/raid1/www/Hosts/bankrupt/CAR_Public/140414.mbx
C L A S S A C T I O N R E P O R T E R
Monday, April 14, 2014, Vol. 16, No. 73
Headlines
3M COMPANY: Co-Defendant's Bankruptcy Stays Environmental Suits
3M COMPANY: Suit Over Perfluorochemicals Contamination on Hold
3M COMPANY: Plaintiffs Can't Amend Suit Over Ceradyne Acquisition
ALCOA INC: Court Proceedings v. Canadian Firms in Standstill
ALCOA INC: New Schedule Set in Suit Related to Hurricane Georges
ALCOA INC: Opposed Retirees' Petition for Writ of Certiorari
AMERICAN AIRLINES: Removed "Martino" Suit to Mass. District Court
AMYRIS INC: N.D. Cal. Judge Dismisses "Browning" Securities Suit
ARMORCON INC: Suit Seeks to Recover Unpaid Wages and Overtime
ARTHROCARE CORP: Faces Suits Over Smith & Nephew Merger Deal
ARTHROCARE CORP: Tex. Securities Suit Settlement Finally Approved
ATLAS AIR: Hearing on Certification Issue in Antitrust Suit Held
BARCLAYS BANK: Fixed FX Rates, Philly Retirement Board Claims
BARCLAYS BANK: Manipulated WM/Reuters Spot Rates, Suit Claims
BROADRIDGE FINANCIAL: Court Stays Discovery in Wage Suit
CAL MED: Faces Class Action Over False Promises of Referrals
CASEDHOLE SOLUTIONS: Violated Right to Receive OT Pay, Class Says
CINCINNATI BENGALS: Sued by Cheerleader Over Unpaid Minimum Wage
CITIGROUP INC: To Settle RMBS Investor Claims for $1.13 Billion
CITIMORTGAGE INC: Court Narrows Claims in "Williams" Action
CITIMORTGAGE INC: FCRA Claims Dismissed in "Williams" Action
COMCAST CORP: Faces Suit From Time Warner Shareholder Over Merger
COMMUNITY LOANS: Class of Active Military Members Certified
ENSIGN GROUP: Court Approves Medicare Coverage Settlement
ENVIRONMENTAL PROCESS: Court Certifies Class in Hawk Valley Suit
FASTAX: Faces Overtime and Minimum Wage Class Action in Eugene
FORT BEND FOOTBALL LEAGUE: Sued Over Violent Style of Play
GENERAL MOTORS: Sen. Blumenthal Calls for Recall Claims Trust
GOOGLE INC: Aug. 29 Final Hearing on $8.5MM Deal in Privacy Suit
GUGGENHEIM PARTNERS: Sued by Purchasers of Annuity Products
GULF RESOURCES: Calif. Court Finally Approves $2MM Settlement
JOHNSON & JOHNSON: AG Wants Sup. Ct. to Consider Risperdal Ruling
KAISER FOUNDATION: Sued Over Failure to Treat Mental Illness
KELLY SERVICES: Wins Calif. Court OK for Labor Suit Settlement
KERRY CONDON: Fails to Prudently Manage Plan Assets, Suit Says
LIBERTY SILVER: CEO Faces Securities Litigation in Florida
LIVE NATION: 7th Cir. Rules in "Forced Parking Charge" Case
M & F LLC: Fails to Pay Minimum and Overtime Wages, Suit Says
MACON GREYHOUND: Class Cert. Ruling in "Bussey" Suit Reversed
MEDFORD, OR: Trial Court Judgment in "Bova" Suit Reversed
MICHAEL MARTIN: Refused to Pay OT Wages Under FLSA, Suit Claims
MOTOROLA: Judge Eliminates 99% of Claim in Antitrust Suit
NEST LABS: Faces Class Action Over Malfunctioning New Thermostat
NEW JERSEY: Legislative Committee Looks Into Bridgegate Closure
NORTHWEST INC: Supreme Court Reverses Ruling in "Ginsber" Case
PALMS ADMINISTRATIVE: Food Service Workers Sue Over Unpaid Wages
PENNSYLVANIA: U.S. AG Won't Intervene in Gay Marriage Case
PFIZER INC: Faces "Trujillo" Suit in N.D. Texas Over Lipitor Drug
PI PREMMIER: Accused of Violating Fair Labor Standards Act
PROFESSIONAL TRANSPORTATION: Driver Seeks to Recover OT and Wages
REGIONS BANK: To Pay $13 Million Settlement to USPT Investors
REPUBLIC SERVICES: Mo. Suit Over Bridgeton Landfill Continues
RMJM INC: Sued for Withholding Earned Wages, Benefits & Deferrals
SALLIE MAE: 2 Calif. Women Can't Represent Class, Judge Rules
SHD LEGAL: Faces Suit Alleging Fair Debt Collection Act Violation
ST. JUDE MEDICAL: Harvard Paper Explains Device Approval Process
STARKIST CO: Judge Narrows "Hendricks" Suit Over Tuna Products
SYNGENTA CROP: Suit Over Atrazine Contamination in Ill. Dismissed
TAKEDA PHARMA: Jury Awards $9BB in Actos Bellwether Trial
TARGET CORP: 100 Data Breach Class Actions Transferred to Minn.
THAFATH INC: Class Seeks to Recover Unpaid Minimum and OT Wages
TRANSCANADA KEYSTONE: Judge Recommends Dismissal of "Bibbs" Suit
TRAVELERS COMPANIES: Appeals Court Yet to Rule in Asbestos Suits
TREMONT SECURITIES: 2nd Cir. Dismisses Appeal From Class Deal
UNITED AIRLINES: 2nd Cir. Wants Additional Briefing in DHL Suit
UNITED STATES: Dismissal of NSA Suit Won't Affect Newer Cases
VICTORIA'S SECRET: Sued Over "Hidden Returns Policy"
VONAGE AMERICA: Court Denies Motion to Arbitrate Suit in Calif.
WOODMAN LABS: Court Narrows Claims in "Horton" Class Action
WORKS & LENTZ: Removed "Sinclair" Class Suit to N.D. Oklahoma
*********
3M COMPANY: Co-Defendant's Bankruptcy Stays Environmental Suits
---------------------------------------------------------------
Environmental suits against 3M Company in Alabama are stayed due
to the filing of a bankruptcy petition by a co-defendant,
according to 3M's Feb. 13, 2014, Form 10-K filing with the U.S.
Securities and Exchange Commission for the fiscal year ended Dec.
31, 2013.
A former employee filed a purported class action lawsuit in 2002
in the Circuit Court of Morgan County, Alabama, seeking unstated
damages and alleging that the plaintiffs suffered fear, increased
risk, subclinical injuries, and property damage from exposure to
certain perfluorochemicals at or near the Company's Decatur,
Alabama, manufacturing facility. The Circuit Court in 2005
granted the Company's motion to dismiss the named plaintiff's
personal injury-related claims on the basis that such claims are
barred by the exclusivity provisions of the state's Workers
Compensation Act. The plaintiffs' counsel filed an amended
complaint in November 2006, limiting the case to property damage
claims on behalf of a purported class of residents and property
owners in the vicinity of the Decatur plant. In May 2013, the
Court stayed the case for an unknown period due to the filing of
a bankruptcy petition by a co-defendant.
Also, in 2005, the judge in a second purported class action
lawsuit (filed by three residents of Morgan County, Alabama,
seeking unstated compensatory and punitive damages involving
alleged damage to their property from emissions of certain
perfluorochemical compounds from the Company's Decatur, Alabama,
manufacturing facility that formerly manufactured those
compounds) granted the Company's motion to abate the case,
effectively putting the case on hold pending the resolution of
class certification issues in the first action, filed in the same
court in 2002. Despite the stay, plaintiffs filed an amended
complaint seeking damages for alleged personal injuries and
property damage on behalf of the named plaintiffs and the members
of a purported class. No further action in the case is expected
unless and until the stay is lifted.
3M COMPANY: Suit Over Perfluorochemicals Contamination on Hold
--------------------------------------------------------------
The Morgan County Circuit Court abated a case filed against 3M
Company by a class of all persons within the State of Alabama who
allegedly have had perfluorochemicals released or deposited on
their property, putting it on hold pending the resolution of the
class certification issues in a first case filed there, according
to the company's Feb. 13, 2014, Form 10-K filing with the U.S.
Securities and Exchange Commission for the fiscal year ended Dec.
31, 2013.
In February 2009, a resident of Franklin County, Alabama, filed a
purported class action lawsuit in the Circuit Court of Franklin
County seeking compensatory damages and injunctive relief based
on the application by the Decatur utility's wastewater treatment
plant of wastewater treatment sludge to farmland and grasslands
in the state that allegedly contain PFOA, PFOS and other
perfluorochemicals. The named defendants in the case include 3M,
its subsidiary Dyneon LLC, Daikin America, Inc., Synagro-WWT,
Inc., Synagro South, LLC, and Biological Processors of America.
The named plaintiff seeks to represent a class of all persons
within the State of Alabama who have had PFOA, PFOS, and other
perfluorochemicals released or deposited on their property. In
March 2010, the Alabama Supreme Court ordered the case
transferred from Franklin County to Morgan County. In May 2010,
consistent with its handling of the other matters, the Morgan
County Circuit Court abated this case, putting it on hold pending
the resolution of the class certification issues in the first
case filed there.
3M COMPANY: Plaintiffs Can't Amend Suit Over Ceradyne Acquisition
-----------------------------------------------------------------
A motion for leave to file an amended complaint by plaintiffs in
a suit against 3M Company over its proposed acquisition of
Ceradyne, Inc. was denied without prejudice after a settlement in
the case failed to win court approval, according to 3M's Feb. 13,
2014, Form 10-K filing with the U.S. Securities and Exchange
Commission for the fiscal year ended Dec. 31, 2013.
In October 2012, four plaintiffs filed purported class actions
against Ceradyne, Inc., its directors, 3M, and Cyborg Acquisition
Corporation (a direct wholly owned subsidiary of 3M) in
connection with 3M's proposed acquisition of Ceradyne. Two suits
were filed in California Superior Court for Orange County, and
two were filed in the Delaware Chancery Court. The suits alleged
that the defendants breached and/or aided and abetted the breach
of their fiduciary duties to Ceradyne by seeking to sell Ceradyne
through an allegedly unfair process and for an unfair price and
on unfair terms, and/or by allegedly failing to make adequate
disclosures to Ceradyne stockholders regarding the acquisition of
Ceradyne. 3M completed its acquisition of Ceradyne in November
2012. In November 2012, the parties reached a settlement with the
California plaintiffs for an amount that is not material to the
Company, while the Delaware plaintiffs dismissed their complaints
without prejudice. The settlement will bind all former Ceradyne
shareholders and has received preliminary approval from the
California court. A final approval hearing was held in July 2013,
and the California Court denied approval of the settlement. The
plaintiffs filed a motion for reconsideration of the denial of
approval of the settlement, which motion was denied by the
California court. The plaintiffs then filed a motion for leave to
amend their complaint, which motion was denied without prejudice
in January 2014.
ALCOA INC: Court Proceedings v. Canadian Firms in Standstill
------------------------------------------------------------
No further formal court proceedings or discovery has occurred in
a suit filed against Alcoa Canada Ltd., and Alcoa Limitee over
emission of certain contaminants from its smelter that have
allegedly deposited on the lands and houses of the Baie Comeau's
St. Georges neighborhood, according to Alcoa Inc.'s Feb. 13,
2014, Form 10-K filing with the U.S. Securities and Exchange
Commission for the fiscal year ended Dec. 31, 2013.
In August 2005, Dany Lavoie, a resident of Baie Comeau in the
Canadian Province of Quebec, filed a Motion for Authorization to
Institute a Class Action and for Designation of a Class
Representative against Alcoa Canada Ltd., Alcoa Limitee, Societe
Canadienne de Metaux Reynolds Limitee and Canadian British
Aluminum in the Superior Court of Quebec in the District of Baie
Comeau. Plaintiff seeks to institute the class action on behalf
of a putative class consisting of all past, present and future
owners, tenants and residents of Baie Comeau's St. Georges
neighborhood. He alleges that defendants, as the present and past
owners and operators of an aluminum smelter in Baie Comeau, have
negligently allowed the emission of certain contaminants from the
smelter, specifically Polycyclic Aromatic Hydrocarbons or "PAHs,"
that have been deposited on the lands and houses of the St.
Georges neighborhood and its environs causing damage to the
property of the putative class and causing health concerns for
those who inhabit that neighborhood. Plaintiff originally moved
to certify a class action, sought to compel additional
remediation to be conducted by the defendants beyond that already
undertaken by them voluntarily, sought an injunction against
further emissions in excess of a limit to be determined by the
court in consultation with an independent expert, and sought
money damages on behalf of all class members. In May 2007, the
court authorized a class action suit to include only people who
suffered property damage or personal injury damages caused by the
emission of PAHs from the smelter. In September 2007, plaintiffs
filed the claim against the original defendants, which the court
had authorized in May.
Alcoa has filed its Statement of Defense and plaintiffs filed an
Answer to that Statement. Alcoa also filed a Motion for
Particulars with respect to certain paragraphs of plaintiffs'
Answer and a Motion to Strike with respect to certain paragraphs
of plaintiffs' Answer. In late 2010, the Court denied these
motions. The Soderberg smelting process that plaintiffs allege to
be the source of emissions of concern have ceased operations and
are being dismantled. No further formal court proceedings or
discovery has occurred, while technical advisors nominated by
agreement of the parties confer on potential health impacts of
prior emissions. This protocol has been agreed to by the parties
who have also advised the court regarding the process. The
plaintiffs have not quantified the damages sought.
ALCOA INC: New Schedule Set in Suit Related to Hurricane Georges
----------------------------------------------------------------
The Third Circuit Court of Appeals issued a new scheduling order
regarding briefing in a suit filed against Alcoa, Inc. on behalf
of persons in St. Croix, U.S. Virgin Islands who suffered damages
and/or injuries as a result of exposure to red dust and red mud
blown during Hurricane Georges, according to the company's Feb.
13, 2014, Form 10-K filing with the U.S. Securities and Exchange
Commission for the fiscal year ended Dec. 31, 2013.
In September 1998, Hurricane Georges struck the U.S. Virgin
Islands, including the St. Croix Alumina, L.L.C. (SCA) facility
on the island of St. Croix. The wind and rain associated with the
hurricane caused material at the location to be blown into
neighboring residential areas. SCA undertook or arranged various
cleanup and remediation efforts. The Division of Environmental
Protection (DEP) of the Department of Planning and Natural
Resources (DPNR) of the Virgin Islands Government issued a Notice
of Violation that Alcoa has contested. In February 1999, certain
residents of St. Croix commenced a civil suit in the Territorial
Court of the Virgin Islands seeking compensatory and punitive
damages and injunctive relief for alleged personal injuries and
property damages associated with "bauxite or red dust" from the
SCA facility. The suit, which has been removed to the District
Court of the Virgin Islands (the Court), names SCA, Alcoa and
Glencore Ltd. as defendants, and, in August 2000, was accorded
class action treatment. The class was defined to include persons
in various defined neighborhoods who "suffered damages and/or
injuries as a result of exposure during and after Hurricane
Georges to red dust and red mud blown during Hurricane Georges."
All of the defendants have denied liability, and discovery and
other pretrial proceedings have been underway since 1999.
Plaintiffs' expert reports claim that the material blown during
Hurricane Georges consisted of bauxite and red mud, and contained
crystalline silica, chromium, and other substances. The reports
further claim, among other things, that the population of the six
subject neighborhoods as of the 2000 census (a total of 3,730
people) has been exposed to toxic substances through the fault of
the defendants, and hence will be able to show entitlement to
lifetime medical monitoring as well as other compensatory and
punitive relief. These opinions have been contested by the
defendants' expert reports, that state, among other things, that
plaintiffs were not exposed to the substances alleged and that in
any event the level of alleged exposure does not justify lifetime
medical monitoring. Alcoa and SCA turned over this matter to
their insurance carriers who have been providing a defense.
Glencore Ltd. is jointly defending the case with Alcoa and SCA
and has a pending motion to dismiss. In June 2008, the Court
granted defendants' joint motion to decertify the original class
of plaintiffs, and certified a new class as to the claim of
ongoing nuisance, insofar as plaintiffs seek cleanup, abatement,
or removal of the red mud currently present at the facility. (The
named plaintiffs had previously dropped their claims for medical
monitoring as a consequence of the court's rejection of
plaintiffs' proffered expert opinion testimony). The Court
expressly denied certification of a class as to any claims for
remediation or cleanup of any area outside the facility
(including plaintiffs' property). The new class could seek only
injunctive relief rather than monetary damages. Named plaintiffs,
however, could continue to prosecute their claims for personal
injury, property damage, and punitive damages.
In August 2009, in response to defendants' motions, the Court
dismissed the named plaintiffs' claims for personal injury and
punitive damages, and denied the motion with respect to their
property damage claims. In September 2009, the Court granted
defendants' motion for summary judgment on the class plaintiffs'
claim for injunctive relief. In October 2009, plaintiffs appealed
the Court's summary judgment order dismissing the claim for
injunctive relief and in March 2011, the U.S. Court of Appeals
for the Third Circuit dismissed plaintiffs' appeal of that order.
In September 2011, the parties reached an oral agreement to
settle the remaining claims in the case which would resolve the
personal property damage claims of the 12 remaining individual
plaintiffs. On March 12, 2012, final judgment was entered in the
District Court for the District of the Virgin Islands. Alcoa's
share of the settlement is fully insured.
On March 23, 2012, plaintiffs filed a notice of appeal of
numerous non-settled matters, including but not limited to
discovery orders, Daubert rulings, summary judgment rulings, as
more clearly set out in the settlement agreement/release between
the parties. Plaintiffs' appellate brief was filed in the Third
Circuit Court on January 4, 2013, together with a motion seeking
leave to file a brief of excess length. The court has suspended
the remainder of the briefing schedule, including the date for
Alcoa's reply brief, until it rules on plaintiffs' motion to file
its brief of excess length. The Third Circuit Court of Appeals
issued a new scheduling order regarding briefing in the matter.
The matter has been fully briefed with plaintiffs' brief filed on
November 25, 2013 and the matter is now before the court.
ALCOA INC: Opposed Retirees' Petition for Writ of Certiorari
------------------------------------------------------------
Alcoa filed an opposition to the Petition for writ of certiorari
to the Sixth Circuit Court of Appeals in a suit filed by
retired former employees of Alcoa or Reynolds Metals Company and
Petitioners filed their reply in January, according to Alcoa
Inc.'s Feb. 13, 2014, Form 10-K filing with the U.S. Securities
and Exchange Commission for the fiscal year ended Dec. 31, 2013.
In November 2006, in Curtis v. Alcoa Inc., Civil Action No.
3:06cv448 (E.D. Tenn.), a class action was filed by plaintiffs
representing approximately 13,000 retired former employees of
Alcoa or Reynolds Metals Company and spouses and dependents of
such retirees alleging violation of the Employee Retirement
Income Security Act (ERISA) and the Labor-Management Relations
Act by requiring plaintiffs, beginning January 1, 2007, to pay
health insurance premiums and increased co-payments and co-
insurance for certain medical procedures and prescription drugs.
Plaintiffs alleged these changes to their retiree health care
plans violated their rights to vested health care benefits.
Plaintiffs additionally alleged that Alcoa had breached its
fiduciary duty to plaintiffs under ERISA by misrepresenting to
them that their health benefits would never change. Plaintiffs
sought injunctive and declaratory relief, back payment of
benefits, and attorneys' fees. Alcoa had consented to treatment
of plaintiffs' claims as a class action. Trial in the matter was
held over eight days commencing September 22, 2009 and ending on
October 1, 2009 in federal court in Knoxville, TN before the
Honorable Thomas Phillips, U.S. District Court Judge.
On March 9, 2011, the court issued a judgment order dismissing
plaintiffs' lawsuit in its entirety with prejudice for the
reasons stated in its Findings of Fact and Conclusions of Law. On
March 23, 2011, plaintiffs filed a motion for clarification
and/or amendment of the judgment order, which sought, among other
things, a declaration that plaintiffs' retiree benefits are
vested subject to an annual cap and an injunction preventing
Alcoa, prior to 2017, from modifying the plan design to which
plaintiffs are subject or changing the premiums and deductibles
that plaintiffs must pay. Also on March 23, 2011, plaintiffs
filed a motion for award of attorneys' fees and expenses. On June
11, 2012, the court issued its memorandum and order denying
plaintiffs' motion for clarification and/or amendment to the
original judgment order. On July 6, 2012, plaintiffs filed a
notice of appeal of the court's March 9, 2011 judgment. On July
12, 2012, the trial court stayed Alcoa's motion for assessment of
costs pending resolution of plaintiffs' appeal. The appeal was
docketed in the United States Court of Appeals for the Sixth
Circuit as case number 12-5801.
On August 29, 2012, the trial court dismissed plaintiffs' motion
for attorneys' fees without prejudice to refiling the motion
following the resolution of the appeal at the Sixth Circuit Court
of Appeals. On May 9, 2013, the Sixth Circuit Court of Appeals
issued an opinion affirming the trial court's denial of
plaintiffs' claims for lifetime, uncapped retiree healthcare
benefits. Plaintiffs filed a petition for rehearing on May 22,
2013, to which Alcoa filed a response on June 7, 2013. On
September 12, 2013, the Sixth Circuit Court of Appeals denied
plaintiffs' petition for rehearing. The trial court is now
considering Alcoa's request for an award of costs, which had been
stayed pending resolution of the appeal, and the plaintiffs'
request for attorneys' fees, which had been dismissed without
prejudice to refiling following resolution of the appeal.
On December 17, 2013 the United States Supreme Court docketed the
plaintiffs' petition for writ of certiorari to the Sixth Circuit
Court of Appeals as Charles Curtis, et al., Individually and on
Behalf of All Others Similarly Situated, Petitioners v. Alcoa
Inc., et al., Docket No.13-728. Alcoa's opposition to the
Petition was filed on January 16, 2014 and Petitioners filed
their reply on January 29, 2014.
AMERICAN AIRLINES: Removed "Martino" Suit to Mass. District Court
-----------------------------------------------------------------
The putative class action lawsuit styled Martino v. American
Airlines Federal Credit Union, Case No. BLS 13-4549, was removed
from the Superior Court of Suffolk County, Massachusetts, to the
United States District Court for the District of Massachusetts
(Boston). The District Court Clerk assigned Case No. 1:14-cv-
10310-DPW to the proceeding.
The Plaintiff seeks, in part, to collect funds from AAFCU for its
alleged practice of debiting funds from deposit accounts to pay
debts due on separate credit cards.
The Plaintiff is represented by:
Carlin J. Phillips, Esq.
PHILLIPS & GARCIA, LLP
13 Ventura Drive
North Dartmouth, MA 02747
Telephone: (508) 998-0800
Facsimile: (508) 998-0919
E-mail: cphillips@phillipsgarcia.com
The Defendant is represented by:
Robert L. Ciociola, Esq.
Jeffrey D. Kiesling, Esq.
LITCHFIELD CAVO, LLP
6 Kimball Lane, Suite 100
Lynnfield, MA 01940-2682
Telephone: (781) 309-1500
Facsimile: (781) 246-0167
E-mail: ciociola@litchfieldcavo.com
kiesling@litchfieldcavo.com
AMYRIS INC: N.D. Cal. Judge Dismisses "Browning" Securities Suit
----------------------------------------------------------------
DAVID BROWNING, et al., Plaintiffs, v. AMYRIS, INC., et al.,
Defendants, Case No. 13-cv-02209-WHO (N.D. Cal.), is a putative
securities class action wherein the plaintiffs allege that
defendants Amyris, Inc., and its chief executive officer, John G.
Melo, knowingly made false and misleading statements about the
production levels of Biofene, the chemical product Amyris makes.
The defendants sought dismissal of the complaint.
In a March 24 Order, District Judge William H. Orrick held that,
"The question I need to decide on this motion to dismiss is
whether or not the challenged statements are accurate, fall under
a safe-harbor, or were made with a culpable state of mind.
Because the plaintiffs fail to plead the existence of any false
or misleading statement and scienter with particularity, I GRANT
the motion to dismiss with leave to amend."
"To successfully state a claim, the plaintiffs must plead with
particularity what statements were made, when they were made, why
they were false at the time they were made, and how the defendant
who made the statement acted with scienter at the time the
statements were made," Judge Orrick said.
ARMORCON INC: Suit Seeks to Recover Unpaid Wages and Overtime
-------------------------------------------------------------
Hopeton Bennett, individually and on behalf of all others
similarly situated v. Armorcon, Inc., a Florida corporation, and
Mou Elbana, individually, Case No. 0:14-cv-60340-CMA (S.D. Fla.,
February 11, 2014) seeks unpaid wages, unpaid overtime
compensation, liquidated damages or pre-judgment interest, post-
judgment interest, reasonable attorney's fee and costs from the
Defendants.
Armorcon, Inc., is a Florida corporation. Mou Elbana owned and
operated the Company, where the Plaintiff was employed.
The Plaintiff is represented by:
Brian J. Militzok, Esq.
MILITZOK & LEVY, P.A.
The Yankee Clipper Law Center
3230 Stirling Road, Suite 1
Hollywood, FL 33021
Telephone: (954) 727-8570
Facsimile: (954) 241-6857
E-mail: bjm@mllawfl.com
The Defendant is represented by:
Tushaar Viki Desai, Esq.
DESAI & MAYA, P.A.
1540 Lake Baldwin Lane, Suite B
Orlando, FL 32814
Telephone: (407) 895-8707
Facsimile: (866) 514-9933
E-mail: tdesai@lawyer.com
ARTHROCARE CORP: Faces Suits Over Smith & Nephew Merger Deal
------------------------------------------------------------
Arthrocare Corporation faces several lawsuits over its proposed
merger with Smith & Nephew, Inc., according to Arthrocare's Feb.
13, 2014, Form 10-K filing with the U.S. Securities and Exchange
Commission for the fiscal year ended Dec. 31, 2013.
Between February 4, 2014 and February 12, 2014, five putative
class action lawsuits were filed in the Court of Chancery of the
State of Delaware by alleged stockholders of ArthroCare
Corporation ("ArthroCare" or the "Company") against the Company
and the individual directors of the Company, as well as Smith &
Nephew, Inc., Rosebud Acquisition Corporation and Smith & Nephew
PLC (collectively, "Smith Nephew"), and in one case, against One
Equity Partners LLC, OEP AC Holdings, LLC, (together, with One
Equity Partners LLC, "OEP") and JPMorgan Chase & Co. ("JPM").
These lawsuits are captioned: King v. ArthroCare Corporation et
al. C.A. No. 9313, Rybacki v. ArthroCare Corporation et al. C.A.
No. 9336, State-Boston Retirement System v. Fitzgerald et al.,
C.A. No. 9346, Dixon v. ArthroCare Corporation et al., C.A. No.
9347 and Machcinski v. ArthroCare Corporation et al., C.A. No.
9344.
These lawsuits generally allege that the members of ArthroCare's
Board of Directors breached their fiduciary duties in negotiating
and approving the merger agreement with Smith Nephew, that the
merger consideration undervalues the Company, that ArthroCare's
stockholders will not receive adequate or fair value for their
ArthroCare common stock in the merger and that the terms of the
merger agreement impose improper deal protection terms that
preclude competing offers. The King lawsuit further alleges that
the Board of Directors have failed to provide ArthroCare
stockholders with complete and accurate information about the
proposed merger. The State-Boston Retirement System lawsuit
further alleges that JPM and OEP had conflicts of interest in the
transaction, resulting from OEP's investment in ArthroCare and
JPM's economic interest in the buy-side financial advisor fees
and the buy-side financing fees and economics, and that JPM's
involvement as Smith Nephew's advisor and deal financing source
violated the terms of the securities purchase agreement that OEP
entered into with ArthroCare at the time that OEP invested in the
Company. The lawsuits further allege that the Company and/or
Smith Nephew, and in the State-Boston Retirement System case, OEP
and JPM, aided and abetted the purported breaches of fiduciary
duty. The State-Boston Retirement System case further alleges
that OEP breached the securities purchase agreement entered into
between OEP and the Company, and that JPM and Smith Nephew
tortuously interfered with the securities purchase agreement.
The lawsuits seek, among other things, to enjoin the merger, or
in the event that an injunction is not entered and the merger
closes, rescission of the Merger and unspecified money damages,
costs and attorneys' and experts' fees.
ARTHROCARE CORP: Tex. Securities Suit Settlement Finally Approved
-----------------------------------------------------------------
Settlement in In Re ArthroCare Corporation Securities Litigation,
Case No. 1:8-cv-574-SS was approved by the United States District
Court for the Western District of Texas and entered as a final
judgment, according to the company's Feb. 13, 2014, Form 10-K
filing with the U.S. Securities and Exchange Commission for the
fiscal year ended Dec. 31, 2013.
Shareholder Derivative Actions
In 2008 and 2009 three derivative actions were filed in Federal
court against the Company and its then-current directors alleging
breach of fiduciary duty based on alleged improper revenue
recognition, improper reporting of such revenue in SEC filings
and press releases, failure to maintain adequate internal
controls, and failure to supervise management. These federal
derivative actions were consolidated with the two securities
class actions and designated In Re ArthroCare Corporation
Securities Litigation, Case No. 1:8-cv-574-SS (consolidated) in
the U.S. District Court, Western District of Texas.
In 2008 and 2009, three derivative actions were filed in Texas
State District Court against the Company, its then current
directors, and certain of its current and former officers. In
these actions, certain of the Companies shareholders alleged
derivative claims on behalf of the Company that its directors and
officers breached their fiduciary duties to shareholders by
allowing improper financial reporting, failing to maintain
adequate financial controls over revenue recognition,
disseminating false financial statements, abuse of control, gross
mismanagement, waste of corporate assets, and engaging in insider
trading.
On March 18, 2009, these three state shareholder derivative
actions were consolidated and designated: In Re ArthroCare
Corporation Derivative Litigation, Case No. D-1-GN-8-3484
(consolidated), Travis County District Court.
Private Securities Class Action
In 2008, two putative securities class actions were filed in
Federal court against the company and certain of the company's
former executive officers, alleging violations of Sections 10(b)
and 20(a) of the Exchange Act and Rule 10b-5 promulgated
thereunder. Plaintiffs allege that the defendants violated
federal securities laws by issuing false and misleading financial
statements and making material misrepresentations regarding the
company's internal controls, business, and financial results. On
October 28, 2008 and thereafter, the two putative securities
class actions and the federal shareholder derivative actions were
consolidated and designated: In Re ArthroCare Corporation
Securities Litigation, Case No. 1:8-cv-574-SS (consolidated) in
the U.S. District Court, Western District of Texas.
The Company reached an agreement to settle the private securities
class action suits consolidated into the action titled In Re
ArthroCare Corporation Securities Litigation, Case No. 1:8-cv-
574-SS (consolidated) in the U.S. District Court, Western
District of Texas.
The settlement resolves all claims arising from the purchase or
sale of ArthroCare securities of a class of all purchasers of
ArthroCare common stock and call options, and sellers of put
options on ArthroCare common stock between December 11, 2007 and
February 18, 2009, inclusive (the Class), except those members of
the Class who opt out, for a payment of $74 million to a
settlement fund to be created for the settlement. Counsel for the
plaintiff applied for and received an award of attorneys' fees
and reimbursement of expenses from the settlement fund. On
February 10, 2012, the Court entered an order of preliminary
approval of the settlement and ordered that Notice be sent to all
class members. Pursuant to the preliminary approval order, the
Company paid the $74 million in settlement funds into the
applicable settlement escrow account on February 23, 2012. The
settlement was approved by the United States District Court for
the Western District of Texas and entered as a final judgment on
June 4, 2012.
ATLAS AIR: Hearing on Certification Issue in Antitrust Suit Held
----------------------------------------------------------------
A court hearing on whether or not to certify as a class action an
antitrust case filed against cargo carriers, including Atlas Air
Worldwide Holdings, Inc., was held in October 2013 and oral
arguments were held in November 2013, according to the company's
Feb. 13, 2014, Form 10-K filing with the U.S. Securities and
Exchange Commission for the fiscal year ended Dec. 31, 2013.
In 2010, Old Polar entered into an agreement with the United
States Department of Justice (the "DOJ") to resolve issues
relating to the previously disclosed DOJ investigation concerning
alleged manipulation by cargo carriers of fuel surcharges and
other rate components for air cargo services (the "DOJ
Investigation").
As a result of the DOJ Investigation, the Company and Old Polar
have been named defendants, along with a number of other cargo
carriers, in several class actions in the United States arising
from allegations about the pricing practices of a number of air
cargo carriers that have now been consolidated for pretrial
purposes in the United States District Court for the Eastern
District of New York. The consolidated complaint alleges, among
other things, that the defendants, including the Company and Old
Polar, manipulated the market price for air cargo services sold
domestically and abroad through the use of surcharges, in
violation of United States, state, and European Union antitrust
laws. The suit seeks treble damages and injunctive relief.
In 2007, the Company and Old Polar commenced an adversary
proceeding in bankruptcy court against each of the plaintiffs in
this class action litigation seeking to enjoin the plaintiffs
from prosecuting claims against the Company and Old Polar that
arose prior to 2004, the date on which the Company and Old Polar
emerged from bankruptcy. In 2007, the plaintiffs consented to the
injunctive relief requested and the bankruptcy court entered an
order enjoining plaintiffs from prosecuting Company claims
arising prior to 2004.
The court in the antitrust class actions has heard and decided a
number of procedural motions. Among those was the plaintiffs'
motion to join Polar Air Cargo Worldwide, Inc. as an additional
defendant, which the court granted on April 13, 2011. There was
substantial pretrial written discovery and document production,
and a number of depositions were taken. A court hearing on
whether or not to certify the case as a class action was held in
October 2013 and oral arguments were held in November 2013. The
company is unable to reasonably predict the court's ruling or the
ultimate outcome of the litigation.
The Company, Old Polar and a number of other cargo carriers have
also been named as defendants in civil class action suits in the
provinces of British Columbia, Ontario and Quebec, Canada that
are substantially similar to the class action suits in the United
States. The plaintiffs in the British Columbia case have
indicated they do not intend to pursue their lawsuit against the
Company and Old Polar. The company is unable to reasonably
predict the outcome of the litigation in Ontario and Quebec.
BARCLAYS BANK: Fixed FX Rates, Philly Retirement Board Claims
-------------------------------------------------------------
The City of Philadelphia, Board of Pensions and Retirement, on
behalf of itself and all others similarly situated v. Barclays
Bank PLC, Citigroup, Inc., Citibank, N.A., Deutsche Bank AG, HSBC
Bank PLC, HSBC Bank USA, N.A., J.P. Morgan Chase & Co., J.P.
Morgan Chase Bank, N.A., Royal Bank of Scotland PLC, and UBS AG,
Case No. 1:14-cv-00876-LGS (S.D.N.Y., February 11, 2014) concerns
the Defendants' alleged anticompetitive scheme of truly historic
proportions.
For at least a decade, foreign exchange traders working at the
Defendant financial institutions brazenly conspired with each
other to manipulate foreign exchange rates and to coordinate
their trading strategies so they could make grossly inflated
profits at the expense of their own customers, the Plaintiff
contends.
Barclays Bank plc is a corporation organized and existing under
the laws of the United Kingdom with its principal place of
business in London, England and branch locations in New York
City. During the Class Period, Barclays and the other Defendants
directly entered into spot and forward foreign exchange
transactions with Class members.
The Plaintiff is represented by:
Steig D. Olson, Esq.
Daniel L. Brockett, Esq.
QUINN EMANUEL URQUHART & SULLIVAN, LLP
51 Madison Avenue, 22nd Floor
New York, NY 10010-1601
Telephone: (212) 849-7000
Facsimile: (212) 849-7100
E-mail: danbrockett@quinnemanuel.com
steigolson@quinnemanuel.com
- and -
William J. Leonard, Esq.
OBERMAYER REBMANN MAXWELL & HIPPEL LLP
One Penn Center, 19th Floor
1617 John F. Kennedy Boulevard
Philadelphia, PA 19103-1895
Telephone: (215) 655-3000
Facsimile: (215) 665-3165
E-mail: william.leonard@obermayer.com
- and -
Michael J. Boni, Esq.
Joshua D. Snyder, Esq.
BONI & ZACK LLC
15 St. Asaphs Road
Bala Cynwyd, PA 19004
Telephone: (610) 822-0200
Facsimile: (610) 822-0206
E-mail: mboni@bonizack.com
jsnyder@bonizack.com
BARCLAYS BANK: Manipulated WM/Reuters Spot Rates, Suit Claims
-------------------------------------------------------------
The Fresno County Employees' Retirement Association, on behalf of
itself and all others similarly situated v. Barclays Bank PLC,
Citigroup, Inc., Citibank, N.A., Deutsche Bank AG, HSBC Holdings
PLC, HSBC Bank PLC, HSBC Bank USA, N.A., JPMorgan Chase & Co.,
JPMorgan Chase Bank, N.A., Royal Bank of Scotland Group PLC, UBS
AG, and UBS Securities LLC, Case No. 1:14-cv-00902-LGS (S.D.N.Y.,
February 11, 2014) arises from the Defendants' alleged unlawful
conspiracy to restrain trade in and to manipulate the foreign
currency exchange market by acting in concert to manipulate the
WM/Reuters spot rates during the period of at least January 1,
2003, through August 30, 2013, in violation of the Sherman Act,
state law, and common law.
The Forex market is the market where foreign currencies are
bought and sold. Foreign currency exchange is the single largest
part of international capital markets, with a volume of over $5
trillion bought and sold daily.
The Defendants are foreign currency exchange dealers that
dominate the market, and they account for approximately 70% of
Forex transactions.
The Plaintiff is represented by:
Joseph J. Tabacco, Jr., Esq.
Nicole Lavallee, Esq.
Todd A. Seaver, Esq.
Jessica Moy, Esq.
BERMAN DeVALERIO
One California Street, Suite 900
San Francisco, CA 94111
Telephone: (415) 433-3200
Facsimile: (415) 433-6382
E-mail: jtabacco@bermandevalerio.com
tseaver@bermandevalerio.com
nlavallee@bermandevalerio.com
jmoy@bermandevalerio.com
BROADRIDGE FINANCIAL: Court Stays Discovery in Wage Suit
--------------------------------------------------------
Magistrate Judge A. Kathleen Tomlinson issued a memorandum and
order on March 31, 2014, in MICHAEL KANOWITZ, STEVEN ROY, HELENE
CRANMER, CHARLES HYDO, and DANIEL STURCHIO, on behalf of
themselves and all others similarly-situated, Plaintiffs, v.
BROADRIDGE FINANCIAL SOLUTIONS, INC. Defendant, NO. CV 13-649
(DRH) (AKT), (E.D. N.Y.), granting, in part, and denying, in
part, Defendant's motion to stay discovery. A copy of the ruling
is available at http://is.gd/EUV2lffrom Leagle.com.
The class action lawsuit alleges claims of (1) unpaid wages (2)
breach of contract, and (3) other claims that "can be inferred
from the facts" against Defendant Broadridge Financial Solutions,
Inc.
The Court directed Broadridge to produce to Plaintiffs an updated
and unredacted chart of the putative class members which includes
their street addresses and phone numbers, no later than May 1,
2013. Plaintiffs will then have 30 days from receipt of the
updated chart to complete their verification of the Plaintiffs'
state citizenship. Plaintiffs' communications with putative class
members must be limited to their citizenship. Following this 30-
day period, the Plaintiffs are directed to file a letter with the
Court confirming whether they have determined that the Court
lacks subject-matter jurisdiction under the "home state" and/or
"local controversy" exceptions of CAFA. If Plaintiffs believe
further discovery is warranted, they must articulate a reasonable
basis to the Court to justify such discovery while the
Defendant's motion to dismiss is pending.
Michael Kanowitz, Plaintiff, represented by:
Alexander T. Coleman, Esq.
Michael J. Borrelli, Esq.
Borrelli& Associates, P.C.
655 Third Avenue, Suite 1821
New York, NY 10017
Telephone: 212-679-5000
Facsimile: 212-679-5005
Steven Roy, Plaintiff, represented by Alexander T. Coleman,
Borrelli & Associates, P.L.L.C. & Michael J. Borrelli, Borrelli&
Associates, P.C..
Helene Cranmer, Plaintiff, represented by Alexander T. Coleman,
Borrelli & Associates, P.L.L.C. & Michael J. Borrelli, Borrelli&
Associates, P.C.
Charles Hydo, Plaintiff, represented by Alexander T. Coleman,
Borrelli & Associates, P.L.L.C. & Michael J. Borrelli, Borrelli&
Associates, P.C.
Daniel Sturchio, Plaintiff, represented by Alexander T. Coleman,
Borrelli & Associates, P.L.L.C. & Michael J. Borrelli, Borrelli&
Associates, P.C.
Broadridge Financial Solutions, Inc., Defendant, represented by
Jeremy M. Brown -- jmbrown@ebglaw.com -- Epstein Becker & Green,
P.C. & Daniel Robert Levy -- DLevy@ebglaw.com -- Epstein Becker &
Green, P.C.
CAL MED: Faces Class Action Over False Promises of Referrals
------------------------------------------------------------
Courthouse News Service reports that Cal Med 420, of Sherman
Oaks, promises legal help if needed for clients who pay $50 for
medical marijuana referrals and support, but offers no such legal
help, a class action claims in Superior Court in San Diego, Cal.
CASEDHOLE SOLUTIONS: Violated Right to Receive OT Pay, Class Says
-----------------------------------------------------------------
William E. Decker, Cody Henson, Adam Tyer, Matt Norman, Brandon
Nix, David Martinez, Chad Smith, Joe Meade, Roy Chambers and
Derek Farmer, individually and on behalf of all others similarly
situated v. Casedhole Solutions, Inc., Case No. 2:14-cv-00074-
JRG-RSP (E.D. Tex., February 11, 2014) alleges that the Company
violated the Plaintiffs' right to receive overtime pay from the
Company as a result of its failure to pay the Plaintiffs and all
those similarly situated employees overtime wages.
The Plaintiffs and "Potential Plaintiffs" are the Defendant's
current and former employees, who operated or assisted in the
operation of the Defendant's wireline services and who were paid
a salary for their work and improperly paid overtime wages.
Casedhole Solutions, Inc. is an Oklahoma corporation doing
business in the state of Texas with its principal place of
business in Weatherford, Oklahoma.
The Plaintiffs are represented by:
William S. Hommel, Jr., Esq.
HOMMEL LAW FIRM
1404 Rice Road, Suite 200
Tyler, TX 75703
Telephone: (903) 596-7100
Facsimile: (469) 533-1618
E-mail: bhommel@hommelfirm.com
The Defendant is represented by:
Sean M. Becker, Esq.
VINSON & ELKINS-HOUSTON
1001 Fannin St., Suite 2500
Houston, TX 77002-6760
Telephone: (713) 758-2646
Facsimile: (713) 615-5129
E-mail: sbecker@velaw.com
CINCINNATI BENGALS: Sued by Cheerleader Over Unpaid Minimum Wage
----------------------------------------------------------------
Alexa Brenneman, c/o Goldenberg Schneider, LPA, One West Fourth
Street, 18th Floor, Cincinnati, OH 45202, individually, and on
behalf of all those similarly situated v. Cincinnati Bengals,
Inc., c/o Michael Brown, One Paul Brown Stadium, Cincinnati, OH
45202, Case No. 1:14-cv-00136-MRB (S.D. Ohio, February 11, 2014)
alleges that the Plaintiff worked well in excess of 300 hours for
the Defendant, and appeared at 10 home games during the 2013
season, but the Defendant only paid her a total of $855, a pay
rate of less than $2.85 per hour.
Ms. Brenneman was a Ben-Gal cheerleader during the 2013 season.
She contends that in 2013, the Ohio minimum wage was $7.85 an
hour.
Cincinnati Bengals, Inc. is a for-profit Ohio Corporation. The
Defendant is a professional football franchise that employs
approximately 30 cheerleaders each football season to
"[r]epresent the Cincinnati Bengals organization by actively
supporting the team, values, and goals of the Club." The
Defendant is a member of the National Football League, an
organization that includes a revenue-sharing program that spreads
television royalties across the league.
The Plaintiff is represented by:
Jeffrey S. Goldenberg, Esq.
Todd B. Naylor, Esq.
GOLDENBERG SCHNEIDER, LPA
One West Fourth Street, 18th Floor
Cincinnati, OH 45202
Telephone: (513) 345-8291
Telecopier: (513) 345-8294
E-mail: jgoldenberg@gs-legal.com
tnaylor@gs-legal.com
- and -
Christian A. Jenkins, Esq.
John J. Williams, Esq.
MINNILLO & JENKINS, Co. LPA
2712 Observatory Avenue
Cincinnati, OH 45208
Telephone: (513) 723-1600
Telecopier: (513) 723-1620
E-mail: cjenkins@minnillojenkins.com
jjwilliams@minnillojenkins.com
CITIGROUP INC: To Settle RMBS Investor Claims for $1.13 Billion
---------------------------------------------------------------
The Associated Press reports that Citigroup has agreed to pay
$1.13 billion to settle claims by investors seeking that the
lender buy back billions in residential mortgage-backed
securities.
The New York-based investment bank said on April 7 that the pact
it reached with 18 institutional investors calls for Citigroup to
make a binding offer to the trustees of 68 Citi-sponsored trusts
that bundled some $59.4 billion in home loans into securities
from 2005 to 2008.
The settlement offer, which must be approved by the trustees and
the court, would release Citi from having to buy back mortgages
sold to the trusts. But the lender would remain vulnerable to
other types of investor claims, including misrepresentations in
the offering documents associated with the securities. It could
also face potential actions by regulators. The agreement also
doesn't cover home loans sold through private-label
securitization trusts via Citi's consumer mortgage business.
As part of the settlement, Citigroup said it has taken a charge
of about $100 million for the first quarter.
A number of big banks, including Citigroup, JPMorgan and Goldman
Sachs have been accused of abuses in sales of securities linked
to mortgages in the years leading up to the 2008 financial
crisis. Together, they have paid hundreds of millions in
penalties to settle civil charges brought by the Securities and
Exchange Commission, which accused them of deceiving investors
about the quality of the bonds they sold.
CITIMORTGAGE INC: Court Narrows Claims in "Williams" Action
-----------------------------------------------------------
District Judge Vicki Miles-LaGrange granted in part and denied in
part a motion to dismiss a first amended complaint in MICHAEL
WILLIAMS, and JERI WILLIAMS, on behalf of themselves and a class
of similarly-situated individuals, Plaintiffs, v. CITIMORTGAGE,
INC., EQUIFAX INFORMATION SERVICES, LLC, EXPERIAN INFORMATION
SOLUTIONS, INC., and TRANS UNION, LLC, Defendants, CASE NO. CIV-
13-354-M, (W.D. Okla.). A copy of the Court's April 2, 2014
Order is available at http://is.gd/CrZ944from Leagle.com.
Plaintiffs bring this two-count putative class action complaint
under the Fair Credit Reporting Act (FCRA), 15 U.S.C. Section
1681, et seq., against CitiMortgage, a furnisher of information,
and three credit reporting agencies (CRAs): Equifax Information
Services, LLC, Experian Information Solutions, Inc., and Trans
Union, LLC. CitiMortgage filed a Motion to Dismiss.
Judge Miles-LaGrange granted the motion as to Plaintiffs' request
for statutory damages, punitive damages, and attorneys' fees
under Section 1681n(a), and denied it as to all other respects,
saying the Court found that plaintiffs have not set forth
sufficient factual allegations to state a claim for willful
violation of the FCRA. Specifically, the Court found that
plaintiffs have not set forth sufficient factual allegations that
allow the Court to draw the reasonable inference that
CitiMortgage intentionally violated the FCRA or that CitiMortgage
violated the FCRA in reckless disregard of its duties.
Accordingly, the Court agreed that plaintiffs' request for
statutory damages, punitive damages, and attorneys' fees under
Section 1681n(a) should be dismissed.
Michael Williams, Plaintiff, represented by
Blake Sonne, Esq.
Michael A Furlong, Esq.
SONNE LAW FIRM PLC
Campus Corner
730 Asp Ave, Suite 212
Norman, Oklahoma
Telephone: (405) 664-2919
Email: bsonne21@yahoo.com
- and -
Joshua C Stockton, Esq.
STOCKTON LAW GROUP PLLC
1221 S. Holly Ave.
Yukon, OK 73099
Telephone: 405-896-8823
- and -
Tony Gould, Esq.
BROWN & GOULD PLLC
136 NW 10th Street
Oklahoma City, OK 73103
Telephone: 405-595-0504
Facsimile: 405-235-4507
Jeri Williams, Plaintiff, represented by Blake Sonne, Joshua C
Stockton, Stockton Law Group PLLC, Michael A Furlong, Sonne Law
Firm PLC & Tony Gould, Brown & Gould PLLC.
CitiMortgage Inc, Defendant, represented by Brandee L Bruening --
brandee.bruening@crowedunlevy.com -- Crowe & Dunlevy, Judy
Hamilton Morse -- judy.morse@crowedunlevy.com -- Crowe & Dunlevy,
Lucia Nale -- lnale@mayerbrown.com -- Mayer Brown LLP-CHICAGO,
Lysbeth L George -- lysbeth.george@crowedunlevy.com -- Crowe &
Dunlevy & Thomas V Panoff -- tpanoff@mayerbrown.com -- Mayer
Brown LLP-CHICAGO.
Equifax Information Services LLC, Defendant, represented by
Arthur F Hoge, III -- afhoge@meehoge.com -- Mee Mee Hoge &
Epperson PLLP, Barry Goheen -- bgoheen@kslaw.com -- King &
Spalding LLP & Robert E Price, II -- rep@meehoge.com -- Mee Mee
Hoge & Epperson PLLP.
Experian Information Solutions Inc, Defendant, represented by
Albert J Rota -- ajrota@jonesday.com -- Jones Day-DALLAS, Harris
A Phillips, III -- harrisphillips@niemeyerfirm.com -- Niemeyer
Alexander Austin & Phillips & Jeffrey L Mills --
jlmills@jonesday.com -- Jones Day.
Trans Union LLC, Defendant, represented by Juston R Givens --
jrgivens@phillipsmurrah.com -- Phillips Murrah PC & Thomas G
Wolfe -- tgwolfe@phillipsmurrah.com -- Phillips Murrah PC.
CITIMORTGAGE INC: FCRA Claims Dismissed in "Williams" Action
------------------------------------------------------------
In the case MICHAEL WILLIAMS, and JERI WILLIAMS, on behalf of
themselves and a class of similarly-situated individuals,
Plaintiffs, v. CITIMORTGAGE, INC., EQUIFAX INFORMATION SERVICES,
LLC, EXPERIAN INFORMATION SOLUTIONS, INC., and TRANS UNION, LLC,
Defendants, CASE NO. CIV-13-354-M, (W.D. Okla.), defendants
Equifax Information Services, LLC, Experian Information
Solutions, Inc., and Trans Union LLC (CRA Defendants) filed a
Joint Motion to Dismiss Plaintiffs' Claims of Willful Violations
of the Fair Credit Reporting Act (FCRA).
District Judge Vicki Miles-LaGrange, in an order dated April 2,
2014, a copy of which is available at http://is.gd/O375lsfrom
Leagle.com, granted the CRA Defendants' Joint Motion to Dismiss
Plaintiffs' Claims of Willful Violations of the FCRA and
dismissed Plaintiffs' claims of willful violations of the FCRA
against the CRA Defendants.
Judge Miles-LaGrange held that the Plaintiffs have not set forth
sufficient factual allegations to state a claim for willful
violation of the FCRA. Specifically, the Court found that
plaintiffs have not set forth sufficient factual allegations that
allow the Court to draw the reasonable inference that the CRA
Defendants intentionally violated the FCRA or that the CRA
Defendants violated the FCRA in reckless disregard of their
duties. Although plaintiffs assert in their response that
recklessness can be established through a credit report agency's
respective policies and internal procedures and based upon
improper investigation procedures, the First Amended Class Action
Complaint does not contain any allegations regarding the CRA
Defendants' policies, internal procedures, or investigation
procedures, she said. Additionally, Judge Miles-LaGrange
continued, the First Amended Class Action Complaint does not
contain any allegations regarding repetitive or systematic
violations of the FCRA by the CRA Defendants.
Michael Williams, on behalf of himself and a class of similarly-
situated individuals, Plaintiff, represented by Blake Sonne,
Joshua C Stockton, Stockton Law Group PLLC, Michael A Furlong,
Sonne Law Firm PLC & Tony Gould, Brown & Gould PLLC.
Jeri Williams, on behalf of herself and a class of similarly-
situated individuals, Plaintiff, represented by Blake Sonne,
Joshua C Stockton, Stockton Law Group PLLC, Michael A Furlong,
Sonne Law Firm PLC & Tony Gould, Brown & Gould PLLC.
CitiMortgage Inc, Defendant, represented by Brandee L Bruening,
Crowe & Dunlevy, Judy Hamilton Morse, Crowe & Dunlevy, Lucia
Nale, Mayer Brown LLP, Lysbeth L George, Crowe & Dunlevy & Thomas
V Panoff, Mayer Brown LLP.
Equifax Information Services LLC, Defendant, represented by
Arthur F Hoge, III, Mee Mee Hoge & Epperson PLLP, Barry Goheen,
King & Spalding LLP & Robert E Price, II, Mee Mee Hoge & Epperson
PLLP.
Experian Information Solutions Inc, Defendant, represented by
Albert J Rota, Jones Day, Harris A Phillips, III, Niemeyer
Alexander Austin & Phillips & Jeffrey L Mills, Jones Day.
Trans Union LLC, Defendant, represented by Juston R Givens,
Phillips Murrah PC & Thomas G Wolfe, Phillips Murrah PC.
COMCAST CORP: Faces Suit From Time Warner Shareholder Over Merger
-----------------------------------------------------------------
Courthouse News Service reports that a Time Warner shareholder
challenged Comcast's proposed acquisition of the cable company
for $158.82 per share, a "mere 17% premium" above market price,
in a class action in Chancery Court in Wilmington, Delaware.
COMMUNITY LOANS: Class of Active Military Members Certified
-----------------------------------------------------------
JASON M. COX, et al., Plaintiffs, vs. COMMUNITY LOANS OF AMERICA,
INC., et al., Defendants, Case No. 4:11-CV-177 (CDL) (M.D. Ga.),
seeks to represent a class of active duty military service
members and their dependents in a class action against several
vehicle title loan companies based on the companies' alleged
violation of the Military Lending Act, 10 U.S.C. Sec. 987 (2006).
After entering into the vehicle title loan transactions,
Plaintiffs were unable to redeem their car titles, and their
vehicles were either repossessed or subject to repossession.
Plaintiffs maintain that these vehicle title loan transactions
are prohibited by the MLA because the annual percentage rate of
interest for each loan far exceeded the MLA's limit of 36%.
Plaintiffs assert claims under the MLA, the Racketeer Influenced
and Corrupt Organizations Act, 18 U.S.C. Sec. 1961 et seq., and
state law.
Pending before the Court are Plaintiffs' motions for class
certification seeking certification of their MLA and RICO claims
under both Federal Rule of Civil Procedure 23(b)(2) and Rule
23(b)(3). Defendants oppose certification, contending that
Plaintiffs' claims lack merit and that Plaintiffs failed to
satisfy the requirements of Rule 23. Specifically, Defendants
argue that Plaintiffs' MLA claims fail as a matter of law because
the applicable version of the MLA does not include a private
right of action and because, even if it does, the transactions
Plaintiffs entered with Defendants are not covered by the MLA.
Defendants also maintain that Plaintiffs' RICO claims fail as a
matter of law because no evidence exists in the present record
supporting the essential elements for these claims. Defendants
argue in the alternative that even if Plaintiffs' MLA and RICO
claims are viable, a Rule 23(b)(2) class cannot be certified
because Plaintiffs seek damages that are not merely incidental to
their claims for equitable relief.
In a March 24 Order, District Clay D. Land finds that a private
right of action exists for violations of the MLA, so Defendants
are not entitled to judgment as a matter of law on Plaintiffs'
MLA claims. The Court further finds, however, that the present
record does not support Plaintiffs' RICO claims, and Defendants
are entitled to judgment as a matter of law as to those claims.
Consequently, Plaintiffs' motion for class certification of the
RICO claims is denied. The Court also finds that Plaintiffs seek
damages on their MLA claims that are not merely incidental to
equitable relief, so Plaintiffs' MLA claims are not suitable for
class certification pursuant to Rule 23(b)(2). The Court does
find that the certification of a Rule 23(b)(3) class is
warranted.
The Court also held that within 21 days of the Order, the parties
must submit a proposed Amended Scheduling and Discovery Order
that includes a timeline for class notice under Rule 23(c)(2)(B)
and a proposed schedule for any additional proceedings in this
action.
ENSIGN GROUP: Court Approves Medicare Coverage Settlement
---------------------------------------------------------
A settlement that tasked the Centers for Medicare and Medicaid
Services (CMS) with revising its Medicare Benefit Manual was
approved in January, according to The Ensign Group, Inc.'s Feb.
13, 2014, Form 10-K filing with the U.S. Securities and Exchange
Commission for the fiscal year ended Dec. 31, 2013.
A proposed federal class action settlement was filed in federal
district court on October 16, 2012 that would end the Medicare
coverage standard for skilled nursing, home health and outpatient
therapy services that a beneficiary's condition must be expected
to improve. The settlement was approved on January 24, 2013,
which tasked Centers for Medicare and Medicaid Services (CMS)
with revising its Medicare Benefit Manual and numerous other
policies, guidelines and instructions to ensure that Medicare
coverage is available for skilled maintenance services in the
home health, skilled nursing and outpatient settings. CMS must
also develop and implement a nationwide education campaign for
all who make Medicare determinations to ensure that beneficiaries
with chronic conditions are not denied coverage for critical
services because their underlying conditions will not improve. At
the conclusion of the CMS education campaign, the members of the
class will have the opportunity for re-review of their claims,
and a two- or three-year monitoring period will commence.
Implementation of the provisions of this settlement agreement
could favorably impact Medicare coverage reimbursement for the
company's services.
ENVIRONMENTAL PROCESS: Court Certifies Class in Hawk Valley Suit
----------------------------------------------------------------
District Judge James Knoll Gardner entered an opinion on April 1,
2014, in the case styled HAWK VALLEY, INC., a Pennsylvania
Corporation, Individually and as the Representative of a Class of
Similarly Situated Persons, Plaintiff, v. ELAINE G. TAYLOR, and
ENVIRONMENTAL PROCESS SYSTEMS, INC., Defendants, CIVIL ACTION NO.
10-CV-00804, (E.D. Penn.).
This matter is a putative class action in which plaintiff Hawk
Valley, Inc. asserts a claim, on its own behalf and on behalf of
all others similarly situated, against defendants Elaine G.
Taylor and Environmental Process Systems, Inc. (EPSI) for sending
an unsolicited facsimile advertisement to plaintiff and the
putative class members on June 17, 2006 in violation of the
federal Telephone Consumer Protection Act (TCPA), 47 U.S.C. 227.
The plaintiff sought certification of a class defined as "All
persons sent one or more faxes on June 17, 2006 from
'Environmental Process Systems, Inc.' that advertised 'EPSI's
Grass Grab-er' as a 'New way to treat your equipment wash
water.'" The Plaintiff asked the court to appoint it as the class
representative and its attorneys as class counsel.
"Because plaintiff has demonstrated that the four requirements
necessary for class certification under Rule 23(a) of the Federal
Rules of Civil Procedure, and the two requirements necessary for
class certification under Rule 23(b)(3) are each satisfied here,
I grant plaintiff's motion and certify the class," ruled Judge
Gardner.
The plaintiff's claim against defendants Elaine G. Taylor and
Environmental Process Systems, Inc. in the First Amended Civil
Action Complaint filed on March 25, 2011 alleging violation of
the Telephone Consumer Protection Act, 47 U.S.C. Section
227(b)(1)(C) is certified as a class action pursuant to Rule
23(b)(3) of the Federal Rules of Civil Procedure.
Alan C. Milstein, Esquire, Brian J. Wanca, Esquire, and Philip A.
Bock, Esquire are each appointed class counsel.
Hawk Valley, Inc. is approved as class representative.
A third Rule 16 conference by telephone conference call is
scheduled on May 23, 2014, at 8:30 o'clock a.m.
Copies of the opinion and order are available at
http://is.gd/TMwtg5and http://is.gd/SmlhbEfrom Leagle.com.
On Behalf of Plaintiff, BRIAN J. WANCA, ESQUIRE --
Bwanca@andersonwanca.com -- PHILLIP A. BOCK, ESQUIRE --
phil@bockhatchllc.com -- and:
ALAN C. MILSTEIN, ESQ.
Sherman, Silverstein, Kohl, Rose & Podolsky, P.A.
East Gate Corporate Center
308 Harper Drive, Suite 200
Moorestown, New Jersey 08057
Telephone: 856.661.2078
Facsimile: 856.488.4744
FRANCIS J. DEASEY -- fjdeasey@dmvnlaw.com -- ESQUIRE, ATHENA O.
PAPPA, ESQUIRE -- apappas@dmvnlaw.com -- On Behalf of Defendant
Elaine G. Taylor.
ERIC J. SAMORE, ESQUIRE -- esamore@salawus.com -- THOMAS F.
REILLY, ESQUIRE -- treilly@chartwelllaw.com -- ALLAN SCHOLLER,
ESQUIRE -- ascholler@chartwelllaw.com -- On Behalf of Defendant
Environmental Process, Systems, Inc.
FASTAX: Faces Overtime and Minimum Wage Class Action in Eugene
--------------------------------------------------------------
Courthouse News Service reports that Fastax dba Jackson Hewitt
Tax Service stiffs workers for overtime and minimum wage, a class
action claims in Federal Court in Eugene, Ore.
FORT BEND FOOTBALL LEAGUE: Sued Over Violent Style of Play
----------------------------------------------------------
Courthouse News Service reports that a coach in the Fort Bend
Youth Football League encouraged a violent style of play that
left one mother's son with brain damage, she claims in Fort Bend
County Court.
GENERAL MOTORS: Sen. Blumenthal Calls for Recall Claims Trust
-------------------------------------------------------------
David Shepardson, writing for The Detroit News, reports that
General Motors Co. is shielded from legal liability for nearly
all accidents that occurred before its July 2009 exit from
bankruptcy. That protection has emerged as one of the most
controversial aspects of the automaker's ignition switch recall.
Challenges to that product liability shield could unravel a key
protection from hundreds of lawsuits. The Detroit automaker won
that protection in the bankruptcy restructuring funded by its
bailout by the federal government.
The company's immunity led U.S. Sen. Richard Blumenthal, D-Conn.,
to call on GM to create a $3 billion to $8 billion trust that
would pay claims connected to the massive recall for defective
ignition switches in older Chevrolet Cobalts, Saturn Ions and
other similar cars.
Sen. Blumenthal is a member of a Senate committee investigating
GM's delayed recall. GM CEO Mary Barra was set to testify on
April 2 in front of that panel, after appearing before a similar
House panel on April 1.
Heavy key chains can cause the key to turn off the engine in a
crash or, if bumped by the driver, disable power steering and air
bags. GM says air bags have failed to inflate in at least 31
front-end crashes because of the weak ignition switch.
The Justice Department is investigating whether GM committed
bankruptcy fraud by failing to disclose the defects at the time
of the bankruptcy. GM has been hit with numerous lawsuits after
it acknowledged it first knew of ignition switch problems in a
pre-production Saturn Ion in 2001 and then didn't recall the
vehicles for more than a decade.
Despite that early warning, a first group of cars was not
recalled until early February; two more groups have since been
recalled, the most recent announced March 28 to find as many as
5,000 defective replacement switches.
Immunity challenged
As part of its $50 billion government bailout, GM became a new
company in July 2009 when it exited bankruptcy. It left behind
billions in bad debts and liabilities, including product
liability claims for all crashes occurring before that date, as
well as toxic waste left behind at abandoned factories.
Lawyers representing people killed or injured in the now-recalled
cars are likely to try to convince courts to overturn GM's
immunity from pre-bankruptcy claims, using the "successor
liability" argument. In other words, the current GM must keep
the liability because it committed fraud.
GM is using its immunity by filing responses to some suits,
including one in Texas urging the case be shifted to the
bankruptcy case. The automaker has used that argument in dozens
of cases in various issues over the last five years.
Brian Johnson, an auto analyst at Barclays Capital, argued that
bankruptcy law is clear: The law that created "new GM" out of
"old GM" was expressly designed to give the restructured
automaker the best assets, while leaving less desirable assets
such as closed factories and the bulk of the liabilities with the
legal entity known as the "old GM."
He noted bankruptcy fraud generally involves concealing assets,
not liabilities.
"Nevertheless, GM could set up a trust to pay old claims and
government fines while shielding new GM," Mr. Johnson said. He
forecast the trust could total $2 billion to $3 billion.
Ms. Barra acknowledged in a meeting with reporters earlier this
month that the remnants of old GM retain some liabilities, but
declined to address if the company would consider creating a fund
for victims. GM was not expected to announce any fund for
victims before Ms. Barra testifies on April 1, according to
people briefed on the matter.
In an interview, consumer advocate Ralph Nader called the
decision to allow GM to leave behind liabilities "an unparalleled
legal atrocity" and an "incredible overreach by the bankruptcy
judge."
But if GM hadn't come under pressure from eight states in the
final days before it exited bankruptcy, it might have been
available to avoid even more liability. The states said it was
"irrational and unjust" to let GM off the hook for accidents that
hadn't occurred yet, while the new company was building the same
cars as the old one.
In June 2009, eight state attorneys general -- led by Blumenthal
-- sought to block GM's exit because people injured by
pre-bankruptcy GM vehicles would have had little recourse if the
cars turned out to be defective and would not have been able to
bring product-liability claims.
After talks with the attorneys general and the auto task force,
GM agreed to accept liability for defects in post-bankruptcy
crashes with older cars -- but not for crashes that happened
before the restructuring. At the time, the automaker estimated
the cost of assuming future product claims at $502 million,
according to a court filing.
At the time of GM's bankruptcy, there were 69 million GM vehicles
on the road. If the automaker had been successful in protecting
itself from liabilities in future accidents in existing cars,
then none would have been eligible for product-liability claims
against the new company. Those claims would have gone to the
estate of old GM, meaning those suing would have received a
fraction of what they otherwise could have.
Ex-auto czars quiet
The two former federal auto czars, Steve Rattner and Ron Bloom,
declined to talk about the decision to shield GM from product
liability claims. There is no evidence that anyone in the auto
task force knew anything about the ignition switch defect.
"Bankruptcies are about taking liabilities that companies can no
longer afford and finding a way to discharge them in an orderly
way," Mr. Bloom told a Senate committee in 2009. "That is
clearly a terrible thing for those individuals, but again, there
are a lot of people that General Motors made promises to that it
can't honor and we really don't have an alternative . . . other
than to essentially write an endless check."
Clarence Ditlow, director of the Center for Auto Safety advocacy
group, says the U.S. government has a moral obligation to see to
it that injured people are compensated.
"Treasury may have wanted in 2009 to pay the least amount that
had to be paid to get the deal done," he said. "But now in 2014
that the deal is done, new GM and the U.S. government should step
up and do the right thing and cause the allowed claims of
products liability claimants in the GM bankruptcy . . . to be
paid in full."
GOOGLE INC: Aug. 29 Final Hearing on $8.5MM Deal in Privacy Suit
----------------------------------------------------------------
In IN RE GOOGLE REFERRER HEADER PRIVACY LITIGATION, Case No.
5:10-cv-04809 EJD (N.D. Cal.), a consolidated Internet privacy
litigation, the parties propose a settlement consisting purely of
payments to cy pres recipients without direct payments to the
class members. It contains these components:
-- Defendant will pay the total amount of $8.5 million,
which will constitute the entirety of the settlement fund. All
payments will be made from this fund, including: (1)
distributions to cy pres recipients, (2) attorney fees and costs
awards, (3) incentive awards to named plaintiffs, and (4)
administration costs, including the costs due to the claims
administrator.
-- Cy pres recipients will receive proportional payments of
the amount of the fund that remains after all other payments have
been made. As a condition of receiving payment, all cy pres
recipients must agree to devote the funds to protecting privacy
on the internet.
-- The parties have proposed the following entities as
potential cy pres recipients: World Privacy Forum; Carnegie-
Mellon; Chicago-Kent College of Law Center for Information,
Society and Policy; Berkman Center for Internet and Society at
Harvard University; Stanford Center for Internet and Society; and
AARP, Inc.
-- As to particular payments, incentive awards the
representative plaintiffs have been capped at $5,000 each,
subject to court approval. The parties have allotted up to $1
million as costs to the Claims Administrator for the notice plan.
-- In addition, Defendant will maintain information on its
website under the "FAQs" to advise search users of its conduct
and policies so that users can make an informed choice about
whether and how to use Defendant's search engine.
On March 26, 2014, District Judge Edward J. Davila granted
approval to the Plaintiffs' Motion For Preliminary Approval Of
Class Action Settlement. The Settlement Motion was unopposed.
It was filed by representative Plaintiffs Paloma Gaos, Anthony
Italiano and Gabriel Priyev.
Pursuant to the Court's Order, the Motion for Preliminary
Approval of Class Settlement is granted as follows:
1. This action is certified as a class action for settlement
purposes only pursuant to subsections (a) and (b)(3) of Federal
Rule of Civil Procedure 23 and 29 U.S.C. Sec. 216(b).
2. The settlement agreement and release is preliminarily
approved as fair, reasonable, and adequate pursuant to Federal
Rule of Civil Procedure 23(e).
3. Named plaintiffs Paloma Gaos, Anthony Italiano and
Gabriel Priyev are appointed as adequate class representatives
for settlement purposes only.
4. Kassra Nassiri of Nassiri & Jung, LLP, Michael
Aschenbrenner of Aschenbrenner Law, P.C. and Ilan Chorowsky of
Progressive Law Group LLC are appointed as co-lead counsel for
the settlement class pursuant to Federal Rule of Civil Procedure
23(g).
5. The Notice Plan and the content and form of Notice to the
Settlement Class as set forth in Plaintiffs' Motion for
Preliminary Approval of Class Action Settlement and the
Supplemental Declaration filed September 13, 2013, are approved.
6. A hearing on the final approval of class action
settlement shall be held on August 29, 2014 at 9:00 a.m., at the
United States District Court, Northern District of California,
San Jose Division, 280 South 1st Street, Courtroom 4, 5th Floor,
San Jose, California 95113. Class Counsel may file brief(s)
requesting final approval of the Settlement Agreement, Fee Award,
and Incentive Award, no later than 35 calendar days before the
final approval hearing. Objections must be filed no later than
August 8, 2014. All other applicable dates shall be established
by the Settlement Agreement and Plaintiffs' Motion for
Preliminary Approval of Class Action Settlement.
GUGGENHEIM PARTNERS: Sued by Purchasers of Annuity Products
-----------------------------------------------------------
Clarice Whitmore and Helga Maria Schulzki, on behalf of
themselves and all others similarly situated v. Guggenheim
Partners, LLC, Security Benefit Life Insurance Company,
Guggenheim Life and Annuity Company, and Equitrust Life Insurance
Company, Case No. 1:14-cv-00948 (N.D. Ill., February 11, 2014) is
brought on behalf of similarly situated persons, who purchased
annuity products issued by Security Benefit Life, Guggenheim Life
and EquiTrust Life on or after January 1, 2010.
Guggenheim Partners, LLC is a New York limited liability
corporation, with its headquarters in Chicago, Illinois, and New
York. Guggenheim Partners is the ultimate parent of the other
Defendants. Security Benefit Life Insurance Company is a Kansas
company domiciled in Kansas. Guggenheim Life and Annuity Company
is a Delaware company domiciled in Delaware. EquiTrust Life
Insurance Company is an Iowa company domiciled in Iowa. Security
Benefit Life, Guggenheim Life and EquiTrust Life sold their
annuity products in Illinois and elsewhere during the Class
Period.
The Plaintiffs are represented by:
Steve W. Berman, Esq.
Sean R. Matt, Esq.
HAGENS BERMAN SOBOL SHAPIRO LLP
1918 Eighth Ave., Suite 3300
Seattle, WA 98101
Telephone: (206) 623-7292
Facsimile: (206) 623-0594
E-mail: steve@hbsslaw.com
sean@hbsslaw.com
- and -
Elizabeth A. Fegan, Esq.
HAGENS BERMAN SOBOL SHAPIRO LLP
1144 W. Lake Street, Suite 400
Oak Park, IL 60301
Telephone: (708) 628-4949
Facsimile: (708) 628-4950
E-mail: beth@hbsslaw.com
- and -
Robert B. Carey, Esq.
HAGENS BERMAN SOBOL SHAPIRO LLP
11 West Jefferson, Suite 1000
Phoenix, AZ 85003
Telephone: (602) 840-5900
Facsimile: (602) 840-3012
E-mail: rob@hbsslaw.com
- and -
Andrew S. Friedman, Esq.
Francis J. Balint, Jr., Esq.
BONNETT, FAIRBOURN, FRIEDMAN & BALINT, P.C.
235 East Camelback Road, Suite 300
Phoenix, AZ 85016
Telephone: (602) 274-1100
Facsimile: (602) 274-1199
E-mail: afriedman@bffb.com
fbalint@bffb.com
- and -
Erin Dickinson, Esq.
Chuck Crueger, Esq.
HANSEN REYNOLDS DICKINSON CRUEGER LLC
316 N. Milwaukee St., Suite 200
Milwaukee, WI 53202
Telephone: (414) 273-8474
Facsimile: (414) 273-8476
E-mail: edickinson@hrdclaw.com
ccrueger@hrdclaw.com
- and -
Ingrid M. Evans, Esq.
Elliot Wong, Esq.
EVANS LAW FIRM, INC.
3053 Fillmore Street, # 236
San Francisco, CA 94123
Telephone: (415) 441-8669
Facsimile: (888)891-4906
E-mail: ingrid@evanslaw.com
elliot@evanslaw.com
GULF RESOURCES: Calif. Court Finally Approves $2MM Settlement
-------------------------------------------------------------
The United States District Court for the Central District of
California, Western Division, granted final approval to a $2
million settlement reached by Gulf Resources, Inc., according to
the company's Feb. 13, 2014, Form 8-K filing with the U.S.
Securities and Exchange Commission.
On February 10, 2014, Gulf Resources, Inc. issued a press release
announcing that the United States District Court for the Central
District of California Western Division entered an Order and
Final Judgment approving the settlement and dismissing the class-
action lawsuit against the Company and a number of its current
directors and officers.
Under the term of the settlement, the class-action lawsuit will
be dismissed in return for the payment of a total settlement
amount of approximately of $2.0 million, which will not have any
effect on the Company's operations due to coverage under its D&O
insurance.
JOHNSON & JOHNSON: AG Wants Sup. Ct. to Consider Risperdal Ruling
-----------------------------------------------------------------
Andrew Demillo, writing for The Associated Press, reports that
Arkansas Attorney General Dustin McDaniel asked the state Supreme
Court on April 7 to reconsider its decision tossing out a $1.2
billion judgment against drugmaker Johnson & Johnson, saying
justices did "significant harm" to the state and broke from 170
years of precedent.
Mr. McDaniel filed a petition for rehearing over the high court's
decision last month that the state misapplied the Medicaid fraud
law in its lawsuit against New Jersey-based Johnson & Johnson and
its subsidiary Janssen Pharmaceutical Inc. over the marketing of
the antispyschotic drug Risperdal. Mr. McDaniel said last week
that he would ask the court to revisit the ruling.
"The court's rejection of the state (Medicaid fraud) case does
significant harm to the state and its citizens," Mr. McDaniel
wrote in the filing. "It deprives the state of a critical tool
to protect the integrity of the Arkansas Medicaid program and the
vulnerable poor, sick and elderly who depend on Medicaid as a
literal lifeline."
Mr. McDaniel said justices broke with years of precedent by
ruling on grounds not previously raised in filings. Justices
ruled that the state Code Revision Commission "substantively
altered" the meaning of the Medicaid fraud law when it was
codified and that it was originally intended to regulate health
facilities. The commission is responsible for making technical
corrections to state code.
Mr. McDaniel noted that the 1993 law remained unchanged for 21
years despite other amendments and attempted amendments by the
Legislature over the years.
"By improperly transforming a well understood and accepted
interpretation of the law, this court has arrogated to itself
powers not conferred by the Arkansas Constitution or the General
Assembly," he wrote.
The drugmaker said in a statement on April 7 that it didn't
violate the Medicaid fraud law.
"After a thorough review of the case, the Arkansas Supreme Court
agreed with our position. We believe that the record speaks for
itself and are prepared to vigorously defend our position," the
company said.
Risperdal was introduced in 1994 as a "second-generation"
antipsychotic drug, and it earned Johnson & Johnson billions of
dollars in sales before generic versions became available. The
drug is used to treat schizophrenia, bipolar disorder and
irritability in autism patients.
An Arkansas jury found the New Jersey-based companies liable in
2012. Pulaski County Circuit Judge Tim Fox then ordered the
companies to pay $5,000 for each of the 240,000 Risperdal
prescriptions for which Arkansas' Medicaid program paid during a
3 1/2-year span.
KAISER FOUNDATION: Sued Over Failure to Treat Mental Illness
------------------------------------------------------------
Courthouse News Service reports that The Kaiser Foundation Health
Plan fails to treat serious mental illness on par with treatment
for physical illness, a class claims in a lawsuit filed March 25,
2014.
Charles Dion, on behalf of Kaiser plan members who use mental
health services, sued Kaiser Foundation Health Plan, Inc., in
Alameda County Superior Court. Dion is a 25-year-old man with
obsessive compulsive disorder (OCD), who requested individual
cognitive behavioral therapy in October of 2013, according to the
complaint.
It continues, "specifically, his request was for Exposure and
Response Prevention therapy, a type of psychotherapy for the
treatment of his OCD. On November 6, 2013, he met with Timothy
Brown PhD, a Kaiser psychologist. Dr. Brown advised Mr. Dion
that Kaiser does not offer the individualized psychotherapy
treatment for patients with OCD. He stated that other than
medication, the only treatment that Kaiser offered for OCD was
group therapy classes -- which Dr. Brown ran. Dr. Brown
acknowledged that Mr. Dion has severe OCD and that group therapy
once a week would be insufficient. He stated that he might be
able to refer Mr. Dion to a non-Kaiser anxiety clinic. That
clinic is nearly 100 miles away from Mr. Dion's home.
Because he could not receive the individual therapy within
Kaiser, Dion began treatment outside of Kaiser with a non-Kaiser
therapist, and filed a grievance with Kaiser on November 19,
2013. On December 31, 2013, Dion received a letter from Kaiser
that stated that it would pay for his ctUTent Exposure and
Response Prevention therapy (''ERP") but only as a "one time
courtesy" and only through Jan. 31, 2014. Kaiser refuses to
provide Dion with individualized and consistent psychotherapy
despite his severe mental illness and need.
KELLY SERVICES: Wins Calif. Court OK for Labor Suit Settlement
--------------------------------------------------------------
The Superior Court of California, Los Angeles, granted final
approval to a settlement reached by Kelly Services, Inc. in a
suit filed by current and former temporary employees in the State
of California, according to the company's Feb. 13, 2014, Form 10-
K filing with the U.S. Securities and Exchange Commission for the
fiscal year ended Dec. 29, 2013.
The Company received final court approval of the settlement of a
single class action, Fuller v. Kelly Services, Inc. and Kelly
Home Care Services, Inc., in the Superior Court of California,
Los Angeles, which involved a claim for monetary damages by
current and former temporary employees in the State of
California. The claims were related to alleged misclassification
of personal attendants as exempt and not entitled to overtime
compensation under state law and alleged technical violations of
a state law governing the content of employee pay stubs. During
2011, a $1.2 million after tax charge relating to the settlement
was recognized in discontinued operations. During the first
quarter of 2012, the company reduced the company's estimate of
the costs to settle the litigation by $0.4 million after tax,
which the company recorded in discontinued operations.
During the fourth quarter of 2013, a Louisiana jury rendered an
award of $4.4 million, pursuant to litigation brought by Robert
and Margaret Ward against the Jefferson Parish School Board and
Kelly Services. Under the verdict, Kelly's share of the liability
consists of $2.7 million plus a portion of pre-and-post-judgment
interest. Kelly is appropriately insured for this verdict. Kelly
believes that the verdict is not supported by the facts of the
case and is currently evaluating appeals strategies with its
insurers.
KERRY CONDON: Fails to Prudently Manage Plan Assets, Suit Says
--------------------------------------------------------------
Edward Stancavage, on behalf of himself and a Class of others
similarly situated v. Kerry Condon, in his individual capacity,
Case No. 8:14-cv-00201-DOC-DFM (C.D. Cal., February 11, 2014) is
brought as a civil enforcement action under the Employee
Retirement Income Security Act for plan-wide relief on behalf of
a class consisting of all current and former participants and
beneficiaries in the Plan for whose individual benefit the
Plan held funds.
The Plaintiff was a Participant in the Plan during relevant time
periods. The Plan is an "employee welfare benefit plan" within
the meaning of the Employee Retirement Income Security Act.
Kerry Condon is a resident of Fullerton, California. Since
approximately January 2010, he has served as president of the
Anaheim Police Association. The lawsuit alleges that he, among
other things, failed to prudently and loyally manage the Plan's
assets.
The Plaintiff is represented by:
Dieter C. Dammeier, Esq.
LAW OFFICES OF DIETER C. DAMMEIER
8780 19th Street, Suite 181
Rancho Cucamonga, CA 91737
Telephone: (909) 240-9525
Facsimile: (909) 948-3779
E-mail: dietercdammeier@gmail.com
The Defendant is represented by:
Teresa S. Renaker, Esq.
LEWIS FEINBERG LEE RENAKER AND JACKSON PC
476 9th Street
Oakland, CA 94607
Telephone: (510) 839-6824
Facsimile: (510) 839-7839
E-mail: trenaker@lewisfeinberg.com
LIBERTY SILVER: CEO Faces Securities Litigation in Florida
----------------------------------------------------------
The Chief Executive Officer of Liberty Silver Corp. continues to
face a suit in the United States District Court for the Southern
District of Florida alleging violations of the Securities
Exchange Act, according to the company's Feb. 13, 2014, Form 10-Q
filing with the U.S. Securities and Exchange Commission for the
quarter ended Dec. 31, 2013.
On September 16, 2013, the Company announced that it had become
aware that the Company and its Chief Executive Officer have been
named as defendants in a proposed class action lawsuit filed
against Robert Genovese, certain individuals alleged to have
collaborated with Mr. Genovese, and an offshore investment firm
allegedly controlled by Mr. Genovese. The action contains
various claims alleging violations of the United States
Securities Exchange Act of 1934 and rules thereunder relating to
anomalous trading activity and fluctuations in the Company's
share price from August through October 2012. The plaintiff
purports to bring suit on behalf of all who purchased or
otherwise acquired the Company's common shares from April 1,
2008, through and including October 5, 2012.
The original complaint was filed in the United States District
Court for the Southern District of Florida on September 12, 2013.
An amended complaint (Case No. 9:13-cv-80923-KLR -- Todd
Stanaford a/k/a Jerald Todd Stanaford, on behalf of himself and
all other similarly situated, vs. Robert Donald Bruce Genovese,
William Tafuri, Geoffrey Browne, BG Capital Group LTD., Look Back
Investments INC., and Liberty Silver Corporation) was filed on
September 27, 2013.
The Company's registered agent in the State of Nevada was served
with the original complaint on September 18, 2013, and served
with the amended complaint on October 8, 2013. On October 10,
2013, service of the amended complaint was accepted on behalf of
the Company's Chief Executive Officer, by counsel representing
the Company's Chief Executive Officer.
The Company and its Chief Executive Officer intend to fully
investigate the complaint and will undertake a vigorous defense.
Effective December 1, 2012, the Company has deferred payment of
salary to certain employees of the Company. Pursuant to
agreements reached with such employees, the accrued salary
obligation of $366,667 as at September 30, 2013, may, at the sole
option of such employees, be settled pursuant to the issuance of
common shares or forfeited, within two years from the effective
date of the agreements with the various employees. The common
shares would be priced at the greater of (i) $0.50 per common
share, and (ii) the volume weighted average price of the
Company's common shares for the five trading days immediately
preceding the date on which the election is made to receive the
common shares.
Effective July 1, 2013, ongoing salary obligations have been
reduced by $320,000 per annum. Effective October 1, 2013, salary
obligations of $216,000 per annum, which would otherwise be
settled in cash on a monthly basis, will be settled with 50% in
cash and 50% by the issuance of common stock, on a periodic
basis, and priced at the greater of (i) $0.50 per common share,
and (ii) the volume weighted average price of the Company's
common shares for the five trading days immediately preceding the
date on which the shares are to be issued.
LIVE NATION: 7th Cir. Rules in "Forced Parking Charge" Case
-----------------------------------------------------------
Lorraine Bailey, writing for Courthouse News Service, reports
that Live Nation concertgoers who walk or take public transit
must still pay the parking fee embedded in the price of their
tickets, the 7th Circuit ruled.
"There are times when consumers are required to accept a package
deal in order to get the part of the package they want," the 13-
page opinion states. "An airline passenger with no luggage may
prefer the cost of baggage to be decoupled from the cost of a
seat, and a law student may prefer to pay lower tuition and avoid
'free' pizza days. But while some people may find these bundles
annoying, or even unfair, the tie is not illegal unless the
standards set forth in the governing antitrust cases have been
met."
James Batson had brought the challenge at hand after buying a
ticket from Live Nation Entertainment in July 2010 to attend an
O.A.R. concert at the Charter One Pavilion in Chicago.
Although Batson walked to the concert, his ticket stated "$9 PRK
PAID," and he was never informed that he could get a certificate
that would let him park at the downtown Soldier Field North
Garage. Batson called the $9 fee a "forced parking charge" in a
federal class action and claimed that he "was forced to either
purchase parking or decline to attend the concert altogether --
the tickets could not be purchased apart from the parking." He
also said the forced charge violated antitrust laws against
"tying" two separate products, and violated public policies in
favor of environmentally friendly modes of transportation.
A federal judge dismissed the complaint, however, and the 7th
Circuit affirmed March 25, 2014.
"Antitrust law has backed away from flat condemnation of tying
arrangements because they are not always abusive, and when they
are not, they are a legitimate method of competition. Nothing in
the Consumer Fraud Act is designed to prohibit hard, but fair,
competition," Chief Judge Diane Wood wrote for a three-judge
panel.
In this case, Batson cannot show that Live Nation has so much
power over live music concerts to permit it to force people to
spend money for useless parking rights, the court found.
"Is it possible to regard O.A.R. concerts or the Charter One
Pavilion as a meaningful product market?" Wood asked. "In a
related context, we have held that a single popular venue is not
a stand-alone relevant market. We are dubious here as well that
the Charter One Pavilion in Chicago has that much clout. Even if
it does, however, Batson has failed to allege anything that would
plausibly show that Live Nation's parking tie-in has affected a
substantial volume of commerce in parking."
The trial court also correctly found that concertgoers have
plenty of alternatives to Live Nation for music in Chicago,
according to the ruling.
M & F LLC: Fails to Pay Minimum and Overtime Wages, Suit Says
-------------------------------------------------------------
Kimberly Dejesus, on behalf of herself and all others similarly
situated v. M & F, LLC d/b/a Maid to Clean, a Florida Limited
Liability Company, and Fabian Burro, Individually, Case No. 6:14-
cv-00232-RBD-DAB (M.D. Fla., February 11, 2014) alleges that the
Defendants failed to pay minimum and overtime wages to the
Plaintiff.
The Defendants offer maid and cleaning services to commercial and
residential clients throughout Central Florida.
The Plaintiff is represented by:
Christina Jean Thomas, Esq.
Bernard R. Mazaheri, Esq.
MORGAN & MORGAN, PA
20 North Orange Ave., Suite 1600
PO Box 4979
Orlando, FL 32801
Telephone: (407) 420-1414
Facsimile: (954) 333-3515
E-mail: cthomas@forthepeople.com
bmazaheri@forthepeople.com
MACON GREYHOUND: Class Cert. Ruling in "Bussey" Suit Reversed
-------------------------------------------------------------
The United States Court of Appeals for the Eleventh Circuit
reversed a class certification ruling entered in WALTER BUSSEY,
et al., Plaintiffs, DOLLIE WILLIAMS, DAVID M. PALMER, II, ROBIN
PAIGE, Plaintiffs-Appellees, v. MACON COUNTY GREYHOUND PARK,
INC., d.b.a. Quincy's 777, d.b.a. Victoryland, et al.,
Defendants, MULTIMEDIA GAMES, INC., IGT, BALLY GAMING, INC.,
Defendants-Appellants, NO. 13-12733. A copy of the April 2, 2014
ruling is available at http://is.gd/Hs3cqhfrom Leagle.com.
The district court granted appellees' motion for class
certification, designating Dollie Williams, David M. Palmer, II,
and Robin Paige as class representatives, and certifying a class
of: "All persons who, at any time during the period beginning
September 4, 2009 through and including February 1, 2010, while
using their Q-Club cards, lost money or value playing electronic
'bingo' at Macon County Greyhound Park, commonly known as
Victoryland." All defendants petitioned for permission to appeal
pursuant to Federal Rule of Civil Procedure 23(f), but the court
granted the petition only as to the Manufacturers.
The Eleventh Circuit concluded that the district court abused its
discretion in certifying the plaintiff class. The district
court's order certifying a class was, therefore, reversed, and
the case is remanded for the district court to modify the class
definition to include: "All persons who, at any time during the
period beginning September 4, 2009 through and including February
1, 2010, while using their Q-Club cards, suffered a net loss of
money or value playing electronic 'bingo,' as shown by session-
level data obtained from defendants' Advantage Tracking System
(ATS) computers at the Macon County Greyhound Park, commonly
known as Victoryland." The district court was further directed,
on remand, to conduct the "rigorous analysis" required by the
Supreme Court's Comcast decision regarding whether calculation of
the class members' damages would necessitate such individual
inquiry that individual issues would predominate over common
ones.
MEDFORD, OR: Trial Court Judgment in "Bova" Suit Reversed
---------------------------------------------------------
JOSEPH BOVA, Plaintiff-Respondent, v. CITY OF MEDFORD, an
incorporated Subdivision of the State of Oregon; and MICHAEL
DYAL, City Manager of the City of Medford, as an individual, and
in his official capacity, Defendants-Appellants, NOS. A144254
(CONTROL), A146597, A147477, is a consolidated appeal involving a
series of judgments entered in favor of plaintiff, a now-retired
employee of the City of Medford, in his class action suit for
declaratory and injunctive relief against the city and its city
manager. The factual premise of plaintiff's suit is simple and
undisputed: The city made health care insurance coverage
available to plaintiff and other city employees who were members
of the class, but it did not offer that same coverage to the
class members when they retired. The trial court concluded that,
in failing to offer that coverage, the city violated ORS
243.303(2), which requires that a "local government that
contracts for or otherwise makes available health care insurance
coverage for officers and employees of the local government
shall, insofar as and to the extent possible, make that coverage
available for any retired employee of the local government * *
*." The trial court ordered the city to provide plaintiff and
the class members with health insurance coverage that included
the option to purchase that same health insurance at the time
they retired. The trial court later awarded plaintiff attorney
fees on that claim and found the city in contempt of the court's
orders to comply with ORS 243.303(2). Separately, following a
trial to the court, the court concluded that, by not making the
same health insurance coverage available to plaintiff upon his
retirement, the city had discriminated against him on the basis
of age under ORS 659A.030(1)(b).2 The city appeals the limited
judgments, general judgment, and supplemental judgment
encompassing those rulings.
In an opinion dated April 2, 2014, a copy of which is available
at http://is.gd/FEVGK2from Leagle.com, the Court of Appeals of
Oregon concluded that the trial court erred in granting summary
judgment to plaintiff on his claim for declaratory and injunctive
relief under ORS 243.303(2), because the legal standard that the
trial court applied conflicts with the standard articulated by
the Supreme Court in Doyle v. City of Medford, 347 Or. 564, 227
P.3d 683 (2010), a decision that was issued after the trial
court's summary judgment ruling. The Oregon Appeals Court
reversed and remanded the limited judgment on the ORS 243.303(2)
claim for declaratory and injunctive relief for further
proceedings. As to plaintiff's age discrimination claim under
ORS 659A.030(1)(b), the Court concluded that the trial court
erred in allowing plaintiff to try that claim, over the city's
objection, on a theory of disparate impact, because that theory
had not been pleaded and depended on proof different from the
disparate treatment theory that plaintiff had pleaded.
The Oregon Appeals Court, therefore, reversed the trial court's
judgment in favor of plaintiff on his age discrimination claim.
Because the supplemental judgment for attorney fees is not
appealable, the Court dismissed the city's appeal of that
judgment. Otherwise, it affirmed.
Robert E. Franz, Jr., -- robertfranz@qwestoffice.net -- argued
the cause for appellants. With him on the briefs was Law Office
of Robert E. Franz, Jr.
Stephen L. Brischetto -- slb@brischettolaw.com -- argued the
cause and filed the brief for respondent.
MICHAEL MARTIN: Refused to Pay OT Wages Under FLSA, Suit Claims
---------------------------------------------------------------
Obdulio Estuardo Secaida and all others similarly situated under
29 U.S.C. 216(B) v. Michael Martin Group, Inc. d/b/a Villa Azur
and Michael Martin, Case No. 1:14-cv-20511-UU (S.D. Fla.,
February 11, 2014) alleges that the Defendants willfully and
intentionally refused to pay the Plaintiff's overtime wages as
required by the Fair Labor Standards Act.
Michael Martin Group, Inc., doing business as Villa Azur, is a
corporation that regularly transacts business within Dade County.
Michael Martin is a corporate officer, owner and manager of the
Company.
The Plaintiff is represented by:
J.H. Zidell, Esq.
Christopher Nathaniel Cochran, Esq.
Daniel T. Feld, Esq.
J.H. ZIDELL, P.A.
300 71st Street, Suite 605
Miami Beach, FL 33141
Telephone: (305) 865-6766
Facsimile: (305) 865-7167
E-mail: ZABOGADO@AOL.COM
cnc02g@gmail.com
DanielFeld.Esq@Gmail.com
MOTOROLA: Judge Eliminates 99% of Claim in Antitrust Suit
---------------------------------------------------------
Gabriella Khorasanee, writing for Findlaw.com, reports that
Motorola has been involved in antitrust litigation for the past
five years with AU Optronics, and other defendants, who are part
of an alleged foreign price fixing cartel. In one fell swoop,
Judge Posner eliminated 99% of Motorola's claim -- what will
happen next remains to be seen.
The Sherman Act Claims
Motorola claims that it purchased over $5 billion worth of LCD
panels to incorporate them into cell phone manufactured either by
Motorola, or its subsidiaries. The breakdown of the claim is as
follows: 1% were bought by and delivered to Motorola in the U.S.;
42% were bought by Motorola foreign subsidiaries and incorporated
into products that were shipped to Motorola for resale in the
U.S.; and the remaining 57% were bought by foreign subsidiaries
and never even entered the U.S. The only sales at issue are the
42%, and Motorola received a little benchslap from Posner when he
noted that the inclusion of the 57% was "a frivolous element of
Motorola's claim."
Motorola alleged antitrust price fixing violations of the Sherman
Act, and on motion for summary judgment, the district court held
that the 42% were barred by the Foreign Trade Antitrust
Improvements Act ("FTAIA"), and this interlocutory appeal
followed.
The Seventh Circuit's Legal Analysis
The panel of the Seventh Circuit agreed that the FTAIA barred
Motorola's claim because the alleged conduct must be "direct,
substantial, and [have a] reasonably foreseeable effect on
trade." Here, Judge Posner distinguished an earlier Seventh
Circuit opinion and stated, "The effect of component price fixing
on the price of the product of which it is a component is
indirect. . . ." He further noted that the present case is one
that would be precluded by the FTAIA: "[a] situation in which
action in a foreign country filters through many layers and
finally causes a few ripples in the United States."
Repercussions
This case can have a wide-reaching effect if other circuits adopt
a similar position in our global manufacturing economy. It's
likely other circuits will take heed, just as Judge Posner did,
of the Supreme Court's warning that "rampant extraterritorial
application of U.S. law 'creates a serious risk of interference
with a foreign nation's ability independently to regulate its own
commercial affairs.'"
NEST LABS: Faces Class Action Over Malfunctioning New Thermostat
----------------------------------------------------------------
Courthouse News Service reports that Nest Labs' "sleek 'new
generation' thermostat" doesn't work, a class action claims in
Federal Court in San Jose, Calif.
NEW JERSEY: Legislative Committee Looks Into Bridgegate Closure
---------------------------------------------------------------
Michael Booth, writing for New Jersey Law Journal, reports that
the New Jersey Legislative Select Committee on Investigation made
clear on April 8 that it will push on with its task even as a
federal grand jury looks into the Bridgegate scandal.
"We still have work to do," said Assemblyman John Wisniewski,
D-Middlesex, a co-chair, at the committee's first meeting since
February. "We would be doing a disservice if we did not pursue
this investigation to its conclusion."
Partisan bickering erupted when Assemblyman Amy Handlin,
R-Monmouth, suggested that the committee switch its focus to
reforming the Port Authority of New York and New Jersey, which
owns and operates the George Washington Bridge.
She said she was "very troubled" that the committee has held only
two meetings and that it has already paid $200,000 to Chicago's
Jenner & Block, the firm where the committee's special counsel,
Reid Schar, works.
Ms. Handlin said she had a "whole pile" of reform bills that the
committee could consider. "Don't you think the bleeding at the
Port Authority has gone on long enough?" she said.
"We're not done with our work," Mr. Wisniewski replied,
suggesting Handlin was "showboating." That remark rankled Sen.
Kevin O'Toole, R-Passaic, and he and Mr. Wisniewski began arguing
over the committee's internal workings before the committee voted
to go into executive session.
The other co-chair, Sen. Loretta Weinberg, D-Bergen, said the
committee would consider Port Authority reform legislation at a
later date, noting that Gov. Chris Christie had vetoed reform
measures two years ago.
Mr. Wisniewski said the federal investigation only concerns
possible violations of criminal laws and is not looking into
possible reform measures.
Although the U.S. Attorney's Office does not confirm details of
its investigations, there have been news reports that
Michael Drewniak, one of Gov. Christie's spokespersons, has
testified before the grand jury and that David Wildstein, the
former Port Authority director of interstate projects believed to
be largely responsible for last September's bridge lane closures
in Fort Lee, has been in talks with prosecutors.
Mr. Wisniewski confirmed on April 8 the committee's interest in
the materials developed by Randy Mastro and his colleagues at
New York's Gibson, Dunn & Crutcher in their international
investigation of the governor's office that cleared Christie of
any prior knowledge of the closures or complicity in a cover-up.
Mr. Wisniewski said Mr. Schar has asked the administration and
the law firm to turn over transcripts, tapes, interview notes and
other documents relating to interviews of 70 people that formed
the basis for the report.
Mr. Schar gave as a deadline the end of this week. Subpoenas may
go out early next week if the governor's office and Gibson Dunn
are not cooperative, Mr. Wisniewski said. The committee so far
has received "tens of thousands" of documents from those already
served with subpoenas. The committee will begin calling
witnesses to testify in the near future, Mr. Wisniewski said.
Most people and organizations that have received subpoenas have
been cooperative, and some of those served have been producing
documents on a rolling basis.
"We will allow this to play out, but we do have a limit," he
said. "This has been rolling for two months and it's time to put
the rolling to a stop."
The Christie administration did not respond to a request for
comment.
NORTHWEST INC: Supreme Court Reverses Ruling in "Ginsber" Case
--------------------------------------------------------------
In NORTHWEST, INC., ET AL., PETITIONERS, v. RABBI S. BINYOMIN
GINSBER, NO. 12-462, the Supreme Court of the United States must
decide whether the Airline Deregulation Act pre-empts a state-law
claim for breach of the implied covenant of good faith and fair
dealing.
The United States District Court for the Southern District of
California had held that respondent had failed to identify any
material breach because the frequent flyer agreement gave
Northwest sole discretion to determine whether a participant had
abused the program. The Respondent appealed the dismissal of his
breach of the duty of good faith and fair dealing claim but not
the other claims that the court had dismissed. The Ninth Circuit
reversed saying a breach of implied covenant claim is "too
tenuously connected to airline regulation to trigger preemption
under the ADA.'" Such a claim, the Ninth Circuit wrote, "does
not interfere with the [Act's] deregulatory mandate" and does not
"'force the Airlines to adopt or change their prices, routes or
services -- the prerequisite for . . . preemption.'" In
addition, the Ninth Circuit held that the covenant of good faith
and fair dealing does not fall within the terms of the Act's pre-
emption provision because it does not have a "direct effect" on
either "prices" or "services."
In opinion dated April 2, 2014, the Supreme Court said,
"Following our interpretation of the Act in American Airlines,
Inc. v. Wolens, 513 U.S. 219 (1995), we hold that such a claim is
pre-empted if it seeks to enlarge the contractual obligations
that the parties voluntarily adopt. And because the doctrine is
invoked in the present case in an attempt to expand those
obligations, we reverse the judgment of the Court of Appeals."
A copy of the ruling is available at http://is.gd/bVMcocfrom
Leagle.com.
PALMS ADMINISTRATIVE: Food Service Workers Sue Over Unpaid Wages
----------------------------------------------------------------
Rebecca Calvillo, Kerri Maikranz, Carol Buchanan, and Maximiliano
Lopez, on behalf of themselves and a class of those similarly
situated v. Wessam Aldeeb, Ersan Aldeeb, Saadia Rachik, Palms
Administrative Services, LLC, La Cantera Subway, Inc, North Star
Marble Slab Inc, Great American Cookies-N-Cream, LLC, Pyramids
Exchange, LLC, Legacy Marble Slab, Inc, Westover Marble Slab,
Inc, Legacy Subway, Inc, Ingram Park Marble Slab, LLC, North Star
Swirly, LLC, Case No. 5:14-cv-00121-DAE (W.D. Tex., February 11,
2014) is brought by five non-exempt workers employed by the
Defendants as food service workers, in locations operating under
the names Great American Cookies, Cold Stone Creamery, and
Subway, among others, in and around Bexar County, Texas.
The Plaintiffs, who worked for the Defendants in retail stores
located at several San Antonio shopping centers, including the
Shops at La Cantera, seek unpaid wages brought under the Fair
Labor Standards Act.
Palms Administrative Services, LLC, Great American Cookies-N-
Cream, LLC, Pyramid Exchange, LLC, Ingram Park Marble Slab, LLC
and North Star Swirly, LLC are Texas limited liability companies
whose principal place of business is in Boerne, Texas. La
Cantera Subway, Inc., North Star Marble Slab, Inc., Legacy Marble
Slab, Inc., Westover Marble Slab, Inc., and Legacy Subway, Inc.
are Texas corporations whose principal place of business is in
Boerne, Texas.
The Defendants have employed food service workers, who performed
food service-related duties, including preparing and serving
food, cleaning the premises of the locations, and operating the
cash register.
The Plaintiffs are represented by:
Philip J. Moss, Esq.
EQUAL JUSTICE CENTER
6609 Blanco Road, Suite 260
San Antonio, TX 78216
Telephone: (210) 308-6222
Facsimile: (210) 308-6223
E-mail: pmoss@equaljusticecenter.org
- and -
Sarah Donaldson, Esq.
TEXAS RIOGRANDE LEGAL AID
1111 North Main Ave.
San Antonio, TX 78212
Telephone: (210) 212-3704
Facsimile: (210) 212-3772
E-mail: sdonaldson@trla.org
PENNSYLVANIA: U.S. AG Won't Intervene in Gay Marriage Case
----------------------------------------------------------
Saranac Hale Spencer, writing for The Legal Intelligencer,
reports that a challenge to both the state and federal law
governing same-sex marriage should be decided without reaching
the federal Defense of Marriage Act, the U.S. Attorney General's
Office said in a statement of interest declining to intervene.
A couple who had been married in Massachusetts and were unable to
have their union recognized when they later moved to Pennsylvania
brought a challenge in federal court in Philadelphia in
September, following the U.S. Supreme Court's landmark decision
in June that struck down the provision of the federal Defense of
Marriage Act, or DOMA, that defined a marriage as being only
between a man and a woman. The provision of that law, Section 2,
which allows states to decide whether or not they will recognize
same-sex marriages performed elsewhere, still stands.
Pennsylvania has a state law that was modeled on the federal
DOMA, often called "mini-DOMA," that still defines marriage as
being only between a man and a woman.
This suit, brought by Cara Palladino and Isabelle Barker,
challenges both the federal DOMA -- Section 2, specifically --
and the state law.
"Plaintiffs lack standing to challenge Section 2 of DOMA because
the harm they claim is caused not by Section 2, but by the
Pennsylvania statute prohibiting recognition of their same-sex
marriage," according to the statement of interest filed by the
U.S. Attorney General's Office.
"This court can accordingly resolve this case solely by
determining the constitutionality of the Pennsylvania statute,
and it need not and should not address plaintiffs' conditional
challenge to Section 2," the statement of interest said.
The state law, Section 1704, restricts marriage to heterosexual
couples and declares that same-sex marriages from other states
will be void in Pennsylvania. It is the subject of several other
legal challenges, all of which were filed on the heels of the
U.S. Supreme Court decision in June in United States v. Windsor.
The first of those cases, brought in the U.S. District Court for
the Middle District of Pennsylvania, is scheduled to go to trial
in June. That case doesn't challenge Section 2 of the federal
DOMA, only the state law.
U.S. District Judge Mary A. McLaughlin of the Eastern District of
Pennsylvania, who is presiding over the Palladino case that had
named various state officials as defendants, had certified the
case to the U.S. attorney general in November to give federal
officials a chance to join the case.
But, that office decided that "it will not intervene at this time
because the court can and should resolve this case without
reaching the issue of Section 2's constitutionality," according
to the statement of interest.
"It is well-established that a court should avoid reaching the
issue of the constitutionality of an act of Congress unless
essential to the decision of a case," according to the statement,
which cited to several opinions from courts including the U.S.
Court of Appeals for the Third Circuit and the U.S. Supreme
Court. Beyond that, Palladino and Barker don't have standing to
reach Section 2 of the federal DOMA, the Attorney General's
Office argued, because their injury isn't due to Section 2 nor
would it be cured if Section 2 were found to be unconstitutional.
"A declaration that Section 2 is unconstitutional would not
remedy plaintiffs' injury, because Section 1704 would still
preclude Pennsylvania from recognizing their Massachusetts
marriage," according to the statement of interest.
It is the state law, Section 1704, to which their injuries can be
traced, the office argued.
"At least one federal district court has found in circumstances
similar to this case that a same-sex couple seeking recognition
of their out-of-state marriage by their state of residence lacked
standing to challenge Section 2 of DOMA," the Attorney General's
Office said, citing an opinion from earlier this year in the
Northern District of Oklahoma in a case called Bishop v. Holder.
That case had been brought by a couple who was married in
California and couldn't get recognition of their union in
Oklahoma.
There, "the court held that Section 2 was not causally related to
the plaintiffs' asserted injuries," the Attorney General's Office
said. "The court reasoned that 'the injury of non-recognition
stems exclusively from state law.'"
The Attorney General's Office urged McLaughlin to see the
Palladino case in the same light.
The office also noted that the defendants in this case, Gov. Tom
Corbett and Pennsylvania Attorney General Kathleen Kane, haven't
relied on Section 2 of the federal DOMA.
"Corbett has argued that Section 2 is a valid exercise of
Congress's power under the full faith and credit clause of the
Constitution, but he also has argued that a determination as to
the constitutionality of Section 2 'would have no effect' on the
Pennsylvania law challenged by plaintiffs: 'With or without DOMA,
the full faith and credit clause does not compel Pennsylvania to
define and recognize marriage according to Massachusetts law,'"
the U.S. Attorney General's Office said, quoting from Corbett's
motion to dismiss the case.
If McLaughlin does end up reaching the question of Section 2's
constitutionality, the U.S. Attorney General's Office will seek
to intervene, it said.
PFIZER INC: Faces "Trujillo" Suit in N.D. Texas Over Lipitor Drug
-----------------------------------------------------------------
Yukimi Trujillo and Earnest J. Trujillo, 5632 Encore Drive,
Dallas, Texas 75240 v. Pfizer Inc., Case No. 3:14-cv-00518-M
(N.D. Tex., February 11, 2014) is an action for damages suffered
by the Plaintiff as a proximate result of the Defendant's alleged
negligent and wrongful conduct in connection with the design,
testing, and labeling, of Lipitor (also known chemically as
Atorvastatin Calcium).
Lipitor is prescribed to reduce the amount of cholesterol and
other fatty substances in the blood. Lipitor is an HMG-CoA
reductase inhibitor and a member of the drug class known as
statins.
New York-based Pfizer Inc. produces, manufactures, distributes,
advertises, promotes, supplies and sells Lipitor to distributors
and retailers for resale to physicians, hospitals, pharmacies,
and medical practitioners.
The Plaintiffs are represented by:
D. Neil Smith, Esq.
NIX PATTERSON & ROACH, LLP
5215 North O'Connor Road, Suite 1900
Irving, TX 75039
Telephone: (972) 831-1188
Facsimile: (972) 444-0176
E-mail: dneilsmith@me.com
- and -
Robert K. Jenner, Esq.
Lindsey M. Craig, Esq.
JANET, JENNER & SUGGS, LLC
1777 Reisterstown Road, Suite 165
Baltimore, MD 21208
Telephone: (410) 653-3200
Facsimile: (410) 653-9030
E-mail: RJenner@myadvocates.com
LCraig@myadvocates.com
PI PREMMIER: Accused of Violating Fair Labor Standards Act
----------------------------------------------------------
Joel Tapia Castillo and All Others Similarly Situated Under 29
USC 216(B) v. PI Premmier Installations, LLC and Roberto I.
Alfaro, Jr., Case No. 3:14-cv-00524-L (N.D. Tex., February 11,
2014) is brought pursuant to the Fair Labor Standards Act.
The Plaintiff is represented by:
Jamie Harrison Zidell, Esq.
Robert Lee Manteuffel, Esq.
Weina Zhou, Esq.
J.H. ZIDELL PC
6310 LBJ Freeway, Suite 112
Dallas, TX 75240
Telephone: (972) 233-2264
Facsimile: (972) 386-7610
E-mail: zabogado@aol.com
rlmanteuffel@sbcglobal.net
nzhou78@yahoo.com
PROFESSIONAL TRANSPORTATION: Driver Seeks to Recover OT and Wages
-----------------------------------------------------------------
Denessa L. Blair, individually and on behalf of similarly
situated individuals v. Professional Transportation, Inc., and
Ronald D. Romain, individually and as chief executive officer of
Professional Transportation, Inc., Case No. 3:14-cv-00018-RLY-WGH
(S.D. Ind., February 11, 2014) seeks to recover overtime
compensation and minimum wages for work activity performed by
over the road drivers.
Professional Transportation, Inc. is an Indiana corporation.
Ronald D. Romain is the president, CEO and secretary of PTI. The
Defendants are engaged in ground transportation of Class 1
railroad crews.
The Plaintiff is represented by:
Joseph H. Cassell, Esq.
ERON LAW, P.A.
229 E. William Street, Suite 100
Wichita, KS 67202
Telephone: (316) 262-5500
Facsimile: (316) 262-5559
E-mail: jhcassell@eronlaw.net
- and -
Terry D. Smith, Esq.
LAW OFFICES OF TERRY D. SMITH
1509 W. 10th Ct. N
Wichita, KS 67235
Telephone: (316) 361-0062
Facsimile: (316) 361-0703
E-mail: tsmith@smithlawoffices.net
The Defendants are represented by:
Libby Yin Goodknight, Esq.
Linda Joy Cooley, Esq.
KRIEG DEVAULT LLP
One Indiana Square, Suite 2800
Indianapolis, IN 46204
Telephone: (317) 636-4341
Facsimile: (317) 636-1507
E-mail: lgoodknight@kdlegal.com
lcooley@kdlegal.com
REGIONS BANK: To Pay $13 Million Settlement to USPT Investors
-------------------------------------------------------------
Iulia Filip, writing for Courthouse News Service, reports that
Regions Bank will pay thousands of investors $13 million to
settle claims that it helped an unregistered broker sell $250
million worth of "investment plans," a federal judge ruled.
For years, Regions Bank served as a trustee for U.S. Pension
Trust (USPT), which had sold multisecurity investment plans to
more than 14,000 people residing primarily in South America. The
Securities and Exchange Commission charged Regions in September
2009 with aiding and abetting in the sale of securities by an
unregistered dealer in connection with the bank's involvement
with USPT.
Finding that USPT had unlawfully engaged in the sale of
securities as an unregistered dealer, a federal judge ordered the
firm in 2010 to disgorge $62 million and pay $50 million in civil
penalties.
Regions Bank settled the SEC claims the same day they were filed,
but a class of investors sued the bank in 2011, claiming it had
violated Florida law by helping the dealer sell the plans, which,
they argued, qualified as securities.
Colombian nationals Laura Yelitza Cifuentes and Merle de las
Mercedes Silva Castro filed an amended class action complaint in
February 2012 as the heirs of one of the original class members.
A third representative, Gerardo Carvajal, joined as plaintiff in
2013.
Regions denied liability, arguing that it did not qualify as a
"person making the sale" under Florida's statute regulating the
sale of securities.
U.S. District Judge Federico Moreno twice refused to dismiss the
civil claims, finding that the class representatives had standing
and that the statute of limitations had not lapsed.
The investors filed a separate lawsuit in state court, seeking
transfer of $12.5 million remaining from USPT money to federal
court for the benefit of the class.
After producing more than 400,000 pages of documents and deposing
witnesses in Colombia and several U.S. states, Regions and 5,468
investors who bought investment plans between September 2006 and
August 2009 reached a settlement on the eve of the trial
scheduled for November 2013.
The settlement, which creates a common fund in the amount of more
than $13 million, won Moreno's approval two weeks ago. It
provides that class members will be paid based on the amount they
invested during the class period plus interest, less any return
received.
Had the class failed to establish that the investment plans
qualified as securities, or that Regions qualified as a seller of
securities, they most likely would not have recovered anything,
according to the March 20 order.
Noting that the range of possible recovery was anywhere from $0
to more than $38 million in alleged damages, Moreno called the
settlement "fair, adequate and reasonable."
A trial would have increased legal costs and could have taken
years, considering the case took more than two years to get to
the point of settlement, the order adds.
The judge certified the investors' class, which includes 5,468
members, out of which only 20 have chosen to "opt out," and
retained jurisdiction over the administration and distribution of
the settlement money.
Attorneys for the class will recover $3.9 million in legal fees
and more than $500,000 in expenses, which represents 30 percent
of the common fund, while the class representatives will receive
$5,000 each in service awards, the order states.
A spokeswoman for Regions Bank declined to comment on the
settlement.
REPUBLIC SERVICES: Mo. Suit Over Bridgeton Landfill Continues
-------------------------------------------------------------
Republic Services, Inc. faces a suit filed in the United States
District Court for the Eastern District of Missouri by tenants
and owner-occupants of property located within a one-mile radius
of the Bridgeton Landfill, according to the company's Feb. 13,
2014, Form 10-K filing with the U.S. Securities and Exchange
Commission for the fiscal year ended Dec. 31, 2013.
On March 20, 2013, a group of residents living near the Bridgeton
Landfill filed a purported class action in Saint Louis County
Circuit Court, Missouri, on behalf of tenants and owner-occupants
of property located within a one-mile radius of the landfill.
Defendants Republic Services, Inc., Allied Services, LLC, and
Bridgeton Landfill, LLC subsequently removed the action to the
United States District Court for the Eastern District of
Missouri. The action alleges that odors escaping from the
landfill due to a subsurface smoldering event diminished the
value of plaintiffs' property, caused irritation to the eyes,
nose or throat, and negatively affected their use and enjoyment
of their property. The action also seeks an injunction requiring
the landfill to take action to prevent the subsurface smoldering
event from reaching radioactive materials buried in the adjacent
Westlake Landfill. The plaintiffs each seek $500,000 in punitive
damages on behalf of themselves and those similarly situated, and
an unspecified amount in compensatory damages. Plaintiffs allege
that the tenant and owner-occupant classes are comprised of
approximately 269 households and 683 residents in total.
RMJM INC: Sued for Withholding Earned Wages, Benefits & Deferrals
-----------------------------------------------------------------
Steven Fishwick, on behalf of himself individually and on behalf
of all other similarly situated persons v. RMJM, Inc.; RMJM
Group, Inc.; RMJM Hillier Group, Inc.; RMJM Hillier Worldwide,
Inc.; RMJM Worldwide, Inc.; Richard Bailes; Declan Thompson;
Fraser Morrison; and Peter Morrison, Case No. 1:14-cv-00904-AT
(S.D.N.Y., February 11, 2014) alleges that the Defendants have
intentionally withheld, and in many cases continue to withhold,
earned wages, benefits, 401(k) employee elective deferrals and
other wage supplements from their employees and former employees.
RMJM is one of the leading international architectural companies
with offices in Europe, the Middle East, Asia and the United
States. RMJM's services include architectural design, urban
planning, interior design and research and development. The
Defendants have maintained offices throughout the United States,
including in New York City, New York; Princeton, New Jersey;
Philadelphia, Pennsylvania; and Washington, D.C.
RMJM, Inc., RMJM Group, Inc., RMJM Hillier Group, Inc., RMJM
Hillier Worldwide, Inc. and RMJM Worldwide, Inc. are foreign
corporations with their primary place of business in Princeton,
New Jersey. The Individual Defendants are directors or officers
of RMJM.
The Plaintiff is represented by:
Douglas H. Wigdor, Esq.
David E. Gottlieb, Esq.
Michael J. Willemin, Esq.
WIGDOR LLP
85 Fifth Avenue
New York, NY 10003
Telephone: (212) 257-6800
Facsimile: (212) 257-6845
E-mail: dwigdor@wigdorlaw.com
dgottlieb@wigdorlaw.com
mwillemin@wigdorlaw.com
SALLIE MAE: 2 Calif. Women Can't Represent Class, Judge Rules
-------------------------------------------------------------
Philip A. Janquart, writing for Courthouse News Service, reports
that two California women cannot represent a class accusing
Sallie Mae of charging trumped-up late fees on student loans, a
federal judge ruled.
Chanee Thurston and Tina Ubaldi took out Private Education Loans,
known as CEC Signature Loans, between 2001 and 2003. They claim
they made the loans with Stillwater National Bank in Oklahoma and
other such institutions, but that Sallie Mae actually makes the
loans "via standing credit and purchase agreements with the
bank[s]."
The theory is that, "despite Stillwater's status as the official
designation as the lender on loan documents, Sallie Mae is the de
facto lender of the student loans at issue, and banks such as
Stillwater simply rent their charters to Sallie Mae so that it
can avoid California's more stringent protection of borrowers,"
Chief U.S. Magistrate Judge Elizabeth Laporte wrote Monday.
"Whether Sallie Mae or Stillwater is the true lender affects,
among other things, preemption under the National Bank Act and
whether the choice of law provisions in the promissory notes are
enforceable."
The plaintiffs say Sallie Mae is the de facto lender for
thousands of borrowers throughout California and provisions of
those loans violate several California laws.
Ubaldi had filed the suit against SLM Corporation in March 2007,
and Thurston joined as a plaintiff last year. The third amended
complaint added Sallie Mae and SLM Student Loan Trust 2004-A as
defendants. It also claims Sallie Mae "charged usurious interest
on loans" and late fees, and seeks an order declaring the choice
of law provisions unenforceable.
A choice-of-law provision in the promissory notes allegedly
states "the notes would be governed by the laws of the state
listed on the front of the note, which was Oklahoma in all of
plaintiffs' loans."
The U.S. Department of the Treasury has since confirmed that
Sallie Mae is the actual lender, according to the complaint.
Ubaldi and Thurston moved to certify the Choice-of-Law class, and
the Late Charge and Usury subclasses, this past October,
submitted evidence purportedly showing "that putative class
members in this case were subject to similar choice of law
provisions, late fees and interest," Laporte said.
The 22-page order denied certification of all three classes, with
Laporte saying the "proposed class definitions are circular and
render the classes unascertainable."
Laporte continued: "Plaintiffs do not explain how they intend to
send class notice to those who obtained a loan for which Sallie
Mae was the de facto lender when the trier of fact has not
decided whether Sallie Mae was a de facto lender. . . . Because
it appears that plaintiffs may be able to redefine the classes in
terms of attributes of class members or loans than legal
conclusions, plaintiffs have leave to amend the class
definitions."
SHD LEGAL: Faces Suit Alleging Fair Debt Collection Act Violation
-----------------------------------------------------------------
Antonio Suarez, on behalf of himself and all others similarly
situated v. SHD Legal Group P.A., a Florida Professional
Corporation, Case No. 2:14-cv-14062-KAM (S.D. Fla., February 11,
2014) alleges violations of the Fair Debt Collection Practices
Act.
The Plaintiff is represented by:
Leo Wassner Desmond, Esq.
5070 N. Highway A1A, Suite D
Vero Beach, FL 32963
Telephone: (772) 234-5150
Facsimile: (772) 234-5321
E-mail: lwd@verobeachlegal.com
The Defendant is represented by:
Capri Trigo, Esq.
GORDON & REES LLP
200 S. Biscayne Boulevard, Suite 4300
Miami, FL 33131
Telephone: (305) 668-4433
Facsimile: (877) 644-6207
E-mail: ctrigo@gordonrees.com
ST. JUDE MEDICAL: Harvard Paper Explains Device Approval Process
----------------------------------------------------------------
Roni Caryn Rabin, writing for The New York Times, reports that a
few years ago, the Food and Drug Administration announced a
stunning recall, saying that electrical wires in some St. Jude
Medical heart defibrillators, which were implanted in tens of
thousands of people, were defective. It was a rerun for cardiac
patients: In 2007, Medtronic recalled its Sprint Fidelis cardiac
devices because of faulty wires.
In both cases, the F.D.A. warned that the wires could cause
painful shocks or fail when needed, and patients were left to
choose between living with the leads under close monitoring or
having dangerous surgery to replace them. Both companies
reported deaths linked to the flawed leads.
Now a new paper by Harvard researchers, using records only
recently made available by the F.D.A., explains how the faulty
leads got onto the market, shedding light on a little-known
process used by manufacturers to alter medical devices without
putting them through human trials. (An approval pathway for
lower-risk medical devices, called the 510(k) clearance, has
received more public scrutiny, including harsh criticism from the
Institute of Medicine.)
For so-called high-risk devices like heart defibrillators, the
F.D.A. typically requires proof of safety and effectiveness in
clinical trials with real patients under real-life conditions.
But once such a device receives initial approval, the researchers
found, an administrative maneuver permits companies to tinker
with it -- making the electrical wire thinner, for example --
without testing the changes in a single patient.
The process, called a premarket approval supplement application,
allows manufacturers to get upgrades and improvements to patients
faster, medical device companies say. The application is
"intended for a change to an already approved P.M.A. that has met
the agency's rigorous requirements for safety and effectiveness,"
said Janet Trunzo, senior executive vice president for technology
and regulatory affairs with AdvaMed, a trade association. She
noted that the F.D.A. could require a more rigorous review
process if necessary.
The problem is that a device can be modified over and over, even
dozens of times, without ever being put through new trials in
patients. From 1979 and 2012, the researchers found, the F.D.A.
approved 77 new cardiac-implanted electronic devices like
pacemakers and defibrillators. During that same period, the
agency approved nearly 6,000 supplement applications.
A spokesman for Medtronic said the company did test the
Sprint Fidelis's new leads in patients, but the trials were begun
in November 2003, around the time the company also filed its
supplement applications, and the resulting data were not shared
with the F.D.A. before the thinner leads went on the market. The
study was published only in 2007, shortly before the recall.
For each device that went through the full premarket approval
process, 50 subsequent changes were made, researchers also found.
"Over time, the accumulation of changes may lead to a device that
is substantially different than the original product," said
Dr. Aaron S. Kesselheim, senior author of the paper, published in
JAMA, the journal of the American Medical Association.
"Most of top-selling devices that are out on the market now have
all been approved via supplements for the last 10 years," he
said. They are "substantially different" from the versions
originally approved, he said.
While some of the supplement changes were minor, like rewriting
instructions or changing the color, 37 percent involved a change
to the device's design, Dr. Kesselheim and his colleagues said.
Companies are not required to mention the changes on the package
labels, and generally do not.
As a result, doctors are often unaware which version of the
device they are implanting, said Dr. Rita Redberg, a cardiologist
and professor at University of California, San Francisco, who has
written on the topic. "These supplements are not just flying
under patients' radar screens, they're flying under doctors'
radar screens," Dr. Redberg said.
The recalled wire in St. Jude's defibrillator was approved as a
supplement to a device whose original design had been approved in
1996 but had undergone 78 supplementary revisions, according to
the research. The recalled Sprint Fidelis lead was approved as a
supplement to a device originally approved in 1993 and modified
91 times.
"These leads may have worked in the lab, but that is very
different from what happens inside a human blood vessel,"
Dr. Redberg said. "People move around, they're very complex, and
the lead is going to be exposed to a lot more stress and forces
of resistance."
Clinical trials don't always find rare complications. But the
failure rate in St. Jude's device was high enough that it would
have been noticed in a trial, she said.
The pace of supplements has increased significantly during the
past decade, to 704 a year from 77, the researchers found. The
last time an implantable cardioverter defibrillator went through
a full rigorous premarket approval process was in 2000, the
researchers said, "indicating that all models released since then
have been supplements" to existing models.
But since a Supreme Court decision in 2008 determined that
manufacturers were immune from liability for personal injuries as
long as their devices had been approved by the F.D.A., injured
patients who want to sue face an uphill battle. Dr. Kesselheim
and his colleagues put forth several proposals in their article,
suggesting the F.D.A. convene a panel of experts to review
approved medical devices every five to seven years and determine
whether the clinical data from the older models still applied to
the newer versions.
But the agency appears to have rejected the idea. An automatic
advisory panel review is not "a necessary or efficient use of
F.D.A. or taxpayer resources," said Susan Laine, a spokeswoman.
STARKIST CO: Judge Narrows "Hendricks" Suit Over Tuna Products
--------------------------------------------------------------
PATRICK HENDRICKS, individually and on behalf of all others
similarly situated, Plaintiffs, vs. STARKIST CO., et al.,
Defendant, Case No.: 13-cv-729 YGR (N.D. Cal.), seeks monetary
damages and injunctive relief on the grounds that four of
StarKist's canned tuna products are underfilled and, thus,
substantially underweight. Plaintiff alleges claims for breach
of express and implied warranties (Counts I, II, and III), unjust
enrichment (Count IV), negligent misrepresentation (Count VIII),
and fraud (Count IX), as well as violations of California's
Consumer Legal Remedies Act ("CLRA"), Cal. Civil Code section
1750 et seq., Unfair Competition Law ("UCL"), Cal. Bus. & Prof.
Code section 17200 et seq., and False Advertising Law ("FAL"),
Cal. Bus & Prof. Code section 17500 (Counts V-VII).
StarKist has filed a Motion to Dismiss on several grounds: (1)
federal preemption under the federal Food, Drug, and Cosmetic Act
("FDCA"); (2) the primary jurisdiction doctrine; (3) failure to
sufficiently plead claims for breach of express and implied
warranties; (4) failure to plead fraud with particularity; (5)
lack of standing; and (6) unjust enrichment does not constitute a
claim for relief.
In a March 25 Order, District Judge Yvonne Gonzalez Rogers ruled
that the Motion to Dismiss is granted in part and denied in part
with leave to amend.
SYNGENTA CROP: Suit Over Atrazine Contamination in Ill. Dismissed
-----------------------------------------------------------------
A suit filed against Syngenta Crop Protection, Inc. over atrazine
contamination of Illinois community water systems was dismissed
with prejudice, according to Syngenta AG's Feb. 13, 2014, Form
20-F filing with the U.S. Securities and Exchange Commission for
the fiscal year ended Dec. 31, 2013.
The Holiday Shores Sanitary District filed a class action
complaint in the Circuit Court for the Third Judicial Circuit,
Madison County, Illinois against Syngenta Crop Protection, Inc.
("SCPI") and its distributor Growmark, Inc. in July 2004
purportedly on behalf of a class consisting of all Illinois
community water systems ("CWS") who had, allegedly, suffered
contamination of their water sources on account of the presence
at any measurable level of the product atrazine, a herbicide
manufactured since the late 1950s by SCPI and its predecessors in
interest, Novartis Crop Protection, Inc., Ciba-Geigy and Geigy
Chemical Corporation. The name of SCPI is now Syngenta Crop
Protection, LLC.
The claims asserted in this lawsuit were released under the terms
of a Settlement Agreement entered into on May 23, 2012 with
respect to the City of Greenville lawsuit and the lawsuit was
dismissed with prejudice on January 11, 2013.
In March 2010 plaintiffs' counsel in Holiday Shores filed a new
federal lawsuit in the US District Court for the Southern
District of Illinois (City of Greenville et al. v. Syngenta Crop
Protection, Inc. and Syngenta AG) on behalf of seventeen CWS
located in six mid-Western states.
TAKEDA PHARMA: Jury Awards $9BB in Actos Bellwether Trial
---------------------------------------------------------
Amanda Bronstad, writing for The National Law Journal, reports
that a jury in Louisiana has awarded more than $9 billion in the
first federal bellwether trial over claims that taking Actos
increases the risk of getting bladder cancer.
The jury's verdict, the first of nearly 3,000 lawsuits
coordinated for pretrial purposes before U.S. District Judge
Rebecca Doherty in Lafayette, La., emerged late on April 7 after
nearly two months of trial.
"You don't get something like this because the jury is upset
about a mistake here or there," said W. Mark Lanier, founder of
The Lanier Law Firm in Houston, lead trial counsel for plaintiffs
Terrence and Susan Allen. "It was a cesspool of rotten behavior
in my opinion, and the jury just got fed up with it."
In statements released on April 8, both defendants -- Takeda
Pharmaceuticals USA Inc. and Eli Lilly & Co. -- insisted that the
evidence did not support the claims in the case. They have vowed
to appeal the verdict.
"Takeda respectfully disagrees with the verdict and we intend to
vigorously challenge this outcome through all available legal
means, including possible post-trial motions and an appeal,"
Kenneth Greisman, senior vice president and general counsel of
Takeda Pharmaceuticals USA, said in a prepared statement.
The verdict was the first to involve Indianapolis-based Lilly,
which jointly promoted Actos from 1999 to 2006.
"Lilly disagrees with the verdict and we intend to vigorously
challenge this outcome through all available legal means," said
Mike Harrington, senior vice president and general counsel of Eli
Lilly, in a prepared statement. The company added that Takeda
has agreed to indemnify it for losses and expenses related to the
Actos litigation.
The New York couple sued after Terrence Allen, who began taking
Actos in 2006 to treat his Type 2 diabetes, was diagnosed with
bladder cancer in 2011. Six months later, Takeda changed the
Actos label to reflect new warnings from the U.S. Food and Drug
Administration that taking the drug for more than a year might be
associated with an increased risk of bladder cancer.
Mr. Lanier said the trial involved a plaintiffs team of 30
lawyers, including Richard Arsenault, a partner at Neblett, Beard
& Arsenault in Alexandria, La., and Paul Pennock, head of the
pharmaceutical and medical device litigation department at New
York's Weitz & Luxenberg. Both are co-lead plaintiffs counsel in
the coordinated federal proceedings before Doherty. Takeda and
Eli Lilly were represented by Sara Gourley, a partner at
Chicago's Sidley Austin.
The trial also featured sanctions against Takeda over deleted
emails and accusations that a former Eli Lilly marketing
executive lied in his testimony during trial.
The jury, which found that both companies were negligent in
marketing the drug by failing to warn about its cancer risks,
awarded $1.475 million in compensatory damages. Takeda was found
75 percent liable and Lilly 25 percent. Jurors found that taking
Actos was a substantial factor in Mr. Allen's cancer diagnosis
and that his wife was entitled to damages for loss of consortium.
After concluding that both companies were reckless in marketing
the drug, jurors awarded $9 billion in punitive damages. The
jury split the award, with $6 billion against Takeda and $3
billion against Lilly.
Takeda, a subsidiary of Takeda Pharmaceutical Co. Ltd. in Japan,
has so far skirted verdicts in three state court trials over
Actos during the past year. In the first trial, a jury in Los
Angeles rendered a $6.5 million verdict, but Takeda got the award
tossed out after challenging a key plaintiffs' expert. A jury in
Baltimore issued a $1.7 million verdict, but the judge threw it
out. And a jury in Las Vegas came out with a defense verdict.
A second case in Las Vegas began in February against Takeda. The
second federal bellwether trial, originally scheduled for
April 14, has been postponed.
TARGET CORP: 100 Data Breach Class Actions Transferred to Minn.
---------------------------------------------------------------
Amanda Bronstad, writing for The National Law Journal, reports
that a federal panel has ordered about 100 consumer class actions
filed against Target Corp. over its data breach transferred to
Minnesota, where lawyers in related derivative shareholder
actions have moved to appoint lead counsel.
On Dec. 19, Target announced that hackers had compromised debit
and credit card transactions at its stores across the country.
The breach occurred from Nov. 27 to Dec. 15 and is believed to
have affected 110 million customers.
The U.S. Judicial Panel on Multidistrict Litigation on April 2
sent the litigation to U.S. District Judge Paul Magnuson in
Minnesota. "Target is headquartered in that district, where 25
actions and potential tag-along actions are pending," the panel
wrote.
Judge Magnuson also is overseeing four derivative shareholder
actions against Target arising from the breach. On April 3,
lawyers in those cases filed a stipulation proposing to file a
consolidated complaint within 60 days. They also moved to
appoint San Diego's Robbins Arroyo partner Felipe Arroyo --
farroyo@robbinsarroyo.com -- and associate Shane Sanders --
ssanders@robbinsarroyo.com -- as lead counsel for the plaintiffs.
Target, as nominal defendant, has retained Wendy Wildung --
wendy.wildung@FaegreBD.com -- a partner in the Minneapolis office
of Faegre Baker Daniels, in those cases.
Having all the data breach cases in Minnesota is a big win for
Minneapolis-based Target. Company spokeswoman Molly Snyder
declined to comment.
During the panel's March 27 hearing in San Diego, Target attorney
Rebekah Kaufman, chairwoman of the consumer litigation and class
action practice at Morrison & Foerster, had fought to move the
cases to Minnesota. Plaintiffs lawyers had argued for Colorado,
the Northern District of Illinois and various districts in
California and Louisiana.
But Bryan Bleichner, a partner at Chestnut Cambronne in
Minneapolis, whose colleague, Karl Cambronne, had argued to
transfer the cases to Minnesota, said his clients would benefit
from a state law that allows banks and credit unions to pursue
costs against the retailer associated with reissuing cards and
opening and closing customer accounts.
"We believe it to be a rather unique statute," said Mr.
Bleichner, whose firm has filed two lawsuits against Target on
behalf of banks. "The statute specifies that financial
institutions will be able to recover against retailers in such a
situation for any of the various losses they might incur."
THAFATH INC: Class Seeks to Recover Unpaid Minimum and OT Wages
---------------------------------------------------------------
Cecilio Vicario, on behalf of himself and others similarly
situated v. Thafath, Inc. d/b/a Deux Amis Restaurant, Rachid
Yahiaoui, and John Does 1-10, Case No. 1:14-cv-00892-HB
(S.D.N.Y., February 11, 2014) alleges that, pursuant to the Fair
Labor Standards Act, the Plaintiff is entitled to recover from
the Defendants: (1) unpaid minimum wages, (2) unpaid overtime
compensation, (3) liquidated damages, (4) prejudgment and post-
judgment interest; and (5) attorneys' fees and costs.
Deux Amis is a New York domestic business corporation
headquartered in New York City. Rachid Yahiaoui is the
President, owner, shareholder, director, supervisor, proprietor,
and managing agent of Deux Amis. The Doe Defendants are
individual officers, directors, supervisors and managing agents
of Deux Amis, whose true names and identities are unknown at this
time.
The Plaintiff is represented by:
Giustino (Justin) Cilenti, Esq.
Peter Hans Cooper, Esq.
CILENTI & COOPER, PLLC
708 Third Avenue - 6th Floor
New York, NY 10017
Telephone: (212) 209-3933
Facsimile: (212) 209-7102
E-mail: jcilenti@icpclaw.com
pcooper@jcpclaw.com
TRANSCANADA KEYSTONE: Judge Recommends Dismissal of "Bibbs" Suit
----------------------------------------------------------------
Magistrate Judge Andrew W. Austin issued an order on in forma
pauperis status and report and recommendation on the merits of
the claims filed by Charles Bibbs in his lawsuit captioned
CHARLES BIBBS et al., Plaintiffs, v. TRANSCANADA KEYSTONE XL
PIPELINE et al. Defendants, NO. A-14-CV-257-LY, (W.D. Tex.).
In his order dated April 1, 2014, a copy of which is available at
http://is.gd/jVtKOpfrom Leagle.com, Judge Austin granted Mr.
Bibbs in forma pauperis status. However, he added that
"[s]ervice upon Defendants should be withheld pending the
District Court's review of the recommendations made in this
report. If the District Court declines to adopt the
recommendations, then service should be issued at that time upon
Defendants."
Judge Austin recommended that the District Court dismiss Mr.
Bibbs' claims pursuant to 28 U.S.C. Section 1915(e)(2)(B).
Mr. Bibbs brings a class action on behalf of "the many Native
Indian Querechos, Teyas of the South Plains, Cherokees that was
mostly wiped out." He asserts that these native peoples are also
entitled to share in the dividends that should be afforded to
other Texas residents. Mr. Bibbs asserts that he is of Cherokee
heritage, and as such is especially entitled to "a check every
year." He requests an injunction requiring that a public
corporation be created, as in Alaska, presumably to issue the
annual checks.
TRAVELERS COMPANIES: Appeals Court Yet to Rule in Asbestos Suits
----------------------------------------------------------------
Parties in the asbestos suits called Statutory and Hawaii actions
and Common Law Claims actions await a decision by the Second
Circuit Court of Appeals on whether Travelers Property Casualty
Corp. should pay a settlement, according to the company's Feb.
13, 2014, Form 10-K filing with the U.S. Securities and Exchange
Commission for the fiscal year ended Dec. 31, 2013.
In October 2001 and April 2002, two purported class action suits
(Wise v. Travelers and Meninger v. Travelers) were filed against
Travelers Property Casualty Corp. (TPC), a wholly-owned
subsidiary of the Company, and other insurers (not including The
St. Paul Companies, Inc. (SPC), which was acquired by TPC in
2004) in state court in West Virginia. These and other cases
subsequently filed in West Virginia were consolidated into a
single proceeding in the Circuit Court of Kanawha County, West
Virginia. The plaintiffs allege that the insurer defendants
engaged in unfair trade practices in violation of state statutes
by inappropriately handling and settling asbestos claims. The
plaintiffs seek to reopen large numbers of settled asbestos
claims and to impose liability for damages, including punitive
damages, directly on insurers. Similar lawsuits alleging
inappropriate handling and settling of asbestos claims were filed
in Massachusetts and Hawaii state courts. These suits are
collectively referred to as the Statutory and Hawaii Actions.
In March 2002, the plaintiffs in consolidated asbestos actions
pending before a mass tort panel of judges in West Virginia state
court amended their complaint to include TPC as a defendant,
alleging that TPC and other insurers breached alleged duties to
certain users of asbestos products. The plaintiffs seek damages,
including punitive damages. Lawsuits seeking similar relief and
raising similar allegations, primarily violations of purported
common law duties to third parties, have also been asserted in
various state courts against TPC and SPC. The claims asserted in
these suits are collectively referred to as the Common Law
Claims.
In response to these claims, TPC moved to enjoin the Statutory
Actions and the Common Law Claims in the federal bankruptcy court
that had presided over the bankruptcy of TPC's former
policyholder Johns-Manville Corporation on the ground that the
suits violated injunctions entered in connection with
confirmation of the Johns-Manville bankruptcy (the "1986
Orders"). The bankruptcy court issued a temporary restraining
order and referred the parties to mediation. In November 2003,
the parties reached a settlement of the Statutory and Hawaii
Actions, which included a lump-sum payment of up to $412 million
by TPC, subject to a number of significant contingencies. In May
2004, the parties reached a settlement resolving substantially
all pending and similar future Common Law Claims against TPC,
which included a payment of up to $90 million by TPC, subject to
similar contingencies. Among the contingencies for each of these
settlements was that the bankruptcy court issue an order, which
must become a final order, clarifying that all of these claims,
and similar future asbestos-related claims against TPC, as well
as related contribution claims, are barred by the 1986 Orders.
On August 17, 2004, the bankruptcy court entered an order
approving the settlements and clarifying that the 1986 Orders
barred the pending Statutory and Hawaii Actions and substantially
all Common Law Claims pending against TPC (the "Clarifying
Order"). The Clarifying Order also applies to similar direct
action claims that may be filed in the future. Although the
District Court substantially affirmed the Clarifying Order, on
February 15, 2008, the Second Circuit issued an opinion vacating
on jurisdictional grounds the District Court's approval of the
Clarifying Order.
On December 12, 2008, the United States Supreme Court granted
TPC's Petition for Writ of Certiorari and, on June 18, 2009, the
Supreme Court reversed the Second Circuit's February 15, 2008
decision, finding, among other things, that the 1986 Orders are
final and therefore may not be collaterally challenged on
jurisdictional grounds. The Supreme Court further ruled that the
bankruptcy court had jurisdiction to issue the Clarifying Order.
However, since the Second Circuit had not ruled on certain
additional issues, principally related to procedural matters and
the adequacy of notice provided to certain parties, the Supreme
Court remanded the case to the Second Circuit for further
proceedings on those specific issues.
On March 22, 2010, the Second Circuit issued an opinion in which
it found that the notice of the 1986 Orders provided to one
remaining objector was insufficient to bar contribution claims by
that objector against TPC. TPC's Petition for Rehearing and
Rehearing En Banc was denied May 25, 2010 and its Petition for
Writ of Certiorari and Petition for a Writ of Mandamus were
denied by the United States Supreme Court on November 29, 2010.
The plaintiffs in the Statutory and Hawaii actions and the Common
Law Claims actions thereafter filed motions in the bankruptcy
court to compel TPC to make payment under the settlement
agreements, arguing that all conditions precedent to the
settlements had been met. On December 16, 2010, the bankruptcy
court granted the plaintiffs' motions and ruled that TPC was
required to fund the settlements. The court entered judgment
against TPC on January 20, 2011 in accordance with this ruling
and ordered TPC to pay the settlement amounts plus prejudgment
interest. The bankruptcy court's judgment was reversed by the
district court on March 1, 2012, the district court having found
that the conditions to the settlements had not been met in view
of the Second Circuit's March 22, 2010 ruling permitting the
filing of contribution claims against TPC. The plaintiffs
appealed the district court's March 1, 2012 decision to the
Second Circuit Court of Appeals. Oral argument before the Second
Circuit took place on January 10, 2013, and the parties await the
court's decision.
SPC, which is not covered by the Manville bankruptcy court
rulings or the settlements described, from time to time has been
named as a defendant in direct action cases in Texas state court
asserting common law claims. All such cases that are still
pending and in which SPC has been served are currently on the
inactive docket in Texas state court. If any of those cases
becomes active, SPC intends to litigate those cases vigorously.
SPC was previously a defendant in similar direct actions in Ohio
state court, which have been dismissed following favorable
rulings by Ohio trial and appellate courts. From time to time,
SPC and/or its subsidiaries have been named in similar individual
direct actions in other jurisdictions.
TREMONT SECURITIES: 2nd Cir. Dismisses Appeal From Class Deal
-------------------------------------------------------------
Madelyn Haines and Paul Zamrowski appealed from a judgment of the
United States District Court for the Southern District of New
York, approving a class action settlement over their objections.
By summary order dated October 25, 2013, the United States Court
of Appeals, Second Circuit, remanded this matter pursuant to the
procedure outlined in United States v. Jacobson, 15 F.3d 19, 22
(2d Cir. 1994). See In re Tremont Secs. Law, State Law & Ins.
Litig., 542 F. App'x 43 (2d Cir. 2013). The purpose of the remand
was to clarify whether the Settlement Agreement released the
appellants' claims arising from the Trustee Settlement.
The district court responded in an order dated December 13, 2013,
stating that the claims arising out of the Trustee Settlement
were not released in the Settlement Agreement.
"Pursuant to our previous summary order, therefore, we conclude
that the appellants' appeal is moot," ruled the Second Circuit
Court in a summary order dated April 3, 2014, a copy of which is
available at http://is.gd/qx4k60from Leagle.com.
Finding no merit in the appellants' other arguments, the Second
Circuit dismissed the appeal as moot.
The case is IN RE: TREMONT SECURITIES LAW, STATE LAW AND
INSURANCE LITIGATION. Madelyn Haines and Paul Zamrowski,
Appellants, v. Arthur E. Lange Revocable Trust, Arthur C. Lange,
Neal J. Polan, HFM Charitable Remainder Trust, Eastham Capital
Appreciation Fund LP, NPV Positive Corp., Daniel Jackson,
Laborers Local Pension Plan 17, Arthur M. Brainson, Yvette
Finkelstein, and Group Defined Pension Plan & Trust, Chateau
Fiduciaire S.A., Matthew L. Klein Irrevocable Family Trust,
Harriet Rutter Klein Revocable Trust, Geoffrey Rabie Credit
Shelter Trust, and Joanne Brenda Rabie Credit Shelter Trust,
Plaintiff-Appellees, and Massachusetts Mutual Life Insurance
Company, MassMutual Holding LLC, Oppenheimer Acquisition Corp.,
Tremont Capital Management Inc., Tremont Group Holdings, Inc.,
Rye Investment Management, Tremont Partners, Inc., Tremont
(Bermuda) Limited, Harry Hodges, Robert Schulman, Jim Mitchell,
Rupert Allan, Lynn O. Keeshan, Patrick Kelly, Stephen Thomas
Clayton, Stuart Pologe, Cynthia J. Nicoll, Tremont Market Neutral
Fund L.P., Tremont Market Neutral Fund II, L.P., Tremont Market
Neutral Fund Limited, Tremont Opportunity Fund Limited, Tremont
Opportunity Fund II L.P., Tremont Opportunity Fund III L.P.,
Tremont Arbitrage Fund, L.P., Tremont Arbitrage Fund-Ireland,
Tremont Strategic Insurance Fund, L.P., Rye Select Broad Market
Fund, L.P., Rye Select Broad Market XL Fund, L.P., Rye Select
Broad Market Prime Fund, L.P., Rye Select Broad Market Insurance
Fund, L.P., and Rye Select Broad Market Portfolio Limited,
Defendant-Appellees, NOS. 11-3899, 11-3923, 11-4022, 11-4030.
VINCENT T. GRESHAM -- gresham05@comcast.net -- Atlanta, Ga, for
Appellants.
ANDREW J. ENTWISTLE -- aentwistle@entwistle-law.com -- (Arthur V.
Nealon -- anealon@entwistle-law.com -- and Robert N. Cappucci --
cappucci@entwistle-law.com -- Entwistle & Cappucci LLP, New York,
N.Y., and Reed R. Kathrein -- reed@hbsslaw.com -- and Lee M.
Gordon -- lee@hbsslaw.com -- Hagens Berman Sobol Shapiro LLP,
Berkeley, Cal., on the brief), Entwistle & Cappucci LLP, New
York, N.Y., for appellees Arthur E. Lange Revocable Trust, Arthur
E. Lange, Neal J. Polan, HFM Charitable Remainder Trust, Eastham
Capital Appreciation Fund LP, NPV Positive Corp., and for the
benefit of Nominal Defendants, Daniel Jackson, and Laborers Local
Pension Plan 17.
JEFFREY M. HABER (Stephanie M. Beige, on the brief) --
Haber@bernlieb.com -- Bernstein Liebhard LLP, New York, N.Y., for
appellees Arthur M. Brainson, Yvette Finkelstein, and Group
Defined Pension Plan & Trust,
DEMET BASAR -- basar@whafh.com -- (Daniel W. Krasner --
krasner@whafh.com -- on the brief), Wolf Haldenstein Adler
Freeman & Herz LLP, New York, N.Y., for appellees Chateau
Fiduciaire S.A., Matthew L. Klein Irrevocable Family Trust, and
Harriet Rutter Klein Revocable Trust.
DAVID A. ROSENFELD -- drosenfeld@unioncounsel.net -- Robbins
Geller Rudman & Dowd LLP, Melville, N.Y., for appellees Geoffrey
Rabie Credit Shelter Trust and Joanne Brenda Rabie Credit Shelter
Trust. for Plaintiff-Appellees.
JOSEPH L. KOCIUBES -- joe.kociubes@bingham.com -- (Carol E. Head
-- carol.head@bingham.com -- on the brief), Bingham McCutchen
LLP, Boston, Mass., for appellees Massachusetts Mutual Life
Insurance Company and MassMutual Holding LLC., for Defendant-
Appellees.
DAVID A. KOTLER -- david.kotler@dechert.com -- Dechert LLP,
Princeton, N.J., for appellee Oppenheimer Acquisition Corp.
SETH SCHWARTZ -- seth.schwartz@skadden.com -- (Jason C. Vigna --
jason.vigna@skadden.com -- on the brief), Skadden, Arps, Slate,
Meagher & Flom LLP, New York, N.Y., for appellees Tremont Capital
Management Inc., Tremont Group Holdings, Inc., Rye Investment
Management, Tremont Partners, Inc., Tremont (Bermuda) Limited,
Harry Hodges, Robert Schulman, Jim Mitchell, Rupert Allan, Lynn
O. Keeshan, Patrick Kelly, Stephen Thomas Clayton, Stuart Pologe,
and Cynthia J. Nicoll.
JAMIE B.W. STECHER -- stecher@thsh.com -- (Ralph A. Siciliano --
siciliano@thsh.com -- David J. Kanfer -- kanfer@thsh.com -- Zev
Feinstein Raben -- raben@thsh.com -- on the brief), Tannenbaum
Helpern Syracuse & Hirschtritt LLP, New York, N.Y., for appellees
Tremont Market Neutral Fund L.P., Tremont Market Neutral Fund II,
L.P., Tremont Market Neutral Fund Limited, Tremont Opportunity
Fund Limited, Tremont Opportunity Fund II L.P., Tremont
Opportunity Fund III L.P., Tremont Arbitrage Fund, L.P., Tremont
Arbitrage Fund-Ireland, Tremont Strategic Insurance Fund, L.P.,
Rye Select Broad Market Fund, L.P., Rye Select Broad Market XL
Fund, L.P., Rye Select Broad Market Prime Fund, L.P., Rye Select
Broad Market Insurance Fund, L.P., and Rye Select Broad Market
Portfolio Limited.
UNITED AIRLINES: 2nd Cir. Wants Additional Briefing in DHL Suit
---------------------------------------------------------------
Heather Johnson, writing for Courthouse News Service, reports
that DHL could not have cobbled an antitrust case against United
Airlines during the latter's bankruptcy, the 2nd Circuit called
for additional briefing in the gasoline price-fixing action.
United filed for Chapter 11 bankruptcy in 2002 and was hit with
an antitrust class action in 2006 for the alleged fuel surcharge
price-fixing conspiracy. Ultimately, "United was named as a
defendant in over ninety class actions alleging such a
conspiracy. United settled with the majority of class action
plaintiffs in return for agreements to cooperate with the
plaintiffs' investigation," the complaint stated.
DHL, through its parent DPWN Holdings, filed its federal lawsuit
alleging Sherman Act violation in 2011 after obtaining documents
disclosing United's involvement in the alleged fuel-surcharge
scheme. Anticipating that United would claim that DHL's suit was
discharged in bankruptcy, the shipping company claimed that it
"first learned of United's involvement in a price-fixing
conspiracy 'after July 5, 2010, when DHL obtained access to
confidential documents describing the scope of the cartel and
providing evidence of [United]'s participation in the cartel.'"
Like those before it, DHL's complaint alleges that United had
conspired with Lufthansa and Scandinavian Airlines to provide
"globally integrated air transportation services in competition
with other carriers and carrier alliances while remaining
independent companies." It accuses the Transportation Department
of allowing the alliance and granting the group limited antitrust
immunity.
In 1997, International Air Transport Association (IATA) approved
Resolution 116ss "under which member airlines would introduce a
fuel surcharge tied to changes in the spot price of aviation fuel
as tracked by the IATA Fuel Price Index," the complaint stated.
Fuel prices allegedly increased enough in 2000 to trigger the
surcharge. IATA submitted Resolution 116ss for approval by the
Department of Transportation, which would secure antitrust
immunity, according to the complaint.
Meanwhile, before the Department of Transportation responded to
the resolution, United and "a number of other airlines started
charging DHL and other customers a fuel surcharge 'pursuant to
the terms of Resolution 116ss,'" the complaint stated.
The Department of Transportation allegedly rejected Resolution
116ss. IATA members advised airlines that "implementing
surcharges pursuant to the resolution might be illegal price-
fixing," the complaint stated.
DHL alleged in the complaint, however, that United and other
airlines continued charging fuel surcharges "as if resolution
116ss had been approved."
In refusing to dismiss DHL's action, a federal judge called
"undisputed for purposes of this motion that DHL could not have
discovered United's alleged antitrust violations until after
confirmation of the plan."
The 2nd Circuit reversed March 27, 2014, however, after finding
that DHL's "claim of lack of knowledge in this case is
contradicted by several allegations in its complaint."
While typically a complaint's allegations are accepted as true on
a motion to dismiss -- a standard the District Court applied --
"that principle does not apply to general allegations that are
contradicted 'by more specific allegations in the complaint,'"
Judge Jon Newman wrote for a three-member panel.
"The issue here is not whether the known facts would have
permitted pleading a sufficient antitrust claim outside of
bankruptcy, but only whether such a claim could have been filed
within a bankruptcy proceeding where the 'fresh start' principle
operates to channel all 'claims,' broadly defined by the
Bankruptcy Code, into a forum well suited to determine whether
such claims deserve exploration and adjudication," Newman wrote.
"And these facts bear importantly on the ultimate issue [of]
whether DHL was denied due process by lack of specific notice
from United of an antitrust claim."
That an antitrust class action was filed in 2006, after plan
confirmation, "bears importantly" on whether DHL "could have
filed a late claim or moved to amend the reorganization plan,"
the ruling states.
"We are skeptical of DHL's contention that it was not aware of,
or with reasonable diligence could not have become aware of, its
antitrust claim in time to assert it in the bankruptcy
proceeding," Newman wrote. "But whether that contention is
supportable and the related issue of whether due process required
United to give DHL explicit notice of an antitrust claim should
not be decided at the appellate level before the District Court
has considered these matters under proper standards."
UNITED STATES: Dismissal of NSA Suit Won't Affect Newer Cases
-------------------------------------------------------------
Jack Bouboushian, writing for Courthouse News Service, reports
that the Supreme Court's dismissal of a challenge to the U.S.
government's domestic surveillance program, months before leaked
documents materialized the "speculative" harm, has no bearing on
newer cases, lawyers told a federal judge.
Carolyn Jewel leads a class action challenge to the National
Security Administration's Terrorist Surveillance Program, calling
it an abuse of executive privilege that monitors law-abiding
customers.
The class claims that the NSA's implementation of the Terrorist
Surveillance Program, signed into law after the Sept. 11, 2011,
terrorist attacks, violates the Constitution and the Foreign
Intelligence Surveillance Act (FISA). It is represented by the
Electronic Frontier Foundation, a digital privacy rights
organization.
Jewel's case had been slogging along for years when in June 2013
former NSA contractor Edward Snowden leaked documents revealing
that the NSA had forced Verizon to hand over "all call detail
records or 'telephony metadata'" of U.S. customers placing
international domestic and local calls."
The revelation was just months shy of helping sustain a similar
challenge, which the U.S. Supreme Court dismissed as
"speculative" with the February 2013 ruling Clapper v. Amnesty
International.
In July, a month after Snowden's revelations, the judge presiding
over Jewel's case barred the government from using the state
secrets defense to keep a lid on surveillance information. U.S.
District Judge Jeffrey White said in that ruling that the FISA
procedural mechanism prescribed under 50 U.S.C. S 1806(f) pre-
empts such privilege.
Citing Clapper, White then requested briefing as to whether
litigating claims for untargeted surveillance would reveal whose
"name was on the list of surveillance targets."
Jewel's attorneys slammed the government March 24, 2014, for
using this question "to assert that the state secrets privilege
should govern proceedings in this litigation."
"The government's position remain simple: No innocent American
whose communications or communications records have been swept up
in the government's mass surveillance programs can be permitted
to litigate the lawfulness and constitutionality of those
unprecedented programs," the brief states.
Unlike the case at hand, Clapper involved a very different set of
circumstances where the plaintiffs could not prove that the NSA
had targeted their communications, Jewel's attorneys said.
Arguing otherwise puts the government in the "incoherent position
of trying to simultaneously engage in a very public defense of
their admitted mass collections -- including releasing multiple
FISC opinions, appearing at congressional hearings, releasing
public reports from two presidentially appointed boards, and
making public statements including presidential addresses to the
nation -- while at the same time arguing to this court that the
question of whether these mass collections are legal cannot be
litigated because the fact that 134 million AT&T telephone
subscribers or 16 million AT&T Internet subscribers have their
communications collected would somehow be equivalent to revealing
the list of names of the targets of specific investigations," the
brief states.
No reasonable AT&T customer could assume, however, that their
telephone conversations were not included in the NSA's
surveillance, Jewel's attorneys claim.
Echoing an earlier brief, the plaintiffs reiterated their belief
that litigating their case will not harm national security.
"The government's reason for misstating Clapper is simple:
because the Supreme court's concern in Clapper was limited to the
risk that litigation would reveal who was on the list of
surveillance targets, Clapper's dictum does not reach plaintiffs'
claims, which challenge bulk, untargeted surveillance and which
can be litigated without ever touching on who the government does
or does not target for surveillance," the brief states. "Because
the actual language of Clapper does not support the government's
argument that litigating plaintiffs' claims will harm national
security, it is only by distorting Clapper's dictum that the
government can attempt to use it as an obstacle to plaintiffs'
claims."
Electronic Frontier Foundation attorney Cindy Cohn --
cindy@eff.org -- represents the plaintiffs along with various
co-counsel, including San Francisco-based attorney Richard Wiebe.
VICTORIA'S SECRET: Sued Over "Hidden Returns Policy"
----------------------------------------------------
Courthouse News Service reports that Victoria's Secret Stores
have a "hidden returns policy" of refusing cash refunds for more
than seven purchases in 90 days, a class action claims in Federal
Court in Chicago.
VONAGE AMERICA: Court Denies Motion to Arbitrate Suit in Calif.
---------------------------------------------------------------
The United States District Court for the Central District of
California denied a motion by Vonage America, Inc. to Compel
Arbitration in a suit alleging it violated California's Unfair
Competition Law by charging its customers fictitious 911 taxes
and fees, according to Vonage Holdings Corp.'s Feb. 13, 2014,
Form 10-K filing with the U.S. Securities and Exchange Commission
for the fiscal year ended Dec. 31, 2013.
Merkin & Smith, et als. on September 27, 2013, Arthur Merkin and
James Smith filed a putative class action lawsuit against Vonage
America, Inc. in the Superior Court of the State of California,
County of Los Angeles, alleging that Vonage violated California's
Unfair Competition Law by charging its customers fictitious 911
taxes and fees. On October 30, 2013, Vonage filed a notice
removing the case to the United States District Court for the
Central District of California. On October 30, 2013 the case was
assigned to a United States District Judge and a Magistrate
Judge, with the parties directed to the Court's Alternative
Dispute Resolution program. On November 26, 2013, Vonage filed
its Answer to the Complaint. On December 4, 2013, Vonage filed a
Motion to Compel Arbitration. A hearing was held on January 27,
2014, and on February 4, 2014, the Court denied Vonage's Motion
to Compel Arbitration. Vonage has 30 days to file a notice of
appeal of the Court's decision, if it decides to do so.
WOODMAN LABS: Court Narrows Claims in "Horton" Class Action
-----------------------------------------------------------
In the case, RONALD HORTON, individually and on behalf of all
others similarly situated, Plaintiffs, v. WOODMAN LABS, INC.,
doing business as GoPro, Defendant, CASE NO. 8:13-CV-3176-T-
30MAP, (M.D. Fla.), District Judge James S. Moody, Jr., granted
in part and denied in part Woodman Labs' Motion to Dismiss.
Specifically, the Plaintiff's implied warranty claim (Count II of
the complaint) is dismissed with prejudice. The Plaintiff's the
Florida Deceptive and Unfair Trade Practices Act claim (Count III
of the complaint) is dismissed without prejudice. The Plaintiff
may file an amended complaint to state sufficient facts in
support of a FDUPTA claim within 14 days of the Order, said Judge
Moddy. If the Plaintiff does not file an amended complaint during
that time, the Defendant must file an answer to Count I of the
current complaint within 28 days of this Order, he added.
A copy of the Court's April 2, 2014 Order is available at
http://is.gd/lOBQiPfrom Leagle.com.
Ronald Horton, Plaintiff, represented by Charles J. LaDuca --
charlesl@cuneolaw.com -- Cuneo, Gilbert & LaDuca, LLP, D. Michael
Campbell, Campbell Law, Robert K Shelquist --
rkshelquist@locklaw.com -- Lockridge Grindal Nauen PLLP, Sandra
Cuneo -- scuneo@cuneolaw.com -- Cuneo Gilbert & LaDuca, LLP,
Scott A. Moriarity -- samoriarity@locklaw.com -- Lockridge
Grindal Nauen PLLP & Seth Jacob Sergent Leventhal, Leventhal
PLLC.
Woodman Labs, Inc., Defendant, represented by Samuel J. Salario,
Jr. -- ssalario@cfjblaw.com -- Carlton Fields Jorden Burt, PA.
WORKS & LENTZ: Removed "Sinclair" Class Suit to N.D. Oklahoma
-------------------------------------------------------------
The purported class action lawsuit titled Sinclair v. Works &
Lentz, Inc., et al., Case No. CJ-2014-373, was removed from the
Tulsa County District Court to the U.S. District Court for the
Northern District of Oklahoma. The District Court Clerk assigned
Case No. 4:14-cv-00062-GKF-FHM to the proceeding.
The lawsuit alleges violations of the Fair Debt Collection
Practices Act.
The Plaintiff is represented by:
Johnny Clyde Parker, Esq.
UNIVERSITY OF TULSA COLLEGE OF LAW
3120 E 4th St.
Tulsa, OK 74104
Telephone: (918) 631-2444
E-mail: johnny-parker@utulsa.edu
- and -
Joseph C. Woltz, Esq.
Robert Kenneth Pezold, Esq.
PEZOLD BARKER & WOLTZ
2431 E 61st St., Suite 200
Tulsa, OK 74119-1242
Telephone: (918) 584-0506
Facsimile: (918) 584-0720
E-mail: jwoltz@pbwtulsa.com
rpezold@pbwtulsa.com
The Defendants are represented by:
David Robert Ross, Esq.
Joel L. Wohlgemuth, Esq.
Ryan A. Ray, Esq.
NORMAN WOHLGEMUTH CHANDLER & JETER
401 S Boston Ave., Suite 2900
Tulsa, OK 74103
Telephone: (918) 583-7571
Facsimile: (918) 584-7846
E-mail: drr@nwcdlaw.com
jlw@nwcdlaw.com
rar@nwcjlaw.com
*********
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