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/raid1/www/Hosts/bankrupt/CAR_Public/131119.mbx C L A S S A C T I O N R E P O R T E R Tuesday, November 19, 2013, Vol. 15, No. 229 Headlines ACCESS GROUP: Faces "Berg" Suit Alleging Breach of Contract ACT INC: Sells Students' Info and Social Security Nos., Suit Says ALL PLUMBING: Entitled to Indemnification in FDS Class Action ALLSCRIPTS HEALTHCARE: Faces Employee Suit Over Unpaid OT Wages ALTERNA HOLDINGS: Faces Suit Over Caviar Anti-Aging Shampoo BARNETT OUTDOORS: Faces Suit Over Crossbow Design Defects BAYER HEALTHCARE: Adverse Event Reports Filed With FDA Over Essure BAYER HEALTHCARE: Pa. Woman Sues Over Mirena Implant Injuries BIMBO BAKERIES: Fails to Pay Prevailing Minimum Wages, Suit Says BIOMET INC: Stevensons & Koskie Minsky Launch Class Action BLACKBERRY LTD: Pomerantz Law Firm Files Class Action in N.Y. BLUE CROSS: Obtains Unfavorable Ruling in ERISA Class Action BP PLC: Settlement Modifications Set to Be Presented on Dec. 2 BRYAN CHEVROLET: Faces Suit Over Power Steering Defect C&S WHOLESALE: Awarded Monetary Sanctions in "Bicek" Suit CAMDEN COUNTY, NJ: Sued by Law Enforcement Officers Over OT Wages CAROLINA STATE PLASTERING: Attorneys Probed in Stucco Suit CELTIC TIGER: Class Seeks Unpaid OT and Spread-of-Hours Wages COMMONWEALTH BANK: Unhappy Banking Asks CEO on Indemnity Issue DISTRICT OF COLUMBIA: Court Okays Consent Order Modification EBAY INC: Has Initial Approval of $95,000 Deal in Suit Over Fees ERGO BABY: Accused of Falsely Advertising Baby Carrier Product GALLUP INC: Violates Telephone Consumer Protection Act, Suit Says GARDEN-FRESH FOODS: Halts Production Following Product Recalls GENERAL NUTRITION: Judge Tosses Class Action Over Meal Bars GEORGIA PACIFIC: Disputes Carpenter's Asbestos-Mesothelioma Suit GIANT EAGLE: Recalls Two Products Over Health Concerns GOOGLE INC: Halt Sales of New Chrombook 11 on Overheating Issue HONG YEE INC: Sued by Busboys, Others Over Unpaid Overtime Fees JM MANUFACTURING: AG Hails Jury Verdict in Defective Pipe Suit JOHNSON & JOHNSON: 11 Pelvic Mesh Actions Remanded to N.J. Court KIDS WISH: Accused of Distributing Fraction of Donations Received L'OREAL: Class Action Settlement Fails to Get Final Approval LASALLE COUNTY, IL: Sheriff Faces Class Action Over Strip-Search LENNOX AIR: Faces Class Action Over Defective Air Conditioners LENOVO US: Suit Challenges Alleged Deceptive Notebook Marketing MA LABORATORIES: Court Tosses Bid to Amend "Lou" Class Action MEDICIS PHARMACEUTICAL: Seeks Consolidation of 12 Class Suits NATIONAL COLLEGIATE: Must Face "Keller" Claims Over Image Rights NEW HAMPSHIRE INSURANCE: Judge Dismisses Subrogation Class Action NEW ZEALAND: Homeowners Mull Group Action v. Earthquake Commission NOEL'S PAINTING: Class Seeks to Recover Unpaid Overtime Wages NQ MOBILE: Exaggerates Performance, China Market Share, Suit Says NQ MOBILE: Glancy Binkow & Goldberg Files Class Action in N.Y. OIL STATES: Accused of Not Correctly Paying Oil Field Workers' OT OPERATING ENGINEERS UNION: Called Hotbed of Corruption by Members ORRIOS CONSTRUCTIONS: Fails to Pay Regular & OT Wages, Suit Says PHILIP MORRIS: Marlboro Lights Suit Gets Class Action Status PILOT FLYING J: Settlement Fairness Hearing Deadline Looms PREMIER BEVERAGE: Did Not Pay All Overtime Hours, Suit Claims PRETIUM RESOURCES: Holzer Holzer & Fistel Files Class Action SECURITAS SECURITY: Mislabels Annual Bonus Program, Suit Claims SYMMETRICOM INC: Being Sold to Microsemi Too Cheaply, Suit Says TESLA MOTORS: Pomerantz Law Firm Files Class Action in California US HEALTH DEP'T: Sued by Christian Employers Over Abortion Drugs WACHOVIA BANK: Faces Nationwide Residential Mortgage Loans Suit WELLS FARGO: Plaintiff Appealed Dismissal of "Singleton" Suit WHIRLPOOL CORP: Attorneys Dismiss Class Action Over Cancer Cluster * House Votes to Tighten Asbestos Claim Disclosure Requirements * Italy Introduces Class Action Law After Legislative Process ********* ACCESS GROUP: Faces "Berg" Suit Alleging Breach of Contract ----------------------------------------------------------- Tamara Berg, individually and on behalf of all others similarly situated v. Access Group, Inc., PNC Financial Services Group, Inc. and Kentucky Higher Education Student Loan Corporation, Case No. 2:13-cv-05980-RBS (E.D. Pa., October 11, 2013) asserts claim for breach of contract. By breaching the Loan Contracts entered into by the Plaintiff and the other loan contracts entered into by Class members, the Defendants caused the Plaintiff and Class Members to receive less money than they bargained for in their respective contracts, or to repay or be charged more money, including principal and capitalized interest, than they were required to pay or rightfully be charged under the contracts, Ms. Berg alleges. She adds that the Defendants mislead the Class Members into believing that the loans were in fact guaranteed and that the charged guarantee payments were sent to third-party guarantors. Access Group is a Delaware nonprofit corporation headquartered in West Chester, Pennsylvania. The Company provided graduate and professional students education financing through 2008. PNC Financial Services Group, Inc. operates as a diversified financial services company in the United States and internationally. In addition to traditional banking services, PNC offers lending products, like secured and unsecured loans and letters of credit. Kentucky Higher Education Student Loan Corporation is an independent de jure municipal corporation and political subdivision of the Commonwealth of Kentucky that provides education loans for students and parents. KHESLC is located in Louisville, Kentucky. The Plaintiff is represented by: Richard M. Golomb, Esq. Ruben Honik, Esq. Kenneth J. Grunfeld, Esq. GOLOMB & HONIK, PC 1515 Market Street, Suite 1100 Philadelphia, PA 19102 Telephone: (215) 985-9177 E-mail: rgolomb@golombhonik.com rhonik@golombhonik.com kgrunfeld@golombhonik.com - and - Allen Carney, Esq. Randall K. Pulliam, Esq. CARNEY BATES & PULLIAM, PLLC 11311 Arcade Drive, Suite 200 Little Rock, Arkansas 72212 Telephone: (501) 312-8500 E-mail: acarney@cbplaw.com rpulliam@cpblaw.com ACT INC: Sells Students' Info and Social Security Nos., Suit Says ----------------------------------------------------------------- Jack Bouboushian at Courthouse News Service reports that ACT and The College Board sell high school students' personal information, including Social Security numbers, to third parties at 33 cents a head, a class action claims in Illinois Federal Court. Lead plaintiff Rachel Specter sued ACT Inc. and The College Board, the company behind the SAT and Advanced Placement tests. ACT and The College Board administer the ACT and SAT tests to more than 1.6 million high school students each year, the complaint states. For college-bound students, taking the ACT or SAT is not optional, the complaint states. "In the regular course of their business, defendants obtain and possess a consumer's PII [personally identifiable information], such as their name, home address, self-reported grade point averages, educational background, interests, date of birth, test scores, Social Security number, phone number, etc.," Specter says in the lawsuit. "The defendants deceived the plaintiff and the class by masking the sale of the plaintiff and class' PII under the guise of 'sharing,' i.e., the defendants ask whether the plaintiff and class (who at the time were under the age of majority) would like their PII 'shared' with other outside agencies. In reality, the defendants 'sell' the plaintiff's and class' PII for substantial profit -- on information and belief approximately $.33 per student, per buyer -- to hundreds if not thousands of 'buyers' per year who purchase the plaintiff's and class' PII from the defendants. In some instances, the defendants sell the PII to organizations whose purpose it is to re-sell the lists to additional third parties." The ACT requires a student to affirmatively opt out of the sharing program, while the SAT's opt-in approach allegedly induces minor students to allow their information to be shared with third parties. "The fact that SAT sells the plaintiff's and class' information to third parties for monetary gain is at no time disclosed to the plaintiff or class," Specter claims. She concludes: "The PII of the plaintiff and class is of the sort that both the United States Congress and the Illinois State Legislature have sought fit to protect and secure from disclosure, let alone sale for monetary gain. The defendants engaged in said conduct for purposes of circumventing these laws with one goal in mind: profit." Specter seeks class damages of more than $5 million for breach of contract, misappropriation of confidential information, unjust enrichment, and violation of the Illinois Consumer Fraud & Deceptive Business Practices Act. The Plaintiff is represented by: Larry D. Drury, Esq. LARRY D. DRURY, LTD. 100 N. LaSalle St., Suite 1010 Chicago, IL 60602 Telephone: (312) 346-7950 E-mail: ldrurylaw@aol.com - and - Robert Aaron Langendorf, Esq. ROBERT A. LANGENDORF AND ASSOCIATES 134 North LaSalle Street, Suite 1515 Chicago, IL 60602 Telephone: (312) 782-5933 E-mail: rlangendorf@comcast.net The case is Specter v. ACT, Inc., et al., Case No. 1:13-cv-07701, in the United States District Court for the Northern District of Illinois. ALL PLUMBING: Entitled to Indemnification in FDS Class Action ------------------------------------------------------------- THE CINCINNATI INSURANCE COMPANY, Plaintiff, v. ALL PLUMBING, INC. SERVICE, PARTS INSTALLATION, et al., Defendants, CIVIL ACTION NO. 12-851 (CKK), (D.D.C.) seeks a declaratory judgment that the Plaintiff owes no duty to defend or indemnify All Plumbing and Shafik in connection with a class action lawsuit filed by FDS Restaurants against All Plumbing and Shafik in the Superior Court for the District of Columbia. Presently before the Court are the Defendant's and the Plaintiff's Cross-Motions for Summary Judgment. District Judge Colleen Kollar-Kotelly granted the Defendant's motion and denied the Plaintiff's motion for Summary Judgment. The Court concluded that Cincinnati Insurance failed to properly reserve its rights upon assuming the defense of All Plumbing and Shafik and is, thus, now precluded from disclaiming coverage of any judgment in FDS' action against All Plumbing and Shafik. A copy of the District Court's October 18, 2013 Memorandum Opinion is available at http://is.gd/VZZd7ffrom Leagle.com. ALLSCRIPTS HEALTHCARE: Faces Employee Suit Over Unpaid OT Wages --------------------------------------------------------------- Bryan Lombardozzi, Individually and On behalf of all other similarly situated persons v. Allscripts Healthcare, LLC, Case No. 5:13-cv-00715-BO (E.D.N.C., October 14, 2013) accuses the Defendant of requiring the Plaintiff and other similarly situated employees to work more than 40 hours a week, but it has not paid them overtime wages for all the hours they worked over 40 in a week. Allscripts Healthcare, LLC, is a North Carolina domestic limited liability company headquartered in Chicago Illinois. The Plaintiff is represented by: Jesse Rose, Esq. PHILLIPS & ASSOCIATES, ATTORNEYS AT LAW, PLLC 45 Broadway, Suite 620 New York, NY 10006 Telephone: (212) 248-7431 Facsimile: (917) 831-4595 E-mail: JRose@TPGlaws.com - and - Robert O. Crawford, III, Esq. CRAWFORD & CRAWFORD, LLP 6500 Creedmoor Road, Suite 104 Raleigh, NC 27613 Telephone: (919) 510-8140 Facsimile: (919) 785-4152 E-mail: bcrawford@crawfordlaw.biz ALTERNA HOLDINGS: Faces Suit Over Caviar Anti-Aging Shampoo ----------------------------------------------------------- Ann Kenney, individually and on behalf of all others similarly situated v. Alterna Holdings Corp., a Delaware corporation; and Does 1-100, inclusive, Case No. BC525820 (Cal. Super. Ct., Los Angeles Cty., October 28, 2013) alleges that the Defendants made false claims that its "Alterna Caviar Anti-Aging Shampoo" can "combat aging" of hair. Alterna is a Delaware corporation headquartered in Wilmington. Alterna offers the Product for sale through various channels, including the Internet and a variety of retailers, beauty supply stores, drugstores, and the like, throughout the nation. The true names and capacities of the Doe Defendants are presently unknown to the Plaintiff. The Plaintiff is represented by: Paul D. Stevens, Esq. MILSTEIN ADELMAN, LLP 2800 Donald Douglas Loop North Santa Monica, CA 90405 Telephone: (310) 396-9600 Facsimile: (310) 396-9635 E-mail: info@milsteinadelman.com BARNETT OUTDOORS: Faces Suit Over Crossbow Design Defects --------------------------------------------------------- Steve Horrell, writing for The Edwardsville Intelligencer, reports that four crossbow hunters, who each suffered a severe injury to his thumb on separate hunting trips, claim that the bow's manufacturer was negligent for overlooking serious design defects in the weapons. The hunters are represented by Jason D. Johnson, an attorney with HeplerBroom LLC, of Edwardsville. He filed a nine-count suit on Oct. 30 in Madison County Circuit Court, against Barnett Outdoors; Rural King Holding Co.; Cabela's Inc.; and Dunham's Athleisure Corp. Barnett began making and selling crossbows about 30 years ago and has sold more than a million to date. Mr. Johnson claims that Barnett was aware that users could be injured if their thumb or finger got in the path of the string but chose not to include a thumb guard or other inexpensive design elements. The suit also claims that to the extent that Barnett had any warnings in its owner's manual, "those warnings were ineffective because the Barnett crossbows were designed such that a user could very easily and accidentally place their fingers or thumb into the path of the string." Furthermore, the bows were designed to be fired while the user is looking down range through a scope, which draws the user's attention to the target, not the user's front hand, according to the suit. One of the plaintiffs, Joseph Ciechanowski, of Etowah, Tenn., was injured Nov. 5, 2012 while deer hunting in Michigan. He claims that as he was firing, the bow string violently struck and cut into his left thumb, "causing a fracture to the bone in his left thumb and an avulsion of his thumb nail," according to the suit. David Dougherty injured his thumb in a hunting accident in his home state of New Jersey. His injury was nearly identical to Mr. Ciechanowski's. A third plaintiff, Don Buonamici was injured in a hunting accident in his home state of Ohio. Robert Long, of Pontiac, Ill., was injured while hunting in Illinois. The suit seeks in excess of $50,000 on nine counts, including product liability, consumer fraud, breach of warranty, and willful and wanton conduct. BAYER HEALTHCARE: Adverse Event Reports Filed With FDA Over Essure ------------------------------------------------------------------ 10News.com reports that since 2004, almost 850 women and doctors have filed Adverse Event Reports with the Food and Drug Administration (FDA) about Essure birth control. They detail extreme symptoms -- from women experiencing excess bleeding, rashes and bloating to women who were forced to have their reproductive organs removed. Now, Team 10 learned of a new Adverse Event Report filed with the FDA just weeks ago regarding Essure. It details a woman's death after she was admitted to the hospital for abdominal pain. She had the Essure coils implanted this year, but it has not been determined what caused her death. 'The Latest and Greatest' San Diego mother Shelly Towndrow chose to get the Essure birth control device because she said her doctor made it seem so easy. "I was just ready to get off birth control and wanted a non- hormonal form of birth control," said Ms. Towndrow. Amanda Holt of Phoenix saw a lot of positives when she decided to get Essure as a permanent form of birth control. "I have three children. I work at lightning speed. And when someone told me that I can go in and get this procedure done and then go back to work that afternoon or the next morning, I'm like, 'Absolutely! Sign me up!'" she said. They say they were told that Essure would be cheaper, faster and less invasive than getting their tubes tied. During the Essure procedure, small metal coils are implanted inside the fallopian tubes to block conception. But now, after years of painful side-effects, many women like Ms. Towndrow say Essure has turned into a nightmare. Thousands of women like them have taken to social media. There are private and public Facebook groups dedicated to issues with Essure where thousands of women are sharing their experiences. The posts show woman after woman, many with the exact same symptoms, telling nightmare scenarios after getting the Essure coils implanted. Most of the comments and photos detail side effects from an allergy to nickel, which is a component of the coils. Originally, women were advised to test for that allergy before getting Essure, but the manufacturer asked the FDA to remove that requirement a few years ago. Women in the Facebook group describe extreme bloating, skin rashes and headaches. X-rays show the coils perforated the fallopian tubes of some women. And there are photos of broken coils after they were removed. When the FDA approved Essure in 2002, it gave the device preemption status. That means a women who is injured by it can't sue the manufacturer. A Death Reported In an Adverse Event Report filed with the FDA on September 19, 2013, a physician describes a patient who had the Essure coils implanted this year going to the "emergency room with abdominal pain." There, a different doctor "performed a pelvic exam [and] found the patient's cervix, fallopian tubes and uterus were necrotic." The report goes on to describe the patient as testing positive for a type of strep infection. Then, the "patient went into renal failure . . . and patient passed away," the report said. The doctor "believes the cause of death was related to necrotizing group a streptococcus infection (streptococcal toxic shock syndrome)," the report said. The FDA was contacted for a comment on this story, but they did not provide a response. Bayer, the current manufacturer of Essure, provided this statement: Although we do not comment on individual adverse events, we do take all adverse events seriously, and they are reported to the US FDA as required. This is also a Manufacturer Narrative on the Adverse Event Report. It states, "The medical opinion of the attending physician was that the cause of death was not directly related to the essure inserts or procedure." Bayer would not elaborate on this explanation or confirm that they provided it to the FDA. You can see the full report on http://www.accessdata.fda.gov The company that developed Essure, Conceptus, conducted the clinical trials and asked the FDA to remove the nickel allergy testing advisory. Bayer Healthcare bought Conceptus last June. Bayer provided the following statement in response to the original investigation: At Bayer, we care about patients and take the safety of our products very seriously. We are saddened to hear of any serious health condition affecting a patient using one of our products, irrespective of the cause. Essure was approved by the FDA in 2002, and has a well-documented benefit-risk profile, with over 400 peer-reviewed publications and abstracts supporting Essure's safety, efficacy and cost-effectiveness. Approximately 750,000 women worldwide rely upon the Essure procedure for permanent birth control. A recent practice bulletin issued by the American College of Obstetricians and Gynecologists (ACOG) has recognized that hysteroscopic tubal occlusion for sterilization has high efficacy and low procedure-related risk, cost, and resource requirements. All Essure studies that are either planned or active are listed on ClinicalTrials.gov. Bayer is developing the next generation Essure and is in the process of planning the clinical trial program. Per your question regarding the nickel warning, I want to note that the use of a nickel titanium alloy in Essure remains as a warning in the product label. It can be found on page 1 of the Essure Information For Use insert in the Warnings section. The language is pasted below: From Warnings Section: The Essure micro-insert includes nickel-titanium alloy, which is generally considered safe. However, in vitro testing has demonstrated that nickel is released from this device. Patients who are allergic to nickel may have an allergic reaction to this device, especially those with a history of metal allergies. In addition, some patients may develop an allergy to nickel if this device is implanted. Typical allergy symptoms reported for this device include rash, pruritus, and hives. In regards to the classification of Essure, the US Food and Drug Administration, not the manufacturer, classifies medical devices based on the level of control necessary to assure the safety and effectiveness of the device. Devices are classified into one of three categories: Class I, Class II, and Class III. Class III devices are subject to the highest level of regulatory control. For Class III devices, such as Essure, a premarket approval (PMA) application is required by the FDA before they are marketed. Through the scientific and regulatory review of the PMA application, the safety and effectiveness of Class III medical devices is evaluated by the FDA. No form of birth control is without risk or should be considered appropriate for every woman. It is important that women discuss the risks and benefits of any birth control option with their physicians. BAYER HEALTHCARE: Pa. Woman Sues Over Mirena Implant Injuries ------------------------------------------------------------- Jon Campisi, writing for The Pennsylvania Record, reports that a western Pennsylvania woman is suing the makers of the Mirena birth gavel control system over allegations that she sustained injuries as a result of having the product implanted inside of her body. Sherry Broadwater, who lives in Uniontown, Pa., which is about 50 miles southeast of Pittsburgh, filed suit in the Western District of Pennsylvania against Bayer Healthcare Pharmaceuticals over injuries she claims to have suffered in the spring of 2011. The plaintiff was inserted with the Mirena intrauterine system in early 2010, the complaint states. Having tolerated the procedure well, the 29-year-old woman had no reason to suspect that the device would perforate her uterus and/or migrate throughout her body, the lawsuit says. But that's exactly what ended up occurring, according to the complaint. After the medical procedure, Broadwater began experiencing recurrent episodes of severe abdominal discomfort, headaches, diarrhea, nausea, severe mood swings and generalized feelings of fever and sickness, according to the products liability complaint. The plaintiff didn't learn that the device had moved from its spot until she went to her doctor to request that the Mirena be taken out because she had received a positive pregnancy test. At the time, doctors believed that the device had been "expulsed," since it was unable to be located during the time of the plaintiff's examination, the lawsuit states. In late 2011, an abdominal X-ray revealed that the birth control system had perforated the woman's uterus, migrated to another part of the body, and had to be surgically removed. "Although Plaintiff followed all instructions accompanying Mirena and used the product as directed, after implant of Mirena Plaintiff suffered serious and life-threatening side effects and injuries, including but not limited to extreme lower torso pain, medical therapy, surgical removal of Mirena and hospitalization, continuing treatment, and medical monitoring," the complaint states. The plaintiff also claims she has suffered from permanent bodily impairment, mental anguish and a diminished enjoyment of life as a result of her ordeal. Broadwater seeks an unspecified amount of compensatory and punitive damages, costs, attorney's fees, and other relief. In her complaint, Broadwater's lawyer, Monte J. Rabner, wrote that while he was filing the case in Pittsburgh, he believes the matter is appropriate for inclusion in the multidistrict Mirena products liability litigation that has been consolidated in the Southern District of New York. Mirena, an intrauterine birth control system, was first approved by the FDA for use in the United States in December 2000, according to the complaint. Today, more than two million women use the birth control method in the U.S. and more than 15 million women have used the product worldwide. The Mirena label doesn't warn about spontaneous migration of the birth control system, but only states that migration may occur if the uterus is perforated during the procedure to insert the device, the lawsuit states. The product's warning label also describes perforation as an "uncommon" event, despite the fact that there have been numerous women who have suffered migration and perforation after the insertion procedure, "clearly demonstrating this assertion to be false," the complaint reads. The lawsuit contains counts of defective manufacturing, design defect, negligence, failure to warn, strict liability, breach of warranty, negligent misrepresentation, fraudulent misrepresentation, fraudulent concealment, and unjust enrichment. The federal case number is 2:13-cv-01583-MRH. BIMBO BAKERIES: Fails to Pay Prevailing Minimum Wages, Suit Says ---------------------------------------------------------------- For at least four years prior to the filing of his class action lawsuit on October 28, 2013, and through the present, Rene H. Sanchez asserts that the Defendant has had a consistent policy of failing to pay at least prevailing minimum wages to him and other similarly situated non-exempt employees as a result of improper uneven rounding practices of time worked and being required to make bank deposits after hours. Bimbo Bakeries USA, Inc., a Delaware corporation, is a manufacturer and supplier of baked goods, with offices located in Los Angeles County, in California. The true names and capacities of the Doe Defendants are currently unknown to the Plaintiff. The Plaintiff is represented by: Michael Nourmand, Esq. James A. De Sario, Esq. THE NOURMAND LAW FIRM, APC 1801 Century Park East, Suite 2600 Los Angeles, CA 90067 Telephone: (310) 553-3600 Facsimile: (310)553-3603 The case is Rene H. Sanchez v. Bimbo Bakeries USA Inc., et al., Case No. BC525826, in the California Superior Court for Los Angeles County. BIOMET INC: Stevensons & Koskie Minsky Launch Class Action ---------------------------------------------------------- The law firms Stevenson LLP, Koskie Minsky LLP, and Klein Lyons on Nov. 5 disclosed that they have launched a class action against Biomet, Inc. and related entities regarding Biomet's metal-on- metal hip implant systems, including the M2a Magnum, the M2a 38, and the ReCap Femoral Resurfacing System. The lawsuit alleges that Biomet, Inc. and related entities were negligent in the research, design, manufacture, regulatory licensing, sale and post-market monitoring of their metal-on-metal hip implants, and that people implanted with the products in Canada suffered personal injuries when their hip implants failed. A metal-on-metal hip implant is one in which both the ball and socket of the product are made of metal. The Biomet implants were aggressively marketed by the defendants as having advantages over other hip replacement or resurfacing systems, as suitable, safe, effective, durable, minimally invasive hip replacements, as high performance, long-lasting systems, as contributing to a better quality of life and as being particularly suited for young, active patients, women and patients of smaller stature. The lawsuit alleges that the Biomet metal-on-metal hip implants were designed and manufactured improperly and should not have been sold in Canada. In particular, the Biomet metal-on-metal implants cause metal debris to be released into the surrounding tissue and other complications. The heavy metals released can be toxic, and may cause, among other things, tissue necrosis, metallosis, pseudotumours, bone dislocation and failure of the hip joint. Shortly after the Biomet implants were approved for sale in Canada, there were increasing reports of premature failures with these devices. Despite serious and numerous reports of failure of the Biomet implants, no warning was provided to Canadian patients of the significant risk of failure of the Biomet implants and Biomet continues to market and distribute the Biomet metal-on-metal implants in Canada, despite unacceptably high early revision rates and other problems. James Newland, Esq., of Stevensons LLP, Jonathan Ptak, Esq., of Koskie Minsky LLP) and Doug Lennox (of Klein Lyons) are lead counsel in this proposed class action. Canadians who have experienced adverse events from Biomet hip implants are encouraged to visit http://www.kmlaw.ca/biometclassactionemail biometclassaction@kmlaw.ca or call 1-855-595-2629. Stevensons LLP, based in Toronto, is a boutique litigation firm with expertise in complex commercial litigation, personal injury and medical malpractice, class actions, appeals, estates, employment, administrative and public interest law. Koskie Minsky LLP, based in Toronto, is one of Canada's foremost class action, labor, employment and litigation firms. Its class actions group has been a leader in class actions since 1992 and has prosecuted many of the leading cases in the area. Klein Lyons, based in Vancouver and Toronto, is a class actions firm with significant expertise in defective drugs and medical devices class actions. BLACKBERRY LTD: Pomerantz Law Firm Files Class Action in N.Y. ------------------------------------------------------------- Pomerantz Grossman Hufford Dahlstrom & Gross LLP on Nov. 8 disclosed that it has filed a class action lawsuit against BlackBerry Ltd. and certain of its officers. The class action, filed in United States District Court, Southern District of New York, and docketed under 13-CIV-7132, is on behalf of a class consisting of all persons or entities who purchased or otherwise acquired securities of BlackBerry between September 27, 2012 and September 20, 2013 both dates inclusive. This class action seeks to recover damages against the Company and certain of its officers and directors as a result of alleged violations of the federal securities laws pursuant to Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 and Rule 10b-5 promulgated thereunder. If you are a shareholder who purchased BlackBerry securities during the Class Period, you have until December 3, 2013 to ask the Court to appoint you as Lead Plaintiff for the class. A copy of the Complaint can be obtained at http://www.pomerantzlaw.com To discuss this action, contact Robert S. Willoughby at rswilloughby@pomlaw.com or 888-476-6529 (or 888-4-POMLAW), toll free, x237. Those who inquire by e-mail are encouraged to include their mailing address, telephone number, and number of shares purchased. BlackBerry is a designer, manufacturer and marketer of wireless solutions for the worldwide mobile communications market. The Company provides platforms and solutions for access to email, voicemail, instant messaging, short message service, Internet and Intranet-based applications, and browsing through the development of integrated hardware, software, and services. The Complaint alleges that throughout the Class Period, Defendants published a series of materially false and misleading statements that Defendants knew and/or recklessly disregarded were materially false and misleading at the time of publication, and that omitted to reveal material information necessary to make Defendants' statements, in light of such omissions, not materially false and misleading. Specifically, the Company failed to inform investors that, contrary to Defendants' statements touting the Company's new BlackBerry 10 line of smart phones and the financial strength of BlackBerry, the Company was not on the road to recovery and re-emerging as a lead player in the wireless communications industry, but instead, BlackBerry's business, operations and financial situation was made even worse by the introduction of the BlackBerry 10 platform, which was poorly received by the market. On September 20, 2013, BlackBerry announced the true state of the Company, which incurred massive charges due to unsold BlackBerry 10 devices and was forced to lay-off approximately 40% of its workforce. In relevant part, the release explained that the Company expects to report a primarily non-cash, pre-tax charge against inventory and supply commitments in the second quarter of approximately $930 million to $960 million, which is primarily attributable to BlackBerry Z10 devices. As a result of this disclosure, BlackBerry shares plummeted from a closing price of $10.52 per share on September 19, 2013 to a close of $8.73 per share on September 20, 2013, after experiencing an intra-day low of $8.19, on heavy trading volume. The value of BlackBerry stock continued to slide on heavy trading volume over the next few days to close at $8.01 on September 25, 2013. With offices in New York, Chicago, Florida, and San Diego, The Pomerantz Firm -- http://www.pomerantzlaw.com-- concentrates its practice in the areas of corporate, securities, and antitrust class litigation. Founded by the late Abraham L. Pomerantz, known as the dean of the class action bar, the Pomerantz Firm pioneered the field of securities class actions. Today, more than 70 years later, the Pomerantz Firm continues in the tradition he established, fighting for the rights of the victims of securities fraud, breaches of fiduciary duty, and corporate misconduct. BLUE CROSS: Obtains Unfavorable Ruling in ERISA Class Action ------------------------------------------------------------ A Federal Court in northern district of Illinois on November 7, 2013, rules in Summary Judgment against BCBS in an overpayment ERISA class action for certain plaintiff providers: 1) providers are entitled to sue under ERISA; 2) certain BCBS entities completely violated ERISA; 3) these providers are not liable to BCBS overpayment claims. The federal court summary judgment decisions were made in the wake of the court's prior decision on May 22, 2012, denying BCBS motion to dismiss and in favoring of the provider ERISA arguments. In compliance with this landmark court decision, ERISAclaim.com announced new webinars and advanced ERISA claim specialist programs to demystify this federal court century decision on the nation's No. 1 health care claim denial: overpayment demand recoupment and offsetting; and how to correctly appeal every overpayment demand with valid ERISA assignment, and in complete compliance with ERISA & PPACA claim regulations. ERISAclaim.com provided ERISA appeal compliance to the plaintiff providers and ERISA litigation support in this provider ERISA class action. Case Info: Pennsylvania Chiropractic Association, et al. vs Blue Cross Blue Shield Association, et al., Case No.: 1:09-cv-05619, Document #: 846, Filed: 11/07/13, in the United States District Court for the Northern District of Illinois Eastern Division "Every healthcare provider in USA must understand and not sleep on the [Nov. 8] federal court Summary Judgment decision in favoring plaintiff providers for all key legal points as the final words on whether BCBS or any payer may recoup or offset any money from providers without compliance with ERISA, as the overpayment recoupment demand or offset has been the No. 1 claim denial or offset in USA, which can make or break every healthcare provider or hospital," says Dr. Jin Zhou, a national expert in ERISA & PPACA compliance and appeals. "This federal court decision doesn't mean that no insurance company can ask any providers for any money back as overpayment, it simply means that no insurance company can do so without compliance with ERISA, as federal law ERISA governs and regulates claim dispute for all private healthcare plans," cautions by Dr. Zhou. In denying motion for summary judgment for BCBS entities and granting motion for summary judgment for certain plaintiff providers, among other things, the federal court makes the following conclusion: "Conclusion: For the foregoing reasons, the Court grants plaintiff Reno's motion for summary judgment [docket no. 793] on the question of liability as to defendant Anthem Health Plans of Virginia, Inc. but denies the motion with regard to defendant WellPoint, Inc. The Court grants plaintiffs Barnard & Wahner's motion for summary judgment [docket no. 795] as to liability on their claim against defendant Independence Blue Cross for improper denial of benefits but denies in part plaintiffs' motion on their claim that Independence denied them the appropriate notice and appeal rights, while making findings in plaintiffs' favor on certain points pursuant to Rule 56(g). At the [Nov. 9] status hearing, counsel should be prepared to discuss what further proceedings are required on the claims of these plaintiffs." according to court records In particular, the court makes the following legal reasoning and discussion in part: Reno's summary judgment motion against Anthem and WellPoint: "1. Standing: . . . . . The Court concludes that Reno is a beneficiary for purposes of ERISA and thus has standing, conferred on him by section 1132, to bring his claims." according to the court records. "2. Denial of notice and appeal rights: . . . . . The Court therefore concludes that Reno is entitled to summary judgment as to liability on his claim that Anthem denied him the notice and appeal rights to which he was entitled under ERISA. The only matter that remains for determination on that claim is the appropriate relief." according to the court records. "3. Denial of benefits: . . . . . The Court therefore grants summary judgment to Reno against Anthem as to liability on this claim as well." according to the court records. Dr. Zhou further advocates for ERISA compliance by every healthcare provider to appeal every overpayment denial or offset, regardless whether a plan or provider may be right or wrong on its overpayment determination, as specifically advised by DOL, federal agency in charge of ERISA interpretation and enforcement. DOL Tri3 Enterprises Amicus Brief, supporting plaintiff-appellant, No. 12-2308, File on 11/30/2012, In the United States Court of Appeals for the Third Circuit "The crux of the question at issue here is not whether the plaintiff or the defendant is correct in their views of the plan terms, but whether Aetna must comply with the procedures mandated by ERISA section 503 and its accompanying regulations in rendering a determination based on a plan interpretation that is adverse to the plan participants and beneficiaries. Under the statute and regulations, the beneficiary or participant is entitled to a claims procedure that "afford[s] a reasonable opportunity . . . for a full and fair review by the appropriate named fiduciary of [a] decision denying [a] claim," . . . . . . In either event, Tri3 is entitled to insist upon its assigned right to challenge the allegedly wrongful decision to deny benefits through a process that complies with the claims regulation." Located in a Chicago suburb in Illinois, for over 14 years, ERISAclaim.com is the only ERISA & PPACA consulting, publishing and website resource for healthcare providers in the country. ERISAclaim.com offers free webinars, basic and advanced educational seminars and on-site claims specialist certification programs for doctors, hospitals and commercial companies, as well as numerous pending national ERISA class action litigation support. Dr. Jin Zhou is regarded as the industry "Godfather of ERISA claims" for healthcare providers. For any questions, please contact Dr. Jin Zhou, president of ERISAclaim.com, at 630-808-7237. BP PLC: Settlement Modifications Set to Be Presented on Dec. 2 -------------------------------------------------------------- Holland Phillips, writing for The Louisiana Record, reports that as the legal process for determining BP's depth of liability for the 2010 Deepwater Horizon Gulf oil spill continues, claims against the company are racking up for personal injury, environmental injury, and economic injury. Lawyers for BP argue that the 2012 class settlement applicable to hundreds of thousands of claimants is not being administrated properly and should be thrown out. They claim that the process, overseen by an appointed administrator, Patrick Juneau, has compensated claimants too widely and has failed to require claimants to show causation for their economic losses. BP argues that the current process violates settlement terms and class action rules because it allows those not directly affected by the oil spill to collect damages. Settlement costs have surpassed BP's original estimate of $7 billion, putting current figures closer to $9 billion. Some say BP agreed to the initial settlement terms in order to avoid the risk and uncertainty of litigation, and because the company did not expect so many claimants to emerge. Perspectives from local law professors certainly trend toward this analysis, but there are some, such as Tulane Law Professor Vernon Palmer, who have ethical questions about the claims process itself. "If someone can be absolutely certain that his business was not affected in any way, then it would be an ethical question whether he should file or accept a payment," Mr. Palmer said. "Most of the time, however, no one can ever be that certain, and that is the point of establishing the objective formulas for reimbursement." The settlement requires two parameters for businesses to file a claim: location within a specific geographic region and evidence of economic loss based on expected versus actual profit over a period of three or more consecutive months between May and December 2010. It does not necessarily state that causation for that economic loss must be proven. In an Oct. 2 U.S. Court of Appeals for the Fifth Circuit ruling presented by Circuit Judge Edith Brown Clement, the court ordered District Judge Carl Barbier to draft a preliminary injunction on the claims process so that settlement terms could be reconsidered. The appeals court especially took issue with the method of payouts for claimants using cash-basis accounting versus those using accrual-basis accounting. The court notes that the method of determining actual economic loss during the claims period is inconsistent. The Oct. 2 ruling acknowledged arguments presented by "Class Counsel and the Administrator [maintaining] that BP fully agreed during negotiations in 2012 to the district court's March 2013 interpretation in order to achieve 'global peace,' and that it should not now be permitted to extract itself from its bargain." However, the ruling states that settlement interpretations that allow businesses to recoup losses unrelated to the spill are "counterintuitive and contradictory to [. . .] common sense" as there is "no need to secure peace with those with whom one is not at war." Professor Blaine Lecesne of Loyola University-New Orleans College of Law, argues that Judge Clement misses "the fundamental point of a settlement" by allowing the terms to be revisited. "[There is] absolutely no ethical issue surrounding the [claims] process" because under the agreement, every business and individual potentially has a claim if they can show decline in revenue following the oil spill," he said. Mr. Lecesne asserts that the only requirement is that claimants are "presumed to have suffered a loss." In agreement with Mr. Lecesne, Professor Dane Ciolino of Loyola University-New Orleans College of Law, argues that the parties made the law between themselves, so that as long as the parties are living by that law, there are "no ethical concerns" as to who can make a claim. Mr. Ciolino characterizes BP as "relentless in their public relations campaign" in their attempts to "disparage those who sought to recover damages." Settlement modifications will be presented by district court Judge Barbier on Dec. 2. BRYAN CHEVROLET: Faces Suit Over Power Steering Defect ------------------------------------------------------ Kyle Barnett, writing for The Louisiana Record, reports that a local car dealer and an international car manufacturer are being sued by a customer who claims a product defect in a vehicle he purchase from them resulted in two accidents. Christopher M. Schwartz filed suit against Bryan Chevrolet Inc., General Motors Corporation and their insurer in the 24th Judicial District Court on Oct. 10. Mr. Schwartz alleges the 2013 Chevrolet Malibu he bought from Bryan Chevrolet Inc. has a product defect in its power steering system that resulted in him being involved in two collisions. The plaintiff claims that on Aug. 5, 2012 he was driving the car on a local interstate when the power steering froze and the vehicle drifted off the road and sustained minor bumper damage. After the incident Schwartz asserts he took the vehicle back to Bryan Chevrolet Inc. who told them they had repaired the steering problem. However, on Oct. 10 he was driving on a street in New Orleans when the power steering froze again and the vehicle drifted into another car. The defendant is accused of unreasonably dangerous construction, unreasonably dangerous design, inadequate warning, failing to provide adequate warning and not conforming to an express warning. An unspecified amount in damages is sought for pain and suffering, medical expenses, mental anguish, emotional trauma, loss of enjoyment of life and property damage to vehicle. Mr. Schwartz is represented by David J. Mitchell of New Orleans- based Law Offices of Frank J. D'Amico APLC. The case has been assigned to Division J Judge Stephen C. Grefer. Case no. 731-876. C&S WHOLESALE: Awarded Monetary Sanctions in "Bicek" Suit --------------------------------------------------------- In DENNIS BICEK, Plaintiff, v. C&S WHOLESALE GROCERS, INC. & TRACY LOGISTICS LLC, Defendants, NO. 2:13-CV-0411-MCE-KJN, (E.D. Cal.), the court conducted a telephonic conference on October 1, 2013, with respect to the parties' discovery dispute concerning the depositions of putative class members by defendants. The parties had encountered significant difficulties with the scheduling of these depositions. At the time of the telephonic conference, the parties had agreed on specific dates for the depositions, but plaintiff nonetheless objected to the depositions going forward on other grounds. The court ordered the depositions of putative class members to go forward on the specified, agreed-upon dates. Additionally, the court permitted defendants to file a properly supported request for sanctions in the form of attorneys' fees and costs. Plaintiff's counsel was further ordered to show cause why the court should not sua sponte impose monetary sanctions based on plaintiff's counsel's conduct with respect to scheduling the depositions, and its improper objections as to availability of the prospective deponents. Upon consideration of the parties' filings, the discussions at the October 1, 2013 telephonic conference, and the applicable law, Magistrate Judge Kendall J. Newman granted the Defendants' request for sanctions in part; declined to sua sponte impose any additional sanctions; and discharged the order to show cause. The court awarded defendants monetary sanctions for 10 hours spent at a rate of $365 per hour, for a total of $3,650. The sanctions will be paid by plaintiff's counsel, and plaintiff's counsel will not attempt to directly or indirectly recover such sanctions from plaintiff, ruled Judge Newman. The court declined to impose any additional sanctions sua sponte saying the award of sanctions to defendants adequately compensates them for their time and money unnecessarily spent with respect to the discovery dispute, and also serves as sufficient deterrence for future discovery misconduct. The court acknowledged the plaintiff's counsel's apology in its response to the order to show cause, and instead of imposing additional sanctions, the court encouraged the parties to start anew on a course of responsiveness, cooperation, civility, and diligence with respect to discovery. A copy of the District Court's October 17, 2013 Order is available at http://is.gd/M3EvKpfrom Leagle.com. CAMDEN COUNTY, NJ: Sued by Law Enforcement Officers Over OT Wages ----------------------------------------------------------------- Brian Cranmer v. County of Camden, Case No. 1:13-cv-06110-JHR-AMD (D.N.J., October 11, 2013) is a collective action brought on behalf of all persons, who were employed by the Defendant at any time since October 11, 2010, as law enforcement officers or other comparable positions with different titles, who were non-exempt employees within the meaning of the New Jersey State Wage and Hour Law and who have not been paid for all hours worked by them and have not been paid overtime wages. Camden is a governmental agency providing police protection services through the County of Camden Park Police Department, throughout Camden County, New Jersey. The Plaintiff is represented by: Andrew I. Glenn, Esq. Jodi J. Jaffe, Esq. JAFFE GLENN LAW GROUP, P.A. 66 Willow Avenue, Suite 1A Hoboken, NJ 07030 Telephone: (201) 687-9977 Facsimile: (201) 595-0308 E-mail: AGlenn@JaffeGlenn.com JJaffe@JaffeGlenn.com CAROLINA STATE PLASTERING: Attorneys Probed in Stucco Suit ---------------------------------------------------------- Sarita Chourey, writing for Savannah Now, reports that a plastering company's fight against the free flow of information between Sun City residents and attorneys representing a class action over faulty stucco ran into repeated questions from the chief judge of the S.C. Court of Appeals. Judge John Few pressed Everett Kendall, an attorney for South Carolina State Plastering, to explain on Nov. 6 why he was warning of a possible conflict of interest and how it would hurt his client. At issue was the company's appeal seeking to overturn last year's circuit court refusal to limit the attorneys' communication to the Sun City property owners. The residents' attorney, Phillip Segui, defended his legal team's contact with residents and pointed at the other parties' activities. "Here we have an effort by the (other side) to go out and solicit opt-outs. They are going and directly communicating with the class members and getting them to sign opt-outs and releases of their claims," said Mr. Segui. He said the class action attorneys were trying to keep residents briefed, or as he described it: "Just trying to give information to respond to the craving for information from these homeowners down there." Mr. Segui noted the dispute has stretched for six years, and residents want to know how it's progressing. The number of property owners in the retirement community who could be affected by the stucco problems has been estimated to be as many as 4,000. "They talk to each other," Mr. Segui said. "They don't know what's going on. There are these appeals of different things. There are delays of all sorts. They're really just confused," said Mr. Sequi. "And then there's a defendant out there showing up and communicating with them in some unknown way, but they're trying to get these opt-outs. This is after the case was certified." Among those listed as third-party defendants are Del Webb Communities, Inc., Pulte Homes, Inc., and Kephart Architects, Inc. Mr. Kendall said the plastering company wasn't among those trying to gather class opt-outs from Sun City residents. "That's never been part of a discussion that we had," he said. As for how a conflict of interest arises from letting information flow, Mr. Kendall said it could open the door to a later attempt to undermine the judgment. The reason, he said, was that joining the class meant abandoning other claims, but property owners might revisit them later if they felt their rights were not protected under the class. Few, however, put forth a scenario he suggested could protect the judgment. He offered the example of someone who remains in the class but has misinformation, does not pay attention to what's sent them as part of the formal notice, and does not take advantage of the opportunity to come to the fairness hearing, ask a question, raise concerns, and have them addressed by the counsel and the court. "Anybody who doesn't do all that, it's just their tough luck," Few said. "It's too late at that point to collaterally attack the judgement, if the judge handles this correctly in the formal aspects . . . ." Mr. Kendall said the scenario could still leave his client vulnerable. Nearly three years ago, the state Supreme Court ruled a lawsuit Anthony and Barbara Grazia filed in 2007 could be a class action suit. That created the potential for hundreds of other Sun City homeowners to be compensated for defective stucco. At the time, some residents told a reporter they feared they would die before receiving compensation for faulty stucco or first run out of money. The Grazias alleged that "the stucco exteriors had common and typical problems inherent to their design and installation that would require identical remediation across the class, namely, stripping the homes of the existing stucco and recladding with a properly installed stucco system." CELTIC TIGER: Class Seeks Unpaid OT and Spread-of-Hours Wages ------------------------------------------------------------- Aureliano Tepizila, individually and on behalf of all other persons similarly situated v. Celtic Tiger, Inc. d/b/a The Black Sheep, and Thomas G. McGrath, jointly and severally, Case No. 1:13-cv-07231-AKH (S.D.N.Y., October 11, 2013) alleges that the Plaintiff and the proposed class are entitled to, among other compensation, unpaid overtime premium and unpaid spread-of-hours wages. Celtic Tiger, Inc. is a New York business corporation based in New York County. Thomas G. McGrath is an owner, shareholder, officer or manager of Celtic Tiger. The Defendants operated a restaurant, doing business as Black Sheep, located in New York City. The Plaintiff is represented by: Justin Alexander Zeller, Esq. Brandon David Sherr, Esq. LAW OFFICE OF JUSTIN A. ZELLER, P.C. 277 Broadway, Suite 408 New York, NY 10007 Telephone: (212) 229-2249 Facsimile: (212) 229-2246 E-mail: Jazeller@zellerlegal.com bsherr@zellerlegal.com COMMONWEALTH BANK: Unhappy Banking Asks CEO on Indemnity Issue -------------------------------------------------------------- Richard Gluyas, writing for The Australian, reports the promoter of a potential class action against the Commonwealth Bank has tackled chief executive Ian Narev over an issue that refuses to die -- alleged indemnities to cover CBA against post-acquisition impairments at Bankwest. Geoff Shannon, founder of the pressure group Unhappy Banking, asked Mr. Narev at the Nov. 8 annual meeting if 2008 indemnities provided by HBOS, the seller of Bankwest, enabled CBA to claw back impairments up to the full $2.1 billion purchase price. Mr. Shannon said later the issue went to the core of a planned class action on behalf of alleged "victims" of the Bankwest takeover by CBA. Mr. Narev declined to engage on the indemnity issue, saying it had been well covered, including at a Senate hearing into post- financial crisis banking. In August, Mr. Shannon failed in private litigation against CBA over the collapse of his company 33 Electra, the developer of a Bankwest-funded $14.5 million residential project in NSW. In that case, where Mr. Shannon ended up having to represent himself, a NSW Supreme Court judge said the businessman was not deliberately dishonest but described him as an unreliable witness when his answers were compared to contemporaneous documents. CBA general counsel David Cohen said in a Senate submission in July that the Bankwest share-sale agreement limited CBA's ability to recover impairment expenses from HBOS. Recovery was permitted only when the impairments crystallized by December 19, 2008, and they had not been reflected in the draft completion balance sheets for Bankwest. Chairman David Turner told shareholders on there was an "illusion" about a long-term clawback arrangement with HBOS. "It's not true," he said. DISTRICT OF COLUMBIA: Court Okays Consent Order Modification ------------------------------------------------------------ Sefendants in OSCAR SALAZAR, et al., Plaintiffs, v. DISTRICT OF COLUMBIA, et al., Defendants, CIVIL ACTION NO. 93-452 (GK), (D.D.C.) filed on Sept. 20, 2013, a Motion to Modify a January 25, 1999 Consent Order and Related Order of August 8, 2000 entered in the case. They seek to modify the Consent Order so as to no longer be bound by Section III, arguing that they cannot simultaneously comply with both Section III and the Affordable Care Act. Plaintiffs have also filed two related motions -- a Motion to Partially Stay the Recertification Provisions in the Settlement Order, and a Motion for Limited Discovery Related to Medicaid Renewal and Redetermination Under the Affordable Care Act. District Judge Gladys Kessler granted the Defendants' request saying the Defendants are relieved from complying with Section III of the January 25, 1999 Consent Order, as amended by Paragraphs 21A, 25A, 25B, and 27 of the Court's Order of August 8, 2000. The Plaintiffs' Motions were denied as moot. The case is a class action lawsuit filed in 1993 alleging that Defendants, among other claims, denied Medicaid beneficiaries due process of law in the recertification of their Medicaid eligibility. A copy of the District Court's October 17, 2013 Memorandum Opinion and Order is available at http://is.gd/UyMxZnfrom Leagle.com. EBAY INC: Has Initial Approval of $95,000 Deal in Suit Over Fees ---------------------------------------------------------------- Philip A. Janquart, writing for Courthouse News Service, reports that EBay will pay $95,000 to settle a class action alleging that it charges sellers optional fees for additional features they did not select, a federal judge ruled. Lead plaintiff Tasha Keirsey said she incurred the improper charges while trying to sell items on her mobile device using the online auction giant's eBay application. The March 2012 lawsuit in San Francisco brought claims for breach of contract, bad faith and unjust enrichment. EBay countered that it "properly disclosed all fees and that plaintiff was aware of all fees she was charged," according to the ruling from U.S. District Judge Jon Tigar. "Defendant particularly maintains that there can be no liability for any user who chose additional features and incurred the optional fees when placing an item through the eBay website, and then subsequently re-listed or copied the same listing using the eBay App." After the court dismissed only the claim for unjust enrichment last year, the parties began negotiating a settlement. In an interview, class counsel, Keith Verges of Figari & Davenport, said the amount of the settlement is $95,000. "Part of the driving factor is that eBay was so prompt to provide us the fees at issue and we learned the amount at controversy was very minimal," the Dallas, Texas-based lawyer said. "It wasn't terribly large and both of us [attorneys for both sides] were interested in getting this promptly resolved." Noting it would have been costly for both sides if the litigation had been prolonged, Verges added, "There just were not a lot of fees." "We will seek $30,000 in our fee application, but we have actually spent about four times that," the lawyer said. "We are upside down in this, but that's our duty as counsel for the class." EBay's attorney, Whitty Somvichian with Cooley in San Francisco, did not immediately return a request for comment. Tigar approved the preliminary settlement, which carries the unusual provision of providing class members with credit instead of cash. "In this case, given the small amount that any individual class member would be likely to receive weighed against the cost of mailing individual checks, the court concludes that an account credit is an appropriate way to distribute the settlement," Tigar wrote. He said class members who prefer to receive a check could still do so under the provisions of the preliminary settlement. "Given eBay's potential defenses, and the cost of litigation, the amount of the settlement is reasonable," Tigar wrote. A hearing on final settlement approval is scheduled for Feb. 13, 2014. The Plaintiff is represented by: Keith Verges, Esq. FIGARI & DAVENPORT 3400 Bank of America Plaza 901 Main Street Dallas, TX 75202 Telephone: (214) 939-2000 Facsimile: (214) 939-2090 E-mail: KVERGES@figdav.com EBay is represented by: Whitty Somvichian, Esq. COOLEY LLP 101 California Street, 5th Floor San Francisco, CA 94111-5800 Telephone: (415) 693-2000 Facsimile: (415) 693-2222 E-mail: wsomvichian@cooley.com ERGO BABY: Accused of Falsely Advertising Baby Carrier Product -------------------------------------------------------------- Jessica E. Lloyd v. The Ergo Baby Carrier Inc. and Does 1 to 50, Case No. BC525894 (Cal. Super. Ct., Los Angeles Cty., October 28, 2013) accuses the Defendants of falsely advertising that its baby carrier product is "usable from birth" because a baby under 12 pounds need an "Infant Insert." The Plaintiff is represented by: GOLD APLC 4525 Wilshire Blvd. Los Angeles, CA 90010 Telephone: (323) 936-0540 GALLUP INC: Violates Telephone Consumer Protection Act, Suit Says ----------------------------------------------------------------- Laurie C. Marr, on behalf of herself and all others similarly situated v. Gallup, Inc., a Delaware Corporation, Case No. 3:13- cv-02465-WQH-WVG (S.D. Cal., October 11, 2013) seeks damages, injunctive relief and other available legal or equitable remedies resulting from the Company's illegal actions in negligently, and willfully contacting the Plaintiff on her cellular telephone without her prior express consent, in violation of the Telephone Consumer Protection Act. Gallup Inc. is Delaware corporation that has its primary corporate offices in Washington, D.C. The Plaintiff is represented by: Douglas J. Campion, Esq. LAW OFFICES OF DOUGLAS J. CAMPION, APC 409 Camino Del Rio South, Suite 303 San Diego, CA 92108 Telephone: (619) 299-2091 Facsimile: (619) 858-0034 E-mail: doug@djcampion.com - and - E. Elliot Adler, Esq. ADLER LAW GROUP, APLC 402 W. Broadway, Suite 860 San Diego, CA 92101 Telephone: (619) 531-8700 Facsimile: (619) 342-9600 E-mail: eadler@theadlerfirm.com GARDEN-FRESH FOODS: Halts Production Following Product Recalls -------------------------------------------------------------- Rick Barrett, writing for The Journal Sentinel, reports that production has been halted at the Garden-Fresh Foods plant in Milwaukee because of product recalls, causing about 100 employees to be assigned to other duties, a company spokeswoman said on Nov. 16. Garden-Fresh Foods has recalled tons of products in five recalls since the end of August. The first recall was announced Aug. 30, after routine sampling of retail products by Michigan state food safety officials detected the bacterium Listeria monocytogenes. In addition to the various fresh-cut vegetables and ready-to-eat slaws, dips and spreads recalled, 50 tons of ready-to-eat chicken and ham products produced by Garden-Fresh Foods were included in a late-October recall. The factory on S. 12th St. is temporarily closed while the company deals with the recalls and the contamination issue, said spokeswoman Mary Roberts. It's unknown how long production will be halted, but most employees have been assigned to other duties in the plant, Roberts said. "Obviously, they don't want to reopen until they're 100% sure everything is OK," she added. Food and Drug Administration inspectors have been in the plant, Ms. Roberts said. No reports of illnesses have been connected to consumption of the products, according to company and state food safety officials. Nonetheless, Listeria monocytogenes is a potentially dangerous bacterium that can cause serious and sometimes fatal infections in young children, pregnant women, frail or elderly people, and others with weakened immune systems. Healthy individuals may suffer short-term symptoms such as high fever, severe headache, stiffness, nausea, abdominal pain and diarrhea, and may not realize they have come into contact with the bacterium. "We are working tirelessly to resolve the current issue and will make any changes necessary to ensure we are in compliance with food safety regulations and our own exacting standards for high quality," Ms. Roberts said. "We are confident that we will be able to find the source of the issue and resume operations," she added. "However, we will not reopen until we are 100% satisfied that we can produce and maintain the safest, highest quality products possible." GENERAL NUTRITION: Judge Tosses Class Action Over Meal Bars ----------------------------------------------------------- Kat Greene, writing for Law360, reports that a California federal judge on Nov. 7 tossed a putative class action alleging meal replacement bars sold in General Nutrition Centers Inc. stores deceived customers into thinking the bars were healthy because they were labeled "zero impact." U.S. District Judge S. James Otero granted a motion to toss the suit against GNC and Vital Pharmaceuticals Inc., the maker of the bars, writing in the Nov. 7 decision that it was up to the U.S. Food and Drug Administration to determine whether the labeling was misleading. The judge noted that, while the FDA had ruled on the use of the word "zero" in food labeling, it hadn't yet considered the nutritional import of the term "zero impact" and how consumers might interpret it, according to the Nov. 7 decision. "A term like 'zero calorie' is not intuitively the same as 'zero impact.' Calories, sugar and fat are specific nutritional elements, but 'impact' refers to the effect those elements have on the human body," Judge Otero wrote. "The court declines to apply the same regulatory framework the FDA has developed for 'zero calorie' claims to the 'zero impact' claim in the absence of a more definitive statement of the FDA's position." Consumer Gabe Watkins had filed suit in Los Angeles Superior Court in September 2012, seeking to represent a class alleging that Vital and GNC marketed the Zero Impact bars as a healthful choice for consumers to eat in place of meals, according to the suit. Mr. Watkins had purchased and eaten the bars because he was under the impression they would have zero impact on his health, according to the complaint. The Zero Impact name was misleading, because the bars have an impact on consumers' carbohydrate and blood sugar levels and caloric intake, the class wrote. The FDA has issued rules about labeling products as having "zero sugar," "zero sodium" or "zero calories," Judge Otero noted in Thursday's ruling. Products bearing those terms must meet certain nutritional requirements to match consumer expectations, per the FDA rules, the judge said. But the bars are labeled as having zero impact, not zero calories, Judge Otero found. The FDA has yet to consider in what context a term such as "zero impact" would be misleading to consumers, the judge wrote in Thursday's decision. The class may petition the FDA to take administrative action on the labeling of the bars, Judge Otero wrote. Mr. Watkins is represented by Casey Edwards Sadler, Lionel Zevi Glancy and Marc L. Godino of Glancy Binkow and Goldberg LLP. Vital and GNC are represented by Alan J. Droste of King Parret and Droste LLP. The case is Gabe Watkins v. Vital Pharmaceuticals et al., case number 2:12-cv-09374, in the U.S. District Court for the Central District of California. GEORGIA PACIFIC: Disputes Carpenter's Asbestos-Mesothelioma Suit ---------------------------------------------------------------- Heather Isringhausen Gvillo, writing for The Madison-St. Clair Record, reports that after several days of witness testimonies and pulling from box after box of evidence, Georgia Pacific maintains that it is not responsible for a Kansas carpenter's asbestos- related mesothelioma. At trial on Nov. 14 in Madison County Associate Judge Stephen Stobbs' courtroom, both parties read from plaintiff James Reef's discovery deposition taken in April. Mr. Reef filed his suit in December 2012 against dozens of companies that made, sold or distributed asbestos-containing products including Georgia Pacific, the only defendant to take the case to trial. Mr. Reef, 69, began carpentry in 1965 at the age of 19 and claims he spent 50 percent of his time working on drywall using Georgia Pacific's joint compound paste. Mr. Reef alleges the joint compound he used contained asbestos, which led to his mesothelioma, diagnosed in October 2012. Georgia Pacific attorney Jeff Hebrank began by stating Reef's inconsistent description of joint compound packaging. Mr. Hebrank said that Reef started out saying the buckets of drywall mud he used were made of plastic, but he could not remember their color. Reef then said they were white and had a clear liner, but could not verify any labels, according to Mr. Hebrank. Mr. Reef also described the backs of dry compound as clear, five- gallon bags and said he assumed all products were manufactured by the defendant because he purchased them at the Georgia Pacific store, according to Mr. Hebrank. The inconsistency continued, Mr. Hebrank said, as Mr. Reef was questioned about other jobs he worked on over the years and who manufactured those products. Mr. Reef either couldn't answer or assumed it was Georgia Pacific, Mr. Hebrank said. Plaintiff attorney Carson Menges followed Mr. Hebrank, also reading from Mr. Reef's discovery deposition. Mr. Menges pointed out that Reef worked on thousands of walls over the years, but was able to decipher when the packaging was metal versus plastic when the question was clarified for him. Mr. Menges quoted from the deposition: "I would say yes," Mr. Reef said, "years ago when we first used joint compound, it came in metal buckets." Another defense witness, Dr. Mark Roberts, testified about the likelihood that Reef's illness surfaced as a result of his exposure to asbestos in insulation rather than joint compound. Dr. Roberts is a medical doctor trained to determine if conditions are caused by work experience or the environment. Specifically, Dr. Roberts was asked to examine Mr. Reef's exposure history to determine if his mesothelioma was related to his work with joint compound. Dr. Roberts testified that Mr. Reef's illness resulted from his exposure to insulation, arguing that insulation contains amphibole asbestos, which are long thin fibers and are more dangerous to the body. He said amphibole fibers can stay in the system for decades while Chrysotile fibers are only present for several weeks up to a few months. The longer amphibole fibers, anywhere from 100 to 500 times more potent, get hung up in the lungs, while less potent fibers are expelled naturally, he said. "There's no increased risk of mesothelioma" as a result of working with joint compound, Roberts said. However, he described the grueling task of gathering the range of exposure as "kind of like herding turkeys." Plaintiff co-counsel Ethan Flint questioned Roberts next pointing out that at least 13 of the studies Roberts relied on to come up with his conclusion were written by Georgia Pacific-controlled witnesses. Dr. Roberts' report, Mr. Flint said, was based solely on medical records, considered risk assessment, epidemiology, potency, factors and case studies, but did not include any physical evidence or exams of Reef performed by Roberts. Therefore, he argued Roberts' report should be considered inconclusive. Mr. Flint also asked whether Dr. Roberts was aware that Georgia Pacific's joint compound allegedly contained termolite asbestos fibers, which are part of the amphibole type fibers and would make the compound more potent than they were led to believe. On re-direct, Mr. Hebrank asked Dr. Roberts if Reef was never exposed to the insulation and whether Roberts would conclude that joint compound could have caused Reef to develop mesothelioma. Mr. Roberts said no. GIANT EAGLE: Recalls Two Products Over Health Concerns ------------------------------------------------------ James Limbach, writing for ConsumerAffairs, reports that Giant Eagle is recalling two products because of health concerns. The first involves Diced Summer Slaw, Diced Summer Salad and several Grab and Go combo meals that may include Diced Summer Slaw. The recall affects the firm's stores in Pennsylvania, Ohio, Maryland and West Virginia, and was prompted by the recent expansion of the Reser's Fine Foods product recall for potential Listeria monocytogenes contamination. The Grab and Go combo meals include Barbeque Half Chicken combo, 2-Piece Dark Chicken combo, Parmesan Crusted Chicken combo and Chicken Breast and Wing combo. All affected items were sold in the prepared foods department, either behind the counter or out of the grab-and-go case with sell by dates between October 13, 2013, and October 29, and had a three-day shelf life. Consumers may return affected product to any Giant Eagle supermarket location for a full refund. Candy corn mix recall Giant Eagle is also recalling candy corn mix packaged by George J. Howe Company under the Candy Place brand. The product was mistakenly packaged with a trail mix that contained peanut, milk, soy and egg -- allergens not listed on the label. The affected product is packaged in 13-oz. clear plastic containers with the UPC code 3003406974 and a sell by date of April 8, 2014. The product was purchased by 187 customers in Giant Eagle supermarkets in Pennsylvania, Ohio and West Virginia from September 8th, 2013 to September 26. Consumers may return affected product to any Giant Eagle supermarket location for a full refund. Those with questions about either recall may call Giant Eagle Customer Care at 1-800-553-2324 Monday through Friday 9:00 a.m. to 9:00 p.m. GOOGLE INC: Halt Sales of New Chrombook 11 on Overheating Issue --------------------------------------------------------------- The Associated Press reports that Google and Hewlett-Packard are halting sales of their recently released Chromebook 11 computer after some users reported the device's charger has been overheating. The precautionary measure announced on Nov. 13 comes slightly more than a month after Google Inc. and Hewlett-Packard Co. unveiled the Chromebook 11 as a more affordable alternative to laptop computers with similar features. The Chromebook has a display screen that measures 11.6 inches diagonally and sells for $279. Google says it is working with the Consumer Product Safety Commission on how to fix the overheating issue with the Chromebook's charger. For now, Google is advising people who already bought the Chromebook 11 to use other USB chargers that fit the computer. The Chromebook 11 can also be re-charged with power cords that work with many mobile devices. HONG YEE INC: Sued by Busboys, Others Over Unpaid Overtime Fees --------------------------------------------------------------- Jorge Nava Martinez, Individually and on behalf of all others similarly situated v. Hong Yee, Inc. d/b/a Emperor's Kitchen a/k/a Emperor's Kitchen II, and Anh Tang, and Hong Duong, and Charles Q. Yee, Case No. 2:13-cv-01158-NJ (E.D. Wis., October 14, 2013) is brought on behalf of the Defendants' similarly situated current and former cooks, dishwashers, and busboys as a collective action to obtain relief under the Fair Labor Standards Act of 1938 for unpaid minimum wages, unpaid overtime compensation, liquidated damages and other relief. Hong Yee, Inc. d/b/a Emperor's Kitchen and Emperor's Kitchen II is a Wisconsin corporation with its principal place of business in Brookfield, Wisconsin. The Individual Defendants are residents of Hartland, Wisconsin. They oversee the day-to-day operations of and have control over the compensation and human resources aspects of Hong Yee, Inc. The Plaintiff is represented by: Larry A. Johnson, Esq. Summer H. Murshid, Esq. B. Michele Sumara, Esq. HAWKS QUINDEL, S.C. PO Box 442 Milwaukee, WI 53201-0442 Telephone: (414) 271-8650 Facsimile: (414) 271-8442 E-mail: ljohnson@hq-law.com smurshid@hq-law.com msumara@hq-law.com JM MANUFACTURING: AG Hails Jury Verdict in Defective Pipe Suit -------------------------------------------------------------- The Associated Press reports that Nevada Attorney General Catherine Cortez Masto is hailing a jury verdict that found a company knowingly made defective water and sewer pipes sold to dozens of municipalities and water districts across several states. An executive with pipe maker JM Eagle said on Nov. 16 that the company will appeal. Neal Gordon, vice president of marketing and waterworks sales, issued a statement blaming the case on "false and scurrilous allegations" by a disgruntled former employee who Mr. Gordon said was fired in a kickback scheme and wasn't called to testify at trial. The Nov. 14 verdict in U.S. District Court in Los Angeles came against the company under its former name, JM Manufacturing. It capped a seven-year legal case brought by Nevada, New Mexico, Virginia and 42 cities and water districts. Ms. Masto issued a statement saying the verdict "demonstrates that manufacturers cannot get away with fraud that puts lives at risk." "We know from firsthand experience that this PVC pipe will prematurely leak or break and can jeopardize lives," she said. Mr. Gordon said the company presented evidence that its products "meet and even exceed national standards" and that complaints were based on claims about a fraction of 1 percent of more than 11 billion feet of pipe sold over 10 years. Damages will be determined in a penalty phase that has not yet been scheduled by the court. Ms. Masto said evidence showed JM lied from 1996 to 2006 about whether its PVC pipe met strength and durability standards specified in government contracts and that the company used subpar manufacturing standards to cut costs and boost profits. Witnesses in the whistle-blower case testified that JM plant managers who failed to meet production quotas had their pay docked or lost their jobs, and those who met the quotas could double their monthly salaries. Ms. Masto said evidence showed managers removed "reject" tags from pipe that quality control had identified as defective and shipped it to unknowing customers. There are more than 600 miles of JM pipe in Nevada. Ms. Masto said the state has spent millions to replace relatively new JM water pipes that failed despite being considered "100-year" pipe. The Nevada AG's investigation uncovered 16 failures of JM pipe at various locations, including High Desert Prison in southern Nevada and projects of the city of Reno, Las Vegas Valley Water district and Truckee Meadows Water Authority. JOHNSON & JOHNSON: 11 Pelvic Mesh Actions Remanded to N.J. Court ---------------------------------------------------------------- Joy L. Halliburton and 47 other named plaintiffs filed an action on July 8, 2013, seeking damages in the District Court of Pottawatomie County, Oklahoma, naming Johnson & Johnson and Ethicon, Inc., two New Jersey companies who are engaged in the business of designing, manufacturing, and distributing pelvic mesh products as defendants. Plaintiffs assert state law claims of negligence, design defect, manufacturing defect, failure to warn, breach of implied warranty, breach of express warranty, deceit by concealment, negligent misrepresentation, fraud and deceit, violation of the Oklahoma Consumer Protection Act, and violation of the Oklahoma Deceptive Trade Practices Act. In addition, the five male plaintiffs assert a claim for loss of consortium. While Halliburton is a citizen of the State of Oklahoma, the remaining plaintiffs are citizens of twelve different states, including New Jersey. Over the next two days, eleven other actions were filed against Johnson & Johnson and Ethicon, Inc. in the District Court of Pottawatomie County. The Defendants removed all twelve cases to the United States District Court for the Western District of Oklahoma on August 8, 2013. The matter is before the court on identical motions to remand filed by plaintiffs in eleven of the twelve lawsuits. Plaintiffs argued, among other things, that diversity jurisdiction does not exist because at least one plaintiff in each case is a citizen of New Jersey, as are defendants. Plaintiffs also contended that the Class Action Fairness Act does not confer jurisdiction because the statutory requirements for such jurisdiction have not been met. District Judge Tim Leonard held that Defendants, as the parties seeking to invoke the court's jurisdiction, have the burden of establishing that the statutory requirements for such jurisdiction have been met. The Court, however, found that Defendants have failed to meet their burden. "As defendants have not established that the court has subject matter jurisdiction, remand to state court is required. Plaintiffs' Motions to Remand are therefore GRANTED. In light of this ruling, defendants' Motions to Stay All Proceedings Pending Decision to Transfer to MDL No. 232, In Re Ethicon, Inc., Pelvic Repair System Products Litigation are DENIED as moot," ruled Judge Leonard. The cases are JOY L. HALLIBURTON, et al., Plaintiffs, v. JOHNSON & JOHNSON and ETHICON, INC., Defendants. KATHLEEN TEAGUE, et al, Plaintiffs, v. JOHNSON & JOHNSON and ETHICON, INC., Defendants. DIANA WADE, et al., Plaintiffs, v. JOHNSON & JOHNSON and ETHICON, INC., Defendants. KELLI GOOCH, et al., Plaintiffs, v. JOHNSON & JOHNSON and ETHICON, INC., Defendants. SARAH RUTH ALLBRITTON, et al., Plaintiffs, v. JOHNSON & JOHNSON and ETHICON, INC., Defendants. TAMMY McCAUGHTRY, et al., Plaintiffs, v. JOHNSON & JOHNSON and ETHICON, INC., Defendants. INOLA KILLSFIRST, et al., Plaintiffs, v. JOHNSON & JOHNSON and ETHICON, INC., Defendants. MICHELLE STATES, et al., Plaintiffs, v. JOHNSON & JOHNSON and ETHICON, INC., Defendants. ILARAE J. PAGE, et al., Plaintiffs, v. JOHNSON & JOHNSON and ETHICON, INC., Defendants. TERESA MARIE ANDERSON, et al., Plaintiffs, v. JOHNSON & JOHNSON and ETHICON, INC., Defendants. VALERIE SPEARS, et al., Plaintiffs, v. JOHNSON & JOHNSON and ETHICON, INC., Defendants, NOS. CIV-13-832- L, CIV-13-833-L, CIV-13-834-L, CIV-13-836-L, CIV-13-838-L, CIV-13- 839-L, CIV-13-840-L, CIV-13-841-L, CIV-13-844-L, CIV-13-845-L, CIV-13-846-L, (W.D. Ok.) A copy of the District Court's October 18, 2013 Order is available at http://is.gd/mLQzU3 from Leagle.com. KIDS WISH: Accused of Distributing Fraction of Donations Received ----------------------------------------------------------------- Kristopher Wheeler, on behalf of himself and all others similarly situated v. Kids Wish Network Inc., a Florida Corporation, and Does 1-10, inclusive, Case No. 2:13-cv-07548-R-RZ (C.D. Cal., October 11, 2013) alleges that a mere fraction of the donations it received from concerned donors all over the country actually reaches the children for which KWN supposedly operates. KWN is a Florida corporation headquartered in Holiday, Florida. KWN grants children's wishes, mimicking the better known "Make A Wish Foundation," by using the charitable monetary donations from consumers and citizens seeking to grant wishes to dying children. The Plaintiff does not know the true names or capacities of the Doe Defendants. The Plaintiff is represented by: Michael Louis Kelly, Esq. Behram V. Parekh, Esq. Heather Marie Baker, Esq. KIRTLAND AND PACKARD LLP 2041 Rosecrans Avenue, Suite 300 El Segundo, CA 90245 Telephone: (310) 536-1000 Facsimile: (310) 536-1001 E-mail: mlk@kirtlandpackard.com bvp@kirtlandpackard.com hmb@kirtlandpackard.com L'OREAL: Class Action Settlement Fails to Get Final Approval ------------------------------------------------------------ Jessica M. Karmasek, writing for Legal Newsline, reports that a federal judge, in a decision on Nov. 6, refused to grant final approval to a settlement in a class action brought against L'Oreal for misleading labels on several hair product brands. Judge John Bates for the U.S. District Court for the District of Columbia concluded that final certification of the class and final approval of the settlement -- which would have given the lawyers nearly $1 million in fees while requiring class members to waive their right to class-wide damages -- are "not warranted." Judge Bates, in his 33-page memorandum opinion, called the settlement "not fair, reasonable and adequate" and said the arguments raised by the plaintiffs to show that the settlement is fair were "unconvincing." "Plaintiffs get attorney's fees, defendant gets a near-bulletproof release, and class members get . . . an injunction," the judge wrote. "In the end, stripping the procedural right to bring a damages class action from absent class members without their knowledge or consent -- and effectively precluding their damages claims -- is not proper." Judge Bates noted that the agreement on fees is, itself, a sign that the settlement may not be fair to the class. "The settlement provides no monetary relief while rewarding counsel handsomely," he wrote. "This is not a case where the representative plaintiffs had to spend significant amounts of time helping counsel to prepare a detailed factual complaint; instead, the burden on the representative plaintiffs was relatively low." The judge continued, "Set against the recovery obtained on behalf of the absent class members, incentive awards of $1,000 are unfair." The lawsuit, filed in April and settled in June, focused on purportedly misleading labels on several L'Oreal hair product brands. Namely, the company described some its products as "salon-only," when, in fact, the products also were sold in retail stores like Target, Kmart and Walgreens. Plaintiffs allege that the salon-only label implies a superior quality product and "builds a cachet" that allows L'Oreal to demand a premium price. The company claims that the products are sold outside of salons without its permission. LASALLE COUNTY, IL: Sheriff Faces Class Action Over Strip-Search ---------------------------------------------------------------- Michelle Manchir, writing for Chicago Tribune, reports that the attorney for a woman who alleged she was forcibly stripped by LaSalle County sheriff's deputies after a DUI arrest this year on Nov. 7 filed a class-action lawsuit on behalf of four more people who say they have experienced similar abuse at the jail. The class-action suit against LaSalle County, Sheriff Thomas Templeton and unknown sheriff's officers claims the four named plaintiffs, three women and one man, were either forcibly stripped or made to take their clothes off and then made to stay in cells without bathrooms for several hours. There, they had to urinate and defecate in a drain on the floor of the cell, and in some of the cases not given toilet paper, the suit claims. The suit is separate from one just over a month ago of behalf of Dana Holmes of Coal City, who alleges that after her DUI arrest in May four deputies pulled her to the ground and carried her into a LaSalle County jail cell, where they forcibly stripped her and walked out with her clothes while being recorded on video. The new lawsuit, filed on Nov. 7, claims that in addition to forcibly stripping three female arrestees and one man brought to the jail in a civil matter, the four were forced to stay in their cells for several hours without access to a bathroom. The suit also claims one of the women was denied medication for diabetes and denied food she was capable of eating based on her medical condition. "This abusive and humiliating treatment has been, and continues to be, a regular and common practice in the LaSalle County Jail as a means of illegally punishing arrestees," the lawsuit read. LaSalle County officials could not be reached on Nov. 7 for comment but previously said that county jail guards did nothing wrong in the incident involving Holmes. Attorney Terry Ekl, who is representing Holmes and the four new plaintiffs in the two cases filed in federal court, said on Nov. 7 if the class in the new suit is certified by the court, other potential plaintiffs would be notified. "I don't think we have anywhere near all of the (people) that this happened to," Mr. Ekl said. Under Illinois law, a strip-search is permitted only when officers have a "reasonable belief" that the subject is hiding a weapon or a controlled substance on their body. The searches must be done by an officer of the same sex as the subject and cannot be observed by people not conducting the search. LENNOX AIR: Faces Class Action Over Defective Air Conditioners -------------------------------------------------------------- BigClassAction.com reports that Lennox Air Conditioning is facing a defective products class action lawsuit alleging its air conditioning units are susceptible to formicary corrosion as a result of the deficient materials used in the manufacture of its coils. The lawsuit further alleges that Lennox has not informed its customers of the defect, even when it is called to replace failed coils in existing units. This conduct, the lawsuit claims, means that customers are unable to make informed decisions regarding the purchase of a Lennox Air Conditioner. Formicary corrosion is a particularly insidious defect in an evaporator coil because the resultant leakage is difficult to detect, and usually results in consumers being forced to repeatedly refill their air conditioners with Freon, often at significant cost, which only works to mask the defect for a period of time, until the leak is detected and the coil needs to be replaced. Lennox Coils are defective because they are manufactured with materials that, within the industry, are well known to be prone to formicary corrosion, which makes the Lennox Coils unreasonably susceptible to premature rupture and refrigerant leaks under normal use and conditions. The federal class action, filed by Plaintiff Robert Thomas, of Illinois, is brought on behalf of the following nationwide consumer classes: All persons residing in the United States who purchased a Lennox AC containing a Lennox Coil, primarily for personal, family, or household purposes. All persons residing in the United States who purchased a Lennox AC containing a Lennox Coil, primarily for personal, family, or household purposes, and who paid to replace a Lennox AC evaporator coil. Plaintiff also seeks to represent a subclass defined as all members of the Classes who reside in Illinois. LENOVO US: Suit Challenges Alleged Deceptive Notebook Marketing --------------------------------------------------------------- Michael Wheeler, 1780 Willard St., NW, Washington, D.C., 20009- 1719, on behalf of himself and all others similarly situated v. Lenovo (United States) Inc., 1009 Think Place, Morrisville, North Carolina 27560, Case No. 2013 CA 007150 B (D.C. Super. Ct., October 22, 2013) is a consumer class action challenging the deceptive marketing of notebook computers sold and distributed by the Defendant. Lenovo (United States), Inc. designed, manufactured, warranted, advertised, and sold Lenovo IdeaPad(R) "U Series", "Ultrabook(TM)," or "Ultraportable" notebook computers to thousands of consumers throughout the United States, and at least hundreds in the District of Columbia commencing on June 4, 2012. The Company is a Delaware corporation headquartered in Morrisville, North Carolina. The Plaintiff is represented by: Gary E. Mason, Esq. Nicholas A. Migliaccio, Esq. WHITFIELD BRYSON & MASON LLP 1625 Massachusetts Ave., NW, Suite 605 Washington, D.C. 20036 Telephone: (202) 429-2290 Facsimile: (202) 429-2294 E-mail: gmason@wbmllp.com nmigliaccio@wbmllp.com - and - Jordan L. Chaikin, Esq. PARKER WAICHMAN LLP 3301 Bonita Beach Road, Suite 101 Bonita Springs, Florida 34134 Telephone: (239) 390-1000 Facsimile: (239) 390-0055 E-mail: jchaikin@yourlawyer.com MA LABORATORIES: Court Tosses Bid to Amend "Lou" Class Action ------------------------------------------------------------- District Judge William Alsup denied a motion for leave to file second amended complaint in the putative class action captioned MICHELLE LOU, et al., Plaintiffs, v. MA LABORATORIES, INC., et al., Defendants, NO. C 12-05409 WHA, (N.D. Cal.). In this FLSA and California labor action, plaintiffs moved for leave to file a second amended complaint and to strike several of defendants' affirmative defenses. The motion to strike was granted in part and denied in part but the motion for leave to file a second amended complaint was denied. Due to the advanced progress of the action, defendants will not be permitted an opportunity to amend, ruled Judge Alsup. A copy of the District Court's October 17, 2013 Order is available at http://is.gd/99u0yHfrom Leagle.com. MEDICIS PHARMACEUTICAL: Seeks Consolidation of 12 Class Suits ------------------------------------------------------------- Defendants Medicis Pharmaceutical Corp. and Valeant Pharmaceuticals International, Inc.; Impax Laboratories, Inc.; Lupin Ltd. and Lupin Pharmaceuticals, Inc.; Mylan Inc. and Matrix Laboratories Ltd.; Ranbaxy Pharmaceuticals, Inc., Ranbaxy Inc., and Ranbaxy Laboratories, Ltd.; Sandoz Inc.; Teva Pharmaceutical Industries, Ltd., Teva Pharmaceuticals USA, Inc. and Barr Laboratories, Inc., jointly ask the Judicial Panel on Multidistrict Litigation for an order transferring and consolidating for coordinated pretrial proceedings 12 similar actions, as well as any cases that subsequently may be filed asserting similar or related claims, to either the United States District Court for the District of Arizona before Judge Susan R. Bolton, or the United States District Court for the Eastern District of Pennsylvania before Judge J. Curtis Joyner. The 12 lawsuits are pending in: -- Pennsylvania Eastern District Court: * 2:13-cv-04235; * 2:13-cv-04270; * 2:13-cv-04642; * 2:13-cv-04659; * 2:13-cv-05021; * 2:13-cv-05097; * 2:13-cv-05105; and * 2:13-cv-05108; -- Arizona District Court: * 2:13-cv-01952; and -- Massachusetts District Court: * 1:13-cv-12225; * 1:13-cv-12435; and * 1:13-cv-12517 The actions for which transfer and consolidation are proposed allege nearly identical questions of fact and law. Each of the 12 actions alleges that the Defendants unlawfully delayed the introduction of generic versions of minocycline hydrochloride extended release tablets Solodyn(R) ("Solodyn(R)") and engaged in anticompetitive behavior in restraint of trade in violation of the Sherman Act and state laws. Ten of the 12 actions are putative class actions brought on behalf of a class of indirect purchasers of Solodyn(R) products. Two of the actions are putative class actions brought on behalf of a class of direct purchasers of Solodyn(R) products. All actions concern the same or substantially similar factual and legal allegations, namely, that Medicis' enforcement of U.S. Patent No. 5,908,838 and the subsequent settlements of the patent cases with generic manufacturers Impax, Teva, Sandoz, Ranbaxy, Mylan and Lupin constitute conspiracies to restrain trade and monopolize the market for Solodyn(R) in violation of federal and state antitrust laws. The Plaintiffs also allege that Medicis' launch of new strengths of its Solodyn(R) product represents purportedly illegal "product hopping" in violation of the antitrust laws. The Defendants are represented by: Michael P. Kenny, Esq. Teresa T. Bonder, Esq. Matthew D. Kent, Esq. ALSTON & BIRD LLP One Atlantic Center 1201 West Peachtree Street Atlanta, GA 30309-3424 Telephone: (404) 881-7000 Facsimile: (404) 881-7777 E-mail: mike.kenny@alston.com teresa.bonder@alston.com matthew.kent@alston.com - and - Wesley Chused, Esq. LOONEY & GROSSMAN LLP 101 Arch Street, Ninth Floor Boston, MA 02110 Telephone: (617) 951-2800 E-mail: wchused@lgllp.com - and - Steven C. Sunshine, Esq. Tara L. Reinhart, Esq. Julia K. York, Esq. Anjali B. Patel, Esq. SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP 1440 New York Avenue, N.W. Washington, DC 20005 Telephone: (202) 371-7000 Facsimile: (202) 393-5760 E-mail: steve.sunshine@skadden.com tara.reinhart@skadden.com julia.york@skadden.com anjali.patel@skadden.com - and - Barbara T. Sicalides, Esq. Daniel J. Boland, Esq. PEPPER HAMILTON LLP 3000 Two Logan Square Philadelphia, PA 19103-2799 Telephone: (215) 981-4000 Facsimile: (215) 981-4750 E-mail: sicalidesb@pepperlaw.com bolandd@pepperlaw.com - and - Peter C. Thomas, Esq. Christopher Cahill, Esq. SIMPSON THACHER & BARTLETT LLP 1155 F Street, N.W. Washington, DC 20004 Telephone: (202) 636-5500 Facsimile: (202) 636-5502 E-mail: pthomas@stblaw.com ccahill@stblaw.com - and - Jennifer Rie, Esq. SIMPSON THACHER & BARTLETT LLP 425 Lexington Avenue New York, NY 10017 Telephone: (212) 455-2000 Facsimile: (212) 455-2502 E-mail: jrie@stblaw.com - and - Christopher T. Holding, Esq. Robert D. Carroll, Esq. Sarah K. Frederick, Esq. GOODWIN PROCTER LLP Exchange Place 53 State Street Boston, MA 02109 Telephone: (617) 570-1000 Facsimile: (617) 523-1231 E-mail: cholding@goodwinprocter.com rcarroll@goodwinprocter.com sfrederick@goodwinprocter.com - and - Kenneth R. O'Rourke, Esq. Stephen McIntyre, Esq. O'MELVENY & MYERS LLP 400 South Hope Street, 18th Fl. Los Angeles, CA 90071-2899 Telephone: (213) 430-6000 Facsimile: (213) 430-6407 E-mail: korourke@omm.com smcintyre@omm.com - and - Paula L. Blizzard, Esq. Audrey Walton-Hadlock, Esq. William S. Hicks, Esq. KEKER & VAN NEST 633 Battery Street San Francisco, CA 94111 Telephone: (415) 391-5400 Facsimile: (415) 397-7188 E-mail: pblizzard@kvn.com awalton-hadlock@kvn.com whicks@kvn.com - and - Jay P. Lefkowitz, P.C., Esq. Joseph Serino, Jr., P.C., Esq. Matthew F. Dexter, Esq. Ross Weiner, Esq. KIRKLAND & ELLIS LLP 601 Lexington Avenue New York, NY 10022 Telephone: (212) 446-4800 Facsimile: (212) 446-4900 E-mail: lefkowitz@kirkland.com joseph.serino@kirkland.com matthew.dexter@kirkland.com ross.weiner@kirkland.com - and - Leiv Blad, Jr., Esq. Hill Wellford, Esq. Michael L. Whitlock, Esq. Zarema V. Arutyunova, Esq. BINGHAM MCCUTCHEN LLP 2020 K Street NW Washington, DC 20006-1806 Telephone: (202) 373-6000 Facsimile: (202) 373-6001 E-mail: leiv.blad@bingham.com hill.wellford@bingham.com michael.whitlock@bingham.com zarema.arutyunova@bingham.com - and - William R. Landry, Esq. BLISH & CAVANAGH LLP Commerce Center 30 Exchange Terrace Providence, RI 02903-1765 Telephone: (401) 831-8900 Facsimile: (401) 751-7542 E-mail: wrl@blishcavlaw.com The multidistrict litigation is In Re: Solodyn Antitrust Litigation, Case MDL No. 2503. NATIONAL COLLEGIATE: Must Face "Keller" Claims Over Image Rights ---------------------------------------------------------------- The NCAA must face claims that it illegally prevented former student athletes from making money off their images in video games and merchandise, reports Nick McCann at Courthouse News Service, citing a federal judge ruling. Since 2009, a group of former NCAA athletes have been embroiled in a legal battle over the use of their images in video games, merchandise and other promotional materials. In the first complaint, former UCLA basketball player Ed O'Bannon said the NCAA violated his and other athletes' right to make money off their likenesses. The athletes also sued NCAA licensing arm Collegiate Licensing Co. and the video game company Electronic Arts. Those companies settled with the athletes on September 26. After two years of litigation, the action involves 25 named plaintiffs. Four of the athletes claim that the NCAA violated their rights of publicity by misappropriating their names and likeness, while the other 21 say the NCAA violated antitrust laws by conspiring to ensure they made no money off their likenesses. U.S. District Judge Claudia Wilken refused on October 24, 2013, to dismiss the athletes' third amended consolidated class complaint. Among other things, the NCAA claimed the class antitrust claims are "nothing more than a challenge to the NCAA's rules on amateurism" and that the athletes "have no protectable name, image or likeness right in sports broadcasts." Citing the 1984 Supreme Court decision in NCAA v. Board of Regents of the University of Oklahoma, Wilken said there was not a "sweeping proposition" that student-athletes are permanently barred from receiving money for the commercial use of their names and likenesses. "Although it is possible that the NCAA's ban on student-athlete pay serves some procompetitive purpose, such as increasing consumer demand for college sports, plaintiffs' plausible allegations to the contrary must be accepted as true at the pleading stage," Wilken wrote. The NCAA also failed to prove that the athletes' lack of publicity rights meant their antitrust claims should be dismissed under California law and the First Amendment, the judge found. "Although the First Amendment -- unlike the California Civil Code -- does impose certain limits on the right of publicity in every state, the NCAA has not shown that those limits preclude plaintiffs from asserting publicity rights in the specific types of broadcasts at issue here," the 24-page opinion states. Wilken added that "neither the Supreme Court nor the federal courts of appeals have ever squarely addressed whether the First Amendment bars athletes from asserting a right of publicity in the use of their names, images, or likenesses during sports broadcasts." The NCAA also failed to show that the Copyright Act pre-empts publicity-rights claims from the athletes. Because the athletes do not own copyrights of the game footage, they are not seeking to protect their copyrights, the judge found, adding that the claims "are based principally on an injury to competition, not simply misappropriation." Three days before Electronic Arts settled the O'Bannon case, it petitioned the U.S. Supreme Court regarding a similar case brought by former college football quarterback Sam Keller. The NCAA had not been involved in the underlying appeal but it petitioned the Supreme Court about the case Friday, October 24, 2013, saying in a statement that EA's settlement may mean "that there will not be a party in the Supreme Court to raise the First Amendment issues, as EA had done in the Ninth Circuit." "The court should therefore allow the NCAA to enter the case and continue to press the important First Amendment arguments," the NCAA added. The Plaintiffs are represented by: Shana E. Scarlett, Esq. HAGENS BERMAN SOBOL SHAPIRO LLP 715 Hearst Avenue, Suite 202 Berkeley, CA 94710 Telephone: (510) 725-3000 Facsimile: (510) 725-3001 E-mail: shanas@hbsslaw.com - and - Leonard W. Aragon, Esq. Robert B. Carey, Esq. HAGENS BERMAN SOBOL SHAPIRO LLP 11 West Jefferson Street, Suite 1000 Phoenix, AZ 85003 Telephone: (602) 840-5900 Facsimile: (602) 840-3012 E-mail: leonard@hbsslaw.com rob@hbsslaw.com - and - Steve W. Berman, Esq. HAGENS BERMAN SOBOL SHAPIRO LLP 1918 Eighth Avenue, Suite 3300 Seattle, WA 98101 Telephone: (206) 623-7292 Facsimile: (206) 623-0594 E-mail: steve@hbsslaw.com - and - Celeste H.G. Boyd, Esq. THE PAYNTER LAW FIRM PLLC 1340 Environ Way Chapel Hill, NC 27517 Telephone: (505) 501-8176 E-mail: cboyd@smplegal.com - and - Stuart McKinley Paynter, Esq. THE PAYNTER LAW FIRM PLLC 1200 G Street NW, Ste 800 Washington, DC 20005 Telephone: (202) 626-4486 E-mail: stuart@smplegal.com - and - Douglas A. Millen, Esq. Robert J. Wozniak, Esq. FREED KANNER LONDON & MILLEN LLC 2201 Waukegan Road, Suite 130 Bannockburn, IL 60015 Telephone: (224) 632-4500 Facsimile: (224) 632-4519 E-mail: doug@fklmlaw.com rwozniak@fklmlaw.com - and - Allan Steyer, Esq. Donald Scott Macrae, Esq. Gabriel Dash Zeldin, Esq. STEYER LOWENTHAL BOODROOKAS ALVAREZ & SMITH LLP One California Street, Ste 300 San Francisco, CA 94111 Telephone: (415) 421-3400 E-mail: asteyer@steyerlaw.com smacrae@bamlawlj.com gzeldin@steyerlaw.com - and - Amanda Heather Kent, Esq. Robert William Finnerty, Esq. Thomas V. Girardi, Esq. GIRARDI AND KEESE 1126 Wilshire Blvd. Los Angeles, CA 90017 Telephone: (213) 977-0211 Facsimile: (213) 481-1554 E-mail: amarz@girardikeese.com rfinnerty@girardikeese.com tgirardi@girardikeese.com - and - Arthur N. Bailey, Esq. ARTHUR N. BAILEY & ASSOCIATES 111 West Second Street, Suite 4500 Jamestown, NY 14701 Telephone: (716) 664-2967 Facsimile: (716) 716-2983 - and - Arthur Nash Bailey, Jr., Esq. Bruce J. Wecker, Esq. Christopher L. Lebsock, Esq. Michael Paul Lehmann, Esq. HAUSFELD LLP 44 Montgomery, Suite 3400 San Francisco, CA 94104 Telephone: (415) 633-1908 Facsimile: (415) 358-4980 E-mail: abailey@hausfeldllp.com bwecker@hausfeldllp.com clebsock@hausfeldllp.com mlehmann@hausfeldllp.com - and - Hilary Kathleen Scherrer, Esq. Michael D. Hausfeld, Esq. Sathya S. Gosselin, Esq. HAUSFELD LLP 1700 K Street, N.W., Suite 650 Washington, DC 20006 Telephone: (202) 540-7200 Facsimile: (202) 540-7201 E-mail: hscherrer@hausfeldllp.com mhausfeld@hausfeldllp.com sgosselin@hausfeldllp.com - and - Bonny E. Sweeney, Esq. Carmen Anthony Medici, Esq. ROBBINS GELLER RUDMAN & DOWD LLP 655 West Broadway, Suite 1900 San Diego, CA 92101 Telephone: (619) 231-1058 E-mail: bonnys@rgrdlaw.com cmedici@rgrdlaw.com - and - Bruce Lee Simon, Esq. Thomas Kay Boardman, Esq. PEARSON SIMON & WARSHAW, LLP 44 Montgomery Street, Suite 2450 San Francisco, CA 94104 Telephone: (415) 433-9000 Facsimile: (415) 433-9008 E-mail: bsimon@pswlaw.com tboardman@pswlaw.com - and - Carl A. Taylor Lopez, Esq. LOPEZ & FANTEL 1510 14th Avenue Seattle, WA 98122-4024 Telephone: (206) 322-5200 E-mail: clopez@lopezfantel.com - and - Catherine Rosato Reilly, Esq. COZEN O'CONNOR 1627 I Street, NW Washington, DC 20006 Telephone: (202) 912-4836 E-mail: creilly@cozen.com - and - Christopher Theo Hellums, Esq. PITTMAN DUTTON AND HELLUMS, P.C. 2001 Park Place North, Suite 1100 Birmingham, AL 35203 Telephone: (205) 322-8880 E-mail: chrish@pittmandutton.com - and - Jonathan W. Cuneo, Esq. Daniel Cohen, Esq. CUNEO GILBERT & LADUCA, LLP 507 C Street NE Washington, DC 20002 Telephone: (202) 789-3960 E-mail: jonc@cuneolaw.com danielc@cuneolaw.com - and - Daniel Simon Mason, Esq. Jiangxiao Athena Hou, Esq. ZELLE HOFMANN VOELBEL & MASON LLP 44 Montgomery St., #3400 San Francisco, CA 94104 Telephone: (415) 693-0700 E-mail: dmason@zelle.com ahou@zelle.com - and - Mitchell J. Rapp, Esq. Shawn D. Stuckey, Esq. ZELLE HOFMANN VOELBEL & MASON LLP 500 Washington Ave South, Ste 4000 Minneapolis, MN 55415 Telephone: (612) 339-2020 E-mail: mrapp@zell.com sstuckey@zelle.com - and - Derek G. Howard, Esq. MINAMI TAMAKI LLP 360 Post Street, 8th Floor San Francisco, CA 94108 Telephone: (415) 788-9000 Facsimile: (415) 398-3887 E-mail: dhoward@minamitamaki.com - and - Dianne M. Nast, Esq. NASTLAW LLC 1101 Market Street, Suite 2801 Philadelphia, PA 19107 Telephone: (215) 923-9300 Facsimile: (215) 923-9302 E-mail: dnast@nastlaw.com - and - Edgar Dean Gankendorff, Esq. PROVOSTY & GANKENDORF LLC 650 Poydras Street, Suite 2700 New Orleans, La 70130 Telephone: (504) 410-2795 Facsimile: (504) 410-2796 E-mail: egankendorff@provostylaw.com - and - Ellen Meriwether, Esq. CAFFERTY FAUCHER LLP 1717 Arch St., Suite 3610 Philadelphia, PA 19103 Telephone: (215) 864-2144 Facsimile: (215) 864-2810 E-mail: emeriwether@caffertyclobes.com - and - Eugene A. Spector, Esq. Jeffrey J. Corrigan, Esq. Jeffrey Lawrence Spector, Esq. William G. Caldes, Esq. Jay S. Cohen, Esq. SPECTOR ROSEMAN KODROFF & WILLIS, PC 1818 Market Street, 25th Floor Philadelphia, PA 19103 Telephone: (215) 496-0300 E-mail: espector@srkw-law.com jcorrigan@srkw-law.com jspector@srkw-law.com bcaldes@srkw-law.com jcohen@srkw-law.com - and - Jack Simms, Esq. Tanya Chutkan, Esq. William A. Isaacson, Esq. BOIES SCHILLER & FLEXNER LLP 5301 Wisconsin Ave., NW, Suite 800 Washington, DC 20015 Telephone: (202) 237-2727 Facsimile: (202) 237-6131 E-mail: tchutkan@bsfllp.com wisaacson@bsfllp.com - and - Jay L. Himes, Esq. Morissa R. Falk, Esq. LABATON SUCHAROW LLP 140 Broadway New York, NY 10005 Telephone: (212) 907-0834 E-mail: jhimes@labaton.com mfalk@labaton.com - and - Joel Cary Meredith, Esq. MEREDITH & ASSOCIATES 1521 Locust Street, 8th Floor Philadelphia, PA 19102 Telephone: (215) 564-5182 Facsimile: (215) 569-0958 E-mail: jmeredith@mcgslaw.com - and - Joseph R. Saveri, Esq. SAVERI LAW FIRM 505 Montgomery Street, Suite 625 San Francisco, CA 94111 Telephone: (415) 500-6800 Facsimile: (415) 500-6803 E-mail: jsaveri@saverilawfirm.com - and - Kimberly A. Kralowec, Esq. THE KRALOWEC LAW GROUP 188 The Embarcadero, Suite 800 San Francisco, CA 94105 Telephone: (415) 546-6800 Facsimile: (415) 546-6801 E-mail: kkralowec@kraloweclaw.com - and - Renae Diane Steiner, Esq. Vincent J. Esades, Esq. HEINS MILLS & OLSON, P.L.C. 310 Clifton Avenue Minneapolis, MN 55403 Telephone: (612) 338-4605 Facsimile: (612) 338-4692 E-mail: rsteiner@heinsmills.com vesades@heinsmills.com - and - Robert G. Eisler, Esq. GRANT & EISENHOFER P.A. 123 Justison Street Wilmington, DE 19801 Telephone: (302) 622-7000 Facsimile: (302) 622-7100 E-mail: reisler@gelaw.com - and - Ronald J. Aranoff, Esq. BERNSTEIN LIEBHARD LLP 10 E. 40th Street, 22nd Floor New York, NY 10016 Telephone: (212) 779-1414 E-mail: aranoff@bernlieb.com - and - Seth Rosenthal, Esq. VENABLE LLP 575 7th Street, NW Washington, DC 20004 Telephone: (202) 344-4741 E-mail: sarosenthal@venable.com - and - Stanley M. Chesley, Esq. WAITE SCHNEIDER BAYLESS & CHESLEY 1513 Fourth & Vine Tower 1 West Fourth Street Cincinnati, OH 45202 Telephone: (513) 621-0267 Facsimile: (513) 381-2375 - and - Wilbert Benjamin Markovits, Esq. Terence Richard Coates, Esq. MARKOVITS, STOCK & DEMARCO LLC 119 East Court Street, Suite 530 Cincinnati, OH 45202 Telephone: (513) 651-3700 Facsimile: (513) 665-0219 E-mail: bmarkovits@msdlegal.com tcoates@msdlegal.com - and - Austin B. Cohen, Esq. Howard J. Sedran, Esq. LEVIN FISHBEIN SEDRAN & BERMAN 510 Walnut Street, Suite 500 Philadelphia, PA 19106 Telephone: (215) 592-1500 E-mail: acohen@lfsblaw.com hsedran@lfsblaw.com - and - David Haym Weinstein, Esq. Jeremy S. Spiegel, Esq. Steven A. Asher, Esq. Mindee Jill Reuben, Esq. WEINSTEIN KITCHENOFF & ASHER LLC 1845 Walnut Street, Suite 1100 Philadelphia, PA 19103 Telephone: (215) 545-7200 E-mail: weinstein@wka-law.com spiegel@wka-law.com asher@wka-law.com reuben@wka-law.com - and - Donald L. Perelman, Esq. FINE KAPLAN AND BLACK, RPC One South Broad Street, 23rd Floor Philadelphia, PA 19107 Telephone: (215) 567-6565 E-mail: dperelman@finekaplan.com - and - Roberta D. Liebenberg, Esq. FINE KAPLAN AND BLACK, RPC 1835 Markel Street, 28th Floor Philadelphia, PA 19103 Telephone: (215) 567-6565 Facsimile: (215) 568-5872 E-mail: rliebenberg@finekaplan.com - and - Gerald J. Rodos, Esq. Jeffrey B. Gittleman, Esq. BARRACK RODOS AND BACINE 2001 Market St. 3300 Two Commerce Sq Philadelphia, PA 19103 Telephone: (215) 963-0600 E-mail: grodos@barrack.com jgittleman@barrack.com - and - Joseph C. Kohn, Esq. Robert Joseph LaRocca, Esq. KOHN SWIFT & GRAF P.C. One South Broad Street, Ste 2100 Philadelphia, PA 19107 Telephone: (215) 238-1700 E-mail: jkohn@kohnswift.com rlarocca@kohnswift.com - and - Karl Olson, Esq. RAM, OLSON, CEREGHINO & KOPCZYNSKI LLP 555 Montgomery Street, Suite 820 San Francisco, CA 94111 Telephone: (415) 433-4949 Facsimile: (415) 433-7311 E-mail: kolson@ramolson.com - and - Tracy Tien, Esq. FINKELSTEIN THOMPSON LLP 100 Bush Street, Suite 1450 San Francisco, CA 94102 Telephone: (415) 398-8700 E-mail: ttien@finkelsteinthompson.com - and - Rosemary M. Rivas, Esq. Finkelstein Thompson LLP 505 Montgomery St., Suite 300 San Francisco, CA 94111 Telephone: (415) 398-8700 Facsimile: (415) 398-8704 E-mail: rrivas@finkelsteinthompson.com - and - Bryan L. Clobes, Esq. CAFFERTY CLOBES MERIWETHER & SPRENGEL LLP 1101 Market Street, Suite 2650 Philadelphia, PA 19107 Telephone: (215) 864-2800 Facsimile: (215) 864-2810 E-mail: bclobes@caffertyclobes.com - and - Brian Douglas Henri, Esq. HENRI LAW GROUP 624 University Ave Palo Alto, CA 94301 Telephone: (650) 485-2767 Facsimile: (650) 485-2768 E-mail: brianhenri@henrilg.com - and - Gordon Ball, Esq. LAW OFFICE GORDON BALL 7001 Old Kent Drive Knoxville, TN 37919 Telephone: (865) 525-7028 Facsimile: (865) 525-4679 E-mail: gball@gordonball.com - and - Eric B. Fastiff, Esq. Kelly M. Dermody, Esq. LIEFF, CABRASER, HEIMANN & BERNSTEIN,LLP 275 Battery Street, 29th Floor San Francisco, CA 94111-3339 Telephone: (415) 956-1000 Facsimile: (415) 956-1008 E-mail: efastiff@lchb.com kdermody@lchb.com - and - Daniel E. Gustafson, Esq. Jason Kilene, Esq. GUSTAFSON GLUEK PLLC 120 South 6th Street, Suite 2600 Minneapolis, MN 55402 Telephone: (612) 333-8844 Facsimile: (612) 339-6622 E-mail: dgustafson@gustafsongluek.com jkilene@gustafsongluek.com - and - David A. Goodwin, Esq. 608 Second Avenue South Minneapolis, MN 55402 Telephone: (612) 333-8844 Facsimile: (612) 339-6622 E-mail: dgoodwin@gustafsongluek.com - and - Lee Albert, Esq. GLANCY BINKOW & GOLDBERG LLP 122 East 42nd Street, Suite 2920 New York, NY 10168 Telephone: (212) 682-5340 Facsimile: (212) 884-0988 E-mail: lalbert@glancylaw.com - and - Eric L. Cramer, Esq. BERGER & MONTAGUE, P.C. 1622 Locust Street Philadelphia, PA 19103 Telephone: (215) 875-3000 E-mail: ecramer@bm.net - and - Joshua P. Davis, Esq. LAW OFFICES OF JOSHUA P. DAVIS 437A Valley Street San Francisco, CA 94131 Telephone: (415) 422-6223 E-mail: davisj@usfca.edu - and - Kendall S. Zylstra, Esq. Stephen E. Connolly, Esq. FARUQI AND FARUQI, LLP 101 Greenwood Ave., Suite 600 Jenkintown, PA 19046 Telephone: 215-277-5770 Facsimile: (215) 277-5771 E-mail: kzylstra@faruqilaw.com sconnolly@faruqilaw.com - and - Garrett D. Blanchfield , Jr., Esq. REINHARDT WENDORF & BLANCHFIELD 322 Minnesota Street St. Paul, MN 55101 Telephone: (651) 287-2100 E-mail: g.blanchfield@rwblawfirm.com - and - Joe Sibley, Esq. Kiwi Alejandro Danao Camara, Esq. CAMARA & SIBLEY LLP 2339 University Boulevard Houston, TX 77005 Telephone: (713) 893-7973 E-mail: camara@camarasibley.com - and - Donald Chidi Amamgbo, Esq. AMAMGBO & ASSOCIATES 7901 Oakport Street, Suite 4900 Oakland, CA 94621 Telephone: (510) 615-6000 Facsimile: (510) 615-6025 E-mail: donald@amamgbolaw.com - and - Reginald Von Terrell, Esq. THE TERRELL LAW GROUP Post Office Box 13315, PMB #148 Oakland, CA 94661 Telephone: (510) 237-9700 Facsimile: (510) 237-4616 E-mail: reggiet2@aol.com - and - Tesfaye Wolde Tsadik LAW OFFICES OF TESFAYE TSADIK 1736 Franklin Street, 10th Floor Oakland, CA 94612 Telephone: (510) 839-3922 Facsimile: (510) 444-1704 E-mail: ttsadik@pacbell.net The Defendants are represented by: Robert James Slaughter, Esq. Daniel E. Jackson, Esq. Robert Adam Lauridsen, Esq. Robert Addy Van Nest, Esq. Steven A. Hirsch, Esq. Robert James Slaughter, Esq. KEKER & VAN NEST LLP 633 Battery Street San Francisco, CA 94111-1809 Telephone: (415) 391-5400 Facsimile: (415) 397-7188 E-mail: rslaughter@kvn.com djackson@kvn.com alauridsen@kvn.com rvannest@kvn.com shirsch@kvn.com rslaughter@kvn.com - and - Juan Carlos Araneda, Esq. Jason Alex Geller, Esq. MECKLER BULGER TILSON MARICK & PEARSON LLP 575 Market Street, Suite 2200 San Francisco, CA 94105 Telephone: (415) 644-0914 Facsimile: (415) 644-0978 E-mail: juan.araneda@mbtlaw.com jason.geller@mbtlaw.com - and - Robert James Wierenga, Esq. Frederick Richard Juckniess, Esq. Gregory L. Curtner, Esq. Jessica Anne Sprovtsoff, Esq. Kimberly K. Kefalas, Esq. SCHIFF HARDIN LLP 350 South Main Street, Suite 210 Ann Arbor, MI 48104 Telephone: (734) 222-1507 Facsimile: (734) 222-1501 E-mail: rwierenga@schiffhardin.com rjuckniess@schiffhardin.com gcurtner@schiffhardin.com jsprovtsoff@schiffhardin.com kkefalas@schiffhardin.com - and - Rocky N. Unruh, Esq. SCHIFF HARDIN LLP One Market, Spear Street Tower Thirty-Second Floor San Francisco, CA 94105 Telephone: (415) 901-8700 Facsimile: (415) 901-8701 E-mail: runruh@schiffhardin.com - and - Carolyn Hoecker Luedtke, Esq. Jeslyn A. Miller, Esq. Rohit K. Singla, Esq. MUNGER, TOLLES OLSON LLP 560 Mission Street, 27th Floor San Francisco, CA 94105 Telephone: (415) 512-4027 Facsimile: (415) 644-6927 E-mail: carolyn.luedtke@mto.com jeslyn.miller@mto.com singlark@mto.com - and - Glenn D. Pomerantz, Esq. Kelly Max Klaus, Esq. MUNGER TOLLES AND OLSON 355 South Grand Avenue, 35th Floor Los Angeles, CA 90071-1560 Telephone: (213) 683-9100 Facsimile: (213) 687-3702 E-mail: glenn.pomerantz@mto.com kelly.klaus@mto.com - and - David P. Borovsky, Esq. Glen Robert Olson, Esq. LONG & LEVIT LLP 465 California Street, Ste 500 San Francisco, CA 94104-1814 Telephone: (415) 397-2222 E-mail: dborovsky@longlevit.com golson@longlevit.com - and - Matthew S. Weiler, Esq. MORGAN LEWIS & BOCKIUS LLP One Market St. San Francisco, CA 94105 Telephone: (415) 442-1159 E-mail: mweiler@morganlewis.com - and - Suzanne Wahl, Esq. MILLER CANFIELD PADDOCK & STONE PLC 101 N. Main St., 7th Floor Ann Arbor, MI 48104 Telephone: (734) 668-8938 Facsimile: (734) 663-8624 E-mail: swahl@schiffhardin.com - and - Amber Melia Trincado, Esq. KING & SPALDING LLP 101 Second Street, Suite 2300 San Francisco, CA 94105 Telephone: (415) 318-1200 Facsimile: (415) 318-1300 E-mail: atrincado@kslaw.com - and - Christina E. Fahmy, Esq. KILPATRICK TOWNSEND 607 14th Street, NW, Suite 900 Washington, DC 20005-2018 Telephone: (202) 508-5834 E-mail: cfahmy@kilpatricktownsend.com - and - Gregory S. Gilchrist, Esq. KILPATRICK TOWNSEND AND STOCKTON LLP Two Embarcadero Center, Eighth Floor San Francisco, CA 94111 Telephone: (415) 576-0200 Facsimile: (415) 576-0300 E-mail: ggilchrist@kilpatricktownsend.com - and - Cindy Dawn Hanson, Esq. R. Charles Henn, Jr., Esq. Sara M. Vanderhoff, Esq. William Howard Brewster, Esq. KILPATRICK STOCKTON LLP 1100 Peachtree Street, Suite 2800 Atlanta, GA 30309 Telephone: (404) 815-6470 E-mail: chanson@kilpatrickstockton.com chenn@kilpatrickstockton.com bbrewster@kilpatrickstockton.com - and - Constance K. Robinson, Esq. Peter M. Boyle, Esq. Svetlana S. Gans, Esq. KILPATRICK STOCKTON LLP 607 14th Street, NW, Ste 900 Washington, DC 20005 Telephone: (202) 508-5831 Facsimile: (202) 585-0057 E-mail: CRobinson@kilpatrickstockton.com pboyle@kilpatrickstockton.com sgans@kilstock.com - and - Courtney Elizabeth Curtis, Esq. James C. Potepan, Esq. LECLAIRRYAN LLP 725 S. Figueroa Street, Suite 350 Los Angeles, CA 90017 Telephone: (213) 488-0503 Facsimile: (213) 624-3755 E-mail: courtney.curtis@leclairryan.com james.potepan@leclairryan.com The case is Keller, et al. v. Electronic Arts Inc., et al., Case No. 4:09-cv-01967-CW, in the U.S. District Court for the Northern District of California (Oakland). NEW HAMPSHIRE INSURANCE: Judge Dismisses Subrogation Class Action ----------------------------------------------------------------- Gavin Broady and Eric Hornbeck, writing for Law360, report that an American International Group Inc. subsidiary on Nov. 7 secured the dismissal of a class action brought by a New York couple who accused the insurer of wrongfully going after a third party before fully compensating them for damage caused by a faulty water cooler. A New York state judge backed AIG unit New Hampshire Insurance Co.'s argument that a prior state appellate ruling bars Brooklyn homeowners Nusyn and Chaya Erlich from pursuing part of a settlement payout they say they are owed by the insurer and Everest Reinsurance Co., which sued the water cooler maker under the principle of subrogation. Early last month, AIG attorneys argued that the New York Court of Appeals' 1995 ruling in Winkelmann v. Excelsior Insurance Co. outlined a "made whole" doctrine holding that policyholders are not entitled to share in an insurer's recovery from wrongdoers unless the tortfeasor doesn't have enough assets to cover both the insured's and the insurer's claims. Judge Shirley Werner Kornreich tossed the suit on Nov. 7 after finding that the issue presented by the Erlichs "has already been decided" by Winkelmann. "In short, plaintiffs baldly proffer a version of the 'made whole' doctrine that is not recognized under New York law and which is squarely at odds with precedent repeatedly affirmed by the Court of Appeals," Judge Kornreich said. She added that even if this were not true, dismissal would be justified by the plaintiffs' failure to mount their own lawsuit against Greenway Home Products Inc. -- which manufactured the water cooler -- or to substantiate claims they had suffered additional uninsured losses. The Erlichs had secured a policy from the insurer prior to the 2008 water cooler malfunction, which caused more than $124,000 in damage. They received only $112,000 for the damage to their home, however, after the insurer subtracted a deductible and a depreciation holdback, according to the order. Under a subrogation agreement, reinsurer EverestRe then went after Greenway and secured more than New Hampshire had paid to the Erliches. The couple subsequently sued AIG in August 2012, claiming New York state's equitable subrogation law allows an insurer to seek subrogation against only those funds that remain after an insured has been fully compensated for his or her loss and arguing that they are entitled to be reimbursed for the full value of their losses, including the deductible and depreciation holdback. The Erlichs; suit aimed to represent a class of individuals and businesses that purchased New Hampshire Insurance-issued policies during an unspecified class period. It asserted causes of action for deceptive practices under New York business law, violation of the doctrine of equitable subrogation, and unjust enrichment. On Nov. 7, Judge Kornreich noted that the couple had received everything to which they were entitled under the policy, and that the insurance contract they had signed clearly permitted the depreciation deduction the Erlichs sought to have overturned. She went on to chastise the couple for attempting to "piggyback" on EverestRe's lawsuit, saying the onus was on policyholders to commence litigation against a tortfeasor if they hoped to recover money above and beyond their covered losses. "The policyholder cannot sit on its rights, allowing its claims against the tortfeasor to become time-barred, and then sue its insurer for a portion of the subrogation settlement," Judge Kornreich said. "That is fundamentally unfair, and contravenes the subrogation framework and public policy repeatedly articulated by the Court of Appeals." The plaintiffs are represented by Adam J. Gana and Christopher L. Lufrano of Napoli Bern Ripka Shkolnik LLP and Brian G. Maloney and Michael R. Ambrecht of Ambrecht & Maloney PLLC. AIG is represented by Stephen E. Goldman -- sgoldman@rc.com -- of Robinson & Cole LLP. EverestRe is represented by Joseph J. Schiavone -- jschiavone@buddlarner.com -- of Budd Larner PC. The case is Nusyn Erlich et al. v. American International Group Inc. et al., case number 652672/2012, in the Supreme Court of the State of New York, County of New York. NEW ZEALAND: Homeowners Mull Group Action v. Earthquake Commission ------------------------------------------------------------------ Nicole Mathewson, writing for Stuff.co.nz, reports that almost 200 people have registered their interest for a group action against the Earthquake Commission's handling of Canterbury's earthquake rebuild. Law firm Anthony Harper is calling for disgruntled homeowners to join its campaign to hold EQC to its obligations under the Earthquake Commission Act. Lawyer Simon Munro said nearly 200 registrations of interest had been received in the last few weeks from property owners concerned about the amount of money the commission was offering as cash settlements or unhappy about the work it was planning to do on their homes. "For most people it is their biggest asset which is at stake. They have exhausted all other options and believe it is time for the High Court to force EQC's hand." The proposed action aimed to get a declaratory judgment from the High Court confirming the standard of repair EQC was required to meet. The judgment would impact both repairs made by Fletcher EQR on EQC's behalf as well as the amount EQC paid if it elected to settle claims in cash. Mr. Munro said under the Earthquake Commission Act, EQC was obliged to replace or reinstate a building to the same condition it was when it was new, subject to any applicable laws. If building materials or methods had evolved, or specific products were no longer available, the Earthquake Commission Act said EQC was only bound to replace or reinstate as circumstances allowed and in a "reasonably sufficient manner". Mr. Munro said EQC appeared to be relying on the "reasonably sufficient" standard in all cases, not just those where circumstances did not allow complete reinstatement. Anthony Harper wanted to establish whether EQC's approach was wrong, and Mr. Munro said the ideal outcome would be to change the commission's approach without the need for court action, but litigation would happen if necessary. A meeting would be held at the Cardboard Cathedral on November 25 to formally bring those interested in class action together, but the discussion would be closed to the media and wider public. Although there was strong interest in the class action, there was no guarantee yet that the proceeding would go ahead. "That is the purpose of the meeting at the Cardboard Cathedral - to provide the homeowners who have registered their interest with more information and give them the opportunity to confirm their commitment to joining the action." Mr. Munro said all work to date had been pro bono, but that was not sustainable. "There will be costs that must be covered as we progress. That is one of the reasons a group action is being considered as this will also help spread the costs for those involved." NOEL'S PAINTING: Class Seeks to Recover Unpaid Overtime Wages ------------------------------------------------------------- Elliot Hucks, on his own behalf and others similarly situated v. Noel's Painting, Inc., A Florida Corporation & Travis Noel, individually, Case No. 2:13-cv-00719-JES-DNF (M.D. Fla., October 11, 2013) is a claim for unpaid overtime and unpaid wages brought pursuant to the Fair Labor Standards Act to recover overtime wages, an additional and equal amount in liquidated damages, and attorneys' fees and costs. Noel's Painting, Inc., is a painting company headquartered in Lee County, Florida. The Plaintiff is represented by: Cecilia Barber, Esq. MORGAN & MORGAN, PA 600 N. Pine Island Rd., Suite 400 Plantation, FL 33324 Telephone: (954) 318-0268 Facsimile: (954) 333-3515 E-mail: CBarber@forthepeople.com NQ MOBILE: Exaggerates Performance, China Market Share, Suit Says ----------------------------------------------------------------- Iulia Filip at Courthouse News Service reports that security software maker NQ Mobile pumped up its stock price by exaggerating its financial performance and its market share in China, a class action claims in Federal Court. Lead plaintiff Michael Kostuk Jr. calls NQ Mobile, a Chinese developer of antivirus and anti-malware software, "a massive fraud," in the lawsuit, which cites an October 24 report by securities research firm Muddy Waters, regulatory filings and other public information. The price of NQ shares dropped by 47 percent on Thursday, October 24, 2013, knocking $500 million off its market capitalization, after Muddy Waters released its report, and fell another 20 percent on Friday, October 24, 2013, Reuters reported. NQ threatened to sue Muddy Waters, whose owner, Carson Block, Reuters described as a short seller. NQ, whose portfolio includes mobile security, mobile games and advertising, has two global headquarters, in Dallas and Beijing. It is led by two chief executive officers: co-founder Henry Lin in China and former Samsung Electronics Co. Chief Strategy Officer Omar Khan, a Massachusetts Institute of Technology graduate. Most of the company's 400 employees work in Beijing and about 60 percent of its revenue comes from China, Bloomberg Businessweek reported in August. NQ Mobile was listed on the New York Stock Exchange in 2011 in an $89 million offering underwritten by Piper Jaffray. It raised an additional $69 million in a secondary offering last year, according to regulatory filings. The company completed the sale of $172.5 million in convertible bonds this month. Morgan Stanley and Deutsche Bank unit Deutsche Bank Securities bought $22.5 million of that offer, Reuters reported. Morgan Stanley & Co. International and Deutsche Bank Securities are also named as defendants. Neither bank, however, acted as an underwriter for NQ Mobile's initial public offering. The complaint states: "On Oct. 24, 2013, it was reported by a securities brokerage firm (Muddy Waters) that: "a) NQ is a massive fraud. At least 72 percent of NQ's purported 2012 China security revenue is factitious. NQ's largest customer by far is really NQ. Their research estimates that NQ's real market share in China is only about 1.5 percent versus the approximately 55 percent it reports. It did estimate that its China paying user base is less than 250,000 versus the six million NQ claims. "b) NQ's Antivirus 7.0 is unsafe to sell to consumers and its spyware makes users' phone vulnerable to cyber attack. NQ makes a weak attempt to protect users' private data as it's uploaded through the Chinese government's firewall to NQ's server. Phones [are] vulnerable to MITM attacks because NQ fails to adhere to basic security protocols. MW engaged top-flight security software engineers to analyze this product. "c) NQ's purported international revenue of $36.5 million is likely less than its PRC revenue. NQ claims to generate international revenue in obscure markets and through mysterious counterparts that seem to seldom pay. "d) NQ's future is as bleak as its past. The recent pivot to advertising and gaming is merely an attempt to change to a fraud that NQ hopes will be less obvious. NQ cannot monetize users that it does not have. "e) NQ's acquisitions are highly likely to be corrupt. "f) NQ's cash balance[s] are generally fictitious. In NQ's 2012 20-F, PwC classified all cash and term deposits as Level 2 assets. NQ's purported movements of cash from its IPO almost certainly did not occur due to PRC FX controls. Therefore, the term deposits are likely forgeries." NQ Mobile's share price sank by $10.91 per share Thursday, October 24, 2013, after Muddy Waters released its report, to close at $12.09 per share, according to the complaint. Kostuk, who claims he bought NQ Mobile securities at an inflated price, claims the nose dive cost hundreds of thousands of investors money. He seeks to represent all shareholders who bought NQ Mobile stock between May 5, 2011, and October 24, 2013. Millions of NQ Mobile shares were traded publicly during that period, including 29 million shares of common stock on October 24, according to the complaint. NQ Mobile's shares, traded as an American depositary receipt on the New York Stock Exchange, almost doubled in July this year, making NQ Mobile one of the best-performing stocks on the Bloomberg index of 55 Chinese-owned companies listed in the United States. As of August 9, the stock was up 175 percent in 2013, according to Bloomberg Businessweek. Kostuk claims that NQ Mobile knowingly misrepresented its financial condition, operations and prospects in SEC filings, press releases and other public statements. He claims the London-based Morgan Stanley & Co. International and Deutsche Bank Securities had access to information about NQ Mobile's true financial state, but failed to warn investors or stop the dissemination of false information. NQ Mobile announced this month that it had granted up to $150 million in convertible senior notes due in 2018 to Morgan Stanley & Co. International and Deutsche Bank Securities, according to the complaint. Deutsche Bank declined to comment on the lawsuit. NQ Mobile did not reply to a request for comment. Morgan Stanley & Co. International declined to comment. NQ Mobile on Friday, October 24, 2013, responded to Muddy Water by publishing a list of 14 bank accounts in mainland China and Hong Kong that showed deposits totaling the equivalent of about $295 million, according to Reuters. The company called the Muddy Waters allegations "false and inaccurate," but said its board of directors has formed a special committee to review the allegations. Kostuk seeks class certification and damages for securities violations. A similar class action has been filed in Manhattan Federal Court. The Plaintiffs is represented by: Evans Carter, Esq. EVANS J. CARTER, P.C. 860 Worcester Rd. Framingham, MA 01702 Telephone: (508) 875-1669 NQ MOBILE: Glancy Binkow & Goldberg Files Class Action in N.Y. -------------------------------------------------------------- Glancy Binkow & Goldberg LLP, representing investors of NQ Mobile Inc., on Nov. 7 disclosed that it has filed a class action lawsuit in the United States District Court for the Southern District of New York on behalf of a class comprising all purchasers of NQ Mobile securities between May 5, 2011 and October 24, 2013, inclusive. A COPY OF THE COMPLAINT IS AVAILABLE FROM THE COURT OR FROM GLANCY BINKOW & GOLDBERG LLP. PLEASE CONTACT US TOLL-FREE AT (888) 773- 9224, OR AT (212) 682-5340, OR BY EMAIL TO SHAREHOLDERS@GLANCYLAW.COM TO DISCUSS THIS MATTER. IF YOU INQUIRE BY EMAIL PLEASE INCLUDE YOUR MAILING ADDRESS, TELEPHONE NUMBER AND NUMBER OF SHARES PURCHASED. NQ Mobile is a Beijing, China-based provider of mobile Internet services, including mobile security, privacy, productivity, personalized cloud and family protection. The Complaint alleges that the defendants issued false and/or misleading statements and failed to disclose material facts concerning NQ Mobile's business, operations and financial performance. On October 24, 2013, Muddy Waters Research Group issued a report alleging that, among other things: -- At least 72% of NQ's purported China security revenue is fictitious and the Company's largest customer is actually NQ Mobile. -- NQ Mobile's actual market share in China is about 1.5%, rather than the approximately 55% it purports, and its paying China user base is less than 250,000, rather than the approximately six million it purports. -- NQ Mobile's Antivirus 7.0 is unsafe for sale to consumers, and creates serious vulnerabilities, making users' phones prone to data compromise and cyber attack. If you are a member of the Class described above you may move the Court no later than December 27, 2013, to serve as lead plaintiff; however, you must meet certain legal requirements. If you wish to learn more about this action, or have any questions concerning this announcement or your rights or interests with respect to these matters, please contact Michael Goldberg, Esquire, of Glancy Binkow & Goldberg LLP, 1925 Century Park East, Suite 2100, Los Angeles, California 90067, Toll Free at (888) 773-9224, or contact Gregory Linkh, Esquire, of Glancy Binkow & Goldberg LLP at 122 E. 42nd Street, Suite 2920, New York, New York 10168, at (212) 682-5340, by e-mail to shareholders@glancylaw.com or visit our website at http://www.glancylaw.com If you inquire by email please include your mailing address, telephone number and number of shares purchased. OIL STATES: Accused of Not Correctly Paying Oil Field Workers' OT ----------------------------------------------------------------- Jessica Hall, as the representative of the estate of David Allan Hall, deceased, Individually and on behalf of all others similarly situated v. Oil States International, Inc. and Oil States Energy Services, L.L.C. F/K/A Specialty Rental Tools & Supply, L.L.C., Case No. 2:13-cv-00318 (S.D. Tex., October 14, 2013) alleges that the Defendants knowingly and deliberately failed to compensate Jessica Hall's late husband, David Hall, and other similarly situated oil field workers based on the time-and-a-half overtime formula in the Fair Labor Standards Act by not including non- discretionary bonus payments in the calculation of the overtime rate of pay. Oil States International, Inc. and Oil States Energy Services, L.L.C. are Delaware corporations headquartered in Houston, Harris County, Texas. The Plaintiff is represented by: Craig M. Sico, Esq. Roger S. Braugh, Jr., Esq. Clif Alexander, Esq. SICO, WHITE, HOELSCHER, HARRIS & BRAUGH L.L.P. 802 N. Carancahua, Suite 900 Corpus Christi, TX 78401 Telephone: (361) 653-3300 Facsimile: (361) 653-3333 E-mail: csico@swhhb.com rbraugh@swhhb.com calexander@swhhb.com - and - James H. Hada, Esq. SICO, WHITE, HOELSCHER, HARRIS & BRAUGH L.L.P. Three Riverway, Suite 1910 Houston, TX 77056 Telephone: (713) 465-9944 Facsimile: (888) 521-5576 OPERATING ENGINEERS UNION: Called Hotbed of Corruption by Members ----------------------------------------------------------------- Writing for Courthouse News Service, William Dotinga reports that The International Union of Operating Engineers cavorts with international crime syndicates, spends union dues illegally and intimidates dissenters with threats of violence, disgruntled union members claim in a federal class action. Lead plaintiff David Slack et al. accuse IUOE, Local 3 -- headquartered in Alameda -- and 68 other defendants of violating labor management laws, the California Labor Code, ERISA and racketeering laws, in the 111-page complaint. The IUOE represents heavy equipment operators and other construction workers and is the 10th largest union in the AFL-CIO. Local 3 is its largest branch, representing workers in California, Nevada, Utah, Hawaii and the Pacific Rim islands. The class begins by accusing IUOE bosses of forcing all members to contribute 1 percent of their salaries to the "President's Club," a euphemism for the union's political action committee fund. Although federal election laws prohibit unions from forcing PAC contributions from members, the plaintiffs claim IUOE threatens members with termination and deducts the contribution directly from their paychecks. The plaintiffs claim they've paid millions into the Hawaiian Stabilization Fund, ostensibly to enforce contractors' compliance with prevailing wage obligations and to keep them from operating "double-breasted" -- working with unions while opening up their own nonunion opportunities on the side. In reality, the fund is a quasi-PAC used to push political agendas in Hawaii, according to the class. "The Hawaiian Stabilization Fund is not -- and has not been, for years -- actually operating as a compliance fund, despite its official position conveyed to members that it is," the members state in the complaint. "The defendants, along with [defendant] IUOE vice president Russell Burns, concealed the true current purpose and operation of the fund from members of Local 3, District 17. Specifically, they concealed that it is used as a quasi-political action fund, which is operated by Local 3 to advance political agendas on the island, and as a slush fund abused by employees of the fund to enjoy extravagant trips, expensive lunches, limousines, and the like. The fund appears to be used as a means to divert member wages to other union officers outside Hawaii, since the monies are deposited into the OE Credit Union and, on at least one occasion, millions of dollars vanished as the result of a purported 'loan' to Local 3 Utah operations, though no formal record of that loan is available or, to plaintiffs' knowledge, disclosed in Department of Labor filings." The plaintiffs claim that few, if any, fund employees have been hired to enforce contractors' compliance. Instead, they say, union bosses use the fund -- which raises $4 million annually from members -- to hire lobbyists and as a secret slush fund. "Defendant Burns and the trustees of fund have always been more concerned with protecting this secret slush fund than in detecting and stopping misuse of fund assets," the class claims. "For example, between 2006 and 2012 embezzlement and credit card fraud were rampant at the fund. Specifically, defendant Perry Artates embezzled roughly $90,000 through improper credit card-based charges in one year. But, instead of firing Artates and suing to recover the stolen funds, defendant Alvin Kobayashi simply assisted Burns in concealing the full magnitude of the misconduct, in violation of their fiduciary duties. Meanwhile, other trustees are aware that Kobayashi is improperly serving as a trustee, but they have all breached their duties to the Hawaiian Stabilization Fund and Local 3 members by failing to force the removal of Kobayashi." In addition to the alleged hanky-panky with the Hawaiian compliance fund, the plaintiffs claim, nepotism and a bad investment vehicle led to the evaporation of $50 million in IUOE pension funds. Defendant -- and Western States Conference President -- William Waggoner pressured local branches to invest their pension funds in Amalgamated Bank's product line, which were sold by Waggoner's wife Patricia, one of the bank's vice presidents, according to the lawsuit. "In or about 2008, Patricia Waggoner first appeared at a Local 3 Pension trustee meeting to 'pitch' investments by the pension trust into the Longview Ultra Construction Loan Investment Fund and Longview International Value Equity Fund," according to the complaint. "Unable to give adequate answers to the trustees' investment questions, she essentially passed out flyers to the attendees, after which defendant Carl Goff, then vice president of Local 3, fielded questions with another Amalgamated Bank representative, Mr. Handworker, Ms. Waggoner's supervisor at Amalgamated. The fact that Ms. Waggoner was incapable of answering investment-related questions should alone have caused the trustees to have great concern about her investment proposals." Neither Amalgamated Bank nor its employees are parties to the lawsuit. After the meeting, Local 3 agreed to invest $100 million from its pension fund in the Longview Ultra Construction Loan Investment Fund; by the end of 2010, the fund had lost $50 million of the $90 million Local 3 had invested, the complaint states. "The Longview Construction Loan Fund touted investments in construction loans as the mechanism for returns on investor assets," the plaintiffs claim. "However, many of the investments were poorly evaluated, as many of the major construction projects were never completed, forcing Amalgamated Bank to foreclose on a number of major real estate projects in an attempt to reduce losses suffered by the fund. The Longview Construction Loan Fund was an unsuitable investment choice for Local 3's pension funds, due to its risky and unsound investment practices. Pension investments must be protected from the risk of significant loss, and the trustees of the Local 3 OE Pension Fund failed to do that. The officers of Local 3 breached their fiduciary duties by encouraging to the point of requiring investment by the Local 3 OE Pension Fund in the Longview Construction Loan Fund. William Waggoner breached his fiduciary duty to the members of Local 3 when he utilized his position as first vice president of IUOE and western states conference president to pressure Local 3 to invest in the Longview Construction Loan Fund in large part to benefit his wife, Patty Waggoner, at Amalgamated Bank." The plaintiffs claim the FDIC accused Amalgamated of "cooking the books" in 2011. Billionaires Wilbur Ross and Ron Burkle rescued the bank -- the largest union-owned lender in the U.S. -- from the brink of ruin with a combined $100 million bailout in 2012. The plaintiffs claim the pension fund remains in the red and severely underfunded, though Local 3 officers call the fund's health "in the orange," according to the complaint. Not all of the peeved union members' allegations involve money. They accuse Local 3 bosses of doing business with international organized crime, including Japan's Yakuza and the Triads of China, in the Pacific Rim islands of Guam, Samoa, Marshall Islands and the Philippines. "Burns is not appropriately concerned about Local 3's dealings with organized crime rings, going so far as to remove one officer, William Kahlani Mahoe, who prepared a report detailing extensive corruption involving contractors on Guam," the plaintiffs say in the complaint. "Mr. Mahoe, the former Local 3 treasurer, was replaced with defendant Dan Reding and business continued as usual on the islands." The plaintiffs continue: "The Triads refer to the many branches of Chinese transnational organized crime organizations or the Chinese mafia which are based in Hong Kong, the Philippines, Thailand, Macau, Taiwan, and within the islands which comprise the Pacific Rim, and also in countries with significant Chinese populations, such as the United States. The Triads currently engage in a variety of crimes, from extortion, money laundering, trafficking, and gambling and prostitution. "Yakuza are members of transnational organized crime syndicates operating in Japan or in areas around the world with significant Japanese populations, such as in the Hawaiian Islands and the Pacific Rim islands. The Yakuza, like the Triads, are notorious for their strict codes of conduct and very organized nature. They have a large presence and operate internationally with an estimated 103,000 members. Local 3 allows contractors operated by front organizations for the Yakuza and Triads to operate double- breasted. There is no real compliance operation in Hawaii and the Pacific Rim, causing widespread injury to members, who are not employed due to the prevalence of non-union signatory construction operations." Local 3 bosses use threats, intimidation and actual physical violence to quell dissent in their own rank and file and other businesses, the union members claim. They say bosses terrorized the manager of a construction company -- and the man's wife -- in an effort to force the company into a collective bargaining agreement. Plaintiff Kenneth Mendoza claims he was beaten to a pulp at a union meeting for opposing what he viewed as a bait-and-switch pension multiplier change. He says Burns ordered the beating and enlisted help from local law enforcement -- many of whom received campaign support from Burns -- to cover up the assault. Plaintiff Slack says Burns tried to terrorize his wife into keeping Slack silent about the corruption in Local 3, and used a nefarious union facility to do so: "Burns and other labor leaders within Local 3 conspired to terrorize Mrs. Slack at a time that they believed David Slack would be out of town, intending that by doing so they would silence plaintiff Slack. Local 3 operates an exclusive job referral hall that give[s] Local 3 knowledge about where a member will be for work and the associated best times to harass and intimidate a member's family at their home. In fact, through the use of an exclusive job referral hall, Local 3 can actually control the whereabouts of any particular member by virtue of where they dispatch them to work. "Fortunately for Mrs. Slack, Mr. Slack was actually home, and armed, when armed Local 3 employees arrived at his home in furtherance of the conspiracy to terrorize Mr. Slack's wife. After tense moments, the management thugs departed." The plaintiffs claim they continue to face reprisals from union leaders for trying to expose corruption. Some of the intimidation comes from the Hells Angels motorcycle gang, which Local 3 has sued since 2003 to keep dissident members in line, according to the lawsuit. This is not the first branch of IUOE to levy charges of racketeering against the union. Last year, disgruntled members of Local 501 claimed bosses embezzled tens of millions of dollars and ran the union "with the same disregard for others' rights as the mob." In addition to damages and treble damages, the members seek a permanent restraining order against all defendants, disgorgement and equitable relief for their ERISA claims. The Plaintiffs are represented by: J. Mark Moore, Esq. MOORE & LEVIANT LLP Woodland Hills, CA Telephone: (877) 360-7020 E-mail: admin@mllawyers.net ORRIOS CONSTRUCTIONS: Fails to Pay Regular & OT Wages, Suit Says ---------------------------------------------------------------- Pedro Ivan Castellon and other similarly-situated individuals v. Orrios Constructions Corp., and Orlando Rios, individually, Case No. 1:13-cv-23707-JAL (S.D. Fla., October 11, 2013) is a class action that seeks to recover money damages for unpaid minimum, and overtime wages under the laws of the United States. The Plaintiff alleges that he was not paid his regular wages and he was not paid overtime at the rate of one time and one-half his regular rate of pay for every hour that he worked in excess of forty. Orrios Constructions Corp. is a Profit corporation registered to do business in Florida. The Company is a full service contractor supplying labor, material and equipment for the completion of residential and commercial building projects. The Company provides services in Miami-Dade County, Florida, where the Plaintiff worked. Orlando Rios is the owner/president of the Company. The Plaintiff is represented by: Zandro E. Palma, Esq. ZANDRO E. PALMA, P.A. 3100 South Dixie Highway, Suite 202 Miami, FL 33133 Telephone: (305) 446-1500 Facsimile: (305) 446-1502 E-mail: zep@thepalmalawgroup.com PHILIP MORRIS: Marlboro Lights Suit Gets Class Action Status ------------------------------------------------------------ John Lynch, writing for NWAonline, reports that Pulaski County Circuit Judge Tim Fox on Nov. 8 formally granted class-action status to a deceptive-trade practices lawsuit against the manufacturer of Marlboro Lights cigarettes, a move that has the potential to create Arkansas' largest plaintiffs pool ever, with possibly more than a million litigants. PILOT FLYING J: Settlement Fairness Hearing Deadline Looms ---------------------------------------------------------- Clarissa Hawes, writing for Land Line, reports that as the Nov. 25 fairness hearing deadline looms in the proposed class action settlement involving the nation's largest truck stop chain, many trucking companies are wondering if this is the best deal for them. The terms of the settlement may exceed $72 million. Much of the curiosity surrounding the deal involves vague information about a company, National Trucking Financial Reclamation Services LLC of Little Rock, Ark. The company was incorporated just two days before filing its class action complaint in federal court in Little Rock. As reported by Land Line in late April, Lane Kidd, president of the Arkansas Trucking Association, formed National Trucking on April 22, just days after Pilot's headquarters in Knoxville, Tenn., were raided and a criminal investigation into its fuel rebate program practices was announced. Mr. Kidd's newly formed LLC is not a trucking company and is not owed money from Pilot, but the companies he represents are owed. He and the law firm he hired jumped out with the first class- action lawsuit against Pilot on April 24, just nine days after the Internal Revenue Service and the Federal Bureau of Investigation publicly announced its criminal investigation into Pilot's rebate program. Other trucking companies then joined the suit, but are not part of National Trucking and are not based in Arkansas. Recently Mr. Kidd provided more insight about the company he formed, describing it as "much like a collections agency." He said it was designed to help his trucking association members receive the money he says they are owed by Pilot. "I know these company owners and wanted to help them seek justice and recover their money that Pilot owed them," he told Land Line. While he will not disclose the names of the carriers he represents, Mr. Kidd told Land Line that all of the unnamed companies are Arkansas-based trucking companies and are also member companies of the Arkansas Trucking Association. "The company was formed for the specific purse of recovering money for trucking companies," Mr. Kidd wrote in a statement to Land Line. "Owners are reluctant to have the publicity. It's much like a collections agency and is not uncommon, according to the law firm I retained." Mr. Kidd says he has not received, and will not receive, a dime from his involvement in the settlement he helped orchestrate. "I have not been paid by anyone," Mr. Kidd said. "The industry has been and continues to be very good to me." Of the approximately $72 million, approximately $55 million will go toward the total principal amount owed to the class, according to court documents filed in the U.S. District Court for the Eastern District in Little Rock, Ark. The remaining $17 million will be used for attorney's fees, plus administrative costs. Rachel Albright of The Ingram Group, the public relations firm representing Pilot, told Land Line that there are around 5,500 eligible companies that have been included in the proposed settlement deal. While some trucking companies have signed on to the proposed deal, other trucking companies have said no deal and still want the option to pursue their own legal action against Pilot. So far, Ms. Albright said the latest number shows as many as 150 trucking companies have opted out of the proposed settlement. She added that "many can be consolidated under the same ownership." Nearly 30 lawsuits have been filed in state and federal court against Pilot since the announcement in April that a criminal investigation had been launched into the truck stop chain over an alleged fuel rebate scam. So far, seven former Pilot sales employees have pleaded guilty to their roles in the alleged scam to defraud trucking companies out of rebates they were owed as part of agreements to purchase a certain volume of fuel from Pilot each month. PREMIER BEVERAGE: Did Not Pay All Overtime Hours, Suit Claims ------------------------------------------------------------- Amos Ducatel v. Premier Beverage Company, L.L.C., Case No. 0:13- cv-62234-WJZ (S.D. Fla., October 11, 2013) alleges that the Defendant did not compensate the Plaintiff, and those similarly situated employees, for all overtime hours worked in a work week. The Plaintiff is represented by: Andrew I. Glenn, Esq. Jodi J. Jaffe, Esq. JAFFE GLENN LAW GROUP, P.A. 12000 Biscayne Boulevard, Suite 305 North Miami, FL 33181 Telephone: (305) 726-0060 Facsimile: (305) 726-0046 E-mail: AGlenn@JaffeGlenn.com jjaffe@jaffeglenn.com PRETIUM RESOURCES: Holzer Holzer & Fistel Files Class Action ------------------------------------------------------------ Holzer Holzer & Fistel, LLC disclosed that it has filed a class action lawsuit on behalf of investors who purchased Pretium Resources, Inc. common stock between January 19, 2011 and October 24, 2013. The complaint, which was filed in the United States District Court for the Southern District of New York, alleges that a series of statements made during that time regarding Pretium's business, operations and prospects were false and misleading. Specifically, the complaint alleges that Pretium misrepresented and failed to adequately disclose that: (a) the Company had not acquired credible evidence demonstrating the quantity or quality of gold reserve estimates it claimed during the Class Period; (b) one of the firms Pretium had hired to provide independent analysis of the quantity and quality of the gold reserves at its all-important Brucejack Project during the Class Period, Snowden Mining Industry Consultants, was not using a reliable methodology to evaluate its gold reserve estimates; (c) Snowden and Strathcona Mineral Services Ltd. -- one of Canada's most highly-regarded teams of geologists, and one of the two firms the Company had hired to evaluate the quality of its gold reserves at Brucejack (along with Snowden) -- did not agree on the methodology to be used to evaluate Pretium's gold reserve estimates; (d) contrary to Pretium's statements during the Class Period, its 2012 Mineral Resource estimates prepared by Snowden did not accurately classify the mineral resources present as Measured, Indicated and Inferred Resources; and (e) as a result of the foregoing, Pretium's gold estimates reported during the Class Period were not as reliable it had led the market to believe. If you purchased Pretium common stock between January 19, 2011 and October 24, 2013 you have the legal right to petition the Court to be appointed a "lead plaintiff." A lead plaintiff is a representative party that acts on behalf of other class members in directing the litigation. Any such request must satisfy certain criteria and be made no later than December 24, 2013. Any member of the purported class may move the Court to serve as lead plaintiff through counsel of their choice, or may choose to do nothing and remain an absent class member. If you are a Pretium investor and would like to discuss a potential lead plaintiff appointment, or your rights and interests with respect to the lawsuit, you may contact Michael I. Fistel, Jr., Esq., or Marshall P. Dees, Esq. via email at mfistel@holzerlaw.com or mdees@holzerlaw.com or via toll-free telephone at (888) 508-6832. Holzer Holzer & Fistel, LLC -- http://www.holzerlaw-- is an Atlanta, Georgia law firm that dedicates its practice to vigorous representation of shareholders and investors in litigation nationwide, including shareholder class action and derivative litigation. SECURITAS SECURITY: Mislabels Annual Bonus Program, Suit Claims --------------------------------------------------------------- Michael Dietrick, individually and on behalf of all others similarly situated v. Securitas Security Services USA, Inc., Case No. 3:13-cv-05016-EDL (N.D. Cal., October 28, 2013) alleges that Securitas mislabeled a non-discretionary annual bonus program as a "vacation pay" policy to avoid adding the non-discretionary annual bonus in overtime calculations for more than 90,000 employees. The Plaintiff is represented by: Eduardo Gregory Roy, Esq. John R. Hurley, Esq. PROMETHEUS PARTNERS L.L.P. 220 Montgomery Street, Suite 1094 San Francisco, CA 94104 Telephone: (415) 527-0255 E-mail: john.hurley@prometheus-law.com eduardo.roy@prometheus-law.com SYMMETRICOM INC: Being Sold to Microsemi Too Cheaply, Suit Says --------------------------------------------------------------- Barron Young, Individually and on Behalf of All Others Similarly Situated v. Symmetricom, Inc., Microsemi Corporation, PETT Acquisition Corp., Elizabeth A. Fetter, Jim Chiddix, Alfred F. Boschulte, Robert T. Clarkson, Robert Neumeister, Richard W. Oliver, Richard N. Snyder, Robert J. Stanzione and Does 1-25, inclusive, Case No. 1-13-CV-255292 (Cal. Super. Ct., Santa Clara Cty., October 29, 2013) alleges that the Company and the Individual Defendants breached their fiduciary duties in connection with the proposed acquisition of the Company by Microsemi through an unfair process and at an unfair price. Based in San Jose, California, Symmetricom, Inc., is a worldwide leader in precision time and frequency technologies. The Individual Defendants are directors and officers of the Company. The true names and capacities of the Doe Defendants are presently not known to the Plaintiff. Microsemi Corporation is a Delaware corporation headquartered in Aliso Viejo, California. PETT Acquisition Corp. is a Delaware corporation and a wholly-owned subsidiary of Microsemi. The Plaintiff is represented by: Randall J. Baron, Esq. A. Rick Atwood, Jr., Esq. David T. Wissbroecker, Esq. Edward M. Gergosian, Esq. ROBBINS GELLER RUDMAN & DOWD LLP 655 West Broadway, Suite 1900 San Diego, CA 92101 Telephone: (619) 231-1058 Facsimile: (619) 231-7423 E-mail: randyb@rgrdlaw.com ricka@rgrdlaw.com DWissbroecker@rgrdlaw.com EGergosian@rgrdlaw.com - and - Richard A. Maniskas, Esq. RYAN & MANISKAS, LLP 995 Old Eagle School Road, Suite 311 Wayne, PA 19087 Telephone: (484) 588-5516 Facsimile: (877) 4580-2582 E-mail: rmaniskas@rmclasslaw.com TESLA MOTORS: Pomerantz Law Firm Files Class Action in California ----------------------------------------------------------------- Pomerantz Grossman Hufford Dahlstrom & Gross LLP on Nov. 8 disclosed that it has filed a class action lawsuit against Tesla Motors, Inc. and certain of its officers. The class action, filed in United States District Court, Northern District of California, and docketed under 3:13-cv-05216, is on behalf of a class consisting of all persons or entities who purchased or otherwise acquired Tesla securities between May 10, 2013 and November 6, 2013 both dates inclusive. This class action seeks to recover damages against Defendants for alleged violations of the federal securities laws pursuant to Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 and Rule 10b-5 promulgated thereunder. If you are a shareholder who purchased Tesla securities during the Class Period, you have until January 7, 2014 to ask the Court to appoint you as Lead Plaintiff for the class. A copy of the Complaint can be obtained at http://www.pomerantzlaw.com To discuss this action, contact Robert S. Willoughby at rswilloughby@pomlaw.com or 888-476-6529 (or 888-4-POMLAW), toll free, x237. Those who inquire by e-mail are encouraged to include their mailing address, telephone number, and number of shares purchased. Tesla designs, develops, manufactures, and sells electric vehicles, including its flagship Model S, and electric vehicle powertrain components. The Complaint alleges that throughout the Class Period, Defendants made false and misleading statements and failed to disclose material adverse facts about the Tesla's business, including: (1) Tesla's statements about the Model S's highest safety rating and its lack of prior fire incidents were materially misleading, due to undisclosed puncture and fire risks in its undercarriage and lithium ion battery pack; (2) the Model S suffered from material defects which caused the battery pack to ignite and erupt in flames under certain driving conditions; (3) Tesla's future sales, its next generation Model X introduction, and its stock price were extremely vulnerable to the inherent risk posed by the Model S's undercarriage and battery pack design flaws; (4) Tesla was unable to maintain a level of automobile deliveries sufficient to satisfy analyst concerns and compensate for other declining revenue streams; and, (5) as a result of the foregoing, Tesla's public statements were materially false and misleading at all relevant times. On October 2, 2013, a video of a Model S burning on the roadside was widely circulated, which Tesla attributed to a collision with road debris. The same day, Tesla was downgraded by an analyst who pointed to significant execution risks it faced. On this news, Tesla shares declined $12.05 per share, or more than 6%, to close at $180.95. On October 28, 2013 a second Model S fire occurred in Mexico, which Tesla blamed on the car's rate of speed and its crash into a tree. On this news, Tesla shares fell $7.32 per share, or more than 4.3% to close at $162.86 on October 28, 2013. Tesla's stock closed at $176.81 on November 5, 2013. That day, after hours, Tesla announced its Q3 2013 results, which failed to meet analyst expectations on key metrics, including rate of vehicle deliveries. On November 7, 2013, Tesla confirmed a third Model S fire, caused by impact with road debris during normal driving conditions. On this news, Tesla shares opened at $154.81 on November 6, 2013 -- $22.00 per share (12.44%) lower than the prior day's closing price, and declined on November 6-7, 2013 to $139.77. With offices in New York, Chicago, Florida, and San Diego, The Pomerantz Firm -- http://www.pomerantzlaw.com-- concentrates its practice in the areas of corporate, securities, and antitrust class litigation. Founded by the late Abraham L. Pomerantz, known as the dean of the class action bar, the Pomerantz Firm pioneered the field of securities class actions. Today, more than 70 years later, the Pomerantz Firm continues in the tradition he established, fighting for the rights of the victims of securities fraud, breaches of fiduciary duty, and corporate misconduct. US HEALTH DEP'T: Sued by Christian Employers Over Abortion Drugs ---------------------------------------------------------------- Reaching Souls International, Inc., an Oklahoma not for profit corporation; Truett-McConnell College, Inc., a Georgia nonprofit corporation; by themselves and on behalf of all others similarly situated, and Guidestone Financial Resources of the Southern Baptist Convention, a Texas nonprofit corporation v. Kathleen Sebelius, Secretary of the United States Department of Health and Human Services; United States Department of Health and Human Services; Thomas E. Perez, Secretary of the United States Department of Labor; United States Department of Labor; Jacob J. Lew, Secretary of the United States Department of the Treasury; and United States Department of the Treasury, Case No. 5:13-cv- 01092-D (W.D. Okla., October 11, 2013) is a class action lawsuit on behalf of Christian employers, who participate in the health benefits plan maintained by GuideStone Financial Resources of the Southern Baptist Convention to provide health benefits to their employees. The Plaintiffs allege that these employers are constrained by their religious convictions from participating in the federal government's regulatory scheme to promote, encourage, and subsidize the use of abortion-inducing drugs and devices. The Defendants are appointed officials of the United States government and United States governmental agencies responsible for issuing and enforcing the challenged regulations. Kathleen Sebelius is the Secretary of the United States Department of Health and Human Services. In this capacity, she has responsibility for the operation and management of HHS. United States Department of Health and Human Services is an executive agency of the United States government and is responsible for the promulgation, administration, and enforcement of the challenged regulations. Thomas E. Perez is the Secretary of the United States Department of Labor. In this capacity, he has responsibility for the operation and management of the Department of Labor. United States Department of Labor is an executive agency of the United States government and is responsible for the promulgation, administration, and enforcement of the challenged regulations. Jacob J. Lew is the Secretary of the United States Department of the Treasury. In this capacity, he has responsibility for the operation and management of the Department of the Treasury. United States Department of the Treasury is an executive agency of the United States government and is responsible for the promulgation, administration, and enforcement of the challenged regulations. The Plaintiffs are represented by: Jared D. Giddens, Esq. CONNER & WINTERS, LLP 1700 One Leadership Square 211 North Robinson Oklahoma City, OK 73102 Telephone: (405) 272-5721 Facsimile: (405) 232-2695 E-mail: jgiddens@cwlaw.com - and - Mark Rienzi, Esq. Adele Auxier Keim, Esq. Daniel Blomberg, Esq. THE BECKET FUND FOR RELIGIOUS LIBERTY 3000 K Street NW, Suite 220 Washington, DC 20007 Telephone: (202) 955-0095 Facsimile: (202) 955-0090 E-mail: mrienzi@becketfund.org akeim@becketfund.org dblomberg@becketfund.org - and - Carl C. Scherz, Esq. Seth Roberts, Esq. LOCKE LORD LLP 2200 Ross Avenue, Suite 2200 Dallas, TX 75201 Telephone: (214) 740-8583 Facsimile: (214) 756-8583 E-mail: cscherz@lockelord.com sroberts@lockelord.com WACHOVIA BANK: Faces Nationwide Residential Mortgage Loans Suit --------------------------------------------------------------- Arjamand Hall, individually and on behalf of all others similarly situated v. Wachovia Bank, N.A., Wachovia Mortgage Corporation and Wachovia RE, Inc. (and their successors and assigns), Case No. 2:13-cv-05994-PD (E.D. Pa., October 11, 2013) is a proposed nationwide class action brought on behalf of similarly situated persons, who obtained residential mortgage loans originated, funded and originated through correspondent lending by the Defendants Wachovia Bank, Wachovia Mortgage, together with their affiliated reinsurer Wachovia RE, between January 1, 2004, and the present and who, in connection therewith, purchased private mortgage insurance that was reinsured with Wachovia's captive reinsurance affiliate, Wachovia RE. Wachovia Bank was a national banking association and a wholly owned subsidiary and primary banking affiliate of Wachovia Corporation. Wachovia Mortgage was a North Carolina Corporation, a wholly owned subsidiary of Wachovia Bank and is Wachovia Bank's lending subsidiary. Wachovia was a South Carolina Corporation incorporated on July 5, 2005, and dissolved on December 31, 2011. The Plaintiff is represented by: Joseph H. Meltzer, Esq. Edward W. Ciolko, Esq. Terence S. Ziegler, Esq. Matthew T. Stone, Esq. KESSLER TOPAZ MELTZER & CHECK LLP 280 King of Prussia Road Radnor, PA 19087 Telephone: (610) 667-7706 Facsimile: (610) 667-7056 E-mail: jmeltzer@ktmc.com eciolko@ktmc.com tziegler@ktmc.com mstone@ktmc.com - and - Ronald J. Berke, Esq. BERKE, BERKE & BERKE 420 Frazier Avenue Chattanooga, TN 37402 Telephone: (423) 266-5171 Facsimile: (423) 265-5307 - and - Alan R. Plutzik, Esq. BRAMSON, PLUTZIK, MAHLER & BIRKHAEUSER LLP 2125 Oak Grove Blvd., Suite 120 Walnut Creek, CA 94598 Telephone: (925) 945-0770 Facsimile: (925) 945-8792 E-mail: APlutzik@bramsonplutzik.com WELLS FARGO: Plaintiff Appealed Dismissal of "Singleton" Suit ------------------------------------------------------------- Glynn Singleton appealed to the U.S. Court of Appeals for the Fifth Circuit from an order dismissing her class action lawsuit against Wells Fargo Bank, N.A., Wells Fargo Insurance, Inc., QBE Insurance Corporation, and Sterling National Insurance Agency, Inc. The purported class action lawsuit arises from Wells Fargo's practice of force-placing insurance policies on borrowers. Ms. Singleton alleges that this arrangement allows the Defendants to charge exorbitant rates, which were not arrived at on a competitive basis and were well in excess of those rates, which could have been obtained in the open market. The appellate case is Glynn Singleton v. Wells Fargo Bank, N.A., et al., Case No. 13-60720, U.S. Court of Appeals for the Fifth Circuit. The original case is Glynn Singleton v. Wells Fargo Bank, N.A., et al., Case No. 2:12-CV-216, in the U.S. District Court for the Northern District of Mississippi, Delta Division. The Plaintiff-Appellant is represented by: Peter Byron Gee, Jr., Esq. MORGAN & MORGAN, L.L.C. 1 Commerce Square Memphis, TN 33701 Telephone: (901) 217-7000 - and - John A. Yanchunis, Esq. MORGAN & MORGAN, P.A. 201 N. Franklin Street Tampa, FL 33602 Telephone: (813) 223-5505 The Defendants-Appellees are represented by: Sheryl W. Bey, Esq. BAKER, DONELSON, BEARMAN, CALDWELL & BERKOWITZ, P.C. 4268 I-55 N. Meadowbrook Office Park Jackson, MS 39211 Telephone: (601) 351-2490 Facsimile: (601) 592-7490 E-mail: sbey@bakerdonelson.com - and - John Nelson Rocray BURR & FORMAN, L.L.P. 401 E. Capitol Street Jackson, MS 39201 Telephone: (601) 709-3412 Facsimile: (866) 443-1592 E-mail: jrocray@burr.com - and - Jennifer A. Slagle Peck BUCKLEYSANDLER, L.L.P. 1250 24th Street, N. W. Washington, DC 20037 Telephone: (202) 349-8000 Facsimile: (202) 349-8080 E-mail: jslaglepeck@buckleysandler.com WHIRLPOOL CORP: Attorneys Dismiss Class Action Over Cancer Cluster ------------------------------------------------------------------ Kristina Smith, writing for WKYC.com, reports that attorneys have agreed to dismiss a $750 million class-action lawsuit against Whirlpool Corp. that alleged the company's Clyde division was responsible for the local childhood cancer cluster. The decision to dismiss was not related to a report Whirlpool Corp. released Oct. 31 that the company said shows the closed Whirlpool Park did not cause the Eastern Sandusky County Cancer Cluster, said attorney John Murray of Sandusky, who represents some of the people suing Whirlpool. Whirlpool Park, which Whirlpool operated until 2006 and then sold it, is contaminated with cancer-causing toxins called PCBs. The report on testing done there, however, indicates those toxins are not leaving the property, said attorney Tom Bowlus of Fremont, who represents the current property owners. The attorneys had been working on the paperwork to dismiss the lawsuit two or three weeks before the report was released, Mr. Murray said. He declined to discuss why his clients chose to withdraw the case. "That's confidential," he said. "I don't have the clients' permission to discuss that." The case is dismissed without prejudice, meaning it can be filed again. If the case is filed again, it must be filed in federal court, according to court records. The lawsuit included an estimated 22 people who sued Whirlpool in March in Sandusky County Common Pleas Court. The case was moved to federal court on Oct. 31, court records show. The current owners of Whirlpool Park, Grist Mill Creek LLC, a company owned by Jonathan and Robert Abdoo, also had been named as defendants in the lawsuit. The Eastern Sandusky County Cancer Cluster affected at least 35 children in parts of Clyde, Green Creek Township and Fremont areas, according to the Ohio Environmental Protection Agency. OEPA has worked with other agencies to test drinking water, air and soil, and no cause has been found. Whirlpool Corp. -- whose Clyde plant makes washing machines and is Sandusky County's largest employer -- operated the park from 1953 to 2006 and sold it to the Abdoos in 2008. In a company newsletter dated on Nov. 8, Whirlpool notified its employees the lawsuit was voluntarily dismissed. "We remain committed to defending ourselves against unfounded allegations made by plaintiff attorneys and will keep you informed of further developments in these cases," according to the newsletter, which a Whirlpool spokeswoman provided to The News- Messenger. In 2012, U.S. EPA found sludge containing PCBs buried on the property. The report on testing Whirlpool conducted at the site confirmed those PCBs are there, and Whirlpool believes they may have been part of fill material placed on the site in the 1950s and '60s, company spokesman Jeff Noel said Oct. 31. The results of the testing, which include soil and water samples, showed no contamination in the groundwater or Flag Run, a creek on the property. Whirlpool plans to work with the Abdoos to clean up the land, Noel said. A second lawsuit continues its way through the justice system, representing 42 other plaintiffs. The lead attorney for that case tells Channel 3 News unlike the case that was dropped Friday their case alleges the cancer causing agents were in the air as well as the dirt at Whirlpool Park. "We think there is evidence of an airborne particulate that would explain the cancer cluster and how the cancer causing agent go to these children," said attorney Alan Mortensen. "[The] case that was dropped has no bearing on our case. We're moving forward and we're prepared to go forward." * House Votes to Tighten Asbestos Claim Disclosure Requirements --------------------------------------------------------------- Henry C. Jackson, writing for The Associated Press, reports that the House on Nov. 13 voted to tighten disclosure requirements from asbestos trusts set up more than 20 years ago to help pay billions of dollars in injury claims. By 221-199, the House approved a measure requiring asbestos trusts that pay damages to current and future asbestos victims to publish detailed quarterly reports with bankruptcy courts. The information must include names of new claimants and how much money the trust has paid out, under the legislation. House Republicans say the bill -- backed by the business community and the Chamber of Commerce -- would provide oversight to asbestos trusts and ensure funds are available for future victims. Most House Democrats opposed the measure, citing privacy concerns. The bill is likely to die in the House. The Democratic controlled Senate has no plans to take up the bill and the White House on Tuesday said President Barack Obama would veto it. Asbestos, a building material linked with cancer and other health problems, has been the subject of lawsuits awarding billions of dollars in damages. As health concerns became clearer, and the number of lawsuits swelled, companies forced into bankruptcy because of asbestos litigation transferred their assets and liabilities to trusts established to pay current and future asbestos victims. At least 100 companies have gone into bankruptcy at least in part from liabilities tied to asbestos, according to a 2011 Government Accountability Office report. There are 60 asbestos trusts, with about $37 billion in assets, according to the GAO report. Republicans say those trusts are ripe for fraud because of scant disclosure requirements. Rep. Blake Farenthold, R-Texas, who wrote the bill, said more oversight is needed to prevent people from filing claims with multiple trusts, or fraudulent claims. Trusts are in danger of running out of money if nothing's done, he said. "We've got to protect this for future generations," Rep. Farenthold said. "We simply ask that we know who is getting what out of these trusts." Democrats said the bill would subject asbestos victims to new privacy concerns because their name and the last four digits of their Social Security numbers would be public under the law. "Every crook in the world with Internet access could use this information," said Rep. Hank Johnson, D-Ga. * Italy Introduces Class Action Law After Legislative Process ------------------------------------------------------------- Francesca Rolla, Esq. -- francesca.rolla@hoganlovells.com -- at Hogan Lovells reports that class action law has been introduced in Italy, following a protracted and challenging legislative process. Law 99/2009, which came into effect on January 1, 2010, allows consumers to group together to file a single suit bringing joint court claims. The Law has introduced article 140 bis into the Consumers Code. Article 140 bis has been amended further as a result of more recent reform. Article 140 bis originally provided that "individual homogenous rights of consumers and users" may (also) be enforced through class action, in relation to the contractual rights of a group of consumers or users in identical circumstances regarding the same company (such as where standard term agreements are used), identical rights of end consumers and final users of a product in relation to the manufacturer (irrespective of the lack of direct contractual relationship between them), and identical rights of consumers in respect of unfair business practices or anti- competitive conduct. The Law, as originally drafted, did not clarify when "individual" rights of consumers and users might be considered "homogeneous" and gave no guidelines as to the concept of "identical rights" (something of crucial importance in assessing the admissibility of the class action). Indeed, point 6 of article 140 bis provides that before a class action can be decided on its merits, the court must assess whether it is admissible. The court may declare the class action non-admissible if: the claim is manifestly without grounds; there is a conflict of interest; the rights infringed are not identical; or the lead claimant is not able to adequately represent the interests of the class members. The trend in Italy Unlike in the United States where this collective means of protection is widely used (239 class actions were promoted in 2010 and 260 in 2011), the Law has had no significant impact on litigation trends in Italy. Indeed, contrary to expectations, very few class actions have been filed so far and of those, only two have been declared admissible by the courts. There are several reasons that may explain why the Law has not been very successful in an Italian context. First, it is worth noting that under article 140 bis, litigation funding remains the responsibility of the initial claimant. Secondly, the lead claimant can be ordered to pay lawyers' fees and further damages if the class action is found to be non-admissible in the preliminary phase, and ordered to publicize the non-admissibility declaration at its own expense. The distribution of such costs amongst class members is only theoretical, as class members can opt-in after the claim has been declared admissible. Another explanation might be the difficulty in meeting the "identical rights" test (one of the requisites for the class action to be admissible) particularly in respect of actions brought for product related damage. The Italian Parliament passed legislation in 2012 (Law 27/2012) aimed at improving the effectiveness of the class actions regime. The 2012 reform of class action law The most significant amendments introduced by the 2012 reform relate to the extent of the protection available and to the categories of rights that can be defended through class actions. The reform has amended article 140 bis so that class actions can now be filed not only to protect consumers' individual rights, but also to defend their collective interests. The reform has also clarified that claimants, as well as seeking compensation, can also ask the court to assess and declare the defendant's liability. The reform provides that the rights that can be defended through class actions no longer need to be "identical" and it is now sufficient that they are "homogenous". However, there is still no clarification as to what is meant by homogenous rights. Case law On January 27, 2012, the Court of Appeal of Rome issued a decision on a product related damages class action which had been declared non-admissible by the Court of Rome on April 13, 2011. One of the grounds for the Court of Rome's declaration was that the rights being enforced were not identical. In particular, the Court of Rome found that the rights at stake (rights to compensation for alleged damage to health) were materially diverse and would have required a specific, individual assessment for each claimant, in contrast to the rationale underlying the class action regime. In confirming the non-admissibility declaration, the Court of Appeal of Rome pointed out that, even if the "identical rights" test was replaced with the "homogenous rights" test, the class action would still be considered non-admissible due to the significant diversity of each potential class member's position. The (albeit limited) case law on class actions appears to confirm that product related class actions would rarely be declared admissible. Indeed, case law appears to exclude commonality whenever the facts underlying the claim require an assessment of different individual circumstances (which would often be the case in product liability claims, particularly where injuries have occurred and compensation is being sought for related damage to health). Future trends Italian consumer associations (which have been considered to be the driving force behind class actions) appear to be progressively losing interest in bringing class actions in Italy and are instead looking again to the other side of the Atlantic, as the US-style class action regime seems to be less restrictive. ********* S U B S C R I P T I O N I N F O R M A T I O N Class Action Reporter is a daily newsletter, co-published by Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania, USA, and Beard Group, Inc., Washington, D.C., USA. Noemi Irene A. Adala, Joy A. Agravante, Valerie Udtuhan, Julie Anne L. Toledo, Christopher Patalinghug, Frauline Abangan and Peter A. Chapman, Editors. Copyright 2013. All rights reserved. ISSN 1525-2272. This material is copyrighted and any commercial use, resale or publication in any form (including e-mail forwarding, electronic re-mailing and photocopying) is strictly prohibited without prior written permission of the publishers. Information contained herein is obtained from sources believed to be reliable, but is not guaranteed. The CAR subscription rate is $775 for six months delivered via e-mail. Additional e-mail subscriptions for members of the same firm for the term of the initial subscription or balance thereof are $25 each. For subscription information, contact Peter A. Chapman at 215-945-7000 or Nina Novak at 202-241-8200. * * * End of Transmission * * *