was conducted through Cole Operating Partnership II, LP ("Cole OP
II"), a Delaware limited partnership. The Company was the sole
general partner of and owned a 99.99% partnership interest in Cole
OP II.
In connection with the Company's Merger with Spirit, a putative
class action and derivative lawsuit was filed on March 5, 2013, in
the Circuit Court for Baltimore City, Maryland against and
purportedly on behalf of Spirit captioned Kendrick, et al. v.
Spirit Realty Capital, Inc., et al. The complaint was amended on
April 26, 2013, and names as defendants Spirit, the members of the
board of directors of Spirit, Spirit Realty, L.P., a Delaware
limited partnership (the "Spirit Partnership"), the Company and
Cole OP II, and alleges that the directors of Spirit breached
their fiduciary duties by engaging in an unfair process leading to
the Merger Agreement, failing to disclose sufficient material
information for Spirit stockholders to make an informed decision
regarding whether or not to approve the Merger, agreeing to
consummation of the Merger at an opportunistic and unfair price,
allowing draconian and preclusive deal protection devices in the
Merger Agreement, retaining a self-interested and conflicted
financial advisor, and by engaging in self-interested and
otherwise conflicted actions. The complaint alleges that the
Company, Cole OP II and the Spirit Partnership aided and abetted
those breaches of fiduciary duty. The complaint seeks a
declaration that defendants have breached their fiduciary duties
or aided and abetted such breaches and that the Merger Agreement
is unenforceable, an order enjoining a vote on the transactions
contemplated by the Merger Agreement, rescission of the
transactions in the event they are consummated, imposition of a
constructive trust, an award of fees and costs, including
attorneys' and experts' fees and costs, and other relief.
On June 4, 2013, solely to avoid the costs, risks and
uncertainties inherent in litigation, the Company and the other
named defendants in the merger litigation signed a memorandum of
understanding ("MOU") regarding a proposed settlement of all
claims asserted therein. The MOU provides, among other things,
that the parties will seek to enter into a stipulation of
settlement which provides for the release and dismissal of all
asserted claims. The asserted claims will not be released and
dismissed until such stipulation of settlement is approved by the
court. There can be no assurance that the parties will ultimately
enter into a stipulation of settlement or that the court will
approve such settlement even if the parties were to enter into
such stipulation.
Headquartered in Phoenix, Arizona, Spirit Realty Capital, Inc.,
formerly known as Cole Credit Property Trust II, Inc., was formed
on September 29, 2004, to acquire and operate commercial real
estate primarily consisting of freestanding, single-tenant, retail
properties net leased to investment grade and other creditworthy
tenants located throughout the United States. Prior to a merger
on July 17, 2013, the Company had no paid employees and was
externally advised and managed by its advisor, Cole REIT Advisors
II, LLC. The Company currently qualifies as a real estate
investment trust for federal income tax purposes.
SUZUKI MOTOR: Recalls 13,112 Motorcycles Over Brake Problems
------------------------------------------------------------
Starting date: October 18, 2013
Type of communication: Recall
Subcategory: Motorcycle
Notification type: Safety Mfr
System: Brakes
Units affected: 13112
Source of recall: Transport Canada
Identification number: 2013360
TC ID number: 2013360
Manufacturer recall
number: 99
Affected products:
Maker Model Model year(s) affected
----- ----- ----------------------
SUZUKI GSX-R600 2004, 2005, 2006, 2007, 2008, 2009,
2010, 2011, 2012, 2013
SUZUKI GSX-R750 2004, 2005, 2006, 2007, 2008, 2009,
2010, 2011, 2012, 2013
SUZUKI GSX-R1000 2005, 2006, 2007, 2008, 2009, 2010,
2011, 2012, 2013
On certain motorcycles, corrosion could form inside the front
brake master cylinder, which could cause a spongy brake feel.
This could potentially lead to extended stopping distances,
increasing the risk of a crash causing injury and/or damage to
property.
Dealers will install a redesigned front brake master cylinder.
SWEDISH MEDICAL: Faces Class Action Over ER Overcharges
-------------------------------------------------------
Jane Mundy, writing for LawyersandSettlements.com, reports that
attorney Barry Kramer has filed a class-action claim on behalf of
uninsured people who were overcharged emergency room (ER) fees by
the Swedish Medical Center. "We have filed a class action in the
state of Washington. The class has been certified and individuals
affected by ER overcharges will soon receive notice," says
Mr. Kramer.
Mr. Kramer says that the litigation seeks to get refunds and
outstanding account balances reduced for class members, i.e.,
people who were uninsured and billed outrageous emergency room
charges. There has also been a recent favorable ruling on a
similar class action in the general court of justice in the state
of North Carolina, and there have also been other similar actions
filed in South Carolina, Rhode Island, Pennsylvania and various
other states as well. Basically, the class actions allege that
uninsured emergency care patients are the victims of hospital
overcharging.
How can emergency room patients be held hostage by a hospital?
Mr. Kramer explains that the problem stems from hospitals having
patients sign an agreement, typically when they arrive at the
emergency room under some sort of medical duress, which says
nothing about the patient's costs for treatment.
"An emergency room patient is typically given a consent agreement
of some type which they are required to sign," Mr. Kramer says.
"This agreement not only provides consent for treatment, but
typically contains a vague financial liability provision stating
that the patient is responsible for the hospital's charges. The
problem is that the patients don't see any list of these charges,
and for the most part they are given no information whatsoever
regarding charges or the fact that they will be charged far more
than other patients for the same treatment. Nor does the patient
have the ability to get pricing information or even find out what
the charges will be based upon. In other words, the patient has
no way of knowing or predicting that they will get a ridiculous
and outrageous bill after discharge."
For the uninsured, emergency room charges can run anywhere from
three to 10 times more than the amount billed to other groups of
patients. "These excessive charges are based on an artificially
inflated pricing schedule that is literally not paid by anyone,"
adds Kramer.
Hospitals like to point out that many uninsured people don't pay
anything on their bill, which often occurs because many patients,
including those who may be homeless or in dire poverty, show up in
ER as uninsured patients. But ER patients who have some assets or
a good job can become caught in a system that is blatantly unfair,
and emergency charges can end up ruining their credit rating and
sometimes even their lives.
"Nobody finds out the cost of their ER visit until sometime after
their discharge, when they get the bill in the mail," says
Mr. Kramer. "The problem is compounded because the government
requires the ER to treat everyone regardless of their financial
condition, but doesn't require hospitals to explain their pricing
methods, or let uninsured patients know they will be subject to
rates that virtually nobody pays. Furthermore, a program that was
established in order to help the uninsured by guaranteeing the
availability to obtain emergency care fails to control the amounts
that hospitals charge to uninsured patients.
"The hospital, in turn, uses these outrageous billed amounts as a
basis to demand higher reimbursement rates from government health
plans (i.e., Medicare and Medicaid) and insurance companies. The
uninsured patient is like a pawn in this corrupt system; stuck in
a vicious cycle revolving around doctors, the hospital and
insurance companies."
Mr. Kramer explains that medical teams are afraid to forgo a test
or treatment lest they wind up with a medical malpractice lawsuit.
And insurance companies' rates have spiraled out of control
because of emergency room overcharges. No wonder so many patients
cannot afford health insurance coverage. And another grave issue:
If patients have already been hit with emergency room overcharges,
they might be reluctant to seek medical help again.
The average hospital stay in the developed world costs $6,222. In
the US, the average hospital stay (five days) costs $18,142. That
extra $12,000 isn't because of extra care or expensive technology:
it is simply because American hospitals charge more than the rest
of the world. And emergency room charges for uninsured patients
are vastly higher still.
"Those of us with health insurance are also paying a hidden and
growing tax for those without it -- about $1,000 per year that
pays for somebody else's emergency room and charitable care," said
President Obama in 2009, making a case for his healthcare law.
TARGET CORP: Recalls Children's Sitting Stools Due to Fall Hazard
-----------------------------------------------------------------
The U.S. Consumer Product Safety Commission, in cooperation with
Target Corporation, of Minneapolis, Minn., announced a voluntary
recall of about 69,000 Circo-brand Chloe and Conner Sitting
Stools. Consumers should stop using this product unless otherwise
instructed. It is illegal to resell or attempt to resell a
recalled consumer product.
The stabilizing bar can crack and cause the stool to collapse,
posing a fall hazard to the user.
Target has received seven reports of the stools breaking or
collapsing and causing a child to fall. In five of the reported
incidents, bumps, bruises and cuts were reported.
The recall involves children's sitting stool, sold as part of the
Circo-brand Chloe & Conner Collection. Assembled stools measure
11 inches tall by 11 inches wide by 11 inches deep. The painted
wood stools were sold in red, white, navy and pink. Item numbers
249200218 (red), 249200207 (white), 249200217 (navy), 249200208
(pink) are printed on a sticker on the underside of the stools.
Pictures of the recalled products are available at:
http://is.gd/SIPrQr
The recalled products were manufactured in China and sold
exclusively at Target stores nationwide from April 2012 through
June 2013 for about $15.
Consumers should immediately stop using the stool and return it to
a Target store for a full refund.
TAYLOR FARMS: Recalls Additional 22,849 Pounds of Products
----------------------------------------------------------
Taylor Farms Maryland, Inc. in Jessup, Md. and Taylor Farms Texas
Inc. in Dallas are recalling approximately 22,849 pounds of
broccoli salad kit products due to concerns about possible
Listeria monocytogenes contamination in the salad dressing, the
U.S. Department of Agriculture's Food Safety and Inspection
Service (FSIS) announced. The salad dressing in the packets is
the subject of a Food and Drug Administration (FDA) recall (see
items DRSG. BROCCOLI RESER 18/18z).
The salad kits were shipped to distributors and retail locations
(delis) for consumer purchase in Maryland, Massachusetts, New
Jersey, New York, Pennsylvania, Texas and Virginia. The company
is recalling these products in addition to the 5,084 pounds of
similar products that were recalled on Oct. 25, 2013.
The products listed are being recalled as part of this expansion:
-- 6.06-lb. boxes labeled "TAYLOR FARMS BROCCOLI CRUNCH WITH
BACON AND DRESSING" with the case code 310151, produced on
Oct. 14 through Oct. 24, 2013.
-- 12.13-lb. boxes labeled "TAYLOR FARMS BROCCOLI CRUNCH WITH
BACON AND DRESSING" with the case code 310153, produced
Oct. 14 through Oct. 24, 2013.
-- 6.33-lb boxes labeled "Kit, Broc PPC" with case code
5900067, produced Oct. 15 through Oct. 20, 2013.
Case labels bear the establishment number "EST. 34522" or "EST.
34733" inside the USDA mark of inspection. Retail consumers and
the general public will not typically see the boxes and labels,
because the product is typically unboxed by retailers (such as
deli counters and restaurants) and the kit used to make salads for
retail sale. The boxes and labels would be more likely to be seen
by distributors and retailers.
Taylor Farms informed FSIS that salad dressing subject to an FDA
recall was contained in the salad kits produced on the dates
listed above. FSIS, FDA and the company have received no reports
of illnesses associated with consumption of these products.
Anyone concerned about an illness should contact a healthcare
provider.
Consumption of food contaminated with L. monocytogenes can cause
listeriosis, a serious infection that primarily affects older
adults, persons with weakened immune systems, and pregnant women
and their newborns. Less commonly, persons outside these risk
groups are affected.
Listeriosis can cause fever, muscle aches, headache, stiff neck,
confusion, loss of balance and convulsions sometimes preceded by
diarrhea or other gastrointestinal symptoms. An invasive
infection spreads beyond the gastrointestinal tract. In pregnant
women, the infection can cause miscarriages, stillbirths,
premature delivery or life-threatening infection of the newborn.
In addition, serious and sometimes fatal infections in older
adults and persons with weakened immune systems. Listeriosis is
treated with antibiotics. Persons in the higher-risk categories
who experience flu-like symptoms within two months after eating
contaminated food should seek medical care and tell the health
care provider about eating the contaminated food.
FSIS routinely conducts recall effectiveness checks to verify
recalling firms notify their customers of the recall and that
steps are taken to make certain that the product is no longer
available to consumers. When available, the retail distribution
list(s) will be posted on the FSIS website at
www.fsis.usda.gov/recalls.
Media and consumers with questions regarding the recall should
contact Taylor Farms Customer Services at 866-508-7048 between the
hours of 9-5 Pacific Time.
Consumers with food safety questions can "Ask Karen," the FSIS
virtual representative available 24 hours a day at AskKaren.gov.
The toll-free USDA Meat and Poultry Hotline 1-888-MPHotline
(1-888-674-6854) is available in English and Spanish and can be
reached from l0 a.m. to 4 p.m. (Eastern Time) Monday through
Friday. Recorded food safety messages are available 24 hours a
day. The online Electronic Consumer Complaint Monitoring System
can be accessed 24 hours a day at:
http://www.fsis.usda.gov/reportproblem
TREASURY WINE: Rayner Faces Pressure to Sell Business After Suit
----------------------------------------------------------------
Adele Ferguson, writing for BusinessDay, reports that a week after
managing to get voted back in as chairman of Treasury Wine
Estates, Paul Rayner will faced renewed pressure to sell its
value-destroying US wine business after a multimillion-dollar
class action casts a pall over the company.
The action, which alleges Treasury Wines misled the market and
breached continuous disclosure obligations in relation to a shock
AUD160 million write-down in the US in July, puts the spotlight on
how much value has been lost from the wine company in the past few
months.
Since the company hit a high of AUD6.43 in May it has fallen more
than 30% to close on Oct. 28 at AUD4.49 a share. This is against
a backdrop of the overall market rising 4% over a similar period.
What makes it worse is the board dumped the chief executive David
Dearie without an adequate explanation and plucked someone from
the board to fill the void until a replacement was found. It also
replaced the CFO, Mark Fleming, in July with former CFO Tony
Reeves. There has also been a revolving door at Penfolds with the
head of it leaving earlier this year.
This is unsatisfactory as a key role of the board is to have a
succession plan in place. The interim CEO Warwick Every-Burns
most recently worked at the Clorox Company in the United States
but has no experience in the alcohol business or more specifically
the US wine business, which comprises almost 40% of the Treasury
Wines business, chews up the bulk of management's time and
contributes less than 5% of its earnings.
Not to put too fine a point on it the US wine business has been an
albatross around the company's neck for more than a decade. When
Treasury Wines was part of the Foster's Group empire the wine
business was seen as a poison pill. Once it decided to hive off
its wine business into a separate entity, Treasury Wines, it was
tantamount to putting up a "for sale" sign for its beer business.
As a separately listed entity, Treasury Wines needs to take a leaf
out of the Foster's book and sell the US business, a move that
will likely put a "for sale" sign for its Australian business.
Merrill Lynch analyst David Errington has been leading the chorus
of investors who want the US asset sold. Mr. Errington estimates
the US business could fetch up to $1 billion and remove a big
headache.
The class action compiled by Maurice Blackburn and litigation
funder IMF alleges: "Treasury Wines failed to disclose material
information concerning the ongoing performance of its US
operations; and made misleading statements in relation to its
expected financial performance for the financial years ending 30
June 2013 and 30 June 2014, predominantly arising from issues
encountered by its US operations."
To put it into perspective, Treasury Wines, and before it Foster's
Group, booked a total of AUD414 million in provisions to address
excess US inventory built up by its distributors in June 2004,
August 2008 and February 2009. It didn't go down well with
shareholders but they were told the problems had been addressed
with a new improved system to report inventory in the US.
Then on July 15, 2013, investors were told that the problem had
not gone away but was back with a vengeance, requiring a AUD160
million provision, including up to AUD35 million to buy back and
pour down the sink "aged and obsolete inventory" held by its US
distributor partners.
At the annual meeting Rayner stated the provisions "emanated from
a poor understanding of stock levels in US distributors". He said
the company was now getting better information on inventory
levels.
If Maurice Blackburn and IMF get enough shareholders to join the
class action and lodge a statement of claim they will undoubtedly
allege that Treasury Wines didn't properly monitor the US
inventory levels and because of this it shouldn't have made
representations to the market from August 2012 that there was no
risk of a write-down in the value of Treasury Wine's inventory.
If the class action encourages the board to extricate itself from
the value-destroying US business and focus on the Australian
business, it will add value to shareholders. As Mr. Errington
says in a note, 90% of Treasury Wine's current earnings are
sourced from its Australian wine assets.
Financial Risk
James Atkinson, writing for The Shout, reports that the financial
risk to Treasury Wine Estates (TWE) from the class action
announced on Oct. 28 is very low if TWE has insurance against such
proceedings, CIMB analyst Daniel Broeren has advised.
TWE on Oct. 28 announced to the ASX that no proceedings had been
served against the company at this time.
"TWE strongly denies any allegations of wrong doing and will
defend any class action proceedings vigorously," the company said.
But in a note to investors, CIMB's Mr. Broeren said litigation
funder IMF has a very strong historical win-rate, so it is
reasonable to assume they have a strong case against TWE.
"Following recent cases funded by IMF, they typically target firms
that have insurance in place for such issues," he said.
"Their approach is that insurance companies are usually pragmatic
and would rather settle (if there is any any risk at all) than go
to court. While I am yet to confirm that TWE has the relevant
insurance, if IMF's track record is anything to go by, it is
reasonable to assume it to be the case," Mr. Broeren said.
He said TWE is in a reasonable position to defend the claim that
the board must have already known about the inventory issue when
it set FY13 guidance in August 2012.
Mr. Broeren said the board will be able to highlight that -- given
the bulk of wine written down was 'commercial' and therefore only
aged one to two years -- a large proportion of it was still in-
tank in August 2012 or of saleable age.
"Overall, whether defendable or not, the financial risk to TWE is
likely to be low (assuming they have insurance), however this is
not something you need when trying to attract a new CEO," he said.
TWE has confirmed it is fully insured for a class action lawsuit
such as the one proposed.
TRITAP FOOD: Recalls Tiffany Strawberry Banana Sandwich Cookies
---------------------------------------------------------------
Starting date: October 29, 2013
Type of communication: Recall
Alert sub-type: Food Recall Warning (Allergen)
Subcategory: Allergen - Milk
Hazard classification: Class 1
Source of recall: Canadian Food Inspection Agency
Recalling firm: Tritap Food Brokers
Distribution: Alberta, British Columbia, Ontario, May
be National
Extent of the product
distribution: Retail
Affected products: 240 g Tiffany Strawberry Banana Sandwich
Cookies with P.D.: 09/2012 E.D.: 03/2014 and UPC 0 56191 51058 3
Tritap Food Brokers is recalling Tiffany brand Strawberry Banana
Sandwich Cookies from the marketplace because they contain milk
which is not declared on the label. People with an allergy to
milk should not consume the recalled product described below.
The following product, Product of Turkey, has been distributed in
Alberta, British Columbia and Ontario; however, it may have been
distributed in other provinces and territories. Pictures of the
recalled products are available at: http://is.gd/DbLKG0
If you have an allergy to milk, do not consume the recalled
product as it may cause a serious or life-threatening reaction.
TRUMP UNIVERSITY: Faces Class Action Over Deceptive Conduct
-----------------------------------------------------------
Jessica M. Karmasek, writing for Legal Newsline, reports that
business magnate Donald Trump is facing another lawsuit against
him and his Trump University. The newest lawsuit, filed in the
U.S. District Court for the Southern District of California last
month, accuses Mr. Trump of operating a racket.
The plaintiff, Art Cohen, is a California businessman. According
to his Oct. 18 complaint, he learned about Trump University in
2009 through a newspaper ad and received by mail a "special
invitation" to the school from Trump, including two VIP tickets to
a free seminar.
Mr. Cohen, who admits to being lured by Mr. Trump's name and
reputation, said he ending up spending more than $35,000,
regrettably, in programs through the school. He said he would not
have paid for the programs if he had known he wouldn't have access
to Mr. Trump's real estate investing secrets, that Mr. Trump had
"no meaningful role" in selecting the instructors and that Trump
University was not a "university."
"Trump did not fulfill the promises he made to student-victims
around the country -- he did not teach students his coveted real
estate investing 'secrets' at the Live Events, he did not
contribute in any meaningful way to the curriculum for the Live
Events, and he did not handpick the Live Event seminar instructors
and mentors who 'taught' student-victims at three-day Live Events
and Elite mentorship programs -- both of which were upsells from
the free introductory Live Event called the 'Preview,'" Mr. Cohen
wrote in his 34-page complaint.
Mr. Cohen seeks to represent other buyers of the programs in a
class-action lawsuit against Mr. Trump, according to his
complaint. He seeks damages and equitable relief on behalf of
himself and the class, including, but not limited to, treble their
monetary damages, restitution, injunctive relief, punitive
damages, costs and expenses, including attorneys' fees.
In August, New York Attorney General Eric Schneiderman filed a
lawsuit against Trump and the Trump Entrepreneur Institute,
formerly known as Trump University LLC, for allegedly engaging in
deceptive and illegal conduct.
The school, the attorney general alleges, operated as an
unlicensed educational institute between 2005 and 2011.
Similar to Mr. Cohen's lawsuit, Mr. Schneiderman contends the
school promised to teach Mr. Trump's real estate investing
techniques to consumers around the U.S. but allegedly misled
consumers into paying for expensive courses that failed to
deliver. And like Mr. Cohen's suit, Mr. Schneiderman alleges that
Trump did not hand-pick even one instructor for the seminars and
had little to no role in developing the school's curriculum.
The school also used the name Trump University without the
necessary charter under state law to call itself a university, the
attorney general claims.
"More than 5,000 people across the country who paid Donald Trump
$40 million to teach them his hard sell tactics got a hard lesson
in bait-and-switch," Mr. Schneiderman said in a statement in
August.
"Mr. Trump used his celebrity status and personally appeared in
commercials making false promises to convince people to spend tens
of thousands of dollars they couldn't afford for lessons they
never got.
"No one, no matter how rich or popular they are, has a right to
scam hardworking New Yorkers. Anyone who does should expect to be
held accountable."
According to the Attorney General's Office, the defendants
allegedly used three-day seminars to pitch consumers an expensive
Trump Elite mentorship program costing between $10,000 and
$35,000.
Many consumers who paid for the elite mentorship program allegedly
did not receive the individual mentor attention that was promised,
according to Mr. Schneiderman's lawsuit.
The defendants also violated federal consumer protection law by
failing to honor consumers' requests to cancel the programs within
three business days, the attorney general alleges.
Mr. Schneiderman's lawsuit seeks full restitution for the more
than 5,000 consumers who took part in the program who paid more
than $40 million in total to the school. The lawsuit also seeks
disgorgement of profits, penalties and costs and injunctive relief
to prevent the allegedly illegal practices in the future.
According to Mr. Cohen's lawsuit, nearly a dozen state attorneys
general and the U.S. Department of Justice have received
"numerous" complaints about Mr. Trump's institution.
Mr. Trump has brushed off the legal wranglings, claiming
Schneiderman, in particular, is a "political hack" and is just
looking for publicity.
UNIVERSITY OF CALIFORNIA: Court of Appeals Limits CMIA Liability
----------------------------------------------------------------
Steven Boranian. Esq. -- sboranian@reedsmith.com -- and
Joseph M. Marger, Esq. -- jmarger@reedsmith.com -- at Reed Smith
report that a panel of the Court of Appeal limited the private
right of action under the California Confidentiality of Medical
Information Act, Civil Code Sec. 56 et seq. ("CMIA"), holding that
alleging negligent maintenance and loss of possession of
confidential information is insufficient to state a cause of
action.
In the putative class action, Regents of the University of
California v. Superior Court, an encrypted hard drive containing
confidential patient information was stolen in a home invasion
robbery. The plaintiff alleged that the hospital had negligently
maintained information in violation of the CMIA, but did not
allege that there was any unauthorized access or viewing of her
confidential information.
The court held that plaintiff had failed to state a claim, ruling
that there is a private right of action for negligent maintenance,
"only when such negligence results in unauthorized or wrongful
access to the information." As the plaintiff did not allege such
unauthorized access, she could not state a claim.
Because of the availability of administrative penalties,
violations of the CMIA carry potentially significant costs. This
ruling is significant as it will possibly limit the exposure for
"every provider of health care, health care service plan,
pharmaceutical company, or contractor" who has lost confidential
patient information, such as by having a laptop or hard drive
accidentally lost or stolen.
VIRGINIA: Judge Hears Arguments on Same-Sex Marriage Ban Suit
-------------------------------------------------------------
The Associated Press reports that a federal judge heard arguments
on Oct. 29 on whether to certify as a class action a lawsuit
challenging Virginia's same-sex marriage ban.
U.S. District Judge Michael Urbanski also heard motions to dismiss
Gov. Bob McDonnell and Staunton Circuit Court Clerk Thomas E.
Roberts as defendants. The other defendant is Janet Rainey, the
state registrar of vital records.
According to court records, Judge Urbanski did not immediately
rule on the motions. Aisha Michel of the ACLU of Virginia, which
is representing the plaintiffs along with Lambda Legal, said the
judge did not say when he would issue an opinion. Judge Urbanski
also canceled a Jan. 3 hearing on other issues that would have
provided the first arguments on the merits of the case, saying he
would reschedule it if necessary.
Two couples form the Shenandoah Valley, Joanne Harris and Jessica
Duff of Staunton and Christy Berghoff and Victoria Kidd of
Winchester, filed the lawsuit Aug. 1. They claim Virginia's
constitutional amendment prohibiting gay marriage and denying
recognition of such unions sanctioned by other states violates the
equal protection and due process clauses of the Constitution.
The plaintiffs say in the lawsuit that they are seeking to
represent all same-sex couples in Virginia who want to get married
or have already married in other jurisdictions. About three dozen
states do not allow same-sex marriage, and Virginia is one of 29
states that have put the ban in their constitutions.
Earlier in the summer, the U.S. Supreme Court struck down a
provision of the federal Defense of Marriage Act that denied
federal benefits to married gay couples. The justices also left
intact a lower court ruling overturning California's gay marriage
ban. That decision was based on a legal technicality and did not
address the law's constitutionality.
Virginia voters approved the same-sex marriage ban 57% to 43% in
2006.
Brian Gottstein, a spokesman for Attorney General Ken Cuccinelli,
has said the office does not comment on pending litigation.
However, after the Supreme Court rulings in June, he said the
office "will continue to defend challenges to the constitution and
the laws of Virginia."
The ACLU has said its goal is to legalize gay marriage in at least
20 states by the end of 2016.
The lawsuit in Harrisonburg is the second one seeking to overturn
Virginia's ban. A Norfolk couple filed a lawsuit in federal court
in July.
WEBMD HEALTH: No Appeal Filed Over Dismissal of Securities Suit
---------------------------------------------------------------
WebMD Health Corp. disclosed in its August 9, 2013, Form 10-Q
filing with the U.S. Securities and Exchange Commission for the
quarter ended June 30, 2013, that no appeal has been taken with
respect to the dismiss of the case titled In re WebMD Health Corp.
Securities Litigation.
Six shareholder lawsuits, including two class action lawsuits,
were filed in federal and state court in New York. The lawsuits
relate to certain forward-looking information made publicly
available by the Company.
In August 2011, two federal securities class action complaints
were filed in the United States District Court for the Southern
District of New York. The two cases were consolidated under the
caption In re WebMD Health Corp. Securities Litigation. A
consolidated amended complaint (the "Complaint") was filed,
purporting to allege claims under the Securities Exchange Act of
1934 against the Company and certain of its officers on behalf of
purchasers of the Company's securities between February 23, 2011,
and January 10, 2012. The defendants moved to dismiss the
Complaint. In an Opinion and Order dated January 2, 2013, the
Court dismissed all of the claims asserted in the Complaint. The
Opinion and Order was entered as a final judgment on April 9,
2013, and no appeal has been taken.
WebMD Health Corp. -- http://www.WebMD.com/-- is a Delaware
corporation based in New York. The Company is a provider of
health information services to consumers, physicians and other
healthcare professionals, employers and health plans through its
public and private online portals, mobile platforms and health-
focused publications.
WPX ENERGY: Gets More Time to Reply to Abraham's Class Cert. Bid
----------------------------------------------------------------
STEVEN J. ABRAHAM, and H LIMITED PARTNERSHIP on behalf of
themselves and others similarly situated, Plaintiffs, v. WPX
ENERGY PRODUCTION, LLC, f/k/a WILLIAMS PRODUCTION COMPANY, LLC,
WILLIAMS FOUR CORNERS, LLC, and WILLIAMS ENERGY RESOURCES, LLC,
Defendants, NO. CIV 12-0917 JB/ACT, (D. N.M.), arises from alleged
royalty underpayments related to oil and gas leases in the San
Juan Basin in New Mexico and Colorado.
The matter is before the Court on the Defendants' Motion for an
Extension of Deadline to Respond to Plaintiffs' Motion for Class
Certification, filed January 28, 2013.
District Judge James O. Browning said he will grant the Motion for
Extension, allow discovery related to the Motion for Class
Certification, permit supplemental briefing, and later hear the
Motion for Class Certification.
The Plaintiffs have agreed to delay the class certification issue
until they can discuss the possibility of consolidating the case
with The Anderson Living Trust v. WPX Energy Prod., LLC, No. CIV
12-0040 JB/KBM (D.N.M. filed December 5, 2011, removed January 12,
2012). They said the case is similar to Anderson, which also
arises from disputes over alleged unpaid royalty payments. The
Plaintiffs in Anderson "each own a non-cost bearing interest in
the revenues derived from the production and sale of hydrocarbons
pursuant to the terms of oil and gas leases owned or partially
owned by Williams."
A copy of the District Court's October 21, 2013 Memorandum Opinion
is available at http://is.gd/fuatHbfrom Leagle.com.
Attorneys for the Plaintiffs:
Jake Eugene Gallegos, Esq.
Michael J. Condon, Esq.
GALLEGOS LAW FIRM, P.C.,
460 St Michaels Dr.
Santa Fe, NM 87505
United States
Tel: (505) 983-6686
Attorneys for the Defendants are Bradford C. Berge --
bberge@hollandhart.com -- Robert J. Sutphin --
rsutphin@hollandhart.com -- Elisa C. Dimas --
ecdimas@hollandhart.com -- Holland & Hart LLP, Santa Fe, New
Mexico, and:
Sarah Gillett, Esq.
Hall Estill Hardwick, P.C.,
320 South Boston Avenue, Suite 200
Tulsa, OK 74103 -3706
Tel: (918) 594-0439
Fax: (918) 594-0505
YELP: Unpaid Reviewers Launch Class Action
------------------------------------------
Mike Masnick, writing for Techdirt, reports that a class action
lawsuit has been launched by a small group of Yelp reviewers,
trying to make the (laughable and ridiculous) case that reviewers
on the site are actually unpaid employees who are now demanding
compensation. It appears that they're hoping the recent success
of a few lawsuits involving "unpaid internships" will now carry
over to user-generated content sites as well. To put it mildly,
this is incredibly stupid.
Nothing about the relationship of a Yelp reviewer to the company
is anything like an employment situation (or even an intern
situation). They aren't "hired." They don't have
responsibilities or jobs that they have to do. They volunteer to
share some reviews because they want to do so. Everyone has their
own motivations for why, but the idea that it's some sort of
unpaid employment situation is ludicrous. The entire argument
seems to hinge on the idea that Yelp gets value out of their
reviews. Well, duh. But that doesn't make it an employment
situation at all. The lawsuit is also littered with out of
context snipes at Yelp for other aspects of its business which
have absolutely nothing to do with the legal questions in play.
Part of the argument, believe it or not, is that Yelp "instructed"
these "unpaid employees" to do more work . . . because it had
policies associated with its various gamification mechanisms to
encourage them to write more. For example, Yelp has long had a
"Yelp Elite" status, but if you're not contributing lots of
reviews, you can lose that status. But, again, all of that is
voluntary and is no different than tons of sites with
gamification/badges for activity. To argue that constitutes an
employment relationship is simply laughable.
It appears that at least some of the plaintiffs are pissed off
because, at some point, Yelp cancelled their accounts based on
"flimsy explanations." But, that seems to work against their own
arguments. If these folks were really so "exploited" by Yelp, and
"forced" to write for no money . . . then, um, why are they so
upset that they "lost" that "job"? The best the lawsuit can offer
up (and I'm not joking) is that the "cult-like rewards and
disciplines" associated with the gamification drove people to
continue to "work" for free.
Once again, this seems like the sort of class action lawsuit that
gives class action lawyers a bad name. Find a company that is
making a lot of money and come up with some absolutely ridiculous
reason for suing. Even in the ridiculously unlikely chance that
this lawsuit goes anywhere, the only ones who will benefit are the
class action lawyers.
*********
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