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/raid1/www/Hosts/bankrupt/CAR_Public/131202.mbx C L A S S A C T I O N R E P O R T E R Monday, December 2, 2013, Vol. 15, No. 238 Headlines 23ANDME INC: FDA Wants Genetic Testing Services Halted AMYRIS INC: Dec. 11 Deadline to File Motion to Dismiss APPLE INC: Faces Class Action Over Lighting Connector Defect APPLE INC: iPhone 4 Is Plagued by Latent Defect, Class Claims ARCHON CORPORATION: Class Cert. Bid in "Rainero" Suit Denied ARIAD PHARMACEUTICALS: Misleads Investors Over Iclusig Product ARIAD PHARMACEUTICALS: Pomerantz Grossman Files Class Action ASTRAZENECA PHARMA: "Harris" Suit Facing Dismissal BANFIELD PET: Accused of Upselling Unnecessary Services in Ga. BLUE DIAMOND: Accused of Misrepresenting Almond Milk Products CALIFORNIA: Plaintiffs Win Favorable Ruling in Suit vs. CDFW CARIBBEAN CRUISE: Removes "Byrd" Class Suit to S.D. California CARRINGTON MORTGAGE: Must Provide Info in "Prindle" Case CHICAGO SOCCER: Fails to Pay OT for Time Above 40 Hrs., Suit Says COSTCO WHOLESALE: Offers Eye Exams in Single Location, Suit Says DFC GLOBAL: Kessler Topaz Corrects Nov. 20 Release on Class Action ELECTROLUX HOME: Sued Over Mold/Mildew Growth in Washing Machines FEDERAL EXPRESS: Class Action Settlement Gets Final Court Okay FERMI NATIONAL: Bid to Dismiss GINA Violation Suit Denied FLINT, MI: Court Narrows Claims in "Borman" Class Action FORD MOTOR: Plaintiffs Request Warning on Acceleration Defect GEORGIA: PUSH Coalition Challenges "Stand Your Ground" Law GMAC MORTGAGE: Seeks Appeal in GMAC Kickback Class Action GOOGLE INC: Settles Class Action Over Safari for $17 Million HAIN CELESTIAL: Misrepresents Dream Drink Products, Suit Claims ILLINOIS: Appellate Court Reverses Dismissal of Suit vs. Governor ING GROEP: 2nd Cir. Refuses to Revive Subprime Class Action INSTANT CHECKMATE: Faces "Zias" Suit Over Misidentification Claim JC PENNEY: Pomerantz Grossman Files Class Action in Texas JOHNSON & JOHNSON: Australian Law Firms Prepare for Hip Suit Trial L'OREAL USA: DC Court Refused to Approve Deal in Mislabeling Suit LANDSCAPE SERVICES: Faces Suit Over Unpaid Overtime Compensation LAVAL, CANADA: Citizen Seeks to Pursue C$23MM Suit v. Ex-Mayor LOS ANGELES, CA: Says District Court Lacks Standing LULULEMON ATHLETICA: "Chaiken" Suit Settlement Has Initial OK MATCH.COM: Faces Class Action in N.Y. Over Fraudulent Profiles METROPOLITAN TICKETS: Sued Over Bait-and-Switch Refund Policies MONSANTO CO: Supreme Court Upholds Class Action Settlement NAT'L COLLEGIATE: Plaintiffs Want Judge to Reconsider Ruling NEW YORK: MTA Pays Nothing in Majority of Train Accident Lawsuits NEW YORK, NY: Left Behind Disabled Citizens in Emergency Plans NEW YORK, NY: Overworked Minority Female 911 Operators, Suit Says PHILADELPHIA, PA: Trial Court Ruling in "Gordon" Suit Upheld PHOTOMEDEX INC: Saxena White Files Securities Fraud Class Action PLAYTEX PRODUCTS: Court Denies Bid to Dismiss Consumer Fraud Suit RADIOSHACK CORP: Court Dismisses "Wills" Class Action RICHARD FREER: Dozens of Ponzi Scheme Victims Attend Hearing ROBERT BOSCH: Responds to Indian Employee's Tax Refund Suit S&D FRUITS: "Melgadejo" FLSA Class Suit May Proceed SOUTHWEST AIRLINES: Settles FACTA Class Action for $1.8 Million TARGET CORP: Sued Over Combined Optometrist-Optician Operations TEXAS WINDSTORM: Disqualification of TWIA Counsel Upheld TOYOTA MOTOR: Court Dismisses New Jersey Consumer Class Action TREMOR VIDEO: Robbins Geller Files Class Action in New York WATTS WATER: "Trabakoolas" Suit Proceedings Stayed Until Dec. 10 WAUKEGAN, IL: Housing Authority Faces Class Action Over Bed Bugs WEST CORP: Makes Customer Care Reps Work Off the Clock, Suit Says WILMINGTON, DE: Faces Class Action Over Stop & Frisk Policy WYNDHAM VACATION: Suit Over Timeshare Scam Headed for Arbitration WYNN CASINO: Can Require Card Dealers to Share Tips, S.C. Ruled ********* 23ANDME INC: FDA Wants Genetic Testing Services Halted ------------------------------------------------------ Reuters reports that the U.S. Food and Drug Administration has warned 23andMe Inc., a company backed by Google Inc., to halt sales of its genetic testing services because they have not received regulatory clearance. 23andMe, which was founded in 2006 by Anne Wojcicki with the backing of Google, sells DNA testing services that the company says detect a range of genetic mutations and provide information about a person's health risks. Ms. Wojcicki recently separated from her husband, Sergey Brin, a co-founder of Google. In a warning letter dated Nov. 22 and released on Nov. 25, the FDA said it considers the company's product a medical device that therefore requires regulatory clearance, "as FDA has explained to you on numerous occasions." The privately held company, which is based in Mountain View, California, did not immediately respond to a request for comment left before business hours. The FDA said some of the intended uses of the company's Saliva Collection Kit and Personal Genome Service (PGS) are particularly concerning, including risk assessments for certain cancers. The agency said that if the company's risk assessment for breast or ovarian cancer reports a false positive, it could lead a patient to undergo preventative surgery, intensive screening or other potentially risky procedures. A false negative, on the other hand, could result in a failure to recognize actual risk. The FDA said in its letter that the company submitted applications in July and September of 2012 for several of these indications for use. "However," the FDA said, "to date your company has failed to address the issues described during previous interactions with the Agency" or provided additional information requested. As a result, the FDA said the applications "are considered withdrawn." The agency said it had been "diligently working" to help the company comply with the law, and has spent significant time evaluating the intended uses of the product. It said it also provided detailed feedback to the company regarding the types of data it needed to submit. The agency said its interactions with the company included more than 14 face-to-face and teleconference meetings, hundreds of email exchanges, and dozens of written communications. "However, even after these many interactions with 23andMe, we still do not have any assurance that the firm has analytically or clinically validated the PGS for its intended uses," the FDA said. The company's name refers to the 23 pairs of chromosomes that make up each individual's genome. AMYRIS INC: Dec. 11 Deadline to File Motion to Dismiss ------------------------------------------------------ District Judge William H. Orrick approved a stipulation continuing case management conference, and regarding a motion to dismiss briefing schedule, in DAVID BROWNING, individually and on behalf of all others similarly situated, Plaintiff, v. AMYRIS, INC. and JOHN G. MELO, Defendants, CASE NO. 3:13-CV-02209-WHO, (N.D. Cal.). The stipulation provides that: 1. Defendants will file their motion to dismiss the Consolidated Complaint on or before December 11, 2013; 2. Lead Plaintiffs will file their opposition to Defendants' motion to dismiss on or before February 7, 2014; 3. The parties request that the Court hold a hearing on Defendants' motion to dismiss on Wednesday, March 19, 2014 at 2:00 p.m. or such later date at the Court's convenience. However, should Lead Plaintiffs file their opposition before the February 7 deadline, the parties will advise the Court so that it may reset the hearing date accordingly, should it choose to do so; 4. The parties jointly request that the case management conference that was scheduled for November 19, 2013 be taken off calendar and rescheduled once the Court has ruled on Defendants' motion to dismiss, and that other related deadlines including those relating to the Alternative Dispute Resolution (ADR) program also be continued and re-set after the motion to dismiss ruling. A copy of the District Court's November 6, 2013 Order is available at http://is.gd/ut8nCYfrom Leagle.com. KEKER & VAN NEST LLP, SUSAN J. HARRIMAN -- sharriman@kvn.com -- MICHAEL D. CELIO -- mcelio@kvn.com -- LAURIE CARR MIMS -- lmims@kvn.com -- San Francisco, CA Attorneys for Defendants AMYRIS, INC. and JOHN G. MELO. MILBERG LLP, DAVID AZAR -- dazar@milberg.com -- Los Angeles, CA, Attorneys for Plaintiff David Browning and Lead Counsel for Class. BRODSKY & SMITH, LLC, EVAN J. SMITH -- esmith@brodsky-smith.com -- Beverly Hills, CA, Attorneys for Plaintiff Steven Tsao and Lead Counsel for Class. APPLE INC: Faces Class Action Over Lighting Connector Defect ------------------------------------------------------------ Patently Apple reports that a new Class Action lawsuit has been initiated by Rendell Roman against Apple on behalf of individuals who purchased devices from Apple that use the Lightning connector that is prone to fraying, breakage, failure and beyond. The complaint alleges that Apple possessed knowledge of the defect prior to distributing the Lightning connector. The Official Preliminary Statement This is a class action lawsuit brought by Plaintiff, and on behalf of a nationwide class of individuals who purchased an Apple product that came equipped with the Apple Lightning connector from Defendant, Apple, Inc. To date, the Apple products that can be charged and connected to the computer exclusively by the Lightning include: the iPhone 5, iPad (fourth generation), iPad Mini, iPod Nano (seventh generation), and iPod Touch (fifth generation) (collectively "Apple devices"). On September 12, 2012, Apple introduced Lightning as the new cable used to charge and synchronize content for its new hardware devices, including the highly anticipated iPhone 5, which sold in excess of five million units over the weekend following its launch. In its official press release materials on September 12, 2012, Apple touted the new Lightning cable as being "designed for today's uses" and "smaller, smarter and more durable than the previous connector." In Apple's press release and advertising videos, the Lightning connectors were shown to easily plug in and out of the iPhone device, without issues of deterioration, breakage, or failure. These images and representations understandably and intentionally led consumers to believe that one could use the Lightning cables repeatedly during normal use to plug and unplug the cable in order to recharge or sync their Apple devices. Based upon Apple's representations, Plaintiff and members of the Class purchased the new Apple devices with the Lightning connectors. However, contrary to Apple's representations, advertisements, and statements, the Lightning is defective and is prone to fraying, breakage, deterioration, and failure, and does substantially fray, break, deteriorate, and fail. In particular, the Lightning end that plugs into the Apple device deteriorates, externally and/or internally, to such a degree so as to make charging the Apple device completely impossible, or possible only by positioning the cord in a specific manner, using electric tape, or something similar, to hold the Lightning cable together, or other means to maintain the connection and angle between the Lightning and the Apple device. The deterioration can and does become so severe that the exposed wires of the eroded Lightning create a safety hazard. These exposed wires have led to sparks and fires, endangering the health and safety of consumers and the public. To the best of Plaintiff's knowledge and information, the failure occurs because of the poor quality and manufacture of the Lightning connectors, regardless of the level of care taken by consumers in using the Lightning. This defect is common to all Lightning cables, even when consumers use and care for the cable as recommended and intended by Apple. The defect in the Lightning renders it unsuitable for its principal and intended purpose; namely, being the exclusive means for synchronizing data for and charging the battery of the associated Apple devices. The consistent failure of the Lightning leaves consumers with useless, expensive Apple devices, unless and until they purchase a replacement Lightning. Due to the Lightning's proprietary nature, consumers are forced to purchase replacements directly from Apple, the sole manufacturer of the Lightning, in order to recharge and continue using their Apple devices. Apple, which has acknowledged the problem with the Lightning, responded to users' complaints by denying coverage beyond the warranty period for the associated devices and requiring them to purchase replacement cables from Apple. In addition to the hundreds of dollars paid to purchase the Apple devices charged by the Lightning Connector, Plaintiff and members of the Class paid either $19 or $29 for replacement Lightning cables, expecting, in return, that Apple would provide fully functioning, durable cables. Instead, Apple delivered an admittedly defective product that fails to adequately perform its intended function, requiring Plaintiff and Class members to purchase multiple replacement Lightning cables -- oftentimes once every two or three months -- in order to continue using their Apple devices. Apple's conduct violates, inter alia, California warranty laws. Moreover, Apple possessed knowledge of the defect prior to distributing the Lightning, in violation of California consumer protection laws. In 2012, Apple spent approximately $3.4 billion on research and development, recently stating that "focused investments in research and development are critical to its future growth and competitive position in the marketplace and are directly related to timely development of new and enhanced products." Prior to release, Apple undergoes stringent in-house testing of its hardware devices, which would have revealed the Lightning's defect. In failing to disclose the defect at the same time it was promoting the brilliant design and superior durability of the Lightning, Apple committed fraud upon the millions of unsuspecting customers who purchased Apple products chargeable only by the Lightning without any knowledge of the defect. Another aspect of the complaint listed various testimonials found on the web. The complaint formally cited this incident: "One consumer experienced a more severe incident and warned, "Beware these are very dangerous, picked up my charging phone in my car and was shocked by exposed wires [of my iPhone 5 cable]. I then began checking mine and my husband's other iPhone 5 cables to realized that they are all breaking in the same exact spot. Not worth $19.99 Apple needs to recall these cables and introduce a new reinforced design. NOT HAPPY!" (Kasey B from Baytown, Sep 6, 2013). The Class Action filed against Apple includes Seven Causes of Action as Follows: Violation of Consumers Legal Remedies Act California Civil Code Sec. 1750 False and Misleading Advertising in Violation of California Business and Professions Code Sec. 17500 Unlawful, Unfair, and Fraudulent Business Practices in Violation of California Business and Professions Code Sec. 17200 Violations of Magnuson-Moss Warranty Act 15 U.S.C. Secs. 2301- 2312 Breach of Express Warranty Unjust Enrichment Declaratory Relief The Class Action case presented in the Nov. 23 report was filed in the California Northern District Court, Santa Clara Office under "Other Fraud." APPLE INC: iPhone 4 Is Plagued by Latent Defect, Class Claims ------------------------------------------------------------- Debra Hilton, On Behalf Of Herself And All Others Similarly Situated v. Apple Inc., Case No. 2:13-cv-02167 (C.D. Cal., October 17, 2013) alleges that the Apple iPhone 4 is plagued by a latent defect that causes its Power Button to fail, usually shortly after the 1 year warranty covering the device has expired, thereby rendering the phone unusable. Ms. Hilton contends that Apple knew when it manufactured, marketed, and sold the device that this defect existed, but failed to disclose it, instead touting the purported superior attributes of the telephone in Apple's various advertisements and marketing campaigns. Apple is a California corporation headquartered in Cupertino, California. Apple designs, manufactures, and sells computers, phones, mp3 players, and an assortment of other personal technology products and related software, services, and peripherals. The Plaintiff is represented by: Roy A. Katriel, Esq. THE KATRIEL LAW FIRM 12707 High Bluff Drive, Suite 200 San Diego, CA 92130 Telephone: (858) 350-4342 Facsimile: (858) 430-37 19 E-mail: rak@kariellaw.com ARCHON CORPORATION: Class Cert. Bid in "Rainero" Suit Denied ------------------------------------------------------------ District Judge Gloria M. Navarro denied, without prejudice, a motion for class certification filed by the plaintiff in the case captioned DAVID RAINERO, Plaintiff, v. ARCHON CORPORATION, Defendant, CASE NO. 2:07-CV-01553-GMN-PAL, (D. Nev.). Defendant Archon Corp.'s Motion for Summary Judgment was also denied while Mr. Rainero's Motion for Partial Summary Judgment was granted. Mr. Rainero brought this proposed class action in his capacity as a former shareholder of certain preferred stock shares issued by Archon Corporation that were outstanding as of August 31, 2007. Judge Navarro said it is apparent to the Court that the numerosity requirement is likely met, and that there are questions of law or fact common to the class. However, because the parties' summary judgment motions were still pending when the Motion for Class Certification was briefed, arguments presented in the parties' briefs are now moot or in need of clarification now that the issues have been narrowed. The resolution of these motions and appeals likely affects the arguments of the parties relating to Rule 23(b) of the Fed. R. Civ. P., she said. The Plaintiff also does not specifically address the requirements of Rule 23(g) in his briefs, and on this basis alone the Court is unlikely to have sufficient basis to appoint class counsel under Rule 23(g), as required by Rule 23(c)(B), Judge Navarro added. "Therefore, the Court is satisfied that Plaintiff's counsel may be designated as interim counsel to act on behalf of the proposed class pending determination of class certification," Judge Navarro concluded. "The Motion for Class Certification will be denied, without prejudice, with leave to refile so as to correct and revise the motion." A copy of the District Court's November 7, 2013 Order is available at http://is.gd/fdqAGjfrom Leagle.com. ARIAD PHARMACEUTICALS: Misleads Investors Over Iclusig Product -------------------------------------------------------------- James L. Burch, Individually and on Behalf of All Others Similarly Situated v. Ariad Pharmaceuticals, Inc., Harvey J. Berger, Frank G. Haluska, Timothy P. Clackson And Edward M. Fitzgerald, Case No. 1:13-cv-12626-WGY (D. Mass., October 17, 2013) alleges that throughout the Class Period, the Defendants made false and misleading statements and failed to disclose material adverse facts about the Company's business, operations and prospects. Specifically, the Plaintiff contends, the Defendants misrepresented and failed to disclose that: (1) the Company's blood cancer drug, Iclusig, caused serious arterial thrombosis in more patients than previously reported; (2) as a result, the Company lacked a reasonable basis for its statements regarding Iclusig; and (3) as a result of this, the Company's statements were materially false and misleading at all relevant times. Ariad is a Delaware corporation with its principal executive offices located in Cambridge, Massachusetts. Ariad is an oncology company, engaged in the discovery, development and commercialization of medicines for cancer patients. The Company focuses on commercializing Iclusig (ponatinib), a cancer medicine, and developing additional molecularly targeted therapies to treat patients with blood cancers and solid tumors. The Individual Defendants are directors and officers of the Company. The Plaintiff is represented by: David Pastor, Esq. PASTOR LAW OFFICE LLP 63 Atlantic Avenue, 3rd Floor Boston, MA 02110 Telephone: (617) 742-9700 Facsimile: (617) 742-9701 E-mail: dpastor@pastorlawoffice.com - and - Lionel Z. Glancy, Esq. Michael Goldberg, Esq. Robert V. Prongay, Esq. Casey E. Sadler, Esq. GLANCY BINKOW & GOLDBERG LLP 1925 Century Park East, Suite 2100 Los Angeles, CA 90067 Telephone: (310) 201-9150 Facsimile: (310) 201-9160 E-mail: lglancy@glancylaw.com mgoldberg@glancylaw.com csadler@glancylaw.com - and - Howard G. Smith, Esq. LAW OFFICES OF HOWARD G. SMITH 3070 Bristol Pike, Suite 112 Bensalem, PA 19020 Telephone: (215) 638-4847 Facsimile: (215) 638-4867 The Defendants are represented by: John F. Sylvia, Esq. Matthew D. Levitt, Esq. MINTZ, LEVIN, COHN, FERRIS, GLOVSKY & POPEO, PC One Financial Center, 42nd Floor Boston, MA 02111 Telephone: (617) 542-6000 Facsimile: (617) 542-2241 E-mail: jfsylvia@mintz.com mdlevitt@mintz.com ARIAD PHARMACEUTICALS: Pomerantz Grossman Files Class Action ------------------------------------------------------------ Pomerantz Grossman Hufford Dahlstrom & Gross LLP on Nov. 22 disclosed that it has filed a class action lawsuit against ARIAD Pharmaceuticals, Inc. and certain of its officers. The class action, filed in United States District Court, District of Massachusetts, and docketed under 13-cv-12544, is on behalf of a class consisting of all persons or entities who purchased or otherwise acquired securities of ARIAD between December 12, 2011 and October 8, 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 ARIAD securities during the Class Period, you have until December 9, 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. ARIAD is a global oncology company focused on the discovery, development and commercialization of medicines to transform the lives of cancer patients. The Company's approach to structure- based drug design has led to several molecularly targeted medicines for drug-resistant or difficult-to-treat cancers. The Complaint alleges that throughout the Class Period, Defendants represented that the Company's leukemia drug Iclusig (ponatinib), based on its clinical data from its pivotal PACE trial of Iclusig, was safe and effective, without serious adverse events such as serious arterial thrombotic and cardiovascular events. Specifically, on December 11, 2011, ARIAD announced preliminary clinical data from the PACE trial, which purportedly yielded "strong clinical evidence of the anti-leukemic activity of ponatinib". Moreover, the Company touted the "favorable safety and tolerability profile of ponatinib". Based upon these representations, the Company achieved FDA approval for Iclusig on December 14, 2012. On October 9, 2013, the Company updated the data from its PACE trial, revealing that the drug was shown to cause a higher rate of blood clots and heart-related side effects than previously disclosed. Specifically, the Company disclosed that serious arterial thrombosis occurred in a staggering 11.8% of Iclusig- treated patients, and that 6.2% of the patients had cerebrovascular events. As a result, the FDA placed a hold on new patient enrollment for Iclusig testing, and the Company advised patients currently receiving the drug to lower their dosage. On this news, ARIAD shares declined $11.31 per share or nearly 66%, to close at $5.83 per share on October 9, 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. ASTRAZENECA PHARMA: "Harris" Suit Facing Dismissal -------------------------------------------------- District Judge Fernando M. Olguin entered a "civil minutes - general" in Richard Lee Harris v. AstraZeneca Pharmaceuticals, L.P., et al, CASE NO. CV 13-7989 FMO (VBKX), (C.D. Cal.), which provides that: 1. No later than November 21, 2013, plaintiff must show cause in writing why this action should not be dismissed. Failure to submit a response by the deadline may be deemed as consent to the dismissal of the action without prejudice. Defendants may submit a response in the same time period. 2. A copy of all papers filed with the court will be delivered to the drop box outside chambers at Suite 520, Spring Street Courthouse, 312 North Spring Street, no later than 12:00 noon the following business day. All chambers copies will comply fully with the document formatting requirements of Local Rule 11-3, including the "backing" requirements of Local Rule 11-3.5. Counsel may be subject to sanctions for failure to deliver a mandatory chambers copy in full compliance with the Order and Local Rule 11-3. A copy of the District Court's November 7, 2013 Civil Minutes is available at http://is.gd/ISXvqvfrom Leagle.com. BANFIELD PET: Accused of Upselling Unnecessary Services in Ga. -------------------------------------------------------------- The Banfield Pet Hospital veterinary chain aggressively upsells unnecessary services, so the discounts it also offers "evaporate," William Dotinga at Courthouse News Service reports, citing federal class action filed by a pet owner. Lead plaintiff Gregory Pero sued Medical Management International dba Banfield Pet Hospital, on behalf of customers served through Banfield outlets in PetSmart stores nationwide. PetSmart is not a named party in the complaint, though Pero notes that the company owns a minority interest in Banfield. Candy conglomerate Mars -- which makes M&Ms, Twix and Skittles candies as well as the Pedigree and Whiskas pet food brands -- owns the majority stake, Pero says. Pero says he "holds these truths to be self-evident: (a) Pet care providers should be honest about the true costs of their products and services, and (b) pet care providers should not upsell unnecessary pet care." But the pet patriot declares that Banfield does not adhere to these self-evident truths when it comes to its "Optimum Wellness Plan," which has more than 1 million pet enrollees. "Banfield aggressively markets, advertises and sells the plans that purport to offer deep savings and discounts for preventative pet care services and related pet care products," Pero says in the lawsuit. "Banfield does not provide the promised savings and discounts under its plan, and Banfield upsells unnecessary pet care to its clients. This class action seeks to remedy: (a) Banfield's deceptive marketing of savings and discounts under the plan, and (b) Banfield's deceptive and coercive upselling of additional pet care products and services. Banfield's conduct violates consumer protection laws in California and nationwide." Pero says the plan includes physical exams, vaccines and diagnostic tests for dogs and cats. More expensive plans include higher-level care, but all are tailored to puppies, kittens and adult dogs and cats. Banfield's employees push the plans by promising discounts on other products and services, which are advertised in print and on the company Web site, but those savings are rarely realized, Pero claims. "For at least the past four years, Banfield has misrepresented - and continues to misrepresent -- the nature and amount of savings and discounts to be realized through the purchase and use of the wellness plan," Pero says. "In this regard, for each plan Banfield advertises a monthly payment plan that purportedly entitles clients to minimum savings off of regular costs for preventative pet care products and services plus fixed discounts on additional products and services sought by customers. Banfield, however, simply does not provide the promised savings and discounts." He continues: "In particular, under the wellness plan Banfield promises substantial minimum savings on preventative pet care (e.g., more than $600 per year savings with the base-level dog plan, for percentage savings of more than 50 percent versus regular costs). Banfield also promises that the customer will receive an additional discount on other pet care products and services not covered under the plan (e.g., an additional 10 percent off with the base-level adult dog plan)." (Parentheses in complaint.) Banfield charges a one-time membership fee of $49.95 in addition to monthly payments that, for an adult dog, come to nearly $32 for the cheapest plan. These costs supposedly entitle pet owners to savings with each visit or monthly, but hide what Pero calls "the warped service assumptions and inflated pricing scheme on which the purported savings and discounts are based." He claims: "Banfield promises that plan customers always get the services they pay for, and Banfield advertises deep savings at every visit and during each month the client owns a plan. In reality, the savings begin to evaporate when the client does not need or cannot use one or more of the bundled products or services under the plan. Moreover, the advertised savings cannot be achieved each visit or each month as Banfield effectively represents. Rather, the client first would need to use an uncertain number and variety of Banfield pet care products and services over the course of an entire plan year. Meanwhile, Banfield overstates its regular fees and tacks on miscellaneous fees and markups, which misrepresents the ultimate savings and discounts earned by clients." It all comes down to profits for Banfield, Pero says: that the company focuses on an average patient charge to boost its bottom line. "In an effort to increase the average patient charge, Banfield uses deceptive and coercive tactics to sell additional pet care products and services to plan clients," Pero says in the complaint. "Among other things, Banfield systematically orders extra diagnostic tests and medications for plan clients in order to boost the average patient charge. These upselling efforts compel the client to spend money he or she would not have otherwise spent and wipe out the savings and discounts promised under the plans." Pero claims the midlevel plan for his adult dog cost him $479.40 per year, but promised a "minimum annual savings" of $1,008.61. But he says Banfield does not provide customers with retail price lists or a breakdown of how it calculates the annual savings. "In truth, many plan clients save nothing and others save far less than promised," Pero says in the class action. "The savings depend on Banfield providing bundled pet care products and services over the course of an entire plan year. However, Banfield does not actually provide all of the bundled products and services to plan clients and/or the clients do not need all the products and services, and as a result the purported savings evaporate. Importantly, if the client cancels during the plan year any savings may be wiped out, leaving the client with little more than a history of overpayments. The advertised minimum annual savings also ignore the costs of unnecessary pet care products and services upsold to clients, as well as bogus 'hospitalization' and 'professional service' fees that Banfield assesses on top of other charges for services supposedly rendered." Pero says his pets have never been injured or harmed during their visits to Banfield's clinic. But he says that if he'd known about the true costs of his pets' care, he never would have signed up for wellness plans. The company also routinely inflates medication costs and tacks fees onto lab tests, further overstating the plans' benefits, according to Pero. "Furthermore, when a client wants to cancel during the plan year, Banfield may retroactively impose its full retail fees to date or assess a full year's worth of plan payments," the complaint states. "The harsh cancellation provisions -- which apply even when a pet dies during the plan year -- tend to wipe out the advertised savings. The cancellation provisions are doubly problematic insofar as Banfield overstates the retail fees incurred at the outset of the relationship, a fact which further locks clients into ongoing commitments." Pero seeks class certification and damages unfair business practices, consumer law violations, fraud and intentional misrepresentation. He also wants Banfield barred from promoting its wellness plans, restitution, and declaratory judgment that customers may cancel their plans without penalty. The Plaintiff is represented by: Lee Gordon, Esq. HAGENS BERMAN SOBOL SHAPIRO 301 North Lake Ave., Suite 203 Pasadena, CA 91101 Telephone: (213) 330-7150 Facsimile: (213) 330-7152 E-mail: lee@hbsslaw.com - and - Steve W. Berman, Esq. 1918 Eighth Ave., Suite 3300 Seattle, WA 98101 Telephone: (206) 623-7292 Facsimile: (206) 623-0594 E-mail: steve@hbsslaw.com The case is Gregory Pero v. Medical Management International, Inc., dba Banfield Pet Hospital, Case No. SACV13-01749-JLS (ANx), in the U.S. District Court for the Central District of California. BLUE DIAMOND: Accused of Misrepresenting Almond Milk Products ------------------------------------------------------------- Blue Diamond Growers misrepresents its almond milk products as "all natural," a class action claims in California Federal Court, according to Courthouse News Service. CALIFORNIA: Plaintiffs Win Favorable Ruling in Suit vs. CDFW ------------------------------------------------------------ District Judge Donna M. Ryu entered final judgment in favor of plaintiffs and the class in the case captioned KEVIN MARILLEY; SALVATORE; PAPETTI; SAVIOR PAPETTI, on behalf of themselves and similarly situated, Plaintiffs, v. CHARLTON H. BONHAM, in his official capacity, Defendant, CASE NO. 11-2418 (DMR), (N.D. Cal.). Final judgment is entered pursuant to Federal Rule of Civil Procedure 54(b) against Defendant Charlton H. Bonham, in his official capacity as Director of the California Department of Fish and Wildlife, and in favor of Plaintiffs on Count I of Plaintiffs' Fourth Amended Class Action Complaint, alleging violations of the Privileges and Immunities Clause of Art. IV of the United States Constitution, ruled Judge Ryu. The Court declared the differential fees for commercial fishing licenses (California Fish and Game Code Section 7852), commercial boat registrations (California Fish and Game Code Section 7881), Dungeness crab vessel permits (California Fish and Game Code Section 8280.6), and herring gill net permits (California Fish and Game Code Section 8550.5), which vary based on residency and which are enforced by Defendant Charlton H. Bonham, in his official capacity as Director of the California Department of Fish and Wildlife, violate the Privileges and Immunities Clause of Art. IV of the United States Constitution. Defendant Charlton H. Bonham, in his official capacity as Director of the California Department of Fish and Wildlife, is enjoined and restrained from enforcing California Fish & Game Code Sections 7852, 7881, 8280.6, 8550.5 to the extent that such provisions require nonresidents of California to pay a higher fee than residents of California for the commercial fishing licenses specified in Section 7852, commercial boat registrations specified in Section 7881, Dungeness crab vessel permits specified in Section 8280.6, and herring gill net permits specified in Section 8550.5, Judge Ryu concluded. A copy of the District Court's November 7, 2013 Judgment is available at http://is.gd/lrjTQWfrom Leagle.com. CARIBBEAN CRUISE: Removes "Byrd" Class Suit to S.D. California -------------------------------------------------------------- Deanna Byrd, individually and on behalf of all others similarly situated v. Caribbean Cruise Line, Inc., a Florida corporation; and Does 1-10, Inclusive, Case No. 37-2013-00063078-CU-MC-CTL (Cal. Super. Ct., San Diego Cty., August 15, 2013) is brought on behalf of a class of persons in California, whose telephone conversations with the Defendants were intentionally recorded without disclosure by the Defendants. Caribbean Cruise removed the lawsuit on October 17, 2013, from the Superior Court of the state of California, County of San Diego, to the United States District Court for the Southern District of California. The Company argues that the removal is proper because the value of the matter in controversy exceeds $5 million in the aggregate. The District Court Clerk assigned Case No. 3:13-cv- 02503-L-RBB to the proceeding. The Plaintiff is represented by: Eric Maxwell Overholt, Esq. HIDEN ROTT AND OERTLE 2635 Camino del Rio South, Suite 306 San Diego, CA 92108 Telephone: (619) 296-5884 Facsimile: (619) 296-5171 E-mail: eoverholt@hrollp.com The Defendants are represented by: Darren Brian Landie, Esq. LAW OFFICES OF DARREN LANDIE 2600 Walnut Avenue, Suite E Tustin, CA 92780 Telephone: (714) 544-3291 Facsimile: (714) 544-2736 E-mail: darren@landielaw.com CARRINGTON MORTGAGE: Must Provide Info in "Prindle" Case -------------------------------------------------------- TWYLA PRINDLE, individually and on behalf of a class of persons similarly situated, Plaintiff, v. CARRINGTON MORTGAGE SERVICES, LLC, Defendant, CASE NO. 3:13-CV-1349-J-34PDB, (M.D. Fla.), is before the court sua sponte. On November 1, 2013, Carrington Mortgage filed its Notice of Removal, removing this case from the Circuit Court of the Fourth Judicial Circuit, in and for Duval County, Florida. Carrington Mortgage asserted that the District Court has jurisdiction over the action pursuant to 28 U.S.C. Sections 1332(a) and 1441. Specifically, Carrington Mortgage alleged that the Court has diversity jurisdiction over the action because Plaintiff, Twyla Prindle, is a citizen of Florida, while all members of Carrington Mortgage are citizens of Delaware and California. Carrington Mortgage Services bases its citizenship allegation on the fact it is a Delaware limited liability company wholly owned by Carrington Mortgage Holdings, LLC, which is, in turn, a Delaware limited liability company owned by Carrington Holding Company, LLC, and Darren Fulco, individually. According to the Defendant, Carrington Holding Company is a Delaware limited liability company, and Darren Fulco is a citizen of California. However, because the Defendant has failed to identify the citizenship of Carrington Holding Company's members, the Court determined that Carrington Mortgage Services's citizenship is not properly alleged in the Notice. Therefore, the Court's subject matter jurisdiction over the action is not established. District Judge Marcia Morales Howard said she will give Carrington Mortgage an opportunity to identify Carrington Holding Company's citizenship, and that the Court may properly exercise jurisdiction over the instant action. The Court directed Carrington Mortgage Services to provide adequate allegations regarding Carrington Holding Company's citizenship as a limited liability company. Additionally, the Court directed Carrington Mortgage Services to address the propriety of jurisdiction in light of the fact that Plaintiff has pled this case individually and on behalf of a class of persons alleged to be similarly situated. "Defendant shall have until December 2, 2013, to provide the Court with sufficient information so that it can determine whether it has diversity jurisdiction over this action," Judge Howard concluded. A copy of the District Court's November 7, 2013 Amended Order is available at http://is.gd/zlFWEUfrom Leagle.com. CHICAGO SOCCER: Fails to Pay OT for Time Above 40 Hrs., Suit Says ----------------------------------------------------------------- Jose Jimenez, Individually, and on Behalf of All Others Similarly Situated v. Chicago Soccer, Inc., Imre Hidvegi, and Edgar Alvarez, Case No. 1:13-cv-07462 (N.D. Ill., October 17, 2013) alleges that the Plaintiff and all proposed class members were subjected to an illegal pay plan and were not paid overtime for time worked in excess of 40 hours per week. Chicago Soccer, Inc. is a retail company specializing in soccer jerseys and official soccer products. The Individual Defendants are owners and officers of the Company. The Plaintiff is represented by: James B. Zouras, Esq. Andrew C. Ficzko, Esq. Ryan F. Stephan, Esq. STEPHAN ZOURAS, LLP 205 N. Michigan Ave., Suite 2560 Chicago, IL 60601 Telephone: (312) 233-1550 Facsimile: (312) 233-1560 E-mail: jzouras@stephanzouras.com aficzko@stephanzouras.com rstephan@stephanzouras.com The Defendants are represented by: Paul Ely Starkman, Esq. Charles M. Gering, Esq. PEDERSEN & HOUPT, P.C. 161 North Clark Street, Suite 3100 Chicago, IL 60601-3224 Telephone: (312) 261-2173 Facsimile: (312) 261-1165 E-mail: pestarkman@pedersenhoupt.com cgering@pedersenhoupt.com COSTCO WHOLESALE: Offers Eye Exams in Single Location, Suit Says ---------------------------------------------------------------- Courthouse News Service reports that Costco violates California law by offering eye exams and prescription glasses in a single retail location, a class action claims in the California Superior Court for San Diego County. DFC GLOBAL: Kessler Topaz Corrects Nov. 20 Release on Class Action ------------------------------------------------------------------ The following statement was issued on Nov. 20 by the law firm of Kessler Topaz Meltzer & Check, LLP: Corrected Release Notice is hereby given that a class action lawsuit was filed in the United States District Court for the Eastern District of Pennsylvania on behalf of purchasers of the securities of DFC Global Corp., between January 28, 2011 and August 22, 2013, inclusive. If you are a member of this class, you may view a copy of the Complaint or join this class action online at http://www.ktmc.com/cases DFC Global is a non-bank provider of alternative financial services such as payday loans and secured pawn loans. The Company's primary customers are "unbanked" and "under-banked" consumers that have difficulty paying their bills each month, and as a result, seek out short-term loans to make ends meet. DFC Global earns approximately 65% of its revenue from offering unsecured loans to these types of customers, a substantial portion of which is from customers that rollover or refinance their loans in perpetuity and pay only the finance charges. The United Kingdom requires payday lenders such as DFC Global to comply with extensive regulations pursuant to the Consumer Credit Act of 1974 and the Office of Fair Trading's guidance on irresponsible lending to ensure that customers -- which are among the most vulnerable consumers in the U.K. -- are able to repay their loans without undue hardship. In addition, the U.K.'s Consumer Finance Association, of which DFC Global is a charter member, prohibits some of the payday lending industry's most egregious practices, such as the rolling over of customers' loans more than three times. The Complaint alleges that, throughout the Class Period, DFC Global misrepresented to investors that it complied with government regulations and guidance with regard to irresponsible lending practices, and that the Company made "prudent," "conservative," and "responsible" underwriting decisions when making loans. Additionally, the Complaint charges the defendants with knowingly misrepresenting DFC Global's loss rates for loans, and issuing false earnings guidance of between $2.35 and $2.55 per diluted share for its 2013 fiscal year. More specifically, the Complaint charges DFC Global and certain of its executive officers with violations of the Securities Exchange Act of 1934, and alleges that the defendants failed to disclose and misrepresented the following material adverse facts which were known to defendants or recklessly disregarded by them: (1) DFC Global systematically issued high-fee predatory loans to consumers that had no reasonable means to be repaid; (2) the Company continuously rolled over or refinanced its loans in order to delay or avoid defaults; (3) DFC Global failed to conduct adequate affordability assessments on its customers; (4) DFC Global understated its loan loss rates; (5) the Company's earnings guidance for its 2013 fiscal year was inflated because it was dependent upon the Company's improper lending practices; and (6) as a result of DFC Global's irresponsible lending, the Company failed to comply with industry regulations and guidance. On March 6, 2013, the OFT announced the results of an investigation that it was conducting on the entire payday lending industry. The OFT reported that it uncovered "deep rooted" evidence of "widespread irresponsible lending" by the leading 50 payday lenders "and failure to comply with the standards required of them." These problems pervaded the entire payday lending sector, including lenders that were members of the CFA and other leading trade associations, and ran across the entire payday lending process. One particular area of non-compliance included "lenders failing to conduct adequate assessments of affordability before lending or before rolling over loans," in violation of regulations and guidance. Accordingly, the OFT required the inspected lenders, including DFC Global, to substantially revise their lending practices and become fully compliant within three months or risk losing their license. Raising concerns that DFC Global's lending practices were no exception to the OFT's findings, on April 1, 2013, the Company preannounced results for its third quarter of 2013 that were seriously impacted by poor loan performance. Specifically, during the earnings conference call, the Company announced that the CFA rollover limit caused a significant number of DFC Global's outstanding loans in the U.K. to become immediately due and default because they could not be repaid. According to DFC Global, the Company as a whole experienced a loss rate of above 25%, and a loss rate of approximately 35% in the U.K. Because of the spiking loss rates, the Company also slashed its fiscal year 2013 diluted operating earnings per share guidance from $2.35 -- $2.45 per share to $1.70 -- $1.80 per share. On this news, the price of the Company's stock declined $3.60 per share, or nearly 22%, to close at $13.04 per share on April 1, 2013, on unusually heavy trading volume. However, DFC Global continued to assure investors regarding its conservative underwriting criteria, and that it had taken additional steps to tighten those standards. The Company also falsely assured investors that it was in compliance with government guidelines and that any outstanding issues with regard to DFC Global's compliance would be resolved without significant business interruption. Then, on August 22, 2013, DFC Global announced earnings for its fourth quarter of 2013 during which it again reported soaring loan defaults in the U.K. with the Company's loan loss provision increasing to 25.7%. Additionally, DFC Global disclosed that it expected to incur a recurring $10 -- $15 million of expenses for regulatory, legal, audit, and compliance-related costs relating to its payday lending program. DFC Global's losses in the U.K. were so severe that the Company was unable to provide earnings per share guidance for fiscal 2014. On this news, the price of the Company's stock declined an additional $4.59 per share, or almost 29%, to close at $11.31 per share on August 23, 2013, again on unusually heavy trading volume. If you wish to discuss this action or have any questions concerning this notice or your rights or interests with respect to these matters, please contact Kessler Topaz Meltzer & Check, LLP (Darren J. Check, Esq. or D. Seamus Kaskela, Esq.) toll free at 1-888-299-7706 or 1-610-667-7706, or via e-mail at info@ktmc.com For additional information about this lawsuit, or to join the class action online, please visit http://www.ktmc.com/cases Members of the class may, no later than January 21, 2014, move the Court to serve as a lead plaintiff of the class. A lead plaintiff is a representative party who acts on behalf of other class members in directing the litigation. In order to be appointed lead plaintiff, the Court must determine that the class member's claim is typical of the claims of other class members, and that the class member will adequately represent the class. Your ability to share in any recovery is not, however, affected by the decision of whether or not to serve as a lead plaintiff. 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. Plaintiff seeks to recover damages on behalf of class members and is represented by the law firm of Kessler Topaz Meltzer & Check, which prosecutes class actions in both state and federal courts throughout the country. Kessler Topaz Meltzer & Check -- http://www.ktmc.com -- represents investors, consumers and whistleblowers (private citizens who report fraudulent practices against the government and share in the recovery of government dollars). ELECTROLUX HOME: Sued Over Mold/Mildew Growth in Washing Machines ----------------------------------------------------------------- Elizabeth Fleming, on behalf of herself and all others similarly situated v. Electrolux Home Products, Inc., Case No. 1:13-cv- 05723-DLI-RER (E.D.N.Y., October 17, 2013) seeks to remedy the alleged violations of applicable law in connection with Electrolux's design, marketing, warranting and servicing of its Frigidaire model Affinity Front Loading Washing Machines. The Washing Machines contain a design defect that causes them to, among other things, accumulate mold, mildew and residue growth within the Washing Machines, Ms. Fleming alleges. Electrolux Home Products, Inc. is a Delaware corporation headquartered in Georgia. Electrolux markets and sells Frigidaire brand products, including Washing Machines, throughout the United States. The Plaintiff is represented by: Jonathan Shub, Esq. SEEGER WEISS LLP 77 Water Street New York, NY 10005 Telephone: (212) 584-0700 E-mail: jshub@seegerweiss.com - and - Richard J. Burke, Esq. Jamie E. Weiss, Esq. COMPLEX LITIGATION GROUP LLC 513 Central Avenue, Suite 300 Highland Park, IL 60035 Telephone: (847) 433-4500 Facsimile: (847) 433-2500 E-mail: richard@complexlitgroup.com jamie@complexlitgroup.com FEDERAL EXPRESS: Class Action Settlement Gets Final Court Okay -------------------------------------------------------------- David McAfee and Kurt Orzeck, writing for Law360, report that a Tennessee federal judge on Nov. 22 granted final approval to a $21.5 million settlement to be paid by Federal Express Corp. in a class action accusing it of charging customers more than $5 million in bogus residential delivery surcharges for packages sent to businesses and government buildings. In July, FedEx agreed to pay the settlement, which includes $16.5 million in cash and injunctive relief valued at approximately $5 million. The suit accused the shipping giant of committing mail and wire fraud and breaching its contract with customers by charging more than $5 million in bogus surcharges. U.S. District Judge John T. Fowlkes Jr. on Nov. 22 granted the plaintiffs' motion for final approval of the settlement, overruled all objections associated with the deal, and certified a class for settlement purposes. Judge Fowlkes found that the settlement was fair, reasonable and adequate after an analysis of the risk of fraud, the complexity of the litigation, and other factors, according to the Nov. 22 order. Steven J. Rosenwasser -- rosenwasser@bmelaw.com -- of Bondurant Mixson & Elmore LLP, counsel to the plaintiffs, hailed the end of the extended litigation. "We are pleased that after years of litigation, we were able to obtain a settlement that not only contains monetary relief, but also ends the practices that we challenged," Mr. Rosenwasser told Law360 on Nov. 22. The class covers all persons who -- from Feb. 18, 2010, until the resolution of the class action -- bought FedEx Express package delivery services in the U.S. and were subjected to the surcharges. Manjunath A. Gokare PC, a Georgia law firm that focuses on immigration law, sued FedEx in February 2011. The firm said it discovered the fraud after a package it sent to an immigration services processing center in Vermont was slapped with a $2.50 residential surcharge and a second delivery-area fee for the same amount. The firm alleged that FedEx Express, which offers express package delivery services in the U.S., breached its contract with domestic customers by claiming that it only applied a $2.75 surcharge for deliveries to homes or private residences. In fact, the company applied the per-package fees on deliveries to government offices, commercial office towers and other nonresidential buildings, according to the class action. The fraud suit further alleged that FedEx applied a second fee for shipments sent to U.S. ZIP codes that FedEx Express deemed more costly and inconvenient to service. The delivery-area rates were allegedly $2.75 for packages to residences and $1.85 to commercial locations for regular delivery, as well as $3 and $1.85 for respective extended delivery services. FedEx applied both the residential delivery charge and the delivery-area charge to packages sent to nonresidential destinations, the suit said. Mr. Gokare said FedEx refused to correct any billing errors with this and subsequent transactions. The suit also claimed that FedEx Express' database, which "is riddled with errors," incorrectly identifies government offices and other buildings as residences. Meanwhile, company personnel who knew the buildings weren't residences carried out the charges anyway, plaintiffs alleged. The suit alleged that the shipping giant violated the federal Racketeer Influenced and Corrupt Organizations Act and breached its contract with customers by intentionally applying the charges to locations that couriers knew were nonresidences. An amended version of the complaint added the RICO allegation and new plaintiff Goldstein Demchak Baller Borgen & Dardarian PC, an Oakland civil rights law firm that claimed similar fraud over the delivery of documents to federal and state courthouses. FedEx said on Nov. 22 that it built its reputation on award- winning customer service. "We highly value our relationships with our customers, and these relationships are at the core of all we do," FedEx spokesman Ben Hunt told Law360. "We agreed to settle this matter to avoid the cost and uncertainty of continued litigation." Plaintiffs are represented by Jeffrey O. Bramlett -- bramlett@bmelaw.com -- Steven J. Rosenwasser, Joshua F. Thorpe -- thorpe@bmelaw.com -- Robert L. Ashe III -- ashe@bmelaw.com -- Naveen Ramachandrappa -- ramachandrappa@bmelaw.com -- and Manoj S. Varghese -- varghese@bmelaw.com -- of Bondurant Mixson & Elmore LLP; Frank L. Watson and William F. Burns of Watson Burns PLLC; and Salu Kunnatha -- skk@kunnathalaw.com -- of Kunnatha Law Firm PC. FedEx is represented by in-house counsel. The case is Manjunath A. Gokare PC et al. v. Federal Express Corp. et al., case number 2:11-cv-02131, in the United States District Court for the Western District of Tennessee, Western Division. According to the settlement web site -- http://www.noticeclass.com/GokareSettlement-- there's a Dec. 9 deadline for returning Proof of Claim. FERMI NATIONAL: Bid to Dismiss GINA Violation Suit Denied --------------------------------------------------------- CARRIE WILLIAMSON, f/k/a Carrie Holzgrafe, individually and on behalf of all others similarly situated, Plaintiffs, v. FERMI NATIONAL ACCELERATOR LABORATORY, c/k/a Fermilab, Defendant, NO. 13 C 4221, (N.D. Ill.) asserts violation of the Genetic Information Nondisclosure Act of 2008 (GINA), via 42 U.S.C. Section 1981, when Fermilab required all employees to submit to a physical exam and questionnaire that included questions about family medical history. Ms. Williamson also alleges, for herself only, that Fermilab unlawfully discharged her from her position as administrative assistant in violation of Title I of the Americans With Disabilities Act of 1990 (ADA). Fermilab moved to dismiss the class action portion of Count I of Ms. Williamson's Complaint on grounds that Ms. Williamson did not exhaust administrative remedies because her charge allegations filed with the U.S. Equal Employment Opportunity Commission (EEOC) did not contain and are not reasonably related to allegations of class-wide discrimination. In the alternative, Fermilab argued that the Court should limit the class period to the period beginning December 3, 2011, 300 days before the EEOC issued its determination letter dated September 28, 2012. District Judge Virginia M. Kendall denied Fermilab's motion to dismiss the class allegations saying it is not appropriate to dispose of Ms. Williamson's class claims at the motion to dismiss phase when it is clear from the Determination Letter that the EEOC discovered facts that it believed supported findings of class discrimination while conducting its investigation into Ms. Williamson's charge. "It is clear from the Determination Letter that, after Ms. Williamson filed her initial charge, the EEOC found something indicating class-wide discrimination, and the Letter provided adequate notice to Fermilab of the existence of a potential class," the judge said. Fermilab may raise its alternative argument regarding the date for commencement of the 300-day window in response to any motion for class certification, Judge Kendall added. A copy of the District Court's November 7, 2013 Memorandum Opinion and Order is available at http://is.gd/xL0AY0from Leagle.com. FLINT, MI: Court Narrows Claims in "Borman" Class Action -------------------------------------------------------- District Judge Paul D. Borman granted, in part, and denied, in part, a motion to partially dismiss claims asserted in the class action captioned ROBERT GARCEAU, ET AL., Plaintiff, v. CITY OF FLINT, ET AL., Defendant, CASE NO. 12-CV-15513, (E.D. Mich.). The Defendants moved to dismiss the Plaintiffs' claim of "Harassment and/or Retaliation based upon race in violation of Equal Protection rights asserted by Plaintiffs Dickenson II, Howe, Garceau and Wooster." The Plaintiffs base this "race retaliation" claim on both 42 U.S.C. Section 1983 and Section 1981. The Defendants further argued that the Plaintiffs have failed to set forth a valid claim against the City of Flint. The Plaintiffs have alleged that the City of Flint "has a pattern and practice, and past historical policy," of discriminating in favor of African-American/black employees and discriminating against Caucasian/white employees. Judge Borman held that the Plaintiff is seeking to assert this claim of "Harassment and/or Retaliation" only under Section 1981 which does not provide a private cause of action. For this reason, the Court dismissed Plaintiffs' claim of 'race retaliation' under Section 1981. With respect the discrimination issue, Judge Borman found that the Plaintiffs have supplied some factual content to their legal claims, and the Court can make a plausible inference of wrongdoing. Accordingly, the Court denied the Defendants' request to dismiss these claims. A copy of the District Court's November 7, 2013 Opinion and Order is available at http://is.gd/9gmuFwfrom Leagle.com. FORD MOTOR: Plaintiffs Request Warning on Acceleration Defect ------------------------------------------------------------- Amanda Bronstad, writing for The National Law Journal, reports that plaintiffs attorneys have asked a judge to force Ford Motor Co. to instruct customers about what to do if their cars begin to accelerate on their own. The request for a preliminary injunction came on Nov. 18 and followed Ford's motion to dismiss a group of consumer class actions alleging that sudden acceleration defects in 35 models, including the Explorer and Taurus, caused the value of its vehicles to decline. The plaintiffs claim that Ford, despite receiving hundreds of reports of sudden acceleration since 2002, failed to install a brake override system in its North American vehicles until 2010, leaving drivers in an "unreasonably dangerous" situation during that interim. The complaints came soon after Toyota Motor Corp. agreed in December to pay more than $1.6 billion in cash and other costs to resolve similar claims. In the Ford litigation, U.S. Chief District Judge Robert Chambers of the Southern District of West Virginia consolidated three separate nationwide class actions that were filed by the same plaintiffs attorneys on behalf of millions of consumers in 30 states. In a June 27 motion to dismiss, Ford attorney Michael Bonasso -- mbonasso@fsblaw.com -- a member of Flaherty Sensabaugh Bonasso in Charleston, W.Va., wrote that the absence of a brake override system wasn't a defect. He added that the plaintiffs have failed to allege a specific injury or alternative defect. Mr. Bonasso did not return a call for comment. Plaintiffs attorney Niall Paul -- npaul@spilmanlaw.com -- wrote that Ford "grasps at straws" in its motion. "Ford's principal argument -- that Plaintiffs have spun their factual and legal theories out of thin air -- is belied by thousands of consumer reports that illustrate the hazards these vehicles present to their drivers, their passengers, other motorists, and pedestrians," Mr. Paul, of Spilman Thomas & Battle in Charleston, W.Va., wrote in a Sept. 20 response. Ford also has moved to strike allegations that are "immaterial, impertinent and scandalous" -- specifically, that Ford misled the U.S. National Highway Traffic Safety Administration in the 1970s and 1980s regarding sudden acceleration. On Nov. 18, plaintiffs attorneys filed their motion for a preliminary injunction requiring a safety warning for Ford consumers. "We believe that the sudden acceleration situations that occur, and they occur a lot with Ford, pose very serious safety risks both to drivers in the car as well as others on the road," said plaintiffs attorney Adam Levitt -- alevitt@gelaw.com -- director of Grant & Eisenhofer. "As we allege in our lawsuit, the absence of reasonable fail safe systems, in these cars, causes the problems to be ongoing." Messrs. Levitt, Paul and three other attorneys -- Mark DiCello -- madicello@dicellolaw.com -- of The DiCello Law Firm in Mentor, Ohio; Timothy Bailey of Charleston's Bucci, Bailey & Javins; and Stephen Gorny -- steve@bflawfirm.com -- of Bartimus, Frickleton, Robertson & Gorny in Leawood, Kan. -- asked to be appointed interim co-lead counsel on behalf of the plaintiffs in the consolidated actions. Ford has called the appointment of lead plaintiffs' counsel premature. In an Aug. 8 court filing, Mr. Bonasso also wrote that "a committee of five law firms -- while clearly the Plaintiffs' first choice -- represents more of a political compromise than an attempt at true efficiency and cost-cutting." GEORGIA: PUSH Coalition Challenges "Stand Your Ground" Law ---------------------------------------------------------- Iulia Filip at Courthouse News Service reports that the Rainbow PUSH Coalition sued Georgia's governor and attorney general, claiming the state's "Stand Your Ground" law "created a perfect storm for arbitrary killings with no recourse," and discriminates against minorities. Three individuals joined the Coalition as plaintiffs: (1) the parents of the late James Johnson III, a black man who was shot to death by a white man carrying a concealed gun, in a dispute involving Johnson's white girlfriend. The killer, Adam Lee Edmondson, invoked the "stand your ground" law and the jury found him not guilty of murder, according to the lawsuit; and (2) Herman Smith, a black man who killed another black man, allegedly in self-defense, but was convicted of felony murder despite invoking the "stand your ground" law, and was sentenced to life plus 10 years in prison. Named as defendants are Gov. Nathan Deal and Attorney General Samuel Olens. Georgia's Senate Bill 396 took effect on July 1, 2006, after then- Gov. Sonny Perdue signed it in April that year. It allows Georgians to use deadly force to defend themselves, other persons or property based on a "reasonable belief" that such force is necessary to prevent death, bodily injury or a forcible felony. Previously, Georgia allowed only "victims of a crime" to use deadly force. The Rainbow PUSH Coalition claims SB 396 created "an expansive and overly broad right to self-defense" and is being enforced arbitrarily with racial and social bias. "If allowed to continue in effect, SB 396 will significantly harm Georgians, and particularly Georgians of color, for at least three reasons, the lawsuit states: "First, SB 396 has and will subject Georgians to uneven and arbitrary application of the law. All Georgians, and particularly those of color, will be compelled to at all times prove that they are not taking part in any action which may lead an individual to form a 'reasonable belief' that they are posing a threat to them. Actions which individuals have claimed caused them to form a 'reasonable belief' have included playing loud music in a vehicle, pulling into the wrong driveway or, in another state, walking home with a bag of Skittles and ice tea. This is because SB 396 makes individuals who are perceived by society to be predisposed to violence presumptively a threat and therefore require a lower level of justification to use deadly force against. This law incorporates these societal prejudices and predispositions into Georgia criminal procedures. "Second, SB 396 will cause countless Georgians -- specifically Georgians of color -- to be erroneously deprived of the benefits of the Stand Your Ground law. These same societal presumptions have prevented many Georgians from availing themselves of this defense. Simply put, it is highly unlikely that an average 25- year-old African American male will be able to invoke the defense that he held a 'reasonable belief' that an 80-year-old unarmed white female posed a threat to him and justified the use of deadly force against her. "Criminal laws are not supposed to make distinctions between individuals based on their race, sex, age or other factors. There cannot be one speed limit for young black males and a different speed limit for older white females. Similarly, there cannot be a divergent Stand Your Ground standard for individuals based on the same. These deprivations will force individuals to risk felonious assault or death out of fear that invoking Stand Your Ground will result in prosecution. "Third, SB 396 interferes with the core doctrine of self-defense as a defense of last resort. Instead, Stand Your Ground allows an individual the shoot first as a preventative measure. By eliminating the duty to retreat and using the 'reasonable belief' standard, Georgia has created a perfect storm for arbitrary killings with no recourse and a lack of faith in the law within the people of Georgia." The coalition claims the law allows people to use deadly force with little or no provocation, and transforms police officers into judges and juries who must determine whether to arrest those who claims a stand-your-ground defense. The Rainbow PUSH Coalition, formed in 1996 through the merging of two organizations the Rev. Jesse Jackson founded, claims the law affects it by forcing it to divert resources from its usual activities. The plaintiffs claim the law is unconstitutionally vague because it does not define what actions or circumstances constitute "reasonable" fear justifying use of deadly force. What's more, the plaintiffs say, people facing circumstances where deadly force may be needed find out if their use of force was legal only afterward. "Section 1 effectively requires all persons in Georgia to 'guess' if the action which they are taking will fall within what others believe to be reasonable," the complaint states. "It is beyond question that we would not require individuals to guess the speed limit. There is no law which says individuals are allowed to go the speed which they 'reasonably believe' is correct and prudent. But in a far more serious context we are leaving the lives of Georgians up to chance." The coalition claims the law creates a second class of citizens in Georgia by denying most felons the right to use a gun to defend themselves and their families. Stand-your-ground forbids people who are barred from possessing weapons to use a gun for self-defense. The plaintiffs seek to represent all Georgians who may be prosecuted despite invoking stand-your-ground, based on their race or national origin, or who will be killed by people invoking self- defense under the law. They seek class certification and want the law enjoined as unconstitutional. Asked for comment, a spokeswoman for Gov. Deal said it was "a matter for the attorney general's office." Attorney General Olens' Office declined to comment Wednesday, November 6, 2013. Stand-your-ground laws, which exist in more than 20 states, came under fire after the 2012 death of Trayvon Martin in Sanford, Fla. George Zimmerman, the Neighborhood Watch guard who shot Martin to death, was acquitted of second-degree murder and manslaughter under Florida's stand-your-ground law. Though the Atlanta lawsuit cites Martin's case, lead attorney Patillo said the Rainbow PUSH Coalition began preparing its challenge before his death. Patillo told Reuters he believed the coalition's legal challenge was the only pending federal lawsuit in the country against a state stand-your-ground law. Trayvon Martin's mother has urged a U.S. Senate panel to help rescind stand-your-ground laws in the states that have passed them, starting with Florida in 2005. The laws go a step further from the so-called "castle doctrine," by removing requirements to retreat from danger outside one's home. "The person that shot and killed my son is walking the streets today, and this law does not work" Martin's mother Sybrina Fulton told the Senate Judiciary Committee. The Plaintiffs are represented by: Robert H. Patillo, II, Esq. THE PATILLO LAW GROUP, LLC 250 Auburn Ave., Suite 301 Atlanta, GA 30303 Telephone: (404) 590-5294 Facsimile: (404) 525-5233 E-mail: rpatillo@robertpatillo.com - and - Janice L. Mathis, Esq. THE RAINBOW PUSH COALITION 250 Auburn Ave., Suite 303 Atlanta, GA 30303 Telephone: (404) 525-56634 E-mail: janicelmathis@yahoo.com The case is Rainbow Push Coalition, et al. v. Nathan Deal, et al., Case No. 1:13-cv-03635-JEC, in the U.S. District Court for the Northern District of Georgia. GMAC MORTGAGE: Seeks Appeal in GMAC Kickback Class Action --------------------------------------------------------- Juan Carlos Rodriguez and Andrew Scurria, writing for Law360, report that Balboa Insurance Co. on Nov. 21 asked a New York federal judge to let it appeal her ruling barring its argument that government-approved premiums are unassailable in a class action alleging it paid GMAC Mortgage LLC kickbacks for force-placing policies, saying the matter is too important to await a final judgment. U.S. District Judge Alison J. Nathan in September upheld a racketeering class action targeting kickbacks Balboa allegedly paid to GMAC for force-placing hazard insurance policies, saying the lender may have gouged borrowers when demanding reimbursement for coverage, and rejected the company's "filed-rate doctrine" defense. Balboa's filed rates were approved for policies sold to loan servicers and lenders, while the plaintiffs purportedly reimbursed GMAC for force-placed coverage as required by their mortgage loan agreements, according to the order, a crucial distinction that the judge said spoiled the filed-rate defense. "The filed rate doctrine issue presented by this case is precisely the type of issue suitable for interlocutory review," Balboa said in a joint motion filed with fellow defendants Meritplan Insurance Co. and Newport Management Corp. According to Balboa, whether the filed rate doctrine applies and bars Plaintiffs' claims is a "controlling question of law," and if the Second Circuit were to reverse Judge Nathan's ruling and hold that the filed rate doctrine applies, all of the plaintiffs' claims would be subject to dismissal. "Indeed, where courts have applied the doctrine, including in cases similar to this one involving challenges to lender-placed insurance, courts have dismissed complaints with prejudice," the motion said. It also said there are disagreements in the federal courts over whether the filed rate doctrine operates to bar claims by borrowers that challenge the cost of their LPI premiums. Balboa said that in a recently issued decision, a different New York federal judge held that the filed rate doctrine barred a homeowner's claims that he was overcharged for lender-placed insurance, and a federal district court in Wisconsin reached the same conclusion a few weeks ago. "Moreover, neither the Second Circuit nor any other federal circuit court of appeals has yet weighed in on the precise issue that was the basis for this court's opinion that the filed rate doctrine did not apply: namely, whether the doctrine bars challenges by borrowers to the LPI premiums passed on to them by their mortgage servicers," the motion said. Balboa also said federal and state regulators have taken actions concerning the LPI premiums paid by borrowers, indicating that the proper venue for borrower complaints about their LPI premiums is with those regulators, not the federal courts. And the company argued that an immediate appeal opinion may materially advance the ultimate termination of the litigation. "In addition, although the Balboa defendants do not seek a stay of discovery pending the outcome of any interlocutory appeal, prompt appellate review also would preserve time and resources for the parties and the court in likely avoiding some discovery, substantial, additional motion practice, and any trial," the motion said. The putative class of homeowners allege GMAC broke federal racketeering laws by billing for the full cost of force-placed insurance policies it purchased despite secretly receiving mortgage tracking services from a Balboa affiliate for free, which constituted a kickback from the insurer. The plaintiffs are represented by Mark A. Strauss -- mstrauss@kmllp.com -- and J. Brandon Walker -- bwalker@kmllp.com -- of Kirby McInerney LLP. The insurers are represented by Ross E. Morrison -- rmorrison@buckleysandler.com -- Robyn C. Quattrone -- rquattrone@buckleysandler.com -- and Katherine L. Halliday -- khalliday@buckleysandler.com -- of BuckleySandler LLP. The case is Rothstein v. GMAC Mortgage LLC et al., case number 1:12-cv-03412, in the U.S. District Court for the Southern District of New York. GOOGLE INC: Settles Class Action Over Safari for $17 Million ------------------------------------------------------------ BigClassAction.com reports that a $17 million settlement has reportedly been reached in an Internet privacy class action lawsuit pending against Google Inc. The lawsuit concerns allegations that Google and another three online companies circumvented default privacy settings on Apple's Safari web browser, for the purposes of placing tracking cookies without consumers' knowledge. "Consumers should be able to know whether there are other eyes surfing the web with them," New York Attorney General Eric Schneiderman said. As part of the agreement Google has not admitted to any wrongdoing and stressed that they had "taken steps to remove the ad cookies, which collected no personal information from Apple's browsers." Other terms of the settlement reportedly stipulate that Google honor default privacy settings on web browsers. Google will also "provide a separate stand-alone page or pages on the Google.com domain designed to give information to users about Cookies (the "Cookie Page)." "Google shall maintain systems configured to instruct Safari brand web browsers to expire any Cookie placed from the doubleclick.net domain by Google through Feb. 15, 2012 if those systems encounter such a Cookie, with the exception of the DoubleClick opt-out Cookie. Such systems shall remain in place until Feb. 15, 2014, at which time all Cookies placed from the doubleclick.net domain by Google on Safari brand web Browsers through Feb. 15, 2012 should have expired by design," the settlement states. The $17 million settlement fund is set to be split among each of the Attorneys General who filed against Google, in amount yet to be designated. The states are listed as beneficiaries of the settlement are: Alabama, Arizona, Arkansas, California, Connecticut, Florida, Illinois, Indiana, Iowa, Kansas, Kentucky, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Nebraska, Nevada, New Jersey, New Mexico, New York, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Vermont, Virginia, Washington and Wisconsin, and District of Columbia. HAIN CELESTIAL: Misrepresents Dream Drink Products, Suit Claims --------------------------------------------------------------- Barbara Anderson is suing The Hain Celestial Group Inc. because it allegedly misrepresented its Dream drinks as "all natural" even though the products contain artificial ingredients. Barbara Anderson v. The Hain Celestial Group Inc. and Does, Case No. 8:2013cv01747, in the U.S. District Court for the Central District of California, Santa Ana Division. ILLINOIS: Appellate Court Reverses Dismissal of Suit vs. Governor ----------------------------------------------------------------- George Wilson, sheriff of Franklin County, Illinois, and Michael Huff, sheriff of Rock Island, Illinois, filed an action in the circuit court of Franklin County against Patrick Quinn, Governor of the State of Illinois, seeking a judgment declaring that the failure of the Governor to authorize full payment of a statutorily mandated annual stipend in 2010 was contrary to the law and the constitution of Illinois. The trial court dismissed the action, finding that it was barred under the State Lawsuit Immunity Act (745 ILCS 5/1 (West 2010)). On appeal, the Plaintiffs assert that the trial court erred in finding that the action was barred by sovereign immunity because their claim was brought against the Governor, not the State of Illinois, and because the suit was brought to obtain declaratory relief, and not to enforce a present claim to remedy a past wrong committed by the State. The Appellate Court of Illinois, Fifth District, agreed with the Plaintiffs, reversed the trial court ruling, and remanded the case for further proceedings. The Appellate Court concluded that the trial court erred in granting the Governor's motion to dismiss as the factual allegations in the plaintiffs' complaint are sufficient to establish jurisdiction in the circuit court under the "officer suit" exception to the doctrine of sovereign immunity and to support the remedy of mandamus. On remand, the trial court is instructed to allow the plaintiffs the opportunity to amend their complaint to plead their alleged causes of action, including the remedy of mandamus. The case is GEORGE WILSON, Sheriff of Franklin County, Illinois, and MICHAEL HUFF, Sheriff of Rock Island County, Illinois, on Behalf of Themselves and All Others Similarly Situated, Plaintiffs-Appellants, v. PATRICK QUINN, Governor of the State of Illinois, Defendant-Appellee, NO. 5-12-0337. A copy of the Appellate Court's November 7, 2013 Opinion is available at http://is.gd/6bzHsofrom Leagle.com. Attorneys for Appellant: Thomas F. McGuire, Esq. Jolanta A. Zinevich, Esq. THOMAS MCGUIRE AND ASSOCIATES, LTD. 4180 RFD, Route 83, Suite 206 Long Grove, IL 60047 Telephone: (847) 634-1727 Facsimile: (847) 634-4785 Lisa Madigan, Attorney General, Michael A. Scodro, Solicitor General, John P. Schmidt, Assistant Attorney General, 100 West Randolph Street, 12th Floor, Chicago, IL 60601, Attorneys for Appellee. ING GROEP: 2nd Cir. Refuses to Revive Subprime Class Action ----------------------------------------------------------- Kurt Orzeck and Ian Thoms, writing for Law360, report that the Second Circuit on Nov. 22 refused to revive a shareholder class action accusing ING Groep NV of illegally hiding its risky mortgage-backed securities, ruling that the expiration of a statute of limitations prevented the plaintiffs from bringing their claims. Affirming a lower court ruling, the appeals court said the Dutch banking company disclosed information related to its troubled investments in September 2007, starting the clock on a limitations period that expired by the time the plaintiffs filed suit in February 2009. The plaintiffs, a group of ING investors who suffered heavy losses when the U.S. housing market tanked, had accused ING of deceiving investors when issuing its 6.375 percent ING Perpetual Hybrid Capital Securities in June 2007. But the appeals court said "a reasonably diligent plaintiff" would have sued over ING's alleged misstatements and omissions sooner. ING and its underwriters, including UBS, Citigroup Global Markets Inc. and Merrill Lynch, hid their instability by downplaying their dependence on collateralized debt obligations and subprime loan securities, the plaintiffs claimed. The plaintiffs argued ING had the same duty to disclose its dependence on collateralized debt obligations and subprime loan securities. ING countered that it wasn't the original issuer of the mortgage- backed securities, only the purchaser, and that it didn't know how risky the securities were. In September 2010, Judge Lewis A. Kaplan of the U.S. District Court for the Southern District of New York dismissed most of the plaintiffs' claims, retaining only one claim regarding ING's omission of risk information. Judge Kaplan decided the plaintiffs had only alleged that ING should have known that the mortgage-backed securities were risky, not that the company knew they were. The claims thus alleged negligence, not fraud, according to the judge Judge Kaplan later reconsidered his decision after the Second Circuit's February ruling in Litwin et al. v. Blackstone Group LP -- which held that the investment firm had a duty to disclose information related to its troubled investments -- but determined it couldn't rescue plaintiffs' claims. After dismissing most of the claims in the suit, Judge Kaplan later denied class certification and, ultimately, the entire case. In affirming the judge's decision, the three-judge panel agreed that the plaintiffs hadn't alleged ING acted with the knowledge that its statements were false or misleading. The Second Circuit decided that the crux of the class action with respect to its liability claims was that ING's September 2007 statement that the company considered the mortgage-backed securities to be of relatively high quality was inaccurate or incomplete. But that claim was just the opinion of the plaintiffs, who didn't plausibly allege that ING knew the statement it issued was false or misleading, the appeals court said. Mitchell A. Lowenthal of Cleary Gottlieb Steen & Hamilton LLP, which is representing the defendants, told Law360 on Nov. 22 that "Judge Kaplan methodically addressed the case in the district court . . . and we are pleased that the Second Circuit fully agreed with the conclusions Judge Kaplan reached." Attorneys for the plaintiffs didn't immediately respond to requests for comment on Nov. 22. Circuit Judges Rosemary S. Pooler, Reena Raggi and Richard C. Wesley sat on the panel for the Second Circuit. The plaintiffs are represented by Steven F. Hubachek -- shubachek@rgrdlaw.com -- of Robbins Geller Rudman & Dowd LLP and Eric Alan Isaacson, Andrew J. Brown and Deborah R. Gross -- debbie@bernardmgross.com -- of the Law Offices of Bernard M. Gross PC. The defendants are represented by Mitchell A. Lowenthal -- mlowenthal@cgsh.com -- Jared M. Gerber -- jgerber@cgsh.com -- Danielle J. Levine -- dlevine@cgsh.co -- and Michelle J. Parthum -- mparthum@cgsh.com -- of Cleary Gottlieb Steen & Hamilton LLP and Adam S. Hakki -- ahakki@shearman.com -- and Christopher R. Fenton -- christopher.fenton@shearman.com -- of Shearman & Sterling LLP. The case is Marshall Freidus et al. v. ING Groep NV et al., case number 12-4514, in the U.S. Court of Appeals for the Second Circuit. INSTANT CHECKMATE: Faces "Zias" Suit Over Misidentification Claim ----------------------------------------------------------------- Writing for Courthouse News Service, Elizabeth Warmerdam reports that a biblical scholar sued a background check service, claiming it falsely identified him as a convicted sex offender and charges him $29 a month for a fraudulent, defamatory "service" he never ordered and doesn't want. Joe Zias sued InstantCheckmate, for himself and a proposed class, in Santa Cruz County Court. Zias claims he responded to California-based InstantCheckmate's offer to pay a one-time fee of $1, through his credit card, to do a background check on himself. But "to his shock and horror," InstantCheckmate described him "as a convicted sexual offender." The lawsuit continues: "To add insult to injury, defendant InstantCheckmate then harvested month-after-month of 'automatic' $29.63 fees from plaintiff's credit card despite representations that such charges could be averted upon request -- which request had been duly made, but ignored." Zias claims he was suckered by the defendant's "relentless onslaught of email spam -- sent as a daily barrage to millions around the worldwide web." Zias describes himself in the lawsuit as "a prominent scholar of the Ancient Near-East, biblical history, active in on-site digs and rigorous in his pursuit of the preservation of important scientific and historically significant artifacts." He says he spent 25 years working as a curator of archeology and anthropology with the State of Israel and was responsible for artifacts that included the Dead Sea Scrolls. In another example of "shock and horror," Zias says in the complaint, "in place of a photo of himself on defendant InstantCheckmate's online database was a scientific photo of an ancient skeleton that Zias had published in a scientific journal." Zias thought the photo had been hacked onto the site by one of his "disparagers" in the movie industry, who allegedly prefer box office receipts involving ancient artifacts to scholarly descriptions of them. He says he called InstantCheckmate, which told him that "photos on the InstantCheckmate website are taken from public records and reserved exclusively for convicted sexual offenders; therefore, plaintiff Joe Zias was being portrayed throughout the entire worldwide web (including in Santa Cruz County) as a convicted sexual offender!" It's not so, he says: "Joe Zias is not a convicted sexual offender. Joe Zias is a happily married family man (husband and father) and a Middle-Eastern and biblical scholar." Upon his demand that InstantCheckmate reveal the source of the "outrageous falsehood," he claims, InstantCheckmate "began a campaign of denial, (including within the County of Santa Cruz) while falsely asserting the above-described events never took place." Zias claims the company runs a fraud, that "InstantCheckmate's business plan is to acquire credit card information through a relentless campaign of spam email solicitations and while representing database services are available for only one week's payment ($1.00), in fact, defendant InstantCheckmate secretly plans and does charge month-to-month ($29.63) continuously until contacted to cease and desist." He seeks individual and class damages, and punitive damages, for defamation, fraud, negligence, breach of faith and violations of the Business & Professions Code. The Plaintiff is represented by: Donald Charles Schwartz, Esq. LAW OFFICES OF DONALD C. SCHWARTZ 9057 Soquel Drive # A Aptos, CA 95003 Telephone: (831) 331-9909 Facsimile: (831) 662-9892 E-mail: triallaw@cruzio.com JC PENNEY: Pomerantz Grossman Files Class Action in Texas --------------------------------------------------------- Pomerantz Grossman Hufford Dahlstrom & Gross LLP on Nov. 22 disclosed that it has filed a class action lawsuit against J.C. Penney Company, Inc. and certain of its officers. The class action, filed in United States District Court, Eastern District of Texas, and docketed under 13-cv-00750, is on behalf of a class consisting of all persons or entities who purchased or otherwise acquired securities of JCPenney between August 20, 2013 and September 26, 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 JCPenney securities during the Class Period, you have until December 2, 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. JCPenney is a retailer, operating 1,102 department stores in 49 states and Puerto Rico as of January 28, 2012. JCPenney's business consists of selling merchandise and services to consumers through its department stores and through its Internet Website at jcp.com. The Company sells family apparel and footwear, accessories, fine and fashion jewelry, beauty products through Sephora inside JCPenney, and home furnishings. The Complaint alleges that throughout the Class Period, Defendants made false and/or misleading statements, as well as failed to disclose material adverse facts about the Company's business, operations, and prospects. Specifically, Defendants failed to disclose and/or misrepresented adverse facts, including that the Company would have insufficient liquidity to get through year-end and would require additional investments to make it through the holiday season, and that the Company was concealing its need for liquidity so as not to add to its vendors' concerns. As a result of defendants' false statements, JCPenney's stock traded at artificially inflated prices during the class period, reaching a high of $14.47 per share on September 9, 2013. Then, on September 27, 2013, JCPenney issued a press release announcing the pricing of 84.0 million shares of its common stock at $9.65 per share in a secondary offering, stating that "[t]he Company intends to use the net proceeds from the offering for general corporate purposes." On this news, JCPenney shares declined $1.37 per share or 13%, to close at $9.05 per share on September 27, 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. JOHNSON & JOHNSON: Australian Law Firms Prepare for Hip Suit Trial ------------------------------------------------------------------ Janelle Miles, writing for The Sunday Mail, reports that lawyers representing more than 1000 Australians are preparing for trial in a class action against medical giant Johnson and Johnson over allegedly faulty hip replacements, despite a settlement in the US. Johnson and Johnson earlier agreed to pay almost AUD2.5 billion to compensate about 8,000 people in the US who had received recalled metal-on-metal hip implants. Class action law firm Maurice Blackburn has called on Johnson and Johnson to settle the case in Australia. Management principal Ben Slade said a court supervised settlement regime was the only honest and transparent solution for Australian victims. "The company has known for a long time that these defective products have caused serious injuries," he said. "It should put an end to the suffering of injured Australians and engage in meaningful negotiations with us." DePuy Orthopaedics, a subsidiary of Johnson and Johnson, recalled two versions of its ASR artificial hip implant in 2010 due to a high failure rate. Brisbane man Stuart Cain, 44, received a DePuy hip in 2007, and has had three further replacement surgeries since then after metal residue "killed off my femur". He has not worked for more than 18 months. "I haven't felt this bad and unhealthy in my entire life," he said. "I've got to the stage now where I don't sleep, I'm in constant pain. It's frightened the hell out of me." Mr. Cain, who is part of the Australian class action, said he would prefer to see his day in court. "They've ruined my life," he said. The Australian class action, headed by Maurice Blackburn and Shine Lawyers, is set for trial in mid-2014 in the Federal Court in Sydney. Lawyers will alleged DePuy and Johnson and Johnson had been negligent because they failed in their duty of care to implant recipients. They will also allege the companies had breached the Commonwealth Trade Practices Act by selling a product that was defective and caused injury. Shine Lawyers solicitor Rebecca Jancauskas said Johnson and Johnson had fought the Australian action "every step of the way". "We are currently in full swing preparing for the trial which will start on 2nd June 2014 in the Federal Court of Sydney," she said. Comment was sought from Johnson and Johnson. L'OREAL USA: DC Court Refused to Approve Deal in Mislabeling Suit ----------------------------------------------------------------- Lorraine Bailey at Courthouse News Service reports that a settlement to claims that L'Oreal mislabels products as "salon- only" unfairly awards class counsel nearly $1 million in fees while leaving nothing for consumers, a federal judge ruled. In July, U.S. District Judge John Bates preliminarily approved a settlement in a class action against L'Oreal for labeling its Matrix Biolage, Redken, Kerastase and Pureology products as "available only in salons," while nevertheless stocking them in Target, Kmart, and other non-salon retail stores. Under the terms of the settlement, L'Oreal promised to remove the "salon only" label from all of its products sold in the U.S., pay class representatives up to $1,000 each, and pay up to $950,000 in attorneys' fees. Bates declined to certify the class Wednesday, November 6, 2013, however, or give final approval of the class settlement, and denied plaintiffs' pending motion for attorneys' fees as moot. "Overall, the arguments raised by plaintiffs to show that this settlement is fair are unconvincing, particularly when weighed against the indications of unfairness raised by the objectors," the opinion states. "Accordingly, the court finds that the settlement is not fair, reasonable, and adequate." The settlement's only available relief to class members is injunctive, according to the ruling. While it preserves the right for individual class members to sue L'Oreal for damages, it releases the company from liability for all class-wide damages -- effectively relieving L'Oreal from monetary liability for the "salon-only" labels, as individual damages per class member would be too small to warrant a lawsuit. Supporters of the settlement claimed that the liability release is not unfair because there are no viable classwide damages claims. The original complaint sought monetary damages, but this claim was later dropped after finding that recovering damages on a classwide basis was not possible. Bates was not convinced by this line of reasoning. "In effect, the parties are asking this court to prejudge the merits of claims not before it; to conclude that those as-yet- unfiled claims are meritless; and hence to preclude those claims from ever being asserted, all without the putative claimants' participation," the 33-page opinion states. "But assuming even that would be appropriate, this case is not the proper vehicle. For on the record before the court, it is impossible to determine with any level of certainty that the class damages claims to be surrendered by class members are valueless." Incentive awards to class representatives, plus the large attorneys' fees request, also support the impression that the settlement is unfair, Bates said. "Moreover, the result achieved here could be characterized as worse than 'settling': counsel seeks to release class members' (originally asserted) class-wide damages claims for precisely nothing," the judge concluded (parentheses in original). The case is Alexis Richardson, et al. v. L'Oreal USA, Inc., Case No. 13-508 (JDB), in the U.S. District Court for the District of Columbia. LANDSCAPE SERVICES: Faces Suit Over Unpaid Overtime Compensation ---------------------------------------------------------------- Everardo Barbosa, and Javier Alvarado, on behalf of themselves, and all other plaintiffs similarly situated known and unknown v. Landscape Services and Management, Inc., and Curtis Depner, individually, Case No. 1:13-cv-074 (N.D. Cal., October 17, 2013) alleges that the Plaintiffs and the proposed class worked in excess of 40 hours per week at times throughout their employment with the Defendants, and were denied time and one half their regular rate of pay for all hours worked over 40 in a workweek. Landscape Services and Management, Inc., provides landscaping services in the Chicagoland area. Curtis Depner, is the owner of the Company. The Plaintiffs are represented by: John William Billhorn, Esq. BILLHORN LAW FIRM 120 S. State Street, Suite 400 Chicago, IL 60603 Telephone: (312) 853-1450 E-mail: jbillhorn@billhornlaw.com - and - Ana Dominguez, Esq. FARMWORKER AND LANDSCAPER ADVOCACY PROJECT 33 N. LaSalle, Suite 900 Chicago, IL 60602 Telephone: (312) 784-3541 E-mail: adominguez@fwadvocacy.org LAVAL, CANADA: Citizen Seeks to Pursue C$23MM Suit v. Ex-Mayor -------------------------------------------------------------- Michael Nguyen, writing for QMI Agency, reports that a citizen in scandal-plagued Laval, Que., wants a judge to approve a C$23- million class action lawsuit against a former mayor and top officials charged with gangsterism. Gilles Vaillancourt, who ran the sprawling Montreal suburb for 23 years, was arrested this past spring along with 36 other ex-politicians, bureaucrats and contractors. He's charged with conspiracy, fraud, influence peddling, breach of trust and gangsterism. Authorities say the suspects ran a massive kickbacks-for-contracts scheme. Laval resident Alexandre Lorrain wants taxpayers to be reimbursed. "The wrongful and fraudulent acts of the respondents had the direct effect of inflating the cost of professional services and public infrastructure work from 20% to 30%," the lawsuit application alleges. The application names Mr. Vaillancourt, former top bureaucrats Claude Asselin and Claude Deguise as well as four engineering consulting firms. The allegations haven't been proven in court and a judge has yet to approve the civil suit. Lorrain is seeking C$5 million each from the Cima+, Genivar, Dessau, and Aecom firms. The suit wants C$2 million from Mr. Vaillancourt and C$500,000 each from Asselin and Deguise for a total of C$23 million. Mr. Vaillancourt resigned as mayor last fall amid a litany of corruption allegations. Police claim he has hidden about $15 million that he allegedly received fraudulently through kickbacks from construction companies that won municipal contracts. Multiple police sources have told QMI Agency that Mr. Vaillancourt is suspected of using children to smuggle kickback cash to Switzerland and other countries. A public inquiry has also heard that most Laval councillors used fake names to pump money into their own party. LOS ANGELES, CA: Says District Court Lacks Standing --------------------------------------------------- Writing for Courthouse News Service, Matt Reynolds reports that a federal judge lacked standing to rule against state-court injunctions that Los Angeles uses to arrest gang members, the city told the 9th Circuit. Christian Rodriguez and Alberto Cazarez are the lead plaintiffs in the federal class action alleging that Los Angeles violates due- process rights by serving injunctions against suspected members of the Culver City Boys gang. In 2007, the California Court of Appeal invalidated one of the injunctions because it found its curfew provisions impermissibly vague. Rodriguez and Cazarez said they needed an injunction, and U.S. District Judge Dolly Gee agreed earlier this year that they would likely succeed in showing that the curfew violates their due process rights and could cause irreparable harm. While the Los Angeles Police Department had "adopted a policy of non-enforcement of the curfew provisions," people still believed, absent notice, that police were enforcing the injunctions, Gee found. "Under these circumstances, class members who have been served with the challenged injunctions are likely to be discouraged during certain hours from participating in lawful activities as mundane as carrying groceries from their car or as hallowed in a free society as speaking to relatives or friends on the porch outside of their home," Gee wrote in an amended 10-page order. On appeal, Los Angeles says that Gee's order against the 26 state court gang injunctions interferes with ongoing proceedings in state court. "If allowed to stand, the court's injunction creates the risk of routine collateral attacks on state court and public nuisance injunctions, and gang injunctions," Gary Rowe of Los Angeles firm Greines, Martin, Stein & Richland told the 9th Circuit panel on Monday, November 4, 2013. Judge Margaret McKeown was not persuaded. She asked Rowe why people misidentified as gang members were restricted to seeking a remedy in state court. "If I'm not a gang member presumably I shouldn't be covered by one of these 26 orders, right," McKeown asked. "Yes, that's correct," Rowe replied. "But if you serve me with that, why can't I go to federal court and say: 'Look, not only was I not a party but it says you have to be gang member -- I'm not a gang member,'" McKeown inquired. "There's a perfectly appropriate process in state court by which you can opt out, so the need for federal intervention is not necessary," Rowe said. McKeown remained unconvinced, pressing the attorney on why there could not be "parallel proceedings." "Administering a gang injunction is very complicated," Rowe said. "It would be mischievous to allow parallel proceedings, given the state's strong interest." Hadsell Stormer Richardson & Renick attorney Anne Richardson urged the court to affirm. She argued that the class was not asking to "monitor the state court proceedings in anyway" and only wanted the city to provide notice. "All we're trying to do is ask the city to let people know that they are no longer going to enforce these provisions," Richardson said. Richardson said the story would be different if state court proceedings had been enjoined or if the injunction was interrupting a trial. Those are cases where "courts have found abstention to be appropriate because there is an interference, there is an insult," the attorney said. "But here, there is no insult," Richardson added. "We just want to enforce the law that's already been articulated by the state courts." Judge Ronald Gould and Judge Jay Bybee joined McKeown on the panel. The City is represented by: Gary Rowe, Esq. GREINES, MARTIN, STEIN & RICHLAND LLP 5900 Wilshire Boulevard, 12th Floor Los Angeles, CA 90036 Telephone: (310) 859-7811 Facsimile: (310) 276-5261 E-mail: growe@gmsr.com The Plaintiffs are represented by: Anne Richardson, Esq. HADSELL, STORMER, RICHARDSON & RENICK LLP 128 N Fair Oaks Ave., Suite 204 Pasadena, CA 91103 Telephone: (626) 381-9261 Toll Free: (866) 457-2590 Facsimile: (626) 577-7079 E-mail: arichardson@hadsellstormer.com LULULEMON ATHLETICA: "Chaiken" Suit Settlement Has Initial OK ------------------------------------------------------------- District Judge Gonzalo P. Curiel granted preliminary approval of a class action settlement in LAUREN CHAIKIN, an individual, on behalf of herself and all others similarly situated, Plaintiff, v. LULULEMON USA INC., a Nevada Corporation, LULULEMON ATHLETICA INC., a Delaware Corporation, and DOES 1 through 50, inclusive, Defendants, CASE NO. 3:12-CV-02481-GPC-MDD, (S.D. Cal.). The Court preliminarily approved the agreement, including the Class Notice, short form Class Notice, and Claim Form. The Court certified the Class defined as: All persons who used a credit card to purchase merchandise at one of the Affected Locations during the applicable Class Period, and from whom Defendants requested and recorded their ZIP code. The Court approved Plaintiff Lauren Chaikin as Class Representative. The Court appointed Plaintiff's counsel, the law firms of Stonebarger Law, APC, Patterson Law Group, APC and Pilot Law, P.C. as Class Counsel. The Court will hold a final approval hearing on March 14, 2014, at 1:30 p.m., to determine whether the proposed Settlement of the Litigation on the terms and conditions provided for in the Agreement is fair, reasonable, and adequate and should be finally approved by the Court. All discovery and pretrial proceedings and deadlines are stayed and suspended until further notice from the Court, except when such actions are necessary to implement the Agreement and the Order, ruled Judge Curiel. A copy of the District Court's November 6, 2013 Order is available at http://is.gd/5O1Yqvfrom Leagle.com. MATCH.COM: Faces Class Action in N.Y. Over Fraudulent Profiles -------------------------------------------------------------- Dareh Gregorian, writing for New York Daily News, reports that Match.com really does offer dream dates -- thousands, "if not millions," of profiles are pure fantasy, charges a $1.5 billion lawsuit. The mega-popular dating site is engaging in "one of the biggest conspiracies ever executed on the Internet," the class- action Manhattan Federal Court suit says. The plaintiff, Yuliana Avalos, is a mom and part-time model who never joined the site, but says her pictures have been used "in hundreds if not thousands of fraudulent profiles" posted on the company's dating sites over the past six years. "Not a day goes by when someone doesn't tell me that they saw my pictures posted on Match.com or another website," the Florida woman said in a statement. The suit says she's not alone. "Thousands" of others, including celebrities, soldiers and adult actresses, have had their pictures plucked from Facebook and other sites and used for bogus profiles as well -- even though they "are not and never were" members of Match's dating sites, the suit says. The court filing says it's making the allegations based on hundreds of complaints filed by other alleged victims, and through Ms. Avalos' lawyer's own probe, which included the use of photo recognition software. The phony profiles are often created by scammers in other countries for "criminal purposes," which include "romance scams" that "entice victims to send money to people outside of the country," said Ms. Avalos' lawyer Evan Spencer. The suit says that at best, the company looks the other way, because it can tell the bogus profiles are being posted with IP addresses in foreign countries -- not the city listed on the profile. But the company also creates its own bogus profiles, the federal suit says. It doesn't elaborate on the charge -- but notes that inflating the number of profiles on Match and its other 25 dating sites is good for their business. The suit also says the company could easily crack down on the numerous bogus profiles -- Avalos is pictured in more than 200 of them -- by using facial recognition software, but chooses not to. It charges the company with negligence and unjust enrichment, and seeks $500 million in money damages for the "thousands" of victims, and $1 billion in punitive damages. Reps for Match.com and its corporate owner, IAC, which is based in Chelsea, did not return calls for comment. Launched in 1995, the dating website bills itself as the largest in the world. A standard membership costs $35.99 a month. The IAC sites together rake in about $350 million a year, the suit says. The company has been sued over bogus profiles by its members before, but the suits were tossed because the terms of Match.com's users agreement doesn't require it to "police" profiles. METROPOLITAN TICKETS: Sued Over Bait-and-Switch Refund Policies --------------------------------------------------------------- Joe Harris, writing for Courthouse News Service, reports that ticket broker MetroTix made millions of dollars from hundreds of thousands of people through bait-and-switch refund policies, a class action claims in City Court. Benjamin Hallmeier sued St. Louis-based Metropolitan Tickets dba MetroTix. Hallmeier claims MetroTix's bait-and-switch tactics include failing to notify ticket buyers of its event cancellation policy, changing its cancellation policy after selling the tickets, refusing to refund the full purchase price for canceled events. Hallmeier claims he spent $232 on tickets to a concert that was canceled, and MetroTix refunded only $198 -- the face value of the tickets. "Upon information and belief, the receipt for the refund contained the following statement: 'All tickets are NON-REFUNDABLE and NON- EXCHANGEABLE,'" the complaint states. "'In the event of a show cancellation, only the FACE VALUE of the ticket will be refunded.' "The language contained in defendant's cancellation terms in paragraph 20, which is only available after a purchase is made or a refund is given, is deceptive and differs significantly from the language used in the purchase policy in that it uses the phrase 'face value of the ticket' rather than 'face value of your purchase' which is used in the Purchase Policy. "In any event, it is deceptive for the defendant to inform customers in the Purchase Policy that upon an event cancellation it will refund the face value of their purchase when in fact only a partial refund is given." Hallmeier estimates that MetroTix has sold tickets to more than 50 events that have been canceled since 2009, affecting more than 200,000 customers. The class consists of all Missourians who bought tickets through MetroTix to events that were canceled. Hallmeier seeks actual and punitive damages for violations of the Missouri Merchandising Practices Act and breach of contract. MetroTix says on its Web site that it has sold tickets to St. Louis-area events for more than 20 years. Customers can buy tickets in person, over the telephone or through the Internet. MetroTix's purchase policy, checked Thursday, November 7, 2013, on its Web site, states in part: "Tickets and merchandise purchased through MetroTix.Com are subject to a non-refundable per-ticket or per-item service charge. Purchases may also be subject to non- refundable per-order handling and/or delivery charges. In the event of an event cancellation, Metrotix.Com shall use reasonable efforts to ensure you receive a prompt refund of the face value of your purchase. In the event of an event cancellation, please contact us for information regarding receiving your refund." The Plaintiff is represented by: David Steelman, Esq. STEELMAN, GAUNT & HORSEFIELD 901 Pine Street, Suite 110 Rolla, MO 65401 Telephone: (573) 341-8336 Toll Free: (866) 915-4793 Facsimile: (573) 341-8548 MONSANTO CO: Supreme Court Upholds Class Action Settlement ---------------------------------------------------------- The Associated Press reports that the state Supreme Court has upheld a judge's approval of Monsanto Co.'s massive settlement with thousands of West Virginia residents. In a 4-1 decision on Nov. 22, the court affirmed a January ruling approving the class-action settlement of a lawsuit alleging that the Nitro community was contaminated with dioxin from the former Monsanto chemical plant. The plaintiffs said Monsanto polluted their community by burning waste from production of the defoliant Agent Orange. Under the $93 million settlement, thousands of Nitro-area residents will be eligible for medical monitoring and property cleanups. Media outlets report that the court's majority said it found "no substantial question of law and no prejudicial error" in various appeals of the settlement order. Justice Brent Benjamin dissented. NAT'L COLLEGIATE: Plaintiffs Want Judge to Reconsider Ruling ------------------------------------------------------------ Steve Berkowitz, writing for USA Today, reports that lawyers for the plaintiffs in an anti-trust lawsuit against the NCAA concerning the use of college athletes' names and likenesses on Nov. 22 asked a federal judge to reconsider the part of her class-action certification ruling that is preventing the plaintiffs from seeking billions of dollars in damages relating to past television broadcasts. And the newly unredacted version of a document that had been filed by the NCAA reveals just how much money would be at stake. In discussing the damages modeling offered by the plaintiffs' experts, the NCAA's filing said the plaintiffs were seeking $3.2 billion in damages for a period from the 2005-06 school year through the 2010-11 school year. According to an excerpt of one expert's report that was including in the NCAA filing, NCAA Division I athletics departments had $47.8 billion in aggregate revenues for those years. U.S. District Judge Claudia Wilken has granted class-action status to the part of the case in which the plaintiffs are seeking to bar the NCAA from placing limits on the compensation that athletes can receive in exchange for playing sports. Though that part of the ruling disappointed the NCAA, Judge Wilken's refusal to grant class-action status to the damages claim disappointed the plaintiffs. Absent class-action status, only the roughly 20 named plaintiffs -- led by former UCLA basketball player Ed O'Bannon -- will be able to seek monetary damages for the use of their names and likenesses in various marketing activities and TV broadcasts during the period covered by the lawsuit. In denying the plaintiffs' bid for a class that could seek monetary damages from the NCAA, Judge Wilken said that the plaintiffs could not identify a feasible way of determining which current and former athletes were "actually harmed" by the NCAA's compensation limits on athletes. The judge also pointed out the difficulty "in determining which student-athletes were actually depicted in videogames." Noting that major-college football rosters have as many as 105 players, the judge said that the videogames' inclusion of 68 players per team and that NCAA football teams allow multiple players to wear the same jersey number, "makes it impossible to determine" which athletes suffered harm from being in the game "without conducting thousands of individualized comparisons between real-life college football players and their potential videogame counterparts." In the Nov. 22 filing, the plaintiffs contend that using preseason rosters of the teams from past years is an "inherently reasonable" way of determining which athletes were harmed and that the plaintiffs' experts have included in reports filed with the court a file that "contains the names of all class members on the roster of any team that was broadcast or rebroadcast on television from mid 2005 through mid 2012." NEW YORK: MTA Pays Nothing in Majority of Train Accident Lawsuits ----------------------------------------------------------------- Craig Warga, writing for New York Daily News, reports that the MTA pays nothing in majority of lawsuits filed by people who've been hit by subway trains, a review of recent cases shows. The MTA doesn't issue an apology when someone is hit by a subway train -- and it doesn't whip out the checkbook, either. About 90% of the 92 "man-under" lawsuits that were resolved in the last five years ended in the Metropolitan Transportation Authority's favor, according to a breakdown by the MTA. The MTA didn't pay a dime in 73 of those cases. It dispensed with another nine cases with paltry go-away payments averaging $40,000, according to the authority's information. Five big cases did result in payoffs totaling $33 million. "They fight tooth and nail and they win plenty of them," said veteran civil court lawyer Gary Pillersdorf, who has filed lawsuits on behalf of about two dozen riders or their estates. In the MTA's eyes, anyone who is hit by a train probably has no one else to blame but themselves, and the authority shouldn't have to give away any taxpayer money, no matter how horrific the injuries inflicted. Riders enter the system drunk as skunks and fall onto the tracks. They sometimes moronically go to the tracks to retrieve umbrellas or cell phones. And they jump to commit suicide by train. "We view the public interest as best served through the vigorous defense, often including trial, of lawsuits of this nature, in which individuals seek public funds after placing themselves in positions of obvious danger through their own illegal or reckless conduct," said Martin Schnabel, general counsel of the MTA's NYC Transit division. The MTA is rarely interested in settling man-under cases before trial. If it loses, it keeps fighting through appeals. Take the case of Alice Huang. The 18-year-old was getting off an F train in December 2001 when she dropped her Bible on the platform edge. She bent down, near the idling train, to pick it up. As the train started to pull out of the W. 23rd St. station, one of the cars struck Ms. Huang in the head. The force spun her around. One of her legs was caught between the moving train and the platform. Ms. Huang underwent nearly 20 operations and was permanently disabled. During the 2004 trial, Ms. Huang's lawyer, David Dean, said the train conductor should have seen Ms. Huang and alerted the motorman. The MTA's defense? The train wasn't out of place, she was. A conductor, located in the middle car, must visually check the platform. But a conductor can't look in two directions at once and shouldn't be expected to see every possible hazard. The jury awarded Ms. Huang $28.5 million. The MTA appealed. It wound up paying $12.75 million. NEW YORK, NY: Left Behind Disabled Citizens in Emergency Plans -------------------------------------------------------------- New York City's failure to prepare for the needs of its disabled citizens during emergencies violates the Americans with Disabilities Act, Jamie Ross at Courthouse News Service reports, citing a federal court decision. After Hurricane Irene in 2011, the Center for Independence of the Disabled and its Brooklyn chapter joined two individuals in a lawsuit against the city and Mayor Michael Bloomberg. The lawsuit accused the city of failing to plan for the nearly 900,000 disabled persons within New York City who are vulnerable during emergencies and disasters. As Hurricane Irene approached, "New Yorkers with disabilities had no idea how they could be evacuated, what shelters, if any, were accessible, how they would obtain life-sustaining medications, or how they could be transported when buses and subways stopped running," the complaint stated. Only 26 percent of the shelters open were accessible to people with disabilities, the class claimed, forcing people like named plaintiff Tania Morales back home for the duration of the storm after the ramp gate at a shelter she went to was locked. U.S. District Judge Jesse Furman certified the class action found Thursday, November 7, 2013, that people with disabilities were unable to leave their high-rise homes or locate accessible transportation during and after the storm. "The city's plans are inadequate to ensure that people with disabilities are able to evacuate before or during an emergency; they fail to provide sufficiently accessible shelters; and they do not sufficiently inform people with disabilities of the availability and location of accessible emergency services," Furman's 119-page decision states. Sid Wolinsky, director of litigation for Disability Rights Advocates and attorney for the class, called the ruling a landmark victory for the disabled residents of New York City. "For the first time, they will be provided with an equal chance of survival during disasters," Wolinsky said in a statement. "No person should be left behind to suffer or die during emergencies because of the incompetence of the city's bureaucracy." The city's plans for evacuations were flawed in their assumptions that people won't need assistance to leave a building and will be able to use public transportation, according to the ruling. "People with disabilities may require assistance evacuating their buildings and accessible public transportation in order to reach an evacuation center," Furman wrote. The city also had no plan for evacuating people with disabilities from multistory buildings, although "many people with disabilities cannot evacuate multi-story buildings on their own, particularly if a power outage has rendered elevators inoperable," the ruling states. Paratransit, which requires a 24-hour advance reservation, began to shut down only 30 minutes after Bloomberg issued an evacuation order during Hurricane Sandy in 2012. Also, transportation like MTA buses, which have two wheelchair-accessible seats, "may be too crowded for people in wheelchairs to board," the court found. While New York City's planning and response lacked for people with disabilities, Furman nevertheless said that "the valor and sacrifice of those who have come to the aid of New Yorkers in times of emergency, from first responders to volunteers, have been nothing short of extraordinary." He also commended the city for the "array and detail of its plans for every imaginable kind of emergency." Furman did not order the city to take any actions, instead finding "there is no question that crafting an appropriate remedy would be better accomplished by those with expertise in such matters and through negotiation, whether court-supervised or otherwise, than by court order." The parties were to submit a joint status letter on these matters on November 26, and are due for a conference with the court on December 3. Mayor Elect Bill de Blasio takes the reins from Bloomberg on New Year's Day. The case is Brooklyn Center for Independence of the Disabled, et al. v. Michael R. Bloomberg, et al., Case No. 1:11-cv-06690-JMF, in the United States District Court for the Southern District of New York. NEW YORK, NY: Overworked Minority Female 911 Operators, Suit Says ----------------------------------------------------------------- Nick Divito, writing for Courthouse News Service, reports that New York City Police overwork minority female 911 operators until they're sick, and retaliate against anyone who dares take a sick day, dispatchers claims in a federal class action. The eight plaintiffs, who work at communication centers throughout the city, also say their union did nothing to stop the abuses. Lead plaintiff Cynthia Hill claims the NYPD breached a collective bargaining agreement by declaring an ongoing emergency and requiring "excessive double-shifts back-to-back." "Plaintiffs work in a demanding high-stress environment where every call counts, and can be the difference, literally, between life and death," the lawsuit states. The plaintiffs say they "sit at the crossroad of all emergency relief in the city." The NYPD did not immediately respond to a request for comment Friday morning, November 8, 2013. The women say that between May and July the NYPD started requiring operators to work double 8-hour shifts three times a week. Since July, operators have had to work two 12-hour shifts per week. Since May, plaintiffs have been relieved from duty at 3 p.m. after working a mandatory double shift, then were expected to return for their next shift that night at 11, according to the 52-page lawsuit. "This schedule threatens not only the health of individual operators but all those who depend on the city's 911 emergency response system," the 911 operators say. The NYPD also "frequently and arbitrarily" canceled sick leave accrued and intimidated those who tried to use it, the women say. Anyone who does call in sick is subjected to "immediate reprisals," including cancellation of sick days, delay or denial of Family Medical Leave, and are hit with more mandatory overtime, according to the complaint. The women say supervisors hid their clock-out sheets to keep them there, and required them to answer calls during their meal breaks. They claim that even after working four consecutive 16-hour shifts, defendant Donald Church, who is in charge of the call centers, threatened them, while armed, saying he would take three days of their vacation time if they didn't work a fifth shift. He gave them 5 seconds to return to their desks or run the risk of losing three more vacation days, the women claim. They say the workload is causing "illness and fatigue in addition to the high stress job of being an operator." In fact, since May, "a number of operators have collapsed from exhaustion while dispatching calls and were removed" from a call center by paramedics, according to the complaint. Named plaintiffs Cynthia Hill, Gail Williams, Denise Inman, Vickie Gordon, Rolando Lopez Taura Pate, Ellen Ennis and Andrea Holly sued the City of New York, Mayor Michael Bloomberg, Police Commissioner Raymond Kelly, Richard F. Napolitano, Charles F. Dowd, Michael V. Polito, Ljubomir Belusic, Francis Kelly, Donald Church, David Lichtenstein, and Local 1549, District Council 37, AFSCE, AFL-CIO. They seek damages for gender and race discrimination, 1st Amendment violations, labor violations and breach of contract. The Plaintiffs are represented by: Samuel O. Maduegbuna, Esq. MADUEGBUNA COOPER LLP 110 Wall Street, 11th Floor New York, NY 10005 Telephone: (212) 232-0155 Facsimile: (212) 232-0156 E-mail: sam.m@mcande.com PHILADELPHIA, PA: Trial Court Ruling in "Gordon" Suit Upheld ------------------------------------------------------------ Nan Lee Johnson appealed from a court order dated September 12, 2012, which held that he lacked standing to pursue his class action and entered judgment on behalf of the Philadelphia County Democratic Executive Committee (Executive Committee) and its Chairman, Robert A. Brady (Brady), and the Fortieth Ward (40B) Democratic Executive Committee (Ward 40B) and its Leader, Anna M. Brown (Brown). Also, the Philadelphia Democratic Progressive Caucus (PDPC) appealed the order of September 17, 2012, which dismissed as moot its petition to intervene in the action as a party plaintiff. The Superior Court of Pennsylvania affirmed the trial court ruling saying the trial court correctly held that Mr. Johnson lacked standing to continue the action and properly granted the defendants' motion for summary judgment. The Superior Court added that the trial court properly denied PDPC's petition to intervene in the action after Count I became moot. It said any of PDPC's claims as to possible future use of the Rule VII, Article 1, Section E of the City Committee Rules were just as unripe as Mr. Johnson's. Therefore, even if PDPC is correct that the trial court did not follow proper procedure in ruling upon the petition without holding a hearing, the error was harmless. Judge Bowes dissented from the majority's decision to accept jurisdiction over the appeal and said he would transfer the case to the Commonwealth Court, which has the experience and skill-set to handle the matter expertly. The case is TRACY L. GORDON AND NAN LEE JOHNSON, ON THEIR OWN BEHALF AND ON BEHALF OF OTHERS SIMILARLY SITUATED, v. THE PHILADELPHIA COUNTY DEMOCRATIC EXECUTIVE COMMITTEE AND ITS CHAIRMAN, ROBERT A. BRADY, AND THE FORTIETH WARD (40B) DEMOCRATIC EXECUTIVE COMMITTEE AND ITS LEADER, ANNA M. BROWN, APPEAL OF: NAN LEE JOHNSON AND PHILADELPHIA DEMOCRATIC PROGRESSIVE CAUCUS, NO. 2869 EDA 2012. A copy of the Superior Court's November 7, 2013 Opinion is available at http://is.gd/zEABBMfrom Leagle.com. PHOTOMEDEX INC: Saxena White Files Securities Fraud Class Action ---------------------------------------------------------------- Saxena White P.A. on Nov. 22 disclosed that it has filed a securities fraud class action lawsuit in the United States District Court for the Eastern District of Pennsylvania against PhotoMedex, Inc. on behalf of investors who purchased or otherwise acquired the common stock of the Company during the period from November 7, 2012 through November 14, 2013. PhotoMedex is a skin health company providing integrated disease management and aesthetic solutions to dermatologists, professional aestheticians and consumers. The complaint brings forth claims for violations of the Securities Exchange Act of 1934. The Complaint alleges that throughout the Class Period, Defendants made false and/or misleading statements, as well as failed to disclose material adverse facts about the Company's business, operations, and prospects. Specifically, Defendants made false and/or misleading statements and/or failed to disclose that: (i) the effectiveness of the Company's key product, the no!no! device, rested on flimsy, weak studies; (ii) a more credible study raised serious doubts as to the effectiveness of the Company's key product, and in fact showed that no!no! works no better than shaving; (iii) the Company materially overstated the prospects for the no!no! device in the Japanese market; and (iv) as a result of the above, the Company's financial statements, assurances and expectations with regard to the Company's growth, operations and business prospects were false and misleading at all relevant times. You may obtain a copy of the Complaint and join the class action at http://www.saxenawhite.com If you purchased PhotoMedex stock between November 7, 2012 and November 14, 2013, inclusive, you may contact Lester Hooker, Esq. -- lhooker@saxenawhite.com -- at Saxena White P.A. to discuss your rights and interests. If you purchased PhotoMedex common stock during the Class Period of November 7, 2012 through November 14, 2013, and wish to apply to be the lead plaintiff in this action, a motion on your behalf must be filed with the Court no later than January 21, 2014. You may contact Saxena White P.A. to discuss your rights regarding the appointment of lead plaintiff and your interest in the class action. Please note that you may also retain counsel of your choice and need not take any action at this time to be a class member. Saxena White P.A., located in Boca Raton, specializes in prosecuting securities fraud and complex class actions on behalf of institutions and individuals. PLAYTEX PRODUCTS: Court Denies Bid to Dismiss Consumer Fraud Suit ----------------------------------------------------------------- District Judge Gary Feinerman denied a motion to dismiss filed by plaintiffs in the case captioned KEVIN MUIR, on behalf of himself and all others similarly situated, Plaintiff, v. PLAYTEX PRODUCTS, LLC, and PLAYTEX PRODUCTS, INC., Defendants, NO. 13 C 3570, (N.D. Ill.), In the putative class action, Mr. Muir alleges Playtex Products, LLC, and Playtex Products, Inc. sold him a diaper disposal product, the Diaper Genie II Elite, that falsely claimed on its packaging that it had been "Proven #1 in Odor Control." The complaint advanced a claim under the Illinois Consumer Fraud and Deceptive Business Practices Act (ICFA), 815 ILCS 505/1 et seq., and submitted that Mr. Muir suffered an economic injury as a result of Playtex's deception. Playtex moved to dismiss the suit under Federal Rule of Civil Procedure 12(b)(1) for lack of standing and, alternatively, under Rule 12(b)(6) for failure to state a claim. In a November 6, 2013 Memorandum Opinion and Order available at http://is.gd/v7xe9ofrom Leagle.com, Judge Feinerman held that Mr. Muir's allegation that he was deprived of the benefit of the bargain because the Diaper Genie II Elite product was actually worth less than what it would have been worth had it actually been proven superior in odor control to its competitors is sufficient to plead actual damages under the ICFA. RADIOSHACK CORP: Court Dismisses "Wills" Class Action ----------------------------------------------------- District Judge Paul A. Engelmayer dismissed the case captioned JAIME WILLS on behalf of himself and all others similarly situated, Plaintiff, v. RADIOSHACK CORPORATION, Defendant, NO. 13 CIV. 2733 (PAE), (S.D. N.Y.). In his complaint, Mr. Wills claimed that RadioShack's use of the U.S. Department of Labor's (DOL) Fluctuating Workweek (FWW) method for calculating overtime pay has, since May 5, 2011, violated the rights of RadioShack's New York-based non-exempt store managers under New York Labor Law (NYLL) Section 191 et seq. Mr. Wills claimed that RadioShack's payment of performance-based bonuses to those managers precluded it from using the FWW method, and required it to use instead the more generous "time-and-a-half" method of calculating overtime. Mr. Wills sought to recover the difference between the overtime pay yielded by those two methods. He also sought liquidated damages under the NYLL, and declaratory judgments that: (1) RadioShack's method of calculating overtime pay since May 5, 2011 violated the NYLL; and (2) RadioShack is collaterally estopped from contending that using the FWW method after that date complied with the NYLL. RadioShack moved to dismiss, on the grounds that its use of the FWW method to calculate overtime was permitted under the NYLL. Judge Engelmayer agreed with RadioShack, and held that the NYLL, which in all pertinent respects tracks the Fair Labor Standards Act (FLSA), 29 U.S.C. Sections 201 et seq., permitted RadioShack to use the FWW method to calculate its store managers' overtime pay. The Court, accordingly, granted the motion to dismiss. Judge Engelmayer directed the Clerk of Court to close the case. A copy of the District Court's November 7, 2013 Opinion & Order is available at http://is.gd/u2dSM9from Leagle.com. RICHARD FREER: Dozens of Ponzi Scheme Victims Attend Hearing ------------------------------------------------------------ The Associated Press reports that an eastern Pennsylvania man is headed to trial on charges he ran a bogus investment scam that bilked dozens of people out of a total of $10 million. More than 50 people packed the Nov. 25 preliminary hearing for 67-year-old Richard Freer in Northampton County Court. Authorities contend the Palmer Township financial adviser masterminded a massive scheme that bilked 90 people, most of them elderly, out of tens of thousands of dollars in savings and retirement funds. He was charged in September with multiple counts of theft, forgery and related counts. Prosecutors allege that for years, Mr. Freer claimed to be investing his clients' money in real estate trusts. Investigators said the former bank president was instead spending the cash on himself or using it to pay other investors. ROBERT BOSCH: Responds to Indian Employee's Tax Refund Suit ----------------------------------------------------------- PTI reports that German multinational Bosch on Nov. 22 dismissed as "mischaracterization of facts" the allegations leveled against it by an Indian employee, saying as an employer, the firm is fair and abides by the legal requirements in all countries. Suraj Kamath, working for Bosch's US subsidiary, had filed a class-action suit against the multinational engineering and electronics company alleging harassment over tax refunds. "We would like to state that the plaintiffs' charges are a mischaracterization of the facts. Bosch has acted in a lawful manner and we are confident of our position," Cheryl Kilborn, Bosch spokesperson, said. In a class action lawsuit filed in a federal court in Los Angeles, Kamath charged that Bosch unjustly enriched itself by requiring all of its non-US citizens employees to pay to Bosch federal and state tax refunds they had received while working in the US. It is estimated that at least 160 persons are part of the class action suit. S&D FRUITS: "Melgadejo" FLSA Class Suit May Proceed --------------------------------------------------- FLORENTINO MELGADEJO, Plaintiff, v. S&D FRUITS & VEGETABLES INC., et al., Defendants, NO. 12 CIV. 6852 (RA)(HBP), (S.D.N.Y.), brought under the Fair Labor Standards Act (FLSA), 29 U.S.C. Sections 201 et seq. and the New York Labor Law (NYLL), seeks to recover unpaid wages, unpaid overtime compensation and statutory damages. In a November 7, 2013 Opinion and Order available at http://is.gd/UFUQ07from Leagle.com, Magistrate Judge Henry Pit (1) authorized the plaintiff to pursue his FLSA claims as a collective action pursuant to 29 U.S.C. Section 216(b), (2) approved the plaintiff's proposed notice and consent form subject to certain revisions, (3) directed the defendants to produce contact information for the potential opt-in plaintiffs except with respect to their dates of birth and social security numbers and (4) directed the defendants to post the proposed notice and consent form in each location owned and operated by the defendants. Judge Pit ordered that by no later than 14 days from the date of the opinion, the must produce the names, last known mailing addresses, alternate addresses, telephone numbers, e-mail addresses and dates of employment for all non-managerial employees of defendants who worked on or after April 19, 2010 to present in their possession. By no later than 28 days from the date of the opinion, the plaintiff is directed to send notice to the potential opt-in plaintiffs, Judge Pit added. With regards the plaintiff's motion to certify his NYLL claims as a class action pursuant to Fed.R.Civ.P. 23(b)(3), Judge Pit held that he can address this matter only by way of a report and recommendation. Accordingly, "Plaintiff's motion for class certification is addressed in a report and recommendation of even date," he said. SOUTHWEST AIRLINES: Settles FACTA Class Action for $1.8 Million --------------------------------------------------------------- BigClassAction.com reports that a proposed settlement of two class action lawsuits concerning Southwest Airlines Co., has been reached. The class actions alleges that Southwest Airlines willfully violated the Fair and Accurate Credit Reporting Act (FACTA) by printing the expiration date on customers' credit or debit card receipts at airport ticket counters between October 17, 2007 and October 30, 2012 or at cargo counters between October 17, 2007 and January 25, 2013. Both sides agreed to a settlement to avoid the uncertainty and cost of a trial and provide benefits to Class Members. The Court did not decide in favor of Plaintiffs or Defendant, and Southwest Airlines Co. denies any liability or wrongdoing of any kind associated with the claims asserted in these class actions. Southwest Airlines Co. has agreed to create a Settlement Fund of $1,800,000 which, after fees and costs are deducted, will be divided equally among all Class Members who timely submit a valid Claim Form and do not exclude themselves from the settlement. It is estimated that approximately $1,132,053 will be available to be divided among Class Members who timely submit a valid Claim Form. Based on claims rates in other cases, the range of expected recovery per Class Member who submits a valid Claim Form is estimated at between $25 and $200. This is only an estimate. The actual amount paid out will depend on the number of Class Members who submit valid Claim Forms. If you made a non-business related credit or debit card purchase or transaction at a Southwest Airlines Co. airport ticket counter between October 17, 2007 and October 30, 2012 or a cargo counter between October 17, 2007 and January 25, 2013 and received a printed receipt, you may be entitled to benefits as part of a class action settlement. For complete information on the lawsuits, how to submit a claim and to download claim forms visit: http://www.SouthwestFACTASettlement.comor write to Southwest Airlines Co. Settlement Administrator, P.O. Box 3059, Faribault, MN 55021-2659. Claim Forms are due by February 5, 2014. TARGET CORP: Sued Over Combined Optometrist-Optician Operations --------------------------------------------------------------- Courthouse News Service reports that Luxottica and its subsidiary Target violate the law with their combined optometrist-optician operations, a class claims in Superior Court. The case is Lillian Shallow; Kathleen Shallow v. Target Corp.; Luxottica Group; Luxottica Retail NA, in the California Superior Court for San Diego County. TEXAS WINDSTORM: Disqualification of TWIA Counsel Upheld -------------------------------------------------------- In IN RE TEXAS WINDSTORM INSURANCE ASSOCIATION, Relator, NO. 01-13-00123-CV, Texas Windstorm Insurance Association (TWIA), by petition for writ of mandamus, challenges a trial court order disqualifying the law firm of Martin, Disiere, Jefferson & Wisdom, L.L.P. (MDJW) and its attorneys from representing TWIA in any of the consolidated Hurricane Ike lawsuits pending in Galveston County. Among other reasons, TWIA asserts that the trial court abused its discretion because there is no disqualifying conflict of interest under Rules 1.09 or 1.15 of the Texas Disciplinary Rules of Professional Conduct and because the disqualification movants failed to show actual prejudice. In a November 7, 2013 Opinion available at http://is.gd/XJMfUa from Leagle.com, the Court of Appeals of Texas, First District, Houston, conditionally granted the petition for writ of mandamus and concluded that findings support the respondent trial court's legal conclusion that MDJW's representation of TWIA in the case results in a violation of Rule 1.09(a)(3) of the TEX. DISCIPLINARY RULES PROF'L CONDUCT and they are disqualified from representing TWIA in the underlying cases. Accordingly, the Texas Appeals Court held that the respondent trial court did not abuse its discretion in entering its order disqualifying MDJW from representing TWIA in the underlying cases. TOYOTA MOTOR: Court Dismisses New Jersey Consumer Class Action -------------------------------------------------------------- Senior District Judge Joseph E. Irenas dismissed the case captioned THERESA E. GILLETTE, Plaintiff, v. TOYOTA MOTOR SALES, U.S.A, INC., Defendant, CIVIL NO. 13-3191 (JEI/AMD), (D. N.J.). Theresa Gillette brought this putative class action lawsuit asserting one violation of New Jersey's Truth in Contract Consumer Warranty and Notice Act, N.J.S.A. 56:8-1, et seq. (TCCWNA). Toyota Motor moved to dismiss the Complaint pursuant to Fed. R. Civ. P. 12(b)(6). According to Judge Irenas, the Complaint fails to state a claim for violation of the TCCWNA, therefore, the motion to dismiss will be granted. A copy of the District Court's November 7, 2013 Opinion is available at http://is.gd/xGjBHrfrom Leagle.com. LEWIS G. ADLER, ESQ. -- lewisadler@verizon.net -- Woodbury, New Jersey, and Paul DePetris, Esq. -- paul@newjerseylemon.com -- LAW OFFICE OF PAUL DEPETRIS, Medford, New Jersey, and Ronald E. Norman, Esq. -- rnorman@rnormanlaw.com -- LAW OFFICE OF RONALD E. NORMAN, LLC, Washington Professional Campus II, Turnersville, New Jersey, Counsel for Plaintiff. J. Gordon Cooney, Jr., Esq. -- jcooney@morganlewis.com -- Kristofor T. Henning, Esq. -- khenning@morganlewis.com -- Christopher Iannicelli, Esq. -- ciannicelli@morganlewis.com -- MORGAN, LEWIS & BOCKIUS LLP, Philadelphia, Pennsylvania, Counsel for Defendant. TREMOR VIDEO: Robbins Geller Files Class Action in New York ----------------------------------------------------------- Robbins Geller Rudman & Dowd LLP on Nov. 22 disclosed that a class action has been commenced in the United States District Court for the Southern District of New York on behalf of purchasers of Tremor Video, Inc. common stock pursuant and/or traceable to the Registration Statement and Prospectus issued in connection with Tremor Video's June 27, 2013 initial public stock offering. If you wish to serve as lead plaintiff, you must move the Court no later than 60 days from November 22, 2013. If you wish to discuss this action or have any questions concerning this notice or your rights or interests, please contact plaintiff's counsel, Samuel H. Rudman or David A. Rosenfeld of Robbins Geller at 800/449-4900 or 619/231-1058, or via e-mail at djr@rgrdlaw.com If you are a member of this class, you can view a copy of the complaint as filed or join this class action online at http://www.rgrdlaw.com/cases/tremor/ Any member of the putative 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. Any purchaser of Tremor Video is invited to contact us concerning their eligibility to serve as a lead plaintiff in this action, regardless of the date of their purchase. The complaint charges Tremor Video, certain of its officers and directors and the underwriters of the IPO with violations of the Securities Act of 1933. Tremor Video, headquartered in New York, New York, is a provider of technology-driven video advertising solutions for advertisers and agencies and publisher partners in the United States and internationally. Tremor Video filed with the SEC a Registration Statement which, following several amendments and being declared effective by the SEC, was used to conduct the IPO on June 27, 2013. The complaint alleges that the Registration Statement was negligently prepared and, as a result, contained untrue statements of material facts or omitted to state other facts necessary to make the statements made not misleading and was not prepared in accordance with the rules and regulations governing its preparation. Specifically, defendants failed to disclose the following material facts which existed at the time of the IPO: (a) that the online advertising market had materially shifted towards mobile browsing, as opposed to desktop browsing, where the Company was at a significant disadvantage to its competitors; and (b) that the Company was losing sales to competitors as a result of its inferior mobile browsing capabilities. The IPO was successful for the Company and the underwriter defendants, who sold 7.5 million shares of Tremor Video common stock to the public at $10 per share, raising approximately $75 million in gross proceeds for the Company. Yet by the time of the filing of this action, Tremor Video stock was trading at approximately $4 per share, a 60% decline from the IPO price. Plaintiff seeks to recover damages on behalf of all purchasers of Tremor Video common stock pursuant and/or traceable to the Registration Statement and Prospectus issued in connection with the IPO. The plaintiff is represented by Robbins Geller, which has expertise in prosecuting investor class actions and extensive experience in actions involving financial fraud. Robbins Geller -- http://www.rgrdlaw.com-- represents U.S. and international institutional investors in contingency-based securities and corporate litigation. WATTS WATER: "Trabakoolas" Suit Proceedings Stayed Until Dec. 10 ---------------------------------------------------------------- District Judge William H. Orrick, III, signed a class action joint report on status of settlement negotiations, and a stipulation and order staying litigation and pending deadlines until December 10, 2013, in the case captioned JASON TRABAKOOLAS, SHEILA STETSON, JACK WHEELER, CHRISTIE MOONEY AND KEVEN TURNER individually and on behalf of all others similarly situated, Plaintiffs, v. WATTS WATER TECHNOLOGIES, INC., WATTS REGULATOR CO., AND WOLVERINE BRASS, INC., Defendants, CASE NO. 3:12-CV-01172-WHO (EDL), (N.D. Cal.). The parties in the case asked the Court to stay all litigation activity until December 10, 2013, so they can continue to focus their efforts on reaching a resolution and, if necessary, participate in a December 6, 2013 mediation before former United States District Judge, Hon. Layn Phillips (Ret.). A copy of the District Court's November 6, 2013 Order is available at http://is.gd/lhdmGVfrom Leagle.com. DANIEL E. GUSTAFSON, ESQ. -- dgustafson@gustafsongluek.com -- JASON S. KILENE, ESQ. -- jkilene@gustafsongluek.com -- MICHELLE J. LOOBY, ESQ. -- mlooby@gustafsongluek.com -- GUSTAFSON GLUEK PLLC, Minneapolis, MN, Attorneys for Plaintiffs. DAVID S. MacCUISH -- david.maccuish@alston.com -- TODD BENOFF -- todd.benoff@alston.com -- LINDSAY G. CARLSON -- lindsay.carlson@alston.com -- ALSTON & BIRD LLP, David S. MacCuish Attorneys for Defendants WATTS REGULATOR CO., WATTS WATER TECHNOLOGIES, INC. and WOLVERINE BRASS, INC. WAUKEGAN, IL: Housing Authority Faces Class Action Over Bed Bugs ---------------------------------------------------------------- Chicago Tribune reports that Waukegan's public housing agency faces a federal class-action lawsuit alleging officials took ineffective action against a burgeoning bed bug infestation in a housing project. The suit filed by three residents of Harry Poe Manor claims the 155-unit tower still harbors the blood-sucking insects whose bites, often delivered while people sleep, can irritate and inflame skin. The suit filed on Nov. 22 in Chicago federal court seeks class-action status to represent all the building's current residents and those who've lived there during the alleged infestation. The suit seeks an injunction that would force the Waukegan Housing Authority to disclose the extent of any infestation and make a new plan to kill the bugs. The litigation also asks for monetary damages for, among other things, pain and suffering. "It's very uncomfortable," said Amy Strege, one of the plaintiffs' attorneys. "I think anyone who's ever had a mosquito bite understands that's annoying, and if you had thirty of those on your legs in a line every day for two years . . ." Waukegan Housing Authority Executive Director Charles Chambers could not be reached for comment after the suit was filed on Nov. 22. The suit says housing authority officials hired exterminators to use chemicals in apartments after residents complained of bugs in the downtown Waukegan high-rise. Public records show housing officials have known of the problem since at least January 2011, Ms. Strege said. However, the suit alleges, the building managers failed to heed federal recommendations and did not set up an "integrated pest management plan," a holistic approach that involves educating residents and can include fixes such as sealing cracks through which the bugs travel and enforcing rules that keep discarded furniture crawling with bugs from reentering the building. Building officials failed to warn residents and prospective residents about the bugs as the infestation spread to 80 apartments as of this summer, according to the lawsuit filed by Timothy Phillips, Gilberto Colon and John Stewart. Residents, meanwhile, often woke up to see the bugs' straight-line pattern of bites, the attorneys said. Mr. Colon reported seeing a woman riding a building elevator with a bug crawling on her, his attorneys said. Pest control experts who've studied the recent bed bug resurgence said a holistic approach is key to squashing an infestation in an apartment building or project. "If they're just doing it piecemeal, apartment by apartment, then they're never going to get rid of the problem," said Louis Sorkin, an entomologist and consultant in New York. Residents of an infested building need to be educated on how to recognize bed bugs and then how to prevent their spread. They need to be educated, for example, to avoid hauling in infested furniture found at the curb. "These bugs are hitchhikers and so the occupants of that residence are going to have these bugs, say, tucked in the treads of their shoes," said Susan Jones, an entomology professor at The Ohio State University. "And so you spread bugs all over." WEST CORP: Makes Customer Care Reps Work Off the Clock, Suit Says ----------------------------------------------------------------- Courthouse News Service reports that West Corp. makes its "customer care representatives" work off the clock at its Wausau, Wisconsin call center, citing a class action filed in Wisconsin Federal Court. WILMINGTON, DE: Faces Class Action Over Stop & Frisk Policy ----------------------------------------------------------- Sean O'Sullivan, writing for The News Journal, reports that a federal civil rights lawsuit, seeking class action status, has been filed against the city of Wilmington over what court papers describe as a years-long unconstitutional police department policy of stop, frisk and imprison. While the suit concedes that "stop and frisk" by police agencies has been ruled constitutional, attorney Stephen Norman writes that Wilmington police take it one step further and as a matter of routine handcuff individuals, transport them to the police station and detain them in a holding cell for up to two hours. "The Supreme Court has previously determined that handcuffing, transport, search and imprisonment of individuals based only on reasonable suspicion is unconstitutional," wrote Mr. Norman, who then goes on to detail three incidents where exactly that happened. Wilmington police spokesman Cpl. Mark Ivey declined comment on Nov. 22 citing a department policy about not commenting on pending litigation. Mr. Norman said on Nov. 22 that he believes there are a large number of people in the city of Wilmington who have had their rights deprived under this policy and likely do not know that the police stop, frisk and imprison actions violated their rights. He said his office will soon be setting up a website for potential plaintiffs in the case. In one of two incidents described in detail in the suit, plaintiff Jayvon Wright claims that on Nov. 23, 2011 he was tackled, handcuffed, searched and transported to the police station and held in a cell based only on reasonable suspicion of loitering and disorderly conduct, two minor charges that later were dropped. According to the suit, Mr. Wright saw a friend of his being searched by police and walked over to ask the friend if he needed him to call his parents and police responded by tackling him and taking him into custody with an officer saying, "Shouldn't you be playing basketball?" According to the suit, Mr. Wright was told he was being charged with resisting arrest but that charge was never filed. After about two hours, according to the suit, Mr. Wright was released. In a different incident on March 15, 2013, two men, Antoine Murrey and Keith Medley, were walking from a friend's apartment to pick up Mr. Medley's son at school across the street when three officers emerged from a police vehicle with guns drawn, according to the suit. The men complied with orders to get on the ground, were handcuffed, searched and officers searched Mr. Murrey's nearby car after finding the keys to the car on Mr. Murrey and even drove it around the block. The suit claims the men were walked back into the apartment building and were strip searched and cavity searched under threat of officers using stun guns on them. The two men then were taken to police headquarters, according to the suit, and held in a cell for an hour before being released without any charges ever being filed. The lawsuit states the men were never given a reason or explanation for the search and detention. "Medley had to subsequently describe to his 6-year-old son why he was handcuffed at gunpoint," according to the suit. The suit claims these incidents and the "longstanding" policy of the Wilmington police department violates the Constitution's Fourth Amendment protection against unreasonable searches and the Fourteenth Amendment protections against wrongful imprisonment and violations of due process. The suit seeks a permanent injunction against the policy and damages. Mr. Norman said he believes that city police also need additional training. WYNDHAM VACATION: Suit Over Timeshare Scam Headed for Arbitration ----------------------------------------------------------------- Writing for Courthouse News Service, Philip A. Janquart reports that an arbitrator must resolve claims from senior citizens who say they were fleeced for hundreds of thousands of dollars in a timeshare scam, a federal judge ruled. Thomas and Donna Crook were the lead plaintiffs in the San Francisco class action, alleging that Wyndham Vacation Resorts and its employees intentionally target seniors with misleading timeshare contracts. The Crooks say they have entered into 11 timeshare agreements with the company since 2001 for properties in Hawaii, Colorado, San Francisco and other states. They claimed that Wyndham employees Anita Howell and Linda Turner did not accurately represent the terms for several of those agreements, resulting in further investments. One deception allegedly occurred when the Crooks complained that Wyndham billed them for $30,000 of timeshare interests without their knowledge. Howell said Wyndham would buy back their timeshares if the Crooks paid another $49,000 to upgrade to the "Presidential Reserve level," according to the complaint. The Crooks said they paid up, on top of their initial $100,000 investment, but that Wyndham nevertheless blocked them from exercising the buyback option. Another time, Howell allegedly offered to transfer the Crooks' deeds to San Francisco without telling them it would cost another $66,000. Though Wyndham said specific contracts contain dispute-resolution clauses that obligate clients to arbitrate, the Crooks argued that the clause is unenforceable because the entire February 2011 agreement was "fraudulently obtained." They also called the clause "unconscionable" and thus invalid, and claimed that it does not "encompass their claim." U.S. District Judge William Orrick disagreed and compelled arbitration Monday, November 4, 2013. "The plaintiffs do not claim that the specific dispute resolution clause itself was fraudulently obtained," the order states. "Instead, they claim that the entire February 2011 agreement and all of their prior agreements with Wyndham were procured by fraud. Therefore, these claims are for the arbitrator, not the court." Determining whether the dispute-resolution clause is limited to actions in which a buyer has defaulted or whether the merger provision excludes plaintiffs' fraud claims requires interpretation of the February 2011 agreement and is subject to arbitration, Orrick found. "Contrary to plaintiffs' arguments, the [American Arbitration Association's] rules provide detailed procedures for consumers to initiate disputes," he wrote. "For all these reasons, interpretation of the scope of the agreement must be submitted to arbitration." On Friday, November 8, 2013, Orrick clarified that his previous order stayed, rather than dismissed, the case. The case is Thomas Crook, et al. v. Wyndham Vacation Ownership, Inc., et al., Case No. 13-cv-03669-WHO, in the U.S. District Court for the Northern District of California. WYNN CASINO: Can Require Card Dealers to Share Tips, S.C. Ruled --------------------------------------------------------------- Jeff D. Gorman, writing for Courthouse News Service, reports that Wynn Casino Las Vegas can require card dealers to share tips with employees of different ranks, the Nevada Supreme Court ruled. When the Wynn restructured its table-games department, it established a tip-pooling system among dealers, boxpersons and casino service team leads. Three dealers, Daniel Baldonado, Joseph Cesarz and Quyngoc Tang, filed a class-action complaint against the casino, challenging the system of sharing their tips with employees of different ranks. The Labor Commissioner ruled that the Wynn's policy did not violate Nevada law, but a Clark County judge set aside that ruling aside, stating that the policy violated the law because it directly benefited the Wynn. Wynn obtained a more favorable ruling from the Nevada Supreme Court on October 31, 2013. "We hold that the district court erred in overturning the Labor Commissioner's decision because the Wynn did not keep any of the tips from the pool; rather, the Wynn distributed the money among its employees," Justice Michael Douglas wrote for the unanimous seven-member court. The Clark County judge should not have based his decision on whether the casino benefits from the policy, according to the ruling. "Such a test is unworkable because every tip-pooling policy directly benefits the employer in some manner," Douglas wrote. It was also improper for the Clark County court to overrule the labor commissioner's denial of class certification for the plaintiffs, the ruling states. The Defendant-Appellant is represented by: Gregory J. Kamer, Esq. Bryan J. Cohen, Esq. KAMER ZUCKER ABBOTT 3000 West Charleston Boulevard, Suite 3 Las Vegas, NV 89102 Telephone: (702) 259-8640 Facsimile: (702) 259-8646 Toll Free: (800) 231-4094 - and - Eugene Scalia, Esq. Porter Wilkinson, Esq. GIBSON, DUNN & CRUTCHER LLP 1050 Connecticut Avenue, N.W. Washington, DC 20036-5306 Telephone: (202) 955-8500 Facsimile: (202) 467-0539 E-mail: escalia@gibsondunn.com The Plaintiffs-Respondents are represented by: Leon M. Greenberg, Esq. LEON GREENBERG PROFESSIONAL CORPORATION 2965 S. Jones Boulevard # E4 Las Vegas, NV 89146 Telephone: (702) 383-6369 The appellate case is Wynn Las Vegas, LLC v. Daniel Baldonado, et al., Case No. 60358, in the Supreme Court of the State of Nevada. ********* 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. 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